Judge Posner's smackdown

By now you may have heard that the appeals from WI and IN, defending their marriage bans  to the 7th circuit didn't go so well.  And the star of the hearing was Reagan appointee Judge Richard Posner.  The Advocate pulls some of the highlights from the transcript.

Fisher: The issue here is to deal with what may be a fleeting moment of passion that leads to a child that nobody contemplated…

Judge Posner: Do you criminalize fornication?

No, no longer.

Would you like to? 

No, it's not at issue here.

It sounds like a way of dealing with this unintended child problem. 

It's one thing to criminalize—

You don't seem to like adoption as a way of dealing with it. 

That is not true. …

So why do you prefer heterosexual adoption to homosexual adoption? 

We don't.

Of course you do. You give all kinds of benefits to the heterosexual adoptive parents. ...
The benefits that you're talking about are not triggered based on sexual orientation, they're based on marital status.

Come on now, you're going in circles. The question is, why do you want the children who are adopted by same sex couples … to be worse off? … 

Judge Hamilton got in some zingers too

Judge Hamilton: Both you and Indiana have argued that what you really want to do is promote child births in marriage, right?

Samuelson: Correct. 

And encourage parents to stick together and raise those children, right?

Correct. 

I assume you're familiar with how that's been working out in practice over the last 25 or 30 years? … The proportion of births to unmarried mothers have increased by 53 percent in Wisconsin. … It's sort of like trying to focus on the mote in someone else's eye while ignoring the beam in one's own. …

Go to the Advocate to read more.  Court watchers think this one goes our way.

Prop8: nothing to see here, move along

In the tangled web of Prop8 (See graphical timeline), the Federal District Court found that it was unconstitutional. The prop8 supporters appealed. However, because the state refuses to defend the law, there was some question as to whether the supporters had the RIGHT to appeal.

The (federal) appeals court sent a question to the (State) Supreme Court, asking if under California law, there was such a right.

The state court today said, yes, the supporters can appeal.

So now the Federal Court will consider whether they have the right to appeal under FEDERAL law.

So nothing changes. Prop8 is still in force.

And the lawyers continue to argue on a perilous course towards the US Supreme Court (SCOTUS), which dominated by unfriendly conservatives. At some level, this case was never about Prop8, but a test case to take a risky strategy to try to change federal law. I'm sure Olson and Boies are happy, because they want to make it to the SCOTUS. But gay Californians still can't marry.

Faith for Equality: Prop8 update

The story so far: In a Federal court challenge to California's Prop8 (the voter initiative which took away the rights of lesbian and gay couples to marry), Judge Vaughn Walker found that this amendment is unconstitutional and motivated by animus. However, this finding was immediately stayed by the 9th Circuit Court of Appeal, which is considering two questions: standing, and the constitutionality issue.

The question of standing asks, do the supporters of Prop8 have a right to defend this case in appeal? The Governor and Attorney General refuse to defend Prop8. Because this falls under California law, the 9th Circuit (federal) court has sent this "certified question" back to the California Court, which moves slowly and will consider it in the fall.

Several groups have filed amicus briefs in this case, and I thought you might be interested in this one, from a large coalition of faith groups, including (among others) California Faith for Equality, the California Council of Churches, and Episcopal Bishops Marc Andrus (CA) and Jon Bruno (LA). Yay, Bishops! The brief takes down the argument that the proponents are somehow protecting religious liberty. It concludes,

Proposition 8's proponents may believe that the federal constitution accords same-sex marriages celebrated in Unitarian Universalist churches and Reform Synagogues less dignity and regard than the mixed-race marriage of Catholics at issue in Perez.*

But they suffer no particularized injury when the fundamental rights of others are sustained, and same sex couples are permitted to marry.

Same-sex marriages celebrated in Unitarian Universalist or other churches, in Reform Synagogues, or indeed, in the county clerk's office before a secular employee, threaten no harm to the religious liberty of those whose churches or synagogues disallow same sex unions.

Nor do Proposition 8's Proponents possess any special Commission to act as representatives of the People, and to override the authority and discretion that California's Constitution has vested in the Governor and Attorney General to represent the people's interest in litigation.

