PA trial that started with the high rhetoric that "now is the time" is now observing that opponents only need one of three to stop the effort....
D'oh!
Showing posts with label Prop 8. Show all posts
Showing posts with label Prop 8. Show all posts
Wednesday, February 3, 2010
Sending Up Lead Ballons?
Wednesday, January 27, 2010
David Blankenhorn, Today's Courtroom Defender of "George Wallace" in Our Times
David Blankenhorn is on the stand today, defending the George Wallaces of our time, Dr. "Tam-tam", Andy Pugno, and the entire lying, manipulative and fear-frothed campaign, that included an election morning e-mail among the Catholic conference with the perhaps telling subject line, "go to confession".
What is he saying? Well, that marriage is for children.
What does the Bible say, in the most visible creation allegory of the Western World and beyond?
God created Eve, because he saw that Adam was lonely (2 Gen 18). Yes, that's right, an adult-adult spirituality, right there, at the center, "from the beginning".
There is much in the allegory, actually, that is gay-appropriate.
Monday, January 25, 2010
Prop 8 Trial, Day 10 - Noted while passing
{Not for nuthin', but does anyone know what the wonderful Rick Jacobs at Courage Campaign is after with this, today:
Frank Schubert just walked in. For the record, he’s a genial guy and he obviously knows how to win campaigns. Let us not mistake skill for belief. He’s no William Tam or Andy Pugno (see Brian’s excellent post).
Wha?}
Prop 8 Trial, Day 10 - OMG, Susan Kennedy = Gay Power
The Prop8 defense council has put up Susan Kennedy, Chief of Staff to Da Governator, as an example of gay power, via their "expert" witness, Miller.
This Susan Kennedy. Yikes!
No matter what you think SK ought to have done on the question of gay marriage, what she did or didn't do is no example of gay power, right? I think there can be broad agreement on that.
(A determination of whether gays and lesbians as a group can exercise political power is at the heart of somewhat settled constitutional analysis).
[Whether Boies catches this on cross, still reading ...]
Beyond Pedophilia/Ephebophilia
Last year, Dan Savage got the special award for this video, and Rob Tisinai takes the lead, this year, with his! (noticed here and here, as well)
I'm increasingly of the opinion, however, that what may be required of us is to walk nongay marriage advocates every step. of. the. way. down. the. isle. with. us.
We need more than just advocacy. (Although, getting your Gandhi on is a new high for Western Civilization).
Quite apart from lobby groups, perhaps something like a gay-straight alliance for families and couples suits an unmet need. Supporting that from behind, ways to institutionalize these bits of knowledge, these videos, in new ways, ways that can be accessed by those of goodwill who might yet have an open heart. In short, something other than individuals' advocacy that can propagate understanding and norms.
And some part of 'activism' ought to shift focus. The above example is fine, complete. By way of illustration, here is an exercise in practical wisdom.
- Q: My daughter says her scoutmaster is a lesbian. Should I send her on an overnight with this scoutleader or not?
- Q: Statistics say that there are pedophiles and ephebophiles. As a nongay parent, I admit that gay molestation freaks me out doubly. Anyway, assuming that I want to act fairly and rationally, what should I do, when I send my kid off to camp for the summer?
- Q: I saw a todler holding a sign that said, "Two boys can marry". Is that what I want to teach my kids? I'm a Christian parent of four kids. I'd like to think I'd love a gay son or lesbian daughter. But, at the same time, I'm not sure what I want to teach them, until I find out; and, it seems un-Christian to me to telegraph a message that everything is okay for everybody. What should I say, in advance of knowing if my kid is gay or not?
I think a book of wisdom on that score, built the right way, could cut like butter through the highbrow "battle" that is going on way above the Endor moon, right now. Not just a book, perhaps. The "our stories" campaign can be broadened to the social context of our lives, especially of the gay kids, i.e. the foundations of gay-friendly "social institutions".
Antigay marriage advocates seem so insular, they are unable to reconstruct these things for themselves. The few that capable of blocking out from blind religious doctrines want statements and attitudes that are potentially normative that they can latch onto, they are unaware of the breadth and depth of the LGBT community, it seems.
