Document 693 Filed 06/17/10 Amended 06/24/2010: Transcript of Proceedings

Document 693 Filed 06/17/10; Amended 06/24/2010
Volume 13
Pages 2953 - 3115
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )
official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )
California Department of Public )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
official capacity as )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) June 16, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By: Katherine Powell Sullivan, CRR, CSR 5812

Debra L. Pas, CRR, CSR 11916
Official Reporters
Reporters - U.S. District Court
2954
APPEARANCES:
For Plaintiffs: GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
BY: THEODORE B. OLSON, ESQUIRE
AMIR CAMERON TAYRANI, ESQUIRE
GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue
Los Angeles, California 90071-3197
BY: THEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE
THEANE EVANGELIS KAPUR, ESQUIRE
GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000
San Francisco, California 94105-2933
BY: ETHAN D. DETTMER, JR., ESQUIRE
ENRIQUE A. MONAGAS, ESQUIRE
SARAH E. PIEPMEIER, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP

333 Main Street
Armonk, New York 10504
BY: DAVID BOIES, ESQUIRE

575 Lexington Avenue, 7th Floor
New York, New York 10022
BY: JOSHUA I. SCHILLER, ESQUIRE

1999 Harrison Street, Suite 900
Oakland, California 94612
BY: JEREMY MICHAEL GOLDMAN, ESQUIRE
For Plaintiff- CITY AND COUNTY OF SAN FRANCISCO

Intervenor: OFFICE OF THE CITY ATTORNEY
One Drive Carlton B. Goodlett Place
BY: DENNIS J. HERRERA, CITY ATTORNEY
THERESE STEWART
DANNY CHOU
CHRISTINE VAN AKEN
RONALD P. FLYNN
MOLLIE M. LEE
DEPUTY CITY ATTORNEYS
(APPEARANCES CONTINUED ON FOLLOWING PAGE)
2955
APPEARANCES (CONTINUED):
For Defendant MENNEMEIER, GLASSMAN & STROUD

Gov. Schwarzenegger: 980 9th Street, Suite 1700
Sacramento, California 95814-2736
BY: ANDREW WALTER STROUD, ESQUIRE
KELCIE M. GOSLING, ESQUIRE
For Defendant STATE ATTORNEY GENERAL'S OFFICE

Edmund G. Brown Jr.: 455 Golden Gate Avenue, Suite 11000
BY: MICHELE INAN
MANUEL MEDEIROS
DEPUTY ATTORNEYS GENERAL
For Defendant- COOPER & KIRK

Intervenors: 1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
BY: CHARLES J. COOPER, ESQUIRE
DAVID H. THOMPSON, ESQUIRE
HOWARD C. NIELSON, JR., ESQUIRE
NICOLE MOSS, ESQUIRE
PETER PATTERSON, ESQUIRE
ALLIANCE DEFENSE FUND

15100 North 90th Street
Scottsdale, Arizona 85260
BY: BRIAN W. RAUM, SENIOR COUNSEL
JAMES A. CAMPBELL, ESQUIRE
DALE SCHOWENGERDT, ESQUIRE

101 Parkshore Drive, Suite 100
Folsom, California 95630
BY: TIMOTHY D. CHANDLER, LEGAL COUNSEL

801 G Street NW
Washington, D.C. 20001
BY: AUSTIN R. NIMOCKS, SENIOR COUNSEL
For Defendant
Patrick O'Connell: OFFICE OF ALAMEDA COUNTY COUNSEL
1221 Oak Street, Suite 450
Oakland, California 94612
BY: CLAUDE F. KOLM, DEPUTY COUNTY COUNSEL
MANUEL MARTINEZ, DEPUTY COUNTY COUNSEL
(APPEARANCES CONTINUED ON FOLLOWING PAGE)

2956
APPEARANCES (CONTINUED):
For Dennis ANDREW PERRY PUGNO ESQUIRE

Hollingsworth: 101 Parkshore Drive, #100
Folsom, California 95630-4726
For Proposed ADVOCATES FOR FAITH AND FREEDOM

Intervenor Imperial 24910 Las Brisas Road, Suite 110
County, et al.: Murrieta, California 92562
BY: ROBERT H. TYLER, ESQUIRE
JENNIFER L. MONK, ESQUIRE
PROCEEDINGS 2957
1 P R O C E E D I N G S
2 JUNE 16, 2010 10:03 A.M.
4 THE CLERK: Calling Civil Case 09-2292, Kristin
5 Perry, et al. versus Arnold Schwarzenegger, et al.
6 Appearances, Counsel, please.
7 MR. OLSON: Good morning, Your Honor.
8 Theodore B. Olson, Gibson, Dunn & Crutcher, on behalf
9 of the plaintiffs.
10 THE COURT: Good morning.
11 MR. BOIES: Good morning, Your Honor.
12 David Boies, of Boies, Schiller & Flexner, on behalf
13 of the plaintiffs.
15 MR. BOUTROUS: Good morning, Your Honor.
16 Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher,
17 also for the plaintiffs.
19 MR. DUSSEAULT: Good morning, Your Honor.
20 Christopher Dusseault, of Gibson, Dunn & Crutcher,
21 also for the plaintiffs.
22 MR. TAYRANI: Good morning, Your Honor.
23 Amir Tayrani, from Gibson, Dunn & Crutcher, also for
24 the plaintiffs.
25 MR. GOLDMAN: Good morning, Your Honor.

PROCEEDINGS 2958
1 Jeremy Goldman, from Boies, Schiller & Flexner, on
2 behalf of the plaintiffs.
3 MS. STEWART: Good morning, Your Honor.
4 Therese Stewart on behalf of the City and County of
5 San Francisco.
6 MR. HERRERA: Good morning, Your Honor.
7 City Attorney Dennis Herrera on behalf of the City
8 and County of San Francisco.
10 Any other appearances on the plaintiffs' side?
11 All right. Mr. Cooper.
12 MR. COOPER: Good morning, Mr. Chief Judge.
13 Charles Cooper, with Cooper & Kirk, for the
14 defendant-intervenors.
16 MR. THOMPSON: Good morning, Your Honor.
17 David Thompson, of Cooper & Kirk, for the
19 MR. NIELSON: Good morning, Your Honor.
20 Howard Nielson, with Cooper & Kirk, also for the
23 MS. MOSS: Good morning, Your Honor.
24 Nicole Moss for defendant-intervenors.
25 MR. PATTERSON: Good morning, Your Honor.

PROCEEDINGS 2959
1 Peter Patterson, also for the defendant-intervenors.
3 MR. RAUM: Good morning, Your Honor.
4 Brian Raum, with the ADF, for the
6 MR. CAMPBELL: Good morning, Your Honor.
7 James Campbell, of the Alliance Defense Fund, on
8 behalf of the defendant-intervenors.
9 THE COURT: Well, we have some other defendants.
10 (Laughter)
11 MR. KOLM: Good morning, Your Honor.
12 Claude Kolm, Deputy County Counsel, for defendant
13 Alameda County Clerk Recorder.
15 MR. MARTINEZ: Good morning, Mr. Chief Judge.
16 Manuel Martinez also for County Clerk Recorder
17 Mr. Patrick O'Connell.
18 MS. INAN: Good morning, Your Honor.
19 Michele Inan on behalf of Attorney General Brown.
21 MR. MEDEIROS: Good morning, Your Honor.
22 Manuel Medeiros, also on behalf of Attorney General
23 Brown.
24 MR. STROUD: Good morning, Your Honor.
25 Andrew Stroud, Mennemeier, Glassman & Stroud, on

PROCEEDINGS 2960
1 behalf of Governor Arnold Schwarzenegger, Mark B. Horton, and
2 Linette Scott, defendants. Thank you.
4 Any other appearances?
5 Well, this is an impressive array of legal talent.
6 (Laughter)
7 All this legal talent that seems to be focused on one
8 person at the moment.
9 Welcome back. Delighted to have you back.
10 Obviously, the hiatus that we've had, the period of
11 time from the presentation of the evidence to the present is
12 not anything that I would have wished or hoped for. I was
13 hoping that we could get this case in before present. But it
14 may be appropriate that the case is coming to closing argument
15 now. June is, after all, the month for weddings.
16 (Laughter)
17 So you have received the schedule. We've allotted
18 the day for your presentations, and I would simply propose that
19 we get right to business.
20 Mr. Olson, are you leading off for the plaintiffs?
21 MR. OLSON: I am, Your Honor.
22 Mr. Boutrous has one housekeeping matter we would
23 like to bring to your attention before I start.
24 THE COURT: All right. That's fine.
25 MR. BOUTROUS: Good morning, Your Honor.

PROCEEDINGS 2961
1 With the Court's permission today, during closings
2 Mr. Olson will be playing some of the video clips from the
3 trial proceedings. We propose, if this works for the Court,
4 that at the end of the day we would offer the transcript pages
5 for the record, whenever it's convenient for the Court, rather
6 than doing it for the closings. Then we'll have that for the
7 record.
8 THE COURT: That would seem to make sense. Does it
9 not, Mr. Cooper?
10 MR. COOPER: I'm sorry, Your Honor. I'm not sure I
11 followed the proposal.
12 THE COURT: Maybe you can clarify.
13 MR. BOUTROUS: I can clarify.
14 We will be playing video clips from the trial
15 proceedings during the closing arguments. At the end of the
16 day, or whenever it is convenient for the Court, we would offer
17 into the record the transcript pages of the clips that we have
18 played in court, marked as exhibits for the record.
19 MR. COOPER: I understand. And I see no objection to
20 that, Your Honor.
21 THE COURT: Fine. That will be fine.
22 MR. BOUTROUS: Thank you.
23 THE COURT: Any other housekeeping? Good.
24 Mr. Olson.
25
CLOSING ARGUMENT / OLSON 2962
1 CLOSING ARGUMENT
2 MR. OLSON: Thank you, Your Honor. Theodore B. Olson
3 on behalf of the plaintiffs.
4 May it please the Court. We conclude this trial,
5 Your Honor, where we began. This case is about marriage and
6 equality.
7 The fundamental constitutional right to marry has
8 been taken away from the plaintiffs and tens of thousands of
9 similarly-situated Californians. Their state has rewritten its
10 constitution in order to place them into a special disfavored
11 category where their most intimate personal relationships are
12 not valid, not recognized, and second rate. Their state has
13 stigmatized them as unworthy of marriage, different and less
14 respected.
15 Because marriage is at the heart and soul of this
16 case, I want to immediately turn to the subject of marriage and
17 what we have learned during this trial about what it means to
18 be able to marry and then to have the right extinguished.
19 I will focus on marriage from four perspectives, as
20 seen by the proponents of Proposition 8, the Supreme Court of
21 the United States, the plaintiffs, and the experts who came
22 forward to share their knowledge and experience on the subject
23 of marriage and those subjects during this trial.
24 First, the proponents. In the words of their lead
25 counsel, "The central and defining purpose of the institution

1 of marriage, what it has always been, is to promote procreation
2 and to channel narrowly procreative sexual activities between
3 men and women into stable, enduring unions."
4 He went on to say, "The core need that marriage aims
5 to meet is the child's need to be emotionally, morally,
6 practically and legally affiliated with the woman and man whose
7 sexual union brought the child into the world."
8 It is quite clear from these statements and other
9 statements made by the proponents during the trial, Your Honor,
10 that the proponents of marriage and the -- I mean, the
11 proponents of Proposition 8 see marriage as an institution of,
12 by and for the state, and to promote procreation and the
13 raising of children by their biological parents. An
14 institution to promote the state's interest.
15 And proponents' counsel added, in response to your
16 question, Your Honor, that racial restrictions were never a
17 definitional feature of the institution of marriage.
18 At times during the trial, the proponents predicted
19 grave consequences if same-sex marriage were to be legalized in
20 California.
21 For example, you asked, "How does permitting same-sex
22 couples to marry in any way diminish the procreative aspect or
23 function of marriage, or denigrate the institution of marriage
24 for heterosexuals?"
25 Lead counsel responded: "Your Honor, because it will

1 change the institution. If the institution is
2 deinstitutionalized," he said, "Mr. Blankenhorn will testify
3 that will likely lead to very real social harms, such as lower
4 marriage rates and high rates of divorce and nonmarital
5 cohabitation, with more children raised outside the marriage
6 and separated from at least one of their parents."
7 It is revealing, it seems to me, that the
8 deinstitutionalization message is quite different from the
9 thrust of the proponents' Yes on 8 election campaign. That, in
10 the words they put into the hands of all California voters,
11 focused heavily on: Protect our children from somehow learning
12 that gay marriage is okay. Protect our children from learning
13 that gay marriage is okay.
14 Those are the words that the proponents put in the
15 ballot -- in the voter information guide that was given to
16 every voter.
17 That was not a very subtle theme that there is
18 something wrong, sinister or unusual about gays, that gays and
19 their relationship are not okay, and decidedly not suitable for
20 children, but that children might think it was okay if they
21 learned about gays getting married like normal people.
22 For obvious reasons, the "gays are not okay" message
23 was largely abandoned during the trial in favor of the
24 procreation and deinstitutionalization themes.
25 And after promising proof that people might stop

1 marrying and cease procreating if Proposition 8 were
2 overturned, the proponents switched course from that platform,
3 as well, and affirmatively argued that they actually had no
4 idea and certainly no evidence that any of their
5 prognostications would come to pass if Proposition 8 were to be
6 enacted.
7 Their counsel asserted, in his words, "The reality is
8 that you will hear nothing but predictions in this trial about
9 what the long-term effects of adopting same-sex marriage will
10 be on the institution of marriage. It is not possible," he
11 said, "to render reliable and certain judgments on these
12 things."
13 THE COURT: But it is the plaintiffs, after all, who
14 bear the burden of proof. Do they not, Mr. Olson?
15 MR. OLSON: Yes. And I want to juxtapose the burden
16 of proof with respect to -- yes, we have a burden of proof up
17 to a certain of point, depending upon the standard of review.
18 But I thought it was very important to juxtapose --
19 THE COURT: And that standard of review being
20 rational basis?
21 MR. OLSON: No. We believe -- we believe, as we've
22 articulated during the course of the trial and memoranda that
23 we submitted just yesterday, that strict scrutiny is required
24 here because this is a discrimination, the taking away of a
25 fundamental right as articulated by the Supreme Court.

1 It's a putting the plaintiffs and others like them in
2 a suspect classification based upon sex and sexual orientation.
3 Those two things, under the Equal Protection Clause and Due
4 Process Clause justify strict scrutiny.
5 THE COURT: Now, are you focusing on the facts
6 pertaining to the California initiative, or facts pertinent
7 generally and throughout the country with respect to marriage?
8 MR. OLSON: Both of those. And when I -- what I was
9 going to do, with Your Honor's indulgence, is juxtapose what
10 the plaintiffs have said their position is about what marriage
11 is all about and what Proposition 8 would do with these other
12 four perspectives, the Supreme Court, the plaintiffs
13 themselves, and the expert witnesses.
14 But I wanted to complete that one point, that the
15 proponents have shifted from "protect our children" to
16 "procreation" and "deinstitutionalization."
17 THE COURT: Does that make any difference?
18 MR. OLSON: I think it does make a difference because
19 I think it suggests the vacuum that exists in connection with
20 the attempt by the proponents to provide a basis for what
21 Californians did in November when it passed Proposition 8.
22 Proponents' counsel -- excuse me.
23 THE COURT: The Supreme Court's decision in the
24 Clover Leaf -- the Minnesota vs. Clover Leaf case, what the
25 Supreme Court told us there -- that was an Equal Protection

1 case, of course -- is that any debatable proposition will
2 support the enactment. And while one challenging on Equal
3 Protection grounds can certainly introduce evidence that the
4 classification is irrational, if there is any debatable
5 proposition in support of the classification it passes muster.
6 MR. OLSON: Well, it has to be a debatable
7 proposition, not that there's debate about a proposition.
8 THE COURT: Ah. What's that difference?
9 MR. OLSON: Well, the difference is, as the Supreme
10 Court said in the Romer case, there has to be a rational
11 objective that the government is seeking to sustain, and that
12 the measure itself will advance that rational proposition.
13 Now, the Supreme Court looks at this issue in various
14 different ways depending upon whether we are talking about
15 strict scrutiny, or intermediate scrutiny as it did in the VMI
16 case in the gender discrimination context, or in the rational
17 basis case.
18 But what the Supreme Court did say in the City of
19 Cleburne case, that mere negative attitudes, fear or
20 unsubstantiated factors or assertions won't be sufficiently
21 cognizable. And that's an irrational basis case involving
22 retarded persons and housing.
23 And proponents' counsel said -- it came down to
24 this -- "Same-sex marriage is simply too novel an experiment to
25 allow for any firm conclusions about its long-term effect on

1 societal interests. They just don't know."
2 That is the essence of the case as it comes to the
3 end of the trial and to the closing arguments. They just don't
4 know whether same-sex marriage will harm the institution of
5 heterosexual marriage.
6 And I submit that the overwhelming evidence in this
7 case proves that we do know. And the fact is that allowing
8 persons to marry someone of the same-sex will not, in the
9 slightest, deter heterosexuals from marrying, from staying
10 married, or from having babies.
11 In fact, the evidence was from the experts that
12 eliminating invidious restrictions on marriage strengthens the
13 institution of marriage for both heterosexual and homosexual
14 persons and their children.
15 In the face of all of this evidence going in one
16 direction, proponents' argument of last resort, that the
17 absence of evidence or logic as a justification -- is a
18 justification of their various positions, but is nothing but a
19 fig leaf for the fact that after a three-week trial and an
20 opportunity to present any expert witness they wished, the very
21 best case that the proponents could measure -- arrange for us
22 or put forth for you is to argue that Proposition 8 is
23 constitutional because California voters don't know whether
24 allowing gays and lesbians to marry would discourage
25 heterosexuals from procreative marriage, procreative conduct.

1 Well, that is what the proponents say about marriage
2 and the threat to their concept of the institution of marriage
3 from allowing marriage by persons of the same-sex.
4 THE COURT: Well, they have identified a difference
5 between opposite-sex and same-sex couples in that opposite-sex
6 couples can procreate without the intervention of some third
7 party.
8 That is a difference. And why is that difference not
9 one that the legislature -- in this case the voters -- could
10 rationally take into account in setting the marriage laws in
11 the State of California?
12 MR. OLSON: As I said, they have to identify
13 something that ties in with the subject matter of the
14 legislation or constitutional provision that they're advancing.
15 Yes, heterosexual people are able independently to
16 procreate. Homosexual people may have that same capacity, but
17 in their relationships that is not something that occurs.
18 But we're talking about, because of that, taking away
19 the right of an intimate relationship that the Supreme Court
20 has called the right of privacy, the right of liberty.
21 And you'd have to explain or make some statement that
22 allowing these other individuals that we represent here today
23 to engage in the institution of marriage will somehow stop that
24 procreation or stop people from getting married or cause them
25 to get divorced.
1 That's one of the positions they took. And then they
2 said they don't know.
3 THE COURT: Doesn't California accommodate gays and
4 lesbians by providing domestic partnership rights which are
5 essentially all the rights associated with marriage? Why isn't
6 that sufficient accommodation?
7 MR. OLSON: Well, as the experts pointed out and as
8 the plaintiffs -- and I'm going to in a moment or two, with
9 your permission, play some excerpts from the testimony of both
10 the plaintiffs and the expert witnesses on that very subject:
11 What marriage means versus something called domestic
12 partnership, which means something completely different.
13 But what I first wanted to do was recite, briefly,
14 the second perspective on marriage.
15 Now, we've heard the proponents' perspective on
16 marriage, and you've alluded to that in your questions to me.
17 I think it's really important to set forth the prism
18 through which this case must be viewed by the judiciary. And
19 that is the perspective on marriage, the same subject that
20 we're talking about, by the United States Supreme Court. The
21 Supreme Court -- the freedom to marry, the freedom to make the
22 choice to marry.
23 The Supreme Court has said in -- I counted 14 cases
24 going back to 1888, 122 years. And these are the words of all
25 of those Supreme Court decisions about what marriage is. And I

1 set forth this distinction between what the plaintiffs have
2 called it and what the Supreme Court has called it.
3 The Supreme Court has said that: Marriage is the
4 most important relation in life. Now that's being withheld
5 from the plaintiffs. It is the foundation of society. It is
6 essential to the orderly pursuit of happiness. It's a right of
7 privacy older than the Bill of Rights and older than our
8 political parties. One of the liberties protected by the Due
9 Process Clause. A right of intimacy to the degree of being
10 sacred. And a liberty right equally available to a person in a
11 homosexual relationship as to heterosexual persons. That's the
12 Lawrence vs. Texas case.
13 Marriage, the Supreme Court has said again and again,
14 is a component of liberty, privacy, association, spirituality
15 and autonomy. It is a right possessed by persons of different
16 races, by persons in prison, and by individuals who are
17 delinquent in paying child support.
18 It is the right of individuals, not an indulgence
19 dispensed by the State of California, or any state, to favored
20 classes of citizens which could easily be withdrawn if the
21 state were to change its mind about procreation. In other
22 words, it is a right belonging to Californians, to persons. It
23 is not a right belonging to the State of California.
24 And the right to marry, to choose to marry, has never
25 been conditioned on or tied to procreation. It hardly could be

1 rooted in the state's interest in procreation, since the right
2 to marry, in Supreme Court cases, has been invoked sustaining
3 the right to contraceptives, to divorce, and just a few years
4 ago in that Lawrence case, to homosexuals.
5 THE COURT: Well, if the right belongs to
6 Californians individually, why cannot Californians collectively
7 establish the parameters of that right?
8 MR. OLSON: Well, they can unless they are taking
9 away a fundamental right to marry under the Constitution, with
10 a compelling governmental interest and a proposition that --
11 THE COURT: Would this case be different if the
12 California Supreme Court, in marriage cases, had invalidated
13 the 18,000 or so marriages that were performed from, I believe
14 it was, June or May --
15 MR. OLSON: It was June.
16 THE COURT: -- 2008, until November?
17 MR. OLSON: Yes.
18 THE COURT: Would this case be different?
19 MR. OLSON: It would be different.
20 THE COURT: In what way?
21 MR. OLSON: It would be much worse.
22 THE COURT: In what way?
23 MR. OLSON: It's worse in this way. Right now,
24 California has 18,000 same-sex marriages, if we can call it
25 that for a moment.

1 Heterosexual persons who can marry the person in
2 their choice. If they are a child molester, if they are a wife
3 beater, if they are in prison for 15 murders, they can marry
4 the person of their choice if they are heterosexual.
5 Individuals, such as the plaintiffs in this case and
6 those who are similarly situated, may not marry the person of
7 their choice. We have a Three Strikes law in California. You
8 can go to prison for life. But if you are homosexual, you
9 can't get married. There's that category. The people that can
10 get married. The people that can't get married.
11 There's 18,000 people that were married during that
12 period that you described, and who are legally married. But if
13 they get divorced or if they are widowed, they can't remarry.
14 And they can't even remarry the same person, in the case of a
15 divorce, because the Constitution wouldn't recognize it.
16 THE COURT: No, but wouldn't the marriage regime in
17 California be more rational if, in fact, the California Supreme
18 Court had invalidated those 18,000 marriages?
19 MR. OLSON: It would be less irrational, that's -- I
20 don't think it would be rational at all, because the
21 distinction that's being made -- and, by the way, there's a
22 fourth category: People that got married in other states, when
23 during a certain period of time or after a certain date and who
24 come to California, now they are living in California in a
25 same-sex relationship and their marriage is recognized.

