Judge Walker

Here’s the preview I wrote at Metro Weekly for today’s closing arguments:

More than five months ago, the trial questioning the constitutionality of California’s Proposition 8 – prohibiting same-sex marriages in the state – began in U.S. District Court. Tomorrow, June 16, the trial of Perry v. Schwarzenegger will come to an end. That end, however, could also be the beginning of the much larger case for equality in marriage across the country.

I’ll be live-blogging here with thoughts and interesting notes about the argument as it happens, but also be sure to follow my list on Twitter of people in the courtroom and tweeting the closing arguments live.

Interesting question and answer:

JUDGE WALKER: Are you focusing on the facts pertaining to the California initiative or facts pertinent generally and throughout the country with respect to marriage?
MR. OLSON: Both of those.

Punt.

More from Olson:

I think it’s really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we are talking about, by the United States Supreme Court.

The Supreme Court — the freedom to marry, the freedom to make the choice to marry — the Supreme Court has said in, I counted, 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is. And I have set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it.

Tough words. This logic would apply across the United States, regardless of the type of marriage ban, whether it be statute or constitutional amendment (or just a lack of marriage equality without any affirmative prohibition, like in New York).

The judge brings up Baker v. Nelson:

JUDGE WALKER: Well, now, the Supreme Court in the Baker versus Nelson case decided that the issue which we are [concerned] with here was not ripe for the Supreme Court to weigh in on. That was 1972. What’s happened in the 38 years since 1972?

Interesting softball. Olson, of course, responded that much had changed — noting, most specifically, Romer v. Evans and Lawrence v. Texas.

Walker notes that, unlike in Lawrence, we are not dealing with a criminal statute here. Olson’s response is excellent:

And then the court goes on to say, persons in home sexual relationship may seek autonomy for these purposes just as heterosexual persons do. The court was talking about the private intimate behavior. If the court had said instead you can go to jail for five days because we caught you doing those things, we will take away your right to drive on the highways, we will take away your right to marry because you do those things or you engage in that conduct, it seems to me that that is just as unconstitutional especially if the thing which is taken away is also a fundamental constitutional right.

Good stuff.

Hard talk from Ted Olson:

It’s a traditional definition of marriage, which is something that we have always done it that way is the same — is a corollary to the because I say so. It’s not a reason. You can’t have continued discrimination in public schools because you have always done it that way. You can’t have continued discrimination between races on the basis of marriage because you have always done it that way.

That line of reasoning would have prevented the Loving marriage. It would have justified racially segregated schools.

Wow. Olson goes on:

Well, we know that taking away the right to marry was indeed the very essence of slavery. Yet that very freedom, once denied to slaves and denied to interracial couples throughout this country is now being denied to the plaintiffs not because they are Chinese, not because of their race, but because of their sexual orientation. How can it be wrong in those areas and right in this area under the Equal Protection Clause? That does not square with any of the language that the Supreme Court has used in deciding equal protection cases. And that has been used, that same language has been used to strike down classes among citizens. That’s the language of Romer. That principle has been extended from race to nationality to ancestry to sex to legitimacy to the favoring of the husband in matters of marital property and in 1996 in the Romer case to sexual orientation.

That, my friends, is a closing.

Therese Stewart from San Francisco is up next, talking about the specific harm the city and county suffer because of Proposition 8. Why do people go to San Fran to marry?

MS. STEWART: Because it’s long been the City of love the city where people leave their hearts. It’s a fact of our culture.

JUDGE WALKER: The City of love.

Yup.

Charles Cooper is closing for the Prop 8 proponents:

It’s because this relationship is crucial to the public interest. It’s crucial to the public interest because, Your Honor, the procreative sexual relations . . . benefit to society and [the plaintiff's argument] represents a very real threat to society’s interests.

JUDGE WALKER: A threat?

MR. COOPER: Yes, Your Honor. A threat in the sense that, to whatever extent children are born into the world without this stable, enduring marital union, raised and responsibility taken for the offspring by both of the parents that brought them into the world, then a host of very important and very negative social implications arise and potential social consequences arise.

Interesting.

Cooper’s closing is weak.

