I just spent two and a half weeks covering the federal trial in San Francisco on the constitutionality of California's Proposition 8, which outlawed same-sex marriage. It was pretty exhausting stuff, given that it entailed eight hours in court, live reports on the radio almost every hour, and then another three or four hours of post-court news production each day. In fact, it has rendered me speechless: I have come down with a nasty cold that has robbed me of my voice. I sound like Don Corleone in "The Godfather." I am the Hoarse Whisperer. My only reporting recourse is to speak through my blog.
The trial was fascinating, maybe even historic. Time will tell. Here are some random observations and moments from the proceedings, that, in most cases, didn't make it onto the radio:
There were 23 lawyers in court each day, sometimes even more. The plaintiffs had a dazzling array of high-priced, high-powered lawyers with glittering resumes. The superstars, David Boies and Theodore Olson, were not working pro bono, as some assumed. They did reduce their rates, but they didn't take this case for free. The organization that brought the suit, the American Foundation for Equal Rights, raised millions of dollars to pay for it, from deep-pocketed donors like Rob Reiner, Steve Bing and David Geffen. Reiner came to court several times to observe the proceedings.
The other side had one powerhouse attorney, Chuck Cooper, and a phalanx of lesser associates, not all of whom seemed up to the task, quite frankly. They complained of being outgunned, and on some days, they were.
The lead attorney for Protect Marriage, the group that wrote Proposition 8 and put it on the ballot, is Andy Pugno. He didn't actually argue the case this time around, but he was the daily mouthpiece for the defendants. He's running for State Assembly in a Republican district in Sacramento this year. One of the defense arguments was that gays and lesbians have ample political clout in California and don't need judicial protection. Pugno better hope they're not as powerful as he made them out to be, because gay groups will be mobilizing to try to defeat him at the polls.
There was simmering tension between the two sides in court, and on long days, when folks were tired, there was some occasional sniping and snapping. But they also worked together in the spin room. Twice a day, attorneys for each side, and occasionally witnesses, would hold news conferences in the media center. First, the Protect Marriage team would slap its "Yes on 8" placard on the podium; then the American Foundation people would replace it with their sign. They stored them inside the podium, stuck to the wood with duct tape.
Funniest moment of the trial: In the middle of his lengthy, often painful crossexamination of defense expert David Blankenhorn, a staunch supporter of traditional marriage, plaintiffs' attorney Boies was ready to move from Blankenhorn's definition of marriage as a union of opposites to his contention that marriage is, by definition, a sexual relationship. "Now let's see if we can make sex boring," Boies quipped. To which Blankenhorn responded innocently, "Perhaps we can do that together." Everyone, including the judge and the authors of Proposition 8, laughed, long and hard. "No insinuations!" protested Blankenhorn, but it was too late.
District Judge Charles Breyer, who was instrumental in establishing the new media room at the federal courthouse, came down one day to check on us. Pleasant and amiable, he asked why I was always doing live shots on the phone and tweeting from the lobby, instead of from the media room. I told him the cell signal is shaky in there. Here's hoping he does something about it. He's not the chief judge, but his brother Steven IS on the U.S. Supreme Court, so he has a little weight to throw around.
Only one protester ever made it into the courtroom. He was carrying a Bible, and when he took a seat in one of the rows reserved for counsel, and started talking to the lawyers, he was admonished by the federal marshals. Then he started yelling "return the family to Jesus" and was dragged out of the courtroom and kicked out of the building. The next day, he came back. This time, they didn't let him in. He was stopped at the building's north entrance, and when he made a fuss, five Federal Protective Police officers swooped in. One put him in a hammerlock, another yanked his hands behind his back and cuffed him. He was wearing a Pittsburgh Steelers jersey and shorts on a wet, raw day. They confiscated his Bible but returned it to him after they booked, cited and released him.