1 So there's four different categories. If you reduced
2 it to three, yes, it would be less capricious and less
3 arbitrary. But it wouldn't make it constitutional.
4 THE COURT: And why not?
5 MR. OLSON: It would not make it constitutional
6 because there is not a compelling governmental interest to put
7 the plaintiffs in a class like this and take away what the
8 Supreme Court has called a fundamental right, a right of
9 liberty, privacy, association, intimacy and autonomy. You are
10 taking away, the state is, that fundamental right.
11 And even if we did -- and if it was intermediate
12 scrutiny, you can't rely -- in the VMI case, for example,
13 United States vs. Virginia, the Supreme Court said, you can't
14 make this up after the fact. The post-talk rationalizations
15 won't work.
16 One of the reasons I explained to you the shift in
17 position is to show you that the rationalizations that were
18 being offered at the end of the trial were different than the
19 motives that were in the ballot proposition and the
20 advertising.
21 These have become post hoc rationalizations because
22 the proponents don't want to come in here and say we passed --
23 or the people passed Proposition 8 because they don't -- they
24 think gays are unusual. They don't want our children to know
25 about them.
1 That sounds awful lot like animus. So the
2 rationalization now is procreation and something called the
3 deinstitutionalization of marriage. Whatever in the world that
4 is.
5 I think it's really important, given what the Supreme
6 Court has said about marriage and what the proponents said
7 about marriage, to hear what the plaintiffs have said about
8 marriage and what it means to them, in their own words.
9 They have said that marriage means -- and this means
10 not a domestic partnership. This means marriage, the social
11 institution of marriage that is so valuable that the Supreme
12 Court says it's the most important relation in life.
13 The plaintiffs have said that marriage means to them
14 freedom, pride. These are their words. Dignity. Belonging.
15 Respect. Equality. Permanence. Acceptance. Security.
16 Honor. Dedication. And a public commitment to the world.
17 One of the plaintiffs said, "It's the most important
18 decision you make as an adult." Who could disagree with that?
19 I would like, with Your Honor's permission now, to
20 play a couple of excerpts from the testimony by the four
21 plaintiffs, starting with Plaintiffs Katami and Zarrillo,
22 explaining why they want to marry, because they can say it
23 better than I can.
24 This is, first of all, Plaintiff Katami, followed by
25 Plaintiff Zarrillo.
1 What do we have to do? Okay. Thank you.
2 (Video played in open court.)
3 MR. OLSON: And now Plaintiff Kristin Perry.
5 MR. OLSON: And Plaintiff Sandra Stier.
7 MR. OLSON: If we had the time, Your Honor, I could
8 not present a more compelling closing argument than simply
9 replaying the testimony in its entirety than the four
10 plaintiffs and Helen Zia.
11 They have described from their hearts what marriage
12 means to them, what it does to them and says about them to be
13 denied that right. If we did nothing else in this trial, that
14 would be enough.
15 And the two plaintiffs, Perry and Stier, are in a
16 domestic partnership relationship, you will recall during the
17 trial. It isn't the same thing.
18 But we have so much more. There were eight experts,
19 persons who have studied and written about American history,
20 marriage, psychology, sociology, economics and political
21 science throughout their entire professional lives.
22 I have the time to discuss just a segment of what
23 they had to say, but their evidence was remarkably powerful,
24 persuasive, and very consistent.
25 Professor Cott, for example, explained that contrary

1 to proponents' assertion, marriage is not primarily a vehicle
2 by which the state promotes procreation.
3 She's an expert in marriage. She testified that its
4 core social meaning, marriage, is a couple's choice to live
5 with one another, to remain committed to one another, and to
6 form a household based on feelings about one another, and their
7 agreement to join in an economic partnership and support one
8 another in terms of the material needs of life.
9 She said it is an aspect of liberty, basic civil
10 right. The ability to marry is the expression of one's
11 freedom. Those are the same things coming from the expert on
12 marriage that the Supreme Court has been saying for 122 years.
13 And contrary to proponents' assertions, racial
14 restrictions have, indeed, been a definitional feature of
15 marriage. For example, as we learned from her, slaves were not
16 permitted to marry until the Emancipation Proclamation.
17 And she testified -- and I would like to play that
18 excerpt, if we can do the same mechanical things, to have her
19 testify what it meant to the slaves.
21 MR. OLSON: What a powerful statement that slave
22 made. "The marriage covenant is the foundation of all of our
23 rights. It exemplified freedom." He could say "I do" to his
24 partner.
25 Then Professor Cott explained the meaning and

1 definition of marriage. Now, she is just about the leading
2 expert. Certainly, the finest expert we could find to talk
3 about the history of marriage and its definition in American
4 society and American culture, and what it means to individuals
5 in this society to be able to be married and to have the choice
6 of the person to whom one would marry.
7 Another video clip.
9 MR. OLSON: So we learned, also during the trial,
10 that racial restrictions on the right to marry were finally
11 eliminated for good in Loving vs. Virginia in 1967, ending laws
12 like Proposition 8 which prohibited certain marriage choices
13 for citizens that had once existed in 41 states.
14 Proposition 8 is very, very much like those
15 restrictions, Dr. Cott explained, because it prevents a
16 complete choice as to marriage and designates gays and lesbians
17 as less worthy and entitled to less honor, less status and
18 fewer benefits.
19 Marriage is special, the experts tell us. Domestic
20 partnerships and civil unions are pale comparisons. As
21 Dr. Cott put it, there is nothing that is like marriage except
22 marriage. And the state's approval lends prestige and
23 acceptance to the institution.
24 As Dr. Peplau testified, married couples are
25 healthier, live longer, are emotionally more stable, and better

1 off on every measure of health.
2 Domestic partnership is a harmful, structural stigma.
3 That's what Dr. Ilan Meyer said. Moreover, removing the stigma
4 imposed by Proposition 8 would produce powerful collateral
5 benefits.
6 Here is Dr. Meyer, one of the world's leading experts
7 on stigma and discrimination.
9 MR. OLSON: I was struck, Your Honor, by that same
10 word appearing again and again. That word "okay."
11 Sandra Stier just wanted her children to feel okay
12 about who they were and who they were living with, their
13 parents. They just wanted to feel okay. It was okay to be
14 gay.
15 The proponents in their voter information guide, they
16 told every voting citizen that we must protect our children
17 from teaching that gay marriage is okay.
18 And Dr. Meyer testified that the stigma propagated by
19 Proposition 8 is that it's not okay to be gay; that it's
20 abnormal, unusual, certainly not okay, and is a basis for
21 rejection of the individual.
22 The experts testified not only that same-sex marriage
23 would not harm the institution of marriage or diminish
24 heterosexual interest in marriage, they explained, as well,
25 that the elimination of discriminatory barriers to marriage and

1 harmful stigmas would, as it has in the past, strengthen the
2 institution of marriage and strengthen our country.
3 We are not talking, just talking, about the couples
4 who wish to get married. We are talking about their children.
5 In 2005, there were 37,000 of California's children
6 living in households headed by same-sex couples. The evidence
7 was uncontradicted during this trial and overwhelming that the
8 lives of these children would be better if they were living in
9 a marital household.
10 Even Mr. Blankenhorn, the proponents' witness,
11 proponents' principal witness, agreed with that proposition.
12 And here we have another excerpt from the testimony.
13 Mr. Blankenhorn.
15 MR. OLSON: That is the plaintiffs' [sic] principal
16 expert witness, that approving same-sex marriage would be
17 likely to improve the well-being of gay and lesbian households
18 and their children.
19 I was stricken by Mr. Blankenhorn's testimony about
20 the other societal benefits that would arise from permitting
21 gays and lesbians to marry.
22 Mr. Blankenhorn admitted on the witness stand that
23 same-sex marriage would yield numerous social benefits. I
24 don't have time to do all of this, but I want to play two
25 excerpts. Here's one.

2 MR. OLSON: He testified that it would decrease the
3 number of those in society who would be viewed wearily as
4 "other." In other words, not okay. And the elimination of
5 that stigma and that discrimination, according to
6 Mr. Blankenhorn, would be a victory for the American idea.
7 He went on to say something somewhat along the same
8 line. But it's important to recall it.
10 MR. OLSON: So the plaintiffs, he's -- the
11 proponents' principal witness believes that gay and lesbian
12 individuals would be better off, their children would be better
13 off, we would be closer to the American ideal or the American
14 idea in applying, he said, the principle of equal human dignity
15 upon which this country was founded. "We will be more American
16 the day we permit same-sex marriages." That is the proponents'
17 principal witness.
18 And that, Your Honor, is the four perspectives that
19 we saw in this case about marriage.
20 On the one hand, we have the proponents' argument
21 that it's all about procreation and institutionalizing --
22 deinstitutionalizing marriage, but was not supported by
23 credible evidence. I couldn't find it. That's the one hand.
24 On the other stands the combined weight of 14 Supreme
25 Court opinions about marriage and the liberty and the privacy
1 of marriage. The testimony of the plaintiffs, about their life
2 and how they are affected by Proposition 8, and the combined
3 expertise of the leading experts in the world, as far as we
4 were able to find. It is no contest.
5 So, Your Honor, it's important to emphasize, the
6 plaintiffs have no interest in changing marriage or
7 deinstitutionalizing marriage.
8 They desire to marry because they cherish the
9 institution. They merely wish for themselves the status the
10 State of California accords to their neighbors, to their
11 friends, their coworkers, and their relatives.
12 The plaintiffs are in the same position as Mildred
13 Jeter and Richard Loving, who in 1967 had no interest in
14 diluting the institution of marriage. They only wanted to
15 marry the person they loved, the person of their choice, who
16 happened to be a person of a different race.
17 That's all the plaintiffs desire, the right to marry
18 the person they love, the person of their choice, who happens
19 to be of the same sex.
20 THE COURT: Mr. Olson, at the beginning of the case
21 Mr. Cooper said, Judge, this case involves legislative facts.
22 We just heard much of the testimony. Would you agree with that
23 characterization?
24 MR. OLSON: I felt at the beginning, Your Honor --
25 and we made this point at the motion for a preliminary

1 injunction -- that Proposition 8, on its face, discriminates
2 against a class of individuals.
3 It does the same thing -- and I was going to mention
4 this in a moment, and I probably will emphasize it in a moment.
5 It does the same thing that the Romer decision, by taking away
6 a class of rights from an individual, a group of individuals, a
7 classification of individuals, to take away their rights based
8 upon their sexual orientation. That's exactly what this case
9 does, Proposition 8 does.
10 And harking back to Lawrence vs. Texas, the Supreme
11 Court of the United States said that the conduct which
12 characterizes sexual orientation in this case is a protected
13 constitutional right.
14 So Proposition 8 takes away the fundamental right to
15 marry from a class of persons based upon their practice of
16 something that's been decided to be a fundamental
17 constitutional right of liberty, privacy, association.
18 And I believed then --
19 THE COURT: Is there a yes or no in all of this?
20 (Laughter)
21 MR. OLSON: Yes. Well, yes and no.
22 (Laughter)
23 Yes, I believe this case could be decided on whatever
24 Mr. Cooper means by legislative facts, but facts that are
25 apparent from the proposition itself, from what we know and

1 don't need a trial to prove, that these people are being
2 selected out on the basis of their sexual orientation, and what
3 the Supreme Court says, has said consistently, again and again,
4 about the fundamental rights involved here.
5 I think you could have made that decision. You
6 decided that we should have a trial to examine the facts.
7 Marriage. The classification of individuals. What marriage
8 means. What it's like to be taken away. What is the effect of
9 discrimination. What is the history of discrimination.
10 And I now think that that was an exceedingly wise
11 decision because, whatever you decide, we now have not just the
12 Supreme Court decisions and not just what we know about
13 discrimination on the basis of sexual orientation, but now we
14 have heard what it really matters like in real life. We know
15 what it's like from the experts. And we've had an opportunity
16 to explore these things. This has been a great education. I
17 think not just to the people in this room, but the people who
18 read this record.
19 THE COURT: Well --
20 MR. OLSON: And I might add, this is the kind of
21 record that was created as an antecedent to the Supreme Court's
22 decision in Brown vs. Board of Education. It's the kind of
23 record that was created in the VMI case and other cases of
24 discrimination.
25 And so the legislative facts, what -- I really don't,

1 honest to heavens, know exactly what legislative facts are, or
2 I wouldn't try to distinguish them. But the facts that we do
3 know, as a result of the Constitution, what we know about
4 people, what we know the classification, those support a
5 finding that this is unconstitutional.
6 THE COURT: Well, I assume that the term "legislative
7 facts" refers to facts that it is appropriate for the judiciary
8 to decide or not to decide. And that is the distinction which
9 Mr. Cooper is attempting to draw.
10 So when is it appropriate for the judiciary to weigh
11 in on legal and constitutional questions that may touch on
12 sensitive social issues?
13 What are the criteria that a court should look at in
14 deciding whether or not it should render a decision that a
15 certain right or lack of right implicates constitutional
16 considerations?
17 When does it become ripe for the Court to weigh in on
18 these issues?
19 MR. OLSON: Well, I think that it undoubtedly depends
20 upon what the state is trying to do, how that state's action is
21 going to affect citizens. And, if we turn to the Fourteenth
22 Amendment, not just citizens but persons. And I think the
23 cases are going to be different depending on those things and
24 certain other related facts.
25 But if I read the cases going back to 1888, on the

1 due process part of the marriage right, and if I read the cases
2 going back to Yick Wo decision in 1886, where the Supreme Court
3 struck down the right of a Chinese person in this city to
4 operate a laundry, I look back at those decisions and I think
5 what the Court is doing is making an appropriate judgment as to
6 whether or not it needs more information about what is -- what
7 the state is trying to accomplish, whether its objective is
8 being served in a narrow basis so that it's not over-inclusive
9 or under-inclusive.
10 Those kind of facts that we learned during the course
11 of this trial, I think aid the decision that you're being
12 expected to make, and will aid the record that that decision
13 will have before it, with it, when it's reviewed in the Court
14 of Appeals. And aid in the understanding by the American
15 people what the rights are that we're talking about.
16 I think, at the end of the day -- as I said, I
17 thought we didn't need the trial. But, at the end of the day,
18 I think it's an enormously enriching and important undertaking.
19 THE COURT: Well, now, the Supreme Court in the Baker
20 vs. Nelson case, decided that the issue which we are confronted
21 with here was not ripe for the Supreme Court to weigh in on.
22 That was 1972. What's happened in the 38 years since 1972?
23 MR. OLSON: Well, a great deal has happened.
24 Among the things that have happened is the Romer
25 case. Among the things that have happened is the Lawrence vs.
1 Texas case. You know what those cases involve.
2 A lot of other things have happened. Changes in the
3 ballot propositions. California has adopted something
4 completely different than the state -- I guess it was Minnesota
5 or Michigan, involved in that case. So there are a lot of
6 factual situations that are different. This case is very
7 different.
8 And, by the way, the Supreme Court rejected the
9 opportunity to take a miscegenation case. Now, I think it
10 was -- Dr. Cott testified to this. I think it was 1955. And
11 then they took the case, the Loving case, in 1967.
12 The same issue was before the Court, I think, also,
13 in the Zablocki case, where there was a summary affirmance of
14 an earlier case. I take that back. It was Turner vs. Safley,
15 the case involving a fundamental right to marriage for
16 prisoners. Turner vs. Safley.
17 The Supreme Court, in that --
18 THE COURT: What year was that?
19 MR. OLSON: Pardon?
20 THE COURT: What year was that?
21 MR. OLSON: Uhm --
22 THE COURT: Well, one of your colleagues will get
23 that.
24 MR. OLSON: I have that very close by. But I will --
25 THE COURT: In any event...

1 MR. OLSON: At any rate, I thought that was
2 interesting. We talked about it somewhat at the -- it was
3 1987. But it talked about the fact that the Court was urged to
4 not -- said the Court had already decided that case because it
5 was an earlier summary affirmance in that case. And the Court
6 went on to take the case. It pointed out, like that Mandel
7 case that's cited with respect to summary affirmance cases, the
8 facts were different, the time was different, a lot of things
9 happened since then. And the court, the lower courts and
10 Supreme Court were not bound by that prior summary affirmance.
11 We have learned so much in the years since that case
12 or that summary affirmance. But we have also learned a lot
13 from the Supreme Court.
14 Remember, the Supreme Court in Lawrence vs. Texas
15 reversed Bowers vs. Hardwick, which was only 20 years earlier.
16 That's a big difference.
17 And what the Supreme Court -- the opinion for the
18 Supreme Court in Lawrence vs. Texas quotes and makes a part of
19 its holding justice Stevens's dissent in Bowers vs. Hardwick.
20 There couldn't be a more complete shift in point of view in
21 that period of time.
22 THE COURT: Well, it's apparently changed a point of
23 view by Justice O'Connor.
24 MR. OLSON: No, Lawrence vs. Texas was a 6-to-3
25 decision. She wrote a concurring opinion on Equal Protection

1 grounds. But the majority of the opinion was signed by five --
2 Justice Kennedy and four other justices decided that case on
3 the basis of due process.
4 And the Romer case, which involved sexual orientation
5 in Colorado, not very many years ago, the late '90s, I think,
6 decided to reject a class discrimination on the basis of sexual
7 orientation. Those Supreme Court decisions inform our
8 decision.
9 THE COURT: How important in that case was the fact
10 that the initiative measure in Romer took away from the voters
11 of the municipalities of Colorado the opportunity to pass
12 anti-discrimination ordinances as opposed to simply a blanket
13 prohibition against the enactment of those initiatives in the
14 first place?
15 MR. OLSON: Well, the Court said it was significant
16 that there was a taking away of rights. I don't know what I
17 would have decided if that had been the blanket prohibition of
18 the granting of those rights.
19 We have had cases like Romer, though, going back to
20 Reitman v. Mulkey, in 1964, where the citizens of Colorado
21 decided to rewrite its constitution -- California, to rewrite
22 its constitution was Proposition 14.
23 THE COURT: Is that housing?
24 MR. OLSON: Fair housing. That was the fair housing
25 issue. And the voters of California said, We're going to amend

1 our constitution and we're going to repeal all the fair housing
2 statutes and affirmatively give a right to any citizen to sell
3 his or her house to whoever they wanted, irrespective of race.
4 That went to the United States Supreme Court. The
5 Supreme Court said, We can discern, speaking of legislative
6 facts, we can discern that the motives involved in that were
7 taking away rights of individuals that existed in that case on
8 the basis of race.
9 Then comes the Romer decision. There's an
10 intervening case involving busing from the State of Washington,
11 that goes to the Supreme Court, where the voters again did
12 something to their constitution to change issues with respect
13 to civil rights.
14 Similarity here is that in Romer, individuals were
15 protected by state laws from discrimination on the basis of
16 sexual orientation.
17 In California, individuals lost the right to marry on
18 the basis of sexual orientation. And the Supreme Court said
19 you've taken away the rights of these individuals for redress.
20 The only way they can seek redress is to go to their fellow
21 citizens and amend the Colorado constitution.
22 And the plaintiffs here, the only thing they can do
23 to restore their rights is go to the citizens and seek to amend
24 the constitution.
25 So in each case rights are being taken away because

1 of sexual orientation and the barrier is placed in the
2 Constitution.
3 THE COURT: Let me see if I can get an answer this
4 time.
5 (Laughter)
6 Would this case be different if California had never
7 permitted same-sex marriage?
8 MR. OLSON: It would be different, but would still be
9 unconstitutional, because it is a stronger case because there
10 were four categories of citizens. It's a stronger case because
11 the California Supreme Court said in the California
12 Constitution there is a right of an individual to marry someone
13 of the same sex. And the citizens of --
14 THE COURT: So, the facts here are stronger simply
15 because there was a period of time, albeit six months, in which
16 the State of California permitted same-sex marriage.
17 MR. OLSON: I submit that is correct, Your Honor.
18 And the political scientists that were here talked about the
19 initiative referendum process by which minority rights are
20 particularly vulnerable, because they don't have any room to
21 negotiate. Their rights are being put up for --
22 THE COURT: What kind of a constitutional system is
23 it that because of a California Supreme Court decision, which
24 had a shelf life of six months, that that creates a greater
25 entitlement than if that right had never existed in the first

1 place?
2 MR. OLSON: Well, the California Supreme Court, I
3 think, would say that, We didn't invent that right. We
4 determined, when it was brought before us, that the California
5 Constitution, which we are not changing, we are interpreting,
6 contains that right.
7 Now -- and that has happened again and again where
8 courts recognize the discrimination that it's imposing upon
9 citizens.
10 We could say the same about the separate school in
11 Texas, the law school, Sweatt vs. Texas -- Painter vs. Sweatt.
12 Can't remember exactly the name of the case, where Texas set up
13 a separate school system, a separate law school for
14 African-Americans.
15 We could say the same thing about Virginia, in
16 setting up a male only Virginia military institute.
17 We could say the same thing about Plessy vs.
18 Ferguson. Where in the world, in 1954, did the Supreme Court
19 come up with this right that didn't exist right before then?
20 So I think that it is a more forceful fact because of
21 the Romer case and because of the taking away of rights. But I
22 hasten to say that if this was -- we were writing on a clean
23 slate, which we might be if we're litigating the same issue in
24 the next door state, I would be making the same arguments.
25 You are -- the citizens of XYZ state are selecting

1 out people on the basis of sexual orientation, a practice which
2 the Supreme Court says is a constitutionally protected right,
3 and you're putting them in a separate category with respect to
4 another fundamental right, the right to marry.
5 THE COURT: The statute in Lawrence was a criminal
6 statute.
7 MR. OLSON: Yes.
8 THE COURT: The denial of the right to marriage of
9 same-sex couples doesn't have any criminal sanction. There
10 isn't any sanction that attaches to it. It's simply a denial
11 of access to the estate of marriage. That's not a criminal
12 penalty.
13 MR. OLSON: I submit it doesn't make any difference.
14 If we're talking about -- once Lawrence vs. Texas recognized
15 the constitutional right to -- what the Court repeatedly talked
16 about in Lawrence vs. Texas is the right of individuals, the
17 constitutional right of individuals -- this is on page 574 of
18 the Lawrence opinion.
19 "Our laws and our tradition afford constitutional
20 protection to personal decisions relating to marriage,
21 procreation, contraception, family relationship, child rearing,
22 and education." That's not a complete list.
23 And then the Court goes on to say, "Persons in a
24 homosexual relationship may seek autonomy for these purposes
25 just as heterosexual persons do."

