Davina Kotulski

Prop 8 Trial: Day 1 Recap

Filed By Davina Kotulski | January 12, 2010 9:30 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: California, gay marriage, marriage equality, Prop 8, Prop. 8, same-sex marriage, Ted Olson

Okay, I was blogging, tweeting, and facebooking for 8 hours yesterday and, damn, my hand hurts. But I'm willing to go the extra mile for equality.

I woke up yesterday morning at 4:30AM to support my princess bride, Molly McKay, in her dream of a 6:30 AM Vigil for Marriage Equality outside the federal building. I have to say while I was cranky and a bit resistant when I saw that there were already dozens of people, I was delighted. When we were surrounded by at least 200 advocates of equality only 30 minutes later I was inspired.

A vigil, I was reminded, is a gathering together to watch, to be awake, to be aware and today's rally was different. It was refreshingly soft. Hope was palpable and it was a collaborative coming together of our diverse LGBT community with our devoted straight allies. There were only 3 anti-gay protestors. That helped too.

I was stationed for eight hours in the media overflow room, the only place to watch the court proceedings if you didn't have a media pass to the court room.

The trial started with the announcement that there was a stay on YouTube videostreaming the trial until Wednesday at 4:00 PM, which is why I can't feel the fingers on my right hand. I wanted to keep my peeps who had to work aware of what was happening.

"Even convicted murders and child abusers in California enjoy the freedom to marry."

Ted Olson, a conservative Republican who sincerely gets that marriage equality is a civil rights issue, made his opening remarks about why he believes Prop 8 is unconstitutional.

"This case is about marriage and equality. Plaintiffs are being denied the right to marry and under the law."

"The right to marriage is one the most vital personal rights".

"Marriage is a basic civil right."

"Marriage is the most important relationship in life and of fundamental importance of all individuals."

My earlier post covered more of Olson's arguments for marriage equality for same-sex couples.

Olson said that opponents of Proposition 8 will argue these three points:

  1. Marriage is vitally important in American Society.
  2. Denying same-sex Prop 8 causes grievous harm against gay and lesbian individuals and adds another chapter of discrimination and suffering.
  3. Prop 8 perpetrates immeasurable harm for no good reason.

Tell 'em You Believe in Biblical Marriage

Attorney Charles Cooper took the floor and began making opening arguments for supporters of Prop 8. That's when the giggling started. Cooper especially tickled the funny bones in the overflow room when he stated that same-sex marriage would lead to group marriage because bisexuals would be allowed to simultaneously marry one man and one woman of their choosing.

Not sure how this at all logical and it's definitely not what we've seen in the Netherlands which has had same-sex marriage for close to a decade. Or in Massachusetts, where same-sex couples, not triads, have been tying the knot for close to 6 years. It's certainly not the case in South Africa, Spain, Belgium, Canada or Norway where same-sex couples have equal access to civil marriage.

But why tell the truth when you can make stuff up that scares the hell out of less informed people who believe what they are told in church. More about that later.

He also stated that same-sex marriage harms heterosexual marriage and increases the divorce rate. Umm, google Massachusetts and divorce rate and you'll find that the first state to allow same-sex couples to marry has the lowest divorce rate in the country. But again, why use facts when scare tactics are so much more effective and motivating your base.

Cooper asked "Will this institution remain a pro-child institution or will it be a private relationship that provides couples with personal fulfillment, companionship, and expressions of love?"

Why not all of the above? Marriage should be about personal fulfillment, companionship, and expressions of love what a wonderful environment for adults who them choose to bring children into this world into these kinds of self-actualized, loving families

No on 8 first witness

David Boies calls Jeff Zarrillo to the witness stand.

"Marriage is the reason we are here today." He says.

Boies asks him, "Do you believe one's capacity to love and be committed to another individual will grow and expand because of marriage."

"I would be able to partake in family gatherings, friends' and work functions as a married individual and have the pride of being able to be married. When someone is married, whether it's an introduction to a stranger, or someone noticing my ring, it says these individuals are serious, they are committed to another, they have taken that step to be in a relationship that one hopes last the rest of their lives.

The witness is asked if he and his partner have considered having children?

"Paul and I believe it is important to be married first. It will afford us protections for our child."

Why have you not registered as domestic partners? Boies asks.

"Domestic partnership would relegate me to second-class citizenship. It does not give us due respect."

Jeff says "Discrimination, whether directly or indirectly is pervasive, especially after Prop 8. Prop 8 has emboldened other states to take these kinds of actions. You can't turn on the TV, read a blog, or open a newspaper without seeing something about this issue. There are daily reminders of what I can't have."