Btw, one suspects this need abides, whether the Supremes rule favorably or not.
Sunday, January 24, 2010
Prop8 Update: Fear Campaign Will Resume once Plaintiffs Rest
Everything of fineness in a courtroom happens on re-direct.
I haven't written-up Day 8 yet, but I can tell you that God is great and Theodore Boutrous, Jr., is proof. His re-direct with Segura, I thought, was masterful (even though I'm just a judge on American Idol). We are lucky to have him!
Please note that Prop8's trial brief is available online. I found this out only recently.
I probably won't be able to get to these before the treadmill begins anew. Blankenhorn requires my attention...
The fear campaign that was Prop8 will resume, once the Plaintiff's rest on Monday. ADF is already getting more aggressive (I think) in some of their tweets to their blind "faithful".
Of special note, the political power-hungry leadership of almost every self-proclaimed marriage and family advocate has said that civilization is at stake, in ways known only to them, from marriage for committed gay and lesbian couples. A quick scan of blogs and websites, today, however, shows no meniton of the Prop8 trial, with special links to transcripts or other direct evidence, with NOM and NRO the exceptions. Is this how one acts, when civilization itself is at stake? It's about the indoctrination, one guesses, then.
Saturday, January 23, 2010
NOM: Mormons are True Christians on Trial
AN OPPORTUNITY FOR LIBERALS TO ARTICULATE A MESSAGE TO "VALUES VOTERS"?
NOM blog flutters, "Christianity on trial". So Mormons are Christians these days? What else can Maggie mean, since the LDS were so heavily involved in Prop 8, with 20,000 feet on the ground, according to documents in evidence on Day 7? A day ago, she was talking about "traditional faiths". LDS are a traditional faith? Interesting. I suspect we'll see some fine print on that, you?
Clearly, it's not Christianity on trial. The problem is that referendums/plebiscites rather negate the constitutional promise of a Republic, in favor or a pure democracy that can discriminate against a minority group for any reason, so long as there is a flimsy one that can be asserted for formality.
Reading in the comments, some people just don't seem to understand why voting some tenants is not appropriate way to reach consensus in a pluralistic society, in a democratic Republic. Articulating a message to those people could be a way to strengthen the liberal and progressive appeal to self-identified "values voters".
Friday, January 22, 2010
Prop 8 Trial, Day 7 - My Stylized Summary
Today, we got to peek into two venues of the inner political sanctum of the unholy coalition that was forged to publicly smear and defame gays, while making pretenses to 'protecting marriage and children'. I agree with Shannon Minter it would have been a good day to televise.
Just as the lid is coming off the international coalition, including The Family, who pushed Uganda into consideration of laws to execute gays, we got a small peek at the internal-external Prop8 documents that show an astonishingly broad religious-political army and, perhaps, even rank hypocrisy, within the "moral" leadership council (what else am I to make of an election-morning e-mail entitled, "Go to confession", on face?).
Second, we got a first-hand account, a peek into NARTH, the evangelical spiritual-violence center run by Focus on the Family.
We got a first-hand view of the abdication of many (Blankenhorn, too?) of the birthright of gay kids, offered in public testimony by Ryan Kendall, despite any reasonable fear of reprisal and 'irreparable harm':
A. When I was 16, I separated myself from my family and surrendered myself to the Department of Human Services in Colorado Springs.
Q. And what happened when you surrendered yourself to that department?
A. I -- I went in, and I spoke with the case worker. And I told her what had been going on in my family, what had been going on with reversal therapy. And I told her that if I went back to that house, I was going to end up killing myself.
And so they started a dependency and neglect proceeding to revoke my parents' custody.
Q. So did you stop living with your parents and stop going to therapy?
A. That's correct.
Q. And did things get better?
A. I was a 16-year-old kid who had just lost everything he ever knew. I didn't really know what to do. I was very lost. And so the next few years I wandered in and out of jobs. I wandered in and out of attempts at school.
I was incredibly suicidal and depressed. I hated my entire life. At one point, I turned to drugs as an escape from reality and because I was, you know, trying to kill myself.
