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


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.

Here are all of the questions Judge Walker sent to plaintiffs and the defense.

[scribd id=32724803 key=key-jssxoh15lutku7zmgyn mode=list]



  • 1. Sagesse  |  June 8, 2010 at 2:16 pm

    Wordsmithing. Judge Walker uses a couple of … unusual… phrases in his questions. Can anyone here translate?

    Plaintiffs Q 12. He refers to the involvement of religious organizations as "an attempt to enforce 'private morality'", not 'religious belief.' Does the term 'private morality' have a recognized legal meaning?

    Proponents Q10. "Assume the evidence shows that sexual orientation is 'socially constructed'." Is 'socially constructed' a recognized sociological or legal term, and if so, what does it mean?

  • 2. Shun  |  June 8, 2010 at 6:18 pm

    I am by no means an expert but I am fascinated by these questions and can't wait to see what both sides have to say.

    Meanwhile, a conservative democrat thinks there shouldn't be a national discussion on homosexuality because it's too taboo for families.

  • 3. Ed  |  June 8, 2010 at 8:22 pm


    These are great questions when they challenge the readers to push deeper for their answers than we ordinarily have to. I look forward to the answers of both sides.

    I do not know if there is special legal meaning "private morality" in question 12, but to my non-expert ear, he is underlining the evidence that religious groupsr worked very hard to get their doctrinal "private morality" written into the Constitution of the State of California.

  • 4. Ed  |  June 8, 2010 at 8:34 pm

    Sagesse- This answer is splitting up because of my computer or because of the construction of the website. Social construction is the idea that we need to challenge our beliefs about the nature of things because what we have absorbed from the ways that people are thought about may be inaccurate. Since LGBT issues were "socially constructed" as mental illness by the American Psychiatric Association's Diagnositc and Statistical Manual, all gays and lesbians were suspected as "crazy" or at least needing "treatment" to become normal until 1973.
    A different social construction is that LGBT people "choose" their sexual orientation and therefore disobey the word of God. As evidence grows for the genetic and biological bases of sexual orientation and gender identity, a different narrative is possible in which people accept their biology and love according to who they are. The private morality that emerges can be very Christian (Love they neighbor as thyself, regardless of their sexual orientation or gender identity) as opposed to the private morality that emerges from seeing Leviticus as the word of a condemning god.
    For anyone wanting to make their head spin, you can read Foucault, a gay French man who triggered much early thinking about how much we think of our world in terms that are socially constructed. Or, if you don't want a headache, you can read people like Michael White and the current generations of narrative therapists and solution oriented therapists who are showing (or have shown since Michael White has died) that our social construction of mental health problems can be done very differently with markedly better outcomes from those who carries stigma of all sorts.

  • 5. Ed  |  June 8, 2010 at 8:43 pm

    A couple final points and I am going to bed. The last comment in comment 4 should read
    "…markedly better outcomes for those who carry stigmas of all sorts." And to complete comment 3, you could argue that those Churches who paid big bugs to put out distorted advertizements for Prop 8 were given unfair assistance in writing their private morality into the California State Constitution, violating the federal constitution's separation of Church and State. It certainly disadvantages atheists and agnositcs who now have to have their lives ordered according to Catholic and LDS private morality; it also disadvantages every other form of religion that does not share the private morality of those who bankrolled the public brainwashing that took place on television sets all through the set in the runup to the election.

  • 6. Sagesse  |  June 8, 2010 at 10:36 pm

    Thank you :). We all need to go back to school now and then.

    On the subject of private morality. First, I like the symmetry, intentional or not, that the term can describe the private morality of the religious, but it also describes the right of LGBT individuals and families to live their private (personal) lives without interference.

    Secondly, Judge Walker has neatly gotten around the Religious Right's 'cheat' on the separation of church and state. The Church cannot directly fund or advance its views, but if their members vote or write cheques (because my church told me to), it's 'the will of the people'. And their elected representatives pass laws because 'it's what the voters want'.

    What this phrase neatly does is point out that 'private morality' whether religious or not, is not everyone's 'private morality'.

    I like the way this man thinks. Whether it succeeds at the Supreme Court or not, this trial record is going to be a thing of beauty.

  • 7. Rob  |  June 8, 2010 at 11:15 pm

    I would enjoy it if one of the lawyers could dissect this document and provide an analysis (based on the court proceedings) what angles Judge Walker is playing in his questions!

  • 8. Rick  |  June 8, 2010 at 11:23 pm

    I found this question (#11 to both Plaintiffs and Proponents ) to be most interesting:

    "What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? Must gay men and lesbians be treated identically under the Equal Protection Clause?"

    Any insights on this?

