January 11, 2010 Volume 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER.
KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREYJ. ZARRILLO,
Plaintiffs,
VS.
ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMOND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Directory of the Department of Public Health and State Registrar of Vital Statistics; LINNETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Reporter for the County of Alameda; and, DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,
Defendants.
NO. C 09-2292-VRW
San Francisco, California
Monday
January 11, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By: Katherine Powell Sullivan, CRR, CSR 5812
Debra L. Pas, CRR, CSR 11916
Official Reporters – U.S. District Court
APPEARANCES:
For Plaintiffs:
GIBSON, DUNN, & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington , D.C. 20036-5306
BY: THEODORE B. OLSON, ESQUIRE
MATTEW D. MCGILL, ESQUIRE
GIBSON, DUNN, & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
BY: THEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE
GIBSON, DUNN, & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, California 94105-2933
BY: ETHAN D. DETTMER, JR., ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, New York 10504
BY: DAVID BOIES, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
575 Lexington Avenue, 7th Floor
New York, New York 10022
BY: JOSHUA I. SCHILLER, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, California 94612
BY: JEREMY MICHAEL GOLDMAN, ESQUIRE
STEVEN C. HOLTZMAN, ESQUIRE
For Plaintiff-Intervenor:
CITY AND COUNTY OF SAN FRANCISCO
OFFICE OF THE CITY ATTORNEY
One Drive Carlton B. Goodlett Place
San Francisco, California 94102-4682
BY: DENNIS J. HERRERA, CITY ATTORNEY
THERESE STEWART, DEPUTY CITY ATTRNEY
DANNY CHOU, DEPUTY CITY ATTORNEY
For Defendant Gov. Schwarzenegger:
MENNEMEIER, GLASSMAN & STROUD
980 9th Street, Suite 1700
Sacramento, California 95814-2736
BY: ANDREW WALTER STROUD, ESQUIRE
For Defendant Edmond G. Brown Jr.:
STATE ATTORNEY GENERALS OFFICE
455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102-7004
BY: TAMAR PACHTER, DEPUTY ATTORNEY GENERAL
STATE OF CALIFORNIA
Department of Justice
Office of the Attorney General
1300 I Street, 17th Floor
Sacramento, California 95814
BY: GORDON BURNS, DEPUTY SOLICITOR GENERAL
For Defendant-Intervenors:
COOPER & KIRK
1523 New Hampshire Avenue, N.W.
Washington, D.C., 20036
BY: CHARLES J. COOPER, ESQUIRE
DAVID THOMPSON, ESQUIRE
HOWARD C. NIELSON, JR., ESQUIRE
NICOLE MOSS, ESQUIRE
PETER PATTERSON, ESQUIRE
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
BY: BRIAN W. RAUM, SENIOR COUNSEL
JAMES A. CAMPBELL, ESQUIRE
For Defendant Dean C. Logan:
OFFICE OF LOS ANGELES COUNTY COUNSEL
500 West Temple Street, Room 652
Los Angeles, California 90012
BY: JUDY WHITEHURST, DEPUTY COUNTY COUNSEL
For Defendant Patrick O’Connell:
OFFICE OF ALAMEDA COUNTY COUNSEL
1221 Oak Street, Suite 450
Oakland, California 94612
BY: CLAUDE F. KOLM, DEPUTY COUNTY COUNSEL
MANUEL MARTINEZ, DEPUTY COUNTY COUNSEL
For Defendant Hak-Shing William Tam:
TERRY L. THOMPSON, ESQUIRE
P.O. Box 1346
Alamo, California 94507
PROCEEDINGS
JANUARY 11, 2010 9:06 A.M.
THE CLERK: Calling civil case 09-2292, Kristin Perry, et al. versus Arnold Schwarzenegger, et al.
Can I get appearances on the plaintiffs' side, 7 please.
MR. OLSON: Good morning, Your Honor. Theodore B. Olson, Gibson, Dunn & Crutcher, on behalf of the plaintiffs.
THE COURT: Good morning, Mr. Olson.
MR. BOUTROUS: Good morning, Your Honor. Theodore Boutrous, also for the plaintiffs, also from Gibson, Dunn & Crutcher.
THE COURT: Mr. Boutrous, good morning.
MR. BOIES: Good morning, Your Honor. David Boies, of Boies, Schiller & Flexner, also for the plaintiffs.
THE COURT: Good morning.
MR. DUSSEAULT: Good morning, Your Honor. Chris Dusseault, of Gibson, Dunn & Crutcher, also on behalf of the plaintiffs.
MR. GOLDMAN: Good morning, Your Honor. Jeremy Goldman, from Boies, Schiller & Flexner, on behalf of the plaintiffs.
THE COURT: Good morning.
MR. HOLTZMAN: Good morning, Your Honor. Steve Holtzman, also Boies, Schiller & Flexner, for the plaintiffs.
MR. HERRERA: Good morning, Your Honor. City attorney Dennis Herrera for plaintiff-intervenor City and County of San Francisco.
THE COURT: Good morning.
MS. STEWART: Good morning, Chief Judge Walker. Therese M. Stewart, chief deputy city attorney, for plaintiff-intervenor City and County of San Francisco.
MR. COOPER: Good morning, Mr. Chief Judge. Charles Cooper, Cooper and Kirk, for the defendant-intervenors.
THE COURT: Mr. Cooper, good morning.
MR. THOMPSON: Good morning, Your Honor. David Thompson, of Cooper and Kirk, for the defendant-intervenors.
THE COURT: Mr. Thompson, good morning.
MR. NIELSON: Good morning, Chief Judge Walker. Howard Nielson, also of Cooper & Kirk, for the defendant-intervenors.
THE COURT: Good morning.
MS. MOSS: Good morning, Your Honor. Nicole Moss, with Cooper and Kirk, for defendant intervenors.
THE COURT: Good morning.
MR. PATTERSON: Good morning, Your Honor. Peter Patterson, also from Cooper and Kirk, for the defendant-intervenors.
THE COURT: Good morning.
MR. CAMPBELL: Good morning, Your Honor. James Campbell, of the Alliance Defense Fund, on behalf of the defendant-intervenors.
MR. RAUM: Good morning, Your Honor. Brian Raum, for the defendant-intervenors, on behalf of Alliance Defense Fund.
THE COURT: Good morning.
MR. RAUM: Good morning.
MR. STROUD: Good morning, Your Honor. Andrew Stroud, Stroud, Mennemeier, Glassman & Stroud, on behalf of Governor Schwarzenegger, in his official capacity, and on behalf of the other administration defendants. Thank you, Your Honor.
THE COURT: Good morning.
MS. PACHTER: Good morning, Your Honor. Tamar Pachter on behalf of the California Attorney General.
THE COURT: Good morning.
MR. BURNS: Good morning, Your Honor. Deputy solicitor general Gordon Burns, on behalf of Attorney General Brown.
THE COURT: On behalf of?
MR. BURNS: Attorney General Brown.
THE COURT: Very well.
MR. KOLM: Good morning, Your Honor. Claude Kolm, deputy county counsel, on behalf of defendant Patrick O'Connell, the Alameda County Clerk Recorder.
MR. MARTINEZ: Good morning, Your Honor. Manuel Martinez, also for defendant Patrick O'Connell, Clerk Recorder for Alameda County.
THE COURT: Good morning.
MR. MARTINEZ: Good morning.
MS. WHITEHURST: Good morning, Your Honor. Judy Whitehurst, Los Angeles County Counsel's Office, on behalf of Dean C. Logan, the Los Angeles County Registrar-Recorder/County Clerk.
THE COURT: Good morning.
Any other appearances?
MR. THOMPSON: Terry Thompson on behalf of defendant intervenor Hak-Shing William Tam. William Tam.
THE COURT: Good morning.
Any others?
Perhaps when we get into the next day of trial we can move this process of putting appearances in somewhat more expeditiously. I think it's particularly helpful, when there are lots of lawyers who may not be speaking in the case, that they get to enter their appearances. But maybe as we move along, we can expedite that.
Now, I trust that you all have had a quiet and restful few days since we were together on Wednesday.
(Laughter)
I can assure you, I have.
(Laughter)
Now, you probably know we received this morning an order from the Supreme Court, which has stayed the transmission of any audio or visual images of this case until at least 4:00 p.m. Eastern Time on Wednesday the 13th.
So the issue that consumed much of our discussion on Wednesday, and that I gather has consumed much of your time in the last few days, is, I think, resolved for the moment, and we can just leave it in place. It clears the air.
There certainly are a good many issues that surround this, and we will see what guidance the Supreme Court can provide us on this issue.
There are many issues in play, as I'm sure you recognize the respective role of the Judicial Conference of the United States and the various Judicial Councils of the Circuits, that I'm sure is an issue that is being considered by the Justices of the Supreme Court.
Trial-Day 01 (Plfs. & Cott Direct) Unsigned Page - - -
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PROCEEDINGS 10
But I do want to clarify a couple of points with reference to this issue.
What the Court has contemplated and what the Ninth Circuit pilot project contemplates is a posting on the Northern District of California website. It is not a Google YouTube posting that may be commonly understood. Rather, that service is under consideration as a conduit for posting an audio and visual feed pursuant to a contract that the government has with that service.
And you may very well have observed the White House website that is accessible through the YouTube Google service. If you've not observed it, you should certainly do so. It's completely in keeping with the appropriateness of presidential statements and information being supplied by the President to the public. And so that service would be used here in exactly or very much the same -- the same manner.
I also want to report, with reference to the changes in the local rules -- and to some degree I'm responsible for some confusion over this. This is the change to local Rule 77-3, that was adopted at a court meeting. A special court meeting not held for the purpose of considering an amendment to Rule 77-3, but for another purpose. But it was timely because it occurred a few days after the Ninth Circuit adopted the pilot project that you're familiar with.
And the court, at that special meeting, unanimously adopted the change to local Rule 77-3, and did so without comment, without a comment period, because it was a conforming amendment to Ninth Circuit policy.
And, in addition, of course, both the Ninth Circuit Council and this court had very much in mind the possibility of an audio and visual transmission of this case pursuant to that pilot project.
So that amendment was made pursuant to the urgency provision, which is permitted under Title 28. And it was suggested that thereafter comments should be sought and elicited to the rule.
We have frequently done that. Perhaps not frequently. We have done that in the past, where a local rule has been adopted either on some urgent basis or some other basis thought to be appropriate, and then comment solicited after the amendment. And that was done here.
Unfortunately, I did not ask the clerk, who posted the announcement, to review that announcement with me. And so the word "proposed change" did get posted on the website. And, in fact, the change in the local rule was not a proposed change, at all, but rather was a rule that was adopted.
Nonetheless, we have received a very substantial number of comments in response to that change. As of -- as of Friday, 5:00 p.m. Friday, we had received 138,574 responses or comments.
Now, a good many of those comments, of course, related simply to the transmission of this case, and did not specifically address the rule change. Some did specifically address the rule change. And some, of course, mentioned both.
But I think it's fair to say that those that favored coverage of this particular case implicitly also favored the rule change which would make an audiovisual transmission of this case possible.
And if these results are any indication of where sentiment lies on this issue, it's overwhelmingly in favor of the rule change and the dissemination of this particular proceeding by some means through the Internet.
And the numbers, frankly are 138,542 in favor, and 32 opposed.
(Laughter)
So I think the -- at least the returns are clear in this case. And we received a very thoughtful submission by the Federal Bar Association, which at some point or other I would like to make part of the record, simply to complete the record with respect to this matter.
Now, there are some continuing technical issues that attend the possible transmission of these proceedings over the Internet.
Chief Judge Kozinski and the Circuit executive, Cathy Catterson, worked very hard over the weekend with the court's technical staff to resolve those issues.
One of the e-mails that I received on this subject -- actually, two of the e-mails that I received, one from Chief Judge Kozinski and one from Ms. Catterson, were dated Sunday morning, shortly after midnight. So they worked very hard and very diligently, along with the court staff, to try to resolve these issues.
Where matters stand in that regard, I don't know. I have not involved myself in that part of the activity. Rather, to the extent I've devoted myself to this case over the weekend, it's reading your briefs and proposed findings of fact, and other matters which I think are probably more appropriate for me to spend time on.
Now, with that, I don't think, at this point, we have anything more that we need or should say on this particular subject, unless any of the parties have something that he or she wishes to add.
I do think what we have gone through in this case in the last few days has been very helpful. Very helpful indeed. The issue of the public's right to access court proceedings is an important one. I think it's highly unfortunate that the Judicial Conference and the courts have not dealt with this issue in the past, have not in a considered and thoughtful fashion worked through the issues.
The briefs that you filed in the Court of Appeals and in the Supreme Court deal with those issues. And that's true of both sides.
Certainly, the concerns that the proponents have raised here are concerns that should be considered, need to be considered, and in due course should be given thorough consideration.
But I think, in this day and age, with the technology that's available and the importance of the public's right to access judicial proceedings, it's very important that we in the federal judiciary work to achieve that access consistent with the means that are presently available to do that.
And I would commend you for the efforts that you've made in bringing these issues forward, and I'm hopeful that this experience will have brought these issues to the fore. And maybe, finally, after some 20 years we will get some sensible movement forward.
Now, Mr. Boutrous.
MR. BOUTROUS: Thank you, Your Honor.
Could I address one issue? Since the stay is temporary and the Supreme Court is going to be considering these issues, and given the importance of the issues in this case, we would request that the Court permit recording and preservation of the proceedings today and through Wednesday.
I've heard -- having heard Mr. Cooper argue on many occasions, I can't imagine why he wouldn't want his opening statement preserved for the record.
(Laughter)
So the public can hear what he has to say. And same goes for Mr. Olson.
And given the fact that this is a temporary stay, and the stay order does not mention anything about restricting the ability of the court to capture the images on the cameras and preserve them in the event the stay is lifted and Judge Kozinski issues his order, we think that would be a good solution so then the materials could be posted when those -- those things happen.
THE COURT: Well, that's very much of a possibility as presently matters stand.
The only transmission of these proceedings is to the overflow courtroom in this courthouse. Any transmission beyond that is not permitted, pending some further order of the Supreme Court or the Court of Appeals, and, indeed, Chief Judge Kozinski, who would be directing the pilot project.
I think your request is a fair one. But in the event that there is no recording permitted after the issue is finally settled, if a recording is made, some disposition of that recording would have to be dealt with. And perhaps this is a matter that we can deal with after we learn what the rule is going to be in this case.
I would prefer to defer it until then.
MR. BOUTROUS: That's what I would propose, Your Honor. That way, simply recording it now, and then the Court can grapple with that issue when we find out what happens on Wednesday.
THE COURT: Very well.
MR. BOUTROUS: Thank you, Your Honor.
THE COURT: Mr. Cooper.
MR. COOPER: Your Honor, I very much appreciate Mr. Boutrous's desire to ensure that my words are memorialized.
(Laughter)
But I do object to his proposal. I don't believe that it's in keeping with -- although, at least as I read the Court's order, and I only had a moment to do so, I don't believe it specifically addresses this issue. But I don't think it's consistent with the spirit of that order.
So I just want to make clear our objection to that proposal. Thank you.
THE COURT: Very well. Your objection is noted.
Well, we have opening statements to make. And are there any preliminary matters that we should address before we turn to the opening statements? For the plaintiffs, for the defendants, for the intervenors.
MR. OLSON: We have none. We are ready to proceed when Your Honor is ready.
THE COURT: Very well. Mr. Cooper.
MR. COOPER: Your Honor, I only have a preliminary evidentiary matter I would like to put on the record, for purposes of preserving it. And I think perhaps that should happen after the opening statements and when we get into the presentation of evidence. But I wanted to alert you to that.
THE COURT: And what is that, sir?
MR. COOPER: It is to reiterate, again, for purposes of preserving our objection to any evidentiary presentation going to the intent and purpose of the voters in Proposition 8. We have, as you know, relied from the outset on the SASSO case, and its statement that the question of motivation for a referendum, apart from consideration of its effects, is not an appropriate one for judicial injury.
Now, we know we have lost this issue here. But I do want to put this on the record, for purposes of preserving it solely.
And I know that from the exhibits that plaintiffs' counsel have provided to us that in the opening witnesses it appears they plan to put this kind of evidence on, things such as the ads used in connection with the Yes On 8 campaign. And so I simply want to have a continuing objection, if I may, to all of that evidence, so that I needn't and my colleagues needn't pop up every time such information is solicited, as it will be throughout the trial.
So that's my only purpose. And if I can have that continuing objection for purposes of preserving it, I am satisfied.
THE COURT: Very well. Well, you should be satisfied. I think your record is quite clear. You have made it quite clear.
MR. COOPER: Yes, Your Honor.
THE COURT: So --
MR. COOPER: Thank you.
THE COURT: We will proceed on that understanding.
Very well. Mr. Olson, you are going to make the opening statement for the plaintiffs.
OPENING STATEMENT
MR. OLSON: Thank you, Your Honor.
This case is about marriage and equality. Plaintiffs are being denied both the right to marry and the right to equality under the law.
The Supreme Court of the United States has repeatedly described the right to marriage as one of the most vital personal rights essential to the orderly pursuit of happiness, a basic civil right, a component of the constitutional rights to liberty, privacy, association, an intimate choice, an expression of emotional support and public commitment, the exercise of spiritual unity, and the fulfillment of one's self.
In short, in the words of the highest court in the land, marriage is the most important relation in life, and of fundamental importance for all individuals.
THE COURT: Now, does the right to marry, as secured by the Constitution, mean the right to have a marriage license issued by the state?
MR. OLSON: Well, to the extent that the state asserts the right to regulate marriage, and it utilizes the form of a license to do so, I would think that would follow.
THE COURT: Why?
MR. OLSON: I'm not sure I understand the import of the question, because, as I said, it seems to me that if there is a right to marry in the Constitution, and the Court upholds the right to the individuals that we are representing to marry --
THE COURT: Well, what you're saying is that that right presumes that the state has a duty to issue marriage licenses.
MR. OLSON: Well, it would have a duty to issue a marriage license where it would constitutionally require it under the Constitution, and that would be co-extensive with the constitutional right itself.
It is certainly appropriate --
THE COURT: Could the state get out of the marriage license business?
MR. OLSON: Yes, I believe it could.
It is certainly appropriate, I was about to say, Chief Judge Walker, that there may be aspects of the marital status that the state would be perfectly appropriate in considering to regulate. Age of individuals or something like that. Or the process by which it's done, or some registration requirement or something like that.
We are not involved in this case with those types of regulatory activities. But the state, it seems to me, could get out of the business of licensing marriage. That wouldn't be required by the Constitution.
What the Supreme Court has talked about is the relationship itself, marriage. And that relationship has consistently, throughout history, been regulated by the states through the process of marriage licenses.
As the witnesses in this case will elaborate with respect to that point, the right to marriage itself, marriage is central to life in America. It promotes mental, physical, and emotional health, and the economic strength and stability of those who enter into a marital union. It is the building block of family, neighborhood and community in our society.
The California Supreme Court has declared -- excuse me, has declared that the right to marry is of central importance to an individual's opportunity to live a happy, meaningful and satisfying life, as a full member of society.
Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.
In May of 2008, the California Supreme Court concluded that under this state's constitution, the right to marry a person of one's choice extended to all individuals, regardless of sexual orientation, and was available equally to same-sex and opposite-sex couples.
In November of 2008, a few months later, the voters of California responded to that decision with Proposition 8, amending the state's constitution, and on the basis of sexual orientation and sex, slammed the door to marriage to gay and lesbian citizens.
The plaintiffs are two loving couples, American citizens entitled to equality and due process under our constitution. They are in deeply-committed, intimate and long-standing relationships.
THE COURT: I gather the evidence will be that the plaintiffs are not registered domestic partners? What is the evidence on that?
MR. OLSON: One couple is.
THE COURT: Okay.
MR. OLSON: And we will be -- in fact, the first four witnesses in the case will be the four plaintiffs. And we will ask them to describe their relationship with one another, the history of that relationship, and explore that very subject.
THE COURT: And what disabilities do they operate under as domestic partners, as opposed to marital partners?
MR. OLSON: Well, they will describe in considerable detail, Chief Judge Walker, what it means to be married, to them, to their families, to their children; what is like in the workplace; what it is like when they travel; what it is like when they go to a doctor's office; the difference between marriage and domestic partnership.
THE COURT: Well, are those differences of a legal nature? That is, are these differences, to the extent there is some inferior status associated with domestic partnership, is that a product of state action, or is that simply societal acceptance?
MR. OLSON: Well, I think the two are so closely interwoven, they cannot be extracted. Because what the state has done, has given a sanction to a formal relationship which is part of our culture and part of society.
The state is labeling an individual relationship as something called a domestic partnership, which has nothing to do with love. And it has labeled a separate relationship, which the proponents have described in papers filed with this court, as a unique and special relationship reserved for opposite-sex couples.
It means something to them. It means something to society. And it means something to the State of California.
California has put people into categories.
And I was going to say a few moments later --
THE COURT: Does Proposition 8 classify people?
MR. OLSON: It does.
THE COURT: It doesn't classify individuals, does it?
It simply restricts marriage to opposite-sex couples.
MR. OLSON: When it does so, it classifies people into separate categories.
And I will point out later in my statement that there are now four categories of Californians under -- in connection with the status of marriage. And that matters a great deal.
The evidence will show from the plaintiffs, and from the experts that will be presented to this court, what it means to be married, what it means to have the state sanction your relationship, to give its official approval. Which is one of the reasons why Proposition 8 was passed, and one of the reasons why it's being defended so vigorously by the proponents of Proposition 8, because they want that status to remain special and reserved to opposite-sex couples, and to be denied to same-sex couples, because there is a judgment being made.
And it's expressed by what California has done, that this is something different, separate, unequal, and less advantageous.
THE COURT: Domestic partnerships are not limited to same-sex couples, correct?
MR. OLSON: I think that's correct.
THE COURT: So it's possible that opposite-sex couples could form a domestic partnership and register under California law?
MR. OLSON: I haven't spent a great deal of time studying that, but I suspect Your Honor has. And I'm not dispute --
THE COURT: Don't count on it. But I believe that's true.
(Laughter)
MR. OLSON: I don't imagine why -- I know nothing that would suggest that it would be exclusive to same-sex couples.
THE COURT: All right. So where's the discrimination here?
If, for example, California were to get out of the marriage business and simply classify everybody has a domestic partner, wouldn't that solve your problem?
MR. OLSON: If California allowed people to marry without a license, which is what I think is part of the import of your suggestion, and said that the only thing we're regulating is something called domestic partnership, and everybody can do that, yes, that might mean that California is treating people equally, and people can enter into relationships that they call marriage, without the sanction of the state, the approval of the state, all of the things that goes with the government taking a position on relationships based upon sex or sexual orientation. That may solve the problem.
That will never happen. The people of California, I just am reasonably confident in predicting, will not get out of the business of marriage.
As I said, on November 8, the voters of California slammed the door on marriage to gay and lesbian citizens.
THE COURT: Why won't they get out of the marriage business?
MR. OLSON: Why --
(Simultaneous colloquy.)
THE COURT: Get out of the marriage business. That would solve this problem, wouldn't it?
MR. OLSON: I think that politically it would not happen. Now, I'm not offering myself as an expert --
THE COURT: As a political expert.
(Laughter)
MR. OLSON: -- on political science or what the voters do, because I've been wrong again and again. I'm just handed a note, and I don't know -- I haven't researched this -- that only opposite-sex couples over 62 years old can receive the domestic partnership treatment.
I have not researched this, and I advance it on the basis of someone on our team obviously has.
THE COURT: Good authority, as it were.
(Laughter)
MR. OLSON: But I do not offer myself as an expert on what the voters of this state or any other state will do. But from what I do know of after having lived in California a long time, and studied the issue of relationship and marriage in connection with this case, I suspect that the people of the state of California are not going to want to abandon the relationship which the proponents of Proposition 8 spend enormous amount of resources describing as a special relationship, that means a great deal to people and is important, and is so important that it must be preserved for opposite-sex couples and withheld from same-sex couples.
THE COURT: Well, but the proponents argue that marriage has never been extended to same-sex couples in the past, and so we're simply preserving a tradition that is long established and that is, indeed, implicit in the very concept of marriage.
MR. OLSON: Yes. And we will offer evidence about the relationship, about what the courts of the -- the Supreme Court of the United States and the Supreme Court of this state, and what the experts who have studied marriages have said about that.
One of the points that I was going to make, and I will make it, is that there have been restrictions on marriage in the past, based upon biases towards people of a different race, based upon sex. There have been restrictions on marriage that treated women unequally in the relationship. That was always the way it was for a while. It was always the way it was in certain states, that certain people of certain races or ethnicity. California treated people of an Asian descent differently with respect to marriage.
