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Tag: Judge Walker

Liveblogging Closing Arguments: Part V

By Rick Jacobs

Fresh thread time. More of Judge Walker trying to get Cooper to make a legitimate argument.

Cooper: To come back to the immutability case, the 9th circuit said, “sexual orientation is not immutable.” Against the Supreme Court cases, we know of no case that sexual orientation meets heightened scrutiny. The characteristics of immutability simply do not apply to sexual orientation. Behavioral, attraction and self-identity are the three definitions that the plaintiff’s experts used and depending upon which you use, a different group falls into that, so the definition is not clear. The plaintiffs made clear that sexual orientation does change over time, especially in women. Peplau commented on the “astonishing elasticity” of women, whose sexual orientation changes many times over their lifetimes. Some 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime.

C: Goes to Supreme Court question of immutability. Justice Ginsberg says, “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”

Judge: Does this have to do with national orientation?

C: Yes.

J: Sometimes of the year everyone is Irish. (Laughter). People may choose via an ancestor to have a national origin. These questions of immutability are not key.

C: Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says. Clearly in the Cleveland case in regard to mentally disabled, does the group have the ability to attract the attention of the lawmakers? 20 years ago in “high tech gays?” the court ruled that gays and lesbians can attract the attention of legislators. As Dr. Segura testified, since that time there has been a sea change.

J: Isn’t that the most important factor, the historical context? Women are hardly politically powerless, yet a law protects them, laws that single them out subject to strict scrutiny. African Americans have considerable power and yet a law that singles them out is subject to strict scrutiny. Isn’t the historical context what makes the point?

C: It’s an interesting question. Here’s a group whose political power has changed so dramatically (women). In 1970 and 1973 when the court had before it the political power of the group (women) needed extraordinary protection from a majoritarian electorate so they needed protection. At that time, only 2% of the offices held by them but 50% of the population. That’s not the case with gays and lesbians in California.

J: The DOMA Statute that has been mentioned, Prop. 8, exclusion of gays and lesbians from military for a long period of time, all indicia of discrimination?

[UPDATE 3:00]

J: P8, these other props in other states, the exclusion of gays and lesbians from military service – aren’t those all indicia of a long history of discrimination?

C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination. Thankfully, the situation today in 2010 is not what it was in the past. The fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The question of political powerlessness was very different 20 years ago, but the 9th Circuit nonetheless believed that gays and lesbians could attract the attention of the lawmakers; thus, it follows that it must be true today.

Even though mental disability is an immutable characteristic, the disabled could not qualify for heightened scrutiny because the court found that they had political power (could attract the attention of lawmakers), sure they had to rely on allies to create that political power. If the mentally disabled weren’t politically powerless, I would submit that gays and lesbians are definitely not powerless. I submit that Court’s that have decided against heightened scrutiny have been correct.

Long pause….

j: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?

C: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage – the potential parenting structures, the potential for harm to marriage due to a variety of social phenomena, including same-sex marriage, he’s written books that have been received with respect by recognized experts.

J: Were they peer-reviewed?

C: No.

J: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?

C: Sir, as I stand here right now. I don’t know…don’t remember.

J: Fair enough.

C: I didn’t come here prepared to argue that particularly. May I request a 5 min break?

J: Why don’t we take 10 minutes….back at 3:10.

[UPDATE 3:27] from Rick

(Here’s a bit of commentary and some color from the break while Arisha does the hard work.)

Bruce Cohen, the Academy Award-winning producer and key figure behind this case, said to me,” Can you believe that they are pointing to the one court ruling banning gays and lesbians from adopting (Florida) as their standard?” As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas. Yet Mr. Cooper is saying Judge Walker should refer to that ruling for guidance here.

Kris Perry introduced me to her two wonderful, poised teenage sons. I also had the honor of meeting Kris’s mother. Of course ___ Steer was right there, wondering with all of us what Mr. Cooper is really filibustering about. Can you imagine being the subject of this case and having your kids and your mom sitting there with you throughout all of this? Imagine these young fellows, who have such wonderful, loving, caring parents, hearing a high-powered, gray-haired lawyer pontificating about how horrid lesbian mothers must be? I really can’t. It’s not removed at that point.

