By Julia Rosen
For those of you who have not been able to read every single liveblog thread, here’s a few of the greatest hits courtesy of the fine folks at AFER.
This is what they did not want to see on TV:
I just want to get married…it’s as simple as that. I love someone. I want to get married. My state is supposed to protect me. It’s not supposed to discriminate against me.” – Plaintiff Paul Katami
Here they are damaging their own case before it even really starts:
Judge Walker: “I’m asking you to tell me how it would harm opposite-sex marriages.”
Pro-Prop. 8 Atty Charles Cooper: “All right.”
Judge Walker: “All right. Let’s play on the same playing field for once.”
Cooper: “Your Honor, my answer is: I don’t know. I don’t know.” – 10/14/09 pretrial hearing rejecting defendant intervenors’ request for summary judgment
And at the tail-end they are still hurting their own cause with David Blankenhorn, one of their two “expect” witnesses.
Blankenhorn admitted that “Adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children,” and would be “a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.” He also testified that it would result in fewer children growing up in state institutions and instead being raised by loving parents and would in fact reduce the divorce rate; reduce promiscuity; improve the stability of couples’ relationships; increase wealth for families and reduce government costs; and a decline in “anti-gay prejudice” and “anti-gay hate crimes.”
Contrast that to our experts.
ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified that Prop. 8 treats gay men and lesbians as if they are “not seen as equal… not respected by my state or by my country, by my fellow citizens.”
“As I described stigma earlier, I would say that law, and certainly a constitutional part of the law, would be a very strong part of, as I described, the social structures that define stigma, that define access. In a very simple way, you can think of it as a block or gate toward a particular institution, toward attaining a particular goal. So, in that sense, it is very much fitting in the definition of structural stigma,” Meyer testified. “[Prop. 8 imposes stigma] by the fact that it denies them access to the institution of marriage. As I said, people in our society have goals that are cherished by all people. Again, that’s part of social convention, that we all grow up raised to think that there are certain things that we want to achieve in life. And, in this case, this Proposition 8, in fact, says that if you are gay or lesbian, you cannot achieve this particular goal.”
Or this:
LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles, testified that she has “great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are — that you are in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”
I’m a bit of an American history nut and this was one of the most interesting pieces of information from the trial for me.
DR. COTT also testified about the meaning of marriage in the context of slavery. “When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means. They saw the ability to marry legally, to replace the informal unions in which they had formed families and had children, many of them, to replace those informal unions with legal, valid marriage in which the states in which they lived would presumably protect their vows to each other. In fact, one quote that historians have drawn out from the record … it was said by an ex-slave who had also been a Union soldier, and he declared, ‘The marriage covenant is the foundation of all our rights.’”
“And then in corollary with that,” Dr. Cott continued, “there are other ways in which this position of civil rights, of basic citizenship, is a feature of the ability to marry and to choose the partner you want to choose. … It has to do with a black man, Dred Scott, who tried to say, when he was in a non-slave-holding state, that he was a citizen. And in an infamous decision, the Supreme Court denied him that claim. And why this is relevant here is that Justice Taney spent about three paragraphs of that opinion remarking that the fact that Dred Scott as a black man could not marry a white woman — in other words, that there were marriage laws in the state where he was and many other states, that prevented blacks from marrying whites — was a stigma that marked him as less than a full citizen…. he remarked on it because of the extent to which this limitation on Dred’s ability to marry was a piece of evidence that Justice Taney was remarking upon in his opinion to say this shows he
could not be a full citizen.”
From Dr. Gregory Herek:
He also agreed with the following from the APA: “…the American Psychological Association concludes that there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and testified that no other major mental health organizations have endorsed therapies to change sexual orientation, and that aside from being ineffective, they can cause harm.
“It’s important to realize that the underlying assumption of these therapies tends to be that there’s something wrong; that homosexuality is a mental illness; that it’s something that needs to be cured or something that needs to be fixed or repaired. And that, of course, is completely inconsistent with the stance of the American Psychological Association, the American Psychiatric Association, and other professional organizations in this area,” he testified.
Professor Chauncey testified about the decades of discrimination against LGBTs and how the Prop 8 campaign was just more of the same.
Specifically regarding Prop. 8, Dr. Chauncey testified that “the wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.”
