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Ted Olson’s Best Quotes From Prop 8’s Closing Arguments

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Like so many of us, I spent much of the latter part of this week focused on the closing arguments of Perry v. Schwarzenegger, the federal trial that will determine the constitutionality of Prop 8. I read the questions asked by, then the answers submitted to, Judge Walker. Then, Wednesday, the actual final day of the trial, I followed intently every word from both sides, and had this overwhelming desire to tweet so many of the statements, but it was hard enough to stay on top of the almost real-time transcript provided courtesy of The American Foundation for Equal Rights (AFER,) who also provided the official transcript which I have gone through several times now, and pulled what I think are some of the best parts of the closing arguments for you to savor. I’ve added my personal thoughts after a few, in italics.

As you know, Ted Olson is the lead counsel for the plaintiffs, the pro-marriage equality side. Everyone, including Maggie Gallagher, the founder of the National Organization for Marriage, feels Olson’s work, along with David Boies, his co-counsel, was so expert we have a strong chance of winning. In fact, Maggie, already shilling for your money, said, “I expect Judge Walker will overrule Prop 8.”

With that, I give you some of Ted Olson’s best statements during Wednesday’s closing arguments. If you want to know what the other side said, read my piece at Change.org: “Gay People Cannot Be Allowed To Marry Because Straight People Cannot Be Trusted?

And we’re off!

Olson speaking to the judge:

For example, you asked, “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?”
Lead counsel responded: “Your Honor, because it will change the institution. If the institution is deinstitutionalized,” he said, “Mr. Blankenhorn will testify that will likely lead to very real social harms, such as lower marriage rates and high rates of divorce and nonmarital cohabitation, with more children raised outside the marriage and separated from at least one of their parents.”

Then, this important tidbit, which proves animus –“hostility or ill feeling,” which, if proved was the reason for the voters’ prop 8 decision, would require the judge to overturn Prop 8.

“It is revealing, it seems to me, that the deinstitutionalization message is quite different from the thrust of the proponents’ Yes on 8 election campaign. That, in the words they put into the hands of all California voters, focused heavily on: Protect our children from somehow learning that gay marriage is okay. Protect our children from learning that gay marriage is okay.
Those are the words that the proponents put in the ballot — in the voter information guide that was given to every voter.”

Certainly, many of us saw those ads on TV: Save our children! Horrors!

“The Supreme Court has said that: Marriage is the most important relation in life. Now that’s being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons.”

Regardless of the outcome of this case, or even when — because it is when, not if — it goes to the Supreme Court, we must always remember what the Supreme Court has said about marriage. And every time someone from Maggie Gallagher’s NOM says that “gay marriage” is not a civil right, we can retort, “Neither is ‘straight marriage.’ But ‘marriage’ is.”

“[Marriage] is a right belonging to Californians, to persons. It is not a right belonging to the State of California.”

“No one aspires as a child to grow up and enter into a domestic partnership. But they do aspire as children to grow up and be married.”

“Proposition 8 discriminates on the basis of sex in the same way that the Virginia law struck down in Loving discriminated on the basis of race. They could marry whoever they want, unless that person was the wrong race.”

“So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us.
What one single bit of evidence that they are a threat to the channeling function? If you accept that California has the right to do that in the first place. And I do not.
This is an individual constitutional right. And every Supreme Court decision says that it’s a right of persons. Not the right of California to channel those of us who live in California into certain activities or in a certain way.”

“[W]e had expert witnesses that talked about the history of marriage going far back. Not 30 years, but far back into history what marriage has always been. The Supreme Court said older than the Bill of Rights, older than our political parties. That’s not something new. It’s marriage. It’s not single-sex marriage or interracial marriage or anything like that.
Mr. Cooper says you have to accept the fact that — “First of all, you have to accept my definition. It has to be between a man and a woman. Then, if you have a marriage between a man and a man or a woman and a woman, it will change the marriage.”
Well, of course it will, because you started by defining the term that you wanted to define.”

“What we’re talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about.
And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn’t.”

Indeed. It does not.

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News

Trump’s Scheme for Absolute Immunity From State Prosecutions Forever: Report

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Having successfully obtained delays in his federal trials and his state trial in Georgia, possibly until after the November election, Donald Trump is now seeking an “insurance policy” to protect him from any future state prosecutions if he again becomes president.

The indicted ex-president who turns 78 next month “seems convinced that if he wins another four years in the White House, state prosecutors will still be waiting for him on the other side of his term — ready to put him on trial, or even in prison, just as they are now,” Rolling Stone reports.

“To avoid such risks, the former and perhaps future president of the United States wants Congress to create a very specific insurance policy that would help keep him out of prison forever, two sources familiar with the matter tell Rolling Stone. Trump vaguely alluded to this idea last week outside his New York criminal hush money trial, when he said he has urged Republican lawmakers to pass ‘laws to stop things like this.'”

Trump “has pressured” Republican lawmakers on Capitol Hill to do so, describing it as imperative that he signs such a bill into law, if he again ascends to the Oval Office.”