So, no, things did not get better.
Q. And what happened when you surrendered yourself to that department?
A. I -- I went in, and I spoke with the case worker. And I told her what had been going on in my family, what had been going on with reversal therapy. And I told her that if I went back to that house, I was going to end up killing myself.
And so they started a dependency and neglect proceeding to revoke my parents' custody.
Q. So did you stop living with your parents and stop going to therapy?
A. That's correct.
Q. And did things get better?
A. I was a 16-year-old kid who had just lost everything he ever knew. I didn't really know what to do. I was very lost. And so the next few years I wandered in and out of jobs. I wandered in and out of attempts at school.
I was incredibly suicidal and depressed. I hated my entire life. At one point, I turned to drugs as an escape from reality and because I was, you know, trying to kill myself.
So, no, things did not get better.
In case there were still some white-washed tombs left, or cold-hearted judges yet to come, or people who justified their foot-dragging by neatly separate buckets of discrimination, Boies offered up two more pieces of expert testimony, from Katherine Young and from Paul Nathanson. Nathanson testified to a long string of professional groups (including Anthropological) that endorse marriage for committed gay couples and as good for the kids of gay couples. He testified that "hatred" was cultural hostility, not just "an emotion". Young testified that the same 'protect the children' trope was used by religious groups to oppose the women's movement.
THE POLITICAL ARMY OF GOD
Professor Gary Segura, a political scientist, spoke about an 'expert report' that he had prepared for the trial. He gave various theories about how gays could be visible, but lack political power. For instance, the new mayor of Houston, a lesbian, cannot get domestic partner benefits, because those have been denied directly by the voters, via referendum/plebiscite. He talked about the special case of plebiscite, which links local with national opposition. On cross, he talked about gay political action groups overstating their influence to donors. Asked about the recent Federal Hate crimes law signed by the President, he said it was a 20 year goal achieved, but it still had to be attached to the must-do Defense Authorization bill, afterwhich it still lost 75% of GOP support. [I did not check his numbers.] He spoke about the use of persuasion as a "weakest form" of political power.
There was a long list of other topics. Frank Kameny and the Mattachine society. Colorado's Amendment 2. Prop 187 in CA. How the amendment process has been used to target minorities, in general. He guessed at 0.005% of local officials were gay and circa 1% of state officials (445 is the total number offered on cross for all office holders). Far too much to recap. The role of the Judiciary in prompting legislative changes. Disposable income. Access. Lobbyist awards...National AIDS/HIV strategy. The ACLU, the TV set, the NYT, the HRC's claim to have reached 90% of the US population with a message, legislative scorecards, labor unions,
Some real courtroom tension came, however, when Plaintiffs tried to start introducing documents from the Prop8 campaign.
From the documents that made the cut we learned:
- 20,000 LDS-related volunteers walking around, at one point, on a Saturday
- conference calls, one with 1,700 listeners in 101 locations in June, 3000 in July and a goal of 5,000 (!!!)
- kick off letters from the First Presidency of the LDS
- "The Pastor's rapid response team"
- the heretofore unknown involvement of a polling specialist who was actually a point-person within the campaign for organizing "public affairs"
- "John Does" who are yet to be named
- An election morning e-mail that has a subject line, "Go to confession"
- The Catholic Conference "Led by the Knights of Columbus national donation of $1.15 million, other million-dollar donors, and countless major donors,"
- tax-law troubles in spades: "As you know from the first Presidency letter, this campaign is entirely under priesthood direction - in concert with leaders of many other faiths and community groups forming part of the ProtectMarriage.com Coalition."
- "We have the political and financial support of groups such as Focus on the Family, Family Research Council, American Family Association, The Arlington Group, and many others."
THE COURT: Does losing elections or failing to obtain legislation denote political powerlessness to require extraordinary protection against majoritarian political processes?
THE WITNESS: Losing an individual election, in my view, would not because in the Democratic process someone losses all contests.
The initiative process, however, is a little bit different because it is the only circumstance where we put individual rights up to a popular vote.