1 The Court was talking about the private, intimate
2 behavior. If the Court had said, "Instead, you can go to jail
3 for five days because we caught you doing those things, we will
4 take away your right to drive on highways, we will take away
5 your right to marry because you do those things or you engage
6 in that conduct," that seems to me that that is just as
7 unconstitutional, especially if the thing which is taken away
8 is also a fundamental constitutional right.
9 In other words, because you engage in something
10 that's protected by our Constitution, we're going to take
11 away -- because we don't like it, we're going to take away a
12 right to do another thing that's protected by our Constitution.
13 That can't be constitutional. And so I don't think
14 that there is any distinction. I submit that there can't be
15 any distinction. And the language of the decision talks about
16 the individual right to engage in that activity. That can't be
17 a precondition for engaging in the right to marry.
18 THE COURT: Should the review here be different with
19 respect to your Due Process claim and your Equal Protection
20 claim?
21 MR. OLSON: No. We submit that strict scrutiny is
22 required in either case, for different reasons.
23 Due process, as I've explained and the Supreme Court
24 over and over again has affirmed, provides a fundamental
25 constitutional right rooted in privacy, liberty, association

1 and so forth, to engage in the institution of marriage. Not a
2 false institution of marriage. Not a something that is not
3 citizenship but it's called something else.
4 It is the fundamental right of marriage which has all
5 of the significance we learned here. Taking that away, that
6 requires strict scrutiny. Because our fundamental rights can't
7 be taken away unless the state has a very, very fundamental,
8 strong, compelling reason to do so, and it acts with surgical
9 precision so that it takes no more than the compelling reason
10 justifies.
11 In the Equal Protection context, we are talking about
12 a group of individuals who meet every one of the standards for
13 suspect classification.
14 They are a minority. They have been -- there wasn't
15 any dispute about that. It's an immutable characteristic. The
16 witnesses said that. The plaintiffs said that. The expert
17 witnesses said that. The Ninth Circuit has said that in the
18 Hernandez case.
19 They have been victims of discrimination. They are
20 classified according to that basis. There's been an issue -- I
21 will concede that there has been some argument about whether or
22 not they have sufficient -- they have political power.
23 But there has been a change, of course, because
24 the -- I will mention the Frontiero case, which is a sex
25 discrimination case where there have been improvements. The

1 legislature had enacted pieces of legislation protecting women
2 from sexual discrimination. And the Supreme Court said that
3 sort of proves what we're saying, that these individuals,
4 because of their sex, have been discriminated against, and the
5 legislature has recognized that by having to pass these laws to
6 protect them from bad treatment, from harassment or whatever.
7 There has been an increase in sensitivity in this
8 state and other places. But Professor Segura from Stanford,
9 said, "I weigh all of these." And by the way, the political
10 power issue is not a fundamental predicate for suspect
11 classification anyway. But I'm saying that he testified that,
12 indeed, these individuals are lacking in political power to get
13 their positions advanced and accepted by the population.
14 And, if we had to go no further than the Romer case,
15 the Romer case starts with the language, "We do not make in
16 this country classifications among our citizens." And that is
17 a classification that the Supreme Court dealt with based upon
18 sexual orientation. And that is impermissible.
19 But if you didn't have strict scrutiny, you would
20 have discrimination on the basis of sex and sexual orientation.
21 The individuals that are before you today do not have
22 a choice for the person they wish to marry because the person
23 is the wrong sex. They can choose anybody they want, except
24 the state's decided that it has to be a person of a certain
25 sex. So their choice is foreclosed on the basis of sex, the

1 sex of the person they wish to marry, and sexual orientation.
2 And the cases support a high level of scrutiny in that case.
3 Your Honor pointed out at the conclusion of the
4 summary judgment hearing, this issue is not about same-sex
5 marriage. Just as in 1967, it wasn't about interracial
6 marriage. It was the right, in 1967, in the Loving case, the
7 right to marry without limitation based on race.
8 Here, the issue is the right to marry without
9 limitation based upon sex. That's another reason why this
10 requires heightened scrutiny.
11 The evidence was overwhelming that this is a stigma.
12 It's a government-imposed stigma. It's a government-imposed
13 stigma placed in the constitution of the State of California.
14 What could be a stronger signal to other citizens and
15 to other people that they are not okay, these people are not
16 normal?
17 THE COURT: If Proposition 8 is unconstitutional,
18 where does that leave the domestic partnership laws?
19 MR. OLSON: The way they were on the day before
20 Proposition 8 was enacted.
21 If people want to have a business partnership, they
22 can enter into something called a domestic partnership. Maybe
23 lots of people don't want to get married, despite everything
24 we've been saying about how wonderful it is.
25 (Laughter)
1 That is a choice, the Supreme Court has said. And
2 Dr. Cott specifically said not everybody wants to get married.
3 But it is important. And she said it's -- we don't even
4 understand it if we can do it. It is the people that don't
5 have the right that understand how harmful it is and how much
6 it hurts.
7 But if you wish to have a -- the State of California
8 can have all kinds of relationships between persons. As you
9 heard on the stand from the plaintiffs and the witnesses, the
10 expert witnesses, that's a business deal.
11 No one aspires as a child -- I think it was Dr. Meyer
12 who said this. No one aspires as a child to grow up and enter
13 into a domestic partnership. But they do aspire as children to
14 grow up and be married.
15 The other witnesses, the witnesses also told us you
16 don't have a celebration when you have a domestic partnership.
17 You do have a celebration when you get married. It means --
18 there's so much that was said during the course of the trial,
19 about the meaning and significance of marriage.
20 And the Supreme Court in Zablocki said that the right
21 to marry is of fundamental importance to all individuals.
22 It comes down to, just with respect to the due
23 process part, the -- whether you are applying strict scrutiny,
24 which is a very exhaustive examination of the objectives of the
25 state, or heightened scrutiny, which is a very serious

1 examination, and to meet the needs and to fit the -- the
2 state's interest versus what it's done to advance those
3 interests, or whether it's called rational basis, on all of
4 those bases the -- whatever the objective that the proponents
5 want -- wanted to accomplish for the State of California -- and
6 we don't know because it keeps changing -- it isn't being
7 accomplished.
8 The latest words from the proponents, Counsel for the
9 proponents is, "We don't know. We don't know whether there is
10 going to be any harm."
11 And I would submit that, "We've always done it that
12 way," that "It's a traditional definition of marriage," which
13 is something that "We've always done it that way," is the
14 same -- is the corollary to the "Because I say so."
15 It's not a reason. You can't have continued
16 discrimination in public schools because you have always done
17 it that way. You can't have continued discrimination between
18 races on the basis of marriage because you have always done it
19 that way. That line of reasoning would have prevented the
20 Loving marriage. It would have justified racially segregated
21 schools and maintaining subordinate status for married women.
22 We heard a great deal about that relationship from Dr. Cott.
23 So the constitutional right to marry is fundamental.
24 The constitutional right to be able to be in a relationship
25 with a person of the same sex is a fundamental constitutional

1 right. And in a sense, the State of California is burdening
2 both of those -- burdening in a very severe way that hurts
3 individuals and it doesn't do any good to prevent those persons
4 from getting married, because the evidence was also
5 overwhelming in this regard.
6 Heterosexual people are not going to stop getting
7 married. They are not going to abandon their marriage and they
8 are not going to stop having children because their next door
9 neighbor has a marriage that's a person of the same sex. That
10 is not going to happen. The evidence said that wasn't going to
11 happen.
12 Although there was some talk about how the -- it may
13 have happened in the Netherlands. That evidence folded and
14 disappeared before our eyes when he was cross examined.
15 Dr. Cott -- I think it was Dr. Cott, or maybe it was Dr.
16 Peplau, said the four years before in Massachusetts and the
17 four years after, the statistics were the same. Marriage, the
18 same. Divorce is the same and that sort of thing. And the
19 statistics from the Netherlands didn't establish that
20 proposition either.
21 In fact, the evidence was that the so-called
22 deinstitutionalization of marriage has been coming about to the
23 extent there's a weakening of the bonds of marriage in our
24 society, because of no-fault divorce and because of -- one of
25 our expert witnesses said from 1970 to 1985 all over the world
1 marriage rates fell off, divorce rates went up and things like
2 that. Those were heterosexual people. That wasn't because of
3 a same-sex marriage or a threat of a same-sex marriage or the
4 danger of a same-sex marriage or someone being taught about a
5 same-sex marriage. That was a false premise.
6 So with respect to the Equal Protection clause, I go
7 back to the Yick Wo case where the Supreme Court said the right
8 to the equal protection of the laws is the protection of equal
9 laws and in that case, this is 1886, because of a Chinese
10 person not being able to run a laundry in this city, the Court
11 stated that:
12 "The very idea that a person would be denied
13 a material right essential to the enjoyment
14 of life" -- that's marriage -- "seems to be
15 intolerable in any country where freedom
16 prevails as being the very essence of
17 slavery."
18 Well, we know that taking away the right to marry
19 was, indeed, the very essence of slavery. Yet, that very
20 freedom once denied to slaves and denied to interracial couples
21 throughout this country is now being denied to the plaintiffs;
22 not because they are Chinese in this case, not because of their
23 race, but because of their sexual orientation.
24 How can it be wrong in those areas and right in this
25 area under the Equal Protection Clause? That does not square
1 with any of the language that the Supreme Court has used in
2 deciding Equal Protection cases.
3 And that has been used, that same language has been
4 used to strike down classes among citizens. That's the
5 language of Romer. That principle has been extended from race,
6 to nationality, to ancestry, to sex, to legitimacy, to the
7 favoring of the husband in matters of marital property, and in
8 1996 in the Romer case to sexual orientation.
9 So proposition -- to wrap this up, because I want to
10 be sensitive to the time constraints. Proposition 8
11 discriminates on the basis of sex in the same way that the
12 Virginia law struck down in Loving discriminated on the basis
13 of race. They could marry whoever they want, unless that
14 person was the wrong race.
15 The plaintiffs in this state can marry someone,
16 whoever they want, except because of their sex or their sexual
17 orientation.
18 Sexual orientation, as I said, is the same -- the
19 sexual orientation discrimination is the same thing here as it
20 was in Colorado.
21 And the classification, we did it because we don't
22 know, that's the reason. We don't know what's going to be the
23 outcome. We did it because we don't know is the same as saying
24 we don't know why we did it.
25 THE COURT: Well, can't voters, you know, rely on

1 their common everyday experience and the impressions that they
2 have, as the New York Court held, make a decision even if it
3 doesn't withstand scientific scrutiny?
4 MR. OLSON: Well, it depends upon the decision and it
5 depends upon the scrutiny because every ordinary citizen, of
6 course, has great responsibility in this country. But as Mr.
7 Blankenhorn said, we would be closer to the American ideal if
8 we eliminated this kind of discrimination.
9 What is that voter common sense or ordinary
10 citizen -- I hate the term "ordinary citizen" because I think
11 that every citizen is special. But, yes, citizens can use
12 their common sense. But what was their common sense in this
13 case to take way the right of these individuals to marry? We
14 don't know -- I don't think I know as a result of this case
15 that's gone on for a year and the evidence in this case.
16 I don't believe that it's because statements protect
17 procreation among heterosexual persons or the institution of
18 marriage that much of that procreation takes place in -- a lot
19 of it doesn't -- but that's not what it is, because there is no
20 evidence that one couple or one pair of individuals in this
21 state or in this country will decide, I'm not getting married
22 because those people are getting married. There is no evidence
23 of that.
24 And there is no evidence that there will be a
25 diminished procreative instinct, God forbid, because people are

1 allowed in the privacy of their homes to enter into an intimate
2 relationship because they want a family like someone else.
3 So if you have an analysis of the common sense of
4 people, and even without all these experts, what were they
5 thinking? I think the clearest evidence of that is, protect
6 our children from learning or being taught that gay marriage is
7 okay, and that means that gay people's marriage is not okay and
8 that means that gay people are not okay.
9 Now, if there is a reason for why Proposition 8
10 serves a legitimate -- that's what it says. The Court says we
11 have got to inquire as to what the reason is. We have got to
12 inquire. And we have got to inquire whether the enactment
13 advances that reason.
14 So what is the legitimate reason and how does
15 Proposition 8 advance it? I submit that we don't know what
16 that reason is. Whatever that reason is, it can't be a post
17 hoc rationalization --
18 THE COURT: Do I have to find that it is a
19 discriminatory motive?
20 MR. OLSON: Pardon me?
21 THE COURT: Do I have to find that it is a
22 discriminatory motive on the part of the voters; that this is
23 an effort to establish some private morality through the
24 initiative process?
25 MR. OLSON: Well, the Lawrence case talks about the

1 private morality and that -- as an improper basis.
2 Is it discriminatory? It has to be found that it's
3 discriminatory. It says --
4 THE COURT: Unlawfully discriminatory.
5 MR. OLSON: Pardon me?
6 THE COURT: Unlawfully discriminatory. Many
7 discriminations are perfectly lawful and perfectly
8 constitutional.
9 MR. OLSON: That's right. And I'm saying that and
10 I'm saying that it is, irrespective of the motive of a
11 particular person in the voting booth. Nice people voted for
12 Proposition 8 and people that didn't have nice motives voted in
13 favor of Proposition 8. We heard all kinds of evidence during
14 the course of the trial of some awful stuff that was being told
15 to people about gay people.
16 But I submit and I'm willing to acknowledge that. I
17 mean, there's plenty of good Californians that voted for
18 Proposition 8 because they are uncomfortable with gay people.
19 They are uncomfortable with gay people entering into marriage,
20 and they are uncomfortable with the very idea that gay people
21 are just like us.
22 They didn't hear, and too bad they couldn't have seen
23 the evidence in this trial of what the psychologists said and
24 the sociologists said and the psychiatrists said about this is
25 a characteristic between individuals that is normal, and it's

1 acceptable, and it's not someone who is engaged in bad conduct.
2 Now, you can have a religious view that this is not
3 acceptable. You can have a religious view -- it was true in
4 the Loving case. The argument was made that it's God's will
5 that people of different races not be married. It's in the
6 briefs and it was in the testimony in this trial; that people
7 honestly felt that it was wrong to mix the races; that it would
8 dilute the value of the race and do all of these terrible
9 things.
10 People honestly felt that way, but they were -- they
11 were permitted under the Constitution to think that, but they
12 are not permitted under the Constitution to put that law --
13 that view into the law and to put that view into the
14 Constitution of their state in order to discriminate against
15 individuals.
16 I think, your Honor, that this law is discriminatory.
17 The evidence is overwhelming that it imposes great social harm
18 on individuals who are our equals. They are members of our
19 society. They pay their taxes. They want to form a household.
20 They want to raise their children in happiness and in the same
21 way that their neighbors do.
22 We are imposing great damage on them by the
23 institution of the State of California saying they are
24 different and they cannot have the happiness, they cannot have
25 the privacy, they cannot have the liberty, they cannot have the
1 intimate association in the context of a marriage that the rest
2 of our citizens do. We have demonstrated during this trial
3 that that causes grave and permanent, irreparable and totally
4 unnecessary harm, because we are withholding from them a part
5 of the institution of marriage that we hold -- one of the
6 language of one of those Supreme Court decisions is on the
7 point -- intimacy to the point of being sacred; that right of
8 marriage in the context of the intimate relationship. We are
9 withheld holding that from them, hurting them and we are doing
10 no good. If we had a reason, a really good reason for
11 inflicting all of that harm, that might be another matter, but
12 there is no reason that I heard.
13 Preserving the institution of marriage. We've
14 improved the institution of marriage when we allowed
15 interracial couples to get married. We have improved the
16 institution of marriage when we allowed women to be equal
17 partners in the marital relationship. We have improved the
18 institution of marriage when we didn't put artificial barriers
19 based upon race. And we will improve the institution of
20 marriage and we will be more American, according to Mr.
21 Blankenhorn, when we eliminate this terrible stigma.
22 There is 14 Supreme Court decisions that talk about
23 the right to marriage. There is the Romer case, and you know
24 what that holds, and the Lawrence versus Texas case and the
25 testimony of all of these expert witnesses and the testimony of

1 the plaintiffs. That erects an insurmountable barrier to the
2 proponents of this proposition.
3 It will not hurt Californians. It will benefit
4 Californians. But as long as it doesn't hurt Californians to
5 get rid of harmful stigma in their Constitution that's labeling
6 people into classes, then it's unconstitutional.
7 Thank you, your Honor.
8 THE COURT: Very well. Thank you, Mr. Olson.
9 City and County of San Francisco, Ms. Stewart.
10 CLOSING ARGUMENT
11 MS. STEWART: Good morning, your Honor. Appreciate
12 the opportunity to address the Court today. Although Mr.
13 Olson, like Mr. Boies, is a hard act to follow, but I will give
14 it my best and very brief shot.
15 I want to focus my comments on two questions that the
16 Court posed to the plaintiffs about the evidence that we
17 presented that state and local governments benefit economically
18 if same-sex couples are permitted to marry, or stated
19 otherwise, that denying same-sex couples the right to marry
20 deprives the government of revenue and costs the government
21 money.
22 And question eight asks about the relevance of that
23 data, that evidence. And I want to just start by acknowledging
24 that the fact that legislation costs the government money is
25 neither necessary nor sufficient to prove a constitutional

CLOSING ARGUMENT / STEWART 3009
1 violation, but here the evidence of the cost to the government
2 is relevant to whether Proposition 8 is rational or satisfies
3 any other level of scrutiny.
4 Here the costs to the government are symptomatic of
5 serious harms, many of which my colleague, Mr. Olson, referred
6 to, that Proposition 8 visits on a segment of society. And the
7 harms that gay men and lesbians suffer as a result of
8 Proposition 8 are also visited on society as a whole because
9 government, and taxpayers in part, pay for the costs of that
10 discrimination.
11 Now, I want to point to a Supreme Court case in which
12 the Court did consider the harms, both to individuals and to
13 society, that were caused by legislation in evaluating the
14 constitutionality of the law challenged, and that's the case of
15 Plyler versus Doe in which the Court struck down a Texas
16 statute that prevented undocumented children from attending
17 public schools.
18 And the Court in that case stated, I'm going to
19 quote:
20 "In determining the rationality of the
21 statute, we may appropriately take into
22 account its costs to the nation and to the
23 innocent children who are its victims."
24 And the Court in striking the law down in that case
25 considered the following evidence. It considered, with respect

1 to the children, the stigma of illiteracy that would mark them
2 for the rest of their lives. It considered the toll that the
3 legislation would take on their social, intellectual, economic
4 and psychological well-being; but it also considered, on the
5 side of society, social science data showing how important the
6 public schools are in inculcating fundamental values that are
7 necessary to maintaining our democratic system.
8 It also considered the fact that education provides
9 basic tools by which individuals can be economically productive
10 in their lives to the benefit of society as a whole.
11 So like -- as in Plyler the serious harms this
12 Proposition 8 imposes on lesbians and gay men and their
13 children, and on government and society at large, undercut the
14 contention that Proposition 8 is rational.
15 They also, I think, support the inference that
16 Proposition 8 was born of animus because, as Romer teaches us,
17 laws that can't be understood or explained by any kind of
18 rational thinking give rise to an inference that they are based
19 on prejudice.
20 Now, I would like to turn to the Court's question
21 seven and address evidence that supports a finding of
22 permanent, as opposed to merely transitory, benefits to
23 government of allowing --
24 THE COURT: And add to that evidence in the record
25 that establishes that the City and County of San Francisco

1 would suffer some unique injury, particularized injury, as
2 opposed to the general injury that you might claim for the
3 entire state.
4 MS. STEWART: Yes, your Honor.
5 And I do think the evidence showed harms both to the
6 state as a whole and local governments in particular.
7 THE COURT: How about San Francisco?
8 MS. STEWART: And San Francisco even more
9 particularly.
10 THE COURT: Why is that?
11 MS. STEWART: Well, San Francisco in particular, I
12 think -- the one thing that stood out is that San Francisco --
13 well, there are two things really, your Honor.
14 One is that San Francisco is a place where people of
15 all sexual orientations come for tourist reasons, but often to
16 enter into marriage. And so the city loses revenue because of
17 the lack of -- the fewer number of couples who can marry.
18 And that harm, I would say, is not transitory in the
19 sense that it won't continue as long as Prop 8 remains,
20 although the witnesses, Dr. Badgett and Dr. Egan testified that
21 it would not remain at the sort of spiked level after a year or
22 two, but people will continue to come to San Francisco to marry
23 for --
24 THE COURT: Because it's a marriage destination?
25 MS. STEWART: Because it's long been the city of

1 love, the city where people leave their hearts. It's factor of
2 our culture in San Francisco.
3 THE COURT: Cool, gray city of love.
4 MS. STEWART: But I would actually really, your
5 Honor, like to turn to some of the more serious harms to
6 government because I think that's the least of them, to be
7 honest with you.
8 I want to point to a few, and I won't have time to
9 talk about all of them, but the first one that I wanted to
10 mention to the Court is that the costs to the public healthcare
11 system from having to diagnose and treat higher levels of
12 mental health disorders that are induced by stigma from laws
13 that treat lesbians and gay men differently.
14 My colleague, Mr. Olson, referred to Dr. Meyer and
15 actually played a clip of his testimony, and he talked about
16 the stigma that laws like Proposition 8 imposed.
17 He also testified about the higher incident of mental
18 health disorders, like anxiety and depression. And he
19 particularly focused on the fact that lesbians and gay men,
20 unlike other minorities, often suffer harm and prejudice at the
21 hands of their own family members.
22 And he talked about how youth, in particular, also,
23 are affected in a terrible way. They can't aspire to become
24 married and have families when they're young and they realize
25 that they are gay and as a consequence of the impact on them,

1 the rates of suicide or suicide attempts are higher among
2 lesbian and gay youth.
3 And Dr. Egan testified about the costs that those
4 higher incidents of mental health disorders cost to the public
5 health system, and he testified about some of the programs that
6 San Francisco has developed to try to address specifically
7 those kinds of stigmatic harms.
8 But I think the most compelling testimony on that
9 subject was the testimony of Ryan Kendall, who showed two
10 things. He talked about and showed the impact of that kind of
11 discrimination on him as an individual, and he also testified
12 about some of the effects on society at large, some of the ways
13 in which that harm to him caused the public to incur costs.
14 And just to lay that out quickly, he testified that
15 when his parents found out that he was gay, they were
16 horrified; that they believed that being gay is a terrible
17 thing, and that they told him so, and they told him in pretty
18 awful terms; that they wished he had never been born, that they
19 wish they had aborted him, that they would have rather had a
20 child with a disability than a gay child and that he would burn
21 in hell, and et cetera.
22 And they forced him to try to convert into himself,
23 as a 16-year-old child --
24 THE COURT: He testified that he didn't really try to
25 convert.
1 MS. STEWART: He did. He testified that he didn't
2 believe that he could; that he felt his being gay was as clear
3 as his being a person of Latino descent.
4 But he -- he was affected dramatically and he
5 testified about the sense of loss of family and that he
6 suffered --
7 THE COURT: Let me ask, if the decision goes against
8 the plaintiffs here, does the City and County of San Francisco
9 have standing to pursue an appeal?
10 MS. STEWART: Your Honor, we believe that we do, but
11 I have never worried, quite frankly, that we would need that
12 standing because I think the plaintiffs will most certainly
13 appeal if we --
14 THE COURT: Let's assume the plaintiffs decided not
15 to appeal.
16 MS. STEWART: Your Honor, I believe we do have
17 standing and I think we have standing in the same way that the
18 cities of Boulder and Denver and, I believe, Aspen had in the
19 Romer case. They were the plaintiffs in that case.
20 THE COURT: Then presumably Imperial County would
21 have standing, would it not?
22 MS. STEWART: I think it's a little different to -- I
23 mean, I'm not sure that Imperial County can come in here and
24 show the Court any harm that it suffers to its public health
25 system by denying -- if they were have to allow same-sex

1 couples to marry.
2 So I guess the Court would have to address that issue
3 more specifically. I think we have showed concrete harm.
4 I think that, you know --
5 THE COURT: Then let's go back to the particularized
6 injury or harm that the City and County of San Francisco
7 claims.
8 MS. STEWART: Dr. Egan testified that our public
9 healthcare system is a cost to the city of about $350 million a
10 year, and that in his opinion if the --
11 THE COURT: Cost of?
12 MS. STEWART: The public healthcare system. In other
13 words --
14 THE COURT: In total?
15 MS. STEWART: In total.
16 And the public healthcare system, as he testified, is
17 the provider of last resort for many of San Francisco's
18 residents, and that includes many gay and lesbian residents.
19 And that if the stigma that is propounded by Proposition 8 were
20 to be eliminated, if it were no longer embedded in our
21 Constitution, that that would reduce the higher incidents of
22 mental health disorder.
23 That was backed up by the testimony of Dr. Meyer, who
24 very carefully laid that out.
25 Now, again, going back to Ryan Kendall, his example,

1 while it wasn't in San Francisco, is somewhat what we face; and
2 that is, when he was being abused and was so horribly at a
3 loss, he went to the Denver Department of Human Resources -- or
4 Department of Health and Human Services, I'm sorry, to their
5 juvenile dependency system and sought their refuge there and
6 basically became a ward of the state. So they removed him from
7 the parents who were abusing him.
8 He also relied on the public healthcare system for
9 emergency medical care. Why? Because he was 16, 17, 18 years
10 old. Couldn't hold a job. Wasn't in school. Didn't have the
11 resources to cover his own medical care.
12 And he also testified that the stigmatic harm -- he
13 didn't call it that, but the way he felt, he thought he would
14 kill himself if he didn't get help. So he went to get
15 counseling. From where? A public school's, a public
16 institution's counseling services that were supported by
17 government, local government, because he didn't, again, have
18 the money to support himself. Those are examples of the kinds
19 of costs that the public incurs because of discrimination.
20 I want to touch on a couple of other ones, your
21 Honor, and they include -- and there was evidence of the
22 increased law enforcement costs that are required to
23 investigate and prosecute hate crimes and other kinds of
24 discrimination that, again, flow from the stigma and that
25 society sends the message.