One distinguished lawyer (not on the legal team) said, “The only thing he has is the strict scrutiny test which has never before been applied to marriage equality.” He went on to say, “What he said about Loving is bullshit. The only reason society had to prevent black and white people from marrying was procreation. Society did not want mixed-race kids.” That’s right. Society did not want Barack Obama to be born.

Cooper has surrendered, really, on all of the other issues. He’s trying to say immutability is not assured, but the judge pointed out that that does not really matter here. And even though the judge keeps bringing this back to marriage as a right vs. sexual orientation, he keeps trying to say it’s about sexual orientation because that is his canard.

Short notes: Maggie has her shoes on. Lance Black is watching intently, having not been absent for a second of this. And there to my left is the (oxymoronic) Protect Marriage gang that sued us in January for having a logo that they say is indistinguishable from theirs even though ours has two women with two children instead of a man and a woman. That’s the point of the whole thing. There’s no difference. It’s about the right to love.

[UPDATE 3:33]

C: The US Supreme Court in Crawford vs. Bd. Of Education in 1982 upheld a California constitutional amendment that reduced the remedial tools given to the courts in the school segregation area. In that case the court rejected the contention that once a state chooses to do more than the 14th Amendment requires that the state could not return the “lower” federal standard.

J: What do we make of that in the context of this case? What baring does that have?

C: The California Supreme Court’s interpretation that we believe goes beyond the 14A, was something that the people of the state were empowered to reverse. The people of California are the ultimate appellate tribunal of the California Supreme Court. The Court’s decision was no more final in the state of California than the Appellate decision that upheld Prop 8. It was reviewed by the ultimate, judicial tribunal and the judgment of the Supreme Court in Crawford is on point here.

C: I also want to address whether there is a legit basis for California citizens to be concerned that redefining marriage to include same-sex couples, does not show concern for the potential harm to the institution of marriage or show respect for the role that marriage is supposed to play (procreation, again). Redefining the institution will change the institution. Blakenhorn, our expert, said if you changed the definition of a thing, it’s hard to imagine how it would have no impact on “the thing.” Others have acknowledged that change will result. [He quotes a few “experts” who believe gays marrying will change the institution.] Redefining will divorce the institution of marriage from it’s core procreative purpose. It is not possible to predict with certainty what that change will beget. It seems undeniable that change as profound as this one, would have some consequences. The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove – and their own expert (quoting Cott now) agrees that we can’t predict. Andrew Churling, a sociologist and equal marriage supporter, also states that “predicting the future of marriage is risky business.” He cites as example the fact that no sociologist forecasted the baby boom during the Great Depression; no sociologist predicted the rise of co-habitation.

Let me say 3 words that I haven’t said that often. “I don’t know.” Jokingly, I wish I could have those words back. Because usually whatever your question is, “I damn sure know.” Courtroom laughs.

J: What about Blakenhorn’s testimony about the negative outcomes that will result if gays can marry?

C: Blakenhorn was giving voice to sentiment that the threat of harm to vital social institution is too daunting to run the risks of gratifying what would otherwise favor the advent of same-sex marriage. There are many who went to the polling place with that sentiment – that’s my speculation. There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage. Their hearts are pure – as pure as the plaintiffs – but they still believe that this is profound…could be profound. It could portend some social consequences that would not be positive and that reality

C: No one can know what tomorrow will bring. If there is a legitimate and rational basis to be concerned about that, couldn’t be more rational for people of California to say wait. We want to see what happens in Mass. and here. Perhaps Mr. Olson and his client’s whose sentiments are powerful (he’s speaking very haltingly) will be able to convince their fellow Californians they are right.

J: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”

C: Yes. In looking at what society’s interests are and interests in regulating and caring and about marriage, if there is no basis for drawing a distinction from one to another, the distinction can’t stand. But if there is s distinction, it must stand. It’s been our position from the outset that we do not have to prove that exclusion of gays and lesbians from marriage is a problem; we only have to prove that inclusion of those people would erode marriage.

J: Would you wrap up?

C: Yes. (Pause) The California court (missed which one) goes to the heart of the matter. It is the proper role of the legislature to set priorities and make difficult and imperfect decisions and approaching problems incrementally.” That process is at work in this state and the county. As the court considers this, there is a debate about the morals, the practicalities and the wisdom that really goes to the nature of our culture. The constitution should allow that debate to go forward among the people. Thank you.