So we have 150 or more instances in a decade and a half where anti-discrimination protections are voted on by the population and overturned, even though the legislature or its city council or county board had granted them.
We have uniform passage of constitutional amendments to exclude one group of citizens from a civil institution. And that's extraordinary, in my view.
Now, does -- would each individual act by itself be determinative of whether or not there should be judicial intervention? I would say, just as I said to Mr. Thompson, that an outcome by itself is a piece of information, but we would want to know the context in which it passed.
So if we look at the passage of a particular bill in the Assembly, if we have the passage of a bill where the majority party votes for it and the minority party votes against it, then we might reasonably expect that should that majority change, we could see a reversal on that. We could contrast that with an outcome which is bipartisan, for example.
We can see examples where a legislature passes a bill and the public then files an initiative to overturn it.
So I would want to look at the range of events rather than a single event. And in my view when you look at the range of events that have occurred in terms of the, you know, public voting directly on questions of gay and lesbian rights, that their loss rates suggests that longstanding prejudice against gays and lesbians is shaping what their political opportunities are.
THE WITNESS: Losing an individual election, in my view, would not because in the Democratic process someone losses all contests.
The initiative process, however, is a little bit different because it is the only circumstance where we put individual rights up to a popular vote.
So we have 150 or more instances in a decade and a half where anti-discrimination protections are voted on by the population and overturned, even though the legislature or its city council or county board had granted them.
We have uniform passage of constitutional amendments to exclude one group of citizens from a civil institution. And that's extraordinary, in my view.
Now, does -- would each individual act by itself be determinative of whether or not there should be judicial intervention? I would say, just as I said to Mr. Thompson, that an outcome by itself is a piece of information, but we would want to know the context in which it passed.
So if we look at the passage of a particular bill in the Assembly, if we have the passage of a bill where the majority party votes for it and the minority party votes against it, then we might reasonably expect that should that majority change, we could see a reversal on that. We could contrast that with an outcome which is bipartisan, for example.
We can see examples where a legislature passes a bill and the public then files an initiative to overturn it.
So I would want to look at the range of events rather than a single event. And in my view when you look at the range of events that have occurred in terms of the, you know, public voting directly on questions of gay and lesbian rights, that their loss rates suggests that longstanding prejudice against gays and lesbians is shaping what their political opportunities are.
Thursday, January 21, 2010
Deja Vu, by the Attorney Who Was There
Evan Wolfson writes on the re-run aspects of the Prop8 trial:
The groundbreaking 1996 trial in Honolulu featured weeks of testimony, all covered on Court TV, followed by months of legal argument, briefing, and deliberation, and then the tectonic ruling by the highly respected Judge Kevin Chang, based on the evidence and argument, in favor of the freedom to marry.
What's striking in the California courtroom now is how the anti-gay forces, 14 years and tens of millions of dollars later, have come up with nothing to alter Judge Chang's finding of no "sufficient credible evidence that demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage. Nor has the opposition demonstrated how same-sex marriage would adversely affect the public fisc, the state interest in assuring recognition of Hawaii marriages in other states, the institution of marriage, or any other important public or governmental interest."
Prop 8 Trial, Day 6 - My Stylized Summary
[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.
Monday, January 18, 2010
Another, who must not be named
Saturday, January 16, 2010
Prop 8 Trial, Day 5 - Other Notes
Today would have been an especially good day for the trial to have been televised.
Today was shocking because one wonders how it is that every Congresscritter can probably recite what the Right says about Adam&Steve and their Tippecanoe on family, but how so few can probably summarize the key findings of decades of serious research into the matter, in three points, as did Dr. Lamb today:
[the foundations of good parents, of good family outcomes]
1. The quality of the relationship that children have with their parents and those that come after them. Large body of evidence that children do best when with loving parents and do worse without.
2. The quality of the relationship between the parents or other significant adults. Kids do better when parents are happy with each other than not.
3. The availability of adequate economic and social resources.
It doesn't mean that someone cannot have a faith belief or a sociological belief that "ideals" are useful. It does certainly mean that idealists should temper their views when making public policy for the whole of God's creation, for all of society... They might gravitate, instead, to a 'balance of liberties' approach, rather than generate grave harms in blind or headstrong pursuit of ideals/doctrine.
