Ted Olson (left) and David Boies adress reporters, as two of the lawsuit's plaintiffs look on.

As we enter the third week of the Perry v. Schwarzenegger trial, the Plaintiffs spent Monday finishing and resting their case.  The Defendants began their case supporting the constitutionality of Proposition 8, and it is not expected to last beyond this week. After some initial dispute over whether Yes on 8 campaign manager Frank Shubert could be called to the stand by the defense, Lisa Keen reported:

The plaintiffs then proceeded to introduce their remaining evidence—a number of videotapes and documents that demonstrate the tactics and messages of the Yes on 8 campaign. The evidence included videotapes of Proposition 8 proponents making often shocking claims against gay people – that they were attempting to “indoctrinate” children to homosexuality, promoting pedophilia, and aiming for the “annihilation of marriage.”

One video showed a young man from an ex-gay group claiming that, if Proposition 8 failed in California, it would have a “domino effect throughout the country.” A young woman sitting next to him said it would mean “pedophiles could marry six, seven, and eight-year olds.” She claimed that marriage equality in Massachusetts enabled a man there to petition for the right to marry a horse.

. . . .

After the plaintiffs submitted their remaining documents, the defense began its case in support of Proposition 8. Their first witness was Kenneth P. Miller, a professor of government at Claremont McKenna College, a private college outside Los Angeles. The defense offered Miller as an expert in the political power of gays and lesbians — a designation which plaintiffs’ attorney David Boies attacked.

U.S. District Court Judge Vaughn Walker already has stated that he is looking for a week-long break after the cases have been presented before hearing closing arguments, so that he can review the trial and ask questions of the lawyers.  This move, while unusual, is not all that surprising in light of the fact that Walker began asking questions just a few minutes into Ted Olson’s opening statement three weeks ago.

The trial is to continue on Tuesday.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five
• Week Two
• Days Six and Seven
• Days Eight and Nine

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here. Liveblogging of the trial can be found at the Courage Campaign’s Prop 8 Trial Tracker and at FireDogLake’s Prop 8 Trial Hub.

Segura

On Thursday, the Proposition 8 trial began with continued cross-examination of Gary M. Segura, Ph.D., Professor of American Politics in the Department of Political Science at Stanford University, who has been testifying about the political power of LGBT people.

In addition, the following people also testified on Thursday and Friday:

• William Tam, who as an Official Proponent of Prop. 8 was personally responsible for putting the initiative on the ballot and voluntarily taking over its defense in court by intervening in Perry v. Schwarzenegger. Last week, video of Tam’s deposition, which was taken on Dec. 1, 2009, was shown in court to illustrate the discriminatory motivations of Prop. 8.
• Gregory M. Herek, Ph.D. a Professor of Psychology at the University of California at Davis. He will testify about the nature of sexual orientation, how mainstream mental health professionals and behavioral scientists regard homosexuality, benefits conferred by marriage, stereotypes relating to lesbians and gay men, stigma and prejudice directed at lesbians and gay men, the harm to lesbians and gay men and their families as a consequence of being denied the right to marry, and how the institution of domestic partnerships differs from that of marriage and is linked with antigay stigma.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five
• Week Two
• Days Six and Seven

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here. Liveblogging of the trial can be found at the Courage Campaign’s Prop 8 Trial Tracker and at FireDogLake’s Prop 8 Trial Hub.

Two witnesses testified on Tuesday at the Perry v. Schwarzenegger trial over the constitutionality of Proposition 8.  Two more are to testify today, and a spokesman for the American Foundation for Equal Rights confirms that today will not, as attorneys for the Plaintiffs suggested this past week, be the final day for the Plaintiffs’ case.

Jerry Sanders, the current Republican Mayor and former Police Chief of the City of San Diego who is the father of a lesbian daughter, testified.  San Francisco City Attorney Dennis Herrera conducted the direct examination.