JUDGE WALKER: Don’t we have to have evidence?

MR. COOPER: You don’t have to have evidence of this point, if one court after another has recognized — let me turn to the California cases on this. The first purpose of matrimony any by the laws of nature and society is procreation. The California Supreme Court said that . . . . A century later the California Supreme Court reemphasized that. ” The institution of marriage serves the public interest because it channels biological drives — channels biological drives that might otherwise become socially destructive and it ensures the care and education of children in a stable environment.” That’s the California Supreme Court, Your Honor. That’s the purpose of marriage in this state according to the California Supreme Court.

And? The judge concurred with my thoughts here:

JUDGE WALKER: Let me ask, if you have got 7 million Californians who took this position, 70 judges as you pointed out, and this long history that you have described, why in this case did you present but one witness on this subject, one witness? It seems you had a lot to choose from if you had that many people behind you. Why only one witness? And I think it fair to say that his testimony was equivocal in some respects.

Ouch. Then, Cooper responded:

You need only go back to your chambers, Your Honor, and pull down any dictionary, pull down any book that discusses marriage, and you will find this procreative purpose at its heart wherever you go unless, unless, Your Honor, that book was written by one of their experts or has been written over the course of the last 30 years.

The “30 years” point somewhat tore apart his case, as Cooper admitted that things have changed in the past 30 years.

JUDGE WALKER: If it is taking place throughout the country and throughout the world in this fashion, then doesn’t that indicate a changed perspective with respect to the role and function of marriage in society?

MR. COOPER: In the minds of many, yes, Your Honor. In the minds of many.

Yeah, I’m not sure how you jump out of that hole. To say that Walker’s questions of Cooper are more probing and less sympathetic is to understate them. This:

JUDGE WALKER: Let me ask you. You heard Mr. Olson this morning recount the experience of, and the background of the loving decision by the Supreme Court in 1964, I think, 67. And up to that time numerous states had laws on the books which prohibited interracial marriage. At some point there came exactly the same kind of social change that you have just described with respect to homosexuality. And at some point, 1967, that matured into a constitutional recognition of a constitutional right, that the limitation against interracial marriage violated a fundamental individual right under our communication. Why are we not at that same at this point . . . here with respect to same-sex marriage?

Well then.

After — in his discussion of the standard of review — positing that gays are not politically powerless and asserting that homosexuality is not immutable, Cooper did acknowledge that gays do have a history of discrimination.

JUDGE WALKER: This Proposition 8 and these other positions in other states that limit marriage to opposite-sex couples, the DOMA statute that has been mentioned, the exclusion of gays and lesbians from military service for a long period of time, aren’t all those simply indicia of a long history of discrimination?

MR. COOPER: No, we would — I want to are clear on this. We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination. We have been bound to note that thankfully the situation today in 2010 is not what it was even yesterday let alone in 1990 when high tech gays was decided, thankfully.

Um, this is just a roundabout, sneaky way of claiming that gays aren’t politically powerless any longer.

Walker gets into what rational basis is even claimed:

JUDGE WALKER: A disability, a classification, has been put on marriage which disables people who wish to marry others of the same sex. In order to disable certain citizens do you not have to show a core relative benefit to others or to society? And the “I don’t know” or you don’t know where this is going to lead answer, is that enough to impose upon some citizens a restriction that others do not suffer from?

MR. COOPER: It is if there is a rational basis for that distinction, yes. I really think that really ends up being the bottom line on it. If there is no — if there is — if in looking at the, whatever society’s purposes are for marriage and interests are for regulating and caring about marriage, if there is no basis on which to draw a distinction between one group and another, then the distinction can’t stand. But if there is a distinguishing characteristic that is relevant to one of those purposes, then the distinction can stand.

Not so sure there.

Now, the plaintiffs will have a 30-minute rebuttal time. Olson crushes from the start:

[Y]ou can’t come in here and say I don’t know and I don’t have to prove anything and I don’t need any evidence except for some people writing in books who won’t come into court and subject themselves to the judicial process.

. . . .