Then they turned on the TV and showed us several Yes on 8 videos, but not without protest.

It was not disclosed Prop 8 supporters argued.

Boies interjects. Exhibit 99, the one we played, was disclosed.

But Exhibit 401, the one they want to show next, they did not have prior notification.

"401 is from the campaign featuring Ron Prentiss. We want to play it." Boies urges, stating that it's not a secret it was used in the campaign.

Defenders of Prop 8 say they are "surprised" by Boies wanting to show this and ask that it not be played because it causes prejudice.

But Judge Walker says show it.

Turns out Exhibit 401 was a 5-10 minute long video shown in churches aimed at Christians to get them to vote to take away the marriage rights of same-sex couples. It said things like "Christians are walking in fear. If someone says they believe in gay marriage, say you believe in Biblical marriage. Stand up like Jesus Christ. Go to the polls and vote yes on Prop 8."

Next is Exhibit 350 - The Gathering Storm Video.

They want to introduce it as evidence, but there appears to be a question of it's relevance. The Yes on 8ers don't want it shown.

They also showed these ads as evidence of discrimination showing that the "protect our children" message of Prop 8 unfairly stigmatizes and hurts gay people.

Gay marriage has everything to do with schools

It's already happened!

Paul Katami is called to the stand.

During the cross examination the defense attorney for Prop 8 talks about the progressive school in San Francisco where parents, not teachers, organized a field trip to take their children and any child with parental permission to see their school teacher get married at San Francisco City Hall. It was a parent-approved, parent organized outing. Not the school, not the teacher.

The Yes on 8 side used this parent-approved outing to say "See, it's already happened in California, first graders are being taught about gay marriage in school."

Yes, because their parents wanted them to learn about it and it was a private, not a public school. I know, because one of my friends was one of the parents that organized the event. She feels sick that they twisted this to strike fear into the hearts of other parents who didn't have all the facts.



I'm a 45 y.o. woman and I don't have a word to describe my relationship.

Kristen Perry is called to the stand. Here's a transcription summary of Perry's testimony.

I'm a plaintiff in this case because I want to marry the woman that I love and right now we can't get married.

Sandy Stier, 47 y.o. plaintiff and fiancé of Kristin Perry, grew up on a farm in south Iowa.

"Our family is a blended family. We each bring two biological children to our family.I'm a plaintiff in this case because I want to marry the woman that I love and right now we can't get married."

"Marriage is about making a public commitment to the world, to your wife, to our friends and our family. To me, it's the way we tell them and each other that this is a lifetime commitment. It's so different from domestic partnership."

Last witness for the day is called to the stand, Professor Nancy Cott, a historian at Harvard University. She's published 8 books including -- Public Vows.

Cott begins to lay the foundation for how important marriage is to all people in society and emphasizes that marriage is an important social rite of passage, a fundamental civil right, and that in opposition to what the Yes on 8ers are saying, there is no one definition of marriage throughout history or across cultures.

"In our folk tales, songs, at least since the rise of the novel, marriage has been the happy ending to the romance, the principle happy ending. That kind of culture polish on marriage on the past century has been forwarded by visual imagery, the rice, the white dress, the happy couple parading down the aisle as a destination to be gained by a couple who loved one another."


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Thank you so much for doing this for the rest of us. I live in Mass where we have Same Sex marriage and I have performed them myself and I hope that this case goes well for us because not only will this help people in California but it will help the entire nation.

Angela Brightfeather | January 12, 2010 11:30 AM

Despite my previous comments on Bilerico about SSM dominating the GLBT political situation and drawing from things like ENDA, I do believe that there is a time and place for everything and now is the time to pay attention to this case because unlike other cases, it will set a standard and put to rest many of the arguments in the GLBT community about what comes next.

I have always been a proponent of SSM and for no other reason this is a monumental case because it will set our priorities for the next year at the very least and perhaps the standards for marriage for the entire future. So this is very important and demands our full attention.

I am fully willing to say that this is the time and place to set the course for SSM and it will also indicate exactly how deeply entrenched religion has invaded the Constitution and thrown the forces of equality and common sense on the fires of inequality and discrimination that has been seeping into our system like a cancer. It is the first chance that I have seen in my lifetime, for our judicial system to clearly make the statement that church and state are not the same and are separate when it comes to treating all people fairly and equally and that our political system is geared for people in America and not the Pope in Rome. It is also a monumental opportunity to tell the religious zealots on the far right to shut up and mind their own business and get out of our lives unless we want them in our lives.