From Lisa Keen:

Sanders, the first plaintiffs’ witness on the stand today, told with more detail a story that has become very familiar to the LGBT community. In testimony that was often choked with tears, Sanders described how he came to reverse his own opposition to same-sex marriage after his daughter came out to him and he discussed his plans to veto the city’s participation in a brief in support of same-sex marriage in 2008.

Watch Sanders’ earlier support:

Lee Badgett speaks at a briefing organized by the Congressional LGBT Equality Caucus, "Not a Rosy Picture: Poverty Among Lesbian, Gay and Bisexual Americans," which took place on March 20, 2009. (Iamage from Web site of Rep. Tammy Baldwin.)

Also testifying was M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts, Amherst.  She was discussing the economic harm to LGBT couples resulting from Proposition 8 and other anti-LGBT discrimination.  Badgett has previously spoken about similar issues to those discussed at trial when she participated in a briefing coordinated by the Congressional LGBT Equality Caucus in 2009.  (More information about that event — including handouts (pdf) and audio (wma) — can be found here.)

Badgett’s testimony went on for the remainder of the day, with direct examination being conducted by David Boies and the cross-examination being conducted by Charles Cooper.  As Keen described the testimony, Boies scored a hit today.  She wrote:

Boies was questioning a pro-gay marriage expert—economist Lee Badgett—when he asked her to comment on a statement by defendant expert Douglas W. Allen concerning the decline in straight couples marrying in The Netherlands. Charles Cooper, the defense’s lead attorney, objected, noting that the defense had withdrawn Allen as a witness.

But federal Judge Vaughn Walker, who will decide the case, Perry v. Schwarzenegger, allowed the testimony.

What the defense expert had said—during his deposition in September—was that any trend downward in the number of straight couples marrying in The Netherlands since same-sex marriage became available there in 2001 could be attributed to a larger “secular trend” witnessed by most western countries. In fact, he said, there was “no doubt” about that.

That statement helps undermine the defendants’ claim that allowing same-sex couples to marry hurts the institution of marriage.

Today, AFER reports that the following people are to testify:

• Ryan Kendall, a gay man who will testify about the “conversation therapy” he underwent in his youth and how he has been affected by discrimination.
• Gary M. Segura, Ph.D,Professor of American Politics in the Department of Political Science at Stanford University. He will testify about the relative political power of gays and lesbians as a class of citizens, and their level of political vulnerability.

[UPDATE: As I was covering the Lambda Legal lawsuit filed today on behalf of Karen Golinski, I missed what was a pretty exciting trial day from what it appears.  The coordination between the Yes on 8 campaign and several religious entities was laid bare, as was the pain endured by some of those involved in "conversion therapy."  From Lisa Keen:

Under repeated and vehement objections by the defense attorney Andrew Pugno—objections overruled by U.S. District Court Judge Vaughn Walker— Segura testified about the thousands of volunteers that were deployed by the Mormon and Catholic churches in California to campaign for passage of the anti-gay initiative. He said the documents showed that there was “very early involvement of organized religious communities, and really a national political campaign” to pass Proposition 8 in California.

Pugno and other defense attorneys continued to object to various documents—mostly emails—from being introduced into evidence, making various claims, including that some must be shielded to protect the First Amendment right to free exercise of religion for various participants in the Proposition 8 campaign.

But Judge Walker was unconvinced.

The trial will continue on Thursday and Friday.]

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five
• Week Two

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here.  Liveblogging of the trial can be found at the Courage Campaign’s Prop 8 Trial Tracker and at FireDogLake’s Prop 8 Trial Hub.

Attorney Ted Olson prior to the start of the Proposition 8 trial. (Photo by Diana Walker via AFER.)

As we enter the second week of Perry v. Schwarzenegger, the trial challenging the constitutionality of California’s Proposition 8, I wanted to write briefly about two main areas that I’ve been thinking about over this weekend.

First, the brief mention in the opening arguments by Ted Olson about the Defense of Marriage Act.  Judge Vaughn Walker asked about whether this case would impact DOMA, and Olson replied that “circumstances around Proposition 8 passing in California make it unique.”  This point has been made previously in filings by the plaintiffs and is not surprising.  But, hearing it this past Monday reminded me that there could be some language — especially later on in appellate briefs — about why Proposition 8 is unconstitutional that would not apply to (or even harm) the case in some other jurisdictions.

