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Brief Thoughts on the Morning’s Testimony

Trial analysis

By Paul Hogarth

With Rick live-blogging today’s trial, I’ve been following the transcript from my office — but haven’t had the chance to provide commentary until now.  I will do this at least once or twice a day for the rest of the trial, as Rick and others live-blog the proceedings.  You can also read my longer analysis of yesterday’s trial right here.

Edwin Egan’s testimony this morning about the economic benefits of same-sex marriage — like Professor Peplau’s psychological testimony yesterday — made a powerful case that, on a public policy level, marriage equality is a good idea.  One can even say the state has a public interest in passing gay marriage.  What worries me from a legal perspective, however, is that it’s not directly on point to the case.  This is a constitutional challenge to Prop 8 – that the fundamental right to marry includes the right to marry a same-sex partner, and that Prop 8 was malicious discrimination motivated by no real purpose besides anti-gay animus. Whether or not gay marriage is “good” for California is not really the point here.

Of course, that’s not to say that Egan’s testimony wasn’t relevant — and could not be used to justify our case.  Brown v. Board of Education (1954), which overturned school segregation, was an unusual case because it relied heavily on sociological data (rather than court precedent and legal theories) to prove that “separate” was, by nature, unequal.  Similarly, Peplau’s data yesterday that gay couples are less likely to register as domestic partners (when it’s available) then if they got married spoke to the psychic effects that a separate institution provides.

The fact that Prop 8 had an adverse economic effect on San Francisco and other cities — and that it makes the City’s ability to enforce non-discrimination laws more burdensome — certainly argues that there were “irrational” purposes for passing it.  Prop 8 was so intent on taking away the right of same-sex couples to marry — that they were at least oblivious (if not reckless) to the fact that there are real-world economic consequences wholly unrelated to the “preservation of marriage” and “family.”  But it may be a stretch for the (inherently conservative) courts to accept that argument.

Probably the most interesting nugget I found in Egan’s testimony was his candid admission that repealing Prop 8 alone would not generate massive tax savings.  “DOMA would have to be lifted before we’d see the effect of this.”  Because the Defense of Marriage Act prevents gay couples from achieving any of the federal benefits of marriage — including joint federal tax returns, etc. — we still don’t have genuine marriage equality anywhere in the United States.  It will be interesting to see how the outcome of this case has any effect on the constitutional challenge to DOMA, which a strong case can likewise be made that it was motivated by sheer animus.  In fact, GLAD (Gay & Lesbian Advocates and Defenders) has filed a federal challenge in Boston alleging just that.

UPDATE: A commenter raises a good point that I hadn’t thought of.  Olson and Boies are probably bringing in all this evidence to cover their bases, because it’s harder to bring in evidence later.  If — and it’s a big if — the federal courts recognize gays as a “suspect class,” then it’s a whole new ballgame.  In that case, Prop 8 would only be constitutional if it’s justified by a compelling public interest, narrowly tailored through its least restrictive means.  All of a sudden, the economic downsides of repealing gay marriage are very on point — because now Prop 8 can be thrown out for not being “narrowly tailored.”

How could gays be recognized as a suspect class?  U.S. v. Carolene Products (1938) laid out the four criteria: (a) a discrete and insular minority (check); (b) history of discrimination (check); (c) group is politically powerless (why the other side brought up “Will & Grace” and “Brokeback Mountain” yesterday.  Of course, the counter to that is we’re batting scoreless on gay marriage initiatives after 31 states); and (d) the trait is “immutable.”  This last point is going to be the most controversial, and strikes to the question — can gays “change”?  But some courts — like California– argue that we don’t need to answer the question of whether homosexuality is immutable.  People can change religions or nationalities, and those are “suspect classes.”  Alternatively, you could say the identity is so central to the person that we can’t or shouldn’t expect them to change so that they are treated equally.

So it comes down to whether the Court thinks gays can (or should) change, and whether or not they’re politically powerless.


