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“Home Court Advantage” – Can Gays Be a Suspect Class?

By Paul Hogarth

So much of the law hinges on which side has the burden of proof.  The team with “home court advantage” doesn’t have to prove anything — and right now, unfortunately, it’s the Prop 8 side.  Because federal courts haven’t recognized gays as a “suspect class,” our side’s task is to affirmatively prove there was no rational basis for Prop 8 — that all their “reasons” are just bigotry by another name.  Any reason the opposition cites that is not “irrational” can disprove our case.  Moreover, the Court can even dream up a rational basis – like they did in New York (“straights might accidentally have kids, so there’s more of a reason to let them marry.”)

But if somehow this case leads to gays being a “suspect class,” the tables are turned.  The Prop 8 side would then have to prove there was a compelling public interest — narrowly tailored through the least restrictive means.  If we then poke holes in the interest cited, we win.  I’ve written a lot about this in the past week — but haven’t explored in depth: how do we make gays a suspect class, and what are the odds that a federal court would take the leap that it hasn’t yet done that would legitimize sexual orientation?

To date, only three State Supreme Courts have recognized gays as a “suspect class” — California, Iowa and Connecticut — and not co-incidentally, they all ruled in favor of gay marriage.  Massachusetts also ruled for gay marriage, but what’s interesting about that case is they never said gays are a “suspect class.”  The Court said we don’t even need to go there — because there is no possible rational basis to deny gays to marry.  Of course, all these cases were about an individual state’s constitution — not the federal.

Colorado’s Supreme Court — in Evans v. Romer (1994) — said gays are a suspect class under the federal Constitution, and repealed Colorado’s Amendment 2.  The decision to throw out Amendment 2 was affirmed in Romer v. Evans (1996), but the U.S. Supreme Court said they were doing so “on a rationale different from that adopted by the State Supreme Court.”  Justice Kennedy went on to argue Amendment 2 doesn’t even pass the lenient rational basis test.  That could mean one of two things: either he meant gays are not a suspect class, or like Massachusetts he was saying “we don’t even have to go there.”  A footnote in Romer does explicitly say that the Court “evidently agrees” gays are not a suspect class, but that was part of Scalia’s dissent – so it is not binding precedent.

In other words, the feds have not found gays to be a “suspect class” — but arguably they never 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 analysis:

(1) Are gays a “discrete and insular” (i.e., identifiable) minority?  Nobody’s really arguing this point.

(2) Do gays have a history of discrimination?  Again, we find this truth to be self-evident.

(3) Are gays politically powerless so as to be in need of assistance?  That’s why the Prop 8 side — when they cross-examined Yale historian George Chauncey — kept pointing out how gays have become more politically powerful in recent years, that Nancy Pelosi is a “strong ally” and that “Brokeback Mountain” and “Will & Grace” are popular.  On the marriage issue, however, a counterpoint — which I wish our side had made – is that 31 states have passed anti-gay amendments, along with DOMA on the federal level.  At least on the issue of marriage (which the federal courts have found to be a “fundamental right”), gays are politically vulnerable.

(4) Is being gay an immutable trait?  “Immutable” means the identifiable trait cannot be changed – like race.  One thing I found interesting about Dr. Tam’s video testimony was when he was asked about civil rights: “I believe civil rights to be about skin color — something you can’t change [my emphasis]. Homophobia is truly on trial here, because the question is whether the Court believes that gays are just “born that way” or they can “be converted.”  Alternately, however, the courts have recognized religion to be a “suspect class” – even though people can change their religion.  But then the question is whether it’s a trait so key to a person’s identity that it would be wrong to make them change.  Not if gays could change — but whether gays should change.

Nobody really expects this Supreme Court to go so far as to call gays a “suspect class.”  But the fact no court (as far as I can tell) has found them not to be a “suspect class” keeps me hopeful.  And with the testimony our side has brought in — from the history of discrimination to the plaintiffs’ very personal stories — there is plenty of ammunition in this case to argue that point on appeal.

85 Comments January 16, 2010

Prop 8 Monkey Trial: Will Court Accept Evolution of Science?