When you file a case, though, your aim is to win your case.  And, reality is that there are factual distinctions between what has happened in California and what is going on and has gone on elsewhere.  The lawyers should use that to their advantage.  What’s more, when all is said and done, a ruling that invalidates Proposition 8 would — regardless of the specific grounds — have serious ramifications for DOMA, other states with marriage amendments, states with state “mini-DOMAs,” and so on.

But, they would be other cases.  Meaning, the timeline involved in this case is, quite possibly, only a California marriage equality timeline.  Even if ultimately successful before the U.S. Supreme Court, depending on the grounds of that decision, this case could resolve much across the country with one ruling or, and I think more likely, it could craft a narrow decision leaving everything up in the air as to the federal government and the other states.  (Ask Doug Berman about criminal sentencing law over the past decade, and he’ll tell you that the Supreme Court is perfectly comfortable doing the latter.)

So, while we focus on this case, which could very well be the landmark case that’s being discussed, it’s important to note that winning this case wouldn’t necessarily obliterate DOMA or strike down state marriage amendments elsewhere.  There will still likely be much that remains to be done even if Perry succeeds.

Second, the trial itself. I’ve never really been of the viewpoint that the trial itself is all that necessary.  I really think that most of what is going on at trial is distinctions that come down to a matter of degree — but not of type.  Witnesses are talking about “how much” and “how good” — not “whether or not.”  I’m yet to see anything legally significant that couldn’t have been appended to a motion for summary judgment.

Now, the point of the trial is bigger than that, and I understand why the Olson/Boies team wants a trial: It gives them a many-week megaphone.  And, yes, it allows more to be in the record than otherwise would.  It’s great and all (especially were more people able to be seeing it); I just don’t think much of the witness testimony is indicative of or particularly essential to the long-term success of the issue.

[UPDATE: This point was illustrated on Tuesday afternoon succinctly by NCLR: "This is torturously slow. Cooper taking forever to make largely irrelevant points that do not alter the validity of basic conclusions."]

Sanders

Finally, here’s what Tuesday should look like, according to the folks at the American Foundation for Equal Rights:

• Jerry Sanders, the current Republican Mayor and former Police Chief of the City of San Diego who is the father of a lesbian daughter. He will testify about his decision, as Mayor, to support the City of San Diego’s participation in an amicus brief advocating against the exclusion of same-sex couples from marriage and why he concluded supporting marriage equality was and is in the best interest of the local government and community.  City Attorney Dennis Herrera will conduct the direct examination of Mayor Sanders.
• M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts, Amherst, who will testify about the private harms caused by Prop. 8 and the impact of same-sex marriage on the marriages of different-sex couples
• Ryan Kendall, a gay man who will testify about the “conversation therapy” he underwent in his youth and how he has been affected by discrimination.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here.

David Boies, speaking prior to the start of the trial over the constitutionality of Proposition 8 that he and Ted Olson are leading. (Photo by Diana Walker via AFER.)

On Friday, the American Foundation for Equal Rights sends word that, testimony of plaintiff witnesses will continue in the Perry v. Schwarzenegger trial over the constitutionality of Proposition 8.  This is the fifth day of a trial that could last well into three weeks, based on the announcement from the Plaintiffs’ lawyers today that they expect to wrap up their case, assuming the pace of the first four days continues, by next Wednesday.

First up was Michael Lamb, Ph.D, a Professor and Head of the Department of Social and Developmental Psychology at Cambridge University.  Lamb testified about gay and lesbian parenting and its impact on the adjustment of children and adolescents, and the benefits to children and adolescents if their same-sex parents were allowed to marry.  Per the AP:

“For a significant number of these children, their adjustment would be promoted were their parents able to get married,” developmental psychologist Michael Lamb said while undercutting arguments made by sponsors of Proposition 8, the anti-gay marriage ballot measure passed in 2008.

