Watch the Ruling on the Stay (August 12, 2010)
Judge Walker denied the stay on his August 4, 2010 ruling. That decision is stayed until 5:00 pm on Wednesday, August 18, 2010.
Watch the Ruling (August 4, 2010)
On August 4, 2010, Judge Walker released his ruling in the case. It is 136 pages, which totals 5 hours and 5 minutes in our re-enactment. You can download this ruling as a PDF here or from the Transcripts drop-down menu above. We have broken this into five separate videos and provided links to each section. Some will wish to skip directly to the Conclusion (Page 135), others will view the entire ruling with the Autoplay option.
- Background To Proposition 8 (Page 1)
- Procedural History Of This Action (Page 3)
- Plaintiffs' Case Against Proposition 8 (Page 5)
- Proponents' Defense Of Proposition 8 (Page 6)
- Trial Proceedings And Summary Of Testimony (Page 10)
- Credibility Determinations
- Plaintiffs' Witnesses (Page 25)
- Proponents' Witnesses (Page 25)
- Findings Of Fact
- The Parties (Page 54)
- Whether any evidence supports California's refusal to recognize marriage between two people because of their sex (Page 60)
- Whether any evidence shows California has an interest in differentiating between same-sex and opposite-sex unions (Page 71)
- Findings Of Fact (continued)
- Whether the evidence shows that Proposition 8 enacted a private moral view without advancing a legitimate government interest (Page 85)
- Conclusions Of Law
- Due Process (Page 109)
- Equal Protection (Page 117)
- Conclusion (Page 135)
- Remedies (Page 136)
LATEST NEWSClick on each headline to expand the section.
Watch the Closing Arguments HERE
LIVE webcast of ruling planned within an hour of release±
We traveled to San Francisco on Wednesday with a group of our actors to watch the Closing Arguments. It was truly surreal to be in the courthouse and see the people and places we have been re-creating here on a set in Hollywood since January.
We received so many compliments and comments from people who have been following the case along with us, as well as many of the people we have been portraying. Also, Clyde (our TED OLSON) was interviewed for a minute or so by a member of the press who eventually realized that he was not Olson, but "played him on TV." Honest mistake, but the reporter then became extremely interested in the "art imitates life" aspect of our endeavor.
We hope that you enjoy the 4+ hours of Day 13 and we invite you back here the day the ruling is posted to the Court's website. Within one hour, we will LIVE webcast the ruling, so you can watch and listen as you read along.
It has truly been an honor to hear from so many of you. This has been a labor of love and the end result is more transparency in the federal court system. We are proud to provide this as a resource for all who wish to hear the arguments on both sides of the Marriage Equality debate and listen as the evidence presented is examined and cross-examined.
If you want to contribute money toward our expenses, you will have our gratitude. In terms of a typical Hollywood production, our budget is peanuts. We have been covering it out of our pockets, so any token gift is significant. Thanks again for your support!
Sincerely, Ireland & Ainsworth
Cast travels to S.F. to hear Closing Arguments±
FOR IMMEDIATE RELEASE, CONTACT: John Ireland (213) 840-3593, Ireland@MarriageTrial.com
ACTORS SIT IN ON CLOSING ARGUMENTS TO PREPARE FOR THEIR FINAL SCENES, RULING DRAMATIZATION WILL BE WEBCAST LIVE SAME-DAY
June 16, 2010 (SAN FRANCISCO) ? As both parties in the historic case Perry v. Schwarzenegger present their closing arguments today in federal court, the actors who portray them in the YouTube re-enactment will be watching in the San Francisco courthouse.
?When the Supreme Court ruled in January that the Prop 8 trial could not be televised, we knew what we had to do,? says John Ireland. Within weeks he and co-producer John Ainsworth arranged for a courtroom set, cast 22 attorneys, 15 witnesses, 4 plaintiffs and one judge. MarriageTrial.com currently hosts 55 hours of the trial, all 3,000+ pages of transcript. With today?s closing arguments, they expect it to top 60 hours.
