As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker's bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil's advocate. Sometimes you can get a read, and sometimes you can't. Also, I haven't really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.
So let's take a look at the meat of the issues, and see what we learned today over the flip
I'll be covering the comments live here and at the Courage Campaign's Prop 8 Trial Tracker. You know the basic facts here, so I won't drill down too much. However, it is worth noting now that the hearing will be broken down into two parts, standing and Constitutionality:
In the first hour, a three-judge panel will consider if the group that put Proposition 8 on the ballot two years ago is eligible to appeal the lower court decision since its members are not responsible for enforcing the state's marriage laws.
Outgoing Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to challenge the ruling.
In the second hour, the panel will hear arguments on the constitutionality of Proposition 8. (AP)
Expect most of the fireworks to come out of that second hour, but in terms of how the case goes down, the first hour might be the more telling. There is a strong argument that the proponents of Prop 8 have no standing to appeal the case. Brown and Schwarzenegger chose not to appeal, and that certainly isn't going to change under Harris and Brown. But a decision may very well be made on the question of standing, skirting the constitutionality question entirely. While this would mean that we here in California will have marriage equality, it does not help create the national rule that many have been looking for in this case.
Note that standing would not have been a significantly different question if Cooley had won at this point, as he couldn't have interceded for another month. While the appeal deadline has obviously come and gone, the question about whether he could have appealed beyond the 9th Circuit will remain open. However, I suppose a Cooley victory is a mere hypothetical at this point.
In the end this case is about one basic, core value: separate is never equal. Yet the government under Prop. 8 violates Americans' constitutional rights by creating separate classes of people with different laws for each. The state sanctioned discrimination leads directly to a hostile environment for children and the possibility of hate crimes.
In short, discrimination shouldn't be allowed to stand in California's constitution. My live blogs over the flip...
When the Prop 8 trial goes for its oral arguments at the Ninth Circuit, they will be televised by C-SPAN and heard on local and nationwide radio:
A federal appeals court Wednesday authorized the televising of a Dec. 6 hearing on whether Proposition 8, the 2008 ballot measure that banned same-sex marriage, should be struck down.
The U.S. 9th Circuit Court of Appeals granted a request by C-SPAN to broadcast the two-hour hearing, which is scheduled to start at 10 a.m. The court said C-SPAN would provide its tape to other broadcast media that receive court permission to televise the hearing. (LA Times)
Now, the thing about the Prop 8 litigation, as somebody who sat in on several days of it, is that the defense really had no case whatsoever. They relied completely on the high burden of proof that the opponents of the measure have to prove to get it struck down. Now, that's not an entirely untenable legal position. After all, the standard is quite high. However, in this situation, with the world watching, you would think that they would have attempted to put on a bit more of a case.
Unfortunately for them, there just wasn't any "there" there. Nobody was willing to be cross-examined by Boies, and the two "experts" that did testify a) weren't really experts and b) did more help for the opponents to the measure.
Televising the oral arguments certainly isn't as good as had the state and nation been able to see the actual trial. Trust me, it was good. However, this should be seen by the world for what it is. Discrimination should not be allowed to stand, whether a slight majority wants it stand or not. There are certain rights that just should not go to a plebiscite.
Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I'll not go back over them, but when I read it I was, quite literally, laughing out loud. I had to read it a couple of times, and Brian didn't really believe me that they were really making the jurisdiction argument. Make it they did though.
The brief is long. Very long. 134 pages including the tables, 113 pages from introduction to conclusion. The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn't seem to have been a big issue for the Prop 8 Crew. Nonetheless, let's take a look at the argument on the merits over the flip
As was mentioned in the comments, the brief is essentially a revising of history trying to ignore the fact that the trial took place. But they get the whole party started off right: by using italics!
But when Plaintiffs' distortions, cariatures, and straw men are cleared away, their constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history - from the ancients to the American states - for no good reason.
So, there you have it. The entire case boiled down to one easy sentence courtesy of Chris Cooper and the Prop 8 legal team. You can all go home now, because this thing is all wrapped up into a tidy box with a shiny bow of discrimination.