THE COURT: What's the evidence going to show that has happened here to raise the right to marry to such a level that now the marriage of same-sex couples is entitled to equal protection and due process protection? What are the facts going to show?
MR. OLSON: Well, the facts are going to show that the relationship -- that what the Supreme Court has talked about is in the relationship of marriage, is the right of an individual to privacy, association, liberty, intimate relationships, and so forth, and that that -- what the Supreme Court has talked about, in terms of what the relationship means, isn't limited to people of opposite sex.
What an individual gets out of the relationship of marriage -- and this is what the evidence will show from experts at leading institutions from the United States and in the world -- that it's the relationship between the individual in the marriage situation that is valuable; and the withholding of it doesn't make sense, from certain classes of individuals.
THE COURT: But what's the change that has occurred to elevate this right or to change the understanding of this right? What are the facts going to be?
MR. OLSON: Well, California, as I said a few moments ago, in May of 2008, said that opposite -- same-sex couples have the same right to marry under the California Constitution as opposite-sex couples.
What the California Supreme Court did was pronounce what the California Constitution permitted. So that what California Supreme Court was saying is what the right was. And it included the right of same-sex couples to marry.
THE COURT: I'm not getting at what the California Supreme Court said. I'm getting at what the evidence here is going to show.
MR. OLSON: The evidence here is going to show the same sort of thing that the California Supreme Court and the United States Supreme Court has considered when it has considered marriage.
And you asked: What changed? What changed, what changed was, the change was November of 2008, when Proposition 8 was passed.
Because the California proposition, California Constitution, up to that point, based upon the decision of the California Supreme Court in May, permitted people of the same sex to marry.
What changed was Proposition 8, which isolated gay men and lesbian individuals and said: You're different. We're going to withhold and take away that right from you.
THE COURT: What's the evidence here going to show that Proposition 8 was motivated by an intent to discriminate against gays and lesbians? The evidence, what's the evidence?
MR. OLSON: The evidence, in the first place, the advertising, the ballot proposition, the -- Proposition 8 itself, official title of the ballot measure, in a sense, said it all. "Eliminates right of same-sex couples to marry."
Now, discrimination, it can take various forms --
THE COURT: Wasn't that a formulation devised by the attorney general?
MR. OLSON: That's not only the official title of the statute, it's the way it was characterized. It was the way it was characterized in the official ballot measure information that's sent to every voter in the state: "Eliminate the right of same-sex couples to marry."
There is no question, Your Honor, that what Proposition 8 did and was intended to do was to take away a right of same-sex couples to be in the marital relationship and to confine them to domestic partnerships or some other relationship. It put them in a different category. Now, that's discrimination.
We could argue, and there will be some discussion by the experts, and the plaintiffs themselves, about what they heard and what they saw during the campaign for Proposition 8, and how that made them feel, with respect to the things that were being said about them and about their relationship.
I'm sure that the evidence is -- would show, no matter who put the evidence on, that the individual voters may have been motivated differently one way or the other.
They may have had religious convictions. They may have had other kinds of -- the same kind of sentiments towards gay men and lesbian women that have motivated people to prevent such individuals from serving in the United States government, from serving in the Armed Forces, from being prosecuted criminally. It may have been all kinds of range of emotions.
But discrimination isn't in any doubt.
THE COURT: Well, but moral disapproval has never been a basis to find an enactment unconstitutional; has it?
Local ordinance or state law preventing or prohibiting the sale of intoxicating liquors would not be invalid because it reflects the moral values of a community.
MR. OLSON: Well, moral values of a community, if they take into consideration, as you used the phrase in your very first order in this case, "immutable characteristics," may have constitutional dimension.
The discrimination against people on the basis of race, the history of the United States is full of moral condemnation of other people because of their race, their sex, or their ethnicity.
Moral condemnation is a very, very broad concept.
And the idea that someone is different and, therefore, shouldn't be able in California to own a laundry, is something that the United States Supreme Court rejected.
The Supreme Court of the United States, in Lawrence vs. Texas, addressed that very point. The argument was by the State of Texas, is: Of course we can prohibit that private, intimate relationship between individuals of the same sex because of moral disapproval. That was the basis advanced in the United States Supreme Court with respect to the conduct that was at issue there.
THE COURT: But all kinds of laws are based upon some moral understanding that is commonly and widely shared. That doesn't make the enactment or the law invalid, does it?
MR. OLSON: No. But it does when it has to do with the person's race, a person's sex, a person's ethnicity.
I would submit, if it was based upon a person's religion, and Lawrence vs. Texas and Romer vs. Colorado, stand for the proposition that if that moral disapproval, or whatever kind of disapproval it is -- because it is disapproval when you are putting somebody in a different box. The California Supreme Court said, denying this right to Californians made them second class citizens.
So there's moral disapproval and disapproval. But when it's based upon certain characteristics of the individual, then, it cannot constitutionally be done in the United States of America, under the Fourteenth Amendment to the Constitution of the United States.
As I said just a moment ago, the California Supreme Court specifically addressed this and said that, relegating these individuals, preventing them from marrying a same-sex partner, relegates those individuals, to use the phrase of the California Supreme Court, "to second class citizenship," and tells their families and them and their neighbors and their co-workers that their love and their desire for a sanctioned marital partnership is not worthy of recognition.
During the trial -- you've asked about the evidence. Plaintiffs and leading experts in the fields of history, psychology, economics, and political science will prove these three basic fundamental points that we will be addressing during the course of this trial:
Marriage, that relationship, culturally and as sanctioned by the state, is vitally important in American society.
Secondly, by denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter -- we will talk about the chapters in American and California history -- to the long history of discrimination these individuals have suffered at the hands of their fellow citizens and at the hands of their government.
And, thirdly, that Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good. No good reason.
Now, with respect to the first point, marriage, the experts, the witnesses that we will present in the next few days, who are from leading experts representing the finest academies in the United States and throughout the world, who will say what the Supreme Court and the Supreme Court of California has already said about the importance of marriage in society, the significant benefits that that relationship between two individuals confers on couples, their families and the community, proponents really cannot dispute these basic facts about the value and integrity and importance of marriage.
THE COURT: If same-sex couples are permitted to enter this institution, this esteemed institution of marriage, doesn't that change the institution?
MR. OLSON: No, Your Honor. I am going to come to that.
It will not damage the relationship of opposite-sex couples to have the opportunity to marry. It won't change the institution. It will fulfill the institution.
The history, a point I was just about to make, of marriage has evolved. It has changed to shed irrational, unwarranted and discriminatory restrictions and limitations that reflected the biases, and prejudices, and stereotypes of past.
Marriage laws that disadvantaged women or people of a disfavored race or ethnicity have been eliminated. Some of those changes have come from court decisions, and some of those changes have come from legislative changes.
But those changes have not harmed the institution of marriage. They have not harmed the institution of marriage.
The elimination of discriminatory restrictions --
THE COURT: Is the evidence going to show that marriage as an institution is stronger now than it was when it had these limitations?
MR. OLSON: Yes. The evidence will show and the witnesses will testify that when you discriminate against someone because they are Chinese, with respect to the relationship of marriage, or when you discriminate against someone on the basis of their race, in the institution of marriage, that is wrong and that weakens the institution of marriage.
THE COURT: What evidence is that?
MR. OLSON: The President of the United States, today's president of the United States, if his mother and father had tried to get married in Virginia before the time he was born, it would have been against the law.
That weakens our moral fiber in this country. It weakens our respect for the Constitution. And, in my judgment, and I think in the judgment of the experts, and certainly it's in the judgment of the United States Supreme Court in Loving vs. Virginia, it weakened the institution of marriage to have those types of restrictions.
It certainly weakened the institution of marriage when women were treated differently in the marital relationship.
The taking away of those restrictions allowed women and men to have an equal relationship. And California was among the leaders in removing some of those distinctions, both legislatively and through court decisions.
The harm that is done is significant. Proposition 8 harmed individuals in this state who are citizens. Proposition 8, as I said, had a simple, straightforward purpose.
Now, evil -- we're not talking about evil purpose or anything else. We are talking about a purpose to eliminate a right that some people had under the California Constitution.
THE COURT: Well, they hadn't had that right very long.
MR. OLSON: They had --
THE COURT: Doesn't that make some difference? If we are talking about a long-established right, it would be one thing. But this is a right which was established by the California Supreme Court mere months prior to the decision in the Strauss case.
MR. OLSON: The -- when the California -- the California Supreme Court didn't create the right. The California Supreme Court recognized the right in the California Constitution.
And when the United States Supreme Court determines that something violates the First Amendment or the Fourteenth Amendment, it is recognizing and deciding, declaring, in the words of Marbury vs. Madison, what the law is.
So the fact that the California Supreme Court finally got around, in May of 2008, to --
THE COURT: Some people find these discoveries surprising, of course.
MR. OLSON: Well, we are -- I was constantly surprised by education.
And one of the things that I think this trial will do -- and I hope that the Supreme Court allows the American people to see it, because it will be an education. Attitudes change when people are educated.
And when they learn -- if the American people could see what you're going to see, from the plaintiffs themselves, what that discrimination does to them every day, and what it does to their families and to their relationships when they go somewhere and they can't introduce the person that they love as their spouse, they have to explain what in the world a domestic partnership is, what that does, does maybe surprise some people. Surprise in the sense that it opens people's minds to the damage that we're doing when we discriminate on this basis.
THE COURT: Now, if Proposition 8 is unconstitutional, can the Defense of Marriage Act be constitutional?
MR. OLSON: We have not specifically addressed that.
And your decision in this case or the Supreme Court's decision in this case will -- will certainly have an impact on that. Part of what is going to be before you, and we'll have to all work this through, is that one of the things that distinguishes what we have in California is something that was very similar to the situation in Romer vs. Colorado, where an existing constitutional right and a -- was taken away, or existing rights were taken away by an amendment to the constitution.
So what may be decided in this case may not necessarily go so broad as to take down or implicitly take down the Defense of Marriage statute.
I think, at the end of the day, that that discrimination -- my personal opinion -- and I have researched this -- is that that is unconstitutional, as well. And the discrimination of individuals on this basis, under our constitution, based upon characteristics of individuals that they do not choose to have, like race or sex or ethnicity, is unconstitutional.
This case, at the end of the day, may not lead you there. But the idea that something is -- that taking away of the right to marriage is okay, no big deal, because you have a right to domestic partnership, is a cruel fiction.
As I said, the plaintiffs will describe the harm that they suffer every day because they are prevented from marrying. They will describe and experts will describe -- but there is no better voice to express it than the people themselves -- how demeaning and insulting it can be that they are still free to marry, as long as they marry someone of the opposite sex; not the person that they love; not the person who is their choice.
And the evidence will demonstrate that relegating gay men and lesbians to domestic partnerships is to inflict upon them badges of inferior that forever stigmatize their loving relationships as different, separate, unequal, and less worthy, something akin to a commercial venture. That's what a domestic partnership looks like, sounds like, feels like. Not a loving union.
Indeed, the proponents of Proposition 8 acknowledge that domestic partnerships aren't the same as traditional marriage. They proudly proclaim, in the papers they filed with this court -- and we don't disagree with this -- that under Proposition 8, in their words, the unique and highly-favorable imprimatur by the state, of marriage, is reserved to opposite-sex unions. That's something special. That's something important. That's something that's unique. And it's highly favorable. And it's reserved to people of the opposite sex, when they wish to marry.
This government-sponsored societal stigmatization causes grave -- the experts will tell us -- grave psychological and physical harms to gay men and lesbians and their families.
And it increases the likelihood, because we are branding them as different, as inferior and as less worthy, and their relationships as less worthy of recognition, it increases the likelihood they will experiences discrimination and harassment.
It causes immeasurable arm.
And, sadly, to come back to a point you were making, it is only the most recent chapter in our nation's history, long and painful, of discrimination and prejudice against gay and lesbian individuals.
They have been classified in this nation as degenerates, targeted by police, harassed in the workplace, censored, demonized, fired from government jobs.
It wasn't very many years ago that the president of the United States said that people who were homosexuals could be fired from -- or should be fired from their government jobs, excluded from our Armed Forces, arrested for their private sexual conduct, and repeatedly stripped of their fundamental rights by popular vote.
Progress, Your Honor, has occurred. But the roots of discrimination run deep, and their impacts spread widely. And Proposition 8 perpetuates that discrimination, and it does so for no good reason.
It singles out -- Proposition 8 singles out gay and lesbian individuals alone, for exclusion from the institution of marriage.
In California, even convicted murderers and child abusers enjoy the freedom to marry. As the evidence clearly establishes, this discrimination has been placed in California's Constitution even though its victims, the victims of this discrimination, are and always have been fully contributing members of our society.
THE COURT: Are not discrimination based on sex and discrimination based on sexual orientation different?
MR. OLSON: They can be different.
THE COURT: Well --
MR. OLSON: In this case, they are both -- both types of discrimination is involved.
There is no question that there's discrimination based upon sexual orientation. But it's also sex, because the state is telling me, if I wish to marry the person that I love, another decent citizen of California, I can marry that person provided the sex of that person is right.
The state has decided that marriage, based upon sex, is okay, that it will be recognized. This relationship based upon sex won't. It's sexual orientation and it is sex.
And this is -- this proposition excludes gay men and lesbians from the institution of marriage, even though that sexual orientation to which you referred, like race, sex, and ethnicity, is a fundamental aspect of their identity that they did not choose for themselves. And, as the California Supreme Court found, is highly resistant to change.
The State of California, the State of California, who has this proposition in its constitution, has no justification, none, for the decision to eliminate the fundamental right to marry for a segment of its citizens. It offers no defense.
And its chief legal officer, the Attorney General of California, admits that none exists; that this is unconstitutional.
And the evidence will show that each of the rationalizations for Proposition 8, invented, invented by its proponents, is without merit.
They mention procreation. Procreation cannot be a justification, inasmuch as Proposition 8 permits marriage by persons who are unable or who have no intention or no ability, whatsoever, to have children or produce children.
Indeed, the institution of marriage, civil marriage in this country, has never been restricted or tied to the procreative activity of those who enter into it.
Proposition 8 also has no rational relationship to the parenting of children -- although, this is what the proponents are now saying -- because same-sex couples and opposite-sex couples are equally, in California, permitted to have and raise children in this state.
The evidence in this case, from the experts, will demonstrate that gay and lesbian individuals are every bit as capable of being loving, caring and effective parents as heterosexuals. The quality of a parent is not measured by gender, but by the content of the heart.
And two of our plaintiffs are raising four children. And they will discuss that relationship. And there is no doubt in my mind that it will demonstrate, that evidence will demonstrate, that passion that they have for their family and the raising of their children cannot be characterized as insufficient or inadequate or inferior in any way.
And as for protecting, the point you made earlier, traditional marriage, our opponents -- you asked this question. Our opponents don't know how permitting gay and lesbian couples to marry would harm the marriage of opposite-sex couples.
And, needless to say, guesswork, speculation about what might happen or what might not happen is an inadequate justification for discrimination.
But the evidence affirmatively will show that permitting loving, deeply-committed couples like the plaintiffs to marry has no impact, whatsoever -- to address your question -- upon the marital relationship of others.
When voters in California were urged -- and this will come back to another point -- to enact Proposition 8, they were encouraged to believe that unless Proposition 8 was enacted, anti-gay religious institutions would be closed, gay activists would overwhelm the will of heterosexuals people in California, and that children would be taught that it was acceptable for gay and lesbians to marry.
Parents were urged to protect our children from that presumably pernicious point of view that it was acceptable for a gay person to marry another gay person.
At the end of the day, whatever the motives of the -- whatever the motives of its proponents, Proposition 8 enacted -- and this goes back to yet another one of your points -- enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting of four separate and distinct classes of citizens:
First, heterosexuals, including convicted criminals, substance abusers, and sex offenders, who are permitted to marry. And their marriage is recognized in California.
Second, 18,000 same-sex couples married between June and November of 2008, are allowed to remain married. But if they divorce or if they lose their spouse by widowhood, they can't remarry.
And, third, thousands of same-sex couples, as of the first of the year, who were married in certain other states prior to November of 2008, those marriages are now valid and recognized in California. People who were married someplace else and came to California, their marriage are recognized.
But, fourth, the fourth category are the people that we represent, the plaintiffs and hundreds of thousands of other Californian same-sex couples who are prohibited by Proposition 8 from marrying.
At the end of the day, there is no rational justification for this unique pattern of discrimination.
Proposition 8 and this irrational pattern of category, category, category -- THE COURT: Mr. Cooper frequently makes the point that this it is really a subject from which the courts should abstain, should not involve themselves; that this is an issue that's being played out through the political process. We've seen it play out in the last few months in the political process.
Why shouldn't the courts stand back and let this develop politically?
MR. OLSON: Because that is why we have courts. And that is why we have a Constitution. That is why we have the Fourteenth Amendment.
When individuals who may not be the most popular people, who are different than we are, are treated differently under the Constitution, when they are excluded from our schools or when they are put in separate schools, or when they are not allowed to marry because of the color of the skin of the partner of their choice is different, they come to the courts.
And time after time the courts have addressed these issues, and time after time the courts have addressed those issues notwithstanding that very, very point. Leave it to the political process.
We wouldn't need a Constitution if we left everything to the political process, but if we left everything to the political process, the majority would always prevail, which is a great thing about democracy, but it's not so good if you are a minority or if you're a disfavored minority or you're new or you're different. And that's what happens here.
What Prop 8 does is label gay and lesbian persons as different, inferior, unequal and disfavored. It says to them, your relationship is not the same. And it's less approved than those enjoyed by opposite-sex couples. It stigmatizes gays and lesbians. It classifies them as outcasts. It causes needless and unrelenting pain and isolation and humiliation.
We have courts to declare enactments like Proposition 8 that take our citizens, our worthy, loving, upstanding citizens who are being treated differently and being hurt every single day, we have courts to declare those measures unconstitutional. And that is why we are here today.
THE COURT: Very well. Thank you, Mr. Olson.
Ms. Stewart, very briefly. Your intervention is with respect to the impact of Proposition 8 on cities and counties in the state, municipalities. What's the evidence going to show in this regard?
OPENING STATEMENT
MS. STEWART: Thank you, your Honor.
Mr. Olson spoke eloquently about the California Supreme Court's statement that denying marriage and relegating same-sex couples to a different institution labels them second class, sends the message that they are second class.
And what you'll hear in this case is evidence about the deep links between Proposition 8 and the prejudice that tells gay men and lesbians and their families that they are inferior.
Proposition 8 both springs from prejudice --
THE COURT: Well, I'm interested in the issue on which you have been permitted to intervene, and that is reflected in one of the plaintiffs' proposed findings; that recognizing same-sex marriage would produce a $3 billion surplus for California.
What's the evidence on that?
MS. STEWART: Your Honor, the evidence of the economic effects of the -- of Proposition 8 will come both in the form of admissions and discovery that we have gotten from the state itself, as well as testimony that you are going to hear from economic experts.
It's also going to come from testimony about some of the direct effects of the prejudice that happened during the Proposition 8 campaign and that reaches back to earlier prejudice that Mr. Olson alluded to.
I want to briefly touch on what that evidence will show and then on its effects.
Against -- the backdrop, I think, Mr. Olson mentioned, and I won't go back, about the history of discrimination and the demonization of gay people, and it was against this backdrop that Proposition 8's proponents carefully calibrated their campaign to evoke messages that Americans have heard many times before. Messages that gay relationships are inferior, that they are immoral, and that the gay agenda will have dire consequences for non-gay people, and especially for children.
We have heard in the campaign, and the Court will hear evidence that there is a culturally triumphant homosexual movement that will have -- poses a grave threat to children.
It will hear evidence that the campaign said gay relationships are not the same as marriage and that gay relationships can only imitate heterosexual relationships. That gay relationships are -- that gay lives are a sin and that --
THE COURT: Let's get back to the economics.
MS. STEWART: The denial of marriage is one of those --
THE COURT: Where is the link between the denial of same-sex marriage and injury to a municipality in the State of California?
MS. STEWART: First of all, your Honor, you will hear that this prejudice has caused hate crimes in the State of California. Hate crimes. That prejudice and treating gay people as inferior has caused hate crimes that are occurring at an alarming rate for as long as the government has kept statistics.
You'll hear about a San Diego man who was beaten nearly to death in 2006.
You will hear about a 15-year-old boy who was shot and killed in Oxnard, California late last year by another boy because of his sexual orientation.
You'll hear about the costs that those hate crimes impose on the government.
THE COURT: What's the link to Proposition 8?
MS. STEWART: Well, your Honor, you -- I was trying to talk about that link, and so let me shift back to that.
Proposition 8 taught that gay people's lives are a sin; that they can't be compared to the skin of racial minorities; that it's one thing for the majority to tolerate those relationships, but that they can't be recognized or celebrated; that being gay is a lifestyle that can and should be changed.
It reinforced messages that our historian will talk about that have been played over and over again in American history about the inferiority of gay people and about how immoral and sinful a people they are.
That message leads to hate crimes, your Honor, and we will show that link. And that hate crimes based on sexual orientation not only harm the victims in a huge way, but harm the government, who has to investigate and prosecute those hate crimes and spend a great deal of money to do that.
You will hear about a boy who was emotionally and physically abused by his parents when they learned that he was gay, by so-called therapists who tried to convert him into a heterosexual starting when he was only 14 years old. You will hear about how he dropped out of school, how he left home, how he sought refuge with the juvenile dependency system and relied on public hospitals for healthcare that he couldn't afford.
You will hear that he almost -- he suffered depression and self-destructive behavior and came close to throwing his life away.
The consequences of that abuse were not borne by that young man alone, although he bore them most heavily. The human and economic costs were also borne by the government, the juvenile dependency system, the hospitals and the other social services.
You'll also hear about people whose employers grant healthcare coverage to the spouses of their married employees, but refuse to provide that coverage to the domestic partners of their lesbian and gay employees.
Healthcare coverage, when it’s denied either because a young man leaves his home for persecution by his family or because the employers of a person in a same-sex relationship will not provide coverage to their domestic partner, that healthcare coverage has to be provided by someone, and county governments are the healthcare provider of last resort.
Last year San Francisco spent $177 million on health services for the uninsured. It is very difficult to prove exactly how much of that amount is related to discrimination, but we know that it is a significant amount. And even a small fraction of that amount means millions of taxpayer dollars that could have been spent for something other than discrimination.
The evidence will also show that when lesbians and gay men suffer from psychological distress due to the discrimination and the stigmatization that they face every single day, governments not only spend money to provide necessary services for them in a general way, but, also, must develop special programs to reach out to them and to ensure that they come and that they get treated.
As I mentioned, when hate crimes take place, the government spends money to investigate them, to prosecute them. Those costs are hard to track, but even more difficult to track is the cost to the victims themselves and to the businesses and to the government that result when victims' injuries reduce their productivity or when their fear keeps them from traveling or from socializing even at the restaurants and cafes in their own neighborhood.
When couples cannot get married and celebrate their marriages in their communities, they are denied many of the tangible and intangible benefits that our experts will tell you marriage brings.
Their loss is also the community's loss. Lower tax revenues and higher social service costs are borne by the whole community. The community also loses the economic activity and tax revenue that comes from weddings.
The Proposition 8 proponents are going to tell you that all is well in California and America; that these instances of a discrimination no longer occur and that they are banned by law and, in any event, are rare; that hostility and prejudice are products of a past era.
Tell that to the man who almost lost his life in 2006. Tell it to the family of the young boy who was murdered in Oxnard. Tell it to the men and women who serve their country in uniform, to be discharged and stigmatized because they can no longer hide their lives and their loved ones from their fellow soldiers. Tell it to the people in Arkansas who can't adopt, and tell it to the children who cannot be placed in homes because there aren't enough homes to place them in. And tell it to the plaintiffs who sit before you today unable to participate in this most important relationship of adult life.
Proposition 8 comes from and perpetuates a prejudice, and it's a prejudice that society not only can't tolerate, but it can't afford.
Proposition 8 cannot stand.
THE COURT: Very well. Thank you, Ms. Stewart.
Before turning to Mr. Cooper, does the Governor have anything that he wants to make by way of an opening statement?
MR. STROUD: The Governor, his counsel will not make an opening statement, your Honor.
THE COURT: Very well.
How about the Attorney General? I have a question for the Attorney General.
MS. PACHTER: Yes, your Honor.
THE COURT: If Proposition 8 violates the United States Constitution, the position which the Attorney General is taking now, how did it wind up on the ballot?