J: Thank you Mr, Cooper.

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113 Comments June 16, 2010

Liveblogging Closing Arguments: Part IV

By Rick Jacobs

The last thread was getting a bit long so here is a new one.

Cooper: Only 16 states had a prohibition against inter-racial marriage. They actually made people have illegitimate children. The purpose of marriage is to have legit children. This racial restriction is at war with that purpose.

Judge Walker: Why isn’t the prohibition of marriage by SS couples at war with marriage for children?

C: Again, the 8th circuit recognized that there is a state interest. (He talks in circles) Only opposite sex couples can procreate and therefore they can minimize irresponsible procreation. When procreation between men and women not in binding vows, more frequently, society itself has to cope with that adverse consequences of that kind of irresponsible procreation.

J: But you don’t draw any distinction when opposite sex couples can conceive on their own or when ss couples require intervention, which is increasingly common. State’s interest is the same.

C: Not quite the same, no.

J: What’s the difference? If a child is born from a egg or sperm donor is society’s interest in the child different?

C: Without intrusive inquiry into fertility, society’s interests are also furthered whenever opposite sex couples are married because that strengthens the societal norms in order for this channeling function to be performed. Whenever opposite couples are cohabitating as happens now more than in previous times in history. Now we have social norms to try to channel into marriage. (He makes no, no sense. It’s not just me. He talks in circles because his only point is, as Olson said this morning, “because I said so.)

C: State’s job is to minimize irresponsible procreation. It’s not a good term, but I can’t think of a more serviceable one. Procreation that isn’t bound by social obligations than the marital one is, children raised by one parent or another, but not both. It is not a phenomenon that the court has to concern itself with with ss couples. SS couples cannot have kids by accident.

(The bailiff just made Maggie NOM put her bare feet down. She is so disrespectful)

(I just walked out to send this. Arisha, one of our organizers is teaming up with me so we get it all. A woman who is 8 months pregnant walked out with me. I said, “don’t threaten society.” She said, “that guy would be better off just sitting down and shutting up now.” (more…)

124 Comments June 16, 2010

Prop. 8 Closing Argument: Part 3

By Rick Jacobs

The judge just entered the room. We were told to remain seated.

J: Mr. Cooper, good afternoon.

Cooper: May it please the court. The NY Court of Appeals ruled that until recently it was an accepted truth that marriage could only be between heteros. When Mass had SS marriage, the court noted it was new. Why has marriage been defined the same for so long? The purpose of marriage is to channel potentially procreative relationships into a union with a man and woman so that children would be raised by two hetero parents.

Olson quoted from Maynard case which in next sentence said that the contracts law does not apply to states becasue marriage alone takes more of an institution for the benefit of the community. Uniquely imbued for the public benefit?

J: Do people get married to benefit the community?

C: Your honor…

J: When people get married, they don’t say, “oh boy, i can benefit society.” (Laughter) They say they are marrying to be with their life partner.

C: Maynard says its for social policy and for the interests of the community. Individuals don’t get married to benefit the community, but it’s the result.

J: Why does the state regulate? Why not leave it to private contract?

C: The marital relationship is fundamental to the survival of the race. Without the marital relationship, society would come to an end.

J: Why couldn’t state say marriage is a private contract. We’re not going to set down the rights. We’ll simply say you entered into a contract and we’ll enforce that contract just like any other private contract. What is the purpose of marriage?

C: It could, but why does virtually every state regulate this relationship? It’s crucial to the public interest. The procreative public relationship is a benefit and represents a threat.

J: Why does the state regulate marriage?

C: The marital relationship is fundamental to the existence and survival of the race. Without the marital relationship society would come to an end. 

J: Why couldn’t the state say that marriage is entirely a contract right? Why is it that marriage has such a large public role? What is the purpose?

C: The state regulates because this relationship is crucial to the public interest because of procreation. To whatever extent, children are born into the world without this stable (hetero) marital union, a host of very negative social implications and consequences arise. “Marriage is a license to cohabitate and produce legitimate children.”

Walker interrupts: But the state does not insist that spouses procreate?

