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Determining Scrutiny: All Those Crazy Legal Tests

Trial analysis Uncategorized

by Brian Leubitz

I mentioned very briefly the subject of “scrutiny” on Friday, but now I’m going to do a bit of explaining on the subject.  So, I’ll crawl back into my law school self, and try to conjure up all my old memories of constitutional law class. I’m hoping that my professor won’t get mad at me when I mess one of these these up.

Anyway, when dealing with both equal protection and due process claims, both of which the plaintiffs are bringing in this case, there are three general levels of scrutiny that are determined by two factors. The tests vary slightly between due process and equal protection, but I’m going to conflate them somewhat for simplicity.

There are three levels of scrutiny:

STRICT SCRUTINY – The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.
INTERMEDIATE SCRUTINY – The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.
RATIONAL BASIS SCRUTINY – The government need only show that the challenged classification is rationally related to serving a legitimate state interest.

Now, the two factors to consider in determining the level of scrutiny are whether the class is a suspect or quasi-suspect class and whether the rights being abridged are fundamental. You can find a full list of rights that are now considered fundamental on Wikipedia, but the notable one for our purposes was Loving v. Virginia‘s announcement that the right to marry a person of one’s own choosing was fundamental. Of course, as of right now, that only applies to marrying a person of the opposite gender.

There are a few classes that have already been classified as suspect classes. Race always gets the highest level of scrutiny, strict scrutiny, and gender typically, but not always, gets intermediate scrutiny.

Under California law as defined by the In Re Marriage Cases decision of 2008, the LGBT community is a suspect class requiring strict scrutiny.  However, gays and lesbians have never been found as a suspect class deserving strict scrutiny under federal law. In fact, Romer v Evans, Justice Kennedy, while not specifically saying that gays were not a suspect class, found that the Colorado law banning anti-discrimination policies for the LGBT community didn’t meet the lowest test. In other words, in Romer, the court found that there was no rational basis for the state of Colorado to ban the gay community from lobbying for anti-discrimination laws.   Justice Kennedy’s Lawrence v. Texas decision to overturn Texas’ sodomy law also does not classify the LGBT community as a suspect class.

Other courts have begun to follow California’s lead in classifying gays and lesbians as a suspect class. In Varnum v. Brien, the Iowa supreme court applied intermediate scrutiny under the Iowa Constitution to allow same-sex marriage in that state.  Despite the fact that the LGBT community under California law, state law decisions are merely persuasive authority on federal courts, they are not binding and can be essentially ignored.

So, that is all by way of background. Now, if the court were to apply the level of scrutiny from Romer v Evans, rational basis, the plaintiffs have a steep hill to climb. The plaintiffs would need to show was that there was no non-discriminatory reason for the law. That being said, given the testimony so far, they have gone a long way towards doing that. I liken it to playing a game of soccer on a tilted pitch, and the Prop 8 team gets to play downhill.

All that being said, the California decision to apply strict scrutiny surprised many legal scholars. And while the federal Supreme Court is less friendly than our version in California, it is possible that there is a fifth vote for increasing the level of scrutiny for the LGBT community. This uphill fights is precisely why it is so important that our trial team play everything to perfection.

So, in order to win we must either prove that Prop 8 didn’t meet the rational basis test, a difficult, but not impossible, task, or we must prove that the LGBT community is a suspect class. Proving either element is challenging to say the least, but Olson, Boies, et al, are making steady progress towards that goal.

We are fighting an uphill battle, but the last two weeks has really made me believe that it’s a battle worth fighting.



  • 1. Alexandra  |  January 23, 2010 at 1:07 am

    Thank you. All of you are very appreciated.

  • 2. tech guy  |  January 23, 2010 at 1:10 am

    I have often quoted Mildred Loving's last official statement before her death in support of marriage for gays and lesbians. I think they bear repeating in light of Brian's current entry, for the benefit of those who may not be familiar.

    Mildred said she considered her marriage and the court decision to be God's work. She supported everyone's right to marry whoever he or she wished, and expressed support for same-sex marriage. In 1965, when the case was pending, she told the Washington Evening Star, "We loved each other and got married. We are not marrying the state. The law should allow a person to marry anyone he wants." On June 12, 2007, Mildred Loving issued a statement on the 40th anniversary of the Loving v. Virginia Supreme Court decision.

    Her statement concludes:

    "My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone, they have a right to marry.

    Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the 'wrong kind of person' for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people's civil rights.

    I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about."



  • 3. truthspew  |  January 23, 2010 at 1:26 am

    From reading the transcripts thus far the plaintiffs are doing a fantastic job of moving the court toward strict scrutiny.

    They have indeed, at least in my view proven that gay people are a suspect class. That has become obvious through testimony of the experts, but more obvious through the cross examination by the defendant counsel.

    Put it this way, how the hell can religion be a suspect class when you can freely choose your religion, but being gay isn't?