Isn't the Attorney General supposed to review these measures beforehand and if an initiative measure is in violation of the Constitution, isn't the Attorney General duty-bound to prevent it from being placed before the voters?
MS. PACHTER: No, your Honor. I don't believe that's true under California law.
The Attorney General's responsibility is to draft a title and summary that describes the initiative for the purpose of collecting signatures --
THE COURT: Can I have a brief on this?
MS. PACHTER: Pardon me?
THE COURT: Can I have a brief on this?
You say the Attorney General has no duty or responsibility to review an initiative measure for its constitutionality or its unconstitutionality before being placed before the voters.
MS. PACHTER: That's right, your Honor. There are provisions in the law for challenging, in advance of putting it on the ballot, a ballot initiative. Most of those are generally not decided in advance of the election under prevailing precedent in California law. But we are happy to present a brief.
THE COURT: As a lawyer, I was involved in a pre-election challenge to an initiative measure.
MS. PACHTER: Yes. I'm sorry. I think I mis- --
THE COURT: And you say the Attorney General has no responsibility to review an initiative measure for its constitutionality?
MS. PACHTER: Not under the law of the initiative process in California, your Honor, no.
The Attorney General does not have the authority under state law to determine what the law is. That under California law, as well as under federal law, is the province of the courts.
THE COURT: Did the Attorney General take a position on Proposition 8 prior to the election?
MS. PACHTER: Your Honor, I don't know the answer to that question, but I do not believe so.
THE COURT: It was only after this lawsuit was filed that he took that position, is that correct?
MS. PACHTER: Your Honor, I'm sorry, I don't know the answer to that question.
THE COURT: It would be helpful, counsel, if you could explore these issues and at an appropriate time submit -- submit the answers.
MS. PACHTER: We would be happy to do that, your Honor.
THE COURT: Very well. I'll appreciate that.
Very well, Mr. Cooper.
OPENING STATEMENT
MR. COOPER: Good morning again, Chief Judge Walker, and may it please the Court.
On November 4th, 2008, 14 million Californians went to the polls to cast their ballots on an issue of overriding social and cultural importance: Whether the institution of marriage should be redefined to include couples of the same sex.
Over 52 percent of the those Californians voted to restore and preserve the traditional definition of marriage as the union of a man and a woman. A definition that has prevailed in virtually every society in recorded history, since long before the advent of modern religions.
And in passing Proposition 8, California joined 28 sister states that have in recent years enshrined the traditional definition of marriage in their constitutions, and many more states and the federal government have enacted clarifying statutes to the same effect. Only five states, your Honor, have opened the institution of marriage to same-sex couples and three of those had it imposed upon them by judges.
Indeed, that's how same sex marriage came to California, in a highly controversial four-to-three decision in which the California Supreme Court purported to apply the people's will, a decision that had reversed the Court of Appeals in California which had ruled to uphold the traditional definition of marriage.
Five months later, after the California Supreme Court's decision, on election day the people took the issue up into their own hands and they corrected the California Supreme Court's misunderstanding.
While the people of California have been steadfast in their support for the traditional definition of marriage, they have also been generous, your Honor, in extending rights, benefits and protections to the state's gay and lesbian population.
Indeed, except for the denomination of marriage for same-sex relationships, gays and lesbians in California have been immensely successful in obtaining their policy goals through the political process.
As Equality California, a leading gay and lesbian rights organization has explained, California has some of the most comprehensive civil rights protections for gays and lesbians in the nation. In addition to enacting sweeping anti-discrimination protections, California has long recognized same sex relationships through domestic partnerships.
In 1999 California became one of the first states in the country to allow cohabiting adults of the same sex to establish a domestic partnership. And today domestic partnerships broadly grant to same-sex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples.
Indeed, Equality California and many other gay rights organizations helped to write the 2003 legislation that extended the rights and benefits of marriage to domestic partners. And the group hailed the bill's enactment into law as a tremendous civil rights victory for the LGBT community.
Now, your Honor, gays and lesbians have secured these and many other legislative victories by mobilizing a strong and growing coalition of supporters. This coalition includes the state's largest daily newspapers, many of California's leading corporations, Hollywood, organized labor, a number of religious groups and leaders, political parties, professional associations and elected officials, among many, many others.
In short, your Honor, the evidence will show that California's gay and lesbian community has substantial political power and that California is strongly supportive of gay and lesbian rights, more so than perhaps any other state in the country.
Now, against this backdrop the support of Californians, not once in passage of Proposition 8, but twice recently in the prior passage of Proposition 22, bespeaks not ill-will or animosity toward gays and lesbians, but, rather, a special regard for this venerable institution.
Rabbi Michael Lerner, a staunch supporter of same-sex marriage, has said this:
"The fact is there are millions of Americans who believe in equal rights for gays and lesbians, but draw the line at marriage."
Countless people can hear themselves described by these words, your Honor. Among those who have drawn that line is President Obama, who said this during his presidential campaign:
"I believe that civil unions should include the same legal rights that accompany a marriage license. However, I do not support gay marriage. Marriage has religious and social connotations and I consider marriage to be between a man and a woman."
To be sure, your Honor, traditional marriage, as President Obama noted, has ancient and powerful religious connotations, as Mr. Olson also mentioned.
And it is true, that Proposition 8 was actively and vocally supported by many from the faith community, although a substantial number --
THE COURT: Mr. Olson made the point if the President's parents had been in Virginia at the time of his birth, their marriage would have been unlawful. That indicates that there is quite a change in the understanding of people's entitlement to enter into the institution of marriage.
And so his argument here is that we've had a similar evolution or change in the understanding with respect to people of the same sex entering into the marital institution, isn't that correct?
MR. COOPER: Your Honor, racial restrictions were never a definitional feature of the institution of marriage. They were never.
At the time that Loving was decided, there were but 15 states or so left that included those loathsome restrictions.
The racial restrictions were clearly a product of white supremacy doctrine and were plainly violations of the Equal Protection clause, the core purpose of which was to eliminate racial restrictions of -- generally, but precisely that kind of detail.
The limitation of marriage to a man and a woman is something that has been universal. It has -- it has been across history, across cultures, across society. The loathsome restrictions based on race are of an entirely different nature, your Honor.
THE COURT: What's the evidence going to show that they are of a different nature; that these racial restrictions are different, as a matter of fact, from the restriction against same-sex marriage?
MR. COOPER: Your Honor, the evidence is going to show with respect to the -- what we submit to you is the central societal public purpose and state interest in connection with marriage.
Racial restrictions -- the racial restrictions had nothing to do with the definitional feature of marriage that is between a man and a woman. And the purpose of the institution of marriage, the central purpose, is to promote procreation and to channel narrowly procreative sexual activity between men and women into stable enduring unions for the purpose --
THE COURT: Is that the only purpose of marriage?
MR. COOPER: Your Honor, it is the central and, we would submit, defining purpose of marriage. It is the -- it is the basis on which and the reason on which marriage as an institution has been universal across societies and cultures throughout history; two, because it is a pro-child societal institution. The evidence will show --
THE COURT: Where do the other values associated with marriage come in; companionship, support? All of those things that attend a marriage that have nothing to do with procreation.
What's the evidence going to show, that those are secondary, that those are secondary, those unimportant values associated with marriage?
MR. COOPER: What it's going to show, your Honor, is that -- is that this debate goes to the definition of marriage and what its -- what its purpose is; whether it's going to be effectively deinstitutionalized, the word used by the scholars --
THE COURT: I was going to ask, what's the evidence?
You used that in your proposed findings, that extending marriage to same-sex couples would, and I quote, radically alter the institution of marriage.
Okay. What's the evidence going to show that would support that finding?
MR. COOPER: Your Honor, it's going to show, and in the form of our expert, David Blankenhorn. He will testify that a broad consensus of leading scholars suggests that across history and cultures marriage is fundamentally a pro-child social institution anchored in socially-approved sexual intercourse between a man and a woman. And the core need that marriage, he will testify, aims to meet is the child's need to be emotionally, morally, practically and legally affiliated with the woman and the man whose sexual union brought the child into the world.
Your Honor, the evidence is going to show that, again, marriage is and always has been designed to channel the naturally procreative sexual relationships of men and women into these enduring stable unions.
It will show that it's good for the child because it increases the chances that the child will be raised by both its mother and its father. It's good for the mother, who is less likely to have -- to raise the child by herself, and it's good for the father because it establishes and it fixes his rights in and obligations to his child.
But perhaps most importantly, your Honor, from the state's perspective, channeling naturally procreative relationships into enduring committed marital unions decreases the likelihood that the state itself will have to help provide for the child's upbringing and that society will suffer the social ills that are often associated with children who are not raised in intact families.
President Obama recently noted this reality when he said this:
"We know the statistics; that children who grow up without a father are five times more likely to live in poverty and commit crime, nine times more likely to drop out of schools, and 20 times more likely to end up in prison."
THE COURT: How does permitting same-sex couples to marry in any way diminish the procreative aspect or function of marriage or denigrate the institution of marriage for heterosexuals?
MR. COOPER: Your Honor, because it will change the institution. As you -- as you noted in a question, or at least raised in a question to Mr. Olson, it will inevitably change the institution --
THE COURT: What's the evidence going to show in that regard?
MR. COOPER: The evidence is going to show, again, that the debate is whether or not this institution will remain a pro-child institution or in the words -- or whether the gradual transformation of marriage from a pro-child societal institution into a private relationship designed simply to provide adult couples with what the plaintiffs say is personal fulfillment.
The question is, your Honor, is this institution designed for these pro-child reasons or is it to produce companionship and personal fulfillment and expression of love? Are those purposes themselves important enough to run risks to the accomplishment of the pro-child purposes? The purpose of --
THE COURT: What are those risks?
MR. COOPER: The risks are, your Honor, that the nature of the institution will be altered; that it will be deinstitutionalized; that the norms, the laws, the social conventions that have given marriage its structure and that have brought it into -- that brought marriage into being, again, across cultures, across societies and throughout history, to ensure, for the sake of raising children, that the people that brought that child into the world remain together to raise the child.
And if the institution is -- is deinstitutionalized, as the scholars say, is gradually happening now and that this -- the evidence will be, your Honor, that this will hasten and perhaps complete that process, then Mr. Blankenhorn will testify that it will likely lead to very real social harms, such as, as he will testify, lower marriage rates and higher rates of divorce and non-marital cohabitation, with more children raised outside of marriage and separated from at least one of their parents.
Now, the plaintiffs’ dispute. They dispute the likelihood that these harms will result from same-sex marriage. And our point, your Honor, is that they cannot prove that they will not flow from legalizing same-sex marriage.
The same-sex marriage is simply too novel an experiment at this stage to allow for any firm conclusions, your Honor, about its long-term effect on traditional marriage and the societal interests.
THE COURT: Excuse me.
MR. COOPER: Yes. No, please.
THE COURT: Is there any evidence from the countries and states that have permitted same-sex couples to marry that marriage has been deinstitutionalized or has led to lower marriage rates or higher rates of divorce or greater incidents of non-marital cohabitation, these other matters that you've described?
MR. COOPER: Your Honor, there is evidence on this, and we believe the evidence will show that these phenomenon have followed and have been associated with and part of the deinstitutionalization of marriage in other countries.
THE COURT: What will that evidence be?
MR. COOPER: Your Honor, I believe the evidence will show that in the Netherlands marital rates have declined. Rates with respect to the cohabitation of couples with children have risen.
These are phenomenon, your Honor, that even with respect to the foreign countries -- and Netherlands was the first country, so I think the evidence with respect to it is -- has had the longest period to develop.
But even with respect to it, your Honor --
THE COURT: Which witness is going to speak to this?
MR. COOPER: The plaintiffs actually will have witnesses who speak to this.
THE COURT: To the experience in the Netherlands?
MR. COOPER: Yes, your Honor.
THE COURT: Okay.
MR. COOPER: But my point also, your Honor, is that with respect even to the foreign countries, where there is a greater body of experience or at least a longer period of experience, confident and reliable judgments simply cannot be made.
And the institution of marriage is too vital to ask the people of California or any other state to proceed without having collected that evidence and having been able to determine for themselves whether or not it, indeed, represents no threat to any of the social interests that they believe are important or whether, in fact, perhaps it does.
The people of California are entitled to await the results of that experiment in those few places where it is being tried. Five states very recently in this country, only seven countries throughout the world, your Honor. They are entitled to await the results and assess them before they make a fundamental change and alteration in the traditional definition of marriage.
THE COURT: You used the term in your proposed findings "sexual embodiment" as distinguished from "sexual orientation." What's the evidence going to show that the term "sexual embodiment" means?
MR. COOPER: Your Honor, I believe that evidence will show -- and I believe that evidence will show from, again, Mr. Blankenhorn -- that marriage is essentially the sexual embodiment of the man and the woman who form the marital union. It is -- it is that sexual embodiment that defines the institution.
It is the reality that only that naturally procreative conduct will bring forward life and it is the purpose of marriage, the central purpose of marriage, your Honor, to ensure that when -- or at least to encourage and to support and to promote that when that life is brought into being, it is brought into being by parents who are together, who are married, and who have taken responsibility to raise that child.
THE COURT: You stated in one of the proposed findings that:
"Extending marriage to same-sex couples would increase the likelihood that bisexual orientation could form a basis for a legal entitlement to group marriage."
What's the evidence that will support that proposed finding?
MR. COOPER: Your Honor, I think that is -- I think that is a legal proposition founded in --
THE COURT: It sounds like a finding of fact to me. That's what you propose it --
MR. COOPER: I think it flows from logical precepts, your Honor; that if -- if an individual has a right to marry the person of his choice, or her choice, in order to express their love for that person and have a public recognition of that love and to realize the personal fulfillment that comes from that, if that is the overriding purpose of marriage, then it -- it seems very difficult to say to someone who is a bisexual -- if that individual loves two people, one person of both sexes -- that that individual doesn't have -- and those individuals do not have the same right to express their love and have their love recognized by the state in order that they, too, may achieve personal fulfillment.
That is a proposition that we believe that if the plaintiffs are correct --
THE COURT: That would assume, of course, simultaneous --
MR. COOPER: Yes. Yes, it would, your Honor. And that's not a farfetched assumption in light of some modern conceptions of family, as the evidence there also will show.
THE COURT: That's not unheard of amongst heterosexuals, is it?
MR. COOPER: And, your Honor, the traditional age-old limitation of marriage to one man and one woman is worth preserving for that reason as well.
THE COURT: One of your proposed findings is:
"The recognition of same-sex marriage could end or significantly dilute the public socialization of heterosexual young people into a marriage culture."
What's the evidence going to show on that?
MR. COOPER: Your Honor, it will show -- and, again, through the testimony of Mr. Blankenhorn -- that the deinstitutionalization of the institution -- of the institution of marriage will hasten what we have seen with respect to that institution over the years; that is, that marriage rates have declined in this country. Cohabitation rates have increased.
To whatever extent, your Honor, the traditional and overriding purpose, and that is the procreative and responsible procreation purposes of marriage, are diluted and marriage as a pro-child social institution is diluted or weakened.
The result that you suggested in that finding of fact, we believe, and the evidence will show and the testimony will be that that will follow, or at least that will likely follow.
Again, your Honor, the -- the reality is that you will hear nothing but predictions in this trial about what this -- about what the long-term effects of adopting same-sex marriage will be on the institution of marriage itself and on the social purposes that it serves. You will hear nothing but predictions, because it is not possible to render reliable and certain judgments on these things.
And that, if for no other reason, is reason enough for the people of California to await until confident and reliable understandings can be developed on what those -- on what those realities are.
Your Honor, in the sum, we submit to you that the evidence will demonstrate that the plaintiffs' claims that Proposition 8 and the traditional definition of marriage are the products of animosity and that there is no legitimate public policy reason for supporting the traditional definition of marriage are unsupported and unsupportable.
In fact, your Honor, with respect to the notion that this traditional definition that has been restored to California law by Proposition 8 serves no good policy -- public policy reason, secular public policy reason, which Mr. Olson was emphatic about. Simply can't stand up to the evidence of the ages.
It wasn't a coincidence that every society and every culture throughout history has adopted, nurtured, protected this institution --
THE COURT: Well, he has made the point, however, that this institution has not been static; that it's evolved rather dramatically in all sorts of ways.
What precludes this institution from evolving to comprehend marriage among same-sex couples?
MR. COOPER: Your Honor, nothing precludes it. There are two states where the people, or their representatives anyway in this country, have embraced it and have undertaken to, we would submit, experiment with this proposition. It is within the permissible political and democratic judgment of the people to make that change.
And Mr. Olson spoke movingly about the change in attitudes over time. There is no question that that is true, that that is true.
Proposition 22 in this state, the statutory measure, was passed overwhelmingly. Proposition 8 was passed by a substantial majority, but nothing like Proposition 22 had.
Attitudes do change. And the political process, not you, not the members of the Ninth Circuit, and not even the members -- the Justices of the United States Supreme Court are here to reflect the attitudes of the American people. That's what they have ballot booths for, your Honor. And so nothing precludes it.
The question is whether anything in our Constitution insists on it. Whether anything in our Constitution takes that issue out of the hands of the people of California and the people of the neighboring states to California and the people of my home state and says, This is what the Constitution demands. You have no say in it.
THE COURT: There are certainly lots of issues that are taken out of the hands of the body politic and put in the hands of judges to interpret the Constitution. Why isn't this one of them?
MR. COOPER: Your Honor, it's not one of them because the legal predicates of the plaintiffs' case are not sound.
THE COURT: The factual predicates?
MR. COOPER: No, the legal predicates, your Honor, the legal predicates. We have already had our summary judgment hearing, your Honor, and argued that out at great length.
But our legal proposition is that the Fourteenth Amendment does not address and govern this issue. And does not take this issue out of the hands of the democratic -- out of the hands of the people in the democratic process.
It does not require, as it did in Loving, as it did in Loving, when it said that the Equal Protection clause was designed to eliminate racial distinctions. Racial distinctions that, by the way, are irrelevant to any purpose of marriage.
The ones that I believe, and I believe the majority of Californians believe to be central, or even the ones that the plaintiffs believe. It's irrelevant to any purpose --
THE COURT: Didn't Mr. Olson mention other restrictions or prohibitions that have been found to be constitutionally infirm?
MR. COOPER: Mr. Olson mentioned, I think he was referring to some of the restrictions that -- that many marriage regimes have placed on the wife in that regime and, yes, those have been very substantially eliminated, and nobody here is going to lament that fact, your Honor.
Most of those -- I think California civil law tradition is one that largely avoided some of the most egregious oppressions of women in the marital relationship that certainly tarnished the marriage restrictions of many, of many states.
But those restrictions, your Honor, have largely fallen away through the legislative process. Those, the legislatures have over time, quite properly, eliminated those.
They -- I don't -- I don't have a brief for the proposition that those restrictions could survive constitutional analysis. I don't -- I don't entertain much doubt that they could not.
But those two, your Honor, are not by any means definitional features of the institution of marriage; the man, woman, definition of marriage.
And, your Honor, the racial restriction in Loving was at war with the central purpose of marriage as we -- as we are submitting to you. You had a situation where two individuals whose sexual relations would narrowly lead to procreation and, yet, the state forbade those individuals from forming a marital union and, therefore, from establishing the stable and enduring marital relationship that the state otherwise sought to promote.
So, your Honor, change -- the change in attitudes that Mr. Olson mentioned is not a reason that the Constitution has somehow changed to ordain the result he seeks. It's a reason, and he has spoken eloquently to many reasons, why the people of California, perhaps the people of the other states in this country, should consider his arguments the next time the issue is before them in the political process and the democratic process.
Your Honor, I will sum up by saying simply this:
That the evidence we believe, your Honor, will demonstrate again that the plaintiffs' claims that Proposition 8 and the traditional definition of marriage that it restored to California law, that their claims that Proposition 8 is the product of animosity and that there can be no possible legitimate explanation for that traditional definition of marriage are unsupported and they are unsupportable.
The people of California were entitled to make this critical decision for themselves and they have.
Thank you, your Honor.
THE COURT: Very well. Thank you, Mr. Cooper. I believe those are the opening statements and we will take a break until 10 minutes after the hour.
And who is taking the first witness?
MR. BOIES: I am, your Honor.
THE COURT: Very well, Mr. Boies. And your first witness will be?
MR. BOIES: Mr. Jeffrey Zarrillo.
(Whereupon there was a recess in the proceedings from 10:57 a.m. until 11:15 a.m.)
THE COURT: Very well. Mr. Boies, your first witness.
MR. BOIES: Thank you, Your Honor. We call Jeffrey Zarrillo.
THE CLERK: Raise your right hand, please.
JEFFREY ZARRILLO, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: Yes, I do.
THE CLERK: Thank you. State your name, please.
THE WITNESS: Jeffrey James Zarrillo.
THE CLERK: Spell your last name is.
THE WITNESS: Z-a-r-r-i-l-l-o.
THE CLERK: And your first name.
THE WITNESS: Jeffrey is J-e-f-f-r-e-y.
THE CLERK: Thank you.
THE WITNESS: You are welcome.
THE COURT: Very well. Mr. Boise.
MR. BOIES: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. OLSON:
Q. Good morning, Mr. Zarrillo.
A. Good morning, David.
Q. Let me begin by asking you to tell the Court a little bit about yourself. How old are you?
A. I'm 36 years old.
Q. Where did you grow up?
A. I grew up in New Jersey.
Q. And how long have you been in California?
A. I've been in California since 1999.
Q. Do you have any siblings?
A. I have one brother.
Q. Tell me about your parents. Are they married?
A. My parents have been married for 41 years.
Q. Is your brother married?
A. My brother has been married for just about 14 years.
Q. Where did you go to school?
A. I went to school at Brick Township High School in Brick, New Jersey.
Q. Did you go to college?
A. Yes, I did. I graduated from Montclair State University in upper Montclair, New Jersey, in 1995.
Q. Are you employed?
A. Yes, I am.
Q. What do you do?
A. I work for AMC Entertainment, Incorporated.
Q. How long have you done that?
A. It's the only job I've ever had, for 21 years.
Q. How did you start?
A. I started as a ticket taker, and worked my way up into general manager of operations, which I currently am today.
Q. Are you gay?
A. Yes, I am.
Q. How long have you been gay?
A. As long as I can remember.
Q. How long have you been openly gay?
A. I came out in stages. I came out to some co-workers and friends that I had in California when I was 25. And, ultimately, came out to my friends and family in New Jersey when I was just about 30.
Q. Why did it take you so long?
A. Coming out is a very personal and internal process. Excuse me. You have to get to the point where you're comfortable with yourself, with your own identity and who you are.
So it was difficult where I grew up, through school and peer pressure, and the things you hear, and the things you see, and the things you read about with regards to the gay and lesbian community, and what coming out means and that process that people go through.
And it changes you. Ultimately, you get to the point where you are comfortable with yourself, while previously, when you were going through the process of deciding to come out, your thought process included what other people would think of you coming out. But it's not about that. It doesn't -- it's not about anybody else at that time. It's about me and how I felt growing up in society with the stereotypes and hate that existed.
Q. Tell me a little bit about what you were referring to when you talked about what you read and what you heard and the stereotypes that you were faced with.
A. I think we can all remember times in school, whether it be grammar school, middle school, or high school, or college -- and it didn't necessarily have to be about gay issues -- but the peer pressure and the things that your friends and your acquaintances in school said.
Especially when many of my friends, at the time when I was going through this internal process, identified themselves as straight, and were dating women and asking girls to the prom and to school dances. And that was tough for me. I was someone that really wanted to -- to go out for the football team, but I was afraid to -- to be with men in the locker room.
Q. What were some of the things that you heard and read about gays and the stereotypes that you mentioned, that caused you concern before you came out?
MR. RAUM: Objection. Hearsay.
THE COURT: I beg your pardon?
MR. RAUM: Hearsay, Your Honor.
THE COURT: I think it goes to the mental impressions of the witness state of mind. Objection overruled.
THE WITNESS: I can remember specific times watching TV. I don't recall the name of the specific After School Special, but it was an After School Special about a child that came out to his parents and was kicked out of his home, and told by his parents that they didn't love him, not to come back.
And I remember seeing a soap opera, called One Life to Live, when I was in middle school, and there was a -- Ryan Phillippe played a gay kid on the show. And it was a similar situation where he found it so hard to come out in his community and in his home. And he was ultimately kicked out of his home by his father because his father didn't approve of him.
BY MR. OLSON:
Q. Now, today you are in a committed relationship with another gay man, correct?
A. Yes, sir.
Q. Tell me a little bit about that man.
A. He's the love of my life. I love him probably more than I love myself. I would do anything for him. I would put his needs ahead of my own.
