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Wednesday, January 13, 2010

Prop 8 Trial, Day 2 - My Stylized Summary

There is good liveblogging going on (Prop8tracker, Firedoglake). I've looked at that as a substitute for a transcript. The briefs and opening statements of the Prop8 side are hard to find. (!)

1. Prop 8 - What was brought forth in bigotry kept under wraps
The Prop 8 people are fighting to keep their messaging during the campaign from showing up on the record, as part of the long history of ignorance, fear, and hatred centered on gay people, let alone gay couples. There appear to be "ongoing objections" and so forth, related to what the court can see to make a foundation for such a case possible. The judge is erring, it seems, on the side of inclusiveness, but an appeals judge may not - clearly, I may have misread that or be reading more into the situation than is normal for such trials.

For those young uns' interested in the history of anti-gay discrimination, see the last part of day 2 testimony.

2. The State's interest in marriage contracts
It appears that Prop8 has a wandering mosaic centered on (a) procreation (b) something vague called "stability" and (c) the children, yet, in particular, just the nongay children. [update when I get through their opening statement, which is not easily available on the interwebby...]

Would you be prepared to answer this yes/no question, on the spot?: "Do you agree that society is the ultimate beneficiary of marriage?" hint: Jon Rauch recently dealt with this, in a fashion, and its origins... so one can see where defense is headed, at least. [btw, that is such a good trial lawyer question, right? I mean, "do you agree", as if saying "no" was disagreeable and egregious, in relation to those who agree. Brilliant, that.]

Overall, I found this section on direct from Professor Cott to be average to weak, but there is so much information, that's just a first impression. Prop8 defendants can be reasonably expected to be vigorous on these matters.

Something like this, to me, doesn't seem to carry the day against them, for instance:

B: Talk about the legitimizing of children through the marriage of parents?

C: The state lends its prestige to the marriage, and all the family’s participants, by validating all of them

Maybe there is more to come and trial antics at work, as well.

What's more, the idea that marriage "protects children" hasn't been fully challenged on direct... Indeed, under many state laws, the children of unmarried couples get a great deal of protection, including claims to support from their biological parents, right?
The pro-marriage side has yet to point out the fallacies that Prop8 proponents often fall into, as part of their gusto. Namely, that marriage makes good parents out of people. It doesn't.

What's more, the idea that marriage "protects children" hasn't been fully challenged on direct, I didn't think. Indeed, under many state laws, the children of unmarried couples get a great deal of protection, including claims to support from their biological parents, right? Marriage is no longer the vehicle by which children are "protected" in civil society. It can remain a preferred child-rearing gestalt, but "protection" is probably the language of an advocate, not an expert on the matter.

The pro-marriage side made good argument that marriage is now gender-neutral, based on Supreme Court rulings. compared to roles that used to be recognized in law. This testimony, which is not new, but which generically put infuriates gender essentialists (some Catholics in particular), dovetails with the wonderful rendered Dan Savage youTube, voicing that nongays "have already ready redefined marriage - past tense - to the point at which it no longer makes sense to exclude gay people".

3. Fear, doubt, uncertainty

Defense council brought up some of the usual suspects (Stacy) to raise questions about the motives, implications, and efficacy of gay marriage.

Here's the FUD list, express and inferred, from Day 2: Polygamy (never polyandry), polyamory (which even the expert wasn't aware of, gasp, so one wonders how conservative appeals court judges in their 60s will find it, without ample trial amplification), and 'gay marriage' as a political movement really just motivated by a desire to mount an attack on the sanctity of marriage.

What's cute about this view, the line of questioning, in a way, is its honesty. Prop8/"traditional" advocates more or less admit, by pursuing this line of questioning, that all their substantive arguments are thin or specious, and that the real import of the definition of marriage is a rather arbitrary and coercively simplified one, drawn to keep things unwanted "out", not to define carefully, fully, or fairly what is "in". {The same considerations, I believe, are at the heart of Catholic doctrine, even though it is never dressed-up that way.}

I used to be somewhat drawn to this view, thinking that gay marriage ought to "win" without throwing out a simple rational basis review, in the best, best, best case.

However, the more considered view is that there are ample state justifications and sufficient reason to believe that claims to polyamorous marriages, for example, would fail if a strict scrutiny standard were to be applied across the board to all such claims. Still, I believe the Plaintiffs ought to take up some burden of proof here, perhaps, rather than leave it all to the imagination of certain Supreme Court Justices, who may be willing to open a window, but not a Pandora's box.

Update: Pam's House Blend is steamin' - check out Shannon Mintor's dailies! (although he cheerleads a little)

Ref: CCampaign