Mr. Cooper says you have to accept the fact that first of all you have to accept my definition it has to be between a man and a woman. Then if you have oh marriage between a man and a man or a woman or a woman it will change the marriage. Well, of course it will, because you started by defining the term that you wanted to define.

Blunt. Echoing an earlier editorial about the Vermont marriage case in The New Republic that I’ve always loved, Olson said: “Proposition 8 isn’t changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.”He then addressed the issue of why this is coming up now:

It’s no longer against the law to work for the federal government. It’s no longer against the law in most places to walk into a bar if you are a homosexual. The break down thank God of some of these barriers has changed people’s attitudes and I am sure that contributes to people saying, “Now, well, if that’s the case and psychiatrists have changed their view about homosexuality.” People no longer think it’s a disorder or anything like that. They have explained and people have come to understand the differences between various members of society and we have found out that all of those horrible taboos are not justified. In fact — and there are stories, some of which were in the ads that were supporting Proposition 8, are no longer true. So of course people are thinking well, if these are our fellow citizens and they don’t present a risk to us, they are not damaging they are just like us, why shouldn’t we start talking about marriage?

Nicely put. Olson ended:

[Y]ou have to have a reason [for Prop 8] and you have to have a reason that’s real not post hoc justification not speculation not built on stereotypes and not hypothetical.

That’s what the Supreme Court decisions tell us. We don’t have that here. We have a decision that takes — and there isn’t any question. A group of people who have been victims of discrimination, who are a discreet minority, who have identifiable characteristics, their sexual orientation. And we want to foreclose them from participating in the most fundamental relationship in life.

. . . .

The Romer case that says you can’t take away rights and make them unconstitutional impossible to recover except by amending your state constitution. And the Lawrence case that says that the sexual orientation of individuals and their private conduct is a protected right. You cannot then in the face of all those decisions by the United States Supreme
Court say to these individuals, “We are going to take away the constitutional right to liberty privacy association and sexual intimacy that we tell you that you have and then we will now use that as a basis for not allowing you the freedom to marry.” That is not acceptable. It’s not acceptable under our Constitution. And Mr. Blankenhorn is absolutely right the day that we end that we will be more American.”

With that, as Judge Walker concluded, “ The matter is submitted.”

Judge Walker

My latest at Metro Weekly, “A Judicial Outing?” looks at the new (or not-so-new) revelation about the judge overseeing the trial about whether California’s same-sex marriage prohibition is allowed:

The judge hearing a trial over whether Proposition 8 in California is constitutional ”is himself gay,” according to a column that ran in this past Sunday’s San Francisco Chronicle.

Chronicle columnists Phillip Matier and Andrew Ross wrote that U.S. District Court Judge Vaughn Walker’s sexual orientation was the ”biggest open secret in the landmark trial.”

Is this outing? The views on whether it is or is not are, well, are as plentiful as the colors of the rainbow.

Is this newsworthy? As a fellow judge and friend of Walker’s reportedly told the Chronicle, while laughing, ”Yes.” Although some have suggested otherwise, the judge wasn’t alone.

Will the revelation matter? It’s not yet clear what impact Sunday’s column will have on the trial, where closing arguments remain to be heard by Walker.

Ted Olson (left) and David Boies adress reporters, as two of the lawsuit's plaintiffs look on.

As we enter the third week of the Perry v. Schwarzenegger trial, the Plaintiffs spent Monday finishing and resting their case.  The Defendants began their case supporting the constitutionality of Proposition 8, and it is not expected to last beyond this week. After some initial dispute over whether Yes on 8 campaign manager Frank Shubert could be called to the stand by the defense, Lisa Keen reported:

The plaintiffs then proceeded to introduce their remaining evidence—a number of videotapes and documents that demonstrate the tactics and messages of the Yes on 8 campaign. The evidence included videotapes of Proposition 8 proponents making often shocking claims against gay people – that they were attempting to “indoctrinate” children to homosexuality, promoting pedophilia, and aiming for the “annihilation of marriage.”

One video showed a young man from an ex-gay group claiming that, if Proposition 8 failed in California, it would have a “domino effect throughout the country.” A young woman sitting next to him said it would mean “pedophiles could marry six, seven, and eight-year olds.” She claimed that marriage equality in Massachusetts enabled a man there to petition for the right to marry a horse.