In real life however, such quick rejections in legal documents aren't really going to change any minds, or win any stays. So, they do waste 22 perfectly good pieces of paper to write some other startling pieces of legally questionable arguments. Matty Matt pointed this one out in the comments of the previous thread, and it is definitely worth addressing:
Because Plaintiffs have no concrete plans to marry, not only will a stay not harm them, but their standing to maintain this action is doubtful. At any rate, Plaintiffs' claims of harm to themselves, like their claims regarding the public interest, depend entirely on their claim that Proposition 8 is unconstitutional. (Brief at page 15)
This is another standing issue, but it brings up different questions than the question of the proponents ability to pursue appeal. Under the jurisprudence on standing, the plaintiff must have a concrete injury. Now, that is not to say that the emotional harm isn't necessarily enough to pursue the case, because that would be a question that is on the fuzzy side that we wouldn't really want to mess with. The two couples who serve as the plaintiffs surely want to marry, but they want their legal case to be settled. If they were to marry during the stay, their ability to continue the case could be called into question. Out of an abundance of caution, they are waiting until the case if finally resolved, but that doesn't mean that Cooper and the gang won't try to use it.
That being said, this is fundamentally a weak argument. The case cited, Lujan v. Defenders of Wildlife, is a very different question. In that case, some environmentalists sued the government over a couple of development projects on other continents would possibly harm some habitat of some endangered species. The plaintiffs claimed their injury was that they wouldn't be able to see the animals on some as-yet defined trip to the regions. The court said that was insufficient, with Justice Scalia saying that a plane ticket to the region would have been sufficient for standing. Now, there was debate at the time of that decision as to its legal basis, but that is the law of the land as it stands.
It really is not that hard to distinguish the Prop 8 case from Lujan. First, if you even just go by Justice Scalia, the plaintiffs engagement should be their "plane ticket" to satisfy standing requirements. Many couples take years to plan weddings, and these couples should not be forced to plan a wedding at some undetermined date simply because there is a "window." The plaintiffs want to marry, and they want the right to marry at a time of their own choosing. Furthermore, these couples have a much more tangible right at question here than the simple good feeling from knowing a species is alive on the other side of the world.
With these sorts of winning arguments, I almost expect Andy Pugno to ask the Court "I know you are, but what am I?"
Late yesterday, the legal team behind the Prop 8 Challenge filed their response to the Motion for Emergency Stay.. You can see the full document over the flip. Nothing too surprising here. The plaintiffs basically went through the four factors for a stay, and showed that the burden has not been met.
The Plaintiffs' motion specifically argues that:
· Proponents cannot possibly make a "strong showing" that they are likely to prevail in their appeal.
· There is significant question as to whether Proponents even have standing to pursue an appeal.
· Proponents have failed to establish that they will likely suffer irreparable injury in the absence of a stay.
· A stay will cause substantial irreparable harm to Plaintiffs.
· The public interest favors immediate enforcement of the judgment.
The deadline, as you probably recall, is August 18 at 5pm. If the 9th Circuit declines to issue a stay or simply does not do anything by then, counties will be able to issue marriage licenses to same sex-couples.
That's exactly what the American "Family" Association wants to do. In an email to their supporter list, the AFA called for Congress to impeach Judge Walker for failing to conduct himself with "good Behaviour":
Yesterday (August 4), U.S. District Chief Judge Vaughn Walker single-handedly overturned California's Prop. 8, which elevated protection for one-man, one-woman marriage to its state constitution.
In doing so, he frustrated the expressed will of seven million Californians who went to the polls to shape their state's public policy on marriage. ...
Fortunately, the Founders provided checks and balances for every branch of government, including the judicial branch. Federal judges hold office only "during good Behaviour," and if they violate that standard can be removed from the bench. Judge Walker's ruling is not "good Behaviour." He has exceeded his constitutional authority and engaged in judicial tyranny.
Judges are not, in fact, unaccountable. They are accountable to Congress, which can remove them from office. Impeachment proceedings, according to the Constitution, begin in the House of Representatives. It's time for you to put your congressman on record regarding the possible impeachment of Judge Walker.
Where to begin? There's just so much crazy that is genuinely difficult to choose just one nugget. Let's first start with the popular vote issue. I'm hesitant to bring this up again, because really? Really people?
Let's talk about this. Do we really want everything up for a popular vote? I guess it's easy to criticize when you are the one putting up other people's rights for a vote. But, flip the script, and what does the AFA say about it when somebody puts an initiative on the ballot limiting the number of kids you can have. I mean, limited resources and all. It worked for China, right? Right, AFA?
