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Read: Judge Asks Questions of Defense and Plaintiffs in Federal Prop 8 Case as Closing Arguments Approach

Rick Jacobs of the Courage Campaign points out some of the questions issued today to plaintiffs and defense by Judge Vaughn Walker in Perry v. Schwarzenegger, the federal challenge to Proposition 8:

WalkerWhat 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

Writes Jacobs: 

"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."

Closing arguments are scheduled for June 16.

The full list of questions, AFTER THE JUMP...

Doc 677

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Comments

  1. I've been following this case as carefully as I can - and as far as my understanding of legalese can take me - but I'm left wondering: If Olson & Boies are successful, what will that mean? Will it simply overturn Prop 8 in California, or will it have an immediate federal consequence? (or perhaps something all together different?) Thanks to anyone who might help.

    Posted by: Derek M | Jun 8, 2010 9:07:02 PM


  2. from what I understand the crux of the case is more about equal protection than gay marriage rights, per se. The argument is that Prop 8 created four distinct classes of people, which plaintiffs claim is unconstitutional. If we win, it wouldn't mean gay marriage legalized everywhere, even at the supreme court level. It would probably mean Prop 8 overturned on equal protection grounds and gays would once again be able to marry, as the state supreme court said we had the right to do the year before Prop 8. What is unique in CA is that we had the rights and they were taken away. Marriage was not defined as a man and a woman before we had the rights. 17,000 people got married and then the populace voted to take that right away. That's why there are different classes of people under the law. It would be ironic if the 'right' ultimately brings down their own house of cards because of their tactics in CA. A defeat would have repercussions, but not overturn other state laws, unless they also took away an existing right and created different classes.

    Posted by: spiderseye | Jun 8, 2010 9:23:44 PM


  3. I disagree with spiderseye. That is certainly a facet of the case but it is the weakest argument they have. That argument leads to the absurd position that california's system is illegal because it tried to proude gays equal rights, which is rather absurd. Unless a court was seeking desperately not to impose gay marriage on red states ruling on that reasoning wouldn't make any sense.

    Most likely, if successful, Chief Judge Walker will strike down Prop 8 because it discriminates against gays. Since district court rulings are not precedential, this would apply only to California. When it went to the Ninth Circuit Court of Appeals, if they rule in our favor it would bring gay marriage to the whole west coast. If it went to the supreme court and they ruled in our favor it would go to the whole country. Of course the lower court decisions will be stayed pending appeal and since it's likely to go to the supreme court it's all somewhat moot.

    Posted by: Tyler | Jun 8, 2010 9:39:21 PM


  4. "...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."

    Even this is a fallacy - it's called appeal to tradition.

    So basically they have nothing.


    Posted by: gayalltheway | Jun 9, 2010 4:37:13 AM


  5. I love the last question.

    As to the first question, a list of the (over 1000?) benefits, recognitions, civil and legal rights gays are denied by not being able to claim the status "married" -- if removed -- would automatically reduce discrimination. That list I'm sure is already in evidence, and should be presented again.

    Posted by: Strepsi | Jun 9, 2010 8:53:33 AM


  6. This is such an interesting case.
    I apologize in advance for jumping around and not being very legal-knowledgeable...I'm just throwing in my confused 2 cents.

    I haven't been able to take myself away from it when I see it on a blog somewhere or whatever. Such an important situation our community is in here. This is going to be historic, and hopefully for the better...for us anyway. As much as I try to be passive about an opinion of who will prevail, I obviously root for our side, the right side...But I'm very excited to see the outcomes both here and at SCOTUS.

    It's difficult for me to even consider speculating who will prevail in the end (we all know it's going to SCOTUS). Gays and Lesbians wouldn't be given the time of day by almost half of SCOTUS...so that tends to make me a bit pessimistic (sp?) about it there. But...speculation would just make the next 3++ years very, very stressful.

    I want to prevail as much as any Queer out there...but I think it's important to remain passive about potential outcomes. We really don't know where this country stands with us. It's almost like we're in the middle of a severe spousal dispute and we don't have the upper hand. Not. Fun.

    This makes my head hurt.

    Although, I do LOVE reading intelligent commentors comments regarding this and potential directions this could go. It helps me see the potential outcomes clearer.

    Thanks Smart People! <3

    Posted by: JoeyD | Jun 9, 2010 9:22:19 AM


  7. Very interesting questions!
    I trust the response in court will be equally profound.

    Posted by: Fred | Jun 9, 2010 5:48:07 PM


  8. "The court has reserved ruling on plaintiffs' motion to exclude Mr Blankenhorn's testimony."

    All over the net people just mindlessly cut and paste this boilerplate but exactly where is this "Motion to Excluded"? It is not to be found?

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