. . . .

After the plaintiffs submitted their remaining documents, the defense began its case in support of Proposition 8. Their first witness was Kenneth P. Miller, a professor of government at Claremont McKenna College, a private college outside Los Angeles. The defense offered Miller as an expert in the political power of gays and lesbians — a designation which plaintiffs’ attorney David Boies attacked.

U.S. District Court Judge Vaughn Walker already has stated that he is looking for a week-long break after the cases have been presented before hearing closing arguments, so that he can review the trial and ask questions of the lawyers.  This move, while unusual, is not all that surprising in light of the fact that Walker began asking questions just a few minutes into Ted Olson’s opening statement three weeks ago.

The trial is to continue on Tuesday.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five
• Week Two
• Days Six and Seven
• Days Eight and Nine

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here. Liveblogging of the trial can be found at the Courage Campaign’s Prop 8 Trial Tracker and at FireDogLake’s Prop 8 Trial Hub.

Justice Thomas

In Citizens United v. Federal Election Commission, today’s campaign finance decision (full coverage at SCOTUSblog), Justice Clarence Thomas — in an opinion, characteristically, joined by no one — found the Supreme Court’s broad decision not to be broad enough.  He dissented from the part of Justice Anthony Kennedy’s majority opinion upholding  the “disclosure, disclaimer, and reporting requirements” in the Bipartisan Campaign Reform Act of 2002.

Why?

Thomas wrote, at length about the issues present in this past week’s Supreme Court decision prohibiting the broadcast of the Perry v. Schwarzenegger trial.  I’m not going to go into it at this time, but I wanted to get this out there and make sure that people see this.

From Justice Thomas:

Amici’s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. Proposition 8 amended California’s constitution to provide that “[o]nly marriage between a man and a woman is valid or recog­nized in California.” Cal. Const., Art. I, §7.5.  Any donor who gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer’s name (or business name, if self-employed), and the total amount of his contributions.1  See Cal. Govt. Code Ann. §84211(f) (West 2005). The California Secretary of State was then required to post this information on the Internet.  See §§84600–84601; §§84602–84602.1 (West Supp. 2010); §§84602.5–84604 (West 2005); §85605 (West Supp. 2010); §§84606–84609 (West 2005).

Some opponents of Proposition 8 compiled this informa­tion and created Web sites with maps showing the loca­tions of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered propertydamage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California’s mandatory disclosure laws.  Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other sup­porter,” or, “we have plans for you and your friends.” Complaint in ProtectMarriage.com—Yes on 8 v. Bowen, Case No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31. Proposition 8 opponents also allegedly harassed the meas­ure’s supporters by defacing or damaging their property. Id., ¶32.  Two religious organizations supporting Proposi­tion 8 reportedly received through the mail envelopes containing a white powdery substance.  Id., ¶33.

Those accounts are consistent with media reports de­scribing Proposition 8-related retaliation.  The director of the nonprofit California Musical Theater gave $1,000 to support the initiative; he was forced to resign after artists complained to his employer. Lott & Smith, Donor Disclo­sure Has Its Downsides, Wall Street Journal, Dec. 26, 2008, p. A13.  The director of the Los Angeles Film Festi­val was forced to resign after giving $1,500 because oppo­nents threatened to boycott and picket the next festival. Ibid.  And a woman who had managed her popular, fam­ily-owned restaurant for 26 years was forced to resign after she gave $100, because “throngs of [angry] protest­ers” repeatedly arrived at the restaurant and “shout[ed] ‘shame on you’ at customers.”  Lopez, Prop. 8 Stance Up­ends Her Life, Los Angeles Times, Dec. 14, 2008, p. B1. The police even had to “arriv[e] in riot gear one night to quell the angry mob” at the restaurant.  Ibid.  Some sup­porters of Proposition 8 engaged in similar tactics; one real estate businessman in San Diego who had donated to a group opposing Proposition 8 “received a letter from the Prop. 8 Executive Committee threatening to publish his company’s name if he didn’t also donate to the ‘Yes on 8’ campaign.” Donor Disclosure, supra, at A13.

