Tuesday, June 15, 2010

Closing arguments in Prop8 federal trial: what's it all about?

Closing arguments in the Prop8 Federal Trial in San Francisco will be presented tomorrow (Wednesday), with the final decision expected some time this summer.

To re-cap, this is a federal trial that challenges Prop8 on equal protection basis in Federal law. The bad guys had two, almost laughably incompetent witnesses. The good guys had an impressive set of experts and an equally impressive odd couple of lead attorneys: conservative Ted Olson, stalwart of the Bush Administration, and liberal David Boies. (Unexpectedly on the same side here, these two are best known for advocating against each other in Bush v. Gore).

Whatever District Judge Vaughn Walker decides, the case can be (and almost certainly will be) appealed to the Ninth Circuit Court of Appeals and from thence to the Supreme Court of the US (SCOTUS). Walker is a libertarian-Republican, appointed by ReaganBush the First, with a generally conservative record. The bad guys liked him, until they found out that he's also gay. (How Fate loves a jest....!)

It's important to distinguish this from the previous trial which was in the California State Supreme Court. Since the issues there were limited to the STATE constitution, they allowed for no further appeal. To remind you, the SCoCal found regretfully that under California's dysfunctional constitution, a simple majority can take away rights from a minority. This led to the new challenge under the Federal Constitution, which is completely separate from the CA case.

You can see all my previous posts on the prop8 Federal case here.

The Judge has released a list of questions for both plaintiffs (the good guys) and defendents (the bad guys, pro-H8) that they are to address in closing.

The LA Times reports,
Attorneys in the case suspect that Walker has by now produced a draft opinion that touches on issues he has raised in his questions.

Among the questions asked of attorneys for the Proposition 8 opponents is how much importance should be placed on the motivation of voters who approved the marriage ban. ....

He also expressed interest in testimony that suggested women were more flexible in their sexual orientation than men....

Turning to the supporters of Proposition 8, Walker asked them how same-sex marriage would have negative social consequences and to describe how it would drastically change marriage as an institution.

"Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination?" Walker asked both sides. "What evidence in the record shows that a belief based in morality cannot also be discriminatory?".
What are the possible outcomes?

First, Walker finds against Prop8, broadly finds that GLBT people are a protected class federally, and finds that anti-gay marriage laws are all unconstitutional. A sweeping decision that would challenge anti-gay laws nation wide and cause a complete uproar. Outcome: Appeal, and an immediate stay preventing any change in the status quo till that appeal is heard.

Second, Walker finds against Prop8 on narrow grounds, limited to California's unusual circumstance where there are currently two classes of gay people: those legally married in 2008, and all the others who can't marry. Uproar more local. Outcome: Appeal, and an immediate stay preventing any change in the status quo till that appeal is heard.

Last, and least likely, Walker finds in favor of Prop8 and legitimizes the right of a majority to vote on a minority's rights. Irate GLBT take to the streets and uproar continues. Outcome: Appeal. (No change in status quo.)

So, on the ground, nothing will change in the foreseeable future. The wheels of justice grind slow..... Regardless, this is a landmark civil rights case. I for one will be riveted to the liveblogs and twitter feeds, and hoping for justice.

More info from

Update Good overview on the law issues, including "rational basis" by Brian Leubitz here and LGBT-POV here. Read Olson and Boies et al response to the judge's questions.


Erika Baker said...

"nothing will change for the forseeable future"....
Would your marriage be more secure?
And roughly how long would it take for a final and binding Supreme Court ruling?

IT said...

Hi Erika
Good questions.

Beause it is likely that the courts will maintain the status quo until all appeals are exhausted, nothing will change for us. My marriage is "secure" in that the CA supreme court did not reverse it and its existence is not in question in this case. So we remain married in California, and about 6 other states will recognize that.

As far as the federal government is concerned, our does not exist, because of the law DOMA (Defense of Marriage Act) that forbids federal recognition of same sex marriages eve though they are legal in their home state. so we live in an odd sort of limbo where the state treats us as married and the fed treats us as single.

What this case COULD do is challenge the laws in the non-friendly states that explicitly outlaw same sex marriages. This case could chip away at the federal DOMA indirectly, but that would not be its immediate or primary effect.

For us, it's continue as we are. For gay couples longing to marry, it's an agony of waiting.

IT said...

It appears I may be mistaken. The bigots ARE trying to argue to revoke my marriage. See latest post.