[I'm waiting now for transcripts to be available, even at the loss of timeliness.]
Today, I'm thinking about the Sosman dissent in the historic Goodrigde v Dept. of Health. (pdf, wikipedia).
In that dissent, the late Justice Martha Sosman argued that, basically, 'science' was conflicted and in its infancy regarding what we know about gay parents, so it was "rational" for legislators to wait on gay marriage.
Before making a fundamental alteration to that cornerstone, it is eminently rational for the Legislature to require a high degree of certainty as to the precise consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice. The court today blithely assumes that there are no such dangers and that it is safe to proceed (see ante at--), an assumption that is not supported by anything more than the court's blind faith that it is so.
[opinion written in 2003]
[opinion written in 2003]
If the Prop 8 defense intend to argue the same thing, then both sides will see progress today.
I DECIDED TO LEAD WITH MY HEART
Compelling testimony from Republican Mayor Jerry Sanders, who has a close daughter who knows more about Home Depot than he does (yes, that's his characterization, not mine). "I decided to lead with my heart", he told an audience at the time he reversed a position on civil unions. (He went on, after that, to win re-election.)
Sosman says that "emotion" is equaled by the antigay side; and, therefore, it is irrelevant. Her view, of the aspects of the law called into question by the facts, allowed that cold of a reception on matters as fundamental as human relations. (Justice Kennedy - has he made the transition from tolerance -Lawrence- to something better than cold heartedness? Who knows?)
From the cross-examination (pun intended), it appears that the Prop8 defense will argue that Sanders is swayed, but not others, and, even if they are, the right way to handle societal changes in opinion exemplified by Sanders is to let the legislature and the people vote on them, not the courts.
On the Constitutional matters at question, Prop8 will likely twist or use Sanders as probative of their view, having got him to admit that ordinary people of goodwill can disagree and that gay and lesbian couples have sufficient equal protection under the law with civil union (or DP). Sanders will be less probative of the question of how much political influence gays and lesbians have, other than his recognition that the trend is toward non-discrimination.
Herrera missed an opportunity on re-direct, I thought, after Prop8 attempted to paint Sanders a corner with a question about whether it would be "fair" if no one had civil marriage. That may be an attempt to make Sanders sound like he's the one who hasn't thought things through, rather than the other way around, that "fairness" is not the point of discrimination in marriage law. We'll see.
THE TIME HAS COME, THE WALRUS SAID
The testimony of Professor Lee Badgett was much harder for the Prop8 folks to impeach. I mean, the facts and figures just don't seem to be there, to justify a coherent worry about the harm from committed couples, to themselves, the children or others. Badgett was unequivocal that the data, in her opinion, do not support continued, informed worry.
So, what to do?
Well, two impressions were left on me. Give the appearance of confusion, by wearing everyone out with facts and statistics and methodologies and estimate uncertainties and long questions that put pounds and pounds of paper in from of weary Justices, while impugning researcher's motives, because they donated to this-or-that campaign for "equality". Raise doubt whether a suspect class could be defined in law around "orientation", even, because researchers look at sexual behavior, not just sexual identity. (uncertainty-check, doubt-check, fear-next step).
Set up for a rival goods argument, a put-down of issue of marriage, even if it has speculative merits: there are so few gay couples, even less who are interested in marriage, the "greater good" in California has judged itself imperiled by them, and harms are mitigated with the civil unions law. To me, this is the most pernicious of arguments on the table. If Justice was ever equality-at-law, it would be to refuse these 'lessor of' arguments or set them to the highest standard of proof.
{The defense have not brought up the (godless?) 'reproductive industry' concerns that they usually do, yet.}
Last, the Prop 8 defense attempted to neutralize the question of money, related to marriage, in two ways. First, they showed the Prop8 ballot, which had a false statement that there would be no significant, anticipated financial impact, long or short term. I'm not sure how that will be summarized, yet.
Second, it seemed as though they were attempting a moral equalivalence argument, in the spirit of Sosman. Prop8 had Badgett testify that no one on the same-sex marriage side would see the issue differently, if marriages were to cost the state revenue, rather than generate it (at least in her experience). In other words, their questioning suggests they intend to argue that both sides recognize this is a 'moral issue' or a 'principled issue', so that money calculations do not matter. Put another way, there is animus on both sides, if any is to be shown, by the indifferent attitude to pecuniary costs. Boies did not do redirect on this Q&A, for good or ill.