Lamb said there was no evidence that children with gay parents were more likely to become gay themselves or become victims of sexual abuse or incest.

In addition, he said no evidence exists that gays or lesbians are more likely to sexually abuse children.

“We have a substantial body of evidence documenting that a child being raised by same-sex parents are just as likely to be well-adjusted as children raised by heterosexual parents,” Lamb said.

The cross-examination, conducted by Attorney Thompson, the early focus was on differences between men and woman and a — time-tested argument of the Right — that children are worse off without one male and one female parent.  The exchange included an eventual reference to breast-feeding, among other topics.

The cross-examination took up most of the day, with a tedious focus later in the day on the methodology of the roughly 100 studies referenced in Lamb’s work.

The re-direct was conducted by Matthew McGill of Gibson Dunn (bio) for the Plaintiffs.  McGill, a Stanford Law graduate, clerked for then-D.C. Circuit Judge John Roberts, as well as Second Circuit Judge Joseph M. McLaughlin.  He also served as a Bristow Fellow in the Office of the Solicitor General at Justice.

Still up on Friday are to include:

• Helen Zia, a lesbian author who will testify about her sexual orientation, her experiences with discrimination, and the effects of being denied the right to marry her longtime partner.
• M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts,  Amherst, to testify about the private harms caused by Prop. 8 and the impact of same-sex marriage on the marriages of different-sex couples.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here.

Ted Olson (left), Kristina Schake and Chad Griffin talk prior to the start of the trial Olson is leading challenging the constitutionality of Proposition 8. (Photo by Diana Walker via AFER.)

As I was covering the East Coast on-goings of the West Coast trial for most of Wednesday afternoon and evening, please forgive this abbreviated preview.

The plaintiffs continued to press their case in court today.

First up was Dr. Edmund Egan, the chief Economist for the City and County of San Francisco, who testified about the nature and magnitude of costs incurred by the City and County as a result of the denial of marriage to gays and lesbians.

As AP reporter Lisa Leff wrote:

Egan said married people accumulate more wealth and have more to spend on property and consumer goods, which bolsters tax revenue.

He also said the city must spend more on health care for uninsured workers because same-sex couples are not always covered under their partner’s employee health care p lans.

“It’s clear to me that Proposition 8 has a negative material impact on the city of San Francisco,” he said. “These are impacts that are hard to quantify, but over the long term they can be powerful.”

Egan also testified about other, more hidden costs that result from anti-LGBT discrimination.  As Dan Levine reported, Egan said that “200,000 California kids a year are bullied for their sex orientation at school, causing absenteeism,” which costs school districts money.

The cross-examination of Egan was roundly criticized by observers, with NCLR’s Kate Kendell tweeting, “Patterson does not know how to conduct a cross examination, great time to learn.”

Dan Levine described one of the observers not pleased with the cross: Judge “Walker clearly frustrated with pace: tells Patterson to cross “the old-fashioned way” instead of taking the witness’s deposition.“  Levine later noted, “Walker just prompted Patterson again. This is getting a little embarrassing.”

Pete Patterson (bio) graduated in the top 10% of his class at Stanford Law School and clerked for Sixth Circuit Judge — and noted conservative — Jeffrey S. Sutton.  He joined Cooper & Kirk in 2009 after working as an Associate White House Counsel in the George W. Bush’s White House.

After lunch, Dr. Ilan H. Meyer, Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, took the stand to testify about the stigma and prejudice gay and lesbians individuals face in society.

Meyer’s testimony is extensive and, well, unironically, depressing.  Meyer has carefully taken the court through the entire process of how discrimination affects people.  As Miranda noted, Meyer detailed “[m]inority stressors: prejudice events, expectations of discrimination, concealment, and internalized homophobia.“  Lt. Dan Choi, in the hearing, noted that Meyer discussed the “hell” of concealing one’s identity from others.

Meyer also detailed how not being able to marry — how not having that goal as a possibility ahead of a person — can have a negative affect on a person’s mental health.

