Gloria Nieto

A sports fan at the Prop 8 trial

Filed By Gloria Nieto | June 18, 2010 3:00 PM | comments

Filed in: Entertainment, Marriage Equality, Politics
Tags: Prop 8 trial

I went to the opening day and closing day of the Prop 8 trial. While not a legal type, I still have a huge investment in the outcome of this if nothing else besides being a lesbian living in California. I was married in August of 2008 in our backyard. I worked on a huge part of the Prop 8 campaign in Silicon Valley. I am fully vested in the outcome.

Since early childhood, I have been a sports fan. Like many good dykes, my summers were spent playing softball. I have had a long love affair with the SF Giants and now I live for hockey, both playing it and watching it. I believe I have a trained eye for watching competitions and this court case was a competition.

I am offering my experienced sports eye for observations of the court as I witnessed it.

First, we had the first string in the game throughout. I don't know where anyone would get the idea that Charles Cooper is big league material. He reminded me of the kid in school who got called on and hadn't studied. In fact, the lawyers were given a take home test and Cooper failed miserably. In front of God and everyone, he failed. He should be demoted to the minors.

I did get excited though thinking about him arguing this case in the Supreme Court. I would go to DC to see the looks on the Justices' faces when he talked about "channeling" heterosexuals into marriage so there were no babies born outside wedlock. After all the survival of the species is at stake according to these weasels.

Mr Cooper has never available for the press during these post trial press conferences. On the first day after screwing up royally, the devil known as Andrew Pugno (who, by the way, just won the Republican primary for an Assembly seat outside of Sacramento) takes over as the talking head for these people. Cooper didn't even appear at the first presser and yesterday he made a ridiculous comment and then ran away. A guy from the Alliance Defense Fund took over to give his topsy-turvy version of what happened in court.

Again with the sports analogies, they have no competent first string and their bench is weak. It is the old Republican theory that if you keep repeating the same lies it will all eventually be true. Cooper kept repeating the same story in court about saving the species and that marriage is about procreation. Judge Walker kept asking him to prove it in spite of the obvious evidence that adoptive parents can provide loving care to their children while not actually being the biological parents.

Oh and hey about those people who don't want kids? Apparently those people don't exist at because, again, there was no answer to the judge's questions. In fact, Copper kept giving what I thought were double spaced answers to the quiz while never answering the question. Juuuusst missed outside!

On the other hand, we had Hall of Fame lawyers. They never missed a pitch, had practiced a lot. Ted Olson said at the closing presser that he had practiced his answers. What a concept, practicing for a court room appearance!

What really made this all an Atticus Finch trial was Ted Olson's closing argument. So many of us sitting in the same square of the overflow room were exchanging questions, observations we all were open-mouthed during the closing. (Except for the queen in back of us who insisted on shushing us. Please miss thang, go sit somewhere else, it ain't your court room.)

Check out the closing comments. Do yourself a favor and read it. It made me verklempt to hear this.

So as we round third, heading for home, I think we will score on this round. The lack of evidence from the other side, the wealth of testimony from our side, the difference in the quality of all of it makes for a good outcome. But who knows, I am only a sports fan not a lawyer.

All I know is that some day we will win this.

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I'm not so much convinced it was due to lack of skill on Cooper's part (though it very well could be) as much as it was due to him having absolutely no case. So far the right hasn't had to justify homophobia, 'teh gheys are icky' has been enough. But, when a judge asks real questions, their entire argument collapses because it has no substance. Their entire position has no substance. Without that substance, even the most skilled orator can't make a convincing case, especially when pitted against intelligent people.

I think it was a combination. His blank looks, his continued inability to answer the questions, stalling tactics did show a lack of knowledge, evidence but also skill. Having seen what our lawyers did but even just practicing for the trial, it was obvious they thought this was a slam dunk.

Well, we can probably be assured that our great best hit will not be foul or be caught. But we cannot win the Series until DOMA is reversed.

So this is at best a lead off double.. with you guys and a few states, already on 3rd, but with one out (Prop 8).

Judge Walker, may give us this game.But then we have to go to second (Ninth Circuit) and final (SCOTUS) to win the series.

I'm glad to hear they did well. Too bad that, ultimately, this won't come down to logic, but the desired result of folks like Scalia.

so you probably don't need me to tell you this, but the entire "game" pivots on the question of what's a "fundamental" right.

as you've heard me say before, the trouble with loving is that it basically says procreation is the fundamental right, and since that can only occur within marriage (oh, 1964, you were so cute...), then marriage must be a fundamental right.

here's why this matters: if the court does not rule that we have a fundamental right here, then if the state can articulate virtually any purpose for prop. 8, it stands.

on the other hand, you can't intrude on a "fundamental" right until you've passed a threshold called "strict scrutiny", and that's really where the game is being played.

could the roberts court find some new doctrine that protects childbearing couples but not others?

i'm not sure, but don't be surprised if they do.

I loved your "sports" version of the trial, Gloria. I teach appellate advocacy, and I've practiced law, and a sports analogy is perfect. In fact, there are many "moot court" competitions around the country every year, in which law students compete just like a sports tournament. Someone with talent, drive and preparation can take the dregs of a nothing case and make it sound like the Battle Hymn of the Republic. The court, the bailiff and the assembled throng stand at attention and salute. It's beautiful to see, but very rare. I'm not sure that Cooper was any less competent than most lawyers, but he was up against Michael Jordan and Tiger Woods.

Dave in Northridge | June 20, 2010 9:13 AM

Folks, go back and read the closing argument, and you'll see that Olsen isn't basing his argument on Loving, he's basing it on Romer. Good commentary on Romer at, and if you want more in-depth analysis, find it at