  • 4. MrsAdorkable  |  January 23, 2010 at 1:31 am

    Things are looking up.
    Best of luck!

    Oh, and I thought I'd share this. Got it in a forward awhile back, and figured you guys would get as much of a kick out of it as I did.


    01) Being gay is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.

    02) Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.

    03) Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.

    04) Straight marriage has been around a long time and hasn't changed at all; women are still property, blacks still can't marry whites, and divorce is still illegal.

    05) Straight marriage will be less meaningful if gay marriage were allowed; the sanctity of Britany Spears' 55-hour just-for-fun marriage would be destroyed.

    06) Straight marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn't be allowed to marry because our orphanages aren't full yet, and the world needs more children.

    07) Obviously gay parents will raise gay children, since straight parents only raise straight children.

    08) Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That's why we have only one religion in America.

    09) Children can never succeed without a male and a female role model at home. That's why we as a society expressly forbid single parents to raise children.

    10) Gay marriage will change the foundation of society; we could never adapt to new social norms. Just like we haven't adapted to cars, the service-sector economy, or longer life spans.

  • 5. Woody  |  January 23, 2010 at 1:38 am

    Because freedom of religion is enshrined in the Constitution, via the First Amendment.

  • 6. Santa Barbara Mom  |  January 23, 2010 at 1:54 am

    Thank you, Brian, for the legal insight ~ it helps to explain why some things get dealt with the way they do.

    At the end of Week #2 thank you again to everyone working so hard to make us feel like we're in the courtroom! You are doing an awesome job.

    Rick, if you're ever in Santa Barbara, please contact me for some complementary treatment ~ I'm an acupuncturist. You're coverage of Tam's questioning was unbelievable, but I couldn't help thinking of the inflammation that must be going on in your hands and forearms!! Have a restful week-end.


  • 7. Rick  |  January 23, 2010 at 1:57 am

    Thanks so much for posting Mildred Loving's powerful and moving comments. It reminds us again that there are real people behind these great court cases.

  • 8. tech guy  |  January 23, 2010 at 2:15 am

    What compelling state purpose is served by preventing two people of the same gender from marrying? The burden of proof rests with the state. We have states now where any theory of compelling purpose can be scrutinized. If said purpose cannot be shown, all laws restricting marriage for gays and lesbians should be deemed unconstitutional.



  • 9. Pam  |  January 23, 2010 at 2:19 am

    It is amazing to read Andy Pugno's version of the trial on He feels that it is ridiculous to say that LGBT are politically powerless… how how about politically "not powerful enough"? Will that work for you, Andy? I wonder if he realizes that everything he blogs about proves how we are second class citizens? Oh how I wish the comments weren't turned off!

  • 10. Mr. HCI  |  January 23, 2010 at 2:25 am

    The state purpose is God says fags are gross. Don't forget, we live in a theocracy.

  • 11. KId1958  |  January 23, 2010 at 2:27 am

    A Question !My understanding of the appeal process is that the Appealate court (Supreme court) would generally hear cases on the basis of defect in the trial(submitted improper evidence, faulty courtroom proceedure ect) and not based on just unfavorable results . Suppose we win this trial. What would the proProp8's basis for sending this case to the Supreme Court? Or does the Supreme court have the right to hear cases based on any reason?

  • 12. Tasty Salamanders  |  January 23, 2010 at 2:40 am

    The Supreme Court to my knowledge can reject and accept cases as it wishes, based on that alone I can't see a reason why it would need a reason to take the case, of course without a reason it has no reason to take the case either, except believing the case to be important maybe.

    (I think I overused the word "reason")

  • 13. tech guy  |  January 23, 2010 at 2:42 am

    How could we ever forget it? "In God We Trust" "One nation under God" and the rest of that bull malarkey.

  • 14. tech guy  |  January 23, 2010 at 2:49 am

    (I think I overused the word “reason”)

    No prob ….. in light of the most recent Supreme Court of the United States, Inc. ruling, there's no reason to believe the word "reason" is even in their vocabulary. We may as well use it here as often as we can, within reason.

  • 15. Carl E.  |  January 23, 2010 at 2:56 am

    "One nation, under God…", repeated every morning, lest our young minds wander away from that 'fact'.

  • 16. couragecampaign  |  January 23, 2010 at 3:00 am

    Hey Julie — Rick and most of the Courage team will actually be in Santa Barbara on Jan. 30-31 for Camp Courage Central Coast — the seventh in a series of training events for people interested in bringing full equality to California and the country. More than 100 Central Coast residents are expected to attend!

    You can sign up here:

    To learn more about Camp Courage as a program, check out:

  • 17. Wolfinlv  |  January 23, 2010 at 3:14 am

    I have a fun idea. Let's do whatever the next prop would be say 9 just for fun. Since Marriage is so important and since marriage is for child rearing and it's to ensure that child has mom and dad. And since the main purpose of marriage is procreation. This shall be the prop.