After establishing all of this, Meyer went on, as NCLR reported, to explain that this can cause, “higher level of anxiety, depression, substance abuse in LGBT people because of their exposure to discrimination and minority stress.”

Howard Nielson, Jr. (bio), is doing the cross-examination.  He is a former clerk of former Fourth Circuit Judge J. Michael Luttig and Justice Anthony Kennedy.  He also served as a Deputy Assistant Attorney General in the Office of Legal Counsel from 2003 to 2005.

The cross was mostly rote, and as NCLR reported: “Prop 8 attorney trying generally to discredit Meyer’s minority stress model.”

Testimony also is to include:

• Helen Zia, a lesbian author who will testify about her sexual orientation, her experiences with discrimination, and the effects of being denied the right to marry her longtime partner.

Sunset Boulevard's Desmond

This evening, I have a short article up at Metro Weekly on today’s Supreme Court action, “Not Ready for a Close-Up“:

The U.S. Supreme Court put an end late this afternoon to any question over whether the Proposition 8 federal court trial – already three days under way – would be broadcast to other courtrooms across the country, let alone to the general public more widely via YouTube. The answer, in an unsigned opinion representing only the slimmest majority of the Court, was ”No.”

In the 5-4 ruling, the Court kept in place the broadcast prohibition it had begun on Monday in a ruling that is almost certain to last beyond the conclusion of the Perry v. Schwarzenegger trial in San Francisco. In doing so, it also took a swipe at the judge overseeing the trial, holding that he ”attempted to revise [the court] rules in haste” to allow the broadcast and ”ignore[d]” federal law in doing so.

The Supreme Court divided, 5-4, in ruling against U.S. District Judge Walker's plan to broadcast the Proposition 8 trial to several other courtrooms across the country.

POST-DECISION REPORT: The Supreme Court has blocked the broadcast of the Proposition 8 trial, as first reported at SCOTUSblog (and as explained below).

As Lyle Denniston wrote, it was a 5-4 decision of the Court, “chastizing lower courts for attempting ‘to change its rules at the eleventh hour’” in a 17-page opinion.  Justice Breyer was joined by Justices Stevens, Ginsburg and Sotomayor in a 10-page dissent.

The opinion — representing the views of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito — and dissent are available here (pdf) at Law Dork c/o SCOTUSblog.

The Supreme Court, in a per curiam — meaning unsigned — opinion, summarized the matter as follows:

[O]ur review is confined to a narrow legal issue: whether the District Court’s amendment of its local rules to broadcast this trial complied with federal law.  We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court’s actions.  We therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.

Slip opinion, at 7.  The Court notes that this is only an injunction, subject to revision on appeal or by order of mandamus.  What this means is that the Court did not determine its opinion on the matter, but — among other points addressed in the dissent — it did determine whether the Proposition 8 proponents had shown a “substantial likelihood of success” on the merits and an “irreparable harm” if the injunction were not granted.  (It is important to point out that the Court was only considering here the broadcast to the five other courthouses — not the proposed YouTube posting, which it appears would have received even less support from the Court.)

As to the merits, the Court’s majority determined that the procedure used by Judge Walker — the Chief Judge of the Northern District of California — was likely to be found insufficient.  The Court held: “The amended version of Rule 77–3 appears to be invalid.  In amending this rule, it appears that the District Court failed to ‘giv[e] appropriate public notice and an opportunity for comment,’ as required by federal law.  28 U. S. C. §2071(b).”  Slip op., at 10.  The Court majority found that the five business days given were unlikely to meet the legal requirements: “There is substantial merit to the argument that this was not “appropriate” notice and an opportunity for comment.”  Id.

As to the irreparable harm, the Court’s opinion will be seen as more problematic.  The Court agreed with the Proposition 8 proponents that there would be no remedy for the harm that they could suffer if broadcast.  The Court held:

This Court has recognized that witness testimony may be chilled if broadcast.  See Estes v. Texas, 381 U. S. 532, 547 (1965); id., at 591 (Harlan, J., concurring).  Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. See, e.g., Exh. K to Defendant-Intervenors’ Motion (71 news articles detailing incidents of harassment related to people who supported Proposition 8). . . . There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country. . . . And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings.