Ainsworth explains why the cast members have made the trek from Hollywood. He says, ?As the trial draws to a close, we want our actors to see their real-life counterparts up close?to study their final moments making their case before the judge issues his ruling.?
Present at the proceedings in San Francisco today are actors portraying counsel from both sides of the case: Ted Olson (Clyde FT Small), Charles Cooper (Julian Simmons), David Thompson (Scott Kradolfer), Therese Stewart (Sarah Gaboury) and Tamar Pachter (Susyn Duris), as well as Judge Walker (Ted Heyck) and one very controversial witness, Dr. William Tam (Gedde Watanabe).
Watanabe (Sixteen Candles, ER) who portrayed Tam, a proponent of Proposition 8 who testified only reluctantly after fearing the attention his appearance would bring is excited to see the conclusion of the trial. ?I am here today to watch the conclusion of what I feel is a remarkable chapter on equality in the United States,? the actor says. He adds, ?It?s been a dramatic trial. History will remember what was said in this courtroom.?
Since the broadcast of the actual trial was blocked by a ruling from the U.S. Supreme Court, the MarriageTrial.com re-enactment has been the sole source of video coverage of the trial. For this reason, the producers feel an urgency to post their footage online quickly. ?After today, we head back to Hollywood. We will re-enact these proceedings as soon as we have the transcripts,? says Ainsworth. They have tentatively scheduled the actors for Friday.
It is expected that Judge Walker will post his ruling on the court website within a few days to a few weeks from today?s closing arguments. ?We will webcast live the ruling within hours,? says Ireland. He continues, ?Starting tomorrow, our actor playing the judge, Ted Heyck, is on call. He will skim the text, don the robe and we go live.? The video will stream live on MarriageTrial.com for all the world to see? as Ireland puts it, ??just in time for the evening news.?
Official Sponsor of Courage Campaign's Testimony±
MarriageTrial.com partners with historic public education campaign Testimony: Equality on Trial.
SAN FRANCISCO ? As attorneys prepare their Closing Arguments in the Perry v. Schwarzenegger case challenging California?s Proposition 8 in federal district court, everyday citizens across the country are learning their lines for a massive re-enactment of the testimony from the case. MarriageTrial.com announced today its official sponsorship of the Courage Campaign?s Testimony: Equality on Trial project, which seeks to activate everyday Americans to provide their own testimony on the issue of marriage equality for gays and lesbians.
?When the Supreme Court ruled in January that the Prop 8 trial could not be televised, we knew what we had to do,? says John Ireland. ?Ainsworth and I had the resources available to put this on YouTube where everyone could see our justice system at work on this very important issue.? Ireland and co-producer John Ainsworth arranged for a courtroom set, contacted actor friends and began shooting each day?s testimony.
?Within a few weeks, we had cast 22 attorneys, 15 witnesses, 4 plaintiffs and one judge? 42 actors in all,? says Ainsworth. He continues , ?Now, with the Testimony project, the cast will grow to thousands. Everyday people will be acting out portions from the transcript of this trial? and even more significantly, preparing three minutes of their own testimony about how the passage of Proposition 8 affects their lives.?
?The emotions are real. The hurt is authentic. I could feel the issue take shape when I spoke Sandy?s words,? says actress Tess Harper (Tender Mercies), who performed the role of plaintiff Sandy Stier in the MarriageTrial.com re-enactment. The Emmy winning actress connected deeply with the testimony. She adds, ?All Americans are connected on this issue. When we deny Sandy and Kristin [Plaintiff Perry] the right to raise their kids in a stable married relationship, we are doing a great harm.?
Actor Gedde Watanabe, perhaps best known as Long Duk Dong in the film Sixteen Candles, portrayed Dr. William Tam, a proponent of Propositio n 8 who testified only reluctantly after fearing the attention his appearance would bring. In fact, Tam?s attorneys have recently filed a motion to strike significant portions of his testimony from the record. Watanabe points out, ?Even if my character?s words are struck from the record, they are permanently available in our re-enactment. He spoke them in open court, just as he spoke out publicly against equality during the campaign.? Ainsworth and Ireland confirm they do not intend to edit any portions out of the re-enactment.