Also, it seems a pity that the gay community has to wait for a trial of this magnitude to marshall the huge array of competent argumentation and studied review of the opposition, as has been done here. That doesn't slight any other efforts, even those focused differently. It's just an observation.
Prop 8 Trial, Day 5 - My Stylized Summary
The passion and ‘ideology of the family’ was on trial today.
The pro-marriage folks made a strong case that gay parents have and will do just fine. On the expert evidence today, I suspect that a court could NOT reasonably exclude gays from parenting.
However, the defense may not be worried.
After all, if there are Justices on the highest court willing to hold themselves to the lowest standard, exclusion is not the question. All they need is a good enough reason (or excuse?) to include people, and the rest be damned. That’s how they could roll, how they could yet bankroll constitutional anti-gay prejudice on something as arguably fundamental as marriage to the lives and social life of couples and their families.
However, to the extent that inclusions look less and less rational, flimsy, then ... suspicions are raised; and well, even Justice Kennedy threw one law out, in Romer, I believe - maybe there is a way for them to rule narrowly on Prop 8, without answering whether there is a fundamental right in their view, quite yet?
There are more quivers for the defense to yet cast aspersions on gay parents, e.g. ‘the reproductive industry’, which has yet to come up at trial. Neither have the pro-marriage people attempted to put any ‘harms’ from gay parenting into context, e.g. more unwanted children are probably destroyed every year in the U.S. than sought by the entire ‘reproductive industry’ related to gays … (this is another reason why Blankenhorn’s circling of the wagons inside a ‘rival goods’ argument, which used to have some intuitive currency with me - never any scriptural currency, no longer does, as a matter of what we might call 'practical ethics').
I detected a strange tension between today’s testimony, that kids of unmarried gay couples, by evidence, can end up as well adjusted as their nongay parented peers. Yesterday’s testimony, by evidence, was that gays as a group face social stress, due to stigma, that has a differential impact on them.
In a way, today’s testimony questions whether marriage as a legal contract can really be used by the State to promote anything. The State cannot promote good marriages, good parents, by exclusion of anything but bad parents, etc. One is drawn back to the view that marriage contracts are primarily a private affair, and the State merely facilitates these affairs and should do so in the most equitable way. (A recent libertarian amplification, here, by head of CATO).
At the end of the day’s work, Helen Zia, raised and educated in New Jersey, gripped the courtroom with her life’s story. The defense dismissed her as” not probative” and then sought to cast doubts on her decision to marry, bringing up the theme that the gay marriage advocates are part of a “left wing agenda”, which one assumes will be the counter to aspersions on what they will represent as Prop 8’s true motives, those apart from the hate and lies that were encouraged in order to win passage.
(In response to questions on cross, Mrs. Zia never said that Prop 8 was invalid because people cannot vote on ‘what is from God’. Sadly, had she done so, she might have countered having "ACLU" flung in her face by counsel.)
Ref #1: CCampaign Summary
Thursday, January 14, 2010
Prop 8 Trial, Day 4 - My Stylized Summary
NO MONEY OR SCIENCE WILL BUY OUR SILENCE ON THE SANCTITY OF MARRIAGE!
Today was the day that the Prop8 folks had to admit that all the money that marriage has to offer the state of California doesn't matter to them.
Surely, denying the profit motive - one of the most basic ordering principles of our society - is irrational, unbalanced, indicative of a strange animus? I know, probably not, as a general principle, but it does seem relevant how much these benefits are overlooked, almost wholesale.
Among other economic costs of discrimination, linked to marriage denial: bullying in school (nearly 100K absences, costing maybe $40M), lower cost of state-supplied health insurance (maybe tens of millions), foregone higher property values, liftetime earnings/savings. The list goes on.
We don't know how the Plaintiff's will summarize this evidence, but it appears that they are doing a lot to tug at the heels of the notion that Prop8 is a costless benefit to society, with the Prop8 notion that marriage has 'broader implications' than for the two people involved.