1 And I want to start with Mayor Sanders, who testified
2 that:
3 "When city leadership talks in disparaging
4 terms" -- and I'm using his words -- "or
5 denies people rights that everyone else has,
6 fundamental rights, then I think some people
7 in the community feel empowered to take
8 action in hate crimes and other ways."
9 And he --
10 THE COURT: Isn't the problem with that argument that
11 a judicial decision, even a judicial decision by the Supreme
12 Court of the United States wiping out Proposition 8 or similar
13 laws, wouldn't eliminate the kinds of motives that give rise to
14 the harms that you have just described? Those are going to
15 exist anyway. They depend upon motives that the law really
16 can't change.
17 MS. STEWART: Well, actually, your Honor, I don't
18 know that it would end them all together. I think that's a
19 fair statement, your Honor, but the testimony of Dr. Meyer and
20 Dr. Herek and of Mayor Sanders, who has been mayor and before
21 that police chief, was that when you have structural stigma
22 that's endorsed by the leadership of government and by laws,
23 and particularly laws embedded in the Constitution, it does
24 send the message and the message translates into things like
25 hate crimes.
1 And we saw that in California hate crimes based on
2 sexual orientation in the statistics we offered to the Court in
3 the state's reports is the second highest category and has been
4 of hate crimes since 1995.
5 There was also evidence about bullying and bullying,
6 in particular, in California schools and the fact that over
7 200,000 incidents of such bullying based on sexual orientation
8 occur year in, year out. And, furthermore, that the state
9 local school district, like ours, lose revenue from absenteeism
10 because of bullying in a significant amount; that approximately
11 50,000 absences a year can be attributed to that. And the
12 local school districts are -- receive money based on attendance
13 and so they lose that. But the state also loses and the cities
14 lose the productive work of the students who are not there, who
15 engage in substance abuse and have other harms that are
16 associated with bullying.
17 Your Honor, I have little time left and I would be
18 remiss if I did not make one more point and make it briefly,
19 and that is this.
20 The city, your Honor, is acutely aware that when
21 Professor Chauncey testified about the history of governments
22 demonizing and criminalizing and persecuting gay people, he was
23 talking about our city's history as well. And San Francisco
24 once used its police power to harass and shame its own citizens
25 and to force them into the closet and drive gay people and gay
1 life underground.
2 In knowing that we, as a city, played a role in
3 creating the stigma that continues to afflict our gay citizens
4 and harm our whole community, San Francisco wants nothing more
5 than to treat its citizens all equally. But Proposition 8
6 forces us, instead, to perpetuate the stigma we once helped
7 create by again denying marriage to same-sex couples and gay
8 men and lesbians and sending the message that they are
9 inferior.
10 The evidence that we presented at trial and that
11 plaintiffs presented at trial demonstrates just how hurtful,
12 how deeply hurtful and costly that is, that message is, and how
13 irrational and how invidious is the law forces San Francisco to
14 send that message.
15 So for that reason we join in the plaintiffs' request
16 that the Court hold Proposition 8 unconstitutional.
17 Thank you, your Honor.
18 THE COURT: Very well. Thank you, Ms. Stewart.
19 Shipment.
20 Let me turn to counsel for the Governor and the
21 Attorney General.
22 Ah, the governor's counsel.
23 MR. STROUD: Andy Stroud on behalf of the Governor,
24 your Honor. The Governor waives his right to make closing
25 argument and thanks your Honor for his time.

PROCEEDINGS 3020
1 THE COURT: All right. I'm delighted that you are
2 here.
3 (Laughter.)
4 THE COURT: Yes.
5 MS. INAN: Michele Inan on behalf of the Attorney
6 General. The Attorney General waives his time as well.
7 THE COURT: Well, I have questions for -- I'm not
8 sure whether it's better directed to the Governor, the Attorney
9 General or maybe the counsel representing the registrars; and
10 that is -- ah, yes.
11 MR. KOLM: Claude Kolm representing the Alameda
12 County Clerk Recorder.
13 THE COURT: All right. Let me ask you. In Alameda
14 County when one goes in to apply for a domestic partnership, do
15 you ask the parties to identify their genders?
16 MR. KOLM: I don't know for a fact, but I don't
17 believe so, your Honor.
18 THE COURT: How about for marriage licenses?
19 MR. KOLM: I believe there may be a box that has been
20 reinstated on the marriage license now.
21 THE COURT: We didn't check Alameda County, but just
22 this morning checked San Francisco, Orange County and Imperial
23 County. It appears on applications for marriage licenses that
24 in San Francisco there is a box for groom, there is a box for
25 bride and that's labeled optional.

PROCEEDINGS 3021
1 And in Orange County (sic) there is a bullet point
2 for groom, a bullet point for bride, and one labeled none.
3 (Laughter.)
4 And I think the same is true in Orange County (sic).
5 And my understanding, although I personally didn't go
6 through the exercise, in the Orange County application, which
7 you can apply for a marriage license online, if you fill out,
8 say, groom and then fill out the data and then punch next,
9 which would call up the other party, you can put in groom
10 again. It doesn't give you an error message.
11 So what do I make of this? I suppose I can take
12 judicial notice of all these things, can I not?
13 MR. KOLM: I would suppose so, your Honor. I don't
14 know what to make of it.
15 I would presume that although you can apply for
16 marriage with both applicants being of the same sex, that
17 doesn't mean that the registrar will actually perform the
18 marriage or will recognize the marriage, and it may be a way of
19 sorting out applications for marriage that are not currently
20 legal in California from those that would be legal.
21 THE COURT: By that you mean what, sir?
22 MR. KOLM: Marriages between -- the Alameda County
23 Clerk Recorder was forced to deny applications for marriage
24 from same-sex --
25 THE COURT: Including the plaintiffs here.

PROCEEDINGS 3022
1 MR. KOLM: Including the plaintiffs.
2 (Continuing) ...from same-sex applicants after
3 Proposition 8 passed.
4 THE COURT: And how was the determination made that
5 these individuals should not receive a license to marry?
6 MR. KOLM: In the case -- I suppose it may be on the
7 application, if we have an application similar to those. I
8 believe that they are actually state prescribed applications.
9 Do they look similar?
10 THE COURT: No, they don't look similar at all.
11 MR. KOLM: Then I'm mistaken.
12 THE COURT: They may call for exactly the same
13 information.
14 MR. KOLM: Yes.
15 THE COURT: But the forms are quite different in
16 their appearance.
17 MR. KOLM: In one case that I'm familiar with, which
18 is not the plaintiffs in this case, but some people came in and
19 did tape record -- or videotape their request for an
20 application for marriage, and my client called me and asked me
21 what to do. I don't think there was any question that they
22 were of the same sex and that, in fact, they made clear that
23 they were of the same sex and were applying after the effective
24 date of Proposition 8.
25 THE COURT: And your advice was not to issue the

PROCEEDINGS 3023
1 license, I gather?
2 MR. KOLM: That is correct, your Honor. We have said
3 here that we would follow whatever the holdings of the Court
4 are. We have taken oaths to uphold the laws and Constitution
5 of the United States and the State of California.
6 THE COURT: So the determination whether or not this
7 particular couple that is coming before a registrar is of
8 the -- is a couple of the same sex or is a couple of opposite
9 sex is simply made on the spot by whoever is at the desk at the
10 time, I gather?
11 MR. KOLM: I don't see much alternative, your Honor.
12 Would we ask for medical certification or -- we have to take
13 people at their word.
14 If it turns out that there has been some deception,
15 there are provisions in the law for recognizing mistake of
16 fact.
17 THE COURT: What's the situation if they were to lie?
18 Say, you were to have two people who appeared to be men and one
19 said, "I'm the groom" and the other said, "I'm the bride"?
20 MR. KOLM: Well, I think in that case if -- I see two
21 possible situations; one where the registrar would -- or the
22 clerk would -- it would not look to him as though they were of
23 different sexes and he might then have a discussion with them
24 and ask them.
25 I don't know whether we would take them at their word

PROCEEDINGS 3024
1 because the marriage, I think, would be null because it was
2 based on misrepresentation of fact.
3 THE COURT: Now, what's the situation in the domestic
4 partnership context in which an opposite-sex couple cannot
5 become domestic partners unless one of them is older than age
6 62?
7 MR. KOLM: That's for California. I believe in
8 San Francisco they can at less than age 62.
9 THE COURT: I thought that was a product of state
10 law.
11 MR. KOLM: Well, there is a state law and there is a
12 San Francisco law.
13 THE COURT: Well, I have heard of that.
14 (Laughter.)
15 MR. KOLM: I know that, your Honor, because I drafted
16 the San Francisco ordinance.
17 THE COURT: Beg your pardon?
18 MR. KOLM: I said I know that, your Honor, because
19 about 20 years ago I drafted the San Francisco ordinance, or
20 co-drafted it.
21 THE COURT: Well, all right. But do I understand
22 that under state law -- am I correct in understanding under
23 state law that only opposite-sex couples can become domestic
24 partners if one of them, one of the individuals, is older than
25 age 62 or 62 or older?
PROCEEDINGS 3025
1 MR. KOLM: That's my understanding, your Honor.
2 THE COURT: All right. Well, what do you do to
3 enforce that limitation in Alameda County?
4 MR. KOLM: I don't know that we get many cases like
5 that. I suppose it's rather like somebody going into a bar and
6 if you have any suspicion, you may ask for identification.
7 I imagine the wedding ceremony that you performed
8 that you referred to in the beginning of the trial where, I
9 believe, one member was 90 and the other was 85 or something
10 such as that. Had there been an age limitation of 62, I
11 imagine you would not have been asking for evidence in that
12 case.
13 THE COURT: I don't think that was necessary. In any
14 event, thank you very much.
15 MR. KOLM: Thank you, your Honor.
16 THE COURT: Well, we have come to lunch time and,
17 Mr. Cooper, you are up at 1:00 and I look forward to hearing
18 from you at that time.
19 Let's adjourn until 1:00 o'clock. Does the clerk
20 have an announcement?
21 THE CLERK: We would like to make an announcement.
22 THE COURT: All right. The clerk wishes to make an
23 announcement.
24 THE CLERK: Before you leave the courtroom, can you
25 please stay and listen?

PROCEEDINGS 3026
1 If you intend to return to this courtroom -- first of
2 all, there is a second overflow that has been opened. So there
3 is -- if you intend to return this afternoon, we suggest you
4 leave a personal item to reserve the same seat. If you already
5 have received a court-issued pass for the proceedings, you must
6 use that pass to return to your designated courtroom.
7 Non-pass holders seated in the main courtroom have
8 been provided with an orange double ticket which must be shown
9 to resume a seat after lunch. All other non-pass holders
10 seated in the overflow courtrooms must obtain a colored sticker
11 before leaving for lunch.
12 Court personnel will be at the overflow courtroom
13 doors to provide the stickers before you exit the courtrooms.
14 You must be seated before the afternoon session begins or your
15 seat may be reassigned.
16 Thank you.
17 THE COURT: See you at 1:00 o'clock.
18 (Whereupon at 11:57 a.m. proceedings
19 were adjourned for noon recess.)
20
21
22
23
24
25
PROCEEDINGS 3027
1 P R O C E E D I N G S
2 JUNE 16, 2010 1:03 p.m.
4 (Whereupon, proceedings were resumed
5 after noon recess.)
6 THE COURT: Mr. Cooper, good afternoon.
7 CLOSING ARGUMENT
8 MR. COOPER: Good afternoon, your Honor, and may it
9 please the Court.
10 The New York Court of Appeals, your Honor, observed
11 in 2006 that until quite recently it was an accepted truth for
12 almost everyone who ever lived in any society in which marriage
13 existed that there could be marriages only between participants
14 of different sex.
15 Indeed, when the Massachusetts Supreme Judicial Court
16 made Massachusetts the first state to legalize same-sex
17 marriage in 2004, it acknowledged that its ruling, and I'm
18 quoting:
19 "Changed the definition of marriage as it had
20 been inherited from the common law and
21 understood by many societies for centuries."
22 The traditional definition of marriage has, likewise,
23 prevailed in California where, according to the California
24 Supreme Court in the marriage cases, from the beginning of
25 statehood marriage has been understood to refer to the

CLOSING ARGUMENT / COOPER 3028
1 relationship of a man and a woman.
2 So the first question, your Honor, that has to be
3 asked is: Why has marriage been so universally defined by
4 virtually all societies at all times in human history as an
5 exclusively opposite-sex institution? It is because marriage
6 serves a societal purpose that is equally ubiquitous. Indeed,
7 a purpose that makes marriage, in the often repeated
8 formulation of the Supreme Court of the United States,
9 fundamental to the very existence and survival of the human
10 race.
11 The Court said that in Loving. It said it in
12 Zablocki and several other places, Skinner.
13 And the historical record leaves no doubt, your
14 Honor, none whatever, that the central purpose of marriage in
15 virtually all societies and at all times has been to channel
16 potentially procreative sexual relationships into enduring
17 stable unions to increase the likelihood that any offspring
18 will be raised by the man and woman who brought them into the
19 world.
20 Mr. Olson often quotes, as he did earlier this
21 morning, the Supreme Court's statement that, "Marriage creates
22 the most important relation in life." That quote comes from
23 the Maynard case, Maynard against Hill in 1888.
24 And in the very same sentence, your Honor, the Court
25 went on to say that, "Marriage has more to do with the morals

1 of a people than any other relation."
2 Now, the Court's specific holding in the Maynard case
3 was that the contract clause of the Constitution does not apply
4 to a state's regulation of the marriage contract because
5 marriage alone, among virtually all contractual relationships,
6 in the Court's words, partakes more of the character of an
7 institution regulated and controlled by public authority for
8 the benefit of the community.
9 And the Maynard Court explained why the institution
10 of marriage is uniquely imbued with the public interest --
11 THE COURT: Do people get married to benefit the
12 community?
13 MR. COOPER: Your Honor --
14 THE COURT: When one enters into a marriage, you
15 don't say, Oh, boy, I'm going to be able to benefit society by
16 getting married.
17 What you think of is, I'm going to get a life
18 partner --
19 MR. COOPER: Yes, your Honor.
20 THE COURT: (Continuing) -- somebody that I can share
21 my life with, maybe have children, but all sorts of things come
22 out of a marriage.
23 MR. COOPER: But if you --
24 THE COURT: But is the purpose of marriage for
25 individuals to benefit society?

1 MR. COOPER: From the standpoint of the state and the
2 state's interests and society's interests, your Honor -- and
3 this is exactly what the Maynard case was saying and what many,
4 many cases have said in addition -- it is that this is an
5 institution imbued with social meaning and social policy and
6 the interests of the community. That's why the state has an
7 interest in it.
8 It may well be that individuals who get married
9 aren't doing it in order to benefit the community, although
10 that is the ultimate result of it. But the question has to be:
11 Well, why does the government regulate this relationship? Why
12 is it different from a friendship --
13 THE COURT: That's a good question. Why does the
14 state regulate it? Why doesn't it leave it entirely up to
15 private contract?
16 MR. COOPER: Your Honor, again, because the marital
17 relationship is fundamental to the existence and survival of
18 the race. Without the marital relationship, your Honor,
19 society would come to an end.
20 But beyond that, there are important societal values
21 at stake. Irresponsible procreation, for example --
22 THE COURT: Why couldn't the state simply say, Look,
23 marriage is entirely a matter of private contract. We are not
24 going to issue licenses for marriage. We are not going to set
25 down a body of law that regulates the rights and responsibility

1 of married parties. We are simply going to say, You enter into
2 a contract and if you do, we will enforce those contracts if it
3 comes to it, just like the state will enforce any other form of
4 private contract.
5 But why is it that marriage has such a large public
6 role? What is the purpose?
7 MR. COOPER: Your Honor, I think the state could do
8 what you said, but the question becomes: Why hasn't virtually
9 any society done what you say? Why is it that every state in
10 this country and every country, insofar as I'm aware, in the
11 world does, indeed, regulate this relationship?
12 It's because this relationship is crucial to the
13 public interest. It's crucial to the public interest because,
14 your Honor, the procreative sexual relations both is an
15 enormous benefit to society and it represents a very real
16 threat to society's interests.
17 THE COURT: A threat?
18 MR. COOPER: Yes, your Honor. A threat in the sense
19 that to whatever extent children are born into the world
20 without this stable, enduring marital union, raised and
21 responsibility taken for the offspring by both of the parents
22 that brought them into the world, then a host of very important
23 and very negative social implications arise and potential
24 social consequences arise.
25 Again, we know from all of the authorities, the

1 purpose of marriage is to provide society's approval to that
2 sexual relationship and to the actual production of children.
3 As Justice Stevens said in his dissenting opinion in
4 the Bowers case, marriage is a license to cohabit and to
5 produce legitimate children.
6 THE COURT: But the state doesn't withhold the right
7 to marriage to people who are unable to produce children of
8 their own.
9 MR. COOPER: That's true, your Honor, it does not.
10 It does not insist --
11 THE COURT: Are you suggesting that the state should,
12 to fulfill the purpose of marriage that you have described?
13 MR. COOPER: No, sir, your Honor. It is by no means
14 a necessary -- a necessary condition or a necessary requirement
15 to fulfilling the state's interests in naturally potentially
16 procreative sexual relationships.
17 THE COURT: Well, then, the state must have some
18 interest wholly apart from procreation.
19 MR. COOPER: It doesn't necessarily follow that that
20 is true.
21 It rationally furthers the state's interests to
22 extend -- to attempt to channel into the marital union all
23 potentially procreative relationships, as well as all
24 male-female relationships.
25 It furthers the state's interests, your Honor, and it

1 isn't a necessary requirement that the state actually insist
2 that as a condition of marriage, that individuals who get
3 married have children or be able to have children.
4 And, your Honor, case after case has agreed that the
5 simple fact that all societies and all states haven't required
6 procreation of marital couples in no way eliminates the
7 procreative purpose of marriage, or doesn't detract from it.
8 One of the most important reasons is how would a
9 society that wanted to insist on procreation, how would it --
10 how would it go about administering such a requirement? Well,
11 the first thing it would have to do presumably -- and, again,
12 your Honor, on this case after case has made this point.
13 The first thing it would have to do is have some kind
14 of premarital fertility testing. Presumably it would have to
15 have some kind of premarital pledge in which the couple found
16 to be fertile, in some intrusive process, also pledged to
17 actually have children.
18 There, presumably, would have to be some type of post
19 marital requirement to enforce the actual begetting and raising
20 of children, because on what basis could a state -- if it
21 wanted to insist on procreation as a condition of the marriage
22 contract, on what basis could it require premaritally some type
23 of pledge to have children and some kind of proof of fertility
24 and then not -- and then allow people who weren't having
25 children to remain married?