    Proposition 9:
    There shall be no divorce in the state of California nor shall California recognize divorces enacted in other states as it is not in the best interests of the institution of marriage.
    There shall be no separation in the state of California nor shall California recognize separations enacted in other states as it is not in the best interests of the institution of marriage.
    Only couples who can procreate and only those couples who do procreate by natural means with out scientific or medical help within the first year are entitled to the institution of marriage. Failing this their marriage is null and void and they have a choice to become domestic partners.
    Those couples who are beyond child bearing age or those couples who choose not to have children or those couples who are sterile may enjoy Domestic Partnerships as marriage is reserved for only the purpose of procreation.
    Once couples raise their children to the age of 21 their marriage is null and void and they have a choice of it being dissolved or continuing as a domestic partnership.
    At no time shall those who have domestic partnerships be allowed back into the institution of marriage unless they can prove that they can procreate.

    Silly I know but wouldn't that serve them right.


  • 18. Michelle Evans  |  January 23, 2010 at 3:15 am

    That sounds reasonable. :-)

  • 19. Michelle Evans  |  January 23, 2010 at 3:19 am

    The idea of banning divorce as a means of "protecting marriage" is already in the works as a state ballot proposition. It started as a joke, but really should be considered with all the garbage out there from the religious right about how we absolutely must protect the institution of marriage. I also like the idea of adding the other conditions to marriage that you have brought up as the only "legal" way to be granted marriage.

  • 20. Tony Douglass in Ca  |  January 23, 2010 at 3:20 am

    There has been a lot of talk from the other side about freedom of religion being "inalienable", what I want to know is, does that also mean freedom FROM religion?

    They stand on their pulpit crowing about their Constitutional right to believe in the religion of their choosing, however, they also seem to think that also gives them the right to force their religion on anyone and everyone.

    Is there no Constitutional right protecting the rest of us from THEM?

    Peace and Love.

  • 21. Wolfinlv  |  January 23, 2010 at 3:24 am

    have thought about that for a long time.

  • 22. Ann S.  |  January 23, 2010 at 3:35 am

    Mildred's story is so moving and her words so wise. Thank you for reminding us.


  • 23. Alkanshel  |  January 23, 2010 at 3:36 am

    Personally, I prefer 'Real Americans always reject unnatural things. That's why we eat our food raw.'

  • 24. Ann S.  |  January 23, 2010 at 3:41 am

    The case, assuming it's appealed (which is very likely) will next go to the 9th Circuit Court of Appeals. They have to accept Judge Walker's findings of fact, generally speaking, but may disagree with him on findings of law. The findings of law are the critical ones here — for instance, we're hoping that Walker will find that sexual orientation is a "suspect classification", which is explained above more clearly than I can. The 9th Circuit might disagree with that, and the Supreme Court might disagree with whatever the 9th Circuit decides. Hope that helps.

  • 25. Alyson  |  January 23, 2010 at 3:57 am

    Two questions: Let's see if I can make them short and make sense…

    1. If Prop 8 proves that they have SOME rational reason not based on discrimination but clearly based on a religious value that not all religions hold….would that still be considered a rational reason in these circumstances? They can still have their 'moral value' and not get 'gay married' – as I frequently hear said ..but would that be a rational reason for preventing us from getting married or supportive churches from legally marrying us?..does the question make sense? would our team point out that even if their reason is rational – their way of achieving it is overstepping their bounds and NOT rational?

    2.If Prop 8 offers some other reason to do with natural procreation or protecting the biological family….can the fact that they only applied this to the exclusion of gay people and not to all people who can't have kids or aren't biologically related to their kids or used donor egg or sperm..etc….would that in and of it self show animus and therefore not be rational because they didn't apply it to all people in those clearly that couldn't ACTUALLY have been their goal?

    OK – three questons…
    3. do you all have some 'faith'..pardon the irony of that word…that the judges in this country ..especially SCOTUS …still recognize the value of separation of church and state the way the iowa decision detailed? Beyond individual just seems like these people (prop 8) have absolutely no case whatsoever on any grounds – yet we are all still having to hold our breath here.

    Oops…one more

    4. What happened with the CA court decision about prop 8 that went 6-1. couldn't they have tossed this out and why did none of these arguements hold with them? I thought that was open and shut too…individual prejudice or fear of recall or some other reason?



  • 26. RAL  |  January 23, 2010 at 4:01 am

    … and then, of course, to make the parallels to Prop 8 more complete, they should be seeking to make the ban on divorce retro-active.

  • 27. Desert Verdin 1 of 1  |  January 23, 2010 at 4:04 am

    If I may expand on this great post . . .

    Right now, under federal law the only test that applies to us is the rational basis test (outside of Romer and Lawrence).

    Under that test, the government (or here, the Prop 8 defense team) doesn't really even have to articulate an actual, real reason why Prop 8 should stand. The only criterion is that there may be / could be / the possibility exists a reason that the law serves a legitimate state interest. The burden rests entirely on us.