The larger point is that some rights are sacrosanct. They are not privileges that are earned or that should be put for a plebiscite. My relationship should not be disfavored because a majority of California voters get squirmish, or are fearful, or are baited into fear through a $40 million scare campaign.
This of course ties directly into the question of impeachment. "good Behaviour" wasn't intended to be some sort of generic "the majority doesn't like you" catch-all. After all, there are decisions made all the time that the majority disagrees with. Yet, we don't impeach those judges. Heck, the entire point of the judiciary was for judges to be a check on the tyranny of the majority. If we go around impeaching our judges because they apply the constitution simply in a way we don't like, the entire Article III power of the judiciary will be wiped away.
Of course, this isn't all that the AFA has said on the matter. In a right-wing online publication, they suggested that this was all in self-interest. Because, you know, Walker is gay (and doesn't have the good grace to hide it back like those pleasant closeted gays of generations past). I'll point them to my earlier post, "Did They Know Justice Alito is Male?" Back then, I pointed out the irony that nobody was complaining when Justice Alito was writing a ridiculously sexist opinion in Lilly Ledbetter's case:
We all have some mix of racial, geographical, socioeconomic and other backgrounds. And they are all mixed up with who we are. We can't take those labels off no matter how independent or fair you are. Yet some will still see this as sort of bias.
So, did anybody comment about Justice Alito's gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180 days from the discriminatory decision, even if they didn't know about the decision for years? The decision that ultimately spurred the passage of the Lilly Ledbetter Act because it was so egregious.
Can an African-American judge not rule an issue of race? A female judge not rule on issues of gender? These ideas, of course, are patently absurd, as is the charge that Walker should have recused himself.
Yet, AFA and their allies will continue to push for the impeachment of Judge Walker and of any 9th Circuit Judges that concur with the district court's decision, and probably for any Supreme Court Justice who dares to do the same. For the time being, their aren't enough right-wing zealots to really push this through Congress. But elections are right around the corner, and their are quite a few of said zealots lining up to enter the halls of power.
Will Congress really take the time, even with a Republican majority in the House, to impeach Judge Walker? It's doubtful at best. After all, "good Behaviour" was never intended to reflect a merely unpopular decision, rather to serious personal failings that would compromise his ability to be a judge. Things like taking bribes, that sort of thing. In our history, only 14 judges have been impeached, with only 6 of them being convicted. This is not to be done lightly, or for mere disagreements on issues for which reasonable minds can disagree.
But the AFA and their friends are on a rampage. They want blood, and they are going to demand that right-wing Representatives in Congress pick away for it. I suppose this just reiterates the importance of our involvement in not just the judicial process, but always being mindful that we can never forget about the political process.
Well, today is the day. Sometime this afternoon, we'll get our decision in what will go down as one of the most anticipated decisions around these parts since...well...last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive. No matter which way Judge Walker goes, this is history in the making. It's a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)
So, with that as background, what are we looking for today? How do we win? How do we lose? And what defines a win? Well, I said yesterday that I'm optimistic, but there's more than one way to skin the cat here. So, let's just go through them, and I'm sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let's start with the downers.
LOSE - Prop 8 is a permissible act of the people acting legislatively.
Well, I'm not sure how much I need to explain this one, but it's the worst case scenario for us. In this situation, Judge Walker would be saying that the people, acting as the state's legislature, had a "legitimate" interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest. This is the so-called "rational basis" test. Now, the Defense of Marriage Act recently failed that test, but that doesn't mean Prop 8 couldn't pass.
Of course, this doesn't mean the case is over, just that we are on hold as we move forward through the system
Win - The implementation of Prop 8 is unconstitutional.
This is how we win, without getting everything we really want. This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states. The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed. This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs. It could be seen as something of a middle ground, but let's be honest, it will not satisfy anybody who opposes marriage equality. And it further muddies the underlying issues when what we really need is clarity. Could it happen? Yes, it very well might. But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
WIN - Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
This would be our ultimate victory, and really, what Olson and Boies are going for in this case. As I presented above, there are two possible rationales, and I'll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8. However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8. In other words, don't make wedding plans just yet.