*Perez v. Sharp was the case in California that challenged anti-miscegenation laws in 1946

It is estimated that 18,000 same sex couples married prior to the passage of Prop8 in California, including yours truly. These marriages remain legally valid. Since then, other lesbians and gays are only allowed to enter into Domestic Partnerships, which are supposed to give them all the same rights except for the name. If you want to read more about the Prop8 case, visit my other blog, Gay Married Californian.

Breaking: news on Prop8 appeal

From the Prop8 Trial Tracker

The 9th Circuit Court of Appeals today issued a “ruling” of sorts on the appeal of Judge Vaughn Walker’s ruling that found Prop 8 to be unconstitutional*. The “ruling” was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker’s decision. Here’s the question they want answered:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

....

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government, with its own sovereign power. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes.....

The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

Update: More commentary from lawyers and legal observers:

• Battle of the brains: how the standing question could have been avoided
• Ninth Circuit sends a question....
• Appeals Court punts

Prop8 back in court next week

The appeal will be heard next Monday by three judges of the 9th Circuit Court of Appeal. A good legal roundup from Poliglot:

Among the questions that will need to be answered by the judges are whether the Proposition 8 proponents have standing to bring the appeal; whether Imperial County should have been allowed to intervene in the case and now have standing to appeal the Aug. 4 ruling; whether, if a party does have standing to bring the appeal, Walker was right that Proposition 8 violates the constitutional guarantees of equal protection and due process; and whether, if no party has standing to bring the appeal, there even was standing at the district court level for Walker to have heard the case.

With Reinhardt likely to be looking for a way to affirm the ruling and Smith likely to be looking for a way to overturn it, the complexity of the standing questions could give Hawkins significant sway over the specific outcome that the court might reach to dispose of the case.

Once the three-judge panel hears the case and later rules, any party dissatisfied with the ruling could seek en banc review, which would require all the active Ninth Circuit judges to vote whether en banc consideration will be given. If a majority supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal. Further review by the Ninth Circuit or a request to the Supreme Court to hear the case could follow.

Update: Watch it on C-SPAN.

Amicus brief in Prop8 case signed by two TEC Bishops

In the appeal of the Prop8 federal case, the bad guys submitted their appeal, our side rebutted it, and now the amicus (friends of the court) briefs have been filed. This one comes from CA Faith for Equality. I wish that all the TEC CA Bishops had signed it! Still, thanks to Bps Andrus (Dio California) and Bruno (Dio Los Angeles), who joined many other faith groups in signing this brief.

From the Introduction (my emphases):

Amici... wish to emphasize that principles of religious freedom lying at the heart of our system of ordered liberty also strongly support the right of gay men and lesbian women to marry.

People of faith have come to a variety of conclusions about same-sex marriage. Many churches and clergy, as a matter of doctrine, withhold formal recognition of same-sex unions within their religious liturgy. Others, including the Episcopal Church in California, may permit clergy to bless same-sex relationships without necessarily bringing them within the rite of marriage. Still others, including congregations of the United Church of Christ, Unitarian Universalist Association, and Metropolitan Community Churches, readily include same-sex couples in their rites of marriage....

Before this Court Proposition 8’s Proponents have abandoned any contention that Proposition 8 advances religious-liberty interests. Yet their amici have submitted briefs insisting that same-sex couples’ right to marry somehow threatens Californians’ religious liberty, and that Proposition 8 is a reasonable response. In truth, according same-sex couples the same right to civil marriage that other Californians enjoy poses no real threat to the religious liberty of faith traditions limiting religious rites of marriage to mixed-sex unions. For even if civil marriage is recognized as a fundamental civil right of all people, religious organizations always have been free – and remain free – to frame their own rules restricting who may be joined in a religious rite of marriage.

Some churches, for example, will not permit the divorced to remarry in a religious ceremony. Some clergy decline to officiate interfaith marriages. No one can force them to. But the government ought not mandate that anyone’s civil marriage shall be void for failure to conform to theological doctrines or church rules governing religious marriage rites.

According equal marriage rights for all in our civil law threatens no one’s religious liberty. Allowing same-sex couples the legal right to marry threatens the religious liberty of Catholics, for example, no more than does allowing civilly divorced citizens to remarry in contravention of Catholic doctrine. Same-sex couples’ civil marriages threaten the religious liberty of those who oppose such unions in their churches and synagogues no more than interfaith marriages threaten the religious liberty of those who interpret their scripture and tradition to prohibit such unions.