I would be with him in sickness and in health, for richer, for poorer, death do us part, just like vows. I would do anything for him. And I want nothing more than to marry him.
Q. How long have you been in this relationship?
A. March will be nine years.
Q. When you said you wanted nothing more than to marry him, why?
A. The word "marriage" has a special meaning. It's why we're here today. If it wasn't so important, we wouldn't be here today.
I want to be able to share the joy and the happiness that my parents felt, my brother felt, my friends, my co-workers, my neighbors, of having the opportunity to be married.
It's the logical next step for us.
Q. Do you believe that if you are married, that that would change the relationship that you have, at all?
A. Absolutely. I think -- I think one's capacity to love can absolutely grow. I think one's capacity to be committed to another individual can absolutely expand. And I'm confident that that would happen with us.
Q. Do you believe that if you were able to be married, that would affect your relationships with your family and your community?
A. Absolutely.
Q. How so?
A. It's that I would be able to partake in family gatherings, friends, gathering with friends, work functions, as a married individual; and to be -- to stand alongside my parents and my brother and his wife, to be able to stand there as one family who have all had the opportunity to take advantage of -- of being married; and the pride that one feels when that -- when that happens.
Q. Do you believe that if you were married, that would affect the way other people who don't know you deal with you?
A. Sure.
Q. Why?
A. When someone is married, and whether it's an introduction with a stranger, whether it's someone noticing my ring, or something of that nature, it says to them these individuals are serious; these individuals are committed to one another; they have taken that step to be involved in a relationship that one hopes lasts the rest of their life.
Q. Now, do you -- do you have children?
A. No.
Q. Have you thought about having children?
A. Yes, we have.
Q. Have you talked about having children, the two of you?
A. Yes.
Q. Why haven't you had children?
A. Paul and I believe that it's -- the important step in order to have children would be for us to be married.
It would make it easier for -- for us, for our children, to explain our relationship, for our children to be able to explain our relationship. But, also, it would afford us additional protections for our child.
And knowing that if we were going to enter into that type of family institution, that we want to make sure that we have all of the protections so that nothing could ever eradicate that nuclear family.
Q. Now, you're aware that in the state of California you could register with the State of California as domestic partners, correct?
A. Yes, I am.
Q. Have you done so?
A. No, I have not. No, we have not.
Q. Why not?
A. Domestic partnership would relegate me to a level of second class citizenship, maybe even third class citizenship, currently, the way things are in California today.
And that's not enough. It's giving me part of the pie, but not the whole thing.
And while it is obviously an opportunity for us to do that, we hold marriage in such high regard that if we were to get married, we would be saying that we are satisfied with domestic partnership as a way to live our lives, but it doesn't give due respect to the relationship that we have had for almost nine years. Only a marriage could do that.
Q. Do you have friends who have registered as domestic partners under the California state law?
A. Probably. I -- it's not something that's talked about.
Q. Do any of your friends celebrate anniversaries of registering as domestic partners?
A. No.
Q. That sort of thing?
A. No.
Q. How does not being married affect you in your life? Does it subject you to further discrimination?
A. Yes, it does.
Q. How so?
A. The discrimination, whether directly or indirectly, it's pervasive, especially after Prop 8.
Prop 8 is embolden -- has emboldened other states to take similar actions. And that makes it difficult. You can't turn on the TV without hearing a news story. Can't log onto the Internet without reading a news story about it. Can't open a magazine or read a blog. It's everywhere now. Those are daily reminders of what I can't have.
Q. Have you encountered instances where because you are not married you were placed in embarrassing or awkward situations?
A. Yes, I have.
Q. Can you give me some examples?
A. One example is when Paul and I travel, it's always an awkward situation at the front desk at the hotel.
There's on numerous occasions where the individual working at the desk will look at us with a perplexed look on his face and say, "You ordered a king-size bed. Is that really what you want?" And that's certainly an awkward situation for him and for us. And we -- it is. It's very awkward.
There's been occasion where I've had to open a bank account. Paul and I had to open a bank account. And it was certainly an awkward situation walking to the bank and saying, "My partner and I want to open a joint bank account," and hearing, you know, "Is it a business account? A partnership?" It would just be a lot easier to describe the situation -- might not make it less awkward for those individuals, but it would make it -- crystallize it more by being able to say, "My husband and I are here to check in for our room. My husband and I are here to open a bank account."
Q. Are you ever confronted with situations where you're asked to describe your marital status?
A. Yes.
Q. What do you do in those situations?
A. Those are very awkward situations because as an individual who's very proud of his relationship and has been in a committed relationship for almost nine years I proudly wear my ring on my left hand to signify that. And it's very common when we -- if we're out at a work function or a gathering with friends, someone identifies the ring and says, "Oh, how long have you been married?" Or, "What does your wife do?" Questions of that awkward nature. Leaving me to then have to deliver the news that I'm a gay man, and my husband or my domestically-partnered friend is -- works in the fitness industry. And then that sort of creates additional awkwardness in the conversation.
Q. Now, assume that the State of California continues to tell you that you can't get married to someone of the same sex. Might that lead you to desire to get married and marry somebody of the opposite sex?
A. No.
(Laughter)
Q. Why not?
A. I have no attraction, desire, to be with a member of the opposite sex.
Q. Do you think if somehow you were able to be forced into a marriage with somebody of the opposite sex, that would lead to a stable, loving relationship?
A. Again, no.
MR. BOIES: Your Honor, I have no more questions.
THE COURT: Very well. Mr. --
MR. RAUM: No questions, Your Honor.
THE COURT: Cross examination?
MR. RAUM: No questions.
THE COURT: No cross examination. Very well.
Then, Mr. Zarrillo, sir, you may step down.
THE WITNESS: Thank you, Your Honor.
MR. BOIES: Your Honor, we call as our second witness, Mr. Paul Katami.
THE COURT: Very well.
THE CLERK: Raise your right hand, please.
PAULA KATAMI, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: I do.
THE CLERK: State your name, please.
THE WITNESS: Paul Katami.
THE CLERK: And spell your last name.
THE WITNESS: K-a-t-a-m-i.
THE CLERK: And your first name.
THE WITNESS: P-a-u-l.
THE CLERK: Thank you.
DIRECT EXAMINATION
BY MR. BOIES:
Q. Good morning, Mr. Katami.
A. Good morning.
Q. Would you tell the Court a little bit about yourself. How old are you?
A. I'm 37 years old.
Q. And where did you grow up?
A. I grew up here in San Francisco.
Q. Uhm, and do you have any siblings?
A. I do.
Q. How many?
A. I have two. I have an older sister and an older brother.
Q. And where do your parents live?
A. My father lives here in San Francisco. And my mother lives in Santa Clara, California.
Q. Where did you go to school?
A. You want the whole run?
Q. Summarize it.
A. I went to school here at St. Anne's of the Sunset, and then went to St. Ignatius College Preparatory for Boys, in the City. And then I went to Santa Clara University. And then I went to UCLA for graduate school.
Q. And what degrees do you have?
A. Uhm, the highest degree is a master of fine arts.
Q. Where are you employed?
A. Currently employed for Equinox Fitness.
Q. And what do you do there?
A. I am a manager of group fitness.
Q. Now, you were sitting in court when Mr. Zarrillo described your relationship; were you not?
A. I was.
Q. And we don't have to go through again how long that's gone on, but I would like you to tell me whether you would like to get married, as well.
A. I would. Most definitely.
Q. Incidentally, did you try to get married here in California?
A. We did not.
Q. The -- did you go to apply for a marriage license?
A. That we did.
Q. And what happened when you applied for a marriage license?
A. Oh, we were denied that license.
Q. When was that?
A. That was in May of 2009.
Q. Why did you want to get married?
A. There are many reasons. I think the primary reason for me is because I have found someone that I love and that I know I can dedicate the rest of my life to.
And when you find someone who is not only your best friend but your best advocate and supporter in life, it's a natural next step for me to want to be married to that person.
Q. Do you think if you were able to get married, that that would in any way change your relationship with Mr. Zarrillo?
A. I think it would.
Q. In what way?
A. Being married allows us access to the language. Being able to call him my husband is so definitive, it changes our relationship.
We currently struggle, in certain circumstances, about what to call each other. We both dislike "lover." You know, it's just -- it's a challenge. But "husband" is definitive. It's something that everyone understands. There is no subtlety to it. It is absolute, and also comes with a modicum of respect and understanding that your relationship is not temporal, it's not new, it's not something that could fade easily. It's something that you've dedicated yourself to and you're committed to.
Q. Mr. Zarrillo talked about the desire to have children. I'd like to ask you, what are your views about having children?
A. I would love to have a family.
Q. And why haven't you so far?
A. I think the timeline for us has always been marriage first, before family. For many reasons. But, for us, marriage is so important because it solidifies the relationship. And it -- we gain access to, again, that language that is global, where it won't affect our children in the future. They won't have to say, "My dad and dad are domestic partners." Because not everyone knows exactly what a domestic partnership is. So by having access to that language, again, it makes it definitive.
And beyond the language, having a marriage would grow our relationship. It represents us to our community and to society.
And by raising a family and knowing what our parenting skills would be like, we would want our children to be protected from any awkwardness or anything like that. We would want to focus on raising our kids.
Q. Do you think your children would be at a disadvantage if you were not married and if they could not describe their parents as being married?
A. To a certain extent I do. I believe that children that are not in a married home are just as susceptible to awkward discussions, or whatever it might be, in schools, outside of school.
So, do I believe that a marriage creates a more stable home for our children? In our case, that's what we believe. We need to be married before we have kids.
Q. Do you think that whether or not you're married affects the relationship that you and Mr. Zarrillo have to the broader community, to people that you meet and deal with?
MR. RAUM: Objection. Calls for expert testimony.
THE COURT: I think this goes, again, to the state of mind of the witness.
THE WITNESS: I can safely say that if I were married to Jeff, that I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.
I know how I felt when people have asked, "An LLC or an S Corporation"? No, not my business partner. My partner." A puzzled look because we're gay.
Unless you have to deal with that, unless you have to go through a constant validation of self, there's no way to really describe how it feels.
And I'm a proud man. I'm proud to be gay. I'm a natural-born gay. I love Jeff more than myself. And being excluded in that way is so incredibly harmful to me. I can't speak as an expert. I can speak as a human being that's lived it.
BY MR. BOIES:
Q. Now, you say you were a natural-born gay. Does that mean you've always been gay?
A. As long as I can remember, yes.
Q. Have you been always openly gay?
A. I have not.
Q. When did you come out?
A. It was a gradual process.
I struggled with it quite a bit. Being surrounded by what seemed everything heterosexual, you know, you tend to try and want to fit into that. Because when you are considered different from the norm, you're subject to all kinds of issues and situations that you want to avoid; you shouldn't have to deal with in life.
So as hard as you try -- and I did, I tried to identify, I tried to -- I succumbed to peer pressure. I had a girlfriend in high school because you needed to have one to go to the prom or to go to the game, or whatever it might be.
So these pressures won over my being at that time. So in high school I was able to confide in a few friends. And I don't think it was necessarily -- well, we all think no one knows, but they kind of always do. So when you do confide in friends and family, they are like, "Yeah, we are just waiting for you to be ready."
And I was never a big believer of presenting myself as gay as an issue or problem. I never wanted to sit someone down and say, "I have a serious thing to tell you," as if it were some deep, dark secret; that it was a bad thing in my life.
Because many times in those instances, in high school and college, being gay is associated with something that's undesirable. "Oh, that's gay." You know. That's me. So I'm in that category now. So it's very difficult.
But I found friends that I trusted and family that I trusted, and I was able to come out in a gradual process. And I always told myself that I would come out in a way that was exemplary to who I was.
I wasn't going to present it as a problem or something that I -- even though I had struggled with it and fought with it for many years, I was going to put a good face to it and say, "Listen. This is my boyfriend. I'm bringing him home for Thanksgiving." You know. And that would lead to the discussion. And that has proven --
Q. I bet it would.
A. Huh?
Q. I said, "I bet it would."
A. Well, yeah.
But it was, just again, in that effort of trying to identify surely who I was versus leaving any speculation that it was not who I really truly was as a person.
Q. Have you experienced discrimination as a result of being gay?
A. I have.
Q. Can you give me some examples?
A. One example that I remember very clearly is the first time in college, with some gay friends, going to my first gay establishment, like a bar or a restaurant, socially. And we were in an outdoor patio. And rocks and eggs came flying over the fence of the patio. We were struck by these rocks and eggs. And there were slurs. And again we couldn't see who the people were, but we were definitely hit. And it was a very sobering moment because I just accepted that as, well, that's part of our struggle. That's part of what we have to deal with.
And it was very clear to me because I was finally feeling comfortable in my skin. And it was just a constant reminder of that reminder of you are still going to deal with these issues.
More currently, discussions and amicable arguments -- if that's not an oxymoron -- dealing over certain rights. Particularly, Prop 8 has led to a lot of discussions, intense discussions, about my rights and why I should be able to get married.
And a lot of those discussions included language like, "Well, what's the big deal? Why do you care? Don't you get most of the same rights, anyway?" And other emotional responses like, "Well, marriage is not for you people anyway." And, once again, it goes back to that place where you hear that. And regardless of how proud you are, unless you've experienced that moment, regardless of how proud you are, you still feel a bit ashamed.
And I shouldn't have to feel ashamed. Being gay doesn't make me any less American. It doesn't change my patriotism. It doesn't change the fact that I pay my taxes, and I own a home, and I want to start a family. But, in that moment, being gay means I'm unequal. I'm less than. I am undesirable. I have been relegated to a corner.
And I'm tired of living my life that way. I'm tired of those constant reminders, because I don't think of myself as a bad person. I don't think of myself as someone who needs to be put in a corner and told that, "You're different. It's not for you." It is for me.
Q. What were the circumstances when somebody said, Marriage isn't for you people, or whatever it was that you said?
A. Yeah, I was paraphrasing. There was other choice words that I have probably forgotten.
That particular incident -- incident was in traffic in Los Angeles. And, as you know, that's like having coffee with someone in the car next to you. So you deal with sitting next to this person over and over again for many miles. And I noticed that this person had a Yes On 8 campaign sticker on their bumper sticker. And I was like, oh great. And I just thought to myself, "I just want to see who this person is."
Because this campaign sticker had an image that was disturbing to me. And it was, you know, in the middle of this. And I just pulled up, and I just looked over. And I got a very distinctive "What?" look back.
And I simply said, through my window -- my window and sun roof were open. And I said, "I just disagree with your bumper sticker."
She said, "Well, marriage is not for you people, anyway."
And I thought, "God, do I have a gay flag on my car?" Like, "What's going on? How does she even know that I'm a gay individual?"
And I normally think that I'm pretty good at being able too retort and come back with, you know, something to support myself. But I was in shock.
I remember getting home and telling Jeff I lost every -- I couldn't even respond. I was like, really? Like -- I don't know. I just said I disapprove. I mean, I should have the right to disagree. And this person turns to me and says, no, you don't have that right. Nor do you have the right to get married, or nor should you.
And it rocks you to your core.
Q. What was the image on the bumper sticker that you said was disturbing to you?
A. I remember it was a yellow -- blue-yellow-green bumper sticker. And it had like an image that looked like a parent and a child, like they were connected.
And, again, I haven't seen it for quite some time.
But I remember there being a child, two figures, parent/child type of thing. And it just reminded me of the use of children in the campaign that frustrated me and I disagreed with. Q. When you say "the use of children in the campaign," can you explain what you mean?
A. Yeah. This one's a tough one because protect the children is a big part of the campaign. And when I think of protecting your children, you protect them from people who will perpetrate crimes against them, people who might get them hooked on a drug, a pedophile, or some person that you need protecting from.
You don't protect yourself from an amicable person or a good person. You protect yourself from things that can harm you physically, emotionally. And so insulting, even the insinuation that I would be part of that category. So far away from that category.
But to lump this issue into protect your family, protect your children, that invokes to me that we are some sort of perpetrator; that my getting married to Jeff is going to harm some child somewhere. And it's so damning, and it's so angering, because I love kids.
If you put my nieces and nephews on the stand right now, I'd be the cool uncle, right. And to think that you had to protect someone from me, from Jeff, from our friends and from our community, there's no recovering from that. There is no recovering from it.
And then to back it up by saying, oh, but these kids will learn about you. Well, they learn about a lot of things in school. So I say, be a parent. Talk to your children about it.
But don't point your finger at me and put me in that category, because I'm so far from that category.
Q. Let me show you some of the things that you may be referring to.
MR. BOIES: Your Honor, at this time, I would offer plaintiffs Exhibit 99, which is one of the campaign videos. And I offer it subject to the reservation of objection that the defendants have already reserved.
THE COURT: 99?
MR. BOIES: Yes.
MR. RAUM: Your Honor, I may be mistaken, but I don't believe this is on the list as an exhibit that's going to be used in connection with this witness.
MR. BOIES: It may have been on the list.
(Counsel confer off the record, out of hearing of the reporter.)
MR. RAUM: It appears that it was identified last night, for the first time.
THE COURT: What I have is, it's a protectmarriage.com video entitled, "It's Already Happened."
MR. BOIES: Yes, Your Honor.
MR. RAUM: Hold on one second, Your Honor.
THE COURT: Very well.
MR. RAUM: Want to verify with Ms. Moss that we have, in fact, received this.
MR. RAUM: Your Honor, to the extent it was exchanged last night, it's late. It was supposed to be disclosed on January 6th. We got it, if at all, last night, outside the scope of your direct order in that regard.
THE COURT: The order with respect to identifying the exhibits to be used with a witness; is that it?
MR. RAUM: Yes, Your Honor.
THE COURT: It is on the plaintiffs' exhibit list, which was filed on the 7th.
MR. BOIES: Your Honor, I think it was disclosed at the appropriate time. If I can --
THE COURT: You are offering it subject to the objection that --
MR. BOIES: Exactly.
THE COURT: -- counsel has just made?
MR. BOIES: Yes.
THE COURT: Very well. Well, then, subject to that objection, Exhibit 99, Plaintiffs' Exhibit 99.
MR. BOIES: And may we play that now?
(Video played in open court.)
BY MR. BOIES:
Q. Now, when you see the line there that says, "Protect our children. Restore marriage." how does that make you feel?
A. Well, again, it goes to speak to: What are you protecting your children from? To me, are you protecting them from the knowledge that certain people exist and desire certain rights? If that's what you're protecting them from, then maybe the word "protect" should be "considered."
To me, the threat that's implied is insulting. And I think that there are ways to convey a message without potentially demonizing a group of people or creating fear around a certain group of people. I think it's unfair, and I don't think it's very just.
MR. BOIES: Your Honor, I would offer, at this time, another video, which is Plaintiffs' Exhibit 401. It is the video, "Stand up for Proposition 8." And I would offer it, again, subject to the same objections that the defendants have reserved earlier today.
MR. RAUM: We don't object, Your Honor, subject to the standing relevance objection.
THE COURT: Very well. Well, what that means is that the witness -- excuse me.
MR. RAUM: Your Honor, excuse me.
THE COURT: What's that?
MR. RAUM: I'm sorry. We do want to preserve an objection based on the fact that it was identified late. It was supposed to be identified within 48 hours of the witness, which exhibits were going to be related to the particular witness on the stand.
MR. BOIES: Your Honor, I think --
THE COURT: Very well. I understand.
What I think is probably fair under the circumstances is that the witness will have to remain available for any questions that the proponents wish to propound to this witness, related to the exhibit that has been designated in less than 48 hours.
MR. BOIES: Your Honor, I believe it was designated on January 6th. And I believe we can demonstrate that.
THE COURT: All right.
MR. BOIES: We'll deal with them offline.
THE COURT: If that is the case, then, that would resolve the matter.
If it is not the case, what I think is fair to both sides is to have the witness remain available so that the witness can be examined with respect to any late designated documents.
MR. BOIES: Yes, Your Honor.
THE COURT: All right.
THE WITNESS: I hate to interrupt, but is this monitor supposed to be working? Because it's not. I was watching over Your Honor's shoulder. Sorry.
THE CLERK: Is it okay to play, Your Honor?
THE COURT: What's that?
THE CLERK: You can publish it?
THE COURT: Yes.
MR. RAUM: Excuse me, Your Honor. I'm sorry to interrupt, but my understanding initially the exhibit that was going to be introduced was 99, and that the exhibit that was actually played was Plaintiff's Exhibit 401. Is that the --
MR. BOIES: I don't think so. We just played 99. We are now going to offer, and have just offered, 401. We are now going to play 401. We have not played 401 yet. We have played 99.
MR. RAUM: Okay. Thank you. Then, in that case, Exhibit 401 was not disclosed at all. It is not in the e-mail that's dated January 10th.
MR. BOIES: Your Honor, it's noon. I think we can demonstrate to them we disclosed this on January 6th. But this is a campaign video. Everybody knows what these videos are.
Your Honor, could I just have a moment?
THE COURT: All right. Why don't you take a minute and consult with your colleagues. And we'll proceed.
MR. BOIES: Thank you, Your Honor.
(Counsel confer off the record.)
MR. BOIES: Yes, Your Honor.
THE COURT: Yes.
MR. BOIES: Exhibit 99, the one we already played, was properly disclosed on January 6. Exhibit 401 was not. So 401 is an exhibit that they have not had prior notification of.
Having checked the list exactly right now, I note that they were not -- they were not given notification of that.
THE COURT: Are you withdrawing 401?
MR. BOIES: Well, Your Honor, I think this is a situation in which it would be appropriate to play it with the witness. We'll keep the witness available, if they have got any questions about it.
It's a video from the campaign. It's a video featuring Ron Prentice, chairman of protectmarriage.com. It is one that everybody knows about. There's no surprise. There's no prejudice.
I apologize for the inadvertent omission of the document from the list, but I don't think there is any prejudice. I think it will facilitate the orderly examination, to introduce it and play it at this time.
THE COURT: Counsel.
MR. RAUM: Your Honor, your order is very clear that exhibits are not identified shall not be used at trial. It certainly is a surprise to us that this video would be used. And it is a surprise. And, certainly, if we knew it was going to be used, we could prepare accordingly.
Your pretrial order serves a very distinct purpose. And our position is that it should be enforced.
THE COURT: Well, it does serve a useful purpose. In view of the fact that this is a campaign statement that was made by your client, what is the prejudice to your client of allowing it to be used, and then holding the witness for any examination with respect to that particular exhibit for at least 48 hours, which would essentially rectify any prejudice that your client may have suffered? Isn't that a cure?
MR. RAUM: Your Honor, it is a cure, to a certain degree. However, our objection would stand. And, of course, you're free to proceed accordingly.
(Laughter)
THE COURT: Well, I'm delighted to hear that.
(Laughter)
MR. RAUM: It's fine you know that.
THE COURT: Why don't we proceed on that basis. And I will urge both sides, be sure to check those exhibit lists and be sure that you make them complete and up-to-date. I realize that you've been working hard, preparing this case for trial. We're only on the first day, and there are bound to be a few slips along the way.
But it wouldn't appear, given the nature of this particular exhibit, that there would be any great prejudice to your client in allowing it to be used. But, if there is, this witness will have to remain available.
MR. RAUM: Thank you, Your Honor.
THE COURT: All right.
MR. BOIES: Thank you, Your Honor.
THE COURT: Proceed.
MR. BOIES: Could we now play Plaintiff's Exhibit 401.
Is your monitor working?
THE WITNESS: Yes.
(Video played in open court.)
BY MR. BOIES:
Q. How did you feel seeing that video, and in particular the last line, "Stand up for righteousness. Vote Yes on Proposition 8"?
MR. RAUM: Objection, Your Honor. Counsel represented that this was a video that was produced by protectmarriage.com, proponent in this case. There has been no foundation to that effect. Doesn't appear that it is.
And to the extent that the witness is going to testify as to how this particular ad made him feel is of no relevance to this case.
THE COURT: Mr. Boies.
MR. BOIES: Your Honor, what I said was it was a campaign video featuring Ron Prentice, chairman of protectmarriage.com.
If Counsel is saying it was produced by somebody other than protectmarriage.com, that's not something that I have knowledge about.
What it is was a campaign video. Everybody has agreed it was a campaign video. And it's featuring the chairman of protectmarriage.com, Ron Prentice, who played a very prominent role.
The purpose of this is to show the effect of these kinds of ads on Mr. Katami and, through him, other members of the gay community.
I think that that is an entirely legitimate purpose, given Mr. Prentice's role in that, regardless of who actually produced the video.
