June 9, 2010
By Paul Hogarth
Today, Judge Vaughn Walker delivered a series of 29 questions (12 to plaintiffs, 12 to Prop 8 supporters, and 15 to both) that will guide the Closing Statements. You can read them all here. “What follows is by no means an exhaustive list of questions,” he writes, “but is intended simply to assist the parties in focusing their closing arguments.”
But what some of them reveal is where the Judge is going with this case, and what we can expect the verdict to be. I’ve culled the ones that I think are more legally significant:
Plaintiff Question #1: 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 Prop 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 Prop 8? See Hernandez v. Robles 855 NE2d 1, 7-8 (2006) (“In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and a father in the home.”)
This, really, is the crux of the plaintiff’s case – and whether we can prevail on a “rational basis” test. To say that Prop 8 authors were motivated by hatred is easy – that’s been proven already.
But how can you say the millions of voters who went “yes” on Prop 8 are bigots? It would be impossible to prove that they are. The way we prevail is to show that those people – while honestly believing they were doing the “rational” thing – were merely acting irrationally. It goes back to San Diego Mayor Jerry Sanders testimony, when he said that it took a long time for him to realize his “rational” views against gay marriage and for civil unions were merely opinions rooted in prejudice.
Unless the Supreme Court is willing to take a leap to recognize sexual orientation as a suspect class (and we should not presume it would go that far), that’s the only way we are going to repeal Prop 8 in this case.
The fact Walker asked this question is encouraging. As for the citation to the Hernandez case, that was the New York high court case that said it was “rational” to give straights but not gays the right to marry because straights might “accidentally” have kids.
Plaintiff Questions #3 and #4: Until very recently, same-sex relationships did not enjoy legal protection anywhere in the United States. How does this square with plaintiffs’ claim that [same-sex] marriage is a fundamental right? What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition.
In other words, can “tradition” be a “rational basis” for denying someone this right? It reminds me of the old saying that the word tradition means something we’ve been doing for centuries, and have forgotten why. (Images of the “Fiddler on the Roof” musical are now seeping through my head.) This question is practically inviting our side to make the connection with interracial marriage, racial segregation, etc. After all, blacks in the South were never treated equally. Will it work? Probably with this Judge, but keep in mind that courts generally give great deference to tradition — so it’s a tough hill to climb.
Plaintiff #6: What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?
I cringed when I first read this – “empirical” seems like quite a limitation, but I think our side can really seize on this question to highlight the social importance of marriage equality. And how the forces behind Prop 8 are the same ones who are against the “anti-bullying” legislative fights we’ve gone through in public schools.
Plaintiff #10: Even if enforcement of Prop 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Prop 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?
This, my friends, is the inevitable DOMA question – and why folks like me had qualms about us taking Prop 8 to federal court without mentioning DOMA, and whether we were even putting the cart in front of the horse. After all, even if we get the right to marry in California – that’s only half the battle. We still don’t have any federal rights – Social Security benefits, joint tax returns, immigration rights, etc. Frankly, I have a hard time seeing how a federal challenge to Prop 8 does not implicate DOMA as well.
While we’re having this legal fight here on the West Coast, on the East Coast the civil rights group GLAD has filed a lawsuit in federal court to challenge DOMA. It’s on behalf of several gay Massachusetts couples, who nobody denies are legally married. The question there is whether DOMA denies them the equal rights under law. The federal government’s response in that case is to effectively say, “you have the right to get married – but there’s no constitutional right to the legal benefits of marriage.” How our Prop 8 lawsuit and the DOMA challenge in Boston play on each other is going to be fascinating and (let’s hope) complementary.
Defendant #2: Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?
Essentially, Walker is telling the Prop 8 side to put up or shut up. There’s been a lot of discussion on this blog about how shallow the opposition’s case has been in favor of Prop 8, and how their one expert witness – Blankenhorn – proved to be quite underwhelming. Our challenge will be to link all of their “consequences” to mere bigotry – which will be easy for most of them.
Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?
This, my friends, is a dynamite question – and can really help destruct the opposition’s case. A “rational basis” is a justification that is “rationally related” to a “legitimate government interest.” The right-wingers always talk about “family” and the need to “protect our children.” But Prop 8 really only did one thing – make it impossible for gay couples to get married. It did not – and could not – help a single child who otherwise would not have been get raised by their biological parents. If the opposition can’t make this link effectively, the Court can’t possibly find a rational reason for denying loving gay couples the right to marry.
Both Sides #6: In order to be rooted in “our Nation’s history, legal traditions and practices,” see Washington v. Glucksberg, 521 US 702, 710 (1997), is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?
Very encouraging question for our side. ”Tradition” may be a rational basis for certain laws, but not tradition per se - The fact that gay couples have not had the right to marry historically is a fact worth considering, but Judge Walker is effectively asking our opponents to “put up or shut up.” Provide proof – beyond circular logic that “it’s always been that way” – that we should proceed with the traditional definition of marriage. Courts are inherently conservative, and reluctant to overturn traditions – but Walker is injecting an important distinction: traditions that are still justifiable and reasonable, versus those that have no real purpose left.