No one can force clergy of any denomination to solemnize any wedding that conflicts with his or her faith tradition, and no church, synagogue, or other place of worship loses its tax-exempt status for refusing religious rites of marriage to citizens possessing a civil right to marry. Though Proponents’ amici suggest that Proposition 8’s demolition of same-sex couples’ right to marry was designed to protect Californians’ religious liberty, quite the opposite is true. The real threat to religious liberty comes from enforcing as law the religious doctrines of some sects, to outlaw marriages that others both recognize and sanctify. .... Amici respectfully submit that Proposition 8 unlawfully deprives many Californians of a fundamental right merely because of who they are, that it denies them equal protection of the law, and that it does so at the expense of religious freedom.

The complete brief (as well as the other amicus briefs on our side) here.

H/T Susan Russell

You can't make this up department

Susan Russell writes:

Prop 8 Ruling Could Criminalize Christianity, Leaders Warn
And Liars Could Find Their Pants On Fire, Priest Warns

You can't make this stuff up. And even if you could, you wouldn't have to. Because they're doing it for you.

(CNSNews.com) – Religious leaders warn that if an Aug. 6 ruling by a federal judge on same-sex marriage is upheld, it could wind up putting a gag on Christians speaking out about homosexuality – a gag that a top Southern Baptist leader says his denomination will not accept.”

Two words for Mr. Southern Baptist leader: First Amendment. The one that protects freedom of religion. You get to believe whatever the heck you want to. You just don't get to write those beliefs into the Constitution. Got it?

Yes, I know it's over on CNS-News (not to be confused with CBS-News ... I did that once. Big mistake.) But it's exactly the kind of baseless, fear-mongering, manipulative bald faced lies that formed the foundation of the "Protect Our Marriage/Screw Your Marriage" campaign in California.

Here's the bottom line on this one: Good people of deep faith can read the Bible and come to different conclusions about a variety of things -- including what God thinks about blessing same sex couples but NOT including what God thinks about lying through your teeth.

9th Commandment.

Prop8 case: marriages may begin 18Aug.

Gives the bad guys a chance to get a stay from the 9th circuit Appeals Court.

PROP 8 UNCONSTITUTIONAL (updated, with quotes)

Judge Walker's decision find Prop8 unconstitutional on both equal protection and due process grounds. Huge victory for us (the plaintiffs) and loss for them (the proponents/defendants)

Some choice quotes from the decision:

Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.

The judge took apart both witnesses for the ProProp8 side, and also scolded them for withdrawing their other witnesses even after the trial was made secret. He also noted that the other witnesses for the defense basically agreed with the plaintiffs, so it's pretty clear they were withdrawn not over fears of personal safety but because they couldn't make the case.

The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.

The Judge also noted that the Prop-Prop8 campaign really played on fears and animus. As for the voters,

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

The judge also noted the slippery arguments in court were different than those made to the voters:

Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court.

And as for religious freedom,

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

Okay, on to the big issues: Equal protection, Due Process, and whether GLBT people are subject to "strict scrutiny" as an historically disadvantaged class.

Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. ... Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

The judge takes apart the rational basis argument, and then makes this shot:

Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.

As for the endless children argument,

Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. FF 57. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. FF 49.

And as for the motivation:

The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.

And,

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.....Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples....Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

So, it fails on both due process and equal protection, it's not even rational, but if it were, GLBT still deserve strict scrutiny.

CONCLUSION Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that oppositesex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional

Judge Walker hits it out of the park.

What next? Nothing changes: the decision has been stayed, pending motions for appeal. The right wing is exploding over "activist judges" as this Bush-appointed conservative libertarian is clearly a disguised liberal activist.

One chip at a time....

Expert commentary at Poliglot, and Prop8trialTracker. Opinion at the NY Times , LA Times and San Diego Union-Trib.



Reminder: more commentary at Gay Married Californian.

Prop8 trial finally concludes (updated and revised)

Although some parts of the "trial" will not end for those waiting. Still. I have updated this with quotes from the Official Transcript.

Our side presented a complete, nuanced, well-researched and well argued case.

Ted Olson (viaOfficial Transcript)

"We've always done it that way," that "It's a traditional definition of marriage," which is something that "We've always done it that way," is the same -- is the corollary to the "Because I say so." It's not a reason.