THE COURT: Anything further, Counsel?
MR. RAUM: Your Honor, just to the extent that it's being characterized as a campaign video, suggests that it's part of an official campaign of Prop 8. And there is no foundation for that, whatsoever.
THE COURT: I believe the question to the witness is, what his reaction was to seeing this exhibit. And I think that question is proper, without regard to the specific origin of the campaign advertisement.
Objection will be overruled.
And I'll remind counsel, although this is a court trial, I do generally try to discourage speaking objections. I realize we may be a little more liberal with some of the rules of procedure here than would be true in a jury trial. But you might bear that in mind.
Very well. Do you have the question in mind?
THE WITNESS: Could you repeat the question, please.
BY MR. BOIES:
Q. Sure. When you saw this video, and particularly the last tag line of the video that says, "Stand up for righteousness. Vote Yes on Proposition 8." how, if at all, were you affected by that?
A. I do remember that campaign as -- like this, and this one included. I would be lying if I said -- if I didn't sit here and my heart was racing and I was angry watching it. I mean, again, "Stand up for righteousness." Okay. So we're a class of citizen or a category of people that need to be stood up against, for some reason.
And, not to even mention, what I find most disturbing is the reference to, "The devil blurring lines," and "Don't deny Jesus like Peter did," and "this oncoming freight train." Well, what happens to you when a freight train hits you? You're going to be either majorly harmed or killed by that, right?
So to be categorized as a person that's part of a community, that's part of an effort to do one thing, we want to do one thing. We don't want to perpetrate against anyone. We don't want to force anyone to do anything.
I love Jeff Zarrillo. I want to get married to Jeff. I want to start a family. I'm not going to go out and start some movement that's going to harm any institution or any person or any child. I'm not.
You know, and this is offensive to people of faith. I have a lot of friends who are people of faith. To categorize them as people of the devil, or even put them in the same category, I mean, of some effort that is likened to the devil blurring the lines between right and wrong, I would think that those lines between right and wrong are talking about things that are bad in nature, that harm people and society.
We're not trying to do that. I just want to get married. I mean, it's as simple as that. I love someone. I want to get married.
And so an ad like this goes -- again, it just demeans you. It just makes you feel like people are putting efforts into discriminating against you.
And although they have the right to believe what they want to believe, it doesn't make that legitimate or reasonable to me, in my life, when it infringes upon my rights, when it changes the way I identify myself or the way I feel about myself. That's unacceptable.
MR. BOIES: Your Honor, I would next offer Plaintiff's Exhibit 350, a video entitled "Gathering Storm." This is a video that was released in 2009. And, again, I offer it subject to the objection.
MR. RAUM: Your Honor, we have a further objection, which is that this particular video was not produced until after the Prop 8 campaign and the vote, and that it would be irrelevant to these proceedings.
THE COURT: What is the relevance of this, Mr. Boies?
MR. BOIES: The relevance, Your Honor -- and when I offered it, I made clear it was a 2009 video. And the significance of it is that even after the campaign for Proposition 8 was over with, there continued to be this campaign against gay people; this campaign portraying gay people as a threat.
This is part of the pattern of discrimination that we've referred to. And I think it is relevant to Mr. Katami's state of mind, the state of mind of other people, that they are subject to this kind of attacks.
Now, in some cases, this may be even more relevant than the campaign videos. In the campaign videos, they have the excuse that they were preparing these things because they were in the middle of a political campaign.
This is something that is prepared, is distributed after the campaign is over with. And it can have no function -- as I think the Court will see when it sees the video -- other than to try to demonize gay people, to try to infer that somehow gay people have some kind of agenda that is a threat to society.
THE COURT: Can you link this to the parties here?
MR. BOIES: Your Honor, could I have a moment on that?
THE COURT: You may.
MR. BOIES: Your Honor, I think it actually shows on the video that it was produced by the National Organization for Marriage, I think the formal name is, which was one of the largest supporters of Proposition 8.
The defendants, you know, try to draw a distinction between what they call the official campaign and the unofficial campaign. In fact, it's all one campaign.
And the attempt to sort of step back for purposes of this litigation and pretend there was only really an official campaign, and they didn't know anything about or have any knowledge of what was going on with everybody else, I think, is not credible, particularly when you are talking about an organization like the National Organization for Marriage, that was one of their primary funders.
So I believe that this is sufficiently related to the campaign broadly defined.
I also think that regardless of whether it is linked to the campaign, even if this were simply something that had come up from somebody who had no connection with the campaign it is -- it is relevant to the kinds of issues that the Court is going to consider, in terms of the appropriate standard, whether it's strict scrutiny or rational basis, or somewhere in between, as to whether this is a class of people that is subject to continuing discrimination.
MR. RAUM: Your Honor, number one, this was not produced by protectmarriage.com. And protectmarriage.com is not the National Organization for Marriage.
Number two, it was after, months after the Prop 8 campaign.
Number three, the ad itself doesn't even reference Prop 8 or California.
For all those reasons, including the fact that Mr. Katami has been identified to testify solely about sexual orientation and the harms he suffered as a result of Prop 8, any harm that could have flowed from this particular video is not as a result of Prop 8.
THE COURT: I'm inclined to think that the connection to the parties-at-suit here, and the issues, is sufficiently tenuous that there would not be a basis for admitting Exhibit 350.
You're proposing to admit it, Mr. Boies, for purposes of showing an atmosphere or public attitude of homophobia. I think there are other ways of establishing that.
And this particular exhibit, given the lack of connection to the parties-at-suit, I don't believe is appropriate for admission. Therefore, the objection will be sustained.
MR. BOIES: Your Honor, let me then offer Plaintiff's Exhibit 1, which is the Voter Information Guide for Proposition 8.
And this, also, is one that, I have now checked, was identified on a timely basis.
THE COURT: While you're identifying exhibits, did you move in 99 and 401?
MR. BOIES: Yes, Your Honor we did.
THE COURT: It's not clear whether those were simply marked or moved for admission.
MR. BOIES: I had offered those for evidence.
THE COURT: Okay. Let's see. 401 will be admitted subject to the qualification that I outlined; namely, that the witness must be available for at least 48 hours, in the event that proponents wish to examine him with reference to Exhibit 401.
So, 99 and 401 will be admitted.
(Plaintiffs' Exhibits 99 and 401 received in evidence.)
THE COURT: Now, you're moving to Exhibit 1. And can that be placed before the witness?
MR. BOIES: Yes. May I approach, Your Honor?
THE COURT: Yes, you may.
BY MR. BOIES:
Q. Mr. Katami, do you recognize this exhibit?
A. I do.
Q. And what is it?
A. It is the California Voter Information Guide for 2008.
Q. And did you review this in 2008?
A. Yes. Jeff and I have a habit of reviewing these before elections.
MR. BOIES: Your Honor, I would offer Exhibit 1.
THE COURT: Very well. Exhibit 1 will be admitted.
BY MR. BOIES:
Q. Let me ask you to turn to page that is numbered in the bottom right-hand corner "3365." And if we could put that up on the screen.
And, in particular, I would like to direct your attention in the "Argument in Favor of Proposition 8." Do you see that?
A. I do.
Q. At the top of the page. And it's two columns. And in the right-hand column, the next-to-the-last paragraph, do you see that?
A. Did you say the next-to-the-last paragraph?
Q. Next-to-the-last paragraph.
A. Yes.
Q. It says, "Voting YES on Proposition 8 restores the definition of marriage that was approved by over 61 percent of the voters. Voting YES overturns the decision of four activist judges. Voting YES protects our children."
Do you see that?
A. I do.
Q. And what was the reaction that you had to that argument?
A. Well, once again, it always seems to be the punchline of the message. Regardless of what -- Jeff and I are informed voters. We do the reading. We discuss it. And when there are facts of merit, we're open to hearing them. We discuss them. But this punchline, again, of protecting children, it is absolutely clear that because you see this recurring theme of protecting children -- and I go back to: What do you protect children from? Do you protect them from harms that we put upon them? We are not a harm.
So, then, that leads me to believe: How does this generate? How does someone even think of putting "protect your children" in here?
That language is indicative of some kind of perpetration against a child. Which leads me to believe that there is definitely -- it's discriminatory.
It absolutely puts me into a category that I do not belong in. It separates me from the norm. It makes me into someone -- a part of a community that is perpetrating some sort of threat. And that's not who we are or what we're here about.
So I disagree with it wholeheartedly. I think it's unfair. And I don't think it represents the situation.
Q. Mr. Zarrillo testified that the two of you had decided not to register as domestic partners. I'd like to ask you to tell the Court your reasoning for choosing not to register with the State of California as domestic partners.
A. We hear a lot of, "What's the big deal? Get most of the same rights, virtually all of the same rights. What's the big deal?"
The big deal is -- and we've discussed this. The big deal is, it's creating a separate category for us. And that's a major deal because it makes you into a second, third, and, as Mr. Olson said today, a fourth class citizen now that we actually recognize marriages from other states.
And everyone says, "Oh, but that's a huge stride; you. Get rights." But we still have discrimination. So it's like -- for lack of a better image, it's putting a Twinkie at the end of a treadmill and then saying, "Here's a bite. Here's another bite." Well, you want that Twinkie. You want the whole thing. I know it's a rudimentary example of what it is, but that's how it is. It is not the same.
"Oh, but you have the same rights." Yeah, but what am I supposed to do, go have a domestic partner ceremony and then a reception? It's not what you do. None of our friends have ever said, "Hey, this is my domestic partner." By allowing us full access to those rights, not even the rights as much as it is the identity of being married, the full access to being a full participant as a citizen of our country and our state, that's denied.
And when your state sanctions something that segregates you, it fortifies people's biases, in my opinion. It gives them an excuse to say, "It's not right. You don't deserve it because the state tells us that."
And, to me, that's fundamentally wrong. It's rooted in something that's fundamentally wrong. Because all I'm desiring, all I want, is to be married. And that affects no one except for my husband, my family, my friends, our concentric circles.
And, you know what, if it bolsters our profile in our society and our world, then, good. So be it. Because as long as that we are sanctioned by our state to be told that we're different, regardless of how proud we want to be, regardless of how happy we are in our pursuits, we're still lacking. And, to me, that's absolutely unAmerican.
We're not a country about us and them. We're supposed to be a country about us, all of us, working in concert, doing things together. That's why we have these protections.
My state is supposed to protect me. It's not supposed to discriminate against me.
MR. BOIES: Your Honor, I have no more questions.
THE COURT: Very well. Cross-examine.
MR. RAUM: Your Honor, would it be possible that we take our lunch break now, and resume --
THE COURT: Well, that's a good idea.
(Laughter)
All right. Why don't we then take our lunch, and recess until 1:30 this afternoon. And we'll resume with cross examination of this witness.
(Noon recess taken from 12:27 to 1:37 p.m.)
(Whereupon, proceedings were resumed after noon recess.)
THE COURT: Very well, counsel. As the witness is coming to the stand, let me mention something. I had mentioned this morning comments received from the Federal Bar Association and others simply for completeness of the record and to make sure that you have what is submitted to the Court, although it pertains to the change in the local rule.
In view of the proceedings in the Supreme Court, I think completeness of the record calls for that response of the Federal Bar Association to be made part of the record in this case, together with that submitted by the San Francisco Bar Association, an organization called the Equal Justice Society, the Lawyers Committee For Civil Rights, and the American Civil Liberties Union, which appears to have been rather limber in its affiliations in this case. And, in addition, correspondence from the Director of the Administrative Office of the United States Courts to Chief Judge Kozinski dated January 8, 2010, and Judge Kozinski's response to Mr. Duff and to Judge Scirica, the Chairman of the Executive Committee of the Judicial Conference of the United States.
Do the extent any of these matters have any bearing on your further proceedings, they should be part of the record and you can deal with them as you think is appropriate, but you certainly should have access to these. So I will direct that the clerk have these filed in the record.
All right. Mr. Cooper?
MR. COOPER: Further, your Honor, to that question, how exactly will we have access to these documents you just referenced? Number one.
And, number two: Will we have access as well to the rest of this voluminous collection of comments?
THE COURT: You want to take a look at those 138,000-plus responses? I will be delighted to have you do it.
I don't think we want to burden the record with all of them, but they are available. And I can't say I have read every one of them, but I have read many of them, but they are certainly available to everybody.
But I thought the organizational responses, which deal specifically with the rules, would be particularly helpful to you.
MR. COOPER: And will those be available through Pacer on the docket?
THE COURT: Yes, sir.
MR. COOPER: Thank you.
THE COURT: Very well. Let me remind the witness that you are still under oath. The oath that you took this
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PROCEEDINGS 120
1 morning applies to this part of your testimony. Do you understand that?
THE WITNESS: I do.
THE COURT: Mr. Raum, I believe it is.
MR. RAUM: Yes. Thank you, your Honor.
THE COURT: Very well.
PAUL KATAMI,
called as a witness for the Plaintiffs herein, having been previously sworn, resumed the stand and testified further as follows:
CROSS EXAMINATION
BY MR. RAUM:
Q. Good afternoon, Mr. Katami.
A. Good afternoon.
Q. We met December 10th, do you recall?
A. I do.
Q. It's good to see you again.
A. Thank you.
Q. I would like to draw your attention to Plaintiffs' Exhibit 116. And if we could play that exhibit and have you look at it, that would be helpful.
THE COURT: Did you say 116?
MR. RAUM: Yes.
THE COURT: Thank you.
Well, are you seeking to admit the exhibit, or are you just showing it to the witness to see if it refreshes his recollection, or just as a matter of general interest?
MR. RAUM: Your Honor, I would like to show the witness the video. It has to do with the issue of Prop 8 campaign and the theme that kids would be taught about same-sex marriage in the schools, which is something that he had testified to on his direct.
THE COURT: My question is somewhat more limited. Are you moving the exhibit in?
MR. RAUM: No, your Honor, not at this time. I would like him to view the video and then identify it and we will move it in at the appropriate time.
MR. BOIES: Your Honor, I have no objection to the video so we can offer it at this time.
MR. RAUM: In that case, your Honor, we move it into evidence.
THE COURT: Very well. 116 will be admitted.
(Defendants' Exhibit 116 received in evidence.)
(Videotape played in open court.)
BY MR. RAUM:
Q. Mr. Katami, would you agree with me that parents have the primary responsibility for raising their kids?
A. I agree that parents have a primary responsibility for raising their kids, yes.
Q. And part of that responsibility includes the development of their moral character?
A. Part of that responsibility is that, yes.
Q. And part of developing a child's moral character would involve issues of human sexuality; would you agree with that?
A. I can't speak as a parent, because I'm not one. I know that myself as a parent, that would be part of my responsibility. If I had differing views on certain aspects of sexuality, that would be my responsibility to impart that to my kids.
Q. And you testified today that you desired to be a parent ultimately?
A. I do.
Q. Would you agree that issues relating to same-sex marriage are for parents to discuss with their children according to their own values and their own beliefs?
A. I think that works in tandem to what they learn in society and in school and then fortified in the home, depending on what the home vision is.
Q. Do you think that first and second graders should be taught about sex in the public schools?
A. I'm not part of any unified school district or school district at all, so I can't speak to what is taught, what is not taught. And you would have to define what you mean by "sex" exactly and how that's taught.
Q. My question is to you. In your opinion, do you think kids as young as first and second grade should be taught about is sex? In other words, traditional sex education, should that start in first and second grade? You don't think that, do you?
MR. BOIES: Objection, relevance.
A. No, I haven't thought about it.
THE COURT: Let me rule on the objection before you answer it.
Objection overruled. I think the door was opened to this line on direct examination. Proceed.
A. Can you repeat the question, please?
BY MR. RAUM:
Q. You don't think that kids as young as first and second grade should be taught a traditional sex ed curriculum, taught about the particulars of sex between individuals, do you?
A. Again, not as a parent. I can't answer that question with any surety. I don't know. It depends on the curriculum. It depends on what's being taught and how it's taught.
Q. Do you think kids that are in first and second grade have the capability to process issues of sex? Do you think that, Mr. Katami?
A. I am not an expert on child development. I can't speak for every child across the country, but I do know that children are growing up a lot faster than they used to, so there is a potential yes to that question.
Q. Do you think it would be reasonable for someone, a parent, for instance, to disagree with you on that?
A. It's reasonable that they can disagree, yes.
Q. You wouldn't have a problem with the public school teaching about same-sex marriage to first and second graders, would you?
A. Again, I don't know the curriculum of the school system. I don't know what is taught and how it's taught. So I would have to look at the curriculum, see what's being taught, how it's taught.
And if it's something I disagreed with in my home and my children came to me and said, "This which is what I learned," it is my mutual responsibility to impart my vision on those children so they understand that there are altering views or methods.
Q. You had a particular objection as to the Yes On 8 campaign ads to the extent that they pulled children into the equation; isn't that a fact?
A. It was the manner in which they pulled children into the equation, yes.
Q. I would like to draw your attention to Plaintiffs' Exhibit 1.
If we could bring that up, that would be helpful.
(Document displayed)
THE COURT: Previously admitted into evidence?
MR. RAUM: Yes, your Honor.
BY MR. RAUM:
Q. Now, Mr. Katami, you testified on your direct examination that you had a particular problem with part of this exhibit, which is the official argument in favor of Prop 8, that voting yes would protect our children. You had a problem with that, didn't you?
A. I have an issue, that --
Q. Particularly --
A. I'm sorry.
Q. Particularly you took issue with being associated with something that was bad; that somehow you had to be protected from children. You had a problem with that, is that correct?
A. I have an issue with the verbiage saying "protect your children," because to me that insinuates that you have to protect from something that is going to harm you.
Q. And did you find that the ads that brought the children into the equation and claimed that kids might be taught about same-sex marriage in schools was misleading?
A. I did feel it was misleading.
Q. I would like to draw your attention to the top of Plaintiffs' Exhibit 1, the top right-hand column.
(Document displayed)
Q. Do you see that? That is on 003365.
Do you see the top right-hand column that starts with, "We should not accept"?
A. The resolution -- I can't read it exactly.
Okay, there we go. Thank you.
Q. Could you read the first four lines of that exhibit?
A. (As read)
"We should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn't be forced on us against our will."
Q. In fact, that's what the Yes On 8 on Prop 8 campaign was seeking to protect children from, am I right?
A. I can't speak to know exactly what they meant outside of this or with this exactly, but, again, the issue is with protect the children.
I don't have an issue if it's taught in school.
Again, the mutual responsibility is at home with the parent.
And ultimately Proposition 8, for me, had nothing to do with children. We are missing the point completely here. This is, to me, a tactic to divert from what the truth of the situation is; is that the state gave me a right, stripped the right away from me. That right is something I think is inalienably mine.
And, therefore, the issue of children is angering and is an issue and a problem to me because of the way it's presented.
But is it the whole issue? No. Is it what I consider potentially diversion away from the issue? Yes.
Q. The fact is, you had a particular problem with the ads because you thought they were misleading; that, in fact, kids were not going to be taught in schools, isn't that true?
A. At one point my understanding was to believe that kids may not be taught in school; that it wasn't for a fact sure that every state that would pass or legalize gay marriage would be required to teach gay marriage in school.
So that, again, it becomes an issue for me based on the language, the tactic and what it insinuates, which does not sit at the core of the issue for what -- how it affects me.
Q. There is nothing in this ad that says that the Yes on Prop 8 campaign wanted to protect children against you because you were bad, right? It didn't say anything like that, did it?
A. This ad doesn't literally state --
Q. That's what I'm asking. It does not literally state it, does it?
A. This ad does not literally state that there is a harm. It insinuates one to me.
Q. Thank you, Mr. Katami.
And the video that we played about the couple in Massachusetts didn't say anything about the fact that same-sex couples were bad. Didn't say that in the ad, did it?
A. That ad did not literally state that same-sex couples are bad, but it's definitely insinuated in the emotion of the ad, in the language of the ad, in the bullet points that were obviously provided for the ad.
I mean, yes, to me that -- watching that ad absolutely insinuates that there is some disapproval of gay people and that they should be feared.
Again, using the terminology, "protect your family," "protect your children." Every time you see that or hear it, to me, it means you are protecting your children or family from something that is going to harm them.
Regardless if it states it legitimate -- not legitimately. It just states it literally or not, it does not legitimize the fact that these people are allowed to have their beliefs, but the minute they turn a belief into an action that legally sanctions my rights, there's an issue there.
Q. So you believe that parents can disagree on the issue of same-sex marriage, but they have no right to do anything about it?
A. That's not what I said.
Q. I see. The fact is that the ad that we played, that has been admitted into evidence, specifically points out that these parents were concerned that their kids would be taught about same-sex marriage in first and second grade. That's what they were concerned with.
And, in fact, it did happen in Massachusetts, didn't it?
A. I don't know for a fact it did.
Q. Do you have any evidence or reason to believe that what those parents said on that video was inaccurate? Do you have any evidence to that effect?
A. I do not have any evidence to state that what they're saying is inaccurate, but I also believe that a --
(Interruption.)
A. That a video might be playing?
It doesn't also exclude in my mind the fact that they could be arguing about any other number of things that those kids learn in school.
Perhaps parents disagree with a lot of the curriculum, so that is an issue that is then taken to the school board, as they did, and resulted in the decision that it had resulted in and, therefore, the responsibility falls back on them.
So do you then open the door for all these parents that disagree with things in schools to -- you know, no. I mean, this is an opportunity for them. They took the opportunity to the courts and tried to rectify it in their way.
And it didn't fall on their side, but, again, they get to have their beliefs. Should they impose those beliefs on others when it comes to legal matters? Not in my eyes.
When it comes to talking to their children, perhaps, their situation could have been really summed up and wrapped up in a conversation with their child saying, "Hey, you know what? You learn that in school, but we don't necessarily believe that in our home," or "We don't necessarily agree with that." What then goes to some disapproval towards gay people.
Q. And the official ballot language indicated that the issue of same-sex marriage should be for parents to discuss with their children, according to their own values and beliefs. And you testified that you agreed with that?
A. In addition to that --
Q. All I'm asking you is whether you agreed with that. That's the only thing I'm asking you?
THE COURT: Agreed with what, sir?
MR. RAUM: With whether same-sex marriage is an issue for parents to discuss with their children according to their own values and beliefs.
BY MR. RAUM:
Q. You agree with that concept, do you not?
A. The concept that parents should be able to discuss that with their children?
Q. The one that I just read to you.
A. That's what I'm saying. Clarifying it for me. I didn't write this language. So, yes, for me that means it's in conjunction with societal things. If they are watching TV -- there's a lot of other influences. So does the parent have a responsibility and is it their right?
Absolutely. Does that prohibit people from seeing or learning about other real truths in their lives? No.
So if they had an outside source -- you know, what if their child had gone to a movie and there happened to be a gay character who was married. Would he ask the same question?
Perhaps. It's then the parents' responsibility have to have that discussion.
Q. I want to go back to the first question I asked you; that it's the parents' primary responsibility to raise their kids, and you agreed with that?
A. Correct.
Q. Okay. And your objection to the "protect our children" theme was one which you thought was misleading; that there was nothing that the kids needed to be protected against, isn't that a fact?
A. Once again, my --
Q. I'm asking you a "yes" or "no" question. Did you think that the kids did not need to be protected? Is that what you thought?
THE COURT: Let's do one question at a time, okay?
MR. RAUM: Excuse me.
THE COURT: Okay.
A. Can you repeat the question please?
BY MR. RAUM:
Q. Is it your opinion that there was nothing that kids needed to be protected against?
A. It was my opinion --
MR. BOIES: Objection, your Honor.
THE COURT: Maybe you can rephrase that, Mr. Raum. That is a little far afield.
MR. RAUM: I'm sorry.
BY MR. RAUM:
Q. You testified that you had a problem with the part of what's in evidence as Plaintiffs' Exhibit 1 that says that we need to protect our children. You testified to that today, correct?
A. I did.
Q. Okay. And the fact is, you don't think kids need to be protected from exposure to same-sex relationships, correct?
A. My opinion, same-sex relationships are not something to be protected from.
Q. There is nothing wrong with it in your opinion, correct?
A. Same-sex relationships?
Q. Yes.
A. Nothing wrong with it.
Q. Nothing wrong with it at all.
But the fact is that what the Yes On 8 campaign was pointing at, is that kids would be taught about same-sex relationships in first and second grade; isn't that a fact, that that's what they were referring to?
A. I don't know that for a fact in first and second grade.
Q. Well, do you recall when we took your deposition, right?
A. Yes.
Q. That was December 10th, 2009?
A. Correct.
Q. I would like to refer to page 63 of the deposition transcript.
MR. RAUM: Your Honor, do you have a copy?