By Paul Hogarth

Rick described today’s cross-examination of psychologist Michael Lamb as a replay of the “Monkey Trial” — a cultural battle where two world views duke it out in the courtroom.  But what I find interesting is how the defense has cherry-picked studies of the “need” for kids to have a mother and father — and Dr. Lamb’s responses that those studies are old, and research results over time change.  It reminded me of the following passage from Brown v. Board of Education (1954):

“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [that school segregation has a detrimental effect on black children] is amply supported by modern authority.  Any language in Plessy v. Ferguson contrary to this finding is rejected.” [You can read the full case here.]

That passage was the crux of the legal case in Brown — that just because the Court may have come up with one conclusion in 1896 (because of what was “science” at the time) does not mean that scientists don’t make mistakes.  Over time, additional research can disprove what were once accepted theories.  The great thing about scientists is that they’re constantly second-guessing prior assumption, doing more research to see if old assumptions are correct.  What’s bad about Judges is that they have to rely on what’s already been said — and a lawyer wins his case by convincing the Court what they are doing is consistent with past precedent.

Brown was a unanimous decision, but it was a very different Supreme Court — and I worry about whether at least five Justices in this current Court will have the guts that the Warren Court had at the time.  Do the right thing, because science can change.

Fortunately, Brown was not the last time the Court went out on a limb to say “we’re going to reject this precedent, because what was considered acceptable at the time.”  More recently, the Court said: “[The Founding Fathers] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

That was Lawrence v. Texas, the 2003 case that repealed anti-sodomy laws. And the author of that decision, Anthony Kennedy, is going to be the swing vote if (or when) the Prop 8 case comes to the Supreme Court.  We’re likely to have four votes against us (Thomas, Scalia, Roberts and Alito), so we will need Kennedy’s vote to win.  Fortunately, he will agree with the above-passage in Brown and remember what he wrote in Lawrence to agree with Dr. Lamb — science changes, and the Court must recognize that.

31 Comments January 15, 2010

This Afternoon Testimony: Homophobia on Trial

By Paul Hogarth

Rick did a great job live-blogging Dr. Ilan Meyer’s testimony this afternoon on what was clearly heavy emotional stuff to digest.  Again, there was not much “law” in here per se — but it does really get to the heart of this case: homophobia is on trial.  By bringing in an expert to argue that LGBT people suffer a psychological stigma that affects even trivial parts of their lives, the plaintiffs showed that merely giving legal benefits to same-sex couples in a “parallel institution” like civil unions is not sufficient.

It reminded me of the plaintiff’s case in Brown v. Board of Education (1954).  The problem wasn’t just that black children were being sent to inferior schools with less resources — it was the mere separation that created the stigma of inferiority.  In fact, the NAACP in Brown chose Topeka, Kansas because the black segregated schools there were comparatively better than in other places.  California is like Topeka, in the sense that gays comparatively have it “better” here than most states because our domestic partnership law is one of the most comprehensive in the country.

So how would Dr. Meyer’s testimony help — on a legal theory — to overturn Prop 8?  Well, he argued that the mere passage of Prop 8 — taking away the rights of same-sex couples to marry — was a manifestation of the lifelong stigma that LGBT people go through in everyday lives.  The plaintiffs have to prove there is no way to separate Prop 8’s purpose from animus — and what was useful about Dr. Meyer is that he said Prop 8 itself (as opposed to its supporters’ motivations) is the irrational basis.

It’s good to go after the motivations of Prop 8 supporters (see Brian’s excellent post on Dr. Tam), but what I’m worried is the Court may discount that as a few right-wing nutjob who happen to support Prop 8.  Again, it’s not just enough that bigotry was a motivating factor behind Prop 8 — we need to prove that all other factors link to bigotry, that the mere act of it was animus.

Like Brown, this case is going to rely heavily on scientific data and psychology — as opposed to legal theories and precedents that normally guide these cases.  It makes it an unusual case that could be groundbreaking like Brown, but the risk is that it also could be rejected if the Court doesn’t believe the science.  That’s why the defense cross-examination didn’t really push legal theories like they did yesterday — e.g., asking Dr. Peplau if gay people don’t “accidentally have kids.”  What they sought to do today with Dr. Meyer was to impeach his credibility by questioning the whole stigma that gay people go through.  