1 Presumably there would have to be some kind of
2 mandatory annulment process for marital couples who didn't
3 actually fulfill their obligation to society to actually have
4 children, your Honor. Those kinds of Orwellian, Orwellian
5 tactics.
6 THE COURT: It is Orwellian, but isn't that the logic
7 that flows from the premise that marriage is about procreation?
8 If that is the premise for marriage, then the steps
9 that you just outlined would be reasonable and rational steps
10 for the state to take, would they not?
11 MR. COOPER: Well, the question is: Would they be
12 required steps? Is a state's regulation of the marital
13 relationship, regulation of procreative sexual relationships
14 irrational unless it insists on procreation?
15 And, your Honor, by no means is it. It is enough if
16 the state or the society seeks to attempt to ensure and to
17 increase the likelihood -- really, that's what it boils down
18 to, increase the likelihood -- that naturally procreative
19 sexual relationships will take place in an enduring and stable
20 family environment for the sake of raising the children so that
21 essentially the society itself, your Honor, doesn't have to
22 step in and take upon its own shoulders the obligations to help
23 in the raising of those children.
24 And so society doesn't run the risk of all the
25 negative social consequences that come from, say, unwed mothers

1 raising children by themselves, and such as that.
2 THE COURT: If the purpose of these marriage laws is
3 regulation of the sexual conduct of the individuals involved,
4 there are certainly far more narrow and tailored ways for the
5 state to regulate those kinds of relationships, but instead
6 marriage regulation extends far beyond regulation of sexual
7 conduct of the parties.
8 There are support obligations and there are a host of
9 other obligations that flow from a marriage that have nothing
10 to do with the sexual conduct of the parties to the marriage.
11 MR. COOPER: Well, your Honor, that is true, but a
12 core element of that regulation goes to the procreative aspect
13 and the expectation in the normal course that children will be
14 born of a marriage and the relationships and rights that there
15 are -- that are created within the context of that, of that
16 procreative family.
17 THE COURT: Parental responsibilities don't depend
18 upon how the child came into the world. Parental
19 responsibilities extend to adoptive parents who had nothing to
20 do with the creation of the child physically. They extend to
21 in-laws and grandparents and a host of other people who are not
22 involved in any way in the -- at least directly, in the
23 creation of this child as a human being.
24 MR. COOPER: Well, your Honor, with respect to
25 adoptive children, yes, the state does make arrangements and it

1 does create in law a relationship that is in all respects,
2 virtually all respects, identical to a natural and biological
3 relationship. It does that, again, for the sake of children,
4 for the sake of the upbringing of children, and creates with
5 respect to those children rights and responsibilities in their
6 adoptive parents that are the natural -- result of natural
7 procreation.
8 THE COURT: And vis-a-vis the state's interest in the
9 well-being of children, isn't the state indifferent with
10 respect to how the child was conceived, whether the child was
11 conceived in a marriage or outside of a marriage or in some
12 other fashion?
13 Once the child exists as a human being, the state has
14 some interest in the well-being of that child, wholly apart
15 from whether the child was born in a marriage or out of a
16 marriage or in some other fashion.
17 MR. COOPER: Yes, your Honor, it does. And that
18 really is the point. That really is the point.
19 The state has an interest in that child. It cannot
20 ignore the society's larger and the community's interest in
21 that child.
22 And the state's concern is that if that child is born
23 in a context other than a committed relationship, a marital
24 relationship between the man and woman who created that child
25 and brought it to life and who have taken responsibility

1 themselves, as marriage as a social institution is designed to
2 encourage and to promote, that when a child is not born in that
3 situation, yes, the state still has an interest in that child,
4 the community does. And the state must step forward often
5 times and, again, take responsibility itself for the upbringing
6 and the support and the education of that child, whether it's
7 through extraordinary measures, such as when the child has
8 neither its own mother nor its father and the state has to take
9 full responsibility effectively for the child, or if the child
10 still has -- and in the vast bulk of the situations where this
11 actually arises, the child still has a relationship with its
12 natural mother, but the mother -- or the single parent, mother
13 or father -- doesn't have the same ability and support as a
14 marital union to raise that child and, certainly, not to
15 provide that child with two parents to look after it, let alone
16 two parents that are composed of both a paternal and a maternal
17 parental role model.
18 So it is -- you have put your finger on the key. The
19 state still has an interest in that child. In fact, it has an
20 interest in all children and that's why the state and every
21 state and every society for the millennia, your Honor, has
22 attempted to channel naturally procreative sexual conduct
23 between men and women into an enduring union, an enduring
24 stable, union for the sake primarily of those children.
25 THE COURT: Let's move from the millennia to the

1 three weeks in January when we had the trial.
2 What does the evidence show? What does the evidence
3 in this case show with respect to this?
4 MR. COOPER: Thank you, your Honor.
5 I believe the evidence shows overwhelmingly that this
6 procreative -- this interest in what many call, and the United
7 States Congress calls, responsible procreation is really at the
8 heart of society's interest in regulating marriage.
9 THE COURT: Okay.
10 MR. COOPER: Because, for example, what the evidence
11 shows is that imminent -- I'm sorry.
12 THE COURT: I'm just --
13 MR. COOPER: Thank you.
14 THE COURT: What was the witness who offered the
15 testimony? What was it and so forth?
17 The evidence before you shows that sociologist
18 Kingsley Davis, in his words, has described the universal
19 societal interest in marriage and definition as social
20 recognition and approval of a couple engaging in sexual
21 intercourse and marrying and rearing offspring.
22 Blackstone, your Honor, said that there are two great
23 relations in private life. First, that of husband and wife,
24 which is founded in nature, but modified by civil society, with
25 nature directing man to continue and multiple his species and

1 civil society, the social, society's interests, prescribing the
2 manner in which that natural impulse must be confined and
3 regulated.
4 And the second great relationship, according to
5 Blackstone, that of parent and child, which is consequential to
6 that of marriage, being its principle end and design. It is by
7 virtue of this relation that infants are protected, maintained
8 and educated.
9 Your Honor, I mentioned earlier another great lawyer,
10 Justice Stevens, who, himself, in his dissent in Bowers said
11 that marriage is a license to cohabit and to produce legitimate
12 children. That's what it has been -- what it has always been.
13 This understanding of marriage, your Honor, is before
14 you from imminent authority after imminent authority in a range
15 of --
16 THE COURT: I don't mean to be flip, but Blackstone
17 didn't testify. Kingsley Davis didn't testify. What testimony
18 in this case supports the proposition?
19 MR. COOPER: Your Honor, these materials are before
20 you. They are evidence before you.
21 But Mr. Blankenhorn brought forward, brought forward
22 these authorities and that's -- and that's these social
23 scientists and anthropologists and sociologists and the others.
24 But, your Honor, you don't have to have evidence for
25 this from these authorities. This is in the cases themselves.

1 The cases recognize this one after another.
2 THE COURT: I don't have to have evidence?
3 MR. COOPER: You don't have to have evidence of this
4 point if one court after another has recognized -- let me turn
5 to the California cases on this.
6 The first purpose of matrimony by the laws of nature
7 and society is procreation. The California Supreme Court said
8 that shortly after statehood.
9 A century later, the California Supreme Court
10 re-emphasized that the institution of marriage serves the
11 public interest because it channels biological drives --
12 channels biological drives -- that might otherwise become
13 socially destructive and it ensures the care and education of
14 children in a stable environment.
15 That's the California Supreme Court, your Honor.
16 That's the purpose of marriage in this state, according to the
17 California Supreme Court in DeBerg against DeBerg.
18 Two years ago, less than two years ago, the
19 California Court of Appeals held that the sexual procreative
20 and child rearing aspects of marriage go to the very essence of
21 the marriage relation.
22 Your Honor, Congress in passing DOMA said the core
23 purpose of marriage is this:
24 "At bottom, civil society has an interest in
25 maintaining and protecting the institution of

1 heterosexual marriage because it has a deep
2 and abiding interest in encouraging
3 responsible procreation and child rearing.
4 Simply put, government has an interest in
5 marriage because it has an interest in
6 children."
7 Your Honor, most courts, most of the courts, quite a
8 substantial majority of the courts that have looked at the
9 issue that is before you now have upheld the constitutionality
10 of the traditional definition of marriage because -- and these
11 are the Eighth Circuit's words -- in upholding a provision
12 enacted by the people of Nebraska that is word for word
13 identical to the one before you.
14 It upheld it because -- this is the Eighth Circuit
15 Court of Appeals in 2006.
16 "The state's interest in steering procreation
17 into marriage justifies conferring the
18 inducements of marital recognition and
19 benefits on opposite-sex couples who can
20 otherwise produce children by accident, but
21 not on same-sex couples who cannot."
22 At least two-thirds, your Honor, or just
23 approximately, anyway, two-thirds of all the judges who have
24 looked at the issue that is before you now have upheld the
25 traditional, or would have -- some of them are in dissenting

1 opinions, or would have upheld the traditional definition of
2 marriage on this rationale, this rationale.
3 The majority of Congress enacted DOMA, as I just
4 mentioned, on this rationale.
5 And the plaintiffs, the plaintiffs say, there is no
6 way to understand, understand why anyone would support
7 Proposition 8, why anyone would support the traditional
8 definition of marriage except through some irrational and dark
9 motivation, some animus, some kind of bigotry, your Honor.
10 And that is not just a slur on 7 million Californians
11 who supported Proposition 8. It's a slur on 70 of 108 judges
12 who have upheld as constitutional and rational the decision of
13 voters and legislatures to preserve the traditional definition
14 of marriage. It denies the good faith of Congress -- not just
15 these judges, of Congress -- of state legislature after state
16 legislature and electorate after electorate.
17 THE COURT: Let me ask: If you have got 7 million
18 Californians who took this position, 70 judges, as you pointed
19 out, and this long history that you have described, why in this
20 case did you present but one witness on this subject? One
21 witness. You had a lot to choose from if you had that many
22 people behind you. Why only one witness? And I think it fair
23 to say that his testimony was equivocal in some respects.
24 MR. COOPER: Certainly not on this one, your Honor.
25 And his testimony was utterly unnecessary for this proposition,

1 utterly unnecessary for this proposition.
2 THE COURT: This goes back to the you don't need any
3 evidence point.
4 MR. COOPER: Well, your Honor, it goes to, again
5 these are legislative facts. You need -- you need only go back
6 to your chambers, your Honor, and pull down any dictionary,
7 pull down any book that discusses marriage and you will find
8 this procreative purpose at its heart wherever you go. Unless,
9 unless, your Honor, that book was written by one of their
10 experts or has been written over the course of the last 30
11 years. Then you will find, yes, that procreation, what has
12 that got to do with marriage? What?
13 And the pages of history, your Honor, are filled with
14 nothing, nothing but this understanding of marriage. You will
15 not find anywhere in the pages of history, nowhere, any
16 suggestion that the traditional definition of marriage
17 ubiquitous in history, across cultures, across time had
18 anything whatever to do with homosexuality. Had nothing to do
19 with it.
20 In fact, the issue of people's values with respect to
21 homosexual conduct was never in the marriage conversation until
22 the movement for same-sex marriage.
23 Your Honor, at the heart, at the very heart --
24 THE COURT: What should I conclude from that?
25 MR. COOPER: That, your Honor, at least an important

1 purpose of marriage always has been and still is to channel
2 naturally procreative sexual conduct of men and women into
3 enduring, stable family units through marriage so that the
4 children of that union will be raised by the man and woman who
5 brought them in, to improve the likelihood that that will
6 happen.
7 THE COURT: What has changed in the last 30 years
8 that has so dramatically altered the landscape that you have
9 just described?
10 MR. COOPER: Your Honor, I think my point is the
11 changes in the last 30 years haven't eliminated that legitimate
12 and important purpose of marriage.
13 THE COURT: But you pointed out that there is this
14 body of opinion, point of view, that you have described that
15 now views marriage as an option for homosexuals. Okay. That
16 is something that has developed in the last 30 years.
17 What is it and what does the evidence show has
18 prompted that change? Why? Why do we have this? If it has
19 never been a debatable proposition before, why is it now
20 debatable?
21 MR. COOPER: Well, it has become a claim, and an
22 understandable claim, which, your Honor, we respect and credit.
23 Credit certainly the sincerity and the passion behind the
24 desire of same-sex couples to get married.
25 And that movement has developed, and it has made

1 this, this issue a very important controversial issue of public
2 policy. And it's one that is, as you know, not just taking
3 place here in California. It's taking place elsewhere in the
4 country and voters and legislators have come to some different
5 conclusions. It's taking place throughout the world.
6 But, your Honor, the issue is --
7 THE COURT: If it is taking place throughout the
8 country and throughout the world in this fashion, then doesn't
9 that indicate a changed perspective with respect to the role
10 and function of marriage in society?
11 MR. COOPER: In the minds of many, yes, your Honor.
12 In the minds of many.
13 THE COURT: And doesn't that affect, then, the
14 responsibility and the extent of appropriate authority and
15 regulation by the state of the institution of marriage?
16 MR. COOPER: Your Honor, I think states are examining
17 their responsibilities with respect to this issue currently,
18 and have been over a number of years now, and that in the
19 political process, which given that this issue goes more to the
20 morals of a people than any other relation -- as, again, we
21 know from the Maynard case -- that this issue is being debated
22 in the political process and it has brought forward additional
23 considerations and issues for the legislative process to
24 grapple with.
25 But the real question, your Honor, for you is this:

1 Has something happened with respect to the nature of marriage,
2 the legitimate purposes of marriage to make the historic,
3 consistent and ubiquitous core procreative purpose of marriage
4 no longer constitutionally legitimate?
5 Are the considerations -- are the competing
6 considerations which the political process is grappling with on
7 a daily basis here, are those competing considerations so
8 overwhelming that it's no longer legitimate for the people of
9 California or the legislatures of this country or the Congress
10 or court after court to conclude that there is a legitimate
11 function and purpose of marriage that does bring forward a
12 distinguishing characteristic relevant to interests the state
13 is able to implement?
14 Those words, your Honor, are I think verbatim, the
15 words of case after case regarding when it is appropriate for
16 the society, for the state to draw distinctions whether or not
17 there is a distinguishing characteristic relevant. And there
18 is a distinguishing characteristic relevant to this core
19 procreative purpose, your Honor, that justifies and explains
20 the rationality of a preference by legislators or a preference
21 by voters to -- and a rational basis for maintaining the
22 historic traditional definition of marriage.
23 THE COURT: Let me ask you. You heard Mr. Olson this
24 morning recount the experience of, and the background of the
25 Loving decision by the Supreme Court in 1964, I think it was --

1 '67. And up to that time numerous states had laws on the books
2 which prohibited interracial marriage.
3 At some point there came exactly the same kind of
4 social change that you have just described with respect to
5 homosexuality, and at some point, 1967, that matured into a
6 constitutional -- recognition of a constitutional right; that
7 the limitation against interracial marriage violated a
8 fundamental individual right under our Constitution.
9 Why are we not at that same tipping point here with
10 respect to same-sex marriage?
11 MR. COOPER: Your Honor, several reasons. Among the
12 most important, perhaps the most important, is this.
13 What legitimate purpose of marriage, recognized
14 historically or anywhere else, justified, provided a rational
15 basis for the State of Virginia, or any other, to say that an
16 interracial couple could not get married?
17 Well, it certainly wasn't this core procreative
18 purpose that I'm mentioning because, your Honor, that purpose
19 was frustrated by those policies. That purpose actually was at
20 war with the overriding ubiquitous core procreative purpose of
21 marriage, because it required people who had -- interracial
22 couples to --
23 THE COURT: Let me -- excuse me for interrupting, but
24 you recall a number of the decisions which upheld those laws,
25 and the rationale that was used by the Courts in some of those
1 cases was that the mixing of the races was going to be
2 destructive, would have serious corrosive effects on society.
3 MR. COOPER: Your Honor, those racist, racist
4 sentiments and policies had no foundation in the historical
5 purpose of marriage and, in fact, again, they were at war with
6 it.
7 Racial restrictions on marriage were not part of the
8 common law. As we have maintained from the beginning, the
9 opposite-sex nature of marriage is itself definitional,
10 definitional because of the -- as, again, the Supreme Court has
11 often recognized, because this relationship is fundamental to
12 the existence and survival of the human race. So this -- the
13 opposite-sex nature of marriage has always been definitional.
14 The common law didn't place racial restrictions on
15 marriage. Many states did not place racial restrictions on
16 marriage. Only 16 states at the time of Loving still had
17 racial restrictions on marriage. They grew out of this very
18 particular racist white supremacist theory, your Honor, that
19 was at war with all the purposes of -- all the legitimate
20 purposes of marriage.
21 They actually made people have illegitimate children,
22 illegitimate natural children, which, again, was -- the purpose
23 of marriage, as Justice Stevens says, is to license
24 cohabitation and produce legitimate children. That was the
25 purpose of it. Well, this racial restriction was at war with

1 its very definition, it's very nature.
2 Second point I want to make is that these
3 restrictions weren't --
4 THE COURT: Why isn't the limitation on marriage for
5 gay couples and lesbian couples similarly at war with their
6 desires to raise children, raise their own children in the
7 context of a marriage partnership?
8 MR. COOPER: Your Honor, again, this is the -- this
9 is the distinction that the Eighth Circuit recognized and that
10 case after case has recognized. There are distinguishing
11 characteristics relevant to the interests that the state is
12 pursuing here.
13 As the Eighth Circuit said, your Honor, only
14 opposite-sex couples can procreate naturally and, therefore, it
15 is only opposite-sex couples who uniquely, uniquely address
16 this fundamental historic purpose and who present, most
17 importantly, uniquely, the threat to the society's interests
18 that marriage is designed to minimize, the threat of
19 irresponsible procreation, the threat -- the reality that when
20 procreative sexual relationships between men and women are not
21 channeled into marriage and these stable unions with these
22 binding vows, then much more frequently the society has to --
23 has to itself cope with the adverse social ramifications and
24 consequences of that kind of irresponsible procreation.
25 THE COURT: But you don't draw any distinction

1 between the state's interest with respect to a marriage and
2 children of that marriage where the parents have been able to
3 conceive on their own and the situation where an opposite-sex
4 couple have had to require some form of intervention, medical
5 intervention or otherwise, in order to produce children, an
6 increasingly common situation. And the rights and
7 responsibilities of the parents are exactly the same for the
8 children of the latter couple, and the state's interest is
9 exactly the same, is it not?
10 MR. COOPER: Your Honor, not -- they are not quite
11 the same, no.
12 THE COURT: Well, then, what's the difference? You
13 mean, where you had to have an egg donor or a sperm donor or
14 some procedure of that kind in order to produce a child, the
15 state's interest is different in that child and in that
16 marriage?
17 MR. COOPER: Your Honor, the first point I want to
18 make is to refer back to earlier colloquy and discussion with
19 respect to the interests that are served by permitting all
20 opposite-sex couples to marry without attempting to use some
21 kind of intrusive inquiries and what-have-you into questions of
22 fertility, questions of, you know, desire to have children and
23 what-have-you.
24 I didn't at that time also mention that the society's
25 interests are also furthered whenever opposite-sex couples are

1 married in order to engage in sexual relationships, because
2 that strengthens the social norms that, really, the legal
3 institution of marriage relies upon most heavily in order for
4 this channeling function to be performed.
5 It would be -- whenever couples, opposite-sex couples
6 are in cohabiting relationships, as they -- you know, as it
7 certainly happens now that they are more often than in previous
8 times in history, that in and of itself weakens those social
9 norms that seek to encourage and to channel those types of
10 procreative relationships into marriage.
11 But to come back specifically to your point, your
12 Honor, I really think the state's main concern or certainly
13 among the state's main concern in regulating marriage, in
14 seeking to channel naturally procreative sexual conduct into
15 stable and enduring unions is to minimize what I would call
16 irresponsible procreation. It's not a good term, but I can't
17 think of a more serviceable one. And that is, procreation that
18 is -- that isn't bound by the kinds of obligations and social
19 norms that the marital relationship is and that often leads to
20 children being raised by one parent or the other or sometimes
21 neither parent.
22 That is a phenomenon that is uniquely centered on
23 naturally procreative sexual relationships between men and
24 women. It is -- it is not a phenomenon that the state has to
25 be concerned about with respect to same-sex couples.

1 For a same-sex couple to procreate it, by definition,
2 has to be responsible. It can't be by accident. That's the
3 key point.
4 And that's a point that the Eighth Circuit itself
5 stressed in the Bruning case that I quoted from earlier. By
6 definition, same-sex couples do not naturally procreate and
7 when they procreate --
8 THE COURT: And my point was that there are a number
9 of heterosexual couples who do not naturally procreate, who
10 require the intervention of some third party or some medical
11 assistance of some kind.
12 MR. COOPER: Yes, your Honor. And it is not those
13 opposite-sex couples either that the state is concerned about
14 in terms of -- in terms of the threats to society and the
15 natural concerns that society has from irresponsible
16 procreation.
17 THE COURT: What's the threat to society of people
18 choosing to have medical assistance in order to conceive
19 children?
20 MR. COOPER: There isn't one there, your Honor. I
21 mean, it's -- it is the -- again, it's irresponsible
22 procreation. The procreation that comes about casually.
23 And often again, as the Eighth Circuit put it, often
24 by accident, unintentionally, unintentionally. The
25 opposite-sex couple where one of the partners is infertile, for

1 example, or the same-sex couple can't unintentionally
2 procreate, but for reasons that we discussed earlier with
3 respect to the opposite sex but infertile couple, allowing them
4 to marry isn't something that is inconsistent with the purposes
5 of -- the core procreative purposes of marriage and, in fact,
6 in certain respects it advances those purposes and it would
7 just not be possible or realistic, as case after case has said,
8 for the state to try to implement its policy on a more narrow
9 or fitted basis.
10 And, your Honor, with respect to -- and you asked a
11 question about this in your written questions. Even with
12 respect to the opposite-sex couple where one of the partners is
13 infertile, encouraging that couple to get married, trying to
14 channel that couple into marriage furthers the procreative
15 purposes and policies underlying the traditional definition of
16 marriage in the sense that if that couple gets married, then
17 it -- then all of the social norms that come with marriage to
18 encourage that couple to stay together and to be faithful to
19 one another operate to society's benefit in the sense that the
20 fertile member of that couple will be less likely to engage in
21 sexual relationships with third parties and raise anew a threat
22 of some type of unintentional or what I have been referring to
23 previously as irresponsible procreation.
24 THE COURT: Why don't those same values, which are
25 values to society that you have described, apply to lesbian

1 couples and gay couples? Coming together, supporting one
2 another, taking care of one another, looking out for one
3 another, being an economic unit, being a social unit, providing
4 love, comfort and support for one another, why don't all of
5 those considerations apply just as much to the plaintiffs here
6 as they apply to John and Jane Doe, to use the names that
7 Reverend Tam used.
8 MR. COOPER: Those purposes, your Honor, are -- we
9 haven't suggested there is a distinction among gay and
10 opposite-sex couples with respect to those considerations.
11 There is a distinction, however, with respect to the
12 fundamental procreative purpose, responsible procreative
13 purpose of marriage; and that is that the gay couple, unlike
14 the opposite-sex couple where one of the partners may be
15 infertile, doesn't represent -- neither partner in the -- with
16 respect to the same-sex couple is -- again, assuming homosexual
17 sexual orientation -- represents a concern about irresponsible
18 procreation with a third party.
19 But, your Honor, the considerations that you have
20 identified are considerations that the state and its voters
21 have taken account of and they -- and they have respected and
22 they have credited and they have honored by creating the
23 parallel institution of domestic partnership.
24 THE COURT: What does the evidence show that the
25 procreative function of marriage was a rationale of the voters

1 in enacting Proposition 8? What's the evidence on that, the
2 evidence in this record?
3 MR. COOPER: Your Honor, there is substantial
4 evidence in this record.
5 First, your Honor, is the ballot arguments themselves
6 and the official voter information guide. The Yes On 8
7 position favoring Proposition 8 specifically said:
8 "Proposition 8 protects marriage as an
9 essential institution of society. While
10 death, divorce or other circumstances may
11 prevent the ideal, the best situation for a
12 child is to be raised by a mother and father,
13 a married mother and father."
14 So, your Honor, the central thrust of the responsible
15 procreation purpose of marriage was put forward in the voter
16 information guide itself, but the campaign, also, the Yes On 8,
17 the ProtectMarriage.com, Yes On 8 campaign, spoke to this.
18 It is not accurate to say that there was no
19 discussion of this concern or this interest in connection with
20 a campaign, in connection with the formal Yes On 8 or
21 ProtectMarriage.com campaign because there were advocacy pieces
22 after advocacy piece that spoke specifically to this issue.
23 One was a video ad, which said --
24 THE COURT: Is this in the record?

1 THE COURT: What is it? What exhibit?
2 MR. COOPER: PX-97.
3 "Marriage involves a complex web of social,
4 legal and spiritual commitments that bind men
5 and women for one overriding societal
6 purpose, to create a loving environment for
7 the raising up of children."
8 In a range of written advocacy pieces, your Honor,
9 printed materials, the ProtectMarriage.com said things like
10 this.
11 And this is actually from PX-27 that I'm going to be
12 reading from.
13 "The marriage of a man and a woman has been
14 at the heart of society since the beginning
15 of time. It promotes the ideal opportunity
16 for children to be raised by a mother and
17 father and a family held together by the
18 legal, communal and spiritual bonds of
19 marriage. And while divorce and death do
20 frequently disrupt the ideal, as a society we
21 should put the best interests of children
22 first, and that is traditional marriage."
23 Your Honor, there were a number of -- and there are
24 before you a number of those -- of those things from the
25 ProtectMarriage.com campaign itself.