?Our guiding principle in creating MarriageTrial.com was to provide a definitive re-enactment of the trial from start to finish.? Ainswort h says. He adds, ?The partnership with Courage Campaign makes this 60+ hour resource available to all who wish to re-enact portions of the trial.? As the case inevitably travels through the Ninth Circuit Court of Appeals and ultimately to the U.S Supreme Court, the Courag e Campaign?s Testimony project will provide a way for the American people to bear witness and to participate in the most transformative trial in modern U.S. history.Download our Media Advisory.
Motion to Strike Exhibits & Testimony±
On April 26, 2010, Defendant-Intervenors filed a Motion to Strike from the record eleven exhibits and 19 portions of testimony given by Dr. Hak-Shing William Tam on Day 8 of the trial (January 21, 2010). They assert that, "The Ninth Circuit has now clarified that determining the proper scope of First Amendment privilege in this case does not turn on whether [persons are] members of a single organization or entity," and that the operative inquiry is whether they are part of an association subject to First Amendment protection."
The following is a compilation of the proposed redactions, grouped into four sections. The video goes red during the segments that would be removed from the record. Click on each citation to go directly to that segment or watch it all the way through. The clip duration is 39:41 and the proposed redactions total 36:13.
- SECTION I (pp. 1899-1914, Duration: 14:24)±
- SECTION II (pp. 1964-1972. Duration: 7:25)±
- SECTION III (pp. 1979-1982. Duration: 3:11)±
- SECTION IV (pp. 1990-2004. Duration: 14:39)±
MarriageTrial.com profiled on Bill Moyers Journal±
Airdate: Friday, February 26, 2010 on PBS
They battled it out as legal adversaries in 2000 before the Supreme Court in Bush v. Gore. But what's got these two prominent lawyers - one conservative and one liberal - working together in court now? Theodore Olson, one of the nation's premier appellate and United States Supreme Court advocates and David Boies, one of the country's preeminent trial lawyers, argued opposite sides for the fate of the 2000 election but are now teamed up in the fight to overturn California's Proposition 8 ballot measure outlawing same-sex marriage. The unexpected pair discusses why they've taken on the hot-button issue - even as some gay rights activists objected - and why they don't believe that same-sex marriage is a right or left issue. Visit www.PBS.org for more information.
Day 1: Chapters 1-4 (January 11, 2010)
This video player offers closed captioning and full screen mode.
Expertise, Interpretation & Exhibits: Day 1
We offer context for each episode from our two experts, David Cruz and Linda Hirshman. First, Cruz gives an overview of what is happening during the day's proceedings - introducing the players and providing an explanation for the legal strategies being employed. Then, Hirshman recounts her first-person experience in the courtroom from San Francisco - describing the dynamics in the room and pointing out the social significance of what you are watching unfold.
± Click here to show exhibits and further resources.
- Exhibit PX99: "It Already Happened" campaign ad (Yes on 8)
- Exhibit PX401:"Stand up for Proposition 8" campaign ad (Yes on 8)
- Exhibit PX305 (omitted): "Gathering Storm" ad post Proposition 8 (National Organization for Marriage)
- Exhibit PX1: California Voter Guide 2008 for Proposition 8
- Exhibit DX116: "Everything to Do With Schools" campaign ad
- Exhibit DX15: Unknown campaign ad
- Exhibit PX2323: Dr Nancy Cott's Curriculum Vitae
- Exhibit PX1746: Book "Public Vows" by Nancy Cott
- NPR Interview with Dr. Nancy Cott (April 15, 2004)
David B. Cruz,J.D.
Day one of the trial begins with the judge explaining his proposed broadcasting of the trial and the U.S. Supreme Court's order temporarily blocking it, followed by administrative matters.
The trial then gets underway with opening statements by attorneys for the plaintiffs (Ted Olson & Therese Stewart) challenging Proposition 8 on federal constitutional grounds and by the attorney for the official proponents of Proposition 8 (Charles Cooper), who intervened to defend its contitutionality (as Defendant-Intervenors). They did not trust Governor Schwarzenegger and Attorney General Jerry Brown to do so adequately, and indeed, those governmental defendants have taken the position that Proposition 8 is unconstitutional and they are not defending it.
