Prop 8 Trial Updates

http://prop8trialtracker.com/2010/04/28/finally-closing-arguments-set-for-june-16th/

FINALLY: Closing Arguments Set for June 16th
April 28, 2010
By Paul Hogarth
So now we finally have a date for Closing Arguments for the Prop 8 trial — Wednesday, June 16th, or 156 days after the start of the Trial. By now, we’ve heard the evidence, we know what’s been said, and there’s been a lot of analysis on this site about what it means for the outcome, our movement, and our lives.
But besides setting a date for closing arguments, Judge Walker set a date for the defense counsel to submit their motion to suppress at least part of Dr. Tam’s testimony. As you recall, Dr. Tam was the right-wing San Francisco minister who believed that his kids will turn gay if marriage equality was allowed to remain. We’ll find out on May 7th how much of the testimony they want stricken from the record, and what is their basis. Our side will have until May 10th to then file an objection.
So what happens if Dr. Tam’s testimony is taken out? Dr. Tam was powerful evidence that Prop 8 was driven by animus and a hatred of homosexuals, which would be enough to strike Prop 8 — even under the more lenient “rational basis” grounds set up in Romer v. Evans (1996.) But while Dr. Tam’s testimony is damning and it should be kept in, there was a whole lot of other evidence that our side presented. In fact, when it came time for the defense to produce their “experts,” there wasn’t a whole lot of reason they could provide.
If it’s impossible to dream up a “rational” basis for deny LGBT people the right to marry the person they love, and all the reasons the defense provides is merely a subterfuge for bigotry, Prop 8 must be found unconstitutional. Dr. Tam’s testimony was the most dramatic and forceful, but our side put on a good case tying other “rationales” for Prop 8 to be simply animus. In fact, I would argue the strongest witness we had for our side was San Diego Mayor Jerry Sanders — who explained how he came to the realization that his so-called “friendly” reasons for opposing gay marriage had merely been based out of irrational discomfort.

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Updated On: 6/16/10 at 01:49 PM

http://prop8trialtracker.com/2010/06/08/equality-on-trial-judge-walker-issues-series-of-questions-prior-to-prop-8-trial-closing-arguments/

Equality on Trial: Judge Walker issues series of questions prior to Prop 8 trial closing arguments

June 8, 2010
By Rick Jacobs

It’s election day in California and several other states. With the exception of one statewide race, (AG) Democrats and progressives won’t be compelled to the polls. Republicans will because of the battle of the billionaires (okay, one billionaire two multi-millionaires). We can only hope that enough of us vote(d) to beat back two odious ballot measures put on by two big corporations.

But there was already big news today in California about “the trial of the century.” Judge Vaughn Walker today issued a series of questions (see document below) for the parties to the federal Prop. 8 trial that began in January and was put on by Ted Olson and David Boies and colleagues and defended by the oxymoronic “Protect Marriage” proponents of Prop. 8.

The questions are stunning in their breadth, complexity and essence. Here are just a few:

What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?

What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?

If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?

The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?

Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc #605 at 11 (“But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination.”). What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?

What does it mean to have a “choice” in one’s sexual orientation? See e g Tr 2032:17-22; PX 928 at 37

I am not a lawyer, but I can without doubt say that never before has homosexuality been on trial in America in this way. The testimony in January, which I liveblogged, was breathtaking and so sweeping, that the defense (the folks who put Prop. 8 on the ballot) were left with only one argument: marriage has always been between a man and a woman so it should always be between a man and a woman. And Professor Cott and other experts even destroyed that argument. Even so, it’s a bit like saying that some people were always forced to live in a certain place so they should always be forced to live there.

We launched Testimony: Equality on Trial because this court case has already changed history. As we can see from the Judge’s questions – read them and pick your own favorites–the entire scope of the debate has been encapsulated in this trial. But the defense has worked at every juncture to stop you from seeing what happened and will happen in the courtroom. We seek to make this your trial. And soon, we’ll seek to hear your testimony.
For now, as voting for initiatives and candidates across the state and country winds to a close, we can see unfolding the true story of human rights in America.

Watch the court. Whatever the ruling, this trial is history.

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Updated On: 6/9/10 at 02:06 PM

The questions are stunning in their breadth, complexity and essence.

Nicely put, that. We should all read through those questions and think about them. They are the essential philosophical questions about our existence as gay men and women.

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Your lack of optimism is meaningless.