Slip op., at 13. The Court then, most clearly, takes a swipe at Judge Walker:

The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial without any considered standards or guidelines in place.

Slip op., at 14.

Justice Breyer authored a very strong dissent, in which he was joined by Justices Stevens, Ginsburg and Sotomayor, as previously noted.  Noting the six steps that he asserts the Court agrees were necessary to issuing this indefinite stay, Breyer concludes: “This case, in my view, does not satisfy a single one of these standards, let alone all of them. Consequently, I must  dissent.”

As to the merits, Breyer writes:

Certainly the parties themselves had more than adequate notice and opportunity to comment before the Rule was changed. On September 25, 2009, the trial judge, Chief Judge Vaughn Walker, discussed the possibility of broadcasting trial proceedings both within the courthouse and beyond, and asked for the parties’ views. . . . The court again raised the issue at a hearing on December 16. . . . Nor, in practice, did other members of the Judiciary lack information about the issue.

Viewed in light of this history, the Court satisfied the statute’s insistence that “notice” be “appropriate.”  Cf. 28 U. S. C. §§2071(b), (e). The parties, the judges, and the interested public were aware of the proposals to change Ninth Circuit policy that culminated in the “pilot program” well before the change in the local rules that enabled participation in the project.

Slip op., at 2-3.  Moreover, Justice Breyer was incredulous at the Court’s allegation that insufficient public comment was allowed: “[T]he entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial.  As I said, the court received 138,574 comments during that time.  How much more “opportunity for comment” does the Court believe necessary . . . ?”  Slip op., at 4.

As to the alleged irreparable harm, Breyer writes of the potential harm to the trial: “Certainly there is no evidence that such harm could arise in this nonjury civil case from the simple fact of transmission itself. By my count, 42 States and two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials.”  Slip op., at 7.  As to the witnesses, he is no less understanding of the Court’s opinion.  He wrote:

All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a close-circuit broadcast to another federal courthouse.

Slip op., at 7-8.

Turning the stay request on its head, Breyer finds, in fact, that “the scales tip heavily against” a stay preventing further broadcast to the other courthouses:

The competing equities consist of not only respondents’ interest in obtaining the courthouse-to-courthouse transmission that they desire, but also the public’s interest in observing trial proceedings to learn about this case and about how courts work.

Slip op., at 9.

Additionally, Breyer makes a very persuasive case that this is not even the type of matter that the Court traditionally hears, noting “For the past 80 years, local judicial administration has been left to the exclusive province of the Circuit Judicial Councils, and this Court lacks their institutional experience.”  Slip op., at 5.

Neither any of the other reasons given by Breyer nor that lack of experience, however, were enough today to persuade Justice Anthony Kennedy or his four other colleagues in the majority to allow the broadcast of the trial.

[UPDATE: Thanks to David Lat for his kind pairing of me with SCOTUSblog's Lyle Denniston in David's post noting the decision at Above the Law, as well as to other for the links from elsewhere -- including at Good As You.]

For my pre-decision thoughts, please see below the jump.

Pre-Decision Report

The Supreme Court’s stay of any outside streaming and broadcasting of the Perry v. Schwarzenegger Proposition 8 trial was lifted as of 4 p.m. today.  There has, thus far, been no further order reported to have come from the Court or posted on its site.

As such, Judge Vaughn Walker will be placed in an interesting position when the trial re-commences after lunch.  There is no pending order prohibiting him from allowing the streaming feed to be shown in other courthouses or from planning to post the trial on YouTube.

There is, however, an expectation from Supreme Court observers like SCOTUSblog’s Lyle Denniston that a ruling from the Court will be forthcoming.