  • 9. Straight Grandmother  |  June 9, 2010 at 1:33 am

    Sagasee I am with you on Question 10 to the defendents. I looked up "Socailly Constructed" and I still don't have a clue what it means.
    However I can summarize for everyone Question 9 to the defendents …Michael H vs Gerald D. I jsut read the court decision on this one and here it is boiled down. An international Model was married to gerald and executive at a french oil company (must be TOTAL). The model had a hard time making up her mind who she wanted to be with and lived with her husband, then Michael and even a third guy. But all the time stayed married to Gerald. You guessed it her first child was fatherd by Michael, but Califronia law says that a child born while people are married, the husband is deemed the natural father unless the wife or the husband object within 2 years.

    The woman flitted back and forth between the 3 guys and at one time she had a deo srawn up (which she could do because she was the mother) when she was with Michael and had bood tests taken and everything showing the the bioloigal father was Michael. She went back to dadddy big bucks Gerald and had 2 more kids (we can only hope Gerald is the bioligical father LOL) . In the meatime Michael knows in fact he is the daughters REAL biological father and he wants to maintain a relationship with his daughter, and be declared the REAL father. Went through all the courts and Michael lost. The Supreme court (Scalia worte the majority opinion) said we rely on history going way back to England, the laws have always said that the married husband is the father not the REAL Biological father. This protects the family unit adn we are jsut gling to leav it that way.

    Judge Vaugh's point is very good, the defendents claim children are better off and the laws should insure this, living with their biological mother and father is best.
    However as Vaughn points out California state law and the Supreme Court agreed, "Bilogogy does not count when it comes to paternity, what counts and children should be left to grow up in familes where the parents are married. Even if your sperm did not make the kid, and another man's sperm did, the man who is married to the woman is the BEST father to the kid and that is who the government will recognize as the father "

  • 10. Monty  |  June 9, 2010 at 1:33 am

    In Fresno County, about twice as many Republicans as Democrats voted. Now I'm not a big fan of either party, but that's just sad.

  • 11. Straight Grandmother  |  June 9, 2010 at 2:20 am

    Sorry Ed I still do not understand "socially constructed" in question 10 to the defendents. I read what you wrote but I don't get it. Here is this it? it is a social construct that Africans are not as smart as Asians. TRUTHFULLY and SCIENTIFICALLY Africans ARE intelectually equal to Asians, and that race is not a determining factor of intelligence.
    In other words society has constructed a generalization that is in fact, NOT TRUE. Is this what a social construct is?

  • 12. Richard A. Walter (s  |  June 9, 2010 at 2:27 am

    And Rick, while you are liveblogging, I will be here at my PC. After all, this trial will even have effects here in North Carolina.

  • 13. Richard A. Walter (s  |  June 9, 2010 at 2:29 am

    forgot to hit subscribe link. DOH!

  • 14. Ed  |  June 9, 2010 at 5:30 am

    Straight grandmother:
    Sorry I did not see your comment before heading off to bed last night. The idea of social construction is that some things that we consider to be real are actually "socially constructed", ie we think about it in a way that makes it real in our experience. All mental health diagnoses tend to be social constructions, so homosexuality was a mental illness and many people saw themselves (as mentally ill) that way until 1973 when the DSM changed. Thus, evidence of a biological basis to sexual orientation would be ignored or seen as observational error or artifact. Seeing homosexuality as a gift is another way sexual orientation could be constructed: that it is associated with increased creativity, empathy for others (ability to hear and appreciate the stories of those whose voices are unheard), talent for acquiring language, talent for using your own language, musical skill, etc. The social construction often determines how you are seen by society (criminal, sinner, pillar of society), your self-esteem (and self-loathing for LGBT teens whose suicide attempt and completion rates appear to be significantly higher than their straight peers). So you can see that how the same event (recognition that one is gay) could be cause for great distress or great joy, depending upon the way it is socially constructed within a society. That is where the "missionary work" of the evangelical christians in Uganda is so destructive: teaching a worn-out and evil social construction rather than a truly loving and accepting social construction. The paradox becomes all the more compelling when you start to see the number of those pushing this construction of homosexuality as evil choice are speaking so loudly to try to deflect attention from what they feel.

  • 15. Straight Grandmother  |  June 9, 2010 at 6:29 am

    I am not baiting you I really do not get it, what is socially constructed again? Pelase be patient. Try explaining it using examples that are not gay examples. Use shorter sentences. Thank you. I really want to know what this is. I read Wikipedia and that was even more difficult to understand than what you wrote.

    You wrote "ie we think about it in a way that makes it real in our experience" Go back to my African and Asian example above, is that social construction?

  • 16. Straight Grandmother  |  June 9, 2010 at 6:57 am

    I finally found out what Social Construction is on YouTube.
    I guess I understand now why you could not shorten up the defininition. I guess I am not the only one as I notice this video has over 17,000 views.
    [youtube =]

  • 17. Straight Grandmother  |  June 9, 2010 at 7:05 am

    As to question number 10 to the Defendents- "Assume the evidence shows that sexual orientation is socially constructed…" Now I jsut watched the video above and I don't get how Judge Walker is using "socially constructed" in his question. Watching the video the way I read his question would be "Assume the evidence shows that sexual orientation is recognized by society" I don't think he is using the term properly, do you?