THE COURT: I believe the clerk is retrieving it right now.
(Brief pause.)
THE COURT: Very well. What page, Mr. Raum?
MR. RAUM: That's page 63, your Honor.
THE COURT: Very well. And does the witness have a copy of his deposition?
THE WITNESS: I do. It's on the screen here.
THE COURT: Okay.
BY MR. RAUM:
Q. Reading from your deposition that's dated December 10, 2009, starting at line 18. It says:
"QUESTION: Okay. When you talk about the points regarding the schools, are you referring to the assertion that kids would be taught about same-sex marriage in the schools?
"ANSWER: It was multi fold. It was about the kids, textbooks being written to exclude same-sex marriage" -- excuse me, "textbooks being written to include same-sex marriage" --
THE COURT: I believe "rewritten."
MR. BOIES: "Rewritten."
MR. RAUM: "Rewritten."
BY MR. RAUM:
Q. Start again.
"ANSWER: It was multi fold. It was about the kids, textbooks being rewritten to include same-sex marriage, part of the campaign, from what I remember. Also, for the campaigning that was revolved around kids being taken to a lesbian wedding as a school outing and how that would be acceptable, and potentially there would be school outings to gay marriages, and so on and so forth.
"QUESTION: And was it your position that that was a misrepresentation; that would not happen and could not happen?
"ANSWER: From my understanding from following news stories and trying to be as educated as possible, from my understanding, that was absolutely not the case or was not going to be the case; that there wasn't going to be an immediate reprinting of textbooks or permission slips to go to gay marriage."
Were you asked those questions and did you give those answers?
A. I did.
MR. RAUM: I would like to refer to Plaintiffs' Exhibit 15, and I would move it into evidence, if there is no objection.
MR. BOIES: Do you have a copy?
THE COURT: Page --
(Interruption.)
THE COURT: Hold on. Hold on.
This is exhibit what, Mr. Raum?
MR. RAUM: This is Plaintiffs' Exhibit 15.
THE COURT: 15. All right. PX 15.
MR. BOIES: Campaign video?
MR. RAUM: Yes.
MR. BOIES: One from the official campaign?
MR. RAUM: Yes.
MR. BOIES: No objection, your Honor.
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KATAMI - CROSS EXAMINATION / RAUM 136
THE COURT: Very well. You are seeking to admit 15, correct?
MR. RAUM: Yes, your Honor.
THE COURT: Very well. 15 will be admitted.
(Defendants' Exhibit 15 received in evidence.)
(Videotape played in open court.)
MR. RAUM: No further questions.
THE COURT: Very well. Redirect, Mr. Boies?
MR. BOIES: Yes, please, your Honor.
REDIRECT EXAMINATION
BY MR. BOIES:
Q. As you understood it, was there anything in Proposition 8 about what was going to be taught in schools?
A. No.
Q. Was there anything in Proposition 8 that talked about whether kids would be taught about sex in second grade as opposed to sixth grade or eighth grade?
A. To my understanding, not at all.
MR. BOIES: No more questions, your Honor.
THE COURT: Very well. Then, Mr. Katami, you may step down, sir.
Now, you have to be on call for at least 48 hours for possible further questions with respect to Exhibit 401, but with that, you may step down, sir.
THE WITNESS: Thank you.
(Witness steps down.)
THE COURT: Plaintiffs' next witness.
MR. OLSON: The plaintiffs would call plaintiff Kristin Perry.
KRISTIN PERRY,
called as a witness for the Plaintiff herein, having been first duly sworn, was examined and testified as follows: ,
THE WITNESS: I do.
THE CLERK: State your name.
THE WITNESS: Kristin Matthews Perry.
THE CLERK: Spell your first name and your last name, please.
THE WITNESS: K-r-i-s-t-i-n, P-e-r-r-y.
THE CLERK: Thank you.
DIRECT EXAMINATION
BY MR. OLSON:
Q. Ms. Perry, are you a plaintiff in this case?
A. Yes, I am.
Q. Would you tell us briefly about your background; where you were born, just a brief summary, your age, your educational background? Just a brief summary, please?
A. I was born in Illinois, but my parents moved here with me when I was two years old. So I have lived in California since I was two years old and I'm 45 years old now.
I've grown up -- I grew up in Bakersfield, California. I attended grammar school, middle school, high school there. And then I moved away to go to college at U.C. Santa Cruz. And from there I went to San Francisco State to get my Master's Degree in social work, and I have worked in the Bay Area ever since.
Q. Describe without -- you don't have to identify the name of your employer, but you -- you work for a government agency. I would like you to describe the work that you do, your profession?
A. My entire career I have worked in the field of child protection, child development, family support. I started out as a child abuse investigator in a Bay Area county, and from there I moved into prevention services for families that were at risk. I became a supervisor and a program manager and then later on became the executive director of a county agency that supported at-risk children, zero to five.
And at this time I am the executive director of a state-wide agency that provides services and support to families with children zero to five.
Q. So how long have you professionally been engaged in the occupation of working with children?
A. For almost 25 years.
Q. On behalf of government agencies of the State of California, did I hear that correctly?
A. I have spent my entire career working for the government.
Q. What is your relationship with plaintiff Sandra Stier?
A. Sandy is the woman I love, and we live together in Berkeley.
Q. And what is the composition of your family. Is it just the two of you?
A. No. Sandy and I live together in Berkeley with our children. We have a blended family. We both brought two sons into our relationship. And Sandy's children are college age and my children are high school age.
Q. When did you meet Ms. Stier?
A. Sandy and I met in, I think, 1996 while we were both working at the same place.
Q. And describe how that relationship -- again, in general terms, how did that relationship grow and what did it grow into?
A. Well, I remember the first time I met Sandy thinking she was maybe the sparkliest person I ever met and I wanted to be her friend, and we were friends for a few years. And our friendship became more and more. It became deeper and deeper over time. And then after a few years, I began to feel that I might be falling in love with her.
Q. And did it work out that way?
A. And it did work out that way. I did fall in love with her, I did.
Q. And how did she feel about you?
A. She told me she loved me, too.
Q. We will be asking her to verify that.
A. Okay.
(Laughter.)
Q. How would you describe your sexual orientation?
A. I am a lesbian.
Q. And tell me what that means in your own words? What does it mean to be a lesbian?
A. Well, for me what it means is, I have always felt strong attraction and interest in women and formed really close relationships with women, and I have only ever fallen in love with women.
And the happiest I feel is in my relationship with Sandy and -- because I'm in love with her.
Q. Do you feel that that's something that could change, that you could have -- could you have been in the past interested in that same kind of bonding with men or do you feel that that would be -- I know this is somewhat compound, or do you feel that that could turn into -- that could develop in that way in the future?
THE COURT: Let's see. Which question do you want her to answer?
(Laughter.)
BY MR. OLSON:
Q. Do you feel that in the past you could have developed that same kind of bond with a man?
A. I was unable to do that. I, as I said, grew up in Bakersfield, California and it was in the 70's and 80's. And all of my friends, as we were getting older and they were beginning to date, became more and more interested in boys. And I recognized that that was something that would have been the best thing for me to do if I could.
And I did data few boys, because it was -- it did make life easier, you know. Then I would have a date to go to the prom, too, or I could go to a party, too.
But as I got a little bit older, it became clear to me that I didn't feel the same way my friends did about boys and that there was something different about me.
Q. Do you feel that you were born with those feelings, with that kind of sexual orientation?
A. Yes, I do.
Q. Do you feel it could change in the future? Do you have a sense that it might somehow change?
A. I'm 45 years old. I don't think so.
(Laughter.)
Q. Why are you a plaintiff in this case?
A. Because I want to marry Sandy. I want to have a stable and secure relationship with her that then we can include our children in. And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to be begin.
Q. What does the institution of marriage mean to you? Why do you want that?
A. Well, I have never really let myself want it until now. Growing up as a lesbian, you don't let yourself want it, because everyone tells you you are never going to have it. So in some ways it's hard for me to grasp what it would even mean, but I do see other people who are married and I -- and I think what it looks like is that you are honored and respected by your family. Your children know what your relationship is. And when you leave your home and you go to work or you go out in the world, people know what your relationship means. And so then everyone can, in a sense, join in supporting your relationship, which at this point I can only observe it as an outsider. I don't have any firsthand experience with what that must be like.
Q. Does it matter that the state is announcing that this is a relationship officially recognized by the State of California, marriage?
A. Yes.
Q. And is that part of something that goes into why you want this to happen for you?
A. I want it to happen for me because I do everything else I can think to do to make myself a contributing, responsible member of this state. And the state isn't letting me feel happy. It's not letting me experience my full potential, because I am not permitted to experience everything I might feel if this barrier were removed.
Q. Did you and Ms. Stier ever attempt to be married?
A. We did.
Q. Tell us what happened, when that was and exactly what your experience was?
A. Well, in 2003 I proposed to Sandy without any way of knowing that everything that's developed regarding gay marriage in California was about to development, and instead I did it as a way to express my personal interest in marrying her.
Q. Tell me about your proposal. What happened?
A. Well, it was around Christmas and we live in a part of Berkeley that's sort of hilly and we live near this big rock called Indian Rock. And if you get up high enough on it and you sit there, you can see everything in the Bay Area laid out in front of you. And I knew I wanted to propose to her there because we could always walk back there and sit there if we wanted to.
So I took her on a walk. She didn't know I had a ring, and we sat down on the rock and I put my arm around her and I said, "Will you marry me?" And she looked really happy, and then she looked really confused. And she said "Well, what does that" -- well, she said, "Yes." And then she said, "Well, what does that mean? How will we even do that?" And then he had to invent it for ourselves. We had to figure out what to do.
Q. So that was in December of 2003. So what did you and -- I'm going to call her Sandy. What did you and Sandy do to then invent the relationship that you were hoping to have with her that you had proposed?
A. We started with basically trying to figure out the day we would like to be married and the place and who we would like to have join us and how we might -- what we might say to each other. So we just started the planning.
And as we were in the midst of doing that, private family and friend ceremony planning, we learned that the City and County of San Francisco, they were permitting same-sex same-sex marriages, that was while we were in the middle of planning.
Q. This was early in 2004 --
A. That's correct. Uh-huh.
Q. -- is that correct?
And you learned in some way that the mayor of the City of San Francisco had authorized the issuance of marriage licenses and the performance of marriage in San Francisco; am I stating that correctly?
A. Yes.
Q. That was in the early part of 2004?
A. Yes. For us it was February of 2004.
Q. And what -- did you act on that information?
A. I did. I -- Sandy and I both were reading about it in the newspaper and we talked about whether or not we would want to -- would go to San Francisco to have this marriage and then continue with our other plans, and that's what we decided we wanted to do.
So we made an appointment and we went to City Hall. And we brought all of the boys and my mom and we were married in City Hall.
Q. And how did you feel about that marriage coming about in the City Hall in San Francisco at that time?
A. Well, as amazed and happy as I could ever imagine feeling. And I said a moment ago that I -- I never let myself imagine it happening.
So in some ways the feelings I had were new to me. I didn't really know what they were. And I am still confused by these experiences because they are not the ones that have been -- I haven't let myself want to feel them.
So I have a sense that -- it's almost an other-worldly experience of like floating above the ceremony and saying, "Oh, that's me getting married. I never thought that would happen."
Q. Did you then, after that ceremony, go forward with this private ceremony that you had planned?
A. We did. We continued those plans. Because only a few -- our kids and my mom attended the ceremony in City Hall, we wanted to continue with the other ceremony so that more people could come and we could see everybody.
Q. Did you have a party, a ceremony and an exchange of vows?
A. We did. We did. We planned an afternoon in Berkeley where our friends and family had joined us, and we had a small ceremony, and then we all came inside and there was a big celebration.
Q. How many? How many people?
A. There were 100 guests.
Q. What month was that?
A. It was August 1st.
Q. Of 2004?
A. Yes.
Q. After that, was there a decision by a California court having to do with the ceremony that you entered into in San Francisco at City Hall?
A. Yes. A few weeks after our August ceremony, the state Supreme Court ruled that the San Francisco weddings were invalid.
Q. What was your reaction when you heard that?
A. Well, the part of me that was disbelieving and unsure of it in the first place was confirmed. That, in fact, I really -- almost when you're gay, you think you don't really deserve things.
So it did have this sense of, well, you know, I really didn't deserve to be married.
Q. Did you receive notification, official notification that your marriage was null and void?
A. Yeah. The City and County of San Francisco sent us a letter after they -- after the ruling, and it was a form letter and our names were typed at the top. It said, "We are sorry to inform you that your marriage is not valid and we would like to return your marriage fees to you. Would you like them in a check or donated to charity?"
And so that was the -- that's when we knew for sure we weren't married in San Francisco any more.
Q. And what feelings did that evoke, that experience?
A. I'm not good enough to be married.
Q. Sometime in 2008 the California Supreme Court rendered a decision, I think it was May of 2008, that marriage could be obtained by same-sex individuals irrespective of sexual orientation; do you remember that decision?
A. I do.
Q. What did you feel when you heard that the California Supreme Court said that you had a constitutional right to marry the person of your choice?
A. I -- I was elated to hear it. I really was. And I know Sandy was, too, because we talked about that ruling when it happened.
And after we had known about it for a little while, we started to hear our friends talk about their plans to get married, and we were very excited for them.
And then, of course, we asked ourselves, would we get married again? And it didn't take more than a -- really, a few minutes for us to -- it was unanimous that we couldn't -- we couldn't bring ourselves to do it again right then.
The experience in 2004 had really -- we hadn't really recovered from it. And it didn't feel at that time, given what was going on outside of the Supreme Court ruling in the political world, that there was necessarily a permanent solution there. And we had experienced the impermanent solution before and we decided not to go forward at that time.
Q. Were you aware that people were organizing an effort to overturn that California Supreme Court decision?
A. Yes. I was aware there was a campaign starting.
Q. What became Proposition 8, you were aware that there was effort going on to put a measure on the ballot to overturn the California Supreme Court decision?
A. I remember media reports of -- groups or individuals saying, we disagree and we'll have to take action, and the sort of beginnings of what resulted in a ballot initiative.
Q. And that was a ballot initiative that came on the ballot in November of that same year, is that correct?
A. Correct.
Q. Now, what was it like for you to be a citizen to watch and listen to the campaign to overturn that California -- can you just relate your reactions to what was going on around you in the political world on that subject?
A. Well, I mean, I am just -- I'm a California resident, so I could see evidence of the campaign. I commute on a local highway and I would see the bumper stickers every day.
I did see some of the television ads. One in particular I remember. I saw some posters on people's lawns, but that was about it.
Q. What did you -- you say you saw one ad in particular. What do you remember about that?
A. Umm, well, it struck me as being sort of an education-focused ad because there was a moment where they showed the Ed Code in the ad.
Q. The Education Code? A. The California Education Code, which I am sort of interested in. So that got me interested in that ad. And it did talk about needing to protect your children from learning about gay marriage in school. That was the gist of the ad.
Q. How do you feel did you feel about that? You work with children every day.
A. I do. Well, I work on their behalf. I -- I remember feeling that the ad was attempting to create a sense of fear and worry in me, and that the solution to that would be to vote Yes On 8. It was kind of a -- kind of a this-for-that kind of a feeling. They kind of simplified this complex thing about relationships into a bad thing. And then they said if you want to fix a bad thing, do this. And I felt essentially that it was very simplified.
Q. As a parent, did you have a reaction to the Proposition 8 campaign?
A. Uh-huh. I did. I felt that it didn't represent how I feel about my children or their friends; that I feel compelled all of the time to be protective of them without thinking. And so this message was that maybe I was in a group of people who wouldn't be protective of children, and it didn't match with the way I feel about them.
Q. Did you feel that voters were being warned that they needed to protect their children from you?
A. Yes, I did. And I felt like I was being used; that my -- the fact that I -- you know, I am the way I am and I can't change the way I am was being mocked and made fun of and disparaged in a way that I -- I didn't really have any way to respond to it. I just had to know that people felt that way.
Q. Do you, as you go through life every day, feel that -- the other effects of discrimination on the basis of your sexual orientation?
A. Every day.
Q. Tell us about that.
A. Well, when I was an adolescent and beginning to become more and more aware of my sexuality, I struggled to feel like everybody else, to look and feel like everybody else.
And for it to even be a struggle in the first place was hard. And I was well aware of the comments and jokes that were circulating through my school all the time, and some of them were directed at me.
As I got older and clearer about who I was and I could say I was a lesbian out loud, that would be met at times with criticism or skepticism.
And what I want to say about me and being out is, you know, I go to great lengths to not have that happen. I don't want to draw people's criticism. In fact, quite the opposite. I would really like people to like me.
So since I know I have this trait that I can't change that people don't like, I go to great lengths to have other traits people do like. So I put a significant amount of time and energy into being likable so that when the discriminatory things happen, either I can turn it around.
So if, for example, I'm on a plane and somebody comes up and I have saved a seat for Sandy, but she is not there yet and they say, "Is that saved?" I say, "Yes." And they say, "For whom?" And I say, "For my partner." And they say, "Could you please move that so I can sit here?"
Or if we are in a restaurant or in a store and we travel through the store together, people want to know if we are sisters or cousins or friends.
And I have to decide every day if I want to come out everywhere I go and take the chance that somebody will have a hostile reaction to my sexuality or just go there and buy the microwave we went there to buy without having to go through that again.
And the decision every day to come out or not come out at work, at home, at PTA, at music, at soccer, is exhausting. So much of the time I just choose to do as much of that as I can handle doing in any given day.
Q. Was coming out something that took a long time for you to do? Was it difficult?
A. It was sort of gradual, but probably not so long. I think probably by the time I was 18 or 19 I did know that, I was able to talk to myself about that and then I could tell other people over the next few years.
But it is what you often hear lesbians and gays say. I feel like once I realized that about myself, then I could say, I think I have been gay from the beginning. But it was a gradual process at first.
Q. You have had to explain this to your children?
A. Yes.
Q. Was that difficult?
A. Well, they don't know me any other way. So -- you know, it's different, probably, if you were living as a heterosexual person, but for me might have always been their mom and in their entire lives I have been out, so...
Q. Have you and Sandy entered into a registered domestic partnership in California?
A. Yes.
Q. Tell us when you did that?
A. That was in August of 2004.
Q. Was that easy to do? Does California make it simple?
A. Yeah. It was a -- I think it was a form.
Q. That you submit to the state?
A. That we -- we completed it. I think we had to have it notarized and then we mailed it in.
Q. What does domestic partnership mean to you compared to marriage?
A. Well, we are registered domestic partners based on just legal advice that we received for creating an estate plan. So we saw a lawyer who works with couples on those things and we completed a number of forms; a durable power of attorney, last will and testament, and she recommended we also do the domestic partnership agreement at the same time. So there were just a number of those kinds of documents that we completed.
Q. You regard it as something of a property transaction or estate planning transaction?
A. It was -- well, that's when -- we did ours during that process and it was -- I believe it has some unique features, that it was a little different than durable power of attorney or a will, and so we completed it.
It allows us to access each other's health benefits and some other benefits through our employers.
Q. Is it as good as marriage?
A. Well, to me, they are not the same thing at all. You know, I viewed the domestic partnership agreement as precisely that, an agreement, a legal agreement, and in some ways memorializes some of our responsibilities to each other.
But it isn't the same thing as a celebration or something we -- we don't remember the day it happened or invite people over on that day.
We just did that as part of the things we did as a couple to protect ourselves since we can't get married.
Q. One of the issues that the Court is going to have to deal with is how is that domestic partnership relationship different to you than marriage, and why is it that you want marriage so much when you have this opportunity?
A. Well, I don't have -- I don't have access to the words that describe my relationship right now. I'm a 45-year-old woman. I have been in love with a woman for 10 years and I don't have a word to tell anybody about that. I don't have a word.
Q. Would the word do it?
A. Well, why would everybody be getting married if it didn't do anything. I think it must do something. It appears to be really important to people and I would really like to use the word, too, because it symbolizes maybe the most important decision you make as an adult, who you choose. No one does it for you.
You weren't born with that as your cousin, and your uncle, your aunt. You chose them over everybody else and you -- and you want to feel that it's going to stick. And that you will have the protection and the support and the inclusion that comes from letting other people know that you feel that way.
Q. Do you think it would matter in your neighborhood in your community that you would be able to say that you and Sandy were married? Would it cause people to treat you differently?
A. I think it would be an enormous relief to our friends who are married. Our straight heterosexual friends that are married almost view us in a way that -- I know they love us, but I think they feel sorry for us and I can't stand it.
You know, many of them are either in their second marriage or their first marriage, but nevertheless, they have a word and they belong to this institution or this group.
And I can think of a time recently when I went with Sandy happily to a football game at the high school where two of our kids go and we went up the bleachers and we were greeted with these smiling faces of other parents sitting there waiting for the game to start. And I was so acutely aware that I thought, they are all married and I'm not.
Q. It sounds to me like your heterosexual friends don't feel threatened if you were to get married; that same-sex marriage doesn't sound like it threatens them?
A. No. The friends we have, I think, would feel better about their marriages if we could be married, too. They would feel like they get to help support our family in a way that is familiar to them, makes sense to them.
Right now they are a little bit unsure, just like we are, of what we all should be doing because we are outside of any sort of tradition. It's just sort of this thing we invented that no one but us understands.
Q. You have heard the argument, I think probably in various different places, that allowing you to get married to a person of the same sex would damage the institution -- the traditional institution of marriage; do you agree?
MR. RAUM: Objection, your Honor. Calls for expert testimony.
THE COURT: Sustained.
BY MR. OLSON:
Q. Have you discussed with Sandy the impact on the marriage relationship itself if you were to prevail in this lawsuit?
A. Yes, of course we have. We have talked about it. And Sandy has been married before and so, you know, I really envy her having had that experience.
But we both believe that there would be a settling in and a deepening of our commitment if we could get through this, instead of feeling instead like it's everybody else's decision.
Q. Did you in -- prior to the filing of this lawsuit, seek a marriage license?
A. Yes.
Q. What happened? Describe that?
A. We went to the Alameda County Recorder's Office in May, having reached the point where we wanted to see if there was a permanent solution to this problem and wanted to know in a more concrete way whether -- how Prop 8 was being enacted.
And we, indeed, pulled a number, filled out a form and waited for our turn. And the clerk that day, we sat down in front of her and she opened up her computer and looked at the form we were trying to get and she -- her eyes got really big and she looked at us and she said, "I'm sorry, but there are reasons why I don't think I can do what you are asking me to do, but I'm not comfortable not doing it. So I'm going to go get my boss. He is going to have to do it."
So she left the cubicle, and she went upstairs, and there was a long delay, and she came downstairs with her supervisor.
And he had written down this Prop 8, the statute, I think, and he read from it. And he was very nervous and very upset and very, I'm sure, worried that we would be upset as well, which we were. And he said after reading the statute, "I'm very sorry that I cannot give you this license. That I hope some day I can and I hope you will come back."
Q. Have you thought about the impact upon you, of you and Sandy and your relationship of bringing a lawsuit and being a plaintiff in a civil rights case and what's that like?
A. I have been thinking about it a lot lately. And to be -- well, Sandy and I really like our life where -- we live in our house and we see our kids and we see our friends. We don't want anything to change about our life. In fact, we would really like our life to just get better and better.
And when I think about whether or not what we want to have happen would make it possible for other people to have that happen, that makes me really happy, but it, most importantly, comes from a place of just wanting our lives to feel better than they do right now.
Q. If the courts of the United States were ultimately decided that you and other same -- persons seeking to marry someone of the same sex could indeed, did indeed have the constitutional right to get married, do you think that would have an effect on other acts of discrimination against you?
MR. RAUM: Objection, your Honor. Speculation.
THE COURT: Close, but objection overruled. State of mind. You may answer.
A. I believe for me, personally as a lesbian, that if I had grown up in a world where the most important decision I was going to make as an adult was treated the same way as everybody else's decision, that I would not have been treated the way I was growing up or as an adult.
There's something so humiliating about everybody knowing that you want to make that decision and you don't get to that, you know, it's hard to face the people at work and the people even here right now. And many of you have this, but I don't.
So I have to still find a way to feel okay and not take every bit of discriminatory behavior toward me too personally because in the end that will only hurt me and my family.
So if Prop 8 were undone and kids like me growing up in Bakersfield right now could never know what this felt like, then I assume that their entire lives would be on a higher arch. They would live with a higher sense of themselves that would improve the quality of their entire life.
MR. OLSON: Thank you, your Honor. I have no further questions.
THE COURT: Very well. You may cross examine, Mr. Raum, is it?
