Walker asked:
If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?
Olson and Boies respond:
In their answers to Judge Walker’s questions Olson and Boies argue clearly that the idea that children need a mom and dad is now evidence of animus and bigotry:
Campaign messages in support of Prop. 8 stated and implied that same-sex relationships are immoral, and portrayed same-sex relationships and families as inferior. See, e.g., Chauncey, Tr. 427:16-428:22 (The official Yes on 8 voter arguments are premised on the purported inferiority of gay people and their relationships. To argue that the best situation for a child is to be with a married mother and father is to argue that the married heterosexual couple is superior.).
If we lose this case, our own government through the courts is going to police as bigotry that idea. Amazing times!
Their arguments would strike down marriage laws in at least 45 states and overturn DOMA. But they don’t want to admit that. Their official position is:
Yes. Plaintiffs have challenged only Prop. 8 in this litigation. The Court need not—and in the absence of a federal defendant, should not—address the federal Defense of Marriage Act in this litigation. It may be that the Court’s ruling will have implications for the Defense of Marriage Act and other similar laws that discriminate against gay men and lesbians. But such implications, if any, will depend on the parameters of this Court’s decision.
Here’s another interesting question Walker posed for the lawyers today:
Even if enforcement of Proposition 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?
Will Boies and Olson admit that this case is about marriage in all 50 states and the federal government? Or will they try to pretend there is some narrow ground that applies only to California?
Judge Walker asked 39 questions, to help the lawyers prepare for these final arguments. Here’s his first question:
Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Proposition 8 was rationally related to a legitimate interest. Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Proposition 8?
This is a weird question. He seems to be importing a new standard into the rational basis test. How much social science evidence delivered by an expert witness do voters need before their judgments are held to be rational? Imagine if any other law were subjected to this test.
The idea that sexual unions of male and female are distinct and uniquely necessary is a big obvious truth. His question implied we are now in a mandarin democracy. We’re defining democracy down, such that only people with Phds and databases are permitted to hold opinions judged “rational.”
In a letter to the New York Times published today, Jonathan Rauch, prominent pro-gay marriage author, defends David Blankenhorn, who testified as an expert witness in Prop 8 trial, from scurrilous multiple attacks by Frank Rich:
“Frank Rich, for the third time since February, unfairly criticizes David Blankenhorn, president of the Institute for American Values and a witness in the trial over Proposition 8, California’s ban on same-sex marriage. . .”
Kudos Jon. http://www.nytimes.com/2010/06/16/opinion/l16rich.html
We are waiting around for the final arguments to begin in this show trial. Here’s a photo of the Dream Team for their side, David Boies and Ted Olson (“California Ted, not FedSoc Ted”).
No photos allowed inside the courtroom. Here’s our guy, one very smart lawyer, Chuck Cooper with his new nemesis Ted Olson:
Over at FrumForum, University of Chicago Law Prof. Richard Epstein tells Jeb Golinkin that although he favors same-sex marriage, he hopes Olson/Boies “lose the case for legal reasons,” namely that “in this instance the gay rights groups have to redo the Constitution from scratch, which does raise serious questions of political legitimacy.”:
Here’s the opening from NOM President Brian Brown’s column at National Review Online this morning. Read the whole thing here
As the lawyers wind up their final arguments, and we wait for the trial judge to issue his decision in California’s gay-marriage case, a key civil-rights issue is at stake. Gay-marriage advocates are now asking federal courts to invalidate Prop 8, a state constitutional amendment defining marriage as one man and one woman. They are asking federal courts to invent a fundamental right to gay marriage. If they succeed, gay marriage will become law, not only in California but in every state in the United States.
Gay-marriage advocates are wrong in what they are asking the federal courts to do. But they are right about one thing: The case is indeed about a fundamental civil right — but not the one they are asserting. It is about the right to vote to protect marriage.
Today’s the day . . . closing arguments on California’s Proposition 8 begin at 10am PT/1pm ET in Judge Walker’s San Francisco courtroom, as the plaintiffs seek to make the case that marriage is bigoted, discriminatory and unconstitutional.
NOM chair Maggie Gallagher is in the courtroom and will be liveblogging and live-Tweeting throughout the day. When arguments finish, sometime around 7pm ET / 4pm PT, I’ll be online with live streaming video to give some immediate reaction to the day’s arguments.
Here’s a quick rundown of the day’s schedule (all times PDT):
| 10:00 – 11:30am: | Plaintiffs’ Argument (Ted Olson & David Boies) |
| 11:30 – 11:45am: | City and County of San Francisco |
| 11:45 – 12:00pm: | Governor, Attorney General and County Defendants |
| 12:00 – 1:00pm: | Lunch |
| 1:00 – 3:15pm: | Prop 8 Proponents (Charles Cooper) |
| 3:15 – 3:45pm: | Plaintiffs’ Rebuttal (Olson & Boies) |
So invite your friends, and check back often (or just refresh your browser!) throughout the day. And while you’re here, please consider a gift to the NOM Legal Defense Fund. Donations are tax deductible and every dollar raised will go to help offset the cost of legal fees and other litigation expenses.
Based on these answers, filed yesterday, expect to hear a lot of argument along this theme today:
“Because Prop. 8 was an attempt to enforce private moral beliefs about a disfavored minority—and does not further any legitimate state interest—it is unconstitutional.” (p.12)
From this morning’s LA Times:
The objective of the lawyers arguing for Proposition 8 before Judge Vaughn R. Walker is to show that voters had rational reasons for approving it rather than being motivated by bigotry. And a key reason, one of the lawyers said, is that children fare best when raised by a married couple of opposite genders. . . .
The premise also is irrelevant. Just as we wouldn’t propose taking marriage away from heterosexual couples even though their children might not do as well as those of lesbians, there is nothing reasonable about denying marriage to same-sex couples based on judgments about child-rearing or anything else concerning the perceived quality of their marriages. Despite what Proposition 8 supporters have tried to argue during the trial, marriage is not solely about procreation and raising children; for many couples, that’s not even a factor. And same-sex couples who want children will have them whether or not they have a marriage license.
Full text: http://www.latimes.com/news/printedition/opinion/la-ed-prop8-20100616,0,4242644.story?track=rss
Today, I am getting on an airplane, flying to San Francisco to be at the courthouse for the end of the historic Prop 8 trial. Final arguments begin Wednesday morning at 10 a.m. Pacific time, and I will be live blogging and twittering. You can follow the arguments throughout the day here.
This is the trial that should never have happened. Hundreds of thousands of Californians contributed blood, sweat, tears and treasures to exercize their core civil rights to respond to the California State Supreme Court decision overturning marriage. That’s what that decision did: it didn’t expand marriage to more people, it abolished the core idea of what marriage is—the union of male and female—and replaced it with a new judicial definition of marriage, ungrounded in the natural order, in our history, or in our constitution.