After viewing several pro-Prop. 8 television ads and videos, Dr. Chauncey testified that the language and images suggesting the ballot initiative was needed to “protect children” were reminiscent of efforts to “demonize” gay men and lesbians ranging from police raids to efforts to remove gay and lesbian teachers from public schools.
“You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,” Dr. Chauncey testified. “The underlying message here is something about the – the undesirability of homosexuality, that we don’t want our children to become this way.
And yes there was even a George Washington reference during the trial:
DR. COTT challenged statements made by defendant-intervenors’ attorney Charles Cooper during his opening statement that procreation is the “central and … defining purpose of marriage.” She testified that the ability or willingness to procreate has never been a litmus test for marriage.
“There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile,” she testified.
As for death of straight marriage when gays are allowed to tie the knot:
DR. PEPLAU testified that there is no evidence to suggest that marriage equality would harm others.
“It is very hard for me to imagine you would have a happily married couple who would say, ‘Gertrude, we have been married for 30 years, but I think we have to throw in the towel because Adam and Stewart down the block got married,’” Dr. Peplau testified.
Which one do you think did the most to help our case?
January 30, 2010
By Eden James
The American Foundation for Equal Rights, the organization that assembled the legal team challenging Prop 8 in court, has released a summary of the first week of the trial.
If you’ve only been able to catch bits and pieces of the proceedings, this should help you get caught up relatively quickly before the trial begins again on Tuesday morning.
Check it out:
PROP. 8 TRIAL FIRST WEEK ROUNDUP
Ten witnesses, including Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo and five eminent experts, clearly and convincingly demonstrated critical points in the federal trial on the unconstitutionality of Prop. 8 during its opening week:
• Marriage is vitally important in American society;
• By denying gay men and lesbians the right to marry, Proposition 8 causes grievous harm to the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered;
• Proposition 8 perpetrates irreparable, immeasurable and discriminatory harm for no good reason.
DISCRIMINATORY MOTIVATIONS OF PROP. 8
The court also viewed video footage from the deposition of William Tam. Tam is one of the five Official Proponents of Prop. 8, and as such was personally responsible for putting it on the ballot and for intervening in this case to take over the defense of the initiative.
The video footage of his deposition included statements from Tam such as this one, from a pro-Prop. 8 email he wrote: “They lose no time in pushing the gay agenda — after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children.” (more…)
January 17, 2010
By Julia Rosen
Wow, what a day. Paul Hogarth cranked out eight different liveblog posts and still found time to do some legal analysis during the breaks.
Rick Jacobs will be back at the helm tomorrow, but Paul won’t be going far. We are pleased to announce that Paul is going to stick around and do some more longer form analysis. It is part of our efforts to beef up coverage, now that the trial will not be televised. So expect a few posts a day from Paul, along with Rick’s liveblogging and mine and Robert’s blogging.
And with out further ado, here is the daily summary of Paul’s postings. (more…)
January 13, 2010
By Paul Hogarth
The Court is now on lunch break — having concluded the testimony of Professor Chauncey. I had a tough time doing a rough transcript earlier in the morning, injecting my opinions and legal analysis along the way. But I think such commentary is more appropriate during these intermissions — so I can focus more on transcribing what’s being said. Now that we’re on break, here are my thoughts.
Dr. Tam’s video was critical in showing how an irrational fear of gays motivated at least some supporters of Prop 8. Kids growing up with gay parents isn’t going to change whether or not we have gay marriage — so the bigots who want to take away our rights to marry aren’t just against that — they simply don’t want us to exist. I don’t see how we can’t prove that hate was at least A reason.
Meanwhile, the defense tried this morning to prove that Prop 8 was motivated by other reasons. They don’t “dislike” gays — they just believe in the “tradition” of marriage, “protecting” the children, or allowing parents the freedom to choose how they want to raise their kids. Just because there are bigots out there, they said, there was still a rational basis for why Prop 8 passed.
The reason that’s effective is because the federal courts — at least not yet — have not found sexual orientation to be a “suspect class,” so laws that discriminate against them are okay as long as some rational basis can be found to justify it. (If gays are a “suspect class,” then the burden is on the law to prove it was passed for a compelling reason that was narrowly tailored through the least restrictive means.) But Romer v. Evans (1996) showed when the US Supreme Court overruled an anti-gay ballot measure in Colorado, IRRATIONAL BASIS (i.e., bigotry) is not acceptable — even though gays are not a “suspect class.”