  • 18. Monty  |  June 9, 2010 at 7:06 am

    I think he means something like "if it's not actually a real thing, but just something people made up."

  • 19. Monty  |  June 9, 2010 at 8:31 am

    Well, Prop 14 passed and 15 didn’t. So now whichever party can spend more money might get to send both of their candidates to the general election and shut out any competition. Democracy in action!

  • 20. Ed  |  June 9, 2010 at 8:39 am

    Straight Grandmother- No, I did not feel baited! I felt as though I was struggling to make social construction simple and clear and was not getting there! My problem- I can be too complex!

    If we saw skin tone as a marker for intelligence, then we might see the lightest skinned people as intellectually inferior and the darkest skin people as brilliant.
    I think Walker's question implies that he sees sexual orientation as a socially constructed term, but one that is evolving as more scientific evidence informs the debate. Since there is some scientific evidence that men are more hard wired about their sexual orientation than women, if that data is accepted, it might lead some to argue that women choose to love women and men don't have a choice. It is a possible way for the Right to argue at least that for women, sexual orientation is a choice (let me point out that the evidence says that sexual orientation is more fluid for women than for men; the scientific study of women's sexuality is not as developed as it is for men- think that has anything to do with male scientists having been more self-interested?) At any rate, the Right might argue that sexual orientation is more fluid for women than men and therefore women and men should be treated differently by (imagine here the worst case scenario of distoring the science of sexual orientation to remove rights from all LGBT people or at least some). I think Walker is anticipating this ploy and trying to get the arguments down of paper should the argumnet be made in the future. Walker is a remarkable jurist as these questions prove!

    By the way Michel Foucault lived and worked in France early in his career before moving to the US… but his writing is very thick… makes my struggles with clarity look lightweight!


  • 21. Bob  |  June 9, 2010 at 11:39 am

    "private morality" or an indiviuals ability to define right and wrong, is just that , a private matter, the religious right goes so far as to argue that if one does not believe in God, they are incapable of making this distinction.

    This phrase seems similar to me to the reformer Martin Luther, who stood up against the church on the sole grounds of his understanding of "bound conscience" which simply put, means each of us, is bound by our own conscience to God or the scriputres by our own definition and experience, and the Catholic Church did not have the right to impose their rules or interpretaion in a way that would destroy anothers reltaionship born out of his own personal stuggles with his conscience.

    Martin Luther's stance was that he based his arguments with the Church not to undermine their own intimate concsciene regarding these matters, but rather to assert that his were equally as valid.

    That was the beginning of the christian reformation, which is ongooing today, as noted by the many churches who tag themselves as the reformed church, always learning, this ties in with present day reformations regarding inerrancy of scripture, acceptance of homosexualtiy, and wether or not creation is an ongoing process.

    Basically put do we as individuals, have a sense of "personal moraltity" and are we asserting ourselves from that position, so that our actions are born out of desire to do what is right and good for mankind, as opposed to fluanting ourselves in their faces pursuing only selfish goals.

    As for those who are atheists , etc. they too have their own sense of morality, and that is the prupose of secular laws,

    In this way the relligious right could leave us alone to develope our own sense of "personal morality" to strive for the good in all mankind, which is exqctly what we are doing

  • 22. Fluffyskunk  |  June 9, 2010 at 12:42 pm

    Whoa. Talk about the "sanctity of marriage".

  • 23. Richard A. Walter (s  |  June 9, 2010 at 1:11 pm

    Amen, Bob! Well said.

  • 24. K!r!lleXXI  |  June 26, 2010 at 10:07 pm


    Well said!  Social construct is not a factual reality, it's only what the society decided to see something as.  Marriage is a social construct, “one man and one woman” is a social construct for defining marriage and any traditionally acceptable sexual relationship, but it doesn't make it true and doesn't mean this construct is immutable and must remain so!

    As for private morality, the state has no business interfering into our private lives, or telling us how to live and what gender of people to choose from to marry.  The state has no private morality!  The state doesn't even have morality to speak of!  It only enforces the laws that harm other people, physically and/or emotionally, but private morality cannot be a choosing factor for those laws because it is private, which means it is different for different people, and the state has to protect and help all its citizens and legal residents, not just some of them based on their chosen private morality.

    What if the situation was reversed and the state was to recognize only same-sex marriages, condemning opposite-sex unions and their children and glorifying gay couples for not having kids and thus not increasing expenses in the circumstances of overpopulation and shortage of resources?  That would be a legitimate state interest and private morality in place!  How is that different from what is going on now?  I don't see any difference, however, we see how detrimental it is to have such an inequality.


  • 25. K!r!lleXXI  |  June 26, 2010 at 10:15 pm

    Corrections to my previous post:
    ♦ “interfering with our private lives.”
    ♦ “It only enforces the laws that punish for harming other people ”
    My apologies!


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