Citizens United, Slip Opinion of Thomas, J., at 2-3.

Segura

On Thursday, the Proposition 8 trial began with continued cross-examination of Gary M. Segura, Ph.D., Professor of American Politics in the Department of Political Science at Stanford University, who has been testifying about the political power of LGBT people.

In addition, the following people also testified on Thursday and Friday:

• William Tam, who as an Official Proponent of Prop. 8 was personally responsible for putting the initiative on the ballot and voluntarily taking over its defense in court by intervening in Perry v. Schwarzenegger. Last week, video of Tam’s deposition, which was taken on Dec. 1, 2009, was shown in court to illustrate the discriminatory motivations of Prop. 8.
• Gregory M. Herek, Ph.D. a Professor of Psychology at the University of California at Davis. He will testify about the nature of sexual orientation, how mainstream mental health professionals and behavioral scientists regard homosexuality, benefits conferred by marriage, stereotypes relating to lesbians and gay men, stigma and prejudice directed at lesbians and gay men, the harm to lesbians and gay men and their families as a consequence of being denied the right to marry, and how the institution of domestic partnerships differs from that of marriage and is linked with antigay stigma.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five
• Week Two
• Days Six and Seven

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here. Liveblogging of the trial can be found at the Courage Campaign’s Prop 8 Trial Tracker and at FireDogLake’s Prop 8 Trial Hub.

The Courage Campaign's "Prop 8 Trial Tracker" logo.

The "Yes on 8" logo.

The Courage Campaign sends word that they are being sued by the Yes on 8 team — ProtectMarriage.com — over the logo that they are using for their Prop 8 Trial Tracker.

As Julia Rosen at the Courage Campaign writes:

The Prop 8 attorneys have requested a temporary restraining order (TRO) prior to the full ruling. The case has been assigned to Judge Lawrence K. Karlton and we are currently waiting to hear back if he he has either granted the TRO, denied the TRO, or opted for a hearing about the TRO.

Our MoFo attorneys (the short-hand name our lawyers at Morrison Foerster go by) worked the midnight oil to prepare an excellent Opposition statement filed before the court. Short version: No fricken’ way we are taking the logo down. As our lawyer said, our logo is a “sassy” parody of their logo.

We continue to be entertained by the Prop 8 attorneys simultaneously admitting that the two images of gay parents and straight parents are “substantially indistinguishable,” and yet failing to grasp that that the difference between the logos illuminates the core difference between their views and ours.

Even assuming someone was confused by the logo itself, the parody is clear and I see little to no possibility of confusion between the Yes on 8 Web site and the Courage Campaign Web site.

[UPDATE: The request for a TRO was denied, as reported by the Courage Campaign.]

Two witnesses testified on Tuesday at the Perry v. Schwarzenegger trial over the constitutionality of Proposition 8.  Two more are to testify today, and a spokesman for the American Foundation for Equal Rights confirms that today will not, as attorneys for the Plaintiffs suggested this past week, be the final day for the Plaintiffs’ case.

Jerry Sanders, the current Republican Mayor and former Police Chief of the City of San Diego who is the father of a lesbian daughter, testified.  San Francisco City Attorney Dennis Herrera conducted the direct examination.

From Lisa Keen:

Sanders, the first plaintiffs’ witness on the stand today, told with more detail a story that has become very familiar to the LGBT community. In testimony that was often choked with tears, Sanders described how he came to reverse his own opposition to same-sex marriage after his daughter came out to him and he discussed his plans to veto the city’s participation in a brief in support of same-sex marriage in 2008.

Watch Sanders’ earlier support:

Lee Badgett speaks at a briefing organized by the Congressional LGBT Equality Caucus, "Not a Rosy Picture: Poverty Among Lesbian, Gay and Bisexual Americans," which took place on March 20, 2009. (Iamage from Web site of Rep. Tammy Baldwin.)

Also testifying was M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts, Amherst.  She was discussing the economic harm to LGBT couples resulting from Proposition 8 and other anti-LGBT discrimination.  Badgett has previously spoken about similar issues to those discussed at trial when she participated in a briefing coordinated by the Congressional LGBT Equality Caucus in 2009.  (More information about that event — including handouts (pdf) and audio (wma) — can be found here.)