The defense essentially admitted that procreation isn’t a necessary requirement for marriage.

J: Then the state must have some interest separate from procreation?

The defense attorney struggles to respond to this question and attempts to make a distinction between procreative relationships and all potential-procreative relationships. He goes on to argue that the simple fact that all societies and all states haven’t required procreation in no way eliminates the procreative purpose of marriage, nor does it detract from it.

He continues by posing a hypothetical question to Judge Walker: How would a society that wanted to insist on procreation, how would it go about administering such a requirement? He answers his question by saying that first there would have to be premarital fertility testing and perhaps a pledge to procreate down the line. (He was trying to make the point that such testing would be invasive – I think – but didn’t quite get there before Judge Walker continued to question him).

Judge Walker responded essentially, that if procreation was a requirement for marriage then the fertility testing/pledge that he outlined would seem appropriate.

[UPDATE] 1:23

It is Orwellian. If that is the premise for marriage, is that a proper one?

C: Is that irrational unless it insists on procreation? Is it enough that the state and society attempts to insure and increase the likelihood that naturally procreative sexual relationships will take place in stable family environments for the sake of raising children so that society itself does not have to steep in so that society does not run the risk of all of the social consequences of unwed mothers and the like.

J: If the purpose of marriage laws is for sexual relationships, there is a far more narrow way to regulate than the marriage laws.

C: Your honor, that is true, but there is a far more regulative view.

J: Parental responsibilities do not have to do with how child came into world. They extend to adopted children, in-laws, grandparents who are not in any way involved in the creation of the human being.

C: With respect to adoptive parents, it does create rights and responsibilities in their adoptive parents that are the natural results of procreation?

[UPDATE] 1:33

C: The state still has an interest in that child. The state must take responsibility for the upbringing of that child. Whether it’s extraordinary measures and the state has to take full responsibility or when the child has the bulk of the situation where this arises, the mother is still alive, but the mother and father does not have the same ability as a marital unit. (I have no clue what he’s talking about, honestly.)

C: You put your finger on the key. The state still has an interest in that child.

J: What does the evidence in this trial say?

C: What the evidence shows is that eminent sociologists…

J: What was the witness, what was the testimony? (Makes

C: The relationship of parent and child is that by which infant is protected. Justice Stevens says in his Bowers dissent that marriage is a license to …raise children.

J: Blackstone and Davis did not testify. What is the evidence in this case?

C: Your honor, Mr. Blankenhorn brought this evidence before you. You don’t have to have evidence for this. The cases bring it forth in one court after another.

J: You don’t have to have evidence? (Incredulously)

C: It’s in the cases. CA Supreme Court says institution of marriage serves the public interest because it channels biological drives for care of children. That’s the purpose of marriage in this state. Less than two years ago, the CA appeals court, said that civil society has a deep and abiding interest in child rearing. Government has an interest in marriage because it has an interest in children (refers to DOMA). Most courts have upheld the traditional definition of marriage because upholding the provision of the people of Nebraska (8th Circuit in 2006) because state’s interest is in conferring marriage on opposite sex couples who can have children by accident whereas ss couples cannot.

[UPDATE 1:38]

C: About 2/3 of judges have upheld this. The plaintiffs say THERE IS NO WAY WHY ANYONE would uphold the traditional definition of marriage except by some dark animus or bigotry. That is just not a slur on 7 mm Californians who supported Prop. 8 and a slur on 70 of 80 (?) judges who have ruled to preserve the traditional definition of marriage. Denies the will of state legislature after state legislature and judges.

J: If you had 7 mm people, why did you only have one witness and it’s fair to say that his testimony was unequivocal.

C: Not on this one. His testimony was unnecessary.

J: This goes back to your “you don’t need any evidence.”

C: Go to your chambers and look at any book and you will find unequivocal evidence that procration is the reason for marriage unless it was written by one for their experts or in the last 30 yesars. You will not find anywhere in the pages of history any suggestion that the traditional definition of marriage, ubiquitous in history had anything to do with homosexuality. People’s values with respect to homosexual conduct was never in the conversation until the movement for ss marrige?

J: What should I conclude from that?

C: Stammers, that at least a important mission of marriage is to channel the procreation of men and women into stable family units through marriage so that the children—to improve the likelihood that children will be raised that way.

