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
