The trial has paused with closing arguments coming up soon, but Perry v. Schwarzeneggar has been a rollercoaster of engaging legal jousting, all of it favoring a ruling that strikes down the constitutionality of Prop 8.

Tonight the National Center for Lesbian Rights’ attorneys who have been covering the event on site, Shannon Minter and Chris Stoll, join us to review this week’s testimony, which included a complete meltdown by pro-Prop 8 witness David Blankenhorn, and discuss what key issues have been presented and what lies ahead.

Join us in the CoverItLive chat room.

I’ll post interesting remarks by the duo here during the liveblog.

Is there a point to discussing the details of the case if its merits are not going to influence the way the SCOTUS justices will rule?

Chris Stoll: There is a protective order in the case that would prevent some parts of some depositions from being released, but other than that, I don’t know of any restrictions on the plaintiffs’ releasing them if they decide to.

Minter: But I think that reflects the fact that it is no longer possible to find credible academics or scholars who will support the arguments made by the proponents.

Lurleen: Hi All, Here’s my Q: will we be able to watch/read depositions not introduced into evidence?

Minter: That is a great question about the depositions not entered into evidence. They will not be part of the official record in the case, but they made be made available in some other way. I don’t believe they are privileged or confidential. Chris, is that your understanding?

Abigail Jensen:  It’s hard to believe the incompetence of the defense attorneys in selecting “expert” witnesses.

Minter: Abigail, I agree,, I was absolutely stunned that the proponents did not do a better job of vettting their experts, who ended up sounding more like experts for the plaintiffs!

Minter: But I think that reflects the fact that it is no longer possible to find credible academics or scholars who will support the arguments made by the proponents.

Chris Stoll: I think the defense had a hard time finding any qualified people who were willing to testify for them. They had a big problem in that the overwhelming scholarly consensus in multiple fields is that marriage equality would help LGBTs and their families.

Lurleen: Didn’t GLAD’s DOMA case (Gill) get going much earlier than Perry? Why the slower timeline for Gill? Because Perry doesn’t have to jockey with the fed gov’t?

Minter: In GLAD’s case (Gill), there was a whole lot of initial wrangling over whether the plaintiffs had exhausted all their administrative remedies. GLAD did a great job of handling all that, but it took a lot of time to get sorted out.

Chris Stoll: The timeframe is largely up to the courts. Judge Walker moved his case along amazingly fast for a federal court. But there will also be appeals in both cases that will affect the timing of any possible action by the Supreme Court. The Ninth Circuit, which is where Perry will go, can be slow so it’s still possible either case could be first in line.

Minter: The plaintiffs case was by no means built on emotionalism (although certainly some of the testimony by the plaintiffs was quite moving). To the contrary, the experts on the plaintiffs’ side presented objective evidence and data and were impressively steeped in the most current research in their respective fields.

Minter: As to why most of the other side’s experts were withdrawn, the proponents claimed they were afraid to testify because of the possibility that the trial would be broadcast, but that justification lost credibility when the Supreme Court quickly moved to stop any broadcasting.

Chris Stoll: I think it’s pretty clear that the defense dropped 4 experts because of the content of their testimony. They claimed that it was because the experts did not want to appear on video, but they didn’t try to put them on after the Supreme Court stopped the video broadcast. And the bits that were played from the non-testifying experts were very damaging to the defendants’ case.

Minter: Showing that Prop 8 was the product of hostility toward gay people is very helpful to the plaintiffs’ case, but it’s by no means necessary for the plaintiffs to win. Laws that require the government to discriminate against historically targeted minorities violate the federal constitution even if those who passed them claim they did so without any animus or malice.

Chris Stoll: The expert testimony can only help the plaintiffs’ case on appeal. But the most important issues in the case are issues of law, and appellate courts have a lot of leeway in deciding those issues no matter what the evidence shows.

Pam Spaulding: Shannon or Chris: What kind of closing argument can you imagine the Prop 8 side will deliver? It’s going to be, to say the least, entertaining – full of hyperbole, scare tactics, baseless arguments…

Chris Stoll: Pam, I think the closing arguments from ProtectMarriage will be more of the same: the people have the right to decide on the def of marriage, and it’s not irrational or bigoted for them to decide same-sex couples should be excluded. We’ve heard this broken record many times before . . .

Pam Spaulding: Has the mainstream media presence died down in the courtroom, or have they remained engaged in this story?

Minter: The mainstream media in CA has covered this case very closely. There have been daily stories in the LA Times, SF Chronicle, San Jose Mercury News. And the SJ Mercury News live blogged the trial every day.

Minter: As to what will happen in SCOTUS, there is no question that we have the law and evidence on our side. The proponents could not present ANY evidence that letting ss couples marry was harmful in any way, or ANY legitimate reason to exclude ss couples from marriage.

More below the fold…

Minter: We absolutely have to get Kennedy to win in the Supreme Court.

Chris Stoll: The heartbreaking NY decision is an example of how even a well-presented case can lead to disappointment. But in Perry we have a fairly unique set of facts where marriage was legal for a time and then the voters took that constitutional right away from people. It’s very similar to the Amendment 2 case from Colorado, where the U.S. Supreme Court did the right thing and said the voters can’t do that. I believe and hope they will do the same thing with Prop 8.

Pam Spaulding: I’m trying to envision what the PR campaign will be from NOM and the rest if the ruling doesn’t go their way. Since faith really has been moved to the side here, it’s going to be difficult to say they are being persecuted based on religion.