READ MORE: Pence Defense of Alito’s Insurrectionist Flag Highlights Its Ties to Violent Government Overthrow

Rolling Stone also notes, “Trump appears fixated on the idea of passing a law to give former American presidents the option of moving state or local prosecutions into a federal court instead, the two sources add.”

Trump “has hinted at a legislative push to limit his exposure to such criminal charges. In an improvised press conference outside the Manhattan courthouse on Tuesday, Trump said he’s been telling the Republican lawmakers who want to attend his trial and show solidarity to focus on legislation instead.”

“We have a lot of ’em. They want to come. I say, ‘Just stay back and pass lots of laws to stop things like this.’”

In 1973, while still President but under the cloud of the Watergate scandal, Richard Nixon said, “People have got to know whether or not their President is a crook.”

If Trump is elected in November, he can have his Attorney General drop any federal prosecutions he is currently facing. That may call into question, for some legal experts, the actions of the far-right justices on the U.S. Supreme Court who have delayed ruling on his immunity claim, and U.S. District Judge Aileen Cannon.

On May 7, Judge Cannon indefinitely suspended the Espionage Act case, also known as the classified documents case, against Donald Trump.

READ MORE: ‘You Just Don’t Do It’: Federal Judge Denounces Alito’s Flags as ‘Stop the Steal’ Stickers

Foreign policy, national security, and political affairs analyst and commentator David Rothkopf this week blasted the judge:

“Judge Cannon is not, as commentators and cartoonists would have it, just working on behalf of Trump. She is actively working on behalf of the enemies of the US who have and would benefit from the national security breaches she is effectively defending and making more likely.”

U.S. Rep. Adam Schiff (D-CA) earlier this month declared, “The courts are deliberately delaying justice — and effectively denying it.”

This coming week Americans may get a verdict in the New York criminal case against the ex-president. If it comes, it may be “guilty” or “not guilty,” but it could also be a hung jury, forcing another trial which also would not likely come before the election.

If Trump is elected in November, and can get his “insurance policy” legislation passed, he could possibly avoid all criminal trials for the rest of his life.

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OPINION

Pence Defense of Alito’s Insurrectionist Flag Highlights Its Ties to Violent Government Overthrow

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Mike Pence is defending far-right U.S. Supreme Court Justice Samuel Alito, whose ethics and ability to serve on the nation’s highest court are being questioned after The New York Times revealed he had been flying a highly-controversial flag used by the January 6 insurrectionists, neo-Nazis, and a far-right neo-fascist hate group. Democrats are demanding the justice recuse himself from all cases involving Donald Trump and the 2020 presidential election, and some are also demanding his resignation or impeachment.

The former Trump Vice President, in defending Alito, may have made the situation even worse for the 74-year old jurist by highlighting the flag’s ties to revolution and the overthrow of government. In his defense Pence also encourages all Americans to fly the flag: “The ‘Appeal to Heaven’ flag is part or our proud heritage of Faith and Freedom and every American should be proud to fly it,” he writes.

“The Appeal to Heaven Flag” dates back centuries, to the American Revolution, but in recent years was very clearly co-opted by the radical religious right and was seen being carried by the insurrectionists during the assault on the U.S. Capitol, some of whom who chanted, “hang Mike Pence,” as he and his family were being whisked away by Secret Service on January 6:

MSNBC columnist Sarah Posner, who for years has been writing about religion and politics, on Thursday noted, “the more one knows about the background of the flag, the more chilling its presence at [Alito’s] house becomes.”

READ MORE: ‘You Just Don’t Do It’: Federal Judge Denounces Alito’s Flags as ‘Stop the Steal’ Stickers

Posner says the flag is “an unmistakable emblem for an influential segment of Christian nationalists who claim the 2020 election was stolen from Donald Trump, contrary to God’s will, and that believers’ spiritual warfare is essential to restoring God’s anointed leader to his rightful office.”

“It was one of numerous Christian nationalist flags and other iconography carried by Trump supporters Jan. 6 and at the Jericho March, a series of prayer rallies that were like jet fuel for the insurrection,” Posner explains. “The Jericho March featured right-wing evangelical and Catholic speakers alongside militants such as conspiracist Alex Jones, Trump’s disgraced national security adviser Michael Flynn, and Oathkeepers founder Stewart Rhodes, now serving an 18-year prison sentence for seditious conspiracy and other crimes.”

Posner adds the flag “originated in Revolutionary times as a call to take up arms against unjust rulers who ignored the pleas of their citizens.”

Pence also refers to the Revolutionary War in his defense of Justice Alito, ignoring that the Revolutionary War was won several hundred years ago, and ignoring that a sitting U.S. Supreme Court justice promoting the very concept of taking up arms against rulers, unjust or otherwise, is, as constitutional scholar and University Professor Emeritus at Harvard University, Laurence Tribe wrote, “close to treason.”

Pence calls the “controversy” of Justice Alito’s flag-flying “absurd and anti-historical.” He quotes English Enlightenment philosopher John Locke, promoting his idea of the right to revolution, to replace a government.

In its Bombshell report Wednesday announcing the existence of a second Alito flag tied to the insurrectionists, The New York Times explains the Locke tie to the “Appeal to Heaven” flag.