    That's why the defense isn't really putting forth any real, firm reasoning supporting Prop 8 – they don't really have to.

    The entire burden is on our side to bump us up out of rational basis into the toughest test, strict scrutiny (or at least into intermediate scrutiny), where the burden shifts to the defense.

    We do indeed face a tilted pitch.


  • 28. Sharp-Blond  |  January 23, 2010 at 4:17 am

    The CA court decision (Strauss v. Horton) concerned the ability to amend the State Constitution, with questions that Prop 8 could be considered a revision instead of a simple admendment to the state's constitution, and that Prop 8 may have violated the separation of powers doctrine of our State Constitution.

    Since Perry v. Schwarzenegger is a Federal lawsuit, the questions are about the equal protection clause under the 14th admendment.

    These are VERY different legal arguments.

  • 29. Desert Verdin 1 of 1  |  January 23, 2010 at 4:19 am

    Hi, Alyson.

    To help w/ your Q. 4, see this wiki article on Strauss v. Horton:

    I watched some of the oral arguments. One of the points on our side was that the electorate should not be allowed to vote on citizens' fundamental civil rights. When Shannon Minter made that point, one of the justices interrupted him and asked whether the electorate shouldn't have been allowed to vote on the death penalty in California.

    Minter fumbled out a non-answer.

    I knew at that moment we lost. Minter failed to state that murderers were not a discrete group and thus under the CA constitution were not a suspect class, whereas LGBTs are a suspect class under the state's constitution as found by that very court in the In re: Marriage Cases.

    The court ended up ruling on legal technicalities, basically that the electorate has the right to govern itself under CA's constitution.


  • 30. Frijondi  |  January 23, 2010 at 4:23 am

    Those of us who are rational will chuckle all the way through that; unfortunately, the social conservatives already have an answer prepared, one that's based on an entirely different set of premises. They believe it's in society's best interest to promote not just relationships that are genuinely procreative, but also ones that look procreation-y.

    Robert P. George, a Roman Catholic neo-con academic whom Maggie Gallagher regularly trots out to lend NOM a veneer of intellectual respectability, has used a rather strange analogy from the sports world to explain this point of view, which the NY Times Magazine quoted in a recent article on him. Here's an excerpt:

    "Infertile couples, too, are performing this uniquely shared reproductive function, George says, even if they know their sperm and ovum cannot complete it. Marriage is designed in part for procreation in the way a baseball team is designed for winning games, he says, but 'people who can practice baseball can be teammates without victories on the field.'"

    According to George, Maggie, and their ilk, you fags and dykes may think we're getting to third base and beyond with each other, but you're just fooling yourselves. Gay men who place their relationships on the same level as heterosexual ones are doing the equivalent of playing croquet and calling it baseball. As for gay women, well, we all know about lesbians and softball. And what is softball except an awkward counterfeit of the real thing?

    What the opponents of gay marriage are really interested in is regulating how people use their equipment; the term "multitool" is not in their vocabulary. Men and women, and their various working parts, are meant for one thing and one thing only. And if you disagree, you have no business thinking of yourself as a contributing member of society. That goes for any heterosexuals who don't toe the line, either.

  • 31. Wolfinlv  |  January 23, 2010 at 4:24 am

    wondering if the lawyers on our side read this but here's something I just found interesting.

    Religion is a choice. I can choose to be Jewish, I can choose to be Mormon, I can choose to be Wiccan and I can choose to be united Methodist etc…
    Religion is a protected class is it not? so therefore we have precedent that just because something is a choice doesn't make it ineligible for protected class status now does it…

  • 32. Ann S.  |  January 23, 2010 at 4:38 am

    Yeah, one fundie I have talked to on-line likened banning marriage equality to telling her kids not to jump on the couch. That's not the "proper use" of the couch, and LGBT sex is not the "proper" way to have sex.

    Um, WTH???

    The conversation didn't go much farther after that. What can you say to someone like that? Her God told her not to have sex with a woman (and, I guess, not to let her kids jump on the couch).

  • 33. JC  |  January 23, 2010 at 4:39 am

    Yes, and we (the No on 8) team couldn't prove our case. I'm no lawyer, but it sure seemed to me that we picked the wrong argument. We listened to the case live and were just struck over and over by how much the judges wanted our team to provide them with precedents and case law to provide "air cover" to overturn the popular vote, but our team couldn't. Don't blame the judges on this one, Alyson. They did let our marriage (and 17,999 others) stand. I think that shows that they stand by their previous decision, but they couldn't overturn the vote because they didn't have sufficient grounds.

  • 34. Ozymandias  |  January 23, 2010 at 4:39 am

    First of all, THANK YOU for the break down of how the levels of scrutiny work – until this case, I had had only the vaguest notion of how this process worked.