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Those questions don't do anything for my optimism...in fact, they took it down a few notches. Does it seem like he may be leaning towards the side of the defense to anyone else?


...maybe it's just me.

This guy goes a bit more in-depth.

http://prop8trialtracker.com/2010/06/09/judge-walkers-questions-for-closing-statements/

Judge Walker’s Questions for Closing Statements
June 9, 2010
By Paul Hogarth

Today, Judge Vaughn Walker delivered a series of 29 questions (12 to plaintiffs, 12 to Prop 8 supporters, and 15 to both) that will guide the Closing Statements. You can read them all here. “What follows is by no means an exhaustive list of questions,” he writes, “but is intended simply to assist the parties in focusing their closing arguments.”

But what some of them reveal is where the Judge is going with this case, and what we can expect the verdict to be. I’ve culled the ones that I think are more legally significant:

Plaintiff Question #1: Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Prop 8 was rationally related to a legitimate interest. Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Prop 8? See Hernandez v. Robles 855 NE2d 1, 7-8 (2006) (“In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and a father in the home.”)

This, really, is the crux of the plaintiff’s case – and whether we can prevail on a “rational basis” test. To say that Prop 8 authors were motivated by hatred is easy – that’s been proven already.

But how can you say the millions of voters who went “yes” on Prop 8 are bigots? It would be impossible to prove that they are. The way we prevail is to show that those people – while honestly believing they were doing the “rational” thing – were merely acting irrationally. It goes back to San Diego Mayor Jerry Sanders testimony, when he said that it took a long time for him to realize his “rational” views against gay marriage and for civil unions were merely opinions rooted in prejudice.
Unless the Supreme Court is willing to take a leap to recognize sexual orientation as a suspect class (and we should not presume it would go that far), that’s the only way we are going to repeal Prop 8 in this case.

The fact Walker asked this question is encouraging. As for the citation to the Hernandez case, that was the New York high court case that said it was “rational” to give straights but not gays the right to marry because straights might “accidentally” have kids.

Plaintiff Questions #3 and #4: Until very recently, same-sex relationships did not enjoy legal protection anywhere in the United States. How does this square with plaintiffs’ claim that [same-sex] marriage is a fundamental right? What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition.

In other words, can “tradition” be a “rational basis” for denying someone this right? It reminds me of the old saying that the word tradition means something we’ve been doing for centuries, and have forgotten why. (Images of the “Fiddler on the Roof” musical are now seeping through my head.) This question is practically inviting our side to make the connection with interracial marriage, racial segregation, etc. After all, blacks in the South were never treated equally. Will it work? Probably with this Judge, but keep in mind that courts generally give great deference to tradition — so it’s a tough hill to climb.

Plaintiff #6: What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?
I cringed when I first read this – “empirical” seems like quite a limitation, but I think our side can really seize on this question to highlight the social importance of marriage equality. And how the forces behind Prop 8 are the same ones who are against the “anti-bullying” legislative fights we’ve gone through in public schools.

Plaintiff #10: Even if enforcement of Prop 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Prop 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?

This, my friends, is the inevitable DOMA question – and why folks like me had qualms about us taking Prop 8 to federal court without mentioning DOMA, and whether we were even putting the cart in front of the horse. After all, even if we get the right to marry in California – that’s only half the battle. We still don’t have any federal rights – Social Security benefits, joint tax returns, immigration rights, etc. Frankly, I have a hard time seeing how a federal challenge to Prop 8 does not implicate DOMA as well.

While we’re having this legal fight here on the West Coast, on the East Coast the civil rights group GLAD has filed a lawsuit in federal court to challenge DOMA. It’s on behalf of several gay Massachusetts couples, who nobody denies are legally married. The question there is whether DOMA denies them the equal rights under law. The federal government’s response in that case is to effectively say, “you have the right to get married – but there’s no constitutional right to the legal benefits of marriage.” How our Prop 8 lawsuit and the DOMA challenge in Boston play on each other is going to be fascinating and (let’s hope) complementary.

Defendant #2: Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?
Essentially, Walker is telling the Prop 8 side to put up or shut up. There’s been a lot of discussion on this blog about how shallow the opposition’s case has been in favor of Prop 8, and how their one expert witness – Blankenhorn – proved to be quite underwhelming. Our challenge will be to link all of their “consequences” to mere bigotry – which will be easy for most of them.

Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?

