David Boies: Prop 8 Trial Establishes as “Matter of Fact” that Marriage Equality Doesn’t Hurt Straight Marriage
The lawyers for the plaintiffs in Perry v. Schwarzenegger trial had a conference call to preview what they will say in next week’s closing arguments (which Teddy, bmaz, and I will cover from the courthouse).
The most interesting response from the legal team came in response to questions about the defendants’ complaints about having a trial and their efforts to withdraw almost all of their “expert” witness testimony.
In response to that question, David Boies engaged in a bit of trash-talk, noting how much of their witnesses’ testimony either contradicted itself or ended up endorsing key claims made by the plaintiffs.
Boycotting a trial almost never a winning strategy. They identified 8 experts. What happened is that their experts broke down, either at deposition or at trial. They tried to come up with the evidence, they knew they were required to come up with evidence. They tried to build that trial record and they simply failed. They didn’t fail because they’re bad lawyers, they failed because there isn’t any evidence to support the argument they’re advocating.
Ted Olson answered the question, first of all, noting that the defendants’ witnesses couldn’t hold up under Boies’ cross-examination. But he also emphasized the audacity of spending tens of millions of dollars to convince Californians to deprive a class of people of a fundamental right, but then saying they didn’t want to defend the same arguments in an independent court of law.
With respect to their complaints about the trial, I find it ironic that people that spent $40 million dollars to pass Prop 8 suddenly didn’t want to defend it when David Boies was going to challenge their witnesses. … Trials are pursuits of justice. That is how we resolve things in this country, particularly when there’s a constitutional matter. So for the proponents of Prop 8 who convinced millions of Californians, to take away rights of portion of Californians. To say, “We don’t want to defend what we did in trial of independent American judiciary” is audacious, is the best thing I can say about it.
But the discussion was perhaps presented most simply when Boies explained the value of getting the defendants’ witnesses to agree with key aspects of the plaintiffs’ arguments over the course of the trial. Boies noted that the trial record demonstrates as “a matter of fact” that there is no harm to heterosexual marriage from permitting gay men and lesbians to marry.
The beauty of having it play out, as Boies notes, by having the defendants’ witnesses agree with the plaintiffs “as a matter of fact” is that it really works toward cutting the guts out of defendants’ arguments here and all the way up.
Well, like I said, there was some trash-talking. But he was more polite than THAT.
The defense knows that what he meant is what I said.
But Boies’ kind of understatement’s why he’s David Boies and I’m unemployed.
There are all kinds of flavors of trash talk.
Some involve the creative use of profanity, references to the opponent’s ancestry, and casting graphic aspersions on some aspect of the opponent’s character. Other kinds of trash talk involve footnotes, twisting the opponent’s words back on him/her, and quietly but devastatingly dismantling the foundations upon which the opponent plans their attacks.
Both kinds, though, boil down to the same thing.
You can say it in the words of the playground or the words of the lecture hall. You can say it in the words of chest-thumping, back-slapping, physically polished athletes or in the words of quiet, patches-on-the-elbows, bifocal-wearing academics. You can say it in the words of kindergarten kids or Nobel-prizewinning Ph.D.’s. Say it any way you want, but trash talk always comes down to just one phrase.
“Is that all you’ve got?”
Brilliant … Peterr !
The plantiff’s summation is easy. The defense summation will need to be a masterful work of wordsmithing and whomever delivers it will need to be able to keep a poker face after drawing an inside royal flush.
Boxturtle (Because otherwise he’ll pee his pants giggling)
Such a shame Olson didn’t have such strong feelings about convincing non-Californians about depriving brownpeoplewithfunnynames of fundamental rights to trials, to not be subjected to govt kidnap and torture, etc. or American’s in general to not have their communications seized and searched without warrants – but there we let them just offer call it “state secrets” and get by without having to defend in an independent court.
What are you talking about?
Olson used to be the Solicitor General in DC.
Ted Olson:
On the other hand; for some trials are a way to get what you want.
When it turns out that you won’t win at trial; retreat,accuse that it has been rigged,get ready to impeach judges and so on.
The proponents of Prop 8, and the subset trying to prevail in this trial, will not see it as any kind of fact.
There is no decision or precedent that will be recognized by the defendants unless it is the decision they want.
All other decisions will be criticized as illegitimate, and subject to reversal by any means possible.
Just like evolution, climate change, and fossils; any evidence and precedence established here will be viewed as erroneous, and will be denied and rejected.
Looking forward to the continuing coverage of todays Scopes trial.
Duh.
It’s hard to defend prejudice without just saying flat out, “I hate these people and all they stand for and so they shouldn’t have equal civil rights”. Bigotry is bigotry, whether racial, sexual, religious, regional etc. It’s never defensible.
If gays can marry, Limpy Limbaugh’s past, current, and future marriages lose some of their sanctity.
I don’t see how that works. You’re prolly be snarky, no?
This is weird. Normally, the state only dares invoke constitutional authority on big issues like public health or terrorism, i.e. “We’re doing this for the general welfare or national security.” Prop. 8 now appears to be a Potemkin Village largely meant to rally a conservative base to turn out for a particular election. It seems to be little more than cage-rattling. Shame on the people who sponsored it.
Ill remind folks too that the Lawrence v Texas decision uses a rational basis with bite test, that the law must be rationally related to legitimate governmental purpose and that animus towards one group, is unreasonable. Meaning that if factually this causes no problems, then the only reason for it to exist is strictly anti-gay animus.
Though even with that said, this Court just makes shit up.
“Anything that is tendered without proof can be dismissed without proof.”
C. Hitchens
Those Pentacostal freaks, Talibangelicals and magic underwear regressionists in CA and everywhere else lie and fear monger to get thier way initially but when pressed for the facts to prove their bleating and braying they ALL fold like cheap lawn chairs…
The question now is – Will the courts act on the facts or the fears…Film at 11.
How about, for every gay couple refused a marriage license, they get to choose one heterosexual couple who they judge to also be harmful to society — say, Rush Limbaugh and anybody — and forbid THEM to marry. That way, we’re all equally mistreated! Anybody?