You can't have continued discrimination in public schools because you have always done it that way. You can't have continued discrimination between races on the basis of marriage because you have always done it that way. That line of reasoning would have prevented the Loving marriage. It would have justified racially segregated schools and maintaining subordinate status for married women.

and he goes on,

Well, we know that taking away the right to marry was, indeed, the very essence of slavery. Yet, that very freedom once denied to slaves and denied to interracial couples throughout this country is now being denied to the plaintiffs; not because they are Chinese in this case, not because of their race, but because of their sexual orientation. How can it be wrong in those areas and right in this area under the Equal Protection Clause? That does not square with any of the language that the Supreme Court has used in deciding Equal Protection cases.

And that has been used, that same language has been used to strike down classes among citizens. That's the language of Romer. That principle has been extended from race, to nationality, to ancestry, to sex, to legitimacy, to the favoring of the husband in matters of marital property, and in 1996 in the Romer case to sexual orientation.

Their side (attorney Charles Cooper) argued that the purpose of marriage is Procreation, and only procreation, and same sex marriage will threaten this, because marraige "is fundamental to the existence and survival of the human race." Really. If people can't marry, they will stop having sex? Doesn't the mind boggle?

When challenged that the state doesn't forbid marriage between infertile people, he claimed that somehow that was still supporting procreation, and agreed that tactics to test fertility or annul childless marriages would be "Orwellian". But he still failed to grapple with how a gay couple differs from a childless straight couple" in any meaningful way.

Cooper went on to imply that because (bear with me here) gays don't procreate like straights, they have to be more deliberate (and responsible) about it. So somehow this means since there are no "accidental" pregnancies in a gay couple, marriage is not important. But marriage IS required to keep straights on the straight and narrow, so to speak "it's irresponsible procreation. The procreation that comes about casually."

When challenged about infertile straight couples, Cooper said, "the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation."

THE COURT: Why don't those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don't all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe, to use the names that Reverend Tam used.

MR. COOPER: Those purposes, your Honor, are -- wehaven't suggested there is a distinction among gay and opposite-sex couples with respect to those considerations. There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent -- neither partner in the -- with respect to the same-sex couple is -- again, assuming homosexual sexual orientation -- represents a concern about irresponsible procreation with a third party.

Because if one of a straight couple FALL OFFs the straight and narrow and has sex with someone else, outside of marriage, well, they're married, so it's okay. Sort of. Because any little accidents will have a married mummy and a daddy even if daddy isn't who he thinks he is. So he praises the stabilitization of marriage for straight infertile couples, but again, are they, really, different from Teh Gay?

The whole thing was about about breeding, breeding breeding, to the point where one of the twitterers posting at #prop8 proposed a drinking game every time defending counsel said "procreate" and the judge acidly inquired whether married couples should be required to have children.

These so-called consequences of same sex marriage were not presented. You know, like the lower rates of divorce and teen pregnancy in bad ol' Massachusetts. Whoa--scary stuff! Look what the Gays Hath Wrought.

Oh, and apparently the state "channels" towards marriage. Kinda like scientology, I gues.

Bizarrely the defending counsel informed the judge on more than one occasion that he didn't NEED witnesses or evidence for nearly anything he said. The lawyers on the twitter feed were astonished, and the judge was distinctly cross..

Olson finished the rebuttal:

the Romer case that says you can't take away rights and make them unconstitutional to -- impossible to recover except by amending your state constitution, and the Lawrence case that says that the sexual orientation of individuals in their private conduct is a protected right, you cannot then, in the face of all those decisions by the United States Supreme Court, say to these individuals, "We are going to take away the constitutional right to liberty, privacy, association, and sexual intimacy that we tell you that you have, and then we will now use that as a basis for not allowing you the freedom to marry." That is not acceptable. It's not acceptable under our Constitution.

And Mr. Blankenhorn is absolutely right. The day that we end that, we will be more American.

Updates:

• Prop8trialtracker
• LGBT POV
• hunter of justice
• LA TImes here and here
• Lawdork

The morning after:
NYTimes:

[T]radition seemed on the losing end of the argument.Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, repeatedly questioned lawyers defending the measure — Proposition 8, passed by California voters in 2008 — over their position that marriage is, simply put, for making babies.

Maggie Gallagher of NOM also thinks the judge will overturn. OR maybe she just sees that as a fundraising gimmick.