I shouldn't quite leave that logic of our win hanging in the breeze quite so much, so I'll pull a quote from Loving v Virginia to show you the Supreme Court's logic in that case.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law. If you've read much of the history of the era, you'll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade. Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.
I'll not give you the whole wikipedia version of substantive due process, but long story short, it protects fundamental rights generally. But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument. As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won't rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws. We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.
But, for now, this is just speculation. The real thing is just around the corner.
Let's start by saying this: Sen. Roy Ashburn (R-Bakersfield) is a coward. Sure, on occasion, he broke party ranks to vote for a budget or something. But for well over a decade, he served in the Legislature, consistently voting against any and all bills that protected the LGBT community. And then, as he points out in this confessional published on the Gay and Lesbian Victory Fund website, he was outed in a flood of police lights. As I've said before, Ashburn was a slow-motion train wreck. The question was never if he was going to be outed, but when and how. Of course, he then went ahead and made sure it was a big spectacle. Good work, Roy.
But this little piece of work that he published, well, it's a real piece of work.
My past actions harmed gay people. In fact, all people are harmed when there is unequal treatment of anyone under the constitution and laws of our country. I do not believe in discrimination, and yet my votes advanced unequal of treatment of gay people and promoted the suspicion and fear that limits people from being forthright and accepted in society.
Now, from what I have lived and learned, I want to do the best that I can to advance equality and freedom for all people. Given the shame and confusion that many feel over their sexual orientation, perhaps my situation can serve as an example of both the harm that can come from denial and fear, and the opportunity to try to make things right.
Let's run down this timeline. Ashburn gets elected while outwardly proclaiming bigotry. Ashburn legislates consistent with that outward bigotry. Ashburn gets outed at the point of a policeman's MAGlight. And now, finally, Ashburn decides that bigotry was ridiculous.
Well, let's all give Roy a big ol' group hug now, right? Well, I'll just go ahead and skip that. Perhaps you would describe me as bitter, but for my part, I'll pass on all of the mushy stuff. While I praise traditionally conservative parties for taking an enlightened stance on LGBT issues (such as the British Tories), that's not what this is about.
This is about one guy, who lived his life selfishly. He was too much of a coward to come out. And let's be clear, Ashburn was representing himself as a leader. This deception is not how a leader behaves. The lying and the sneaking, are not how a leader behaves. And the suppression of his own supposed fair-mindedness is not how a leader behaves.
Call me back after Ashburn has done some real work to repair some of the damage that he has already done. Maybe then I won't be so cynical about his conversion via police lights.
While this might not have been on everybody's radar, the IRS kicked down a huge decision for California same-sex couples. But PLR-149319-09 (PDF) has some big importance to California registered domestic partners and same-sex married couple. Long story short, the IRS is now recognizing California's community property rules. And that's big. Really big.
Let's start from the beginning. I'm no accountant, but bear with me as I try to recall my tax class in law school. Basically, California, like many Western states, has a default rule for marriage that any property acquired (other than through inheritance) is treated as "community property" between the two married spouses. For California same-gender couples that got married in 2008, these community property rules apply unless you have opted out through contract (a "pre-nup"). Also, in 2006 and 2007, the legislature passed, and the Governor signed, two pieces of legislation that granted registered domestic partnerships the same rights and responsibilities of marriage, with community property first being excluded for tax purposes in 2006, and then being completely folded in to the RDP in 2007.
Of course, the problem here is that under the so-called "Defense of Marriage" Act, the federal government was not supposed to recognize any marriage not between a man and a woman. Thus, we had a real pickle on our hands. Under California property law, the property was community property, half belonged to both partners. But how that property got there was anybody's guess. Just off the top of my head, there are a number of ways the federal government could have handled the issue:
1) Ignored community property between same gender couples entirely. Sure, it would cause conflicts with state tax issues, but who cares, according to the Yes on 8 folks, this is a future of civilization thing here.
2) Acknowledge the community property, treating it as a gift between two unrelated partners for federal tax purposes. This would have been very bad for same-gender couples. Basically, couples would have had to pay gift tax on any difference in income over $13,000 (or so, depending on what the gift tax is that year). That would get pricy fast.
3) Acknowledge the community property, but treat it as earned jointly. Basically, each partner, for tax purposes, earned half of the income. This would be far more favorable and basically treat community property the same for all couples.