1 But beyond that, quite beyond that, this was a
2 frequent theme within the religious community that was, as you
3 know, quite active in the debate, in the political process over
4 Proposition 8.
5 The campaign wasn't just by any stretch what
6 ProtectMarriage.com had to say to the people. The debate was a
7 cacophony of ideas and of arguments and of debates ranging from
8 the fairly ubiquitous television ads throughout that -- or at
9 least towards the November 4th itself that appeared on
10 television to conversations at the office water cooler.
11 Your Honor, people got their -- debated this issue in
12 every venue and every forum, in civic centers. It was a
13 cacophony of issues and, certainly, one doesn't have to
14 pinpoint a particular argument from a particular source to
15 conclude that any -- virtually any argument that would have
16 supported one side or the other was being advanced by these
17 very passionate debates.
18 Your Honor, the other point I want to make about
19 this, and it goes to the issue of -- it goes to the issue of
20 standard to review that the Court will be applying in this
21 case, is this. We submit, of course, as you know, the rational
22 basis test applies. There has not been a case in the so-called
23 marriage equality cases that has applied the federal
24 Constitution, that has applied any other standard of review.
25 And, in fact, beyond that, your Honor, there has not

1 been a case in the federal judicial area or, as far as we can
2 tell, the state judiciary, applying -- looking at the sexual
3 orientation classification that has applied anything other than
4 rational basis review, with four exceptions. Those are --
5 there are four district court cases that have applied some form
6 of heightened scrutiny.
7 The Ninth Circuit, we submit to you, has binding
8 controlling authority on this question, from the High Tech Gays
9 case. Ten other circuit courts of appeals, six of those
10 cases -- with six decisions coming after Lawrence have held to
11 the same effect. No Court of Appeals case has ever applied
12 anything other than rational basis review to a sexual
13 orientation classification. And out of 40, 40 some-odd
14 district court cases, only four have done so and all four have
15 been reversed.
16 Supporting the plaintiffs on the question of standard
17 of review is nothing, and there is a judicial tsunami that they
18 are asking you to sail into on this question.
19 So we believe that rational basis applies and that if
20 we are right and rational basis applies, the state, or we -- as
21 we attempt to step into the shoes of the state -- don't have to
22 submit evidence to the Court in support of the claims of
23 purpose and justification.
24 To the contrary, the plaintiffs have to negate every
25 conceivable rational basis, every conceivable rational basis

1 that might explain the policy at issue, the classification at
2 issue.
3 And, your Honor, what that means is they have to
4 negative every conceivable state of facts that could provide a
5 rational basis for the classification. This is stated in case
6 after rational basis case, your Honor, from Garrett and Heller
7 and FCC against Beach, as the Court knows from its own
8 questions.
9 And if the state of facts that would support -- if it
10 was -- any conceivable state of facts that would support the
11 classification is even arguable or debatable, as you asked Mr.
12 Olson, then the state's policy must be upheld. It must be a
13 non-debatable proposition.
14 So if you conclude -- and here is the, perhaps, I
15 guess, kind of the most important point for this purpose.
16 Event you conclude that, in fact, by a preponderance of the
17 evidence they are right on any of their claims, that doesn't
18 matter. You still must rule for the state unless you also
19 conclude that the legislative facts on which the classification
20 is apparently based could not reasonably be conceived to be
21 true. Vance against Bradley.
22 It's not that who is right or who is wrong. It's
23 that no rational person could conceive that the legislative
24 fact relevant to the issue could possibly be true.
25 THE COURT: The standard of review in Romer was

1 rational basis?
3 And Romer, your Honor, applying that standard
4 concluded there was not any explanation for the sweeping
5 disabling punitive statute discriminating against gays and
6 lesbians in that case, not any explanation that could provide
7 any rational basis for the rule there.
8 So the only conclusion that could be arrived at was
9 that it flowed from animus. It flowed from animus. That was
10 the only thing that could explain this sweeping disabling
11 statute that effectively, in the Court's words, made gays and
12 lesbians strangers to the law. Made them strangers to the law.
13 Placed them effectively outside of the law's protections
14 effectively permanently or at least until the electorate
15 amended the Constitution.
16 THE COURT: Mr. Olson contends that Proposition 8
17 makes gays and lesbians strangers to the institution of
18 marriage in California.
19 Let me direct you to the Minnesota versus Clover
20 Leaf, and just one sentence by Justice Brennan on this rational
21 basis review standard that we have been discussing.
22 "Where there was evidence before the
23 legislature reasonably supporting the
24 classification, litigants may not procure
25 invalidation of the legislation merely by

1 tendering evidence in court that the
2 legislature was mistaken."
3 So where was the -- the evidence here, as I
4 understand your argument, was this evidence with respect to the
5 natural procreative capability of heterosexual couples or
6 opposite-sex couples as opposed to the non-natural procreative
7 ability of same-sex couples? That is the evidence that was
8 before the voters here that you are relying upon as providing
9 the rational basis, am I correct?
10 MR. COOPER: Forgive me, your Honor. I'm not sure I
11 follow what --
12 THE COURT: Well, perhaps -- I'm sure it's not stated
13 very well.
14 But the point that Justice Brennan, I think, was
15 making is that in that Minnesota case there was evidence before
16 the legislature. It was identified. It wasn't simply some
17 rationale pulled out of the thin air. There was evidence
18 before the legislature to warrant the classification that was
19 made in that case. This was a classification, if I remember
20 correctly, between paperboard milk cartons and plastic milk
21 cartons.
22 Well, the evidence supporting the classification here
23 that you are contending exists is this natural procreative
24 ability of opposite-sex couples, which distinguishes them from
25 same-sex couples. That's the evidence, am I correct?

1 MR. COOPER: That's certainly a premise, yes, your
2 Honor.
3 THE COURT: That's it?
4 MR. COOPER: It's a premise of the responsible
5 procreation rationale.
6 THE COURT: Let me ask you, while we have a pause in
7 our discussion -- unless you want to move on to something else
8 that follows immediately -- about one of the answers that you
9 provided in the response to the written questions, and that was
10 actually the last question.
11 The question was:
12 "If the Court finds Proposition 8 to be
13 unconstitutional, what remedy would yield the
14 constitutional expression of the people of
15 California's will?"
16 And your response --
17 MR. COOPER: I'm sorry. Which question was that?
18 THE COURT: The last question, number 15.
19 MR. COOPER: Oh, this is the common --
20 THE COURT: Exactly, the common questions to both the
21 plaintiffs and the proponents.
22 And I'm reading from Pages 45 to 46 of your response,
23 okay?
24 And your response was:
25 "If, as plaintiffs maintain, Proposition 8

1 cannot be reconciled with its own
2 non-retrospective application as interpreted
3 by the California Supreme Court, or with any
4 other feature of California law, the remedy
5 that would yield to the constitutional
6 expression of the people of California's will
7 is sustaining Proposition 8 by giving it
8 retrospective effect or invalidating the
9 conflicting feature of California law."
10 Do I understand that what you are saying here is that
11 not only am I required to rule against the plaintiffs, but to
12 invalidate the 18,000 marriages, same-sex marriages that
13 occurred between June and November of 2008?
14 MR. COOPER: No, your Honor. That is not our
15 position at all.
16 THE COURT: But that's what these words say, do they
17 not?
18 MR. COOPER: Well, no, no. Only if there is only
19 some irreconcilable conflict between those two things, as Mr.
20 Olson maintains, but we dispute that there is an irreconcilable
21 conflict.
22 This goes to, at least, what we perceived the Court's
23 question to be going to. Is the plaintiffs' argument with
24 respect to the so-called crazy quilt that has been created by
25 Proposition 8 and the interpretation of Proposition 8, in

1 particular, in the marriage cases that interpreted
2 Proposition 8 to be prospective only and not to invalidate the
3 18,000 or so same-sex marriages that took place during that
4 interim period after the decision and before Proposition 8 was
5 passed.
6 Our position, we disagree with Mr. Olson. We don't
7 believe that that has created a conflict that requires
8 Proposition 8 to be invalidated. That's what he is arguing,
9 that it -- that it is irrational, he thinks, to have valid
10 same-sex marriages in the face of Proposition 8's prohibition
11 on same-sex marriages going forward, at least under the
12 marriage cases interpretation of its prospective only effect.
13 Our answer is the Court of -- California Supreme
14 Court simply engaged in an analysis that is quite routine and
15 standard when statutes or constitutional amendments are enacted
16 that would affect rights -- at least on their face would appear
17 to affect rights and interests that have been created under the
18 preexisting state of the law. This preexisting state of the
19 law being the not quite five-month period when same-sex
20 marriage was legal and same-sex marriages were entered into.
21 The Court -- the California Supreme Court simply said
22 these reliance interests that have been created as a result of
23 that Court's previous decision. And here I'm referring to the
24 Strauss case where Proposition 8 was at issue and it was
25 interpreted as prospective only. That those reliance interests

1 were, the Court thought, powerful and legitimate and that it
2 was effectively loathe to interpret Proposition 8 as upsetting
3 those interests, so Proposition 8 would be given only that
4 prospective effect.
5 It is not at all uncommon when Courts are faced with
6 that kind of situation and not all that uncommon, really, when
7 legislatures are and they decide to cut back on something, to
8 grandfather the individuals, as it is commonly called, to
9 grandfather those interests and protect them from the
10 application which would, in that circumstance, be especially
11 harsh in consideration of the reliance interests that have been
12 created under the previous regime.
13 We don't think that's irrational. We don't think
14 those two realities create some irrational and unconstitutional
15 crazy quilt, and neither did the California Supreme Court.
16 But all we are saying in our answer is this. If that
17 were to be the case --
18 THE COURT: If what were to be the case?
19 MR. COOPER: If it were to be the case that Mr. Olson
20 is right and the prospective effect and the 18,000 marriages
21 that took place before the passage of Proposition 8, and
22 Proposition 8's own prospective effect can't be reconciled and
23 one or the other has to fall, our submission is the overriding
24 constitutional judgment of the people is not what should fall
25 here.
1 Proposition 8 should not be invalidated because of
2 some notion that there is an irreconcilable conflict between
3 it, as a prospective statute, and the existence of reliance
4 interests that compelled the California Supreme Court not to
5 apply Proposition 8 retrospectively.
6 Obviously, it was before the Court to apply, and it
7 could have, and there were certainly, you know, legitimate
8 arguments that Proposition 8 had a retrospective effect as
9 well.
10 Just as, your Honor, the California Supreme Court
11 held in a previous case that marriages that had taken place
12 under what was ultimately determined to be a void act of --
13 ordinance or whatever in San Francisco, that all of those
14 marriages were void. Well, that was -- that was a decision
15 that the California Supreme Court could have rendered. It
16 decided not to.
17 We think these things can lie down comfortably along
18 one another. There is not any rational conflict. So it is not
19 our position.
20 We urge you not to conclude that you -- that one or
21 the other of these, of these elements must fall. We don't
22 think that is necessary.
23 THE COURT: One or the other of what elements?
24 MR. COOPER: Proposition 8 as a prospective
25 prohibition on same-sex marriage, on the one hand, and

1 California Supreme Court's interpretation of it allowing the
2 18,000 same-sex marriages that had taken place before its
3 enactment to remain valid.
4 We think that grandfathering, effectively, of those
5 marriages is perfectly rational. It's perfectly common and
6 perfectly constitutional.
7 Your Honor, I want to effectively conclude this piece
8 of my argument by calling the Court's attention to a case from
9 the 11th Circuit called Lofton. It was a case in which the
10 11th Circuit upheld Florida statute that prohibited gay
11 adoptions.
12 At the heart of that case was this consideration that
13 we have been discussing; that is, effectively the core
14 procreative element or purpose of marriage and the -- and the
15 idea that -- which it was displayed again, as I mentioned
16 earlier, in the official ballot initiative argument; that it
17 is -- and that many, many people believe that it is best for a
18 child to be raised by the child's own mother and father.
19 What the Court there concluded -- and I might add
20 that the expert for the plaintiffs in that case was Dr. Lamb.
21 Ultimately the Court concluded that, in fact, the evidence
22 submitted there by Dr. Lamb was not adequate to render
23 irrational the common sense belief that children do best when
24 they are raised by their own mother and father, which in one of
25 your questions, your Honor, you'll recall quoting from the New
1 York Court of Appeals in Hernandez against Robles. That common
2 sense proposition. And this is what -- this is what,
3 ultimately, the Eleventh Circuit was persuaded by.
4 Taking all of this available information into
5 account, the legislature could rationally conclude that a
6 family environment with married opposite-sex parents remains
7 the optimum social structure in which to bear children; and
8 that the raising of children by same-sex couples, who by
9 definition cannot be the two sole biological parents of a
10 child, and cannot provide children with a parental authority
11 figure of each gender, presents an alternative structure for
12 child-rearing that has not yet proved itself, beyond reasonable
13 scientific dispute, to be as optimal as the biologically-based
14 marriage norm.
15 Your Honor, this, again, brings forward the -- the
16 point that the standard here is whether or not the evidence
17 produced by the plaintiffs is -- is more than just opinion
18 evidence, but it actually rises to the level of non-debatable
19 scientific facts.
20 And, ultimately, the Eleventh Circuit concluded that
21 that was not -- in that case, anyway, that simply couldn't be
22 said with respect to the common sense belief that -- that many,
23 many, many people hold, and many researchers hold, that the
24 optimal child-rearing parental structure is the traditional
25 intact family.
1 Your Honor, I want to move, if I may, to an area that
2 the plaintiffs have emphasized. They have gone to great
3 lengths to underscore the religious beliefs of many of the
4 people who campaigned and supported Proposition 8.
5 It's hardly -- it's hardly remarkable, in our
6 country, that religious beliefs are and religious people are
7 involved in the political process. It's part of our
8 Constitutional tradition, from the American Revolution to the
9 Abolitionist Movement, to the civil rights -- to the Civil
10 Rights Movement.
11 And there are issues, many of them, that confront the
12 legislatures, that confront the body politic, that are bound up
13 and inextricably -- inextricably involve moral values and moral
14 judgments, from the death penalty, gambling, obscenity,
15 prostitution. And an issue that was before the Supreme Court
16 not -- not that long ago, in the Glucksberg case, the issue of
17 assisted suicide. The court there rejected a substantive due
18 process challenge to a state statute that prohibited
19 physician-assisted suicide.
20 And the Court noted that, "Throughout the nation,
21 Americans are engaged in an earnest and profound debate about
22 the morality, legality, and practicality of physician-assisted
23 suicide." And the Court held that the Constitution permits
24 this debate to continue, as it should in a democratic society.
25 And, Your Honor, the Court was very careful to -- to

1 make clear that when a court is presented with a claim of a --
2 asking the Court to define some new fundamental right, that the
3 Court must very carefully analyze that claim and must insist
4 that it be rooted, deeply rooted, in the country's history and
5 traditions, in order not -- in order to protect against the
6 judiciary unnecessarily taking important issues off the table
7 of the democratic process.
8 This is true, also, of marriage, we would submit.
9 Again --
10 THE COURT: You concede that there are times when it
11 is appropriate for the courts to do exactly that?
12 MR. COOPER: Yes, of course.
13 THE COURT: We've talked about the Loving decision.
14 We've talked about the Brown decision and various others.
15 MR. COOPER: Yes.
16 THE COURT: What are the criteria that a court should
17 use in making that determination?
18 MR. COOPER: Your Honor, I think -- I think the
19 criteria is what -- is what the -- is what the Supreme Court
20 itself has articulated, that the right claimed must be deeply
21 rooted in the history, traditions, and practices of the --
22 THE COURT: And in this case, marriage is a deeply
23 rooted and fundamental right.
24 MR. COOPER: Yes, Your Honor.
25 THE COURT: No doubt about that.

1 MR. COOPER: Yes.
2 THE COURT: Okay.
3 MR. COOPER: Your Honor --
4 THE COURT: And that, as Mr. Olson described this
5 morning, is a right which extends essentially to all persons,
6 whether they are capable of producing children, whether they
7 are incarcerated, whether they are behind in their child
8 support payments. There really is no limitation except, as
9 Mr. Olson pointed out, a gender limitation.
10 MR. COOPER: Well, Your Honor, and that -- and that
11 gender limitation is, is a definitional feature of the right to
12 marry. A definitional feature.
13 That is clear from the Court's repeated statement
14 that the reason marriage is fundamental is that it is
15 fundamental to the existence and survival of the human race.
16 It is procreative --
17 THE COURT: Because it is a gender-specific right?
18 MR. COOPER: The right --
19 THE COURT: That's what you're saying?
20 MR. COOPER: Yes, I am. The right is --
21 THE COURT: Gender specific?
22 MR. COOPER: The right to marry is bound up with and
23 proceeds from the fundamental nature and its fundamental
24 purpose relating to procreation and the existence and survival
25 of -- of the human race.

1 So it is itself, by definition, the right of a man to
2 marry a woman, and vice versa. That is -- that is the right.
3 And, Your Honor --
4 THE COURT: All right, then. Let me ask you about
5 something that you said in one of the other responses to the
6 written questions. This is number 9. And I believe that was a
7 question posed to both parties.
8 On page 21 of their response --
9 MR. COOPER: I don't have the same pagination you do.
10 I'm sorry, Your Honor. Is it number 9 to both parties?
11 THE COURT: It's -- I beg your pardon. It's number
12 10. Number 10. And, if it helps, the ribbon is document 687,
13 page 25 of 50.
14 And you say, with respect to sexual orientation, "As
15 a socially-constructed category, sexual orientation clearly
16 fails the requirement." And the requirement posited is "Social
17 constructivism suggests that there is nothing real about sexual
18 orientation except society's construction of it. Not
19 surprisingly, social constructionists generally reject the
20 possibility of biological factors in sexual orientation."
21 What that leads me to ask you is, aren't these
22 distinctions that we're drawing sexual orientation
23 distinctions, gender distinctions, from a legal point of view
24 are they not all socially constructed?
25 MR. COOPER: No, Your Honor. I think there would be

1 a fundamental difference, at least if I understand the thrust
2 of this inquiry, between, for example, a gender distinction and
3 a distinction drawn along the lines of sexual orientation.
4 Because I -- we took this and the notion of social
5 construction, to go to the -- to go to what we think are the
6 very difficult issues surrounding sexual orientation and its
7 amorphous, effectively indefinable, at least consistently,
8 nature, and the simple fact that it is not immutable.
9 Our submission, obviously, is that sexual orientation
10 is not an immutable trait, that is an accident of -- an
11 accident of birth, which --
12 THE COURT: An accident of birth?
13 MR. COOPER: Yes, Your Honor. Sex -- your gender --
14 talking here about the --
15 THE COURT: It can be changed before birth, but not
16 after birth? What do you mean it's an accident of birth?
17 MR. COOPER: Accident of birth in the sense that that
18 term has been used consistently by the Supreme Court to
19 identify the kinds of immutable characteristics that -- that go
20 into the calculus on whether heightened scrutiny should apply.
21 Political powerlessness, immutability, and history of
22 discrimination. Essentially, the three principal issues.
23 THE COURT: And religious discrimination, of course,
24 is prohibited as one of these fundamental rights and subject to
25 strict scrutiny, if the state imposes some limitation or

1 classification based on religion. And religion is certainly
2 not an immutable characteristic.
3 MR. COOPER: That's true, Your Honor. But we would
4 submit that the heightened and strict scrutiny that is accorded
5 to religious classifications springs not from the Equal
6 Protection Clause but from the First Amendment. And we think
7 that Davey against Locke supports that proposition.
8 We don't -- we believe that the -- the areas that the
9 Supreme Court, at least thus far, has identified as -- as
10 qualifying for heightened scrutiny have been race, of course,
11 the central concern of the Fourteenth Amendment, which, by the
12 way, I forgot to mention when we were discussing Loving. But
13 that, too, was a key point and one that the Court repeated --
14 the Loving court repeatedly made, was that the central concern
15 of the Fourteenth Amendment was to eliminate all invidious
16 racial discrimination. And, obviously, here that is -- that is
17 not -- that is not the case.
18 But to come back to the immutability issue, the Ninth
19 Circuit in the High Tech Gays case said, unequivocally, "Sexual
20 orientation is not an immutable characteristic." I think
21 that's -- that's a quote.
22 And, Your Honor, measured against the Supreme Court's
23 decisions, we submit that is plainly right. And, again, we are
24 aware of no case that has held heightened scrutiny, under the
25 Equal Protection Clause or anything else, applies to a sexual

1 orientation classification. Every case holds to the contrary.
2 And specifically on the immutability issue, the
3 record before you is really quite -- quite overwhelming, that
4 the -- the characteristics of immutability simply do not apply
5 with respect to sexual orientation.
6 Not only is it difficult to define, as almost all of
7 the plaintiffs' experts testified to -- and there are at least
8 three definitions, the behavioral-based definition, the
9 attraction-based definition, and the self-identity-based
10 definition, that depending on which one you use, there's a wide
11 variety of the people who are within that class.
12 Beyond that, Your Honor, and not just its amorphous
13 and difficult definitional situation, is the fact that the
14 plaintiffs' witnesses were quite candid and unequivocal and
15 uniform that sexual orientation does change. It does change
16 over time. And it apparently changes especially in -- in
17 women.
18 There were -- there was testimony from Dr. Peplau
19 about the astonishing plasticity of sexual orientation in
20 women, and that men and women experience a change in their
21 sexual orientation several times over the course of a lifetime.
22 But perhaps the most -- perhaps the most, I would
23 think, vivid evidence was an APA study which indicated that
24 over a 10-year period, for women who identified -- who
25 identified themselves as homosexuals, some two-thirds of them

1 had changed their sexual orientation, essentially, had
2 experienced, themselves, a change in their sexual orientation
3 at least once over the course of their lifetime, and a third
4 more than once.
5 And this does go directly to the Supreme Court's test
6 of immutability. Is it an accident of birth?
7 Here's what Justice Ruth Bader Ginsburg said about
8 this test. "The immutable characteristic notion, as it appears
9 in Supreme Court decisions, is tightly cabined. It is a trait
10 determined solely by the accident of birth."
11 And here, Your Honor, the traits or the
12 characteristics that have been determined to be immutable and
13 to qualify for heightened scrutiny by the Supreme Court have
14 been things like race, which is obviously determined at birth.
15 It's, quote, an accident of birth. Gender. And illegitimacy.
16 And as Judge Ginsburg also said, it doesn't mean it's
17 something that can't be changed. But it is something that
18 is --
19 THE COURT: Isn't national origin also one of those?
20 MR. COOPER: Yes, Your Honor. Yes, Your Honor.
21 THE COURT: And people -- I don't know whether they
22 change their national origin, but on St. Patrick's Day
23 everybody is Irish.
24 (Laughter)
25 MR. COOPER: I've experienced that change myself.