    Secondly – you know, there are times when karma gives me the opportunity to smile, regardless of the times… right now in Oklahoma (where I live) a bill is being introduced that made me just laugh hysterically when I heard it. Our resident crazy Repub Sally Kern has introduced a bill that would… guess what? …restrict divorce! Seriously!

    Naturally, there are a LOT of rather pissed off straight folk around here right now – and (increasingly hysterical) gossip about a 'hidden measure' in the bill that would actually fine folks for previous divorces! Naturally there's no actual EVIDENCE for this 'hidden measure' but that's not stopping straight folks from getting outraged about it.

    I was talking with a supportive friend of mine who laughed just as hard as I did when he heard about it. 'So,' he said to me, 'guess they have some idea of how you feel now?'

    Yes, sometimes Karma does indeed make me smile.



    P.S. Do a Google search on 'Sally Kern Divorce Ban'. Each news site I've been to has tons of comments that are just… priceless. :)

  • 35. Jay  |  January 23, 2010 at 4:42 am

    I now have an exceptionally strong urge to copy this into an email and send it to every single person in my email list.

    Thanks for sharing! 😀



  • 36. JohnA  |  January 23, 2010 at 4:42 am

    Does anyone know how long it will take this case to reach the Supreme Court? It seems poised for a 5-4 decision going either way. That is WAY to close for comfort.

    I've heard rumors that Justice Stevens or Ginsberg could retire soon, and that would not be good for us. Any possibiities that any of the conservative justices could retire? In my dreams.

  • 37. Ann S.  |  January 23, 2010 at 4:54 am

    Oh, Ozy, that is TOO funny! Big surprise — her proposed legislation isn't any too popular with the voters! OMG, why might that be??? Could it be because she's a Complete Nutcase??



  • 38. waxr  |  January 23, 2010 at 4:58 am


    A Supreme Court Justice once said, "Your freedom to swing your fist stops at my nose."

    Christians and all others are free to believe whatever they want, but they have no right to force their beliefs upon others because that would be invading freedom of religion. The acceptance of same sex marriage will not force anybody to marry someone they do not wish to, nor will it force churches to perform same sex marriages. Prohibiting same sex marriage interferes with the right of people to marry whom they wish, and it prevents any church from marrying same sex couples even if they approve of it.

    So who's religious rights are being stamped upon?

  • 39. Sharp-Blond  |  January 23, 2010 at 5:01 am

    Boies estimated it would take two years to reach the Supreme Court.

    I think it is likely that Stevens will retire by then, but Obama will most likely be able to appoint a similar judge to take his place.

    It's going to be a while before we get a conservative judge to retire. They are still relatively young.

  • 40. Chris  |  January 23, 2010 at 5:03 am

    If only Justice Thomas would retire. Let Obama appoint another liberal!

    Maybe Ginsberg and stevens will stay their retirement until this case comes up because of how important it is.

  • 41. Frijondi  |  January 23, 2010 at 5:03 am

    Maybe Scalia will decide he'd rather spend his golden years annoying his grandchildren full time. They have probably picked up a lot of wrong ideas in school and on the internet.

  • 42. Ozymandias  |  January 23, 2010 at 5:04 am

    I definitely love this!

    There are some great YouTube videos that cover this too.



  • 43. Judi  |  January 23, 2010 at 5:08 am

    Good points on both counts Woody and Tony. It seems to me that the challenge of upholding the freedom of religion clause is when one group's religion professes a list of "sins" that need to be eradicated, and those "sins" contradict a set of of beliefs of another group. At that point, the courts need to decide if the overlapping contradiction relates to a fundamental right (as defined by Brian above.) In this case it does, and the court should rule on the side of protecting the fundamental right over the religious right. Whether or not it was intentional, that is the way the courts ruled in Loving v Virginia, and (from my non-legal, but logical perspective) it is the direction we are heading in this case.

  • 44. Judi  |  January 23, 2010 at 5:21 am

    Am I understanding this correctly, Ann? When the case is appealed, the 9th Circuit Court MUST review the case, right?

    Assuming that is true, and one side or the other then appeals to the US Supreme Court, does that court have the option to take the case or not?

  • 45. Aaron  |  January 23, 2010 at 5:32 am

    any lawyers out there who can comment on this? how ARE we doing, truly? we all want to think it's giong well, me included, but from a legal POV, is it???

  • 46. Ann S.  |  January 23, 2010 at 5:34 am

    I believe that the SCOTUS does not have to take any particular case, but I also think it is likely that they will take this one because it is resulting in a patchwork of laws in various states, it affects a fundamental right, and because of the benefit of having certainty in this area.

    There is another federal case filed in Massachusetts challenging DOMA that will also be heading their way. It will be hard for them to duck the issue indefinitely.

    They have already shown an interest in this case, by ruling on the issue of the cameras (which they did not have to do).

  • 47. Judi  |  January 23, 2010 at 5:42 am

    Thanks for the clarification, Ann.