I'll let you read PLR-149319-09 (PDF) on your own if you'd like to, but long story short, the IRS went for #3. Once they went over the law, it seems obvious, but these things rarely are obvious before hand. And that's the case here. The IRS first relied on past precedent to first say that the federal goverment defers to the states to determine property law (U.S. v. Mitchell) and then to say that California community property law determines who owns what for California couples (US v Malcolm). Finally, the IRS simply stated that once California treated property as community property, the IRS would do so as well.
Now, in practical terms, what does this mean? Well, say you are a couple where one partner earns substantially more than the other. You'll have noticed that your California tax bills went down with community property. Now the same will apply to the federal government. For example, say "Adam" earns $50,000 as a public school teacher. His husband "Bill" earns $150,000 as a investment hot-shot or something. (No comment on our society's priorities there.) Under this new law, each would report income of $100,000. For a variety of reasons in the tax code, that's going to be advantageous. Now, I'm not a tax lawyer, and this isn't specific advice. If this is something that might apply, ask whomever prepares your taxes or some other tax professional.
There is one wrinkle in here. Technically, the IRS "private letter ruling" specifically addresses registered domestic partnerships, and uses that language. However, the ruling is entirely directed at the concept of community property, which applies in the same way for the 2008 marriages. In theory, it should be handled the same way, but theory often gets you audited by the IRS.
If you've been busy waiting for the Prop 8 ruling you may not have been expecting the news yesterday that Section 3 of the so-called "Defense of Marriage" Act was ruled unconstitutional. But it happened, and you have, at least in part, Martha Coakley to thank for it. (Yes, that Martha Coakley, you can check her out over the flip.) But, this decision is real, and powerful:
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, "there is no reason to believe that the disadvantaged class is different, in relevant respects" from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
This was actually two consolidates cases, the first case being brought by ten married couples (Gill v OPM - decision here), the other being the Massachusetts case (decision here). In the Mass case, the judge ruled that DOMA violated the 10th Amendment. Yup, the one about the states having power over issues not delegated to the federal government. It's not used much, although the right wing is trying to go all anti-Obama with it these days.
Nonetheless, there are a couple of issues for Californians here. First, there are currently about 18-20 thousand same-sex married couples in the state. Give or take for folks who married in other states before moving here pre-2008 and for those relationships that have ended since then. So, how does this ruling affect us here?
Well, unfortunately, this federal court decision really doesn't affect us at all. In theory, the ruling only covers Massachusetts for the time being. The case was brought on behalf of the state, and unless and until it moves up through the 1st Circuit and possibly to the Supreme Court, the case only has persuasive precedential value. For now, DOMA is still valid in California.
That being said, there are still many ways to challenge DOMA, and this is a big first hurdle of getting a federal judge to call it for what it is: clearly unconstitutional. We should see additional lawsuits challenging DOMA from a variety of legal fronts over the coming months and years.
Of course, that Prop 8 decision will also play a major role in all this. The end game is, of course, for universal marriage equality, but the legal doors on the way there are slowly and steadily opening.
Check the flip for an interview with Martha Coakley about the decision as well as an interview with Tobias Wolfe, President Obama's campaign advisor for LGBT issues.
I've been trying to keep abreast of the Prop 8 closing arguments, hitting refresh on several different websites. Through all of this, I have tried to at least, on occasion, take a step back to be as objective as possible. I was always something of a skeptic. After all, much of our judiciary has been appointed by Republicans. It just seemed like the logical conclusion of all this was some sort of temporary victory for Maggie Gallagher's team. However, all that being said, I am now coming to the conclusion that our odds really aren't that bad. And in many ways, the real legal reach would be to not overturn Prop 8.
That isn't to say that Prop 8 will be overturned by the Supreme Court. The Roberts court has been known to make a few reaches of legal logic in the past, and a decision favoring Cooper's case would not really shock anybody. But, the case that the legal team, headed by Olson and Boies, has built here is really quite solid.
As Rick noted, Judge Walker spent much of the day trying to get a legally valid point to emerge from Cooper's mouth. But, when it comes down to it, this is the heart of their case:
The legislative process involves setting priorities, making difficult decisions, making imperfect decisions, and approaching problems incrementally. That process is what is at work in this state.