Ted Olson, one of the lead attorneys for plaintiff couples Kristin Perry & Sandra Stier and Paul Katami & Jeffrey Zarrillo, explains that the plaintiffs are arguing that:
- Proposition 8 violates federal constitutional rights to equal protection and to marry;
- Marriage is of great importance in U.S. society and lack of access to it stigmatizes and harms same-sex couples and their families;
- There is "no good reason" for the discrimination worked by Proposition 8 - not procreation or parenting;
- Proposition 8 was enacted out of prejudice based on stereotypes of gay and lesbian people; and
- It is the courts' role to protect the constitutional rights of vulnerable minority groups.
Therese Stewart explains for San Francisco that the city will contend that Proposition 8:
- Contributes to anti-gay hate crimes; and causes significant economic losses to the city and state.
Charles Cooper then argues for the Defendant-Intervenors that:
- Proposition 8 restores a traditional definition of marriage;
- California generously protects gay and lesbian people as a consequence of great political power;
- Opposition to marriage for same-sex couples is not necessarily born of prejudice;
- Heterosexual procreation is a central purpose of marriage;
- Letting same-sex couples marry risks transforming marriage away from being a pro-child institution and leads to various social harms; and
- The effects of letting same-sex couples marry is uncertain and so courts chould defer to the people's choice not to experiment.
David Boies then conducts the direct examination of plaintiff couples Jeffrey Zarrillo & Paul Katami and Kristin Perry & Sandra Stier about:
- their relationships;
- the harms they've faced through being denied the right to marry;
- the discrimination they've faced; and
- their reactions to the Yes on 8 campaign.
Brian Raum, another defense attorney, cross-examines Paul Katami about his views on parental rights and responsibilities for their children's upbringing.
The day concludes with the initial questioning of plaintiffs' witness Nancy Cott, a professor of history at Harvard who has extensively studied marriage and its significance to couples and to society. Cott discusses the non-religious character of marriage laws in the U.S. from the past to present; the social meaning of marriage today; interactions of marriage law and race in U.S. history; and relationships between choice and consent and marriage as a civil right.
~David B. Cruz, J.D., University of Southern California, Gould School of Law
± Click here to read more about David Cruz.
An expert on constitutional law and sex, gender, and sexual orientation law, Professor Cruz has been interviewed by a wide range of print, radio, and television media, including CNN Headline News, The News Hour, The Wall Street Journal, This American Life, and NPR's Morning Edition. Before joining the law faculty at the USC in 1996, he was a Bristow Fellow in the Office of the Solicitor General in Washington, D.C. and clerked for The Honorable Edward R. Becker, Circuit Judge of the United States Court of Appeals for the Third Circuit. Cruz is admitted to the bars of the State of New York and the United States Supreme Court.
Professor Cruz graduated with a B.S. in Mathematics, summa cum laude, and a B.A. in Drama, summa cum laude, from the University of California, Irvine and earned his master's degree in Mathematics from Stanford University. He was first in his J.D. class at graduation from New York University School of Law, where he was Managing Editor of the New York University Law Review.
Professor Cruz's academic publications include Heterosexual Reproductive Imperatives, 56 EMORY LAW JOURNAL 1157 (2007); "Naim v. Naim," "Bowers v. Hardwick," and "Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston" (Encyclopedia of American Civil Liberties, 2006); Disestablishing Sex and Gender, 90 CALIFORNIA LAW REVIEW 997 (2002); and "Just Don't Call It Marriage": The First Amendment and Marriage as an Expressive Resource, 74 SOUTHERN CALIFORNIA LAW REVIEW 925 (1999).
Dr. Linda Hirshman
"The Supreme Court stopped the video!" A wave rolled through the crowd of media waiting for the doors to open on the first day of the gay marriage trial. The defendants, the coalition that sponsored the prohibition on gay marriage, had gotten the Supreme Court to stop the public from seeing the biggest public trial of the decade. This re-enactment is as close as you're going to get.