J; What has changed in the last 30 years?

C: The changes haven’t.

J: But you pointed out that there is a body of opinion, point of view, that now views marriage as an option for homos. That has dev in last thirty years. Why has that changed?

[UPDATE 1:43]

C: It has become a desire of homosexuals to marry. (Maggie of NOM is sitting barefoot in the court).

J: Doesn’t that show a change in the minds of many on marriage?

C: Yes.

J: Doesn’t that affect the role of the state in the regulation of the institution of marriage?

C: Yes, it is being reexamined. Given the political process, this issue goes more to the morals and this issues is being debated in the political process. Goes to Maynard case. Leg process must grapple. Real issue for you is has something happened with respect to legit purposes of marriage to make the historic consistent and ubiquitous procreative reasons for marriage no longer constitutional?

[NOTE] This thread was getting a little long, so we switched over to a new one.

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178 Comments June 16, 2010

Liveblogging Closing Arguments: Part II

By Rick Jacobs

Time for a fresh thread…

Olson: Plays testimony of Zarillo, Katami Perry.

Perry: If Prop8 undone and kids growing up in Bakersfield like me could know that their life could be whole, would change the entire arc of their lives.

Sandra Steer: tell us how marriage would change your life )O)

Steer: Would feel more secure, more accepted, more pride, less protective of my kids or worry about kids or feel any shame or sense of not belonging. ON a different level, as a parent you are always thinking about that other generation, the world and society that you are in, what you are doing for them. I want that. I want our kids ot have a better life. I do think about that generation, possibility of having grandchildren. It’s okay. They can be protected by their government. That’s what I hope the outcome of this case is in long run. Having legal protections is everything as someone from pocket of conservative part of country. That’s what I hope for. We’re big strong women. We would benefit greatly, but others after us will benefit in a more life changing way

O: (After Kott testimony) There is nothing like marriage except marriage As Dr. Peplau testified, Married couples live longer, are more stable and better off. Dr. Ilan Mayer says DP is stigma. Dr. Meyer now being played on stigma.

(Meyer testimony about stigma damaging gay people because feel bad about rejection, but that it’s valued by constitution to reject people.

O: I was struck by that word that Sandy steer just wanted her children to feel oka, okay to be gay. Proponents in guide told every citizen that we must protect our folks from seeing that gay marriage okay. Meyer shows that stigma with gay and rejects ind. Experts testified that not only bad to reject marriage, but acceptance would strengthen marriage. Even Mr. Blankenhorn, the proponent’s principle witness, agreed.

(Blankenhorn testimony)

Four perspectives about marriage

Proponents argue all about procreation and deinstitutionalizing. No credible evidence.

On the other stands the combined weight of fourteenth supreme court decisions about marriage. And testimony of plaintiffs and combined expertise of witnesses. Plaintiffs just want what everyone else wants. Plaintiffs in same position as Mildred Jeeter and Richard Loving in 1967 who did not want to change marriage. Just wanted to marry person of different race whom they love. That’s all plaintiffs want, right to marry just people of same sex.

Supreme Court of US said conduct of marriage is protected institution right. Prop 8 takes away right to marry a fundamental right.

J: Is there a yes or no?

I believe this case could be decided by whatever Mr. Cooper says are leg facts, but tehse people are being singled out based only on their sexual orientation.

[UPDATE 12:15

O: If I read past decisions when Supreme Court struck down state’s decision to discriminate against Chinese America here in SF, court is trying to determine if it is over inclusive or under. This trial will aid the record. Will aid in the understanding of the American people of what the rights are at stake I did not think we needed the trial you wanted, but I think it was an enormously enriching experience.

J: Supreme Court decide in 1972 Baker not right to weigh in?

O; Much has happened. Romer case. Lawrence v. Tex. Changes in ballot props. CA adopted different than Mich or Minn. This case is very different Supreme Court rejected opportunity to take miscegenation case in 1955, but then took Loving. Turner v. Saply, fundamental right of prisoners…

J: What date?

O: Have close by…

J: One of colleagues will get it.