And it's at work elsewhere in this country. And as the court...said, there is a debate about the morals, the practicalities, and the wisdom of this issue that really goes to the nature of our culture. And the constitution should allow that debate to go forward among the people.
In other words, what Cooper is arguing here is that despite how wrong Prop 8 might be, it should still stand. He has essentially given up on arguing that Prop 8 is actually accomplishing some valid purpose. Instead, he is relying on the "rational basis" test to argue that the state legislative authority allows Prop 8 as some sort of valid exercise because the state might have some sort of "channeling" power towards marriage. (Who exactly they are channeling remains an open question. Because, I'm pretty sure I will not be channeled anywhere.)
He doesn't bother to claim that this is a good idea, or a just idea. Rather, it simply a "rational basis" to legislate from.
Trouble is that, quite simply, it is not a rational basis. I don't think I can say it any better than Ted Olson:
So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it's the right of the person. It's not the right of the State of California to channel us into certain activities or in a certain way.
There's a long way to go folks, but today was a good day. Even if we lose at the Supreme Court, this case has been a valuable exercise for the nation. Cross-posted from Prop 8 Trial Tracker
Today, the Proposition 8 trial in San Francisco Federal Court will hear its long-awaited closing arguments - as gay marriage advocates prepare to return to the ballot. And a new study conducted by the Haas Jr. Foundation looks at pre-election polling data from 33 states that passed anti-gay marriage initiatives. It concludes (a) we always do worse than what polls say, and (b) voters don't change their minds about this issue during campaigns. The lesson, of course, is that we must work harder to move hearts and minds - and that work can't be done in a short election season. Sadly, the implications of this study will strike many as discouraging - was all the money, time and energy we spent in California and Maine somehow a waste? It's true gay marriage is a sensitive topic that voters develop hard feelings about that can't be changed overnight. But the study did not focus on the small sliver of "persuadable" voters in each election who decide the outcome.
First, let's get this one out of the way: don't expect anything new. By definition, closing arguments are something of a summary of what's come before. What you see in closing argument is each side pressing their advantages, and this case is no different.
After the preparations had been made, the tally sheets from our phone calls completed, the carpools worked out, and the volunteers scheduled, I headed to Los Angeles with the hope that after the weekend was complete, there would be no question in the minds of the CDP delegates that Gavin Newsom has the grassroots support necessary to win the Lt. Governor's race against whatever the GOP throws at us in November.
In the weeks prior to the convention, our team of students from all across the state had been talking to delegates, volunteers, and fellow young voters about Mayor Newsom's candidacy and about his bold, new ideas that will be required to dig California out of our seemingly never ending state of economic misery.
The pitch was not hard to make. Young people are drawn to Newsom's campaign. We see public higher education becoming unaffordable to more and more Californians. We fear that in five or ten years our state won't be able to compete in an evolving global economy, and we worry that the living wage jobs that we will need in order to support our families will be harder and harder to find. While we are confident that our state will come to its senses when it comes to Gay Marriage and LGBT rights, we are concerned that the relentless beat of the status quo won't provide the framework necessary to drastically change the way we look at issues like immigration, the environment, and budget & tax reform. We have watched the forces of regressiveness drag our state (and our futures) under the surface, and we are ready and eager to support Gavin Newsom, who has proven time and time again in San Francisco that tangible change is not only possible, but it is also necessary.
In yet another poll on marriage equality, an LA Times poll released yesterday showed that a majority of registered voters support marriage equality:
Registered voters surveyed in the latest poll said 52% to 40% that "same-sex couples should be allowed to become legally married in the state of California."
That's the latest in a string of surveys that have found similar results. A PPIC poll released March 25 found respondents backing gay marriage 50% to 45%. And a Times/USC poll last November found a 51% to 43% split on the issue. As with the previous surveys, the latest Times/USC poll showed a sharp polarization by political party and ideology, with Democrats and liberals supporting same-sex marriage by large margins and Republicans and conservatives opposing it by equally lopsided margins. (LA Times)
Of course, this poll doesn't mean that we could win a ballot fight. As we learned in 2008, these polls have a bias of about 3-5 points in favor of marriage equality. It seems many people don't want to admit to a questioner that they are bigoted, but are cool with doing so once they step in to a voting booth. Before I would feel comfortable, I'd like to see that number at closer to 58 or 59 percent for an extended period of time. I think that would allow us a comfortable victory.