I’m not sure, however (and I’ll have to re-read the case) if Romer explicitly said that animus alone could not invalidate an anti-gay law. If so, you also have to prove that there was no other possible justification for passing Prop 8 besides bigotry. Therefore, the plaintiffs also must prove not only that Prop 8 was passed by bigots — but that there simply was no other reason to pass it. The most effective way to do that is to link the other reasons cited back to bigotry. That’s what the plaintiff side did this morning.
One of the most persuasive moments (in my opinion) was when Chauncey said segregationists and those who opposed interracial marriage truly and honestly believed they were upholding “tradition.” This was effective because it means the “tradition of defining marriage” simply comes back to a hostility against gays and lesbians. I hope the plaintiff side elaborates on this point further. We can certainly prove that bigotry motivated Prop 8. But we also should prove that the other reasons being cited — “tradition” — really come back to irrational bigotry in some other form.
Chauncey’s rebuttal to the “gay marriage will be taught in public schools” line that — “do we object to teaching interracial marriage” — also nicely fell into that line. When Prop 8 supporters talk about parents having the right to raise their children, and “protecting” them, it really is based on an irrational fear of homosexuals — that leads back to the bigotry argument.
As for the Judge, he was far less engaged today than he was in prior days — and quite deferential, I would say, about admitting evidence. But it’s clear he was not willing to keep going with the Dr. Tam testimony (viewing it as tangential), and the evidence was already overwhelming. Again, to prevail I believe the plaintiffs will have to link the reasons cited for passing Prop 8 — “tradition” or “protecting children” — is simply a subterfuge for the real beliefs that homosexuality is “wrong” and “sinful.”
UPDATE: Justice Kennedy’s opinion in Romer v. Evans: [The Colorado anti-gay amendment’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests [my emphasis]. Unfortunately, the Supreme Court is likely to interpret this as saying that just because you prove animus factored into Prop 8 does not make it unconstitutional. You also need to prove that there were no other reasons besides animus. In other words, we would need to link the other possible reasons — tradition, protecting children, parental rights — back to an irrational basis.
January 13, 2010
By Paul Hogarth
More of SF Deputy City Attorney Therese Stewart’s redirect examination of Professor Chauncey.
C: In 2004, I had written optimistically that marriage equality was on the way … but since then, with the number of states passing constitutional amendments I am less inclined to believe this.
S: Mr. Thompson talked about religious organizations that supported marriage equality. What were some of the churches against marriage equality?
C: Baptists, Catholic Church — a whole range of religious groups that represent far more people than supportive churches.
S: [Quoting from a Vatican document re: recognition of same-sex unions.] Please read this:
C: [Reading Vatican statement] “There are no grounds to believe homosexual unions are equivalent to God’s plan to marriage and family. Homosexual unions” [more on how homosexuality is sinful and immoral]
S: Please read the Vatican statement re: allowing children (more…)
January 13, 2010
By Paul Hogarth
[UPDATE] 10:26: We’re back from a short intermission — so I’m starting a new thread.
Thompson: Quoting a California legislator (Jack O’Connell) who supports domestic partnerships, but has difficulty supporting gay marriage. “Marriage is too steeped in tradition …” Wasn’t it the opinion of LGBT groups in the 1990’s that supporting civil unions was an “equitable” position?
Chauncey: This was a time when marriage was seen as far too distant a prospect — given the opposition to it. So in this context, they would be grateful to have supported it.chrome://foxytunes-public/content/signatures/signature-button.png
Thompson now wants to show video of people who were beaten up for supporting Prop 8. SF Deputy City Attorney Therese Stewart objects, because it is not relevant.
[Opponents of gay marriage love playing the victim. The irony of this is that during the Prop 8 campaign, “Yes on 8” folks tried to organize boycotts of businesses that gave money to “No on 8.” See: http://www.beyondchron.org/news/index.php?itemid=6222 — Once the Election was over, nobody talks about this anymore. All we hear about is “Yes on 8” people being boycotted and persecuted for their beliefs, when the EXACT SAME THING happened to our side before the election.]
Judge allows Thompson to continue line of questioning on religious groups being “defaced” — but won’t let him show a video. (more…)
January 13, 2010