MR. RAUM: Yes, your Honor.
No questions.
THE COURT: Very well. Ms. Perry, you may step down.
(Witness excused.)
THE COURT: Mr. Olson, your next witness.
MR. OLSON: Thank you. The plaintiffs would like to call plaintiff Sandra Stier.
SANDRA STIER, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: Yes.
THE CLERK: Thank you. State your name, please?
THE WITNESS: Sandra Belzer Stier.
THE CLERK: Spell your last name?
THE WITNESS: S-t-i-e-r.
THE CLERK: And your first name?
THE WITNESS: S-a-n-d-r-a.
THE CLERK: Thank you.
DIRECT EXAMINATION
BY MR. OLSON:
Q. Ms. Stier, are you one of the plaintiffs in this lawsuit?
A. Yes, I am.
Q. Would you describe for us and for the Court your background; where you are from, your age, what you do professionally and your family?
A. Well, I -- I grew up in the midwest. I grew up on a farm in southern Iowa. I'm 47 years old.
My background is, really, I lived in Iowa for my youth. I grew up going to public schools, attended college in Iowa, moved to California right after college, and I now work for Alameda County -- or for a county government as an information system director in healthcare systems.
Q. And do you -- you live with Ms. Perry?
A. I do.
Q. And tell us about your family?
A. Well, our family is a blended family with our four boys.
We each bring two biological children to our family and each other.
Q. And just their general ages?
A. Well, our two younger sons are in high school. They are teen-agers. And our two older sons are out of high school, young adults.
Q. How would you describe your sexual orientation?
A. I'm gay.
Q. When did you learn that about yourself?
A. I really learned it about myself fairly late in life, in my mid-thirties.
Q. Had you been married before at that time?
A. Yes, I was married before.
Q. You were married to a man?
A. Yes, I was.
Q. When did you get married and where did you live?
A. I got married in 1987, and we lived most of the -- most of that marriage in Alameda, California.
Q. And you had no feeling at that point in time married to a man that you were a lesbian?
A. At that time I did not.
Q. And did you have a warm, loving relationship with that individual?
A. Umm, I had, unfortunately, a difficult relationship for most of our marriage, but it did start out with the best intentions.
Q. Well, did you encounter gay people growing up in Iowa? I'm wondering how this evolved, this -- your realization of how you characterize yourself these days. Tell us how that evolved from your youth in Iowa?
A. Growing up in Iowa on a farm in the country where the -- you know, the small town that I went to high school in had 1500 people and the towns around us were fairly similar.
I really had a fairly sheltered upbringing; a good upbringing, but sheltered. We spent most of our time in our home, you know, working with my parents. We didn't really travel and go to any place that was very different from where I grew up.
And I did not know of any gay people. I didn't even know of gay people or, really, even the concept of a gay lifestyle or sexuality until I was like a teenager.
Q. Tell us when you moved to California?
A. I moved to California in 1985 when I graduated.
THE COURT: Were you married in Iowa before you came to California or were you married after you came to California?
THE WITNESS: I moved here in 1985 and got married in 1987. So that was in California.
THE COURT: And did you meet your husband in California?
THE WITNESS: Yes, I did.
BY MR. OLSON:
Q. Tell us about that. Did you have a relationship with him for a certain period of time before you got married?
A. Yes, I did. We dated for about a year before we got married.
Q. And give us the date, again, of the marriage?
A. November 14th, 1987.
Q. '87. And when did the marriage come to an end?
A. The marriage came to an end in 1999.
Q. When did you meet Ms. Perry?
A. I met Kris around 1996.
Q. And how did your relationship with her develop? And -- go ahead.
A. Well, when I first met Kris, of course, I hadn't known her previously. I was teaching a computer class and she was a student in my class. So I just sort of knew of her, but then we started working together on projects at work and ended up being coworkers and became fast friends quite quickly.
And we were friends for quite some time and I began to realize that the feelings I had for her were really unique and different from friends, feelings I normally had towards friends. And they were absolutely taking over my thoughts and my -- sort of my entire self. And I grew to realize I had a very strong attraction to her and, indeed, I was falling in love with her.
Q. And tell us when you realized finally that you had fallen in love with her?
A. I really -- I realized that in 1999, early in the year.
Q. Did your falling in love with Kris have anything to do with the dissolution of your marriage?
A. My marriage was troubled on many fronts and had been in a very, very difficult state. And the end of my marriage was precipitated by my own extreme unhappiness, my ex-husband's severe problems with alcohol and his inability to provide the type of support as a husband and a family person that I had to have.
Q. Did your sexual orientation or your discovery of your sexual orientation have anything to do with the dissolution of that marriage?
A. No, it did not.
Q. Your husband is no longer living, is that correct?
A. That's true.
Q. Then tell us about how your relationship with Ms. Perry developed?
A. Well, my relationship with Kris, the romantic part of the relationship certainly started for me in a -- just a very exciting place. I had never experienced falling in love before, and I think --
Q. Are you saying that you weren't in love with your husband?
A. I was not in love with my husband, no.
Q. Did you think that you were at some point?
A. I had a hard time relating to the concept of being in love when I was married to my husband. And while I did love him when I married him, I honestly just couldn't relate when people said they were in love. I thought they were overstating their feelings and maybe making a really big deal out of something. It didn't really make sense to me. It seemed dramatic.
You know, when you grow up in the midwest and in a farming family -- which is a really unique way to grow up, if anybody knows much about that -- but there is a pragmatism that is inherent and it's part of the fabric of life and an understated way of being that is just pervasive in terms of your development.
And I remember as a young girl talking to my mom about love and marriage and she would say, "You know, marriage is more than romantic love. It's more than excitement. It's an enduring long-term commitment and it's hard work." And in my family that seemed very true.
(Laughter.)
So I really thought that was what I was kind of signing up for when I got married; not that it would be bad, but that it would be hard work and I would grow into that love, and that I needed to marry a good, solid person and I would grow into something like my parents had, which was really a lovely marriage and still is.
Q. And then you were -- I interrupted you. You were in the midst of describing what happened in terms of your own feelings as your relationship with Ms. Perry developed?
A. Well, with Kris my -- so we have this wonderfully romantic relationship and -- that just really grew and blossomed very beautifully. And not only were we in love, but we wanted -- we realized fairly soon that we wanted to build a life together.
We wanted to join our families and live as a family. That we didn't want to date.
I was 36 or 37 years old, and Kris is a tiny about it younger than me, but we really wanted to build a family together and have that kind of life of commitment and stability that we both really appreciated.
Q. How convinced are you that you are gay? You've lived with a husband. You said you loved him. Some people might say, Well, it's this and then it's that and it could be this again.
Answer that.
A. Well, I'm convinced, because at 47 years old I have fallen in love one time and it's with Kris. And our love is -- it's a blend of many things. It's physical attraction. It's romantic attraction. It's a strong commitment. It's intellectual bonding and emotional bonding. For me, it just isn't love. I really, quite frankly, don't know what that would be for adults. I don't know what else to say about it.
Q. Why are you a plaintiff in this case?
A. Well, I'm a plaintiff in this case because I would like to get married, and I would like to marry the person that I choose and that is Kris Perry. She is a woman. And according to California law right now, we can't get married, and I want to get married.
Q. You did hear the description before of the experience you went through in that summer of 2004, the spring and summer of 2004 where you came to San Francisco, thought you had gotten married, had a ceremony in Berkeley, thought that that was a celebration of your marriage, and then found out you weren't married.
A. Correct.
Q. What feelings did you have during that period of time?
A. Well, I -- when we found out -- well, during that period of time, you know, we were planning our wedding in 2004. And then when we had the opportunity to get married in San Francisco, we were really excited because we didn't expect that to even happen. So we did it. It was a great day. And it made planning our August wedding all the more fun, because we were planning a celebration of something that had been formalized and legalized in San Francisco. So it just added this amazingly wonderful dimension to our wedding.
So August 1st was a terrific day for us and we loved it, and our family and friends were there. One of our kids gave this amazing toast. He said, "Kris and Sandy, you are perfect for each other and this couldn't have turned out any better." And I thought, you know, rock on. I couldn't believe -- I couldn't agree with you more.
Shortly thereafter, though, we did find out that our marriage was invalidated, and we received a document from the city that Kris described earlier saying that it was invalidated. And I felt so outraged and hurt by that and humiliated.
And I felt like everybody who had come to our wedding and gone out of their way and brought us lovely gifts and celebrated with us must feel a level of humiliation themselves, too. And it made me feel like there are people in the world that are dearest and nearest to me that probably felt a certain level of pity for us, and the last thing I ever wanted to do is invoke those feelings of pity on us for something especially as beautiful as our marriage.
Q. The Supreme Court subsequently in May of 2008 said you had a constitutional right to get married. How did you feel about that?
A. I felt great, that the Court thought we had -- felt we had a constitutional right to get married. That was exciting.
It was also cloaked, though, in this dissension that felt very familiar.
Q. What do you mean "dissension"?
A. Well, the dissension that was sort of the political brewing of some activist groups that disagreed with gay marriage, wanting to put something together to invalidate that court decision.
Q. You mean, you were aware of that at the time?
A. I was aware reading in the paper about -- about that.
Q. Well, did you consider, well, the California Supreme Court has said that we can get married. We want to get married. We tried it once before. Now we are told we have a constitutional right to do it. Let's do it?
A. We thought about it and discussed it. And I really felt very strongly that at my age I don't want to be humiliated any more. It's not okay.
We did get married. In fact, we got married twice and we could get married a third time and it could get taken away, and then we get married a fourth time. And, for me, it felt like it made a circus out of our lives and I don't want to be party to that.
I told Kris I want to marry you in the worst way, but I want it to be permanent and I don't want any possibility of it being taken away from us. So let's wait until we know for sure that we can be permanently married.
We didn't want to do it for any -- for any other reason. And we did have friends that had gotten married and we were proud for them and thrilled for them and, also, worried for them, that they would have the same experience that we had had.
Q. Tell me all the ways that -- let me withdraw that for a moment and ask you about domestic partnership. You and Kris entered into a domestic partnership. Explain to the Court in your words why you did that and what that relationship means to you compared to what you are seeking here today?
A. Okay. First of all, for me, there is -- domestic partnership doesn't indicate anything about a relationship. So it's hard for me to put it in those terms.
It feels like it's a legal agreement between two parties that spell out responsibilities and duties, like fiduciary duties that you have towards each other, and those duties are -- mirrored some of those similar types of duties that are, of course, found in marriage.
A domestic partnership, to me -- and certainly the way that we entered it -- was really very much a part of estate planning, and it was based upon legal advice that we had gotten; just to make sure that our affairs were tightly in order, that our children had the maximum protection, and that Kris and I for each other had the maximum legal protection that we could under State of California law.
But there is certainly nothing about domestic partnership as an institution -- not even an institution, but as a legal agreement that indicates the love and commitment that are inherent in marriage, and it doesn't have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be. It's just a legal document.
Q. Well, did the lawyer tell you that domestic partnership would give you virtually all the same legal rights, vis-a-vis your partner, as marriage?
A. I actually don't recall our lawyer saying that specifically, but she did say it's important that you file the domestic partnership agreement for your maximum protection. Q. If it did give you virtually all of the legal rights and so forth with respect to Ms. Perry, why wouldn't it be good enough?
A. Because it has nothing to do with marriage. Nothing.
Q. Tell us what marriage, then, means to you. That's the second part of the question.
What is it that is so special about that word and that relationship, that institution of marriage, that means so much to you that you want it so badly that you will bring this lawsuit?
A. Well, marriage is about making a public commitment to the world, to your partner and to -- what I hope is someday my wife, to our friends, our family, our society, our community, our parents. It's just -- to me, it's -- it's the way we tell them and each other that this is a lifetime commitment or it's not -- we are not girlfriends. We are not partners. We are married. We are -- we want -- I want to have a spouse. It just is -- it's so different from domestic partnership, and -- and I simply want that.
And I have to say, having been married for 12 years and been in a domestic partnership for 10 years, it's different. It's not the same. I want -- I don't want to have to explain myself and have -- in a way that would indicate there must be something wrong with me or I wouldn't have to explain myself to anybody who has some reason they may need to know.
THE COURT: Did you misspeak? You said you had been married for 12 years?
THE WITNESS: I was married for 12 years, yes.
THE COURT: The marriage was dissolved in '99?
THE WITNESS: Correct. And it began in 1987.
THE COURT: I see. All right. I misunderstood.
Let me ask you this: If the state were essentially to get out of using the term "marriage" and admitting persons of the same sex or opposite sex into what it called a "domestic union," "spousal relationship," whatever name you want to use, but not "marriage," wouldn't that put you on the same plane as others who have the same relationship even though they are of opposite sex?
THE WITNESS: I believe it would. Because there wouldn't be anything different.
Right now we are being treated differently and if the state stopped, I guess, issuing marriage licenses and nobody else picked up the task that could exclude us, then we would have the same access. And if we had the same access, I would feel like we are being treated equally.
THE COURT: Even though the term "marriage" was not used?
THE WITNESS: Right. Because then marriage wouldn't be something that anybody got to claim as a legal status. I guess you would have to also look at the people who were already married and would they still have marriages.
But if marriage were not a legal status sanctioned by the state or any type of government in our society, then, I guess, I wouldn't have to worry about not having access to it because nobody else would either.
BY MR. OLSON:
Q. You said that you have to explain yourself. Give the Court some examples of things in everyday life, where you go, things that you do, where this relationship you have you have to explain or that it's awkward or humiliating or whatever?
Just give the Court some examples?
A. Well, there are a number of examples. It could be anything from going to our younger son's school and having -- to pick them up for something and telling -- you know, I consider myself to be their stepmother. And I do get Mother's Day cards, so I think that -- they think the same thing of me.
But if I pick them up, I have to explain who I am.
I'm their stepmother. I am the domestic partnership of their mother. That's -- you know, this is who I am, this is why I'm picking them up. Or other familial terms such as aunt to a niece or a nephew.
But in other ways just explaining who we are. The term "domestic partner" or "partner" isn't really that commonly known or understood by everybody. It's certainly probably understood by everybody in this courtroom and maybe people that -- of a certain part of society or a generation. But it's not common in the world. And it -- even for those who know what the term means, it doesn't reflect our relationship in a way that feels authentic, appropriately descriptive in any way.
We have a loving, committed relationship. We are not business partners. We are not social partners. We are not glorified roommates. We are -- we are married. We want to be married. It's a different relationship.
Q. Are there occasions where you have to fill out forms that ask whether you are married or name of spouse or things like that?
A. Frequently. I have encountered forms at school where you have to say who -- you know, mother -- who is the mother? Who is the father? There is never a place there for -- you know, instead of Parent 1, Parent 2, even there something different.
Doctor's offices. Are you single or are you married or are, you know, divorced even? But, you know, so I have to find myself, you know, scratching something out, putting a line through it and saying "domestic partner" and making sure I explain to folks what that is to make sure that our transaction can go smoothly.
Q. Would being married have anything -- would it provide you with any sense of security or stability that domestic partnership does not?
A. It would. It really would. It would provide me with a sense of inclusion in the social fabric. The society I live in that I want to have, and it would make -- I think I would feel more respected by other people and I feel like our relationship is more respected and that I could hold my head up high as -- in our family and just -- our family could feel proud.
And I want our children to feel proud of us. I don't want them to feel worried about us or in any way, like, our family isn't good enough.
Q. When the campaign occurred between the time in May of 2008, when the California Supreme Court gave you a constitutional right or announced that you had a constitutional right, and November, when the voters took that away, were you exposed to the election campaign in ways in your everyday life?
A. I was. I was -- I certainly saw ads on television. I saw bumper stickers on cars, signs in yards, you know on front lawns.
I went to a rally. I was quite exposed to it at the rally. I went to -- you know, just support the No On 8, but both sides were represented at the rally. So, yes, I was quite exposed.
Q. Did you hear things during that campaign in favor of Proposition 8 that were disturbing or upsetting to you?
A. Many things. Really, everything for the Yes On 8 campaign was disturbing on some level, and some more than others.
Q. Describe those emotions then? What bothered you on what level and what bothered you on the other level? We need to inform the Court what it was like?
A. Well, as I think folks probably remember the campaign was very focused on protection; protect marriage and protect children, and with the subtle implication always that you need to be protected from gay marriage because it must be, apparently, bad or you wouldn't have to protect anybody from it.
I felt like the constant reference to children -- it felt manipulative and it felt very harmful to me, as an individual, to us, as a couple, and our children, our family, our community. I felt like there was great harm being done and I felt like it was used to sort of try to educate people or convince people that there was a great evil to be feared and that evil must be stopped and that evil is us, I guess.
And as a mom of, you know, four kids, I -- I don't know if there is anything more inherent in parenting and stronger than the desire to protect your children. That's first and foremost, you protect your children. And the very notion that I be part of what others need to protect their children from was just -- it was more than upsetting. It was sickening, truly. I felt sickened by that campaign.
Q. As a parent of four children, you must have a strong sense of what a good parent ought to be. You must have feelings about that.
Would your boys be better off with a man in the house?
A. I think all children are -- the best thing children can have is parents who love them. That's the most important thing. And I know I love my children with all my heart. Kris loves our children with all her heart. And that's what I believe to be the best thing for them, to be loved.
Q. How do you feel about being a plaintiff in a case trying to change the Constitution? Is it a burden or is it something that that is easy for you because of what it means? Tell us about that?
A. Well, it's -- it doesn't feel like a burden. I feel like a little, tiny person in this huge, gigantic -- this huge country that just -- I just want my rights.
And I guess I keep focusing on the Federal Constitution more than the California Constitution. So I think, I'm not trying to change anything. I'm just trying to get the rights that the Constitution already says I have. So I just want the same thing that I think I'm due and that I think everybody else is due as well.
Q. Well, let's -- tell us now if you are successful, how will it change your life, if given the right to marry and to be a part of lots and lots and lots of same sex couples that will also be given that right?
THE COURT: Why don't you rephrase that and stop about midway?
How would your life be different? Isn't that what you are asking?
MR. OLSON: I couldn't phrase it better than you just did, your Honor.
(Laughter.)
THE COURT: Right answer.
BY MR. OLSON:
Q. Tell us what it means to you, as a plaintiff in this case,
if you were to be successful? How it would change your life?
A. Well, I think it would change my life dramatically. The first time somebody said to me, "Are you married," and I said "Yes," I would think, "Ah, that feels good. It feels good and honest and true."
I would feel more secure. I would feel more accepted. I would feel more pride. I would feel less protective of my kids. I would feel less like I had to protect my kids or worry about them or worry that they feel any shame or sense of not belonging.
So I think there are immediate, very real and very desirable personal gains that I would experience. And, of course, close family.
But on a different level, you know, as a parent you are always thinking about that other generation, that next generation, because you are -- they are in your house. So you are constantly thinking about the world that you're – the society you are in, what are you doing for them? And are we building a good world for them? And I really want that.
I want our kids to have a better life than we have right now. When they grow up, I want it to be better for them. And their kids, I want their lives to be better, too.
So I really do think about that generation and the possibility of having grandchildren some day and having them live in a world where they grow up and whoever they fall in love with, it's okay, because they can be honored and they can be true to themselves and they can be accepted by society and protected by their government. And that's what I hope can be the outcome of this case in the long run.
And as somebody who is from one of those conservative little pockets of the country where there isn't necessarily a lot of difference in the types of people that are there, having those legal protections is everything. It's important for these kids that don't have ready access to all types of people to at least feel like the option to be true to yourself is an option that they can have, too.
And that's what I hope for. I hope for something for Kris and I, but we are big, strong women. You know, we are in a good place in our lives right now. So we would benefit from it greatly, but other people over time, I think, would benefit in such a more profound life-changing way.
MR. OLSON: Thank you, Ms. Stier. Thank you, your Honor.
THE COURT: Very well. You may cross examine Mr. Raum.
MR. RAUM: We have no questions, your Honor.
THE COURT: Very well then. Ms. Stier, thank you for your testimony. You may step down.
(Witness excused.)
THE COURT: Very well. Your next witness.
MR. DUSSEAULT: Your Honor, the plaintiff will be calling Professor Nancy Cott. Professor Cott and Mr. Boutrous are right outside the door.
THE COURT: Very well.
(Brief pause.)
THE COURT: Mr. Boutrous, are you going to be taking this witness?
MR. BOUTROUS: Yes, your Honor.
THE COURT: Very well.
MR. BOUTROUS: Plaintiffs call Professor Nancy Cott.
THE COURT: Very well, Ms. Cott.
NANCY COTT, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: I do.
THE COURT: Very well. Please be seated.
State your name and spell your last name for the record.
THE WITNESS: Nancy F. Cott, C-O-T-T.
THE COURT: And be sure that you keep your voice up.
So maybe you can move that microphone a little closer.
THE WITNESS: Fine. How is this?
THE COURT: Well, we'll see.
DIRECT EXAMINATION
BY MR. BOUTROUS:
Q. Good afternoon, Professor Cott.
A. Good afternoon.
Q. I would like you have to give us a brief description of your academic and professional background.
Before I do, we have handed you a binder of the exhibits and if we could turn to Plaintiffs' Exhibit 2323, which is the last document in the binder?
(Witness complied.)
Q. Could you tell me if you recognize that document?
A. Yes, it's my CV.
MR. BOUTROUS: Your Honor, I would move Exhibit 2323 into evidence.
MR. THOMPSON: No objection, your Honor.
THE CLERK: Do you have a binder for the Court?
MR. BOUTROUS: Yes, if I may approach.
THE COURT: You may. Of course.
MR. BOUTROUS: This is a binder of all the exhibits I may refer to.
(Whereupon, document was tendered to the Court.)
THE COURT: There is no objection to 2023, I believe.
MR. BOUTROUS: 2323, your Honor.
THE COURT: I beg your pardon, 2323.
THE CLERK: Are you offering it?
MR. BOUTROUS: Yes. Thank you.
(Brief pause.)
THE COURT: 2323?
THE WITNESS: It's at the end.
THE COURT: All right. Perhaps you can furnish the Court an updated exhibit list? We stopped at 2320. You thought 2320 exhibits was enough.
(Laughter.)
MR. BOUTROUS: We kept going. This was actually part of Exhibit 1306, which we're not going to use and we broke it out, and I consulted with counsel on the other side. I should have explained that, your Honor. Thank you.
THE COURT: All right. 2323 is admitted.
(Plaintiffs' Exhibit 2323 received in evidence.)
MR. BOUTROUS: Thank you.
BY MR. BOUTROUS:
Q. Professor Cott, could you give us a brief description of your academic background?
A. Yes. I gained my PhD in the History of American Civilization in 1974. And shortly after that, I began teaching in the Departments of History and American Studies at Yale University, and I remained there moving up through the ranks. I remained there for 26 years teaching in those fields, specializing in the history of women, gender, the family, marriage and related social and cultural and political topics.
And in 2002, at which point I was a Sterling Professor of History in American Studies at Yale, which is the highest faculty honor the university gives, I moved to Harvard University, where I remain. I'm the Jonathan Trumble Professor of American History, and I am also the faculty director of the Schlesinger Library and the History of Women in America as part of my responsibilities there. I continue teaching in the same fields.
Q. Are you a historian?
A. Yes.
(Laughter.)
Q. And have you published any books, Professor Cott?
A. Yes. I have published eight books.
Q. And has the history of marriage in the United States a research area of yours during your career as a historian?
A. It has. Some of my earlier books in the 1970's and 80's dealt with questions about marriage, but my main period of research on the history of marriage was during the decade of the 1990's and, as a result of which, I wrote and published the book Public Vows, A History of Marriage in the Nation.
And I also published an article which dealt with materials that I decided not to include in the book, in the American Historical Review, which is the leading journal in the historical field. This article dealt with marriage and women's citizenship.
Q. What is your current position at Harvard?
A. I'm the Jonathan Trumbull Professor of American History.
Q. And when did you first start investigating the history of marriage in the United States?
A. It was around 1990. I -- I decided I wanted to look at the history of marriage from an angle which I thought other American historians had neglected, and that was the history of marriage as a public institution, a structure created by governments for individuals and for social benefit.
And insofar as historians had dealt with the history of marriage, typically they had tried to examine and look at change over time and the way married individuals experienced the institution, and I thought that the -- this other angle was neglected, and that's what I began to research.
Q. While you were at Yale, did you teach any classes on the history of marriage?
A. Well, many of my courses that dealt with the history of women and the family touched upon marriage, but in the -- while I was in the process of researching this book, I received a special honor from the president of Yale University, which was to be appointed as the DeVane Professor. This is a temporary appointment that one faculty member per year is given to teach a course of his or her own choosing that's outside the regular structure of the departments. It can be interdisciplinary or unusual.