Arnold Schwarzenegger tried so hard to stay out of the gay marriage debate. Twice, the state legislature legalized same sex marriage, and twice, the Governator vetoed it, saying it was a question for the voters or the courts, not the legislature. So the people finally voted, and then the courts got involved. That forced Schwarzenegger's hand, and he finally took a stand, opting not to defend the law. And now, if this lawsuit succeeds, he will go down in history as the "Wade" of same sex marriage - with Perry v. Schwarzenegger as the Roe v. Wade of gay rights, indelibly linking his name with the issue he had sidestepped for six years.
David Boies lived up to his reputation as a master cross-examiner. He grilled Proposition 8 proponent Dr. William Tam to a fine crisp. I thought maybe I should check for grill marks as Tam left the courtroom. I asked Boies if he had enjoyed himself, and he purred, "Ooh, that was fun. A good day, a good day. This is why I took the case. This is why I do this."
The defense carped about Judge Walker from the outset. He consistently ruled against them, in pre-trial motions and during the trial itself, and they seemed to think the deck was stacked in the plaintiffs' favor. But His Honor took great pains to appear even-handed, and, at the end of the trial, took the unusual step of coming down from the bench and shaking hands all around. He thanked and congratulated all the attorneys, said the youngest among them did a particularly fine job (I didn't necessarily agree), and said the "old hands" should be proud of how they've mentored the young'uns. The lawyers lined up and shook hands and traded pleasantries with the judge. It looked like the end of a hockey game. I kept waiting for the beefy Pugno to bodycheck Boies.
The plaintiffs, including AFER founder Chad Griffin and a gay couple from Burbank, celebrated gleefully the day the Supreme Court overturned campaign finance restrictions on corporations. Not because they agree with the decision - but because it was yet another 5-4 high court victory for their co-lead counsel, Ted Olson. "Do you really agree with this ruling?" I asked them. "It doesn't matter," one answered. "Boy, did we hire the right lawyer!"
And that's where they're resting their hopes. It's always risky to predict judicial outcomes based on what happens at trial (or even in an appellate hearing), but this was as one-sided a case as I've ever covered. The plaintiffs called 17 witnesses, the defense only two. The plaintiffs presented ten days of evidence to the defendants' two. The defense experts were eviscerated by Boies, and made as many salient points for the plaintiffs' argument as they did for their own side. Ultimately, though, this trial comes down to whether Chief District Judge Vaughn Walker thinks it was fair and reasonable for California voters to ban same sex marriage or not. If he was convinced by the plaintiffs that Proposition 8 doesn't meet the "strict scrutiny" test - in other words, the state doesn't have a compelling interest to keep same sex couples from marrying, and the law took away a fundamental right from a class of people who merit protection - he will declare the law unconstitutional. If he was persuaded by the defendants that there's a legitimate, rational basis for the measure, then he won't. But whatever he decides, the loser will appeal to the Ninth Circuit U.S. Court of Appeals in San Francisco, and the loser there will almost certainly seek relief from the U.S. Supreme Court.
That case will likely come up in 2012 or so (perhaps late 2011), smack dab in the middle of the next presidential campaign (which will be red meat for the Republicans and not good for Barack Obama). Justice Stevens, and perhaps Justice Ginsburg, will have been replaced by then by younger liberals. Assuming no changes in the conservative wing of the court, it's hard to imagine anything than another 5-4 vote in an Olson-argued case - but this time, to his detriment, to uphold Proposition 8. The plaintiffs are banking on Olson's conservative credentials (he was Solicitor General for President George W. Bush and beat Boies to win the landmark Bush v. Gore case that put W in the Oval Office) and his unparalleled won-lost record at the Supreme Court (he's now 45-12; no living lawyer has won or even argued that many Supreme Court cases) to carry the day when this case reaches Washington. They believe Olson will be able to sway swing-voting Justice Kennedy, and perhaps even Justice Scalia or Chief Justice Roberts, to produce a 5-4 or 6-3 vote in their favor.
But that's a long way off. Maybe this was all a big waste of time and money, a political publicity stunt with a preordained outcome. We'll be back in court for closing arguments sometime in March or April, and then a ruling from Judge Walker, maybe in May. And then we'll see where it goes from there.
I'd hate to think I lost my voice for nothing.