Badgett’s testimony went on for the remainder of the day, with direct examination being conducted by David Boies and the cross-examination being conducted by Charles Cooper.  As Keen described the testimony, Boies scored a hit today.  She wrote:

Boies was questioning a pro-gay marriage expert—economist Lee Badgett—when he asked her to comment on a statement by defendant expert Douglas W. Allen concerning the decline in straight couples marrying in The Netherlands. Charles Cooper, the defense’s lead attorney, objected, noting that the defense had withdrawn Allen as a witness.

But federal Judge Vaughn Walker, who will decide the case, Perry v. Schwarzenegger, allowed the testimony.

What the defense expert had said—during his deposition in September—was that any trend downward in the number of straight couples marrying in The Netherlands since same-sex marriage became available there in 2001 could be attributed to a larger “secular trend” witnessed by most western countries. In fact, he said, there was “no doubt” about that.

That statement helps undermine the defendants’ claim that allowing same-sex couples to marry hurts the institution of marriage.

Today, AFER reports that the following people are to testify:

• Ryan Kendall, a gay man who will testify about the “conversation therapy” he underwent in his youth and how he has been affected by discrimination.
• Gary M. Segura, Ph.D,Professor of American Politics in the Department of Political Science at Stanford University. He will testify about the relative political power of gays and lesbians as a class of citizens, and their level of political vulnerability.

[UPDATE: As I was covering the Lambda Legal lawsuit filed today on behalf of Karen Golinski, I missed what was a pretty exciting trial day from what it appears.  The coordination between the Yes on 8 campaign and several religious entities was laid bare, as was the pain endured by some of those involved in "conversion therapy."  From Lisa Keen:

Under repeated and vehement objections by the defense attorney Andrew Pugno—objections overruled by U.S. District Court Judge Vaughn Walker— Segura testified about the thousands of volunteers that were deployed by the Mormon and Catholic churches in California to campaign for passage of the anti-gay initiative. He said the documents showed that there was “very early involvement of organized religious communities, and really a national political campaign” to pass Proposition 8 in California.

Pugno and other defense attorneys continued to object to various documents—mostly emails—from being introduced into evidence, making various claims, including that some must be shielded to protect the First Amendment right to free exercise of religion for various participants in the Proposition 8 campaign.

But Judge Walker was unconvinced.

The trial will continue on Thursday and Friday.]

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five
• Week Two

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here.  Liveblogging of the trial can be found at the Courage Campaign’s Prop 8 Trial Tracker and at FireDogLake’s Prop 8 Trial Hub.

Attorney Ted Olson prior to the start of the Proposition 8 trial. (Photo by Diana Walker via AFER.)

As we enter the second week of Perry v. Schwarzenegger, the trial challenging the constitutionality of California’s Proposition 8, I wanted to write briefly about two main areas that I’ve been thinking about over this weekend.

First, the brief mention in the opening arguments by Ted Olson about the Defense of Marriage Act.  Judge Vaughn Walker asked about whether this case would impact DOMA, and Olson replied that “circumstances around Proposition 8 passing in California make it unique.”  This point has been made previously in filings by the plaintiffs and is not surprising.  But, hearing it this past Monday reminded me that there could be some language — especially later on in appellate briefs — about why Proposition 8 is unconstitutional that would not apply to (or even harm) the case in some other jurisdictions.

When you file a case, though, your aim is to win your case.  And, reality is that there are factual distinctions between what has happened in California and what is going on and has gone on elsewhere.  The lawyers should use that to their advantage.  What’s more, when all is said and done, a ruling that invalidates Proposition 8 would — regardless of the specific grounds — have serious ramifications for DOMA, other states with marriage amendments, states with state “mini-DOMAs,” and so on.

But, they would be other cases.  Meaning, the timeline involved in this case is, quite possibly, only a California marriage equality timeline.  Even if ultimately successful before the U.S. Supreme Court, depending on the grounds of that decision, this case could resolve much across the country with one ruling or, and I think more likely, it could craft a narrow decision leaving everything up in the air as to the federal government and the other states.  (Ask Doug Berman about criminal sentencing law over the past decade, and he’ll tell you that the Supreme Court is perfectly comfortable doing the latter.)