  • 48. Frijondi  |  January 23, 2010 at 5:53 am

    It was painful to watch our side dance around the issue of prejudice all though that trial, and during the months leading up to the election.

    Not surprising, though, given the reaction people typically get for calling attention to prejudice or discrimination, even when it's clear cut. They're called whiners, or accused of "being victims" (or "wallowing in victimhood") or trying to cover up some sort of personal deficiency. It doesn't surprise me that even the major gay rights organizations have internalized that message.

    I dare say that Minter and others have also learned for bitter experience that when an LGBT person speaks up on their own behalf, they're seen as dishonest, biased, selfish people who are trying to get away with something. Better to stick with technicalities than address the central issue of prejudice.

    Ted Olson and David Boies, on the other hand, are used to winning, and they have not been told all their lives to shut up and stay in their place.

  • 49. Linda  |  January 23, 2010 at 5:54 am

    No, because it will actually adversely affect them. Shoe's on the other foot, now. They have no problem restricting OUR rights, but don't go touchin' theirs!

  • 50. Frijondi  |  January 23, 2010 at 5:54 am

    (Should have been "from bitter experience.")

  • 51. Linda  |  January 23, 2010 at 6:00 am

    The comments are off for precisely that reason. He knows he's lying, but his 'followers' don't know that. They believe everything he says. Imagine their outrage when they lose! And won't the money roll in to fund an appeal.

    I don't think this trial matters to the prop 8 folks. They are dismissing it in a contemptuous fashion. They are looking to the SCOTUS to be the real trial, and they feel confident that they will win that one.

    My question is–doesn't this trial, and the arguments/facts presented follow the case on up through the appeals court and on to SCOTUS? Won't it be evident that the prop 8 folks put no real effort into this case? It seems that their lack of professionalism in this case would hurt them down the road.

  • 52. JonT  |  January 23, 2010 at 6:12 am

    :) One of My favs is 'Betty Bowers explains traditional marriage':

    Still get a laugh t that.

  • 53. Alyson  |  January 23, 2010 at 6:14 am

    Responding to Tony in Comment 8 – loved that quote, had to go look it up.

    Supreme Court Justice Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935)

    the bio didn't mention a wife and did mention a long soujourn in europe with a male friend…hmmmm..we can always hope ..anyway..he was a unitarian, put on the court by teddy rosevelt, and wrote many disenting opinions that are now considered main stream part of the law. sounds like the kind of quality we need in our court right now.

    " Holmes wrote his legal treatise, The Common Law, in 1881, a 15-year labor predicated on his belief that "The life of the law has not been logic; it has been experience." His recodification of the law from religious foundations to modern jurisprudence was pivotal to the evolution of legal scholarship.

    Holmes urged "judicial restraint," or the divorcing of private views from legal opinions."

    The quote Tony refered to was:

    "The right to swing my fist ends where the other man's nose begins."

    other choice quotes from this man were:

    "The mind of the bigot is like the pupil of the eye: the more light you shine on it, the more it will contract."

    "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater. . ."

    let's hope his work holds up today!

  • 54. Frank Brown  |  January 23, 2010 at 6:25 am

    Thank you for your postings. If I can be of any help – I was the ED of the glbt legal group (Colorado Legal Initiatives Project) who coordinated and funded the ROMER v EVANS case.
    Frank Brown

  • 55. Linda  |  January 23, 2010 at 6:33 am

    Frank, I love your email address. :)

  • 56. Tony Douglass in Ca  |  January 23, 2010 at 6:57 am

    Waxr, Jodi expressed what I meant. LGBT people are having their right violated by being forced to conform to the religious beliefs of others.

    I have heard no arguments by anyone supporting PropHate that were not promoting the religious beliefs of the dominant churches in the country.

    The only "traditions" of marriage being preserved are religious ones, I don't see any other conclusion to draw. The evidence of Morman and Catholic Church involvement presented at trial support that.

    What is truly nauseating is not only are they legislating their religious beliefs, but when they are questioned, they claim religious persecution.

    I hope the judge can see this for what it is, and rule on the religious persecution they are perpetrating.

  • 57. Roger  |  January 23, 2010 at 7:04 am

    Religion is not a suspect class. Freedom of religion — that is, the citizen's right to *choose* what religion he or she prefers — is specifically protected by the first amendment to the US Constitution.

    It isn't always realised that the clause is worded in the way it is ("Congress shall make no laws regarding the establishment of religion, etc") for cogent historical reasons.

    Go back to the Delaration of Independence, and read it beyond the Preamble (we hold these truths to be self-evident etc..). Americans are apt to think that the Declaration created rights that the colonists didn't have, but the substance of its argument ws that they were being denied rights that were already guaranteed to all subjects of the British crown, including themselves, by the Bill of Rights.

    That is, the Bill of Rights of 1688. When independence was secured the Bill became non-operative in America and it was realised that it could no longer be invoked, so legal protection of the people's rights had effectively been lost.