1 (Laughter)
2 THE COURT: And people can look to one ancestor and
3 suddenly become that. And on another occasion pick another
4 ancestor. And maybe even invent an ancestor.
5 So these immutability characteristics, they really
6 are not the important factor, are they, in deciding what the
7 level of scrutiny is?
8 MR. COOPER: Well, Your Honor, yes. With respect, it
9 is a critical -- it is a critical element. But it isn't -- it
10 isn't more or different -- differently critical than, say,
11 political power.
12 And, Your Honor, under the Supreme Court's test for
13 political powerlessness, we would submit to you, again, that
14 the evidence is overwhelming that gays and lesbians are not
15 politically powerless; notwithstanding Dr. Segura's testimony,
16 which we believe advanced to the Court a test for judging
17 political powerlessness that is -- that just simply has no
18 basis in the legal principles that this Court is bound to
19 apply.
20 The legal test from the Supreme Court was stated
21 clearly in the Cleburne case as, does the group, there the
22 mentally disabled, does the group have the ability to attract
23 the attention of the lawmakers, of the decision-makers, attract
24 the attention?
25 In High Tech Gays, in the Ninth Circuit the court

1 said that gays and lesbians -- 20 years ago, gays and lesbians
2 are not politically powerless because they clearly have the
3 ability to attract the attention of the lawmakers. And that
4 was -- that was 20 years ago, Your Honor.
5 And since that time, as I think all of the
6 plaintiffs' witnesses acknowledged, there's been just an
7 extraordinary evolution -- I think Dr. Chauncey used the word
8 "sea change" -- in the attitudes and the acceptance of gays and
9 lesbians, and in their political power. Especially as
10 reflected in the extraordinary difference in the legal
11 landscape between today and 20 years ago with respect to
12 protections.
13 THE COURT: Isn't that the most important factor?
14 That is, this historical context?
15 In that women are hardly politically powerless. They
16 are a majority of the population. Probably a majority of the
17 voters. They have considerable political power. And yet a law
18 which classifies women in some fashion differently from men is
19 subject to strict scrutiny.
20 African Americans are hardly politically powerless,
21 and they have had enormous political gains in the last fifty
22 years or so. And yet laws that single them out from others
23 would be subject to strict scrutiny.
24 Isn't it that it's the historical context that
25 determines whether or not strict scrutiny is appropriate for a

1 particular classification, more than the political power factor
2 or the immutability factor or these other factors? Isn't that
3 really what decides the issue?
4 MR. COOPER: Your Honor, I think it is a -- it is an
5 interesting, different and perhaps in some ways difficult
6 question whether or not, for example, women, whose -- whose
7 political power and whose positions of political -- and
8 positions holding and exercising political power has changed so
9 dramatically since Reed against Reed in 1971, and Frontiero in
10 1973, when the Court first concluded that gender is a
11 quasi-suspect classification requiring an intermediate level of
12 scrutiny.
13 At that time, when the Court had before it this
14 question and whether or not political powerlessness of the
15 group suggested that they needed extraordinary protection from
16 the majoritarian political process that only the courts could
17 provide, at that time, Your Honor, women were still effectively
18 50 percent of the population. But they held like 2 percent,
19 2 percent of the elected offices in this country, as the
20 Frontiero court said. It was a minuscule percentage. I'm not
21 sure it was 2.
22 THE COURT: Legislative facts, I assume.
23 MR. COOPER: Yes. Yes, Your Honor. Absolutely.
24 That is not the case, certainly not in California, with respect
25 to gays and lesbians.

1 So I do believe that the time that --
2 THE COURT: Isn't Proposition 8, and these other
3 propositions in other states that limit marriage to
4 opposite-sex couples, the DOMA statute that has been mentioned,
5 the exclusion of gays and lesbians from military service for a
6 long period of time, aren't all of those simply indicia of a
7 long history of discrimination?
8 MR. COOPER: Your Honor, we would -- I want to be
9 clear on this. We have never disputed and we have offered to
10 stipulate that gays and lesbians have been the victims of a
11 long and shameful history of discrimination.
12 We -- we have been bound to note that, thankfully,
13 the situation today, in 2010, is not what it was even
14 yesterday, let alone in 1990, when High Tech Gays was decided.
15 Thankfully.
16 But -- but it isn't adequate -- the fact of a history
17 of discrimination is not by itself sufficient to warrant
18 heightened judicial scrutiny. The Court has always insisted,
19 as well, on immutability of the characteristic and political
20 powerlessness at the time that the issue comes forward to the
21 Court.
22 The question of political powerlessness, yes, it
23 would have been very different 20 -- it was very different 20
24 years ago, in High Tech Gays. Very different. But the Ninth
25 Circuit, nonetheless, believed that gays and lesbians could

1 attract the attention of lawmakers even then. It's -- if that
2 was true, it follows undebatably that it must be true today.
3 And the Court in the Cleburne case held that even
4 though the mentally retarded had suffered a history of
5 discrimination in many respects, and even though mental
6 disability is immutable, the mentally disabled, nonetheless,
7 couldn't qualify for heightened scrutiny, and only rational
8 basis review applied on classifications drawn there, because
9 the mentally disabled had political power. They could attract
10 the attention of lawmakers.
11 And, obviously, they had to rely, to attract the
12 attention of lawmakers, on allies, not on their own resources,
13 their own -- their own political muscle and their own numbers,
14 but had to rely upon -- upon others who allied with their
15 interests to create that political power.
16 And, Your Honor, if they weren't politically
17 powerless -- and that case was decided, I think, in 1987 or so,
18 just a couple or two or three years before High Tech Gays was
19 decided. So, Your Honor, if they didn't qualify, it was not a
20 close call, I would submit to you, in the Ninth Circuit in High
21 Tech Gays, and it is certainly not a close call today.
22 So our submission, Your Honor, is that with respect
23 to heightened scrutiny under the Equal Protection Clause the
24 courts that have uniformly decided this case against the
25 application of heightened scrutiny have been correct.

1 THE COURT: I want to ask you about something, but go
2 ahead.
3 MR. COOPER: Well, I'm trying mentally here to assess
4 where we've been and what I have in front of me. But I'm here
5 to try to respond as best I can to your questions, Your Honor.
6 THE COURT: Fair enough.
7 Mr. Blankenhorn. Why should Mr. Blankenhorn's
8 testimony be admitted? Does he meet the Daubert standards?
9 MR. COOPER: Your Honor, I submit to you that he
10 does.
11 By the way, I didn't understand your earlier ruling
12 to be -- your ruling accepting him as an expert to have been
13 provisional. But the Court has, I think in its questions,
14 clarified that.
15 But I really don't have anything to add to the -- to
16 the submission we made when the motion in limine was before
17 you, or the -- or the voir dire took place, and the motion in
18 limine.
19 I would say, Your Honor, that under the Ninth Circuit
20 standard for the qualification of an expert, Mr. Blankenhorn is
21 amply qualified. I believe amply qualified, I submit to you.
22 His professional life for 20 years has been devoted
23 to the study of one subject, the subject of marriage, the
24 subject of the potential -- and parenting structures, and the
25 potential for harm to marriage from a variety of social

1 phenomenon, including, now, same-sex marriage.
2 He's written two books on this subject matter, which
3 have been the product of deep study and wide study. Those
4 books have been received with respect by recognized experts,
5 including Dr. Lamb.
6 THE COURT: Were they peer reviewed?
7 MR. COOPER: The book?
8 THE COURT: Yes.
9 MR. COOPER: No, Your Honor. No.
10 THE COURT: In fact, am I correct that the only
11 peer-review writing of Mr. Blankenhorn was not on the subject
12 of this litigation?
13 MR. COOPER: Your Honor, as I stand here right now, I
14 can't answer that.
15 THE COURT: All right. Fair enough.
16 MR. COOPER: I can't. But, Your Honor, I think the
17 Ninth Circuit's standards for qualifying an expert are
18 particularly liberal. And I don't think they require -- they
19 certainly don't insist upon that an expert's publications have
20 been peer reviewed. That's an element, but it's not -- it's
21 not a mandatory one.
22 So, Your Honor, again, I didn't really come --
23 THE COURT: All right.
24 MR. COOPER: -- here prepared to particularly reargue
25 that, but I do believe that the transcript provides all that I

1 had to say with respect that issue.
2 THE COURT: All right. Well, if in the cool light of
3 the morning you want to submit anything further on that, I'll
4 be happy to give you the opportunity.
5 MR. COOPER: Thank you. Appreciate that. Thank you
6 very much.
7 Would the Court entertain -- well --
8 THE COURT: A break?
9 MR. COOPER: Maybe five minutes?
10 THE COURT: Sure. Of course. Why don't we take a
11 little more than that, and resume at 10 minutes after the hour.
12 And we'll finish Mr. Cooper for, oh, maybe 20 minutes, and
13 then --
14 MR. COOPER: At most, Your Honor. At most. If I can
15 hone in.
16 THE COURT: And whoever is going to rebut for the
17 plaintiffs. Mr. Olson.
18 (Recess taken from 2:55 to 3:10 p.m.)
19 THE COURT: All right. Mr. Cooper, carry on.
20 MR. COOPER: I appreciate the Court's indulgence.
21 THE COURT: Well, it was a good idea.
22 MR. COOPER: Your Honor, I hope I have sharpened my
23 thoughts a little bit here as my closing argument comes to a
24 close.
25 I want to address an issue that the Court took up

1 with Mr. Olson, and that is the question whether or not this
2 case would have been different if the California Supreme Court
3 had not rendered its ruling when it did, and -- or maybe even
4 stayed the application of its ruling in anticipation of the
5 people's judgment on Proposition 8, as it was asked to do and
6 as some other state supreme courts have done in a similar
7 circumstance.
8 This is something on which I agree with Mr. Olson, if
9 I understood his answer correctly.
10 I don't believe that that would make a difference. I
11 don't believe that the fact that the California Supreme Court
12 rendered its ruling and then it was effectively overturned by
13 the vote of the people should make a difference, either, in the
14 analysis of this case.
15 The Court, I think, asked Mr. Olson what kind of
16 regime would we have if the constitutionality of California law
17 prescribing the traditional definition of marriage would be --
18 would turn on whether or not the issue came to a federal court
19 before or after the state court had decided the issue.
20 And, Your Honor, the United States Supreme Court has
21 addressed precisely that circumstance, in a case called
22 Crawford v. Board of Education. I want to share a passage from
23 that case. It was from 1982. It upheld a California
24 Constitutional amendment that reduced the remedial tools that
25 were available to state courts in the school desegregation

1 area. It cut back on those remedial tools. And, in that case,
2 the Court stated as follows:
3 "We reject the contention that once a state chooses
4 to do more than the Fourteenth Amendment requires, it may never
5 recede."
6 They "reject an interpretation of the Fourteenth
7 Amendment so destructive of a state's democratic processes and
8 of its ability to experiment. This interpretation has no
9 support in the decisions of this court."
10 And, Your Honor, the Court went on and it was as
11 though, I would submit to you, it had this case in mind when it
12 further said:
13 "We would not interpret the Fourteenth Amendment to
14 require the people of a state to adhere to a judicial
15 construction of their state constitution when that constitution
16 itself vests final authority in the people. In short, having
17 gone beyond the requirements of the Federal Constitution, the
18 state was free to return in part to the standard prevailing
19 generally throughout the United States."
20 Your Honor, one of the points that the Crawford court
21 makes --
22 THE COURT: What do we makes of that in this context,
23 in this case?
24 MR. COOPER: That the -- essentially, the California
25 Supreme Court's interpretation, which we would submit goes

1 beyond the Fourteenth Amendment, was something that the people
2 of the state were empowered, essentially, to reverse. And that
3 is especially true, that's especially true given the fact in
4 California -- and Crawford came from the State of California --
5 the people of the state reserve into their own hands, as
6 essentially the ultimate appellate tribunal in this state, the
7 authority to review the decisions effectively of the California
8 Supreme Court.
9 So, in a very real sense, the California Supreme
10 Court's decision, particularly given that Proposition 8 was
11 then effectively pending before the people, the California
12 Supreme Court's decision was, in that context, no more final in
13 the state of California than the California Court of Appeals
14 decision was before that, which had upheld Proposition 8 by a
15 closely-divided court.
16 It was reviewed by the ultimate judicial tribunal in
17 this state. And the -- and the judgment of the Supreme Court
18 in the Crawford case, it seems to me, is on the point here.
19 Your Honor, I want to address, I think finally here,
20 the issue of whether or not there's a legitimate basis for
21 people of this state, or anyone, to be concerned that
22 redefining marriage, redefining the traditional understanding
23 of marriage to include same-sex couples presents any basis for
24 concern about the harm to marriage that may result, and to the
25 interests that the institution of marriage has historically

1 been designed to advance.
2 Many people believe, Your Honor, that that harm
3 will -- that such harm is threatened. But before analyzing
4 this, I think we have to begin with two propositions. The
5 first one is that redefining the institution will change the
6 institution.
7 I think Mr. Blankenhorn really summed it up quite
8 well. "If you change the definition of a thing, it's hard to
9 imagine how it could have no impact on the thing itself."
10 The plaintiffs' experts acknowledged -- excuse me,
11 the plaintiffs' expert and others who have thought and are
12 expert in this field, have acknowledged that change will
13 result.
14 Indeed, when same-sex marriage was legalized in
15 Massachusetts, Professor Cott commented, "One could point to
16 earlier watersheds, but perhaps none quite so explicit as this
17 particular turning point."
18 Professor William Eskridge of Yale Law School, and a
19 leading advocate for same-sex marriage, has said that,
20 "Enlarging the concept of marriage to embrace same-sex couples
21 would necessarily transform it into something new."
22 Joseph Raz, who is a professor at both Oxford
23 University and Columbia Law School, and a same-sex marriage
24 advocate, stated this:
25 "There can be no doubt that the recognition of gay

1 marriage will affect as great a transformation of the nature of
2 marriage as that from polygamists to monogamists, or from
3 arranged to unarranged marriage."
4 Same-sex activist, E.J. Graff, of the Brandeis
5 University wrote:
6 "If same-sex marriage becomes legal, that venerable
7 institution will ever after stand for sexual choice, for
8 cutting the link between sex and diapers."
9 That really goes to the heart of the concern of many
10 people, that redefining it will -- will effectively divorce the
11 institution of marriage from its historic core procreative
12 purposes.
13 The second point, Your Honor, in addition that
14 redefining it would inevitably change it, is that it is not
15 possible to predict with certainty and confidence what that
16 change will beget. It seems simply undeniable that a change
17 that is as profound as this one, I would submit undeniably
18 would be, would have some consequences.
19 But -- and the plaintiffs think that the consequences
20 dominantly will be good consequences. And, again, we respect
21 that point of view, but it's not something that they can
22 possibly prove. And their own expert agrees. Professor Cott,
23 again, said this:
24 "The consequences of same-sex marriage are impossible
25 to know because no one predicts the future that accurately."

1 Andrew Cherlin, who's a sociologist at Johns Hopkins
2 and a supporter of same-sex marriage, has written -- and you
3 will remember his name from the trial, I'm sure. He was the
4 subject of a lot of discussion when Mr. Blankenhorn was on the
5 stand. He's written that:
6 "Predicting the future of marriage is risky
7 business."
8 And he remarked about the unimpressive record of
9 social science researchers in predicting cultural phenomenon.
10 He says:
11 "Often and perhaps even most of the time, they get it
12 right. But sometimes they are spectacularly wrong," as he
13 said.
14 "For example, in the 1930s, every demographic expert
15 in the United States" -- every demographic expert --
16 "confidently predicted a continuation of low birth rates of the
17 Depression. No one forecast the baby boom that overtook them
18 after World War I. Similarly, not a single 1950s or 1960s
19 sociologist predicted the rise of cohabitation."
20 Two extraordinary sociological phenomenon, Your
21 Honor, that no one had a clue was coming.
22 In this circumstance, and we would submit to you --
23 and I would add this because I have heard this and read this
24 more than any three things, three words that I have ever
25 spoken, "I don't know." I don't know how many times, Your
1 Honor, I had wished I could have those words back.
2 (Laughter)
3 THE COURT: Well --
4 MR. COOPER: Because, Your Honor, whatever your
5 question is, I damn sure know, whatever it is.
6 (Laughter)
7 THE COURT: What do you make of Mr. Blankenhorn's
8 statement that when same-sex marriage is legalized that America
9 will be more American or will be closer to the American idea?
10 That was your own expert.
11 MR. COOPER: Yes. Yes, Your Honor. Yes, it was.
12 And I think Mr. Blankenhorn was giving voice to a
13 sentiment. And Mr. Blankenhorn shares that sentiment with many
14 of my friends for the plaintiffs. And I think -- I think he
15 shares that sentiment with many of my fellow Americans.
16 But he still believes that the threat of harm to a
17 central and vital social institution, marriage, and to the
18 interests that he believes that it serves, is too daunting to
19 run the risks of gratifying what would otherwise, for
20 Mr. Blankenhorn, favor, no doubt, as he has said, that, the --
21 the advent of same-sex marriage.
22 And, Your Honor, I believe that there are many who
23 went in the polling place with that sentiment. That's my
24 speculation. That's all it can be.
25 But as Rabbi Michael Learner has said, a well-known

1 person and certainly an advocate of same-sex marriage, there
2 are millions of Americans who believe fervently in equality for
3 gays and lesbians, but who draw the line at marriage. Their
4 hearts are, as I would submit to you, pure, as pure as defined
5 by the plaintiffs. But they still believe this is profound.
6 This could be profound. It could -- it could portend some
7 social consequences that would not be good ones.
8 And, Your Honor, that reality, the reality that I
9 didn't know, because no one can know, Professor Cott doesn't
10 know, Blankenhorn agreed, it's impossible to be completely sure
11 about a prediction of future events. There has never been
12 anyone who knows what tomorrow will bring. But if there's a
13 legitimate and rational basis to be concerned about that, it
14 couldn't be more rational for the people of California to say,
15 We aren't going to run that risk, however we assess it.
16 There's a risk. And we are going to wait. We want to see what
17 happens in Massachusetts. We want to see what happens right
18 here and elsewhere.
19 And in the -- and perhaps Mr. Olson and his clients
20 whose sentiments, you know, are powerful will be able to
21 convince their fellow Californians that, in fact, they're right
22 and this is -- this should happen.
23 THE COURT: A disability, a classification, has been
24 put on marriage which disables people who wish to marry others
25 of the same-sex.
1 In order to disable certain citizens, do you not have
2 to show a correlative benefit to others or to society?
3 And the "I don't know" or "We don't know where its
4 going to lead" answer, is that enough to impose upon some
5 citizens a restriction that others do not suffer from?
6 MR. COOPER: Your Honor, it is if there is a -- if
7 there is a rational basis for that distinction, yes. I really
8 think that really ends up being the bottom line on it.
9 If there is no -- in looking at whatever society's
10 purposes are for marriage, and interests are for regulating and
11 caring about marriage, if there's no basis on which to draw a
12 distinction between one group and another, then the distinction
13 can't stand.
14 But if there is a distinguishing characteristic that
15 is relevant to one of those purposes, then the distinction can
16 stand. And so this -- so, you know, as we have been -- has
17 been our position from the beginning, we don't have to prove
18 that including same-sex marriage within the definition or
19 redefining marriage to include same-sex marriage would visit
20 harm upon the institution and the interests that it serves.
21 We submit to you that is not something that is our
22 burden. And I think that's what your correlative benefit
23 question goes to.
24 Rather, we only have to prove that including same-sex
25 couples would not serve those interests, either at all or not

1 to the same extent.
2 And we believe that, you know, the Supreme Court's
3 case, in particular Johnson against Robison, is particularly
4 specifically on the point of that, and says as much,
5 essentially, in those terms.
6 Your Honor --
7 THE COURT: I'll let you wrap up.
8 MR. COOPER: Yes.
9 The California Court of Appeals, in the Marriage
10 Cases, as I mentioned earlier and as the Court well knows,
11 actually upheld the traditional definition of marriage in that
12 case. And one of the -- one of the points it made, Your Honor,
13 I think, really goes to the heart of the matter, and certainly
14 to the heart of our submission, in that:
15 "It is the proper role of the legislature, not the
16 Court, to fashion laws that serve competing public policies.
17 The legislative process involves setting priorities, making
18 difficult decisions, making imperfect decisions, and
19 approaching problems incrementally."
20 That process is what is at work in this state. And
21 it's at work elsewhere in this country.
22 And, as the court in Glucksberg said, there is a
23 debate about the morals, the practicalities, and the wisdom of
24 this issue that really goes to the nature of our culture. And
25 the Constitution should allow that debate to go forward among

1 the people.
2 Thank you.
3 THE COURT: Thank you, Mr. Cooper.
4 Mr. Olson, why don't we just begin at that point that
5 Mr. Cooper just left off with. And that is, in a sense, isn't
6 the danger, perhaps not to you and perhaps not to your clients,
7 but the danger to the position that you are taking is not that
8 you're going to lose this case, either here or at the Court of
9 Appeals or at the Supreme Court, but that you might win it?
10 And, as in other areas where the Supreme Court has
11 ultimately constitutionalized something that touches upon
12 highly-sensitive social issues, and taken that issue out of the
13 political realm, that all that has happened is that the forces,
14 the political forces that otherwise have been frustrated, have
15 been generated and built up this pressure, and have, as in a
16 subject matter that I'm sure you're familiar with, plagued our
17 politics for 30 years, isn't the same danger here with this
18 issue?
19 REBUTTAL ARGUMENT
20 MR. OLSON: I think the case that you're referring to
21 has to do with abortion.
22 THE COURT: It does, indeed.
23 MR. OLSON: And the cases upon which we rely, in
24 which the courts have responded to the needs of the civil
25 rights of our citizens, have been entirely different cases.

REBUTTAL ARGUMENT / OLSON 3096
1 They have relied on, as we do, fundamental, established
2 constitutional law. Because the argument that Mr. Cooper makes
3 is, essentially, the same argument that was made to the Loving
4 court.
5 Which, by the way, the Loving court unanimously
6 decided to strike down 14 or 15 miscegenation statutes.
7 California had been the first, 20 years before that. When it
8 got to the Supreme Court in Loving, it became unanimous.
9 And we stand here today thinking, how could that have
10 been? In 1967, that's only 40 years ago, we would not -- we
11 would have punished as a felony in the state of Virginia the
12 President's mother and father if they had tried to travel there
13 and be married.
14 The same argument was made to Martin Luther King, and
15 to Thurgood Marshall, and to Ruth Bader Ginsburg. We're
16 talking about fundamental constitutional rights. We are
17 talking about treating people equally. That's not breaking new
18 ground. We're talking about allowing people the same freedom
19 to marry the person that they love, as we have the rest of our
20 society.
21 Now, Mr. Cooper's argument is -- and I know he would
22 like to take back these words, and I know why he would like to
23 take back these words -- "We don't know. We don't have to
24 prove anything. We don't have any evidence." Yet, he relies
25 on persons -- he was reading from articles written by various

1 persons, just a few moments ago from this podium, who did not
2 come into this courtroom and testify under oath and subject
3 themselves to cross-examination by my colleague, Mr. Boies.
4 Some of them didn't come into court because they had been
5 cross-examined by Mr. Boies in their deposition.
6 (Laughter)
7 But you do have to know. You can't take away the
8 rights of tens of thousands persons. Those rights were
9 recognized and did exist in California. I submit that they
10 should have existed before the California Supreme Court
11 decision and before Proposition 8.
12 But you can't come in here and say, "I don't know,
13 and I don't have to prove anything, and I don't need any
14 evidence except for some people writing in books who won't come
15 into court and subject themselves to the judicial process."
16 You asked a very good question. I was about to start
17 with it. We talked about -- Mr. Cooper talks about procreation
18 as the fundamental basis for marriage.
19 And you made the very good point. Well, don't you
20 have to prove that Proposition 8 does something to protect
21 procreation? The channeling, what Mr. Cooper calls the
22 channeling function. Which is a new term for me today. That
23 the State of California is in the marriage business in order to
24 channel us. Or those who are unfortunate enough to live in
25 California get to be channeled.