Homophobia itself is on trial here, which illustrates how much is really at stake here.

10 Comments January 14, 2010

Brief Thoughts on the Morning’s Testimony

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.

8 Comments January 14, 2010

Day 3 Live-Blogging Wrap-Up

By Paul Hogarth

It’s 4:09 p.m., and the Court has adjourned for the day.  What did we learn this afternoon?  That when faced with overwhelming evidence on the value of marriage, the stability that married couples bring, that same-sex couples are just as capable of loving each other — that the opposition will sink to start scapegoating gay men, bringing out all the worst stereotypes that we’re promiscuous and spread diseases. It doesn’t matter that they cherry-pick studies that are 25 years old, when practically no one was talking about domestic partnerships — let alone gay marriage.  If there was more proof that the motivation behind Prop 8 is animus, the defense proved that once again during their cross-examination.

From a legal standpoint, I found the fact that the defense brought up the fact that gay couples cannot “accidentally” have children is very instructive.  As I mentioned briefly in a prior post, the high Court in New York — unlike California, Connecticut or Iowa — actually upheld the state law that said marriage was between a “man and a woman.”  Because since sexual orientation has not been recognized as a “suspect class” (outside of those 3 states), laws that discriminate against gays and lesbians need only have a “rational basis” to be upheld.  And it need not be the reason why the law was enacted — any rational basis that the Court can literally dream up will do.

In New York, the Court said that because straight people might “accidentally” produce children out of wedlock, that the state had an interest in letting them get married.  Whereas gay people can’t accidentally have children out of wedlock, so there’s “less of a need” to expand marriage rights.  So although that question elicited laughter, it’s clearly the legal angle they’re going for.

Again, it proves how hard it is to repeal a law on the “rational basis” test — because the plaintiffs’ burden is to prove there is no other conceivable reason to uphold Prop 8 besides sheer animus, hatred of homosexuals.  In other words, any other reason that may be justified for Prop 8 — like “tradition,” the “rights of parents” and “protecting children” — need to be linked directly back to animus.  The burden on the plaintiff will be to argue that the “out-of-wedlock” argument is irrational.

Finally, one thing I found very interesting was how much the defense relied on circular reasoning.  Not that I wasn’t surprised — it’s the only thing they have.  One of my FAVORITE moments of Dr. Peplau’s cross-examination was her answer to the question: “do you agree one of the purposes of marriage was to avoid having children born in wedlock.”  Her answer: “Well, by definition — the term ‘wedlock’ means ‘out of marriage.'”  Similarly, gay marriage opponents always argue in Court that gay marriage should not be legal because marriage has always been a “man and woman.”  Of course, it’s been that because they’ve never allowed us to get married.

It was a pleasure doing this today.  Stay tuned for tomorrow, when Rick Jacobs will be back …

146 Comments January 13, 2010

Liveblogging Day 3: Part VIII – Peplau Cross Examination

By Paul Hogarth

[UPDATE] 2:46 Nicole Moss (the defense attorney) is now going to cross-examine Dr. Letitia Peplau.

Moss: Your first opinion — that marriage confers physical and psychological benefits.  You’re talking about straight couples, right?

Peplau: Yes.

M: Because you don’t have data on same-sex couples, right?  There has been no proof, right?

P: Research on straight married couples are relevant — and there have been studies on gay couples.

M: And there’s only been one study on gay couples, right?  And there haven’t been any studies done on the physical and psychological benefits of domestic partnerships, right?

P: There has not been a direct comparison between marriage and civil unions — but we can hypothesize the differences.

M: Civil unions — there’s been relatively no research done on their benefits.

P: The reason there haven’t been many on government statistics on registered domestic partners.

M: Some of the benefits of straight couples — You can’t rank or assess which aspect of marriage has caused the observed increase. (more…)

197 Comments January 13, 2010

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