Christopher Stoll , an attorney at the National Center For Lesbian Rights (NCLR) writes,

Today's arguments overwhelmingly demonstrated the volume and strength of the plaintiffs' evidence, and the complete lack of evidence in support of Proposition 8.
...
Although it's risky to predict how a judge might be leaning based on the questions he asked, several of Judge Walker's suggested that he might be considering applying some type of heightened scrutiny to Prop 8 because it discriminates against people based on their sexual orientation. Judge Walker indicated that in his view, whether a trait is "immutable" and whether the excluded group lacks political power are not the key factors supporting heightened scrutiny. Instead, his questions indicated that he considers it more important that the group have a long history of discrimination based on a factor that is irrelevant to their ability to contribute to society. .... The defenders of Prop 8 offered no evidence that there was even a rational reason, let alone a compelling one, for the voters to single out one category of California couples for unequal treatment under the law.

This concludes my crossposting on Prop8. If you want to keep following this issue, please visit my blog Gay Married Californian

Breaking: Prop8 defendants seek to revoke recognition of MY marriage

From the SF Gate:

As the trial over California's prohibition on same-sex marriage enters its final stage today, the ban's sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8....

Andrew Pugno, an attorney for Prop. 8's backers, said in an interview that the sponsors aren't asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.....

Gay rights advocates argued that the unequal treatment of couples who married at different times was one of many reasons to overturn the ballot measure. But Cooper said Tuesday there was a better way to treat both groups of couples equally while respecting the people's will - "sustaining Proposition 8 by giving it retrospective effect," that is, deny state recognition to the pre-election marriages.

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

• Prop8TrialTracker (includes liveblogging)
• LGBT POV
• Hunter for Justice
• The Advocate
• Gay Married Californian

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.

Prop8 Trial: the crux

I'll have a proper update done tomorrow over at Gay Married Californian (for all my updates and posts about this trial, click here). But for right now: the final witness for the plaintiffs (our side) is currently being cross examined. The heart of that examination is to argue that being gay is not immutable, because some number of people have sexual partner of either sex. Are they gay, or straight? The defense apparently want to say that it's a problem if sexuality is fluid or changeable in any way. And that anyone who has had partners of different sexes isn't "really" GLBT (but by that logic, how can you say they are really hetero?)

If marriage is simply marriage, regardless of orientation, it makes NO difference what genders are involved. My wife was married to a man before coming out to herself in middle age. (This is not uncommon for many lesbians I know). Now she's married to a woman. Why is that a problem, if divorcing and marrying another man is not? The only problem is if you define marriage between women as something different between marriage between a man and a woman. That's the crux: we say marriage is marriage, and one definition is sufficent for both. They say you have to have a special category for GLBT people.

But (paradoxically) the defense are trying to show that there is no such thing as gay people; that it's not a characteristic that is unchangeable, but it's a choice. And therefore, we aren't a legitimate minority (in legal parlance, a "suspect class") that would deserve the highest degree of protection for civil rights. Of course religion is definitely a choice, and that is protected.

Yesterday we had a hateful, ignorant man state that marriage between gay people would corrupt children, lead to incest and siblings marrying, and prostitution and child sex.

This whole thing is making me physically sick.

Just a note re. Prop8

The trial continues, but since we have other issues to discuss here, I'm not going to take up more space at Friends. My take at GMC (this link includes all my posts on this case). For more info, Follow on twitter:Bilerico. The best live blog is at Prop8 Trial Tracker.

The final note is that the Supreme Court decided (5 to 4, usual suspects) NOT to allow cameras in the courtroom. The NY Times nails them in an Op/Ed Discrimination on trial, not on TV. Because remember, this way the bad guys can keep hidden shocking evidence like William Tam's lies and paranoia, or the awful, awful things they say about us....and they can keep hidden the scary normality of people like Kristin Perry.

Prop 8 trial update

Here we go again: Gay on Trial. Can you imagine how dehumanizing and hurtful this feels, straight people, for others to once AGAIN debate the most personal and intimate and tender aspects of our lives to decide if we are sufficiently human to deserve civil rights?

Based on the first day, we can see the trends.
1) THe defendants will focus on the role of marriage in the procreation of children (theChildren Question). It seems to me this can be challenged in several ways, principally:

• We do not restrict marriage to fertile people, and nor do we require married people to reproduce. Therefore, marriage is uncoupled from procreation.
• GLBT families are raising children, often their own biological children from former relationships, or from IVF, or adopted and fostered children. Therefore the status of marriage protects OUR kids too. or are they not worth protecting?

