June 16, 2010
By Rick Jacobs
The last thread was getting a bit long so here is a new one.
Cooper: Only 16 states had a prohibition against inter-racial marriage. They actually made people have illegitimate children. The purpose of marriage is to have legit children. This racial restriction is at war with that purpose.
Judge Walker: Why isn’t the prohibition of marriage by SS couples at war with marriage for children?
C: Again, the 8th circuit recognized that there is a state interest. (He talks in circles) Only opposite sex couples can procreate and therefore they can minimize irresponsible procreation. When procreation between men and women not in binding vows, more frequently, society itself has to cope with that adverse consequences of that kind of irresponsible procreation.
J: But you don’t draw any distinction when opposite sex couples can conceive on their own or when ss couples require intervention, which is increasingly common. State’s interest is the same.
C: Not quite the same, no.
J: What’s the difference? If a child is born from a egg or sperm donor is society’s interest in the child different?
C: Without intrusive inquiry into fertility, society’s interests are also furthered whenever opposite sex couples are married because that strengthens the societal norms in order for this channeling function to be performed. Whenever opposite couples are cohabitating as happens now more than in previous times in history. Now we have social norms to try to channel into marriage. (He makes no, no sense. It’s not just me. He talks in circles because his only point is, as Olson said this morning, “because I said so.)
C: State’s job is to minimize irresponsible procreation. It’s not a good term, but I can’t think of a more serviceable one. Procreation that isn’t bound by social obligations than the marital one is, children raised by one parent or another, but not both. It is not a phenomenon that the court has to concern itself with with ss couples. SS couples cannot have kids by accident.
(The bailiff just made Maggie NOM put her bare feet down. She is so disrespectful)
(I just walked out to send this. Arisha, one of our organizers is teaming up with me so we get it all. A woman who is 8 months pregnant walked out with me. I said, “don’t threaten society.” She said, “that guy would be better off just sitting down and shutting up now.”
J: What’s the threat to society if people seek medical assistance to have children?
C: It’s the irresponsible procreation – the procreation that comes about casually, unintentionally. The opposite sex couple (but infertile couple) or a same sex couple cannot unintentionally procreate; however, the opposite sex infertile couple being allowed to marry is not against the core purpose of marriage. If that couple gets married – all of the social norms that come with marriage – that encourage fidelity, operate to society’s benefit, in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties that lead to irresponsible procreation.
J: Why don’t those same things apply to same sex couple – considerations like taking care of one another, loving one another etc., why don’t those same considerations apply?
C: We’re not suggesting that there is a distinction between gay and opposite sex couples with respect to those considerations, but there is a distinction in terms of procreation. Neither partner with respect to the same-sex couple represents a concern about irresponsible procreation with a third party. The considerations that you have identified are considerations that the state and its voters have taken account of, respected, credited and honored by creating the parallel institution of domestic partnership.
J: Where does it show that the procreative function was a rationale for voters in upholding Prop 8? Where is that in the evidence?
C: The Yes on 8 position specifically references that marriage is a fundamental relationship in society and in the voter information guide itself.
(While Arisha is typing furiously, I’m able to look at the lawyer table. Olson is shaking his head. So are we all.)
C: The Prop. 8 campaign showed over and over again that the purpose of Prop. 8 was to raise children through marriage.
J: What is the citation?
C: From PX 27, it says things like this. (Drinks water, losing voice. Judge joins) Marriage promotes the ideal opp for children to be raised by mother and father in bonds of marriage. While death and divorce result in single parents, we should put the interests of the children first. There was a lot of this from (the oxymoronic) Protect Marriage dot com. There was a lot of this in the discussion. The campaign wasn’t just by any stretch what Protect Marriage dot com had to say. The debate was a cacophony of television ads toward November 4th to conversations at the water cooler. People debated this issue at every venue. Cacophony. Not necessary to cite one source to show that any argument from any source was being advanced by these very passionate debates.
C: The court should apply this view. We submit that the rational basis … there has not been a case in the so-called marriage equality situation that has been before federal courts. There has not been a case before the federal judiciary or as far as we can tell the state judiciary that applies to anything other than rational basis with four district court exceptions. We submit that 9th circuit has binding authority. Ten other courts of appeal with 6 decisions after Lawrence have held rational basis for sexual orientation cases. Out of 40 some odd district cases, all have been the same save four that have not survived (I may not have gotten this right). You are being asked to participate in a Tsunami. We don’t have to submit evidence to the court. The plaintiffs must refute every conceivable rational basis. That means they have to negative every conceivable fact that applies to rational basis. (So this is his point. It’s all rational basis, not strict scrutiny.)
C: If every conceivable fact is upheld, must be non-debatable proposition.
J: Tries to interrupt
C: IF you prove that they are right on any facts by plaintiffs you still must rule against them unless you can show that every legislative fact relevant fact cannot be true.
J: Standard in Romer was rational basis?
C: Romer concluded not any explanation for the sweeping, disabling, punitive statute discriminating against gays and lesbians in that case. No rational basis for sweeping disabling statute that effectively made gays and lesbians strangers to the law was animus.