  • 1. ncooty  |  January 14, 2010 at 6:47 am

    "One can even say the state has a public interest in passing gay marriage. What worries me from a legal perspective, however, is that it’s not directly on point to the case."

    It seems to me that the plaintiff is entering as much evidence as possible in the record, because it's difficult to add new information later. If, at some later point, the case hinges on whether or not homosexuals are a protected class, then the court might turn its attention to the extent that laws meet criteria for different levels of scrutiny. If laws that limit the freedoms of homosexuals necessitate a criterion of strict scrutiny, then the court will consider the extent to which the laws respond to a compelling interest and are narrowly tailored. I think Olson and Boies are looking down the road and setting up the case for refuting the defendant's potential "compelling interest" arguments.

    I would also add that I think issues like homosexuality and procreation are complete red herrings to a discussion of same-sex marriage. We're talking about same-sex marriage. I don't care if those two people have sex or not. I don't care what their sexual fantasies are about. Therefore, I don't care about whether or not they are "homosexual". (There are also plenty of homosexuals in opposite-sex marriages.) So the strict legal question is: Can 2 men (or women) marry?, not Can 2 GAY men (or women) marry? That distinction matters in a legal sense, but is likely lost on most people.

    Likewise, I don't care if married folks have kids or not and it's irrelevant to this legal argument. (I loved the tid-bit from Day One about how George Washington was sterile but still married.)

    The plaintiffs are just trying to cover all their bases, because they don't know where this thing will lead during the defense or on appeal.

  • 2. Wayne  |  January 14, 2010 at 7:18 am

    Thanks for this analysis, it really helps me to understand why the financial incentives to allow equal marriage may be relevant.

  • 3. Colin  |  January 14, 2010 at 7:39 am

    Interesting that it all seems to come down to "can gays change?" "is it an orientation or a lifestyle?" "born gay?"

    I am a strong believer that as a result this is the one core message that every piece of communication should have. More important than "equality," more important than civil rights…..the "immutable" question is clearly one that prevents many people from placing gays alongside women and ethnic groups within the civil rights conversation.

  • 4. McSticky  |  January 14, 2010 at 8:19 am

    I am wondering why they have not brought up any transgendered arguements – there are some strong arguements against the logic of "one man and one women" when the recognition of gender varies from state to state or even within the state itself.

  • 5. rpx  |  January 14, 2010 at 8:47 am

    Paul your analysis is quite valuable to me. You write it at a level I can easily understand. Please don't stop, keep it coming. As much as I admire adn appreciate Rick's live blogging, I also equally appreciate your analysis. You 2 are a pretty good team.

  • 6. SpoonmanTX  |  January 14, 2010 at 2:14 pm

    To further the point of politically powerless, doesn’t the fact that federal law has items like DADT & DOMA on the book point to prove the affirmative?

  • 7. “Home Court Advanta&hellip  |  January 16, 2010 at 5:01 pm

    […] really said the opposite.  What would have to be proven that gays are a suspect class?  As I mentioned on Thursday, the U.S. Supreme Court has a four-part […]

  • 8. Michael  |  January 17, 2010 at 1:59 am

    The "politically powerless" criteria is particularly interesting, and one I'm sure will be hard to convince people of since LGBT rights are so tied into America's political left and in most ways, the Democratic Party, but LGBT people by no means control the left, or the Dems. If that were the case this trial would likely not be necessary.

    LGBT citizens contribute greatly to the culture of this country, and one might state that there's a parallel with African Americans of the last century – Rock and Roll was an assumption of the Blues in the 1950's, and white artists were making it palatable to a wider audience. It allowed Black artists to go mainstream as well. African Americans were visible, but still struggled for equality.

    Fashion and entertainment have been influenced by LGBT contributors for years, and it's gone mainstream with things like Will & Grace and perhaps Ellen, but we are still a long way from equality. If we had the political power that's suggested, these issues would already be resolved, an we wouldn't be arguing with President Obama to get moving on his promises.

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