And because I was coming to some conclusions and I had a great deal of evidence and research about the history of marriage at that time -- it was 1997 when I got this request or honor -- I said I would teach a course on the history of marriage in the United States over two centuries and I did teach that course in 1998.
Q. And were you able to devote all your teaching that year to --
A. That entire semester; not the entire year, but the entire semester.
Q. Thank you.
Professor Cott, I would like you to turn to Plaintiffs' Exhibit 1746 in the exhibit booklet.
A. Are these in numerical order? Yes. I think so. I see 1750 -- oh, here we are. I recognize this.
Q. You recognize the cover of your book?
A. It is the cover of my book, Public Vows, yes.
MR. BOUTROUS: And if we could put that up on the screen?
(Document displayed)
Q. You call your book Public Vows, A History of Marriage and the Nation. Why did you title your book Public Vows?
A. Well, I have made somewhat of a specialty of having my book titles have a kind of double meaning, and I did so this time in that I meant by "public vows" to express two aspects of marriage as a public institution, two related aspects.
One is simply that the couple in taking their marriage vows makes them publicly before a witness. And that is part of the formalization of a valid marriage.
But in addition to that, I was struck through my research at the extent to which marriage was an institution -- was the institution that we know it as because the public, in the form of the state, is making certain vows to the couple about the protection and support of their relationship in granting them a valid marriage.
And what I was examining far more in the book than a couple's intent, any individual private couple's intent, was what the public intentions in the institution of marriage had been over time.
Q. In what year was your book published?
A. It was published in the year 2000.
Q. How long did you spend researching and conducting your work in --
A. A decade. About a decade.
THE COURT: Wait for counsel to finish his question.
THE WITNESS: Thank you.
BY MR. BOUTROUS:
Q. Professor Cott, could you give -- provide us with an overview of the subject of your book Public Vows?
A. Well, as I said, I wanted to emphasize the public side of marriage. And one of the themes that became apparent to me and that goes throughout the book and now characterizes my views on marriage is what a captious institution it is.
It is a unique institution, of course, but one of the things that particularly characterizes it is the way it encompasses aspects that in other settings we think of as opposites, and the public nature of marriage is very much one of those; that is, marriage is both a public and a private institution.
Most people who consider marrying think principally about the private matter. Have they found a partner they love? Do they want to join in this intimate relationship which is ideally last for life?
It is also the foundation of the private realm of family creation, property transmission, and what we think of as the private, when we contrast it with the public.
On the other hand, it is by its very definition a public institution that the state has authorized and uses to regulate the population and that the public -- in the state, through the state and the law dispenses certain benefits through.
This public/private hybrid that marriage is, is unique and there are other seemingly contradictory or paradoxical characteristics to the institution that I stressed as the theme of my book.
One quite related to its public aspects is the way that marriage has through our history had a very strong governance function at the same time that it is characterized by liberty. Marriage is only possible for individuals who can exercise the liberty, value of our citizens, and it has also been -- particularly in the 20th century -- the realm created by marriage, that private realm has been repeatedly reiterated as a -- as a realm of liberty for intimacy and free decision making by the parties in that private realm.
Q. In forming your opinions in this case, the Perry case, did you rely on the work that you did for a decade in preparing and writing your book?
A. Yes. That is the principal body of research and thinking that I have relied on in my thinking about marriage for this case.
Q. And since your book was published in 2000, have there been other materials that you are relying on in the opinions that you have developed in this case that have emerged since you published your book in 2000?
A. Yes. I think that this area has produced other scholarships since then, mostly developing areas that I did not touch on in great detail. And I continue to update my -- my own knowledge in that area. And so in writing my report for this case, I did rely on other books and articles as well.
MR. BOUTROUS: Your Honor, we tender Professor Cott as an expert on the subject of the history of marriage in the United States.
THE COURT: Very well. Voir dire?
MR. THOMPSON: We have no objection, your Honor, to her being qualified as an expert on that subject.
THE COURT: Very well. And thank you, sir.
You may proceed, Mr. Boutrous.
MR. BOUTROUS: Thank you, your Honor.
BY MR. BOUTROUS:
Q. First, Professor Cott, I would like to ask you: Has over the history of our nation marriage played a central vital role in American society?
A. Yes. I think there is no doubt about that.
Q. As a historian, perhaps you could help us understand a little bit better what you, as a historian, are talking about when you talk about the concept of marriage?
A. Yes. Well, marriage in our setting is a very particular form of the institution. Human cultures in different places and over time have formulated many different forms of what -- of the marriage institution.
Ours is relatively recent in human culture and it is -- it has its own distinctive antecedents in the Anglo American common law.
To think of marriage as a universal institution, the same around the globe, it seems to me inaccurate -- MR. THOMPSON: Objection, your Honor. I move to strike this is answer because she has been qualified as an expert in marriage in the United States and now she is opining on marriage around the globe.
I specifically asked her in her deposition whether she was an expert in history outside the United States and she said no.
BY MR. BOUTROUS:
Q. Professor Cott, in conducting your work and research, and evaluating the institution of marriage in the United States, did you evaluate and look at the history of marriage that preceded the formation of the United States, around the world?
A. I did. And let me comment on that. From inside U.S. --
THE COURT: The answer is, "Yes."
What's your next question?
THE WITNESS: Yes.
BY MR. BOUTROUS:
Q. And was your evaluation of the systems of marriage throughout civilized history, did that play an important part in your work, in writing the book Public Vows and in forming your opinions about the history of marriage in the United States?
A. Well, I'd like to answer that from inside American history, and some of the awarenesses and sensitivities of the founders of the United States at the time of the American Revolution.
THE COURT: Why don't you just answer "yes" or "no."
THE WITNESS: I'm sorry. I'm sorry, Your Honor.
THE COURT: Yes or no. And, believe me, he will go on to the next question.
(Laughter)
THE WITNESS: Thank you, Your Honor, for prompting me.
MR. BOUTROUS: I'm ready.
THE WITNESS: Yes.
BY MR. BOUTROUS:
Q. Yes.
MR. BOUTROUS: Your Honor, I would ask that the objection be overruled.
MR. THOMPSON: Your Honor, if the Court would like, I can pull up on the screen the portion of the deposition testimony where I said:
"You don't consider yourself an expert in the history of marriage in countries outside the United States; is that right?
"That is right."
And now she is being offered and asked to speak about the history of marriage around the world, and whether it's a universal institution.
There is nothing of that in her report. So this would violate Rule 26. And she, herself, has admitted she is not an expert in this subject.
THE COURT: As I understood the questions of the witness, it elicited that to inform her view of the history of marriage in the United States, she did make some comparisons of the institution of marriage in other societies and other countries and other civilizations.
And I think that's an appropriate subject for her testimony. But I would agree with you that she is not qualified as an expert on marriage generally, marriage around the world.
So with that limitation, Mr. Boutrous, you may continue.
MR. BOUTROUS: Thank you, Your Honor.
BY MR. BOUTROUS:
Q. And let me just go back and clarify, in conducting your work and evaluating the history of marriage in the United States, did you compare the institution of marriage in the United States with the institution of marriage in other nations and other civilizations?
And, as the Court suggested, if you could --
A. Not literally. Not literally. I would like to clarify what I did do, if I may.
Q. Please clarify what you did do.
(Laughter)
A. I began my book by focusing on the place of marriage in the views of the founders of the American republic. And they were very much aware of what a minority, in among all the peoples of the globe, their form of marriage constituted.
They were very aware that most of the peoples in the globe, at that time, practiced polygamy or group marriage, or as they saw among Native Americans, other forms of marriage quite different from their own.
And, in fact, that was one of the great discoveries of colonization and exploration by Europeans and British people in the rest of the globe, that forms of marriage were so various in other cultures and among other peoples.
So that, simply from my expertise in American history, makes me very aware that there have been many forms of marriage that have been qualified and sanctioned by the societies that have invented them.
Q. Thank you.
When you speak of marriage as a historian, do you speak of it as a civil institution?
A. Well, I am -- in talking about our -- yes. I should say yes.
(Laughter)
THE COURT: And now you may clarify.
(Laughter)
BY MR. BOUTROUS:
Q. Can you explain that further?
(Laughter)
Let me rephrase that. In what manner has the institution of marriage in the United States historically been deemed a civil matter as opposed to a religious matter or some other type of entity?
A. This has been characteristic in all the states of our nation since their founding, that the civil law has been supreme in defining and regulating marriage.
Even while most of the people involved in writing these laws were -- found no objection to religious ceremonies, they felt that marriage was a civil matter. So much of it had to do with property and inheritance and the economy, things that civil law was principally concerned with.
And in all the American states, at the founding of the nation and then continuingly, the civil law has controlled marriage.
Q. In your evaluation from a historical perspective, what role has religion played in the institution of marriage in the United States?
A. Religion has been in the background of many, perhaps most Americans' understanding of marriage, and has influenced their own practices, whether sacramental or otherwise, and often their ceremonial practices. That's been extremely common. But these are apart from and have no particular bearing on the validity of marriages.
Any clerics, ministers, rabbis, et cetera, that were accustomed to seeing -- performing marriages, only do so because the state has given them the authority to do that. And they do that as the delegate of the state.
Q. When California entered the Union as a state, did its government address the issue of ensuring separation between religion and religious marriage and civil marriage in this state?
A. Yes.
Q. How did California address that issue?
A. There was a clause in the first constitution that specifically said that no religious forms could -- no religious disagreements with a particular marriage could invalidate that marriage.
Q. Did -- in your view, did the colonists, when this nation was first colonized, did they view the institution of marriage as an important one?
A. Yes.
Q. Did they move to adopt marriage in their colonies?
A. Yes. Every single colony did.
Q. Now, you were here this morning when several -- when two of the ads were played during the testimony of the plaintiffs, correct?
A. Yes.
Q. And did you note that in one of the ads one of the people speaking mentioned that, Biblical marriage should be the goal, as opposed to marriage between individuals of the same gender?
MR. THOMPSON: Objection, Your Honor.
Under Rule 26, there is no mention of this -- of the analysis of the ads. It's not a material she considered in either her opening report or her rebuttal report. And I did not have an opportunity to depose her about her views of the ads.
THE COURT: Well, I think the witness just said that she was here in the courtroom and she heard those. I think -- she has been qualified to opine on the subject of the history of marriage in the United States.
Let's see where this goes. We'll see what the testimony is and how much weight to give it, if any.
BY MR. BOUTROUS:
Q. Were you here --
A. Yes.
Q. -- and saw that?
A. I was here and I saw that, yes.
MR. BOUTROUS: Your Honor, I had a demonstrative prepared based on Mr. Cooper's testimony, that simply tracks what he said.
THE COURT: Mr. Cooper's testimony?
MR. BOUTROUS: Mr. Cooper's opening statement. I'm sorry.
And would like to display that on the screen, with the Court's permission.
THE COURT: Very well.
MR. BOUTROUS: If we could have Proponents' Position 1 displayed, please.
(Document displayed)
BY MR. BOUTROUS:
Q. And while that's happening, Professor Cott, let me ask you this. When you hear the term "Biblical marriage" as a historian, what does that mean to you?
A. Well, I -- to be honest, I had never seen this ad before this morning. And when I heard it, I thought it was really quite amusing, because The Bible is a situation with characters that are practicing polygamy, as was true in the ancient world among the Jews. So I was very surprised to hear him endorsing this.
Q. And we have on the screen one of the things that Mr. Cooper said during his opening statement. And that is,
"The limitation of marriage to a man and woman is something that has been universal. It has been across history, across customs, across society."
Do you agree with that statement?
MR. THOMPSON: Objection. Leading and beyond the scope of her expertise, which is limited to the United States.
THE COURT: Well, I think we've allowed the witness to testify as to her understanding of other foreign institutions as they have informed her evaluation of American marriage. And so I think that question is probably okay.
MR. BOUTROUS: Thank you, Your Honor.
THE WITNESS: I think this is inaccurate.
BY MR. BOUTROUS:
Q. Why do you believe it's inaccurate?
A. Because of my knowledge of the existence of many forms that are not a man and a woman.
Q. Could you give the Court an example.
A. Certainly, the examples of polygamist marriage that have been sanctioned in, well, take ancient Judaism, take Muslim cultures still today. It's fairly clear, I think, to anyone who has looked at all at world history, that this is not an accurate statement.
Q. In the United States we have a tradition of an -- and in the laws, which require monogamy.
Where did that tradition and that legal structure arise from, as a historical matter?
A. I believe that monogamy is attributable to Christianity. And that is probably why the person in the ad said "Biblical," because he was thinking of the New Testament, not the Old Testament.
And it is a tribute to the success of Christian evangelism, particularly after the 18th century, that there has been so much move around the globe toward monogamous union compared to polygamy.
Q. Professor Cott, let me ask you this: Historically, in the United States, has there developed a social meaning of marriage?
A. Yes.
Q. And by the phrase "social meaning of marriage," what do you, as a historian, understand that to mean?
A. I would take that to be another way of saying that societal evaluation or understanding of marriage, which is compounded of all the populations' individualized view of marriage, so that it is an amorphous item to talk about the social meaning of marriage.
But I think we do make generalizations of this sort, common understandings. And that's how I would see social meaning -- what the social meaning of marriage would express, the common understanding of it.
Q. Can you tell me your view, your opinion as a historian, what the social meaning of marriage in the United States is.
A. Do you mean today, or over time?
Q. As it has developed over time, and the features that have developed over time through history, to form what we now think of as the institution of marriage.
A. Well, first, I would want to say that marriage is unique in some of the ways I alluded to before, in its paradoxical aspects that it combines successfully.
It is a unique institution, as an evaluation of a couple's choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.
So marriage places a unique valuation on such couples' choices. And that is the core of its social meaning.
And upon that core very many cultural add-ons have been admitted, as well, which I want to mention.
But before talking about the cultural aspects of marriage and cultural advertisements for marriage, one might say, I should mention first, really, certain features of it which I emphasized in my book and which I think are far less obvious to people when they think about marriage. Because most people think about marriage in terms of an intimate choice.
Q. Can you tell me about -- give me a couple of examples of those features?
A. Yeah. Well, first of all, marriage, the ability to marry, to say, "I do," it is a basic civil right. It expresses the right of a person to have the liberty to be able to consent validly.
And this can be seen very strikingly in American history through the fact that slaves during the period, the long period that American states had slavery, slaves could not marry legally.
Q. Why were slaves barred from marrying?
A. Because as unfree persons, they could not consent. They did -- they lacked that very basic liberty of person, control over their own actions that enabled them to say, "I do," with the force that "I do" has to have. Which is to say, I am accepting the state's terms for what a valid marriage is.
A slave couldn't do that because the master had overall rights over the slaves' ability to disport his person or to make any claim. The slave could not obligate himself in the way that a marriage partner does obligate himself or herself.
Q. What happened when slaves were emancipated?
A. When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means.
They saw the ability to marry legally, to replace the informal unions in which they had formed families and had children, many of them, to replace those informal unions with legal, valid marriage in which the states in which they lived would presumably protect their vows to each other.
In fact, one quote that historians have drawn out from the record, because many of these ex-slaves were illiterate, of course, but one quotation that is the title of an article a historian wrote, it was said by an ex-slave who had also been a Union soldier, and he declared, "The marriage covenant is the foundation of all our rights."
Meaning that it was the most everyday exhibit of the fact that he was a free person. He could say, "I do" to his partner.
And then in corollary with that -- because, of course, the history of slavery is happily behind us -- there are other ways in which this position of civil rights, of basic citizenship, is a feature of the ability to marry and to choose the partner you want to choose.
Q. What would be an example of another one of those features?
A. Well, I want to use an example of that, that again comes from the period while slavery still existed. But it doesn't have to do with the slave. It has to do with a black man, Dred Scott, who tried to say, when he was in a non-slave-holding state, that he was a citizen. And in an infamous decision, the Supreme Court denied him that claim.
And why this is relevant here is that Justice Taney spent about three paragraphs of that opinion remarking that the fact that Dred Scott as a black man could not marry a white woman -- in other words, that there were marriage laws in the state where he was and many other states, that prevented blacks from marrying whites -- was a stigma that marked him as less than a full citizen.
Because if he had had free choice, that would be -- Taney wouldn't have mentioned it. But he remarked on it because of the extent to which this limitation on Dred's ability to marry was a piece of evidence that Justice Taney was remarking upon in his opinion to say this shows he could not be a full citizen.
Q. Now, going back to the era of slavery, would slaves form something they would call marriage, or that the slave owners would call marriage, at least informally?
A. Yes.
Q. And was that viewed by the state or by society as an important relationship?
A. Certainly, it was regarded as an important relationship within slave communities. They were the only relationships they had, these informal relationships.
But they were totally treated with abandon by white society. Broken up all the time. And no -- no state authorities gave any protection or credence to these relationships whatsoever.
Q. And, as a historical matter, to what do you attribute the desire to be formally married by the state upon emancipation?
A. Well, it was, as I suggested, because this was a common-sense indication of freedom, of possessing basic civil rights, and because they assumed it would mean to them that white employers -- because, of course, the ex-slaves were still quite poor and employed by white -- whites who were -- well, at any rate, white employers would often try to demand that families worked in certain ways, or that children worked, and so on. And so the emancipated -- the freed men and women assumed that once they were legally married, that they could make valid claims about their family rights.
Q. You mentioned a little earlier that some of these values and the things that go into the social meaning of marriage are less visible to some. What did you mean by that?
A. Well, I think this was true of myself, until I started to do this research. And I think it's true of the vast majority of people who have no apparent limitations on their marriage rights, because the person they choose is someone who is, you know, perfectly fine for them to marry. And I think people remain unaware that, in marrying, one is exercising a right of freedom.
As I said, most people think of it as a private choice. Do I marry or don't I? They don't tend to articulate this -- this -- the citizenship, the civil rights aspect of it.
It's only those -- and I have seen this in my book and in various instances with various ethnic groups, racial groups, and so on. It is only those who cannot marry the partner of their choice, or who cannot marry at all, who are aware of the extent to which this is -- that the ability to marry is an expression of one's freedom, and being the barrier of basic civil rights.
Q. In your view, as a historical matter, have efforts by individuals to acquire the right to marry strengthened or weakened the institution of marriage and how it's viewed in society?
A. Uhm, do you mean individuals like emancipated slaves? I'm not sure what you mean.
Q. Let me put it a different way. Do you believe that when -- as in this case, when individuals are fighting for the right to marry, and there's a debate about that, how does that affect the way society talks about and views the institution of marriage?
A. I see. I see. You were referring to those groups I mentioned who had been restricted?
Q. Yes.
A. Yes.
Q. Yes.
A. I see.
Well, yes, I think in every instance, the most stunning of which, of course, is the elimination of racial bars on marriages to whites, these racial bars were quite -- they proliferated. They were quite various and as well as numerous.
That the restrictions on marriage as they have been removed have tended to make the institution more appealing, more -- more clearly an equal right that people share. And so I would say that the removal of such restrictions has tended to strengthen the institution.
Q. Now, you mentioned that -- a cultural value that infuses the social meaning of marriage. Could you explain to us what you mean by that, and what the -- how culture values marriage in the United States through its history.
A. Yes. Well, I'll just be brief because this is a huge subject.
But, first of all, I would say that the religious connotations that many different groups, different sects and different religions have attached to marriage have been part of its high cultural valuation.
More than that, in our entertainment, in our folktales, in our songs, in our movies, at least since the rise of the novel in the 18th century, marriage has been the happy ending to the romance, to the conflict that may have transpired over the course of a story. It is the principal happy ending in all of our romantic tales.
And that kind of cultural polish on marriage has, in the past century, been greatly forwarded by advertising and other forms of visual imagery that surround us all the time and that present the rice, the white dress, the happy couple parading down the aisle, as a destination to be gained by any couple who love one another.
So these cultural attributes are probably too various to mention, but I'm sure you get my point.
Q. Let me ask you this. How does the cultural value and the meaning, social meaning of marriage, in your view, compare with the social meaning of domestic partnerships and civil unions?
A. I appreciate the fact that several states have extended -- maybe it's many states now, have extended most of the material rights and benefits of marriage to people who have civil unions or domestic partnerships. But there really is no comparison, in my historical view, because there is nothing that is like marriage except marriage.
And I would add that in that halo around marriage, the cultural valuations have not been the only thing that has driven this. But, rather, the extent to which states have in the past century gone beyond -- states and the federal government, have gone beyond the basic freedom that marriage implies, to add many, many other benefits that are channeled through marriage. And while these, at least at the state level, are the material benefits that domestic partnership gives, the states choosing this institution named marriage, through which to channel the benefits, has itself added greater cultural valuation to the institution.
Q. At the founding of the country, and as a historical matter, were there ever comparisons between marriage and democracy in the public discourse at the time?
A. This is really a very interesting story. Yes, there have -- there were.
Q. And what were the comparisons that were made at the time?
A. Well, let me clarify, first of all, that it wasn't precisely democracy but, rather, the form of republican government that the Americans were founding. And their republican form -- small "r" -- was a government based on consent and voluntary allegiance.
This was distinct from being a subject of Great Britain. Great Britain, at the time, did not call its people its citizens. They were its subjects. And they were -- had to be allegiant to the King just because they were born there.
But in breaking away from Great Britain, the founders of the American republic were forming a government based on voluntary allegiance and consent. And that was very, very present in public discourse.
And they found -- and one sees this in newspapers and journals at the time. They found that the best analogy they could bring to this -- to convince people that this was a good thing, to voluntarily consent to a stable relationship that may govern you, but it's for your own good, that the best analogy they could find was marriage.
And so in the popular periodicals of the time and in newspapers, the -- that analogy was very, very frequently made, to persuade former subjects of Great Britain that they should consent to be governed, as people consented to be governed by marriage laws, consent to be governed by this new institution to which they would give voluntary allegiance.
THE COURT: About how much longer do you have with this witness?
MR. BOUTROUS: Your Honor, I was about to move to another topic. I probably have another hour or so.
THE COURT: Well, then, this would probably be a good time to take our adjournment for the day. We are off to a good start, Counsel. I appreciate that very much. And we will begin tomorrow -- can we begin at 8:30, instead of 9 o'clock? Is that agreeable to everybody?
MR. BOUTROUS: Yes, Your Honor. (Multiple counsel affirm.)
THE COURT: All right. We will see you tomorrow morning, at 8:30.
THE WITNESS: Thank you, Your Honor, for reminding me. This is a hard lesson for me to learn. When a student asks me a question, I can't just stop at "yes."
Thank you, Judge.
(At 4:02 p.m. the proceedings were adjourned until Tuesday, January 12, 2010, at 8:30 a.m.)
----
I N D E X
OPENING STATEMENTS PAGE VOL.
Opening Statement by Mr. Olson 18 1
Opening Statement by Ms. Stewart 46 1
Opening Statement by Mr. Cooper 55 1
PLAINTIFF'S WITNESSES PAGE VOL.
ZARRILLO, JEFFREY
(SWORN) 75 1
Direct Examination by Mr. Boise 75 1
KATAMI, PAUL
(SWORN) 86 1
Direct Examination by Mr. Boise 86 1
Cross Examination by Mr. Raum 120 1
Redirect Examination by Mr. Boies 136 1
PERRY, KRISTIN
(SWORN) 137 1
Direct Examination by Mr. Olson 137 1
STIER, SANDRA
(SWORN) 160 1
Direct Examination by Mr. Olson 160 1
COTT, NANCY
(SWORN) 181 1
Direct Examination by Mr. Boutrous 182 1
EXHIBIT INDEX
PLAINTIFFS’ EXHIBITS IDEN VOL. EVID VOL.
99 112 1
401 112 1
2323 183 1
DEFENDANTS’ EXHIBITS IDEN VOL. EVID VOL.
15 136 1
116 121 1
CERTIFICATE OF REPORTERS
We, KATHERINE POWELL SULLIVAN and DEBRA L. PAS, Official Reporters for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C 09-2292 VRW, Kristin M. Perry, et al., vs. Arnold Schwarzenegger, in his official capacity as Governor of California, et al., were reported by us, certified shorthand reporters, and were thereafter transcribed under our direction into typewriting; that the foregoing is a full, complete and true record of said proceedings at the time of filing.
/s/ Katherine Powell Sullivan
________________________________________
Katherine Powell Sullivan, CSR #5812, RPR, CRR U.S. Court Reporter
/s/ Debra L. Pas
________________________________________
Debra L. Pas, CSR #11916, RMR CRR U.S. Court Reporter
Monday, January 11, 2010
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