But that being said, things worth having are rarely won with comfortable victories. When we go back to the ballot in 2012, we will have to work our butts off. The Prop 8 trial very well may not be concluded by November 2012. And frankly, at some point we are going to have to win at the ballot box to show that America is well and truly changing. Until then, all we have is the general notion of change.
I was going to write something about all the change that will be, but a commenter, Nancy, did so at the LA Times quite well. Rather than making the point myself, I thought I would reproduce the comment here. Most of the comments at these newspaper sites tend to be viscous personal attacks, homophobic slurs, and all sorts of smears. Yet, that's not always the case. Without further introduction, Check out Nancy over the flip.
That Sen. Roy Ashburn was a closet case was one of the worst kept secrets around Sacramento. He would periodically appear in a gay bar, trying to be as discreet as a state senator can be in Sacramento. He's not exactly a rock star or anything, but in a city built around state government, he's pretty recognizable.
And so, on 2 occasions, somebody sent me an email saying that they had seen him at a gay bar. It had become more common over the last few years, as he was heading for his term limit and had no logical place to continue his political career. And, with his vote in support of a few minor tax increases in the California budget dispute last year, his chances of winning a Republican primary for dog catcher were also rapidly decreasing. Apparently, he became sloppy in his closet, either because he didn't care anymore or because he thought he would never be caught. But, I'm no Mike Rogers, and I've never been all that great at the CYA work that's necessary if you are going to start publishing that kind of stuff.
But, one sure way to get your name in lights? Get busted for DUI. And to make sure it is really exciting, bring along a guy that you picked up at the gay bar:
Sources tell CBS13 a state senator from Southern California was arrested for allegedly driving drunk after leaving Faces, a gay nightclub in midtown Sacramento, early Wednesday morning.
The California Highway Patrol pulled over Senator Roy Ashburn at 2:00 a.m. Wednesday after an officer noticed a black Chevy Tahoe swerving at 13th and L Streets.
When the officer stopped the state-issued vehicle, the driver identified himself as Senator Ashburn. He was arrested without incident and charged with two misdemeanors: driving under the influence and driving with a blood alcohol level higher than .08% or higher.
A male passenger, who was not identified as a lawmaker, was also in the car but was not detained. (CBS13)
Ashburn was quickly released (you can get the records by searching for Ashburn here), and probably thought he would just get to make the standard apologies.
I am deeply sorry for my actions and offer no excuse for my poor judgment. I accept complete responsibility for my conduct and am prepared to accept the consequences for what I did. I am also truly sorry for the impact this incident will have on those who support and trust me - my family, my constituents, my friends, and my colleagues in the Senate.
Of course, this was before the part about the gay club came out in the media. I guess you can now read the statement in a slightly different light.
If people choose to live in the closet, it's their own poor choice. It will eventually drive them to do stupid things (like a DUI), and act like a jerk. But Ashburn is a slightly different case. Back when he still had campaigns to think about, he was something of an anti-marriage crusader:
In better days Ashburn, a fierce opponent of gay rights, was fighting marriage equality and organizing anti-gay marriage rallies as part of his "Traditional Family Values" campaign. (TalkingPointsMemo)
In fact, Ashburn's efforts weren't only focused on marriage equality. His little coalition actually wanted to ban domestic partnerships. The effort never really got anywhere; it wasn't until In re Marriage Cases, the case that gave California marriage equality, became more of a threat that the move to ban marriage again really gained steam.
But Ashburn was there. Campaigning against gay rights in the day light while cruising for gay men after hours. You could make a lot of excuses for Ashburn, he was doing what you have to do to get elected in Bakersfield, or some other such nonsense, but he went out of his way to attack gay rights. And, that is often the case for these closet cases. They want to draw attention away from themselves, and so they go as far away politically as you can get from the LGBT community. They are scared of their own shadows.
Ultimately, it takes a little something extra to really go out on the limb against gay rights like Ashburn does. Yeah, some of these people trace it back to their deeply held faith views, but there are so many issues to take up from the Bible. The extreme poverty across the world would seem to be a far bigger issue, with far more and far more direct advice from the Bible. Yet, these people choose to focus on one misinterpreted section of Leviticus amongst a whole volume. In a sea of advice, commandments, and admonishments, they focus on one unclear passage. To spend so much time on one issue, there has to be something else to it than just one passage in the Bible.