O: 1987. Talked about fact court had decided not to take that case. Facts were different. We have learned so much. We have learned so much since that case. Also learned a lot from Supreme Court in Lawrence v. Texas. Opinion quotes Justice Stevens’ dissenting Bowers v. Complete change of video.

J: Not change by Justice O’Connor

O: No Supreme Court decided to reject a class discrimination on homosexuality.

J: How important was that decision that Romer took away rights as opposed to blanket prohibition of such enactments in the first case?

O: We have had cases like Romer, going back to 1964, where the citizens of California decided to rewrite its constitution to repeal fair housing via constitution. Went to US supreme court. Court said “we can discern that motives taking away rights of individuals based on race. :” Then comes Romer. Voters again did something to change civil rights. Inds protected by state laws from discrimination on basis of sexual orientation. Prop. 8 took away rights. Only redress is to amend constitution. Plaintiffs can only in this case go to voters. In each case, rights are taken away.

J: Let’s see if I can get an answer to this one? Would be different if CA never had marriage?

O: Different, but still problem.

J: Facts here are stronger because period of time during which marriage legal.

O: Yes. Political scientists said that rights are abrogated by initiatives.

O: CA Supreme Court did not invent right to marry; It was in constitution. That has happened again and again. Courts have said that constitution contains rights. Can say the same thing about Texas where Supreme Court said you can’t set up separate law school for AAs. Same as Loving. Same as Plessy. Would be same as litigating in next door state. Citizens of xyz state are selecting out people and putting people with fundamental right to marry and putting in separate category.

[UPDATE 12:21]

Persons in a homosexual relationship may seek autonomy in their relationships as other people. If court had instead said we’ll take away your right to drive on the highway for doing those things, same as marriage. Because you engage in something that is protected by our constitution we’;re going to take away another right in constitution, can’t be constitutional.

J: Should review here be different in due process and equal protection?

O: No. Both strict scrutiny. Supreme Court provides right to engage in marriage. Fundamental right of marriage. Not false right. Can’t be taken away unless state has compelling reason to do so and then must be done with surgical precision. Every one of standards of suspect class here: minority; immutable characteristic (plaintiffs, experts, ninth circuit said); been discriminated against; some debate abgout having political power. There have been improvements. Legislatures have enacted protections against discrimination against women. Court says that proves that there needs to be protection

Prof. Segura form Stanford says weigh all of these things. Indeed these inds are lacking in pol power to get their rights. No further than Romer case: we do not make in this country classification of our citizens. The Supreme Court agreed. You have on basis of discrimination due to sexual orientation. The individuals can choose anyone they want to marry, but state has decided has to be of a certain sex. Their choice foreclosed due to SO.

O: Your Honor said not about SS marriage, about right. Government imposed stigma placed in constitution of CA? What could be stronger signal that it’s okay to discriminate?

J: If 8 is unconstitional, where does that leave DPs?

O: Right where it was. People can engage in partnerships. Maybe some poepel wont’ want to get married because they may not think it’s as wonderful as we do (laughetr). As Dr. Meyer said, no one aspires as child to grow up to be domestic partnership. Do grow up wanting to get married. Supreme Court said in Zablocky right to marry is fundamental right of all individuals. Whether strict scrutiny or heightened scrutiny or rational basis, on all bases, whatever the objective of what the proponents wanted to accomplish for CA not being accomplished because it keeps changing. I would submit that “we’ve always done it that way” is corollary to “because we said so.” Can’t have discrimination against marriage for race because we’ve always done it that way. Constitutional right ot marry is fundamental. Constitutional right to be in relationship with person of same sex is fundamental. Does no good for state to stop people from getting married.

Heteros will not stop having children, getting married because their neighbors may ss marry. There was some evidence they tried to submit about Netherlands, but that disappeared before our eyes. Dr. Kott or Meyer said that four years before and after in Mass showed no change. Argument that marriage declines because of this wrong. 1970-1985 rise in divorce rate had nothing to do with ss marriage . It was due to hetero marriage.

[UPDATE] 12:34

O: Supreme Court rules that taking away right to marry (in case of Chinese) equivalent to slavery. Same here with ss marriage. How can it be wrong under equal protection clause for ss? Principle has been extended from race to nationality to marriage to Romer case for SO.