    So a series of amendments were incorporated into the US Constitution as a new Bill of Rights reinstating the freedoms guaranteed under the old one. There are many similarities, even to almost identical wording in some places; but one great difference stands out.

    The 1688 Bill established "the Protestant Religion" (ie "the Church of England by law established") as binding on British subjects.

    The Americans repudiated that, which is why the first Amendment first prohibits any attempts by Congress to "establish" a particular religion, and follows up by prohibiting any laws that might interfere with .the free practice of [any] religion.

    That one's religion *isn't* immutable is of the essence of the matter. What is sternly protected is one's right of free choice in religious matters.

    Sorry to ramble on so. I'm not a constitutional lawyer, or even an American. An expert would no doubt be able to elucidate the matter more succinctly.

  • 58. Linda  |  January 23, 2010 at 7:12 am

    Very informative, Roger. Thanks for the insight.

  • 59. Skemono  |  January 23, 2010 at 7:52 am

    Now, the two factors to consider in determining the level of scrutiny are whether the class is a suspect or quasi-suspect class and whether the rights being abridged are fundamental.

    As has been mentioned in other comments in various posts, there are certain criteria a group must meet to be deemed a suspect class by the courts. As I understand it, those criteria are:
    (1) The group has been subject to historical discrimination.
    (2) The group is politically powerless.
    (3) The group is distinguished by an immutable quality.

    As has been said, the Prop. 8 lawyers have been trying to show that gay people don't qualify by saying they have political power, and that sexual orientation is fluid and changeable. If they're successful, the judge probably won't rule sexual orientation a suspect class.

  • 60. Charles  |  January 23, 2010 at 8:04 am

    My poor man (woman?), you'd only be playing right in their hands! It's EXACTLY what they want, what do you think?

    All that garbage about values etc., is so extremist that it seems absurd to us, but to them it's only the tip of the iceberg. Why do they oppose gay marriage? Do they really think that homosexuals are pedophiles or zoophiles or other bullshit? Of course not (at least not the leaders). What is at work there is a refusal to get into any other law/measure that would get them further away from the rigorous moral order of the 1950s. As far as they're concerned, anything that happened after 1955 regarding family shouldn't have happened. I wouldn't be surprised to hear that a great lot of them are opposed to interracial marriage as well.

  • 61. Joe Decker  |  January 23, 2010 at 8:06 am

    Wish I could say I'm a lawyer, I'm not, although I've been folloiwing CA SSM cases for six years and wrote an amicus letter in the Strauss case. So, … how are we doing?

    There are four elements that weighed into a decision to call something a suspect class. Roughly speaking, we want to prove each of these elements as strongly as possible:

    Discrete minority: That is, you need to be able to determine who you're talking about. I think this is, for the most part, clear. The spectrum of sexuality including bisexuals does complciate things, but I think it's silly to suggest that there aren't people who will never want to marry someone of the same sex, and similarly silly to suggest that there aren't people who will never want to marry someone of the opposite sex. I think we're doing okay on this point, but of the four, this might be the weakest leg in our platform.

    Immutability: The legal meaning of this is not quite as black-and-white as it sounds, but understandably, the color of my shirt is less a basis for higher scrutiny than the color of my skin. The enormous fuss over the sciene of where orientation comes from is so strong because it plays into the legal arguments for scrutiny. We're doing well here, I think the testimony of the fellow who underwent ex-gay conversion was signficant, and I think the consistent support of science for our point of view will win the day.

    History of discirmination: I think this is one of the easiest points for us, it's pretty clear we have suffered that history, and based on the testimony of Dr. Tam. (Send flowers.)

    Political powerlessness: I think we're doing pretty well here, I think the very nature of the case (the CA Supreme Court said it was an equal protection matter, but that the voters overruled it despite it being an equal proteciton matter), really demonstrates the point well.

    In any reasonable world, I think AFER has laid out an excellent case for heightened scrutiny. But, it's worth saying that the bar for the court to find that true is very high–not just for us, but for any group. I think there's a very good chance that Walker will find for us, but SCOTUS? I'm less sure. Some lawyers I've talked to privately suggest that some SCOTUS members won't rule on this case based on legal principle, but based on their own prejudice. There's not much that *can* be done about that. But at least I think we're having our case presented as well as possible, and if we fail because of corruption in the Courts, at least we have spoken truth to power.

  • 62. waxr  |  January 23, 2010 at 9:44 am

    A Christian Marriage

    The following list was gathered from the New Testament

    Matthew 19:9
    "Now I say to you that whoever divorces his wife, except for immorality, and marries another commits adultery."

    1 Corinthians 7:4
    "It is not the wife who has the rights to her own body, but the husband."

    1 Corinthians 7:10-11
    "To the married I give this command – not I, but the Lord – a wife should not divorce a husband (but if she does, let her remain unmarried, or be reconciled to her husband), and a husband should not divorce his wife."