The fight against homophobia won't end anytime soon, but at least we can call it for what it is. Recognize those who are hypocritical, and stand up for our own rights. The fight will continue. But, as Martin Luther King, Jr, famously said, the arc of the moral universe is long, but it bends toward justice.
It's tempting to look at the recent gay marriage defeats in Maine and California, and say at least we're on the "right side of history." The opposition is running on borrowed time, as young people increasingly support marriage equality. But the trend is not moving fast enough, and it's clear that gay marriage supporters have been losing the "swing vote" in every election. Same-sex couples have largely won the battle for civil unions, but there's something about "marriage" that makes moderates uneasy - and it's time that we speak directly to their concerns. Third Way, a Washington DC based think tank, conducted a poll of 600 Maine voters right after Question One passed in November - which holds important conclusions we should build upon. As we look at repealing Prop 8 in California, going straight to those voters so we can win and finally move on to other battles is key. None of us want to wait until the old generation dies out, and nor should we have to.
Remember all those experts who were scared of appearing on YouTube? Well, I don't know if they knew this when they were lining up to be deposed, but depositions become part of the public record, and fortunately for us, we have said depositions. And even more helpfully, we have clips on YouTube of Paul Nathanson and Katherine Young, you know the people who believe that men are constantly and subtly being discriminated against.
Anyway, these folks go around doing expert testimony for social conservative causes. Apparently hiding their faces while doing so. Perhaps Paul Nathanson should have hidden more than his face during the Iowa same-sex marriage, Varnum V. Brien, and just gone mute. It would have done more benefit for the opponents of marriage equality. Nathanson's testimony Varnum was so ridiculous that the court struck it from the record stating that his testimony was "not based on observation supported by scientific methodology or . . . on empirical research in any sense."
Forgetting my legal training, and just looking at a quick behavioral and textual reading of this testimony, it is clear that neither of these two witnesses would have done a lick of good for the Prop 8 defense. As we go through these clips, you'll know exactly what I mean. Let's start with Paul Nathanson (transcript here):
Q - Let's try to break that down into two parts. First, you recognize that gay couples are today raising children, correct?
A - Yes.
Q - And you believe that enabling those gay couples to marry would enhance their ability to be good parents to the chi-
A - Yes.
Basically, this guy admits something that David Blankenhorn ended up admitting on the stand: lack of marriage equality harms children being raised by LGBT parents. While the defense completely failed to prove that there was any damage whatsoever from marriage equality on the children of straight parents, over and over again, event the defense's own witnesses acknowledged that there was real and serious harm done to not only LGBT couples, but their families. Meanwhile, Nathanson is looking unhappy and snippy. All in all, he was just another Blankenhorn debacle waiting to happen. And, I think even the defense would privately admit that could have gone better.
And Katherine Young would not have been much better. See the thing is that with these scientists, they've actually read these studies, and understand the background. This is where Boies picked apart Prof. Miller. Miller had to eventually admit that his position was contrary to the great bulk of research in the field. And Miller's testimony, at its best, could only go to a small portion of what they were trying to show. Young wound up admitting a gold mine's worth in her deposition. It's almost hard to pick out selections from the transcript of Young's deposition.
Q - My question is, is it your view that because something was the norm in the past, it should be continued in the future? ...
A - Just because something is a norm, it doesn't necessarily mean it is an appropriate norm, and it has to then be reassessed in the contemporary context to see if t norm should remain.
***
Q - And you believe that allowing gay couples to marry will increase the durability of those gay couples relationships, correct?
A - Okay. I'll say yes.
***
Q - Okay. And increasing the durability of those relationships is beneficial to the children that they're raising, correct?
A - On that one factor, yes.
While Young does come across looking annoyed, she doesn't seem quite so smug as Blankenhorn and Nathanson, so point for her on that. However, the factual admissions she makes were just too much for the Prop 8 defense to consider putting her on the stand.
At any rate, both Nathanson and Young hardly look fearful of appearing either on YouTube or on the witness stand. This was a purely tactical decision masquerading as something else. After all, they have written several books together about how men are an oppressed minority, they are hardly afraid of spouting controversial opinions in public. The reason these two didn't testify has nothing to do with being scared, and everything to do with the fact that they were simply bad witnesses.