In the beginning this first day, the lawyers, long-time conservative turned gay rights advocate, Ted Olson, representing the gay men and lesbians who want to marry, and long-time conservative, Charles Cooper, representing the sponsors of the anti-same-sex marriage measure, make their opening arguments. Seemingly taking renowned counsel by surprise, Judge Vaughn Walker interrupts both plaintiffs' and defendants' set pieces repeatedly to ask probing questions. "What if California just got out of the marriage business altogether?" he asks Olson. "How does letting gay people marry harm the institution of marriage"? he throws at Cooper.
Then, for the first time in federal legal history, a gay person, Plaintiff Jeffrey Zarrillo, tells his story. Zarrillo and his would-be spouse, Paul Katami relate their eminently respectable jobs, their realization that they were and always would be gay, their romance and their desire to marry. The lesbian plaintiffs, Kristin Perry, a child protection specialist with the state, and her partner, Sandra Stier, do the same.
Jeffrey describes Paul as "the love of my life" (p 79, line 20-21) and Kristin Perry described attending a high school football game: "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." (p. 155, line 25 through p. 156, line 3). Paul Katami, voice cracking audibly, revealed why he struggles, constantly trying to "validate" himself: "I'm a proud man. I'm proud to be gay." The impact of Katami's statement on a courtroom packed with lawyers and media, many straight and familiar with the concept of pride, was palpable.
All the plaintiffs testified that they were offended and hurt by the campaign for Proposition 8, particularly the implication that they were a threat to children. In the only cross of the day, defendants' lawyer presses Paul Katami to admit that parents should be left alone to teach children what to think about homosexuality in general and same-sex marriage in particular.
The day ends with the plaintiffs' first expert, Nancy Cott, an histor who had left the highest status job at Yale to go to Harvard. Cott, and expert in the history of American marriage, testifies about how marriage was always a vehicle for the government to ensure that two adults are committed to caring for one another, but that within that frame, marriage changed enormously over the centuries.
~Dr. Linda Hirshman, Author and retired Professor of Political Philosophy
± Click here to read more about Linda Hirshman.
Dr. Hirshman specializes in social movements. She has written extensively about the feminist movement, including two controversial books, Hard Bargains: The Politics of Sex (Oxford 1994) and Get to Work: A Manifesto for Women of the World (Viking/Penguin 2006), as well as commentary in The New York Times and The Washington Post. She is at work now on a book about the gay revolution, Victory! to be published by Harper/Collins in 2011. She earned a J.D. from the University of Chicago Law School and a Ph.D. in Philosophy from University of Illinois at Chicago. She covers marriage equality at Salon.com and The Daily Beast.
In its January 13, 2010 ruling, the U.S. Supreme Court blocked the public broadcast of Perry v. Schwarzenegger, a U.S. District Court case challenging the constitutional validity of California's Proposition 8.
Working from court transcripts and first-hand accounts from bloggers who are present at the trial, we are re-enacting the trial and posting it here for public viewing.
If you support what we are doing, please consider contributing, to help us cover costs. All of the actors, producers and others behind the scenes are volunteering our time and our resources are limited. Your gift will help us to complete our work. Thanks!
Episodes & Chapters
Click [±] to toggle an episode's chapters.
- Day 1: January 11, 2010
- Day 2: January 12, 2010±
- Day 3: January 13, 2010±
- Day 4: January 14, 2010±
- Day 5: January 15, 2010±
- Day 6: January 19, 2010±
- Day 7: January 20, 2010±
- Day 8: January 21, 2010±
- Day 9: January 22, 2010±
- Day 10: January 25, 2010±
- Day 11: January 26, 2010±
- Day 12: January 27, 2010±
- Day 13: June 16, 2010±
Official Sponsor of
The Courage Campaign's project provides a way for the American people to bear witness and to participate in the most transformative trial in modern U.S. history. www.EqualityOnTrial.org
Cast of Characters
Vaughn Walker (left), Chief Judge, U.S. District Court is portrayed by Ted Heyck (right)
± Click here for more media coverage.