To wrap up, Prop.l 8 discriminates on basis of sex same way as Loving on race. They could marry whomever they want provided it was of the right race. Same here. Can marry whomever you want provided it’s of the right sex.

J: Can’t voters rely on everyday common experiences as NY Court held in Macon decision even if it does not stand up to scientific scrutiny?

O: Depends on decision. As Mr. Blankenhorn said we’d be closer to ideal if everyone could marry. Yes, citizens can use their common sense, but what was it in this case? I don’t believe it’s because state must protect procreation among heteros. That can’t be it because there is no evidence that any one person won’t marry because “they” can marry. No evidence that through intimate relationships, God forbid, procreation will decrease. There is no reason here to say ss marriage not okay because it means gay people are not okay. We’ve go to inquire to see if enactment of 8 advances the legitimate reason. We don’t know what that reason is. It can’t be post hoc.

J: Do I have to find that it is discriminatory on the part of the voters, private morality?:

O: yes.

J: I think discrimination is constitutional. Has to be unlawful discrimination.

O: Nice people voted for 8 and not nice people voted for 8. WE heard during the trial some awful stuff. Voters voted for 8 because people are uncomfortable with gay people The people did not see and too bad they could not see what psychiatrists said that these are not people engaged in bad conduct. Same as Loving case. People honestly felt wrong to mix the races. But were permitted under constitution to think that, but not permitted to put that into law.

They want to raise their children in the same way their neighbors do. We are imposing great damage on them. WE say they cannot have the happiness, privacy and intimacy that those who can marry have. We have demonstrated that this causes irreparable harm. One of the language on one of supreme court decision is that intimacy is constitutional right. We improved institution of marriage when races could intermarry WE improved when women had equal rights in marriage. We will improve this institution of marriage according to Mr. Blankenhorm when we allow ss marriage. IT will not hurt CA, it will better CA. It is unconstitutional because it stigmatizes classes.

Terry Stewart: Evidence of cost to government are symptomatic of harm that Prop. 8 visits on segment of society. Harms are also visited on society as a whole because society as a whole pays for costs of harm. Case of Philer v. Doe in which court struck down Texas statute that prevented undocumented children from attending school. “Must take into account cost to nation and stigma to children as illiterates for rest of life. Toll on childrens’ well being. Also considered social science data on inculcating fundamental values for society as whole.

[UPDATE] 12:40

TS (conts): Romer teaches us that laws that cannot be explained or understood by any rational thinking cannot be supported. Permanent v. transitory.

J: Evidence in record that city or county of SF would suffer unique, particularized injury for entire state.

TS: For SF particularly, SF is place where people of all SO come for tourist reasons and to enter into marriage. City loses revenue if can’t have ss marriage. That harm is not transitory. Witnesses Badget testified won’t be at spiked level.

J: Because it’s a marriage destination?

TS: City of love (laughter).

[UPDATE 12:43]

TS: Turn to more serious harms. Costs to public health system of stigma. My colleague TO showed Meyer testimony that showed that LG unlike other minorities suffer harm and prejudice at hand of own family. Can’t aspire to marriage, so suicide rates higher among gay and lesbian youth. Testimony about costs that SF undertakes to try to address those systemic harms. Most complelling was Ryan Kendall about harm to him and conversion therapy. Testified when parents found out gay, were horrified. Told him so. Said they wished they had aborted him. Would rather have had child with disability than gay child. Forced him to try to convert.

J: HE testified that he did not try to convert.

TS: He did. He said he could not convert any more than he could change his Latino heritage.

J: If this goes against plaintffs, would SF have standing to appeal?

TS: I never thought we’d have to think of that because plaintiffs would appeal.

J: What if they don’t? Do you have standing from particular harm?

TS: Yes, just as Boulder did.

TS: Testimony that SF spent $350 million on mental health. Kendall testified that abused, so went to Denver juvenile system and became ward of state. Relied on public health system for emergency med care because was 16 or 17 and did not have resources. Thought he’d kill himself without help. Went o school counseling paid for by govt. he did not have money for himself.

TS: Higher costs of law enforcement because of stigma. Mayor Sanders said that when people feel stigma, people are empowered to commit hate crimes.

J: Isn’t problem with that argument that even if Supreme Court strikes down, motives for crimes will persist. They exist because of motives law can’t address.