2) The defendants will focus on whether the presence of married gay people will affect what children are taught in schools (the education question). I would challenge this by saying

• What children are taught in schools is the reality around them. There are already GLBT parents with kids in schools, just like there are single parents, divorced parents, or inter-racial parents. Whether or not we are married doesn't change the fact we are already present and children are ALREADY taught that.
• Parents must already deal with the challenge of families and relationships they may religiously disapprove, for example, Catholics must contend with divorced/remarried families, or unwed parents.
• You don't get to teach bias in schools. THey needn't approve to tolerate and coexist. That is the requirementof a pluralistic society.

3) The defendants will focus on being GLBT is immutable--if it's not, they will argue against "suspect class" status, as for race. I respond thus:

• Whether it is changeable for some does not affect the reality that it is not changeable for all. Sexuality is on a gradient, that's well established. Along these lines, when did your average straight person choose to be straight, and why on EARTH would gay people choose to belong to a villified despise minority?
• Religion is a choice. We do not allow discrimination on the basis of religion; we do not prevent Jews or Wiccans or Hindus from marrying just because they are a small minority.

4) The defendants will argue that if you let gay people marry, straight people won't, and how can you PROVE no harm?

• You can't prove a negative, of course, and a post hoc ergo propter hoc argument is fallacious --it attempts to establish causality by coincidence. There is good evidence that marriage rates are declining in Europe regardless of marriage equality. But why let quantitative analysis get in the way of breathless hyperbole.

The bad guys are already saying the judge is prejudiced, that he has made up his mind, and that they can't get a fair trial. They are also accusing him of being gay himself. The mud they are flinging is quite remarkable.

I feel sick to be back on this merry go round again listening to the same vile lies and bigotry again. Let's face it, the two sides are talking past each other. There is no common ground: either you believe I'm a full citizen, entitled to the love and respect of any other, or you don't. Kudos to Susan Russell and others for keeping the religious freedom question on target: freedom of religion means one religion doesn't decide who you can and can't marry!

Prop 8 Trial begins today (updated)

What it's about: A challenge to Prop 8 under Federal constitutional guarantees of equal protection is underway (Perry V. Schwarzeneggar). This case will be heard by Judge Vaughn Walker of the US District Court and the trial begins today. The results will affect GLBT rights across the country, not just California.

Why it's different than the previous case: Previous challenge to Prop8 was based solely on California Constitutional issues about the legality of amending the state constitution. It did NOT involve federal issues and was heard by the state Supreme Court. The California court ruled, with some regret, that California's misguided constitution allows any minority's rights to be abolished by popular vote. Federal constitutional issues were not addressed.

Why it's risky: This case will certainly be appealed up to the US Supreme Court, which is still very conservative. A setback from the Supreme Court could set back marriage rights for a generation or more. A win would be amazing!

Crucial Questions:

• Are GLBT people a protected class? (think protections of race, or of religious practice). The proponent will attempt to prove that being GLBT is a choice, and not subject to protection (but religion is a choice, and protected....)
• Were the proponents of Prop8 motivated by legitimate concerns, or by animus against GLBT people? The proponents will try to hide their witnesses from public identification, and want to keep their campaign correspondence hidden.

Previous posts on this topic from Gay Married Californian. What's at stake, from the American Prospect

More info from these sites:
The Court's webpage on this trial
LGBTPOV
Law Dork
American Foundation for Equal Rights
Gay Couples Law Blog

There's a delayed broadcast of proceedings on this YouTube video

Update: SCOTUS blocks the Youtube, at least for now.
Update: Live twitter feed here:

UpdateFrom the defense counsel: "Marriage is socially approved sexual intercourse."

Oh, so THAT'S all it's about!

Their argument is going to be based on procreation, and on the reduced marriage rates in the Netherlands. (Caused by gay marriage!) I'm so frustrated at these people ....!

Prop8 Federal Case: sign petition to televise the trial!

So, you may remember, there's a Prop8 federal case, Perry v. Schwarzeneggar, that challenges PropH8 on the grounds of equal protection: a federal challenge, to be heard in 2 week in Federal Court (Ninth Circuit in California). Part of this case turns on whether the Bad Guys were motivated by animus against GLBT people.