So, while we focus on this case, which could very well be the landmark case that’s being discussed, it’s important to note that winning this case wouldn’t necessarily obliterate DOMA or strike down state marriage amendments elsewhere.  There will still likely be much that remains to be done even if Perry succeeds.

Second, the trial itself. I’ve never really been of the viewpoint that the trial itself is all that necessary.  I really think that most of what is going on at trial is distinctions that come down to a matter of degree — but not of type.  Witnesses are talking about “how much” and “how good” — not “whether or not.”  I’m yet to see anything legally significant that couldn’t have been appended to a motion for summary judgment.

Now, the point of the trial is bigger than that, and I understand why the Olson/Boies team wants a trial: It gives them a many-week megaphone.  And, yes, it allows more to be in the record than otherwise would.  It’s great and all (especially were more people able to be seeing it); I just don’t think much of the witness testimony is indicative of or particularly essential to the long-term success of the issue.

[UPDATE: This point was illustrated on Tuesday afternoon succinctly by NCLR: "This is torturously slow. Cooper taking forever to make largely irrelevant points that do not alter the validity of basic conclusions."]

Sanders

Finally, here’s what Tuesday should look like, according to the folks at the American Foundation for Equal Rights:

• Jerry Sanders, the current Republican Mayor and former Police Chief of the City of San Diego who is the father of a lesbian daughter. He will testify about his decision, as Mayor, to support the City of San Diego’s participation in an amicus brief advocating against the exclusion of same-sex couples from marriage and why he concluded supporting marriage equality was and is in the best interest of the local government and community.  City Attorney Dennis Herrera will conduct the direct examination of Mayor Sanders.
• M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts, Amherst, who will testify about the private harms caused by Prop. 8 and the impact of same-sex marriage on the marriages of different-sex couples
• Ryan Kendall, a gay man who will testify about the “conversation therapy” he underwent in his youth and how he has been affected by discrimination.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four
• Day Five

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here.

David Boies, speaking prior to the start of the trial over the constitutionality of Proposition 8 that he and Ted Olson are leading. (Photo by Diana Walker via AFER.)

On Friday, the American Foundation for Equal Rights sends word that, testimony of plaintiff witnesses will continue in the Perry v. Schwarzenegger trial over the constitutionality of Proposition 8.  This is the fifth day of a trial that could last well into three weeks, based on the announcement from the Plaintiffs’ lawyers today that they expect to wrap up their case, assuming the pace of the first four days continues, by next Wednesday.

First up was Michael Lamb, Ph.D, a Professor and Head of the Department of Social and Developmental Psychology at Cambridge University.  Lamb testified about gay and lesbian parenting and its impact on the adjustment of children and adolescents, and the benefits to children and adolescents if their same-sex parents were allowed to marry.  Per the AP:

“For a significant number of these children, their adjustment would be promoted were their parents able to get married,” developmental psychologist Michael Lamb said while undercutting arguments made by sponsors of Proposition 8, the anti-gay marriage ballot measure passed in 2008.

Lamb said there was no evidence that children with gay parents were more likely to become gay themselves or become victims of sexual abuse or incest.

In addition, he said no evidence exists that gays or lesbians are more likely to sexually abuse children.

“We have a substantial body of evidence documenting that a child being raised by same-sex parents are just as likely to be well-adjusted as children raised by heterosexual parents,” Lamb said.

The cross-examination, conducted by Attorney Thompson, the early focus was on differences between men and woman and a — time-tested argument of the Right — that children are worse off without one male and one female parent.  The exchange included an eventual reference to breast-feeding, among other topics.

The cross-examination took up most of the day, with a tedious focus later in the day on the methodology of the roughly 100 studies referenced in Lamb’s work.

The re-direct was conducted by Matthew McGill of Gibson Dunn (bio) for the Plaintiffs.  McGill, a Stanford Law graduate, clerked for then-D.C. Circuit Judge John Roberts, as well as Second Circuit Judge Joseph M. McLaughlin.  He also served as a Bristow Fellow in the Office of the Solicitor General at Justice.