Social science claims about the impact of discrimination and the cost of second-class status on the mental health of minority groups, including gays, were on trial.
Prop8 had a LOT to say about that. At all costs, no definitive science that gays are a 'suspect class' can be allowed unchallenged to the maximum, even though most of the conclusions of the impact of stress are...shall we say, obvious?
Ref 1: CCampaign
More Evidence that NRO died with or before Buckley...
One simply cannot make this stuff up. :
The Ninth Circuit’s history of lawlessness means that any adventuresome ruling it makes reaches the Supreme Court with special suspicion attached to it.
-Ed Whelan
-Ed Whelan
A history of lawlessness? Again, I'm so outta here on the "NRO".
But, on the way out, just savor this for its ... sheer arrogance?:
Even before yesterday’s ruling, it struck me as farfetched that any Supreme Court justice would think that the question whether there is a federal constitutional right to same-sex marriage might turn on how a trial judge resolves contestable issues of fact.
Prop 8 Trial, Day 3 - My Stylized Summary
THE DAY OF LOWERING "STANDARDS"
Today was all about making the world safe for gay bigotry and second-class citizenship.
One can see the outlines of an argument to the Supremes:
1. things aren't so bad and getter better for the gays so no need to use strict scrutiny, if you don't want;
2. what's more, here are some reasons that people may have voted for Prop 8 and just ignore ALL the hate, fear, religious-doctrine, and ignorance as irrelevant, which you can do if you hold yourself to a lower standard; {and the silver platter invitation goes to Justice Kennedy}
3. and if you don't - look into my eyes, there will be untold and yet unimagined harms to "the institution of marriage", as opposed to harms to the actually married heterosexuals, a distinction which you can use to your self-serving advantage, if you want. (Besides, the gays are a sick and twisted people, based on {insert FUD docs, events, people, and statements})
Oh, not to forget, here's an unmarried nongay couple who had a baby by accident, in case you need some more fluff stuff for your low standard.
The horrible stuff behind the Prop 8 campaign came to light, as plaintiffs put up an exposee so compelling that it exhausted the judge, even if it was focused on just one of the defendants, a prime mover of he Prop 8 drive. Sadly, all that was overshadowed by the late-in-the-day SCOTUS decision to block television coverage of the defense objecting to the display of their own public materials.
Today, I felt very much like this case is a waste of time to go to trial, for activists, who could better put their time into strategies to move the electorate. I so hope I'm wrong. The two create a horrible day-to-day tension. I found myself speculating that the best case might be to lose at trial and not appeal - how sickening is that? But, this analysis suggests that could be worse, in terms of a DOMA challenge. The tension, again. zzzzgrrrr
[There was some really good trail lawyering going on today, by both sides. Therese Stewart really acquitted herself phenomenally well, I thought. The craftiness of the other side was admirable, soaking witnesses with lose-lose questions.]
Ref1: CCampaign
Wednesday, January 13, 2010
Supreme Court Rides Herd, Today
In a brash move, reminiscent of Bush-v-Gore, the Chief Justice at SCOTUS and his cohorts have reached down to bring the crazy, once more.
Given that the appellate court, who must be closer to administrative matters in the 9th circuit, did not overturn the district judge on procedural grounds, the move by SCOTUS looks like an over-reach, especially because they relied so much on the same procedural objections that the appellate court didn't find had merit. The substantive discussion, the other basis for their decision and the part where a broader perspective and nuance might be in play, is ...well, so thin it's pretty laughable. Srsly!
Like Bush-v-Gore, I predict that this decision will be laughed at for years, even if you are against televising because it is inimical to the deliberative process. Bemoaning haste, they've acted hastily.
It's sad.
Especially in the context of this trial, which cries out to be heard, in a unique way. When the Executive, the Legislature, and the voters act in silence, the courts are the people's last hope for Justice:
“Bigotry is the disease of ignorance, of morbid minds; enthusiasm of the free and buoyant. Education and free discussion are the antidotes of both.”
-Thomas Jefferson
-Thomas Jefferson
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
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
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