READ MORE: Trump Adviser Scanned and Saved Contents of Box That Had Classified Docs: Report

“Since its creation during the American Revolution, the flag has carried a message of defiance: The phrase ‘appeal to heaven’ comes from the 17th-century philosopher John Locke, who wrote of a responsibility to rebel, even use violence, to overthrow unjust rule. ‘It’s a paraphrase for trial by arms,’ Anthony Grafton, a historian at Princeton University, said in an interview. ‘The main point is that there’s no appeal, there’s no one else you can ask for help or a judgment.'”

Coincidentally or not, Grafton’s “trial by arms” seems to echo Trump acolyte Rudy Giuliani’s January 6 speech in which he specifically called for “trial by combat.”

Religious studies scholar Matthew Taylor, quoted in The New York Times’ report on Alito’s “Appeal to Heaven” flag, told CBS News (video below) Christian nationalist leader Dutch Sheets “was given one of these flags and he believed that he received a prophecy when he received this flag, that it was a symbol of a revolution that would take place in America, a spiritual revolution that would reconstitute the United States as a truly Christian nation.”

He adds the “Appeal to Heaven” flag has become a “very potent symbol of Christian nationalism, Christian Trumpism, opposition to abortion, opposition to gay marriage, and the desire for a more Christian America.”

Watch the videos above or at this link.

READ MORE: Trump’s Bronx Rally Attendance Claim Fuels Mockery as Aerial Images Show a Different Story

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OPINION

‘You Just Don’t Do It’: Federal Judge Denounces Alito’s Flags as ‘Stop the Steal’ Stickers

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A senior U.S. district judge is denouncing U.S. Supreme Court Justice Samuel Alito‘s flying of two insurrection-related flags at his homes in Virginia and New Jersey, declaring the actions “improper. And dumb.”

Judge Michael Ponsor, 77, who has served on the federal bench since 1984, writes in a Friday New York Times op-ed that he has “known scores, possibly hundreds, of federal trial and appellate judges pretty well,” and “can’t think of a single one, no matter who appointed her or him, who has engaged or would engage in conduct like that.”

“You just don’t do that sort of thing, whether it may be considered over the line, or just edging up to the margin. Flying those flags was tantamount to sticking a ‘Stop the steal’ bumper sticker on your car. You just don’t do it.”

Justice Alito’s first flag scandal came late last week, when The New York Times reported an upside down U.S. flag had flown at his Virginia home jut days before Joe Biden was sworn in as President. That flag is associated with the insurrectionists who stormed the Capitol on January 6, 2021. As of January, more than 1200 who were there that day have been arrested and charged with crimes.

Alito blamed his wife, claiming she made the decision to fly the flag upside down, which according to the U.S. flag code should only be done to signal distress. Martha-Ann Alito, her husband claimed, had gotten into an argument with a neighbor and manifested her anger by flying the “Stop the Steal” flag.

READ MORE: ‘Investigate Now’: As Alito Scandal Grows Pressure Mounts on ‘MIA’ and ‘AWOL’ Judiciary Chair

The second flag scandal came on Wednesday, when The Times again revealed an Alito insurrection-related flag, this time at his New Jersey home, where the Alitos were flying the “Appeal to Heaven” flag which has ties both to the insurrectionists, and to extreme right Christian nationalists.

Justice Alito has not made any public comment defending his second flag.

Judge Ponsor offered up a hypothetical to counter Justice Alito’s claim his wife was to blame, in this case, an example of him presiding over a death penalty case.

“Let’s say my wife was strongly opposed to the death penalty and wished to speak out publicly against it. I’m not saying this is true, but let’s imagine it. The primary emotional current in our marriage is, of course, deep and passionate love, but right next to that is equally deep and passionate respect. We would have had a problem, and we would have needed to talk,” Ponsor explained.

“In this hypothetical situation, I hope that my wife would have held off making any public statements about capital punishment, and restrained herself from talking about the issue with me, while the trial unfolded. On the other hand, if my wife had felt strongly that she needed to espouse her viewpoint publicly, I would have had to recuse myself from presiding over the case, based on the appearance of partiality.”

READ MORE: ‘Going for the Jugular’: Legal Scholar Warns ‘Trumpers’ Want to End Major Civil Right

Note he mentions as a sitting federal judge he would have applied the same standards that jurors are expected to observe: to not discuss the case with anyone, including their spouses.

And should there have been a discussion, or if she were to air her views publicly, he would be forced to recuse himself from the case.

Justice Alito has not recused from any 2020 presidential election cases, any Trump-related cases, any insurrection-related cases.

That includes the Trump “absolute immunity” case the Supreme Court heard in April, for which they have yet to rule.

The Supreme Court “recently adopted an ethics code to ‘guide the conduct’ of the justices,” Ponsor observes. “One of its canons states that a justice should ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ That’s all very well. But basic ethical behavior should not rely on laws or regulations. It should be folded into a judge’s DNA. That didn’t happen here.”

READ MORE: Trump Adviser Scanned and Saved Contents of Box That Had Classified Docs: Report

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