Autumn Sandeen: Shannon or Chris, do you believe it will matter — the legilation submitted yesterday by State Sen. Leno on “Bill Strengthening Religious Freedoms for Clergy”? (

Minter: The bill moving through the CA legislature is helpful becuase it clarifies that religious marriage and civil marriage are entirely separate. That is already the law, but so many people are confused about that.

[Comment From Scott Bouza]

How about the thought that the defense intensionally threw the case and will accept losing CA to “save” the rest of the country and DOMA?

Minter: I am 100 % certain the defense did not throw the case. They were doing their best, and they desperately want to win this case. They just don’t have much to work with.

Chris Stoll: @Scott It’s a nice thought that the defense has given up on CA, but I’ve never seen them give up on anything. I am sure they intend to keep appealing this as long as they can.

Lurleen: Will the advent of marriage in DC have more of an effect on the SCOTUS than, say, its advent in Iowa or CT, etc.?

Minter: Yes, the Supreme Court could rule narrowly by only reaching the issue of whether Prop 8 – based on all of the unique circumstances in CA — is unconstitutional.

Chris Stoll: If a ballot initiative in CA repeals Prop 8, marriage will again be legal, and the Perry case probably will be dismissed as moot.

Pam Spaulding: @ Chris, but what won’t be moot are those transcripts of the bogus and credibility challenged testimony in this trial.

Chris Stoll: Yes Pam this has been an unbelievable public education moment no matter what happens. I am so happy the transcripts are available for people to read, study and write about for years to come.

Minter: The proponents have tried to distract the public’s attention away from their complete inability to present any credible evidence by painting themselves as victims of alleged harassment and intimidation. They have also tried to suggest that Judge Walker is biased, but anyone who watched that trial could tell you that Judge Walker bent over backwards to be fair to the proponents.

Minter: The defense was trying, their case is just super weak. Maggie Gallagher and others of her ilk are trying to create an excuse to justify a possible loss by blaming it on Judge Walker. They are clearly trying to paint Judge Walker as biased — even though there is NO basis for that in reality.

Chris Stoll: Judge Walker handled this case masterfully. He was in control the entire time, and maintained a respectful, friendly attitude with the lawyers and witnesses on both sides. He even came off the bench at the end and shook hands with every lawyer in the room.

Minter: Depending on how broadly the court rules, a loss in the Supreme Court could be devastating. There is no doubt about that. That is why the stakes in this case are so incredibly high and gut wrenching.

Pam Spaulding: While it is dangerous for it to go to SCOTUS, the block-by-block case built that there is no constitutional reason to deny ssm will make it difficult for SCOTUS to rule against us without completely torching the constitution because of naked bigotry, not the law.

Chris Stoll: Whoever asked, yes the court of appeals or the Supreme Court could issue a stay if Judge Walker does not stay his ruling.

Chris Stoll: In the unlikely event that nobody appealed a ruling, Judge Walker’s order would become final and the state would have to comply with it. But I am sure whoever loses will appeal.

Minter: Olson/Boies were an incredible team. I can safely say that no other gay rights case has been resourced the way this case was resourced. It was an amazing thing to watch.

John:  Was Peter LaBarbera called to the stand? (for entertainment purposes only, of course)

Chris Stoll: No Peter LaBarbera, but we did get guest appearances on video from Rick Warren and Tony Perkins.

Minter: I think the argument with the greatest chance of success is that the unique circumstances presented by Prop 8 violate the court’s prior holding in Romer v. Evans. This is the first time a state has recognized that a group is entitled to marry, and then stripped the right away by creating “an exception to equal protection.”

daftpunkydavid:  thanks minter and lorion but i meant of the arguments we are making (a fundamental right, not bad for society, we are a suspect class, etc… not which level of scrutiny) which is the most difficult to argue?

Minter: As for other arguments, SCOTUS has not recognized any new suspect classifications in many years, and many commentators think they are unlikely to do so in the future. The more conservative members of this Court also do not like the notion that the constitution protects “fundamental rights” (such as the right to marry) that are not specifically spelled out in the text of the constitution.

Scott Bouza:  May have been asked. If SCOTUS rules for ssm will that mean that DOMA is dead due to how the case was framed as violating the US Constitution?

Chris Stoll: @Scott — Great question. What a S.Ct. ruling would mean for DOMA, DADT, etc., depends on their reasoning in deciding the case. It’s conceivable that a broad ruling would spell trouble for those laws as well, but the narrower theory that Shannon talked about earlier might not necessarily affect other laws.

Minter: We don’t have to convince the Supreme Court that sexual orientation is a suspect classification to win.

Minter: Pam, you asked about closing arguments a while ago. I think we will see the defense arguing that all of the evidence presented is irrelevant, that the burden is on the plaintiffs to show that Prop 8 is not supported by any conceivable legitimate purpose, and that promoting what they believe is the “ideal” family for children is a legitimate purpose.

Minter: The proponents know they got smashed on the evidence, so they are now trying to say that the evidence is not relevant and that this case only presents purely legal issues.

Minter: Pam, you also asked awhile back about David Blankenhorn’s demeanor. I have never seen an expert become so agitated or behave so petulantly. It was really uncomfortable watching him.

Pam Spaulding: Were the pauses between answers as long as they seemed? The judge was clearly not pleased.

Minter: And yes, the pauses in Blankenhorn’s testimony were endless! He spent so much time saying things like, “I know exactly what I want to say, but you won’t let me say it.” Not kidding.

Minter: This is ultimately not just about marriage, but as one of the experts said, our ability to imagine our possible lives without the terrible damage and limiations imposed by prejudice and inequality.

Pam Spaulding

Pam Spaulding