Still up on Friday are to include:

• Helen Zia, a lesbian author who will testify about her sexual orientation, her experiences with discrimination, and the effects of being denied the right to marry her longtime partner.
• M.V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts,  Amherst, to testify about the private harms caused by Prop. 8 and the impact of same-sex marriage on the marriages of different-sex couples.

Law Dork coverage of the trial:

• Supreme Court – Broadcast Stay
• Day One
• Day Two
• Day Three
• Supreme Court – Broadcast Ruling
• Day Four

All Perry coverage at Law Dork can be found here, and my Twitter list of folks tweeting live from the trial can be found here.

Ted Olson (left), Kristina Schake and Chad Griffin talk prior to the start of the trial Olson is leading challenging the constitutionality of Proposition 8. (Photo by Diana Walker via AFER.)

As I was covering the East Coast on-goings of the West Coast trial for most of Wednesday afternoon and evening, please forgive this abbreviated preview.

The plaintiffs continued to press their case in court today.

First up was Dr. Edmund Egan, the chief Economist for the City and County of San Francisco, who testified about the nature and magnitude of costs incurred by the City and County as a result of the denial of marriage to gays and lesbians.

As AP reporter Lisa Leff wrote:

Egan said married people accumulate more wealth and have more to spend on property and consumer goods, which bolsters tax revenue.

He also said the city must spend more on health care for uninsured workers because same-sex couples are not always covered under their partner’s employee health care p lans.

“It’s clear to me that Proposition 8 has a negative material impact on the city of San Francisco,” he said. “These are impacts that are hard to quantify, but over the long term they can be powerful.”

Egan also testified about other, more hidden costs that result from anti-LGBT discrimination.  As Dan Levine reported, Egan said that “200,000 California kids a year are bullied for their sex orientation at school, causing absenteeism,” which costs school districts money.

The cross-examination of Egan was roundly criticized by observers, with NCLR’s Kate Kendell tweeting, “Patterson does not know how to conduct a cross examination, great time to learn.”

Dan Levine described one of the observers not pleased with the cross: Judge “Walker clearly frustrated with pace: tells Patterson to cross “the old-fashioned way” instead of taking the witness’s deposition.“  Levine later noted, “Walker just prompted Patterson again. This is getting a little embarrassing.”

Pete Patterson (bio) graduated in the top 10% of his class at Stanford Law School and clerked for Sixth Circuit Judge — and noted conservative — Jeffrey S. Sutton.  He joined Cooper & Kirk in 2009 after working as an Associate White House Counsel in the George W. Bush’s White House.

After lunch, Dr. Ilan H. Meyer, Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, took the stand to testify about the stigma and prejudice gay and lesbians individuals face in society.

Meyer’s testimony is extensive and, well, unironically, depressing.  Meyer has carefully taken the court through the entire process of how discrimination affects people.  As Miranda noted, Meyer detailed “[m]inority stressors: prejudice events, expectations of discrimination, concealment, and internalized homophobia.“  Lt. Dan Choi, in the hearing, noted that Meyer discussed the “hell” of concealing one’s identity from others.

Meyer also detailed how not being able to marry — how not having that goal as a possibility ahead of a person — can have a negative affect on a person’s mental health.

After establishing all of this, Meyer went on, as NCLR reported, to explain that this can cause, “higher level of anxiety, depression, substance abuse in LGBT people because of their exposure to discrimination and minority stress.”

Howard Nielson, Jr. (bio), is doing the cross-examination.  He is a former clerk of former Fourth Circuit Judge J. Michael Luttig and Justice Anthony Kennedy.  He also served as a Deputy Assistant Attorney General in the Office of Legal Counsel from 2003 to 2005.

The cross was mostly rote, and as NCLR reported: “Prop 8 attorney trying generally to discredit Meyer’s minority stress model.”

Testimony also is to include:

• Helen Zia, a lesbian author who will testify about her sexual orientation, her experiences with discrimination, and the effects of being denied the right to marry her longtime partner.