[UPDATE: This puts the trial judge, Judge Walker, who made a determination about this matter prior to the start of trial, in a very difficult position.  He could begin to allow the streaming and the posting of the previous recordings on YouTube, as he is within his rights to do as things stand -- and get the Proposition 8 proponents calling him a "renegade judge" or some such thing.  Or, he can deferentially await word from the Supreme Court, as I would think a trial court judge would generally be inclined to do -- and be asking for the rage of the opponents of Proposition 8.  Either way, this is not a position of his choosing.]

I will update this post as we know more.

Here is the stay, issued Monday:

Upon consideration of the application for stay presented to Justice Kennedy and by him referred to the Court, it is ordered that the order of the United States District Court for the Northern District of California, case No. 3:09-cv-02292, permitting real-time streaming is stayed except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held.  Any additional order permitting broadcast of the proceedings is also stayed pending further order of this Court.  To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.

Plaintiffs Kris Perry (left) and Sandy Stier talk before the start of the Proposition 8 trial. (Image by Diana Walker via AFER.)

Wednesday, the Perry v. Schwarzenegger trial featured the continuation of the plaintiffs’ case.  It also featured an indirect hit from across the country, as the Supreme Court continued its stay of Judge Walker’s order calling for the trial to be broadcast in other courthouses across the country.  I cover the ruling extensively here and in a (more brief) article at Metro Weekly.

The day at trial, however, began with a continuation of the cross-examination of Yale Professor George Chauncey, who testified on Tuesday on the history of LGBT discrimination in the United States.

Alliance Defense Fund Attorney Thompson, representing the Proposition 8 proponents, focused the first part of his cross-examination of Chauncey on the gains made by LGBT people in recent years.  As the morning was summed up by Davina Kotulski, “YOU ALL HAVE BROKEBACK MOUNTAIN AND IT EVEN GOT AWARDS— GAY DISCRIMINATION IS OVER.”  Put a little — though not much — more subtly by NCLR Executive Director Kate Kendell, “What Thompson is trying to prove: gays are big babies, life much better now. And being opposed to marriage [is] not anti-gay.”

Check out Davina’s post for more.  The invaluable Dan Levine’s coverage today included this gem of a back and forth:

Thompson: gays have a powerful ally in Pelosi? Chauncey: “Not sure I would agree with that,” lots of issues haven’t moved forward.

In the re-direct of Chauncey, San Francisco Chief Deputy City Attorney Therese Stewart has raised a series of statements made over time by Tam, one of the Intervenors, who requested to withdraw in the days before the trial.  Tam is a Proposition 8 proponent, and it’s now clear why the proponents wanted him to withdraw. He’s made a slew of far-Right, hateful statements about LGBT people, and they all are now being raised in court by Stewart.

From NCLR:

Chauncey describing pub[lication] written by Tam: compares homosexuality to prostitution, says child molesters protected next.

The only other testimony ended up coming from Dr. Letitia Anne Peplau, Professor of Psychology at UCLA, to testify about the beneficial effects marriage can provide to a person’s health and well-being as well as the social and personal importance that is attached to marriage.

Peplau also responded to some vigorous cross-examination about the quantifiable distinction between marriage and civil unions or domestic partnerships and about monogamy among gay male couples.  Lisa Keen, who has been covering trial, files an excellent report on Peplau’s very interesting testimony.  As Keen wrote:

And then Moss questioned Peplau at length about studies that indicated gay men were less committed to monogamy than heterosexuals and lesbians. She did so by asking Peplau about a study Peplau had helped author 25 years ago in which she said that, among some gay male couples, “sexual exclusivity may be the exception rather than the rule.”

“There are a number of things that are different now,” said Peplau. “It was really a different time.”

. . . .

Non-monogamy, said Peplau, is “not always infidelity or a breach of trust.” And with gay men, she said, there is often a clear understanding that the relationship does not have to be sexually exclusive.

The trial is to continue Thursday.

SUMMARIES:

• Lisa Keen, “Defense profers a harm: gay male non-monogamy“
• Gerry Shih, The New York Times, “The Defense Pushes Back“
• Shannon Minter, NCLR, “Perry Proceedings, Day 3“

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