1 (Laughter)
2 But he does have to prove -- the Romer court
3 specifically says this:
4 "Under the lowest standard of review, you have to
5 prove that you have a legitimate interest and that the object,"
6 Proposition 8 in this case, "advances that legitimate
7 interest."
8 So how does preventing same-sex couples from getting
9 married advance the interest or protect the interest of
10 procreation? They are not a threat to us.
11 What one single bit of evidence that they are a
12 threat to the channeling function? If you accept that
13 California has the right to do that in the first place. And I
14 do not.
15 This is an individual constitutional right. And
16 every Supreme Court decision says that it's a right of persons.
17 Not the right of California to channel those of us who live in
18 California into certain activities or in a certain way.
19 What you do have to do, what you do have to say that
20 Proposition 8 somehow protects this thing that's going to
21 happen.
22 Mr. Cooper finished up by saying, "Well, you have to
23 admit my definition of traditional definition of marriage" --
24 which was not the definition in 14 Supreme Court decisions. It
25 wasn't the definition of Dr. Cott. It wasn't the definition of

1 Dr. Peplau.
2 It -- we had expert witnesses that talked about the
3 history of marriage going far back. Not 30 years, but far back
4 into history what marriage has always been. The Supreme Court
5 said older than the Bill of Rights, older than our political
6 parties. That's not something new. It's marriage. It's not
7 single-sex marriage or interracial marriage or anything like
8 that.
9 Mr. Cooper says you have to accept the fact that --
10 "First of all, you have to accept my definition. It has to be
11 between a man and a woman. Then, if you have a marriage
12 between a man and a man or a woman and a woman, it will change
13 the marriage."
14 Well, of course it will, because you started by
15 defining the term that you wanted to define.
16 What we're talking about here is allowing individuals
17 who have the same impulses, the same drives, the same desires
18 as all of the rest of us, to have a relationship in harmony,
19 stability, and to form a family and a neighborhood, all of
20 those things that the Supreme Court talked about.
21 And, now, tell me how it helps the rest of the
22 citizens of California to keep them out of the club. It
23 doesn't.
24 Now, this so-called deinstitutionalization that
25 Mr. Cooper has talked about a lot earlier, not so much today
1 but he has talked about it, the breakdown of marriage, it turns
2 out that Mr. Blankenhorn talked about that during the trial, as
3 well. And I want to just play -- I'm just going to do two more
4 short clips from Mr. Blankenhorn.
5 Mr. Cooper wanted him to stay as an expert in this
6 case. And we'll accept that because he turns out to be fairly
7 helpful to us.
8 (Laughter)
9 But he talked about this deinstitutionalization of
10 marriage. And if we can put the -- pull the right switches.
11 Hear what he had to say.
13 MR. OLSON: And Dr. Cott pointed out the increase in
14 marriage -- decrease in marriage, the increase in divorce, the
15 increase in cohabitation happened all over the world between
16 1970 and 1985.
17 One of it was the institution of no-fault divorce.
18 New York is considering no fault divorce now. It will be the
19 fiftieth state to adopt no-fault divorce. So much for the
20 channeling function in those fifty states.
21 But the point is that the so-called breakdown of
22 certain aspects of marriage, as Mr. Blankenhorn admits and
23 testifies under oath -- and, good for him, he did come here for
24 cross-examination -- was a product of the breakdown of the
25 heterosexual marriage. It didn't happen because someone in the

1 California -- the California Supreme Court decided that this is
2 a right that cannot be withheld from individuals.
3 As far as raising children in a happy, stable
4 environment, here is the last clip from Mr. Blankenhorn.
6 MR. OLSON: Well, there you have it.
7 (Laughter)
8 There's 37,000 children in same-sex families in
9 California. According to Dr. Blankenhorn, they are better off,
10 perhaps, than in opposite-sex marriages. Now, maybe they are
11 not. But all of the evidence was that they would not be any
12 worse. Several of the evidence -- much of the evidence
13 suggested those children are in happy relationships. And
14 Mr. Blankenhorn also suggested that when marriage is legalized
15 between their parents, they will be better off still.
16 Now, it is important to say another word or two about
17 procreation and whether it's a state's interest. I mentioned
18 this before, but I want to emphasize it.
19 If it's the state's interest in procreation that
20 animates the right to marriage, what if the state changes its
21 mind?
22 There have been cultures throughout the world that
23 have decided, "We've had too much procreation. We have too
24 much population growth."
25 What if the State of California decided ten years

1 from now, "We don't want so many people in California?" Would
2 they be able then -- I don't think anyone here would agree that
3 the state could then cut off the right to marry. Because it is
4 an individual right of privacy, liberty, association. And
5 that's what it is.
6 So the state can't put the switch on and the switch
7 off, because it's not the state's right. It's the individual's
8 right.
9 We mentioned the 14 Supreme Court cases. None of
10 them said, including the one that Mr. Cooper mentioned over and
11 over again, the Maynard case, none of them said it's the
12 state's interest in procreation.
13 And those cases included, where they were talking
14 about the fundamental right to marriage, they talked about the
15 fundamental right to marriage as an individual right in the
16 context of contraception, which is not procreative, interracial
17 marriage, which is neutral on the subject, divorce, which is
18 not channeling somebody into a relationship, mandatory leave
19 for public school teachers, family occupancy of a particular
20 family home, prisoners, and so forth. Abortion even.
21 Including the last case, Lawrence vs. Texas, which talked about
22 it in the context of the rights of homosexuals to seek
23 autonomy, the same right for these decisions just as a
24 heterosexual person may do.
25 And Mr. Cooper twice or three times cited Justice

1 Stevens, the minority in the Bowers vs. Hardwick case. It
2 turns out that Justice Stevens, in his dissent in Bowers vs.
3 Hardwick, is quoted in the majority decision in Lawrence vs.
4 Texas. So the same authority that Mr. Cooper was relying on
5 says this, on page 578 of Lawrence vs. Texas. His dissent in
6 Bowers is placed on the record and a part of the majority in
7 Lawrence.
8 "Individual decisions by married persons concerning
9 the intimacies of their physical relationship even when not
10 intended to produce offspring are a form of liberty protected
11 by the Due Process Clause of the Fourteenth Amendment.
12 Moreover, this protection extends to intimate choices by
13 unmarried as well as married persons."
14 That's the oracle of Justice Stevens, confirming the
15 point of all the witnesses that talked about that in this case,
16 the expert witnesses, Dr. Cott, Dr. Peplau.
17 And so it isn't -- that is not the definition of the
18 institution of marriage. And Proposition 8 isn't changing the
19 institution of marriage. It is correcting a restriction based
20 upon sex and sexual orientation.
21 You asked the question -- I'll be brief on this --
22 what happened in California or throughout the United States?
23 Why have things changed with respect to -- why are we all of a
24 sudden talking about same-sex marriage?
25 Several of our witnesses talked about the fact that

1 the history of discrimination, that no one denies, has
2 improved. It's ameliorated. It's no longer against the law to
3 work for the federal government. It's no longer against the
4 law, in most places, to walk into a bar if you're homosexual.
5 The breakdown, thank God, of some of these barriers
6 has changed people's attitudes. And I'm sure that contributes
7 to people saying, now, well, if that's the case -- and
8 psychiatrists have changed their view about homosexuality.
9 People no longer think it's a disorder, or anything like that.
10 They've explained, and people have begun to understand the
11 differences between various members of society. And we've
12 found out that all of those horrible taboos are not justified
13 in fact. And the stories, some of which were in the ads which
14 were supporting Proposition 8, are no longer true.
15 So, of course, people are thinking, well, if these
16 are our fellow citizens and they don't present a risk to us,
17 they are not damaging, they are just like us, why shouldn't we
18 start talking about marriage?
19 You talked a bit about the Loving case and the change
20 that occurred there. 41 states -- it wasn't just a southern
21 thing. It wasn't just -- just in the south. It was 41 states,
22 at one point, had had a prohibition on interracial marriage.
23 And the proponents of the change in that case said this is
24 going to change the traditional definition of marriage. It's
25 going to weaken marriage. And the Supreme Court brushed that

1 aside.
2 THE COURT: But in 1967, it wasn't 41 states who had
3 those restrictions.
4 MR. OLSON: No. It was about 14 or 15 in 1967.
5 THE COURT: 14 or 15.
6 MR. OLSON: But it had been, at one point, 41 states.
7 THE COURT: All right.
8 MR. OLSON: And California broke the barrier 20 years
9 before Loving.
10 THE COURT: So, some 27 states removed the
11 restriction?
12 MR. OLSON: And that first one, the ice was broken by
13 a court decision --
14 THE COURT: I fully understand. But there was
15 already a tide running, a political tide running with respect
16 to interracial marriage. And, as Mr. Cooper duly commented
17 about the Supreme Court, the Supreme Court took note of that.
18 Now, do we have a political tide here that's going to
19 carry the Supreme Court?
20 MR. OLSON: I believe, Your Honor, that there is a
21 political tide running. I think that people's eyes are being
22 opened. People are becoming more understanding and tolerant.
23 The polls tell us that. That isn't any secret.
24 But that does not justify a judge in a court to say,
25 "I really need the polls to be just a few points higher. I

1 need someone to go out and take the temperature of the American
2 public before I can break this barrier and break down this
3 discrimination."
4 Because if they change it here in the next election
5 in California, we still have Utah. We still have Missouri. We
6 still have Montana. This case is going to be in a court. Some
7 judge is going to have to decide what we've asked you to
8 decide.
9 And there will never be a case with a more thorough
10 presentation of the evidence. There will never be a case with
11 such a wildly crazy system that California has. There will
12 never be a case more like Romer, where the right existed and
13 then it was taken away. There will never be a case against the
14 background.
15 The Supreme Court really made that step that you are
16 talking about, in Lawrence vs. Texas. And that overruled
17 Bowers vs. Hardwick, which was only 20 years earlier. But that
18 broke the barrier by saying that the behavior, the conduct
19 between the individuals is a right of privacy, and it's
20 protected by the Constitution.
21 And the right of privacy is the same right that we're
22 talking about in the context of marriage. And I don't think
23 that is justification for waiting any longer.
24 And, as I said, the most compelling thing that I have
25 read on that subject was the arguments that were being made to
1 Martin Luther King saying, you know, "You ought to ease up.
2 The people aren't ready for these kind of changes. There's
3 going to be a backlash."
4 And his letter from a Birmingham jail explaining why
5 he could not wait to press the civil rights of his fellow
6 citizens is as compelling a statement on that subject that's
7 ever been written.
8 Now, we talked a little bit about -- oh, Mr. Cooper
9 came up with something that I hadn't really heard about until
10 the closing argument in this case. I really don't remember the
11 evidence. "The threat of irresponsible procreation."
12 I tried to figure out what that means, because the
13 clients I represent don't present a threat of irresponsible
14 procreation. They are interested in getting married to someone
15 of the same sex. Mr. Cooper acknowledged they are not a threat
16 of irresponsible procreation.
17 On the other hand, heterosexual couples who practice
18 sexual behavior outside their marriage are a big threat to
19 irresponsible procreation, if that's what it's all about. So
20 if --
21 THE COURT: Heterosexuals that have led to the
22 deinstitutionalization of marriage, and heterosexuals ...
23 (Simultaneous colloquy.)
24 MR. OLSON: ... that's right. And people will run
25 out, and, yeah, "Well, that's it. That's it."

1 But we don't have the proof of it. And we don't know
2 what will happen. And the experts said that it wouldn't
3 happen. And the experts said that marriage would be stronger.
4 But the one thing we do know, unless you believe
5 that, that allowing them into the institution, you're going to
6 have all these heterosexual people running out and engaging in
7 extramarital conduct, that is not going to happen. That is not
8 the evidence in this case. And just because a lawyer says it
9 in here, doesn't mean it's true.
10 We have evidence. We have a three-week trial that
11 demonstrates it.
12 We had a short discussion about the motivations of
13 the voters. You asked a question.
14 THE COURT: Right.
15 MR. OLSON: And was -- was the procreation protection
16 goal a part of why the voters voted for Proposition 8?
17 Mr. Cooper cited two examples. Well, he cited three.
18 The voter pamphlet. And I'm going to come back to that. He
19 cited PX97 and PX27.
20 While I was sitting here, we looked at those
21 exhibits. And they do have to do with men and women, but they
22 don't mention procreation. So that wasn't put before the
23 voters in those two documents.
24 I hope I'm not mistaken, but I'm quite certain that
25 we looked at those, and that's the answer to that.

1 As far as the ballot, the official ballot pamphlet is
2 concerned, here is the argument. This, I think, was Exhibit 1,
3 Exhibit 1 in this case. And here's the -- there's -- there's
4 about six paragraphs of arguments about why Proposition 8
5 should be adopted.
6 I just did a hurried look. I couldn't find the word
7 "procreation." I could find the words "activist judges."
8 (Laughter)
9 But the words that I found the most were "protect our
10 children." They are in there about five or six times in those
11 four short paragraphs. Protect our children from learning that
12 gay marriage is okay. That is to say that gay people are okay.
13 The motivation for the adoption, if there's one thing
14 that would have more significance than anything else, all of
15 the advertising, all of the advocacy or anything, it's the
16 argument that the proponents made and put before the voters in
17 the hands of every single voter.
18 I submit that that is the kind of discriminatory
19 animus -- I'm not projecting an evil motive. I'm simply
20 saying, when you're projecting on a group of people that they
21 are different, and you don't want your children to know about
22 them, you certainly don't want your children to think they are
23 normal, that is what animated Proposition 8. And that's the
24 best evidence of it.
25 Now, the trial. The trial -- we relied on a

1 definition of marriage, as I pointed out, that was supported by
2 14 Supreme Court decisions. I've said them over and over
3 again. Privacy and association and liberty, and that sort of
4 thing.
5 Mr. Cooper has been mentioning some Appellate Court
6 decisions. With all due respect, the 122-year history from the
7 United States Supreme Court outweighs that.
8 We have the evidence of the plaintiffs and some other
9 witnesses during the trial talking about what marriage meant to
10 them and what it meant to be denied marriage. That was pretty
11 powerful evidence. We didn't have anything on the other side.
12 And then we had eight witnesses who are experts, the
13 best ones we could find in the world, on the history of
14 marriage, marriage itself, the stigma caused by discrimination,
15 the emotional damage caused by discrimination on the basis of
16 sexual orientation.
17 Immutability, we had all kinds of evidence about
18 that. I don't know how my opponent can stand up in here and
19 say that there was evidence on the other side. There wasn't
20 evidence on the other side.
21 He said it's a matter of choice. Well, it is not a
22 matter of choice. It may -- there -- some people may change,
23 but it is a sexual identity that most people have or don't have
24 one way or the other. And the experts testified that it wasn't
25 an immutable characteristic. And political power, anyway.

1 That was all of the evidence in this case: Supreme
2 Court decisions, testimony by the people affected by
3 Proposition 8, and eight of the leading experts in the world.
4 And then there was Mr. Blankenhorn, who really sort
5 of came over to our side.
6 (Laughter)
7 But, on the other side of that, if you discount
8 Mr. Blankenhorn, there is nothing. This is a trial where all
9 of the evidence was supported on one side.
10 With respect to immutability, Mr. Cooper quoted the
11 High Tech Gays case from the Ninth Circuit. I must have heard
12 that phrase six or eight times during his closing argument.
13 The High Tech Gays case was in 1990, I think it was.
14 It was -- it relied on Bowers vs. Hardwick, which the Supreme
15 Court specifically reversed and overruled.
16 Bowers vs. Hardwick isn't anything that you can rely
17 on, in the Ninth Circuit or anywhere else. The High Tech Gays
18 case was superseded by Hernandez-Montiel, which is a 1999
19 decision. And on page 1093, I'll just read one sentence.
20 "Sexual orientation and sexual identity are
21 immutable. They are so fundamental to one's identity that a
22 person should not be required to abandon them."
23 That, if we're going to have a Ninth Circuit
24 precedent that would be guidance for Your Honor, that's the
25 case.
1 The standard of review, I think I will skip that
2 over. I think it's important for me to finish to talk about
3 what is happening here.
4 What is happening here -- and it affects the standard
5 of review because we think it's the Court's strict scrutiny or
6 level of higher scrutiny. You asked Mr. Cooper the question:
7 Isn't it a gender-based distinction? And he acknowledged that
8 it is.
9 Your choice of your marital partner is dependent upon
10 their gender. A certain number of people are disqualified from
11 your freedom of choice because of their gender. That's gender
12 discrimination. And the choice of gender is driven by sexual
13 orientation, so it's discrimination on that basis.
14 And it does have to do with the -- if you believe
15 that it's a fundamental right to marriage, not fundamental
16 right to be married in June or fundamental right to be married
17 to certain types of people, if it's a fundamental right to
18 marriage, it's strict scrutiny.
19 But, in any event, you have to have a reason. And
20 you have to have a reason that's real. Not a post hoc
21 justification. Not speculation. Not built on stereotypes.
22 And not hypothetical. That's what the Supreme Court decisions
23 tell us.
24 We don't have that here. We have a decision that
25 takes -- and there isn't any question -- a group of people who

1 have been victims of discrimination, who are a discreet
2 minority, who have identifiable characteristics, their sexual
3 orientation, and we want to foreclose them from participating
4 in the most fundamental relationship in life.
5 Now, rational basis, strict scrutiny, or some kind of
6 intermediate scrutiny tells you those are basic facts. You are
7 discriminating against a group of people. You are causing them
8 harm. You are excluding them from an important part of life.
9 And you have to have a good reason for that.
10 And I submit, at the end of the day, "I don't know"
11 and "I don't have to put any evidence," with all due respect to
12 Mr. Cooper, does not cut it.
13 It does not cut it when you are taking away the
14 constitutional rights, basic human rights and human decency
15 from a large group of individuals, and you don't know why they
16 are a threat to your definition of a particular institution.
17 The combination, as I said before, of those 14
18 Supreme Court decisions that tell us how valuable marriage is,
19 the Romer case that says you can't take away rights and make
20 them unconstitutional to -- impossible to recover except by
21 amending your state constitution, and the Lawrence case that
22 says that the sexual orientation of individuals in their
23 private conduct is a protected right, you cannot then, in the
24 face of all those decisions by the United States Supreme Court,
25 say to these individuals, "We are going to take away the

1 constitutional right to liberty, privacy, association, and
2 sexual intimacy that we tell you that you have, and then we
3 will now use that as a basis for not allowing you the freedom
4 to marry."
5 That is not acceptable. It's not acceptable under
6 our Constitution. And Mr. Blankenhorn is absolutely right.
7 The day that we end that, we will be more American.
8 THE COURT: Very well. Thank you, Mr. Olson. And
9 with that, the matter will be submitted.
10 Thank you very much, counsel. I appreciate the
11 advocacy on both sides. It's been splendid, both the written
12 advocacy, oral advocacy, and the presentations that you've
13 made.
14 So, if there is nothing further, Mr. Cooper?
15 MR. COOPER: Nothing.
16 MR. OLSON: No, Your Honor. Thank you so much.
17 THE COURT: Very well. The matter is submitted.
18 MR. COOPER: Thank you, Your Honor.
19 (At 4:00 p.m. the proceedings were adjourned.)
20 - - - -
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1 I N D E X
2 Closing Argument by Mr. Olson 2962 13

Closing Argument by Ms. Stewart 3008 13
3 Closing Argument by Mr. Cooper 3027 13
Rebuttal Argument by Mr. Olson 3095 13
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1
3 CERTIFICATE OF REPORTERS
4 We, KATHERINE POWELL SULLIVAN and DEBRA L. PAS,
5 Official Reporters for the United States Court, Northern
6 District of California, hereby certify that the foregoing
7 proceedings in C 09-2292 VRW, Kristin M. Perry, et al. vs.
8 Arnold Schwarzenegger, in his official capacity as Governor of
9 California, et al., were reported by us, certified shorthand
10 reporters, and were thereafter transcribed under our direction
11 into typewriting; that the foregoing is a full, complete and
12 true record of said proceedings at the time of filing.
13
14 /s/ Katherine Powell Sullivan
15
Katherine Powell Sullivan, CSR #5812, RPR, CRR
16 U.S. Court Reporter
17
18
19 /s/ Debra L. Pas
20 Debra L. Pas, CSR #11916, RMR CRR

U.S. Court Reporter
21
22 Wednesday, June 16, 2010
23
24
25

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Pages 2953 - 3115

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER

Reported By: Katherine Powell Sullivan, CRR, CSR 5812

For Plaintiffs: GIBSON, DUNN & CRUTCHER LLP

GIBSON, DUNN & CRUTCHER LLP

GIBSON, DUNN & CRUTCHER LLP

BOIES, SCHILLER & FLEXNER LLP

BOIES, SCHILLER & FLEXNER LLP

BOIES, SCHILLER & FLEXNER LLP

For Plaintiff- CITY AND COUNTY OF SAN FRANCISCO

For Defendant MENNEMEIER, GLASSMAN & STROUD

For Defendant STATE ATTORNEY GENERAL'S OFFICE

For Defendant- COOPER & KIRK

ALLIANCE DEFENSE FUND

ALLIANCE DEFENSE FUND

ALLIANCE DEFENSE FUND

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

For Dennis ANDREW PERRY PUGNO ESQUIRE

For Proposed ADVOCATES FOR FAITH AND FREEDOM

2 JUNE 16, 2010 10:03 A.M.

4 THE CLERK: Calling Civil Case 09-2292, Kristin

5 Perry, et al. versus Arnold Schwarzenegger, et al.

6 Appearances, Counsel, please.

7 MR. OLSON: Good morning, Your Honor.

8 Theodore B. Olson, Gibson, Dunn & Crutcher, on behalf

10 THE COURT: Good morning.

11 MR. BOIES: Good morning, Your Honor.

12 David Boies, of Boies, Schiller & Flexner, on behalf

14 THE COURT: Good morning.

15 MR. BOUTROUS: Good morning, Your Honor.

16 Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher,

17 also for the plaintiffs.

18 THE COURT: Good morning.

19 MR. DUSSEAULT: Good morning, Your Honor.

20 Christopher Dusseault, of Gibson, Dunn & Crutcher,

21 also for the plaintiffs.

22 MR. TAYRANI: Good morning, Your Honor.

23 Amir Tayrani, from Gibson, Dunn & Crutcher, also for

25 MR. GOLDMAN: Good morning, Your Honor.

1 Jeremy Goldman, from Boies, Schiller & Flexner, on

2 behalf of the plaintiffs.

3 MS. STEWART: Good morning, Your Honor.

4 Therese Stewart on behalf of the City and County of

6 MR. HERRERA: Good morning, Your Honor.

7 City Attorney Dennis Herrera on behalf of the City

8 and County of San Francisco.

9 THE COURT: Good morning.

10 Any other appearances on the plaintiffs' side?

11 All right. Mr. Cooper.

12 MR. COOPER: Good morning, Mr. Chief Judge.

13 Charles Cooper, with Cooper & Kirk, for the

15 THE COURT: Good morning.

16 MR. THOMPSON: Good morning, Your Honor.

17 David Thompson, of Cooper & Kirk, for the

19 MR. NIELSON: Good morning, Your Honor.