Originally it was to be televised, but now the bad guys are suing to keep it quiet. Seems their witnesses are unwilling to be seen in public.

The Judge is seeking public comment about televising the trial. Please speak out for transparency! This is a FEDERAL CASE now, and a federal judge--not limited to Californians, but relevant to all Americans.

The Courage Campaign has a website where you can sign: http://www.couragecampaign.org/TeleviseTheTrial

SIGNATURE DEADLINE: FRIDAY 9 a.m.:

More on this from LGBTPOV and Gay Married californian blogs.

Notes from the march

Well, it wasn't a huge crowd, 5000 people at most? The vibe was suprisingly positive: not angry, more resigned, but resilient. There were all sorts of people there, although overall the group skewed a little older. It was very well organized, as these events have been here. The crowd was polite, though noisy, and the cops were respectful and effective. We marched to the hall of justice for a short rally.

We marched with the Episcopal Cathedral and wore purple Cathedral t-shirts. You can see in the picture that the Cathedral marches with a big banner that says, "love to each of you". BP is the one holding the rainbow flag behind the banner. You can't see her, but you can see the flag. (Click to enlarge).

During the march, we saw someone we know, a young man named C. who we met at party a couple of months ago. BP caught up with him to say hello. "Oh, wow, " he said. "this is so cool, is this your church? "

BP looked at me. "Why, yes," she said. "It is now."

The Cathedral is holding an interfaith service of "consolation and determination" on Monday night. Our friend C. might go.

We got a great letter from the Dean today that read in part,

This ruling creates two classes of citizens. As such, it goes against the core American values of equality and justice for all, and it violates our Christian commitment to respect the dignity of every human being. The clergy and Chapter of Saint Paul's Cathedral continue to call for one relational standard to apply to all people, a standard rooted in the core Christian values of fidelity, mutual regard, and life-long commitment.

Did they win what they think they won?

Are you tired as I am, of the mob rule proponents? You know, the ones who say "majority rules!" It's pretty clear that they are lacking some fundamental understanding of our Constitutional democracy. The courts and the Constitution are essential to protect the rights of the minority from mob tyranny. This is why the minority consents to be governed.

There is a US State Department site that explains this concept, for those who have a problem grasping it, from a document called Principles of Democracy.

Majority rule is a means for organizing government and deciding public issues; it is not another road to oppression. Just as no self-appointed group has the right to oppress others, so no majority, even in a democracy, should take away the basic rights and freedoms of a minority group or individual.

The California Supreme Court has made a decision that these Principles of Democracy do not apply in our state. They have upheld the tyranny of the majority and crushed the rights of the minority. They have failed in their constitutional role to protect us. And this was spelled out explicitly in Justice Moreno's withering dissent.

So, they have set a dangerous precedent that ANYONE'S rights are subject to modification by majority vote-- ANYONE. That means left-handed people, redheads, Mormons, the disabled, and any other definable group can have their rights legitimately eliminated by the mob.

BUT: Prop8 supporters did not win what they think they did. Because the court did say clearly that all this applies to is the term "marriage". The actual rights-and-privileges of marriage are still to be available to gay and lesbian folk, just not the name--that is an explicit statement that "whatever it is called" is a marriage in ALL but name. If the H8ers wanted to eliminate all the benefits of marriage from gays, then Prop8 would have been a revision, and unqualified. To qualify as an amendment, the effect of Prop8 must be limited to the name "marriage".

Think about it. This means that there must be state forms that include the DP'd folks: "Single or Married/unioned". This means that kids will learn that there are marriages and DPs in school, and yes, teacher may invite them to her wedding (because they didn't take the name wedding, just the name "marriage"). This means that under law, GLBT "whatever you call its" WILL be treated the same as "marriage" .

Prop8 is still wrong, of course, and the court did fail. We must over turn it. But I wonder how long it takes The Forces of H8 to figure out that they didn't really succeed doing what they thought they were doing.

As the expression goes, the arc of history may be long, but it bends towards justice.

From the dissent

Yay, Justice Moreno, who had been suggested as a SCOTUS candidate. I suspect his chances for that are scuppered by this dissenting opinion:

Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession (id., § 8). .....

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution. This could not have been the intent of those who devised and enacted the initiative process.

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

Wherever you are, join the Day of Decision rallies throughout CA and across the country.