    1 Corinthians 11:8-8
    "For man did not come from woman, but woman from man. Neither was man created for the sake of woman, but woman for man."

    1 Corinthians 14:34-35
    "the women should be silent in the churches, for they are not permitted to speak. Rather, let them be in submission, as in fact the law says. If they want to find out about something, they should ask their husbands at home, because it is disgraceful for a woman to speak in church."

    Colossians 3:18-19
    "Wives, submit to your1 husbands, as is fitting in the Lord. Husbands, love your wives and do not be embittered against them."

    1Timothy 2:9-12
    "Likewise the women are to dress in suitable apparel, with modesty and self-control. Their adornment must not be with braided hair and gold or pearls or expensive clothing, but with good deeds, as is proper for women who profess reverence for God. A woman must learn quietly with all submissiveness. 2:12 But I do not allow a woman to teach or exercise authority over a man. She must remain quiet. For Adam was formed first and then Eve."

  • 63. waxr  |  January 23, 2010 at 10:36 am

    I still fail to understand the California Supreme Courts decision.

    The states Supreme Court has to follow the 14th amendment which guarantees due process. When the death penalty was voted in, the criminal still had the right to due process before the penalty could be imposed.

    The state Supreme Court had already ruled that same sex marriage was a right, but prop 8 removed that right without due process.

  • 64. Frijondi  |  January 23, 2010 at 10:39 am

    Interestingly, only the first of those quotations (Matthew 19:9) is attributed to Jesus, who seemed to have a problem with men abandoning their wives in a society in which women had much more to lose from divorce.

    The rest are attributed to St. Paul, although some Biblical scholars have made a case that some of his more sexist remarks may have been later additions by one of his followers.

    I wish the evangelicals and fundamentalists who supported Prop. 8 would remember that a) Paul was not Jesus (Jesus said nothing about homosexuality or women being subordinate to men), and b) many branches of Christianity reject a literal interpretation of the Bible.

    Oh, and c, of course — not everyone's a Christian, but that's another subject.

  • 65. waxr  |  January 23, 2010 at 11:00 am

    You are correct on Matthew 19:9 being the only quote attributed to Jesus. It can also be found in other gospels, but I did not want to be repetitious. In the Old Testament, all a man had to do was to write a letter of divorce and hand it to his wife: They were divorced.

    Whether the commands came from Jesus or Paul is irrelevant because most Protestants consider the entire Bible to be inspired. Including passages which tell slaves to obey their masters with fear and trembling (Ephesians 6:5).

  • 66. Ann S.  |  January 24, 2010 at 5:35 am

    Joe, I think that's a very good synopsis.

    All I have to add is: you say "some SCOTUS members won’t rule on this case based on legal principle, but based on their own prejudice"???? Say it ain't so!

    All we have to do for a prime example of that is hearken back to Bush v. Gore.

  • 67. Ann S.  |  January 24, 2010 at 5:37 am

    Joe, there was one more thing I wanted to add, in all seriousness. Olson has some very close ties to the SCOTUS, and an excellent record there. Justices Kennedy and O'Connor attended his wedding a few years ago (his previous wife was killed on 9/11/2001 in the plane that crashed into the Pentagon). Does that mean it's a slam dunk? Of course not. But it makes me a little more hopeful.

  • 68. Faith W.  |  January 25, 2010 at 12:04 am

    If the right wing thinks that LGBTQ people are not "politically powerless," then how do they explain the fact that this group is denied the right to marry? If gays and lesbians are so "powerful," then why are they spending time and money on this court case? Wouldn't powerful people have the same rights as the ruling elite including marriage rights?
    This reminds me of the "isn't it enough that they freed the slaves" line of thinking during the Jim Crow era that blacks were moving "too fast" in their insistence upon basic human rights. Or when a GITMO detainee commits suicide, it's referred to as "asymmetrical warfare" as if some powerful inmate is making life hard on the itty bitty ol' helpless United States. Talk about distortion!
    Note that when marginalized groups start to stand up and fight back, then they are declared all-powerful and the oppressors transform themselves into victims.

  • 69. jdbosmaus  |  January 25, 2010 at 12:25 pm

    To some of the legal eagles who are on this forum…

    I understand that the losing side before Judge Walker has a right to appeal to the 9th Circuit Ct. That court has to hear the appeal.

    The losing side from the appeal has a right to appeal to SCOTUS, but they do not have to hear the appeal – they could reject it.

    My question is: suppose SCOTUS declines to hear the appeal. In that case the decision of the 9th Circuit will stand. Would that decision be binding throughout the US, or only in the states covered by the 9th Circuit Court?


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    LMAO!………to MrsAdorkable…… I used this list in my Effective Public Speaking class 3 years ago….Oh memories…..

    Suffice it to say I got and A and when the teacher asked the class to raise their hands if my speech changed their minds to support same sex marriage…. Out of a class of 50 half were already on our side and 15 had been converted.

    I guess I indoctrinated them yeah?

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