TS: I’m not so sure. As Sanders said, when you have laws that approve of stigma, have more hate crimes. We saw that hate crimes in CA 2008 highest since 1985. Bullying based on SO occurs year in and year out. Schools lose revenue because of bullying. Approximately 50,000 absences a year attributable. State loses on attendance. Society loses because we have less productive people.

TS: I have little time left. The city is acutely aware that when Chauncy talked about stigma, city of SF also part of that. We once did that with our police. SF wants nothing more than to treat all citizens equally. Prop 8 extends stigma. Evidence at trial shows how hurtful and invidious to send that message. Join in plaintiff’s case to strike it down.

J: Very well. Thank you Ms. Stewart.

[UPDATE 12:49]

Gov waives right to closing argument.

J: Very well, glad you are here! (laughter)

AG: Wave as well.

J: I have questions. Asks Alameda County registrar if you ask for gender with marriage licenses.

Reg: I believe so.

J: We checked SF, Orange and Imperial Counties this morning. SF box for groom, box for bride labeled opitional. OC bullet point for groom, bride and one labeled none. (laughter)

J: In OC if you fill out say groom an then punch next, can put in groom again on line. Does not give error message. What do I make of this? I suppose I could take judicial notice, but maybe not?

Reg: It does not mean registrar will actually perform or recognize the marriage. It may be a way of sorting out applications for marriage that are not currently legal in CA from those that are legal.

J: By that you mean what?

Reg; Alameda County forced to deny marriage to SS applicants, including plaintiffs, after Prop. 8 passed.

J: How was that determined?

Reg: I believe that they are state prescribed. Do they look similar?

J: No. (laughter). They look quite different.

Reg: I know that in one case ss people came in to ask for license. My clerk asked me what to do and we could see they were sss and I said could not marry.

J: You did not issue license?

Reg: Yes. We are sworn to uphold laws of constitutions of US and CA.

J: So determination is simply made on spot?

Reg: I don’t see much alternative. Would we ask for medical certification? IF there is deception, provision in law.

J: If they lie and one says groom and one bride?

Reg: Two possible situations in which clerk would not look to them as different sex, might have discussion. Don’t know if take at word because marriage would be null. Based on misrepresentation.

A I correct in understanding state law, only opposite sex couples can become dp if over 62. What do you do to enforce?

Reg: I imagine it would be like a bar, where you’d ask for ID.

J: We’ve come to lunchtime. Mr. Cooper you are up at 1:00PM. Mr. Cooper, I look forward to seeing you at that time

[NOTE] New thread is up for the afternoon session.

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28 Comments June 16, 2010

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]

33 Comments June 8, 2010

Our letter to Judge Walker on televising closing arguments

By Julia Rosen

Today, we sent a Courage Campaign Institute letter to Judge Vaughn Walker urging him to approve the Media Coalition’s request that they be allowed to televise the closing arguments of Perry v. Schwarzenegger.

There was some confusion earlier this week over this issue, when the AP jumped the gun and said Walker had decided on the issue. However, the only thing that changed was that a notice was posted to the court’s website that trial would not be broadcast outside of the courtroom. We weren’t about to give up so we penned the letter. The letter includes the following:

As we wrote in January to support the request to televise the trial, openness and transparency are necessary to the proper functioning of our courts—particularly in this case because of its implications for federal law, state laws and the lives of tens of millions of Americans. This has taken on an increased importance in light of efforts by the defense in Perry v. Schwarzenegger to strike already admitted evidence from the trial record.

We believe that Americans have the right to know what is being said and argued in their courts, and allowing cameras in the courtroom to broadcast the closing arguments is the best, most efficient way to provide this level of transparency.

As this court and Supreme Court Justice Stephen Breyer recognized, 138,542 public comments were submitted in favor of televising the Prop 8 trial, and only 32 were submitted against televising the trial. The public has already demonstrated a clear desire for the kind of access to this trial that television cameras can best provide.

I’d be lying if I said I thought it was a slam dunk that the trial will be televised, but we will keep pushing for as much transparency, access and attention on this trial as possible.

[scribd id=32078230 key=key-54hydwrop93j2dr2yg5 mode=list]

66 Comments May 27, 2010

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