This, my friends, is a dynamite question – and can really help destruct the opposition’s case. A “rational basis” is a justification that is “rationally related” to a “legitimate government interest.” The right-wingers always talk about “family” and the need to “protect our children.” But Prop 8 really only did one thing – make it impossible for gay couples to get married. It did not – and could not – help a single child who otherwise would not have been get raised by their biological parents. If the opposition can’t make this link effectively, the Court can’t possibly find a rational reason for denying loving gay couples the right to marry.

Both Sides #6: In order to be rooted in “our Nation’s history, legal traditions and practices,” see Washington v. Glucksberg, 521 US 702, 710 (1997), is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?

Very encouraging question for our side. ”Tradition” may be a rational basis for certain laws, but not tradition per se - The fact that gay couples have not had the right to marry historically is a fact worth considering, but Judge Walker is effectively asking our opponents to “put up or shut up.” Provide proof – beyond circular logic that “it’s always been that way” – that we should proceed with the traditional definition of marriage. Courts are inherently conservative, and reluctant to overturn traditions – but Walker is injecting an important distinction: traditions that are still justifiable and reasonable, versus those that have no real purpose left.

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...maybe it's just me.

It's not, but we've already been told that lack of optimism is meaningless; it's not just you, but we're all wrong nonetheless.

I was very skeptical before the actual vote. I know the meme was "As goes California, so goes the nation" (note - this has nothing to do with any specific poster. Many people were repeating the line) but I just had a bad feeling about the whole thing, which turned out to be founded.

For the sake of my married California gay friends, I hope it's overturned. For the sake of my California gay friends who WANT to get married, I hope the ruling is overturned. For the sake of the country, I hope it's overturned, but I just don't see a lot to get excited about. I think it's still anybody's guess as to what will happen, but with the climate of this country the way it is, I'm just not all that optimistic myself.

I think your feelings are very valid/merited, PRS. Despite so many advancements, we endure setbacks and heartache. Granted, that IS part of any civil rights struggle.

I think my optimism comes from the key difference here:

Political battle/vote: can lie all you want in your ad campaigns, use fear tactics, ignorant people respond and vote

vs.

Court: only the facts are allowed and the judge is at least an educated person, granted, they could be a Scalia.

And that's what I have seen with this trial--the anti-gay side flooded the airwaves and internet with lies and fear and BS. When standing in a courtroom? They had nothing. It was pitiful. Their star witnesses helped our side.

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Oh, I'm totally with you, Jerby. And it SHOULD be (or at least seem like) a no-brainer. But people get funny about the gay stuff, and logic often gets thrown out the window. After that, the waters start getting muddied, we start hearing about how "god is in the mix" (just as one example), even out gay people (like Bill Condon, to give just one example) start justifying the hate of others on their religious grounds.

I want to believe the court will do the right thing, the moral thing. I so want to believe that. I just look at the bigger picture and can't help but think it's gonna be the same old BS.

But here's hoping. Sincerely.

Updated On: 6/10/10 at 01:27 PM

Excellent New York Times editorial.

http://www.nytimes.com/2010/06/11/opinion/11fri1.html

And, yes, Reginald, pessimism/optimism are equally meaningless. The case is in the courts. The courts will decide. Their decisions and appeals will take "the law's delay," in Shakespeare's words, and we can either live with knots in our stomachs or live loving each other. I choose to live in love and hope.

But to despair during this process is to miss out on a rich opportunity for intellectual engagement and genuine emotional validation. Never before in history have the highest courts of any land pondered the rights of people to love and form unions with others of the same sex. How can that not be marveled at?

What would Oscar say? What would Walt? What would Gertrude? Whatever they would say, they would not waste time despairing.

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He would certainly appreciate that 115 years ago a man was on trial for loving another man while today a state is on trial for denying two men the right to love.

But WWGS? What would Gertrude say?

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Ha! You're more clever than I am. You made something up.

I looked to see if she ever said anything about marriage, and she did of course she did why wouldn't she have done what she said this is what she said:

What is marriage, is marriage protection or religion, is marriage renunciation or abundance, is marriage a stepping-stone or an end. What is marriage. --Gertrude Stein

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I didn't make it up, PJ. She said it constantly. It's why Alice ate hash fudge.

But seriously, don't you think blind optimism makes intellectual engagement impossible just as much as what you call despair does?

All I'm saying is that in the arena of gay rights, I've never seen a slam dunk. If that puts me in your category of despairers, then I guess it just does. I'll be more than happy to have my doubt prove to be unfounded.

Updated On: 6/11/10 at 09:43 AM