(Thank God for Julia and Andy and Arisha. The signal is bad in the court so we can’t use wordpress. Arisha and I keep spelling each other so we can come out and post. Julia is trying to make sense of all of this, no mean feat. Thanks for staying tuned. This is great stuff. And Maggie finally had to hide her feet. I wonder if she’ll throw a shoe at the judge?)
Judge: Where was the evidence here with respect to the natural procreative capability of hetero couples as opposed to the non-natural procreative ability of same-sex couples? Was that evidence before the voters here that you are relying on to establish a rational basis?
C: I don’t understand your question.
J: The point that Justice Brennan is making in the Minnesota case was that there was evidence before the legislature that was identified that warranted the classification that was made in that case. The evidence supporting the classification here, is the natural procreative ability of hetero couples distinguishes them from same sex couples – that’s your evidence?
J: If the court finds P8 to be unconstitutional, what remedy should there be. Do I understand correctly, that you’re saying that not only am I required to rule against the plaintiffs, but also invalidate the 18,000 same-sex marriages that took place?
C. No, your honor. That is not our position at all.
J. But that’s what your words say.
C: No, not unless there’s an irreconcilable conflict. Our position is that we don’t believe that this has created a conflict that requires P8 to be invalidated. Mr. Olsen thinks it is irrational to have a system where 18k same-sex couples are married without further rights for other same-sex couples to marry. We believe that the California Supreme Court engaged in analysis that is routine and standard, statutes are enacted all of the time that would appear to affect rights and interests that have been created under the pre-existing state of the law.
The California Supreme Court said the reliance interests that have been created as the result of the court’s decision in the Strauss case were powerful and legitimate and that it was forced to interpret P8 as upsetting those interests. It is not uncommon when courts are faced with that situation, to grandfather the individuals and protect them from the application that would, in that circumstance, be especially harsh (forcing the 18k to divorce). We don’t think that is irrational (as Olsen contends) or unconstitutional and neither did the California Supreme Court. But what we‘re saying in our brief is that if that were to be the case, if the 18k marriages that took place cannot be reconciled and one or the other has to fall, our submission is that the overriding judgment of the people should not be the one that should fall.
C: Obviously, it was before the CA Supreme court that Prop. 8 had a retrospective effect as well, just as the court held in a previous case that the marriages in SF were void. That was a decision the CA Court could have taken differently; it did not. We think these all lie down comfortably next to one another. Not one or the other of the elements must fall.
J: What elements?
C: Prop. 8 on one hand and the CA Supreme Court to keep those valid. We think the grandfathering of those marriages is perfectly rational, common and constitutional.
(C pauses a bit…)
C: I want to effectively conclude this piece of my argument by calling attention to 11th circuit case called Laughlin. Case in which 11th circuit upheld FL statute that prohibited gay adoption (Anita Bryant Lives!). It’s the heart of the doctrine we’ve been discussing, the procreative purpose of marriage, the idea that was displayed again as I mentioned earlier on the ballot argument that it’s best for the child to have married parents. Court looked at Dr. Lamb’s testimony. Court ruled that it was no rendered irrational that children do best when raised by own mother and father. Again, NY Court of Appeals Hernandez v. Robles… Taking all of this into account, legislature could rationally conclude that natural parents of opposite sex vs. children being raised by ss couple that has not been proven reasonably by scientific evidence to be good for children.
C: Evidence provided by plaintiffs does not rise above scientifically debatable fact. Reasonable, therefore, that many scientists and other people hold that a two-sex couple is better for child rearing.
C: I want to move to another point. They’ve gone to great lengths to talk about the religious beliefs of many who supported Prop. 8. Hardly remarkable that religious people are involved. It’s part of our tradition from abolitionists to civil rights and it’s constitutionally protected. Moral values and judgment from the death penalty, gambling, prostitution and an issue before Supreme Court not long ago on assisted suicide. Court noted that throughout the nation, citizens are debating physician-assisted suicide and debate should continue, as it should in a democratic society.
C: Court made it clear that when court is confronted with a new claim of rights, must be rooted in judiciary tradition so that we don’t take important issues off the democratic process. True of marriage.
(This is fascinating stuff. The judge has to judge. Do we stay with tradition because we do or is this Loving v. Virginia time? It’s pretty clear it’s the latter. It’s our job to make it clear that society has changed. And that’s why we need to tell the country what happened in this courtroom. Can you imagine that Cooper is using the Florida adoption case as the standard the courts should uphold? Really? Does anyone out there doubt in the least that gays and lesbians are good parents, oftentimes better than their heterosexual counterparts? Do you know or are you a gay or lesbian parent? If so, tell us now so we can get back in touch when we do the Testimony phase. We need to show people that Mr. Cooper and his ilk would have still supported slavery if this were a different time and case. We have to show not tell.)
J: There are times when it is appropriate for the Court (Loving & Brown) to step in, what are the criteria the court should use when the court is making that determination.
C: The “right” claim must be deeply rooted in the histories and practices of te country
J: And in this case, marriage is deeply rooted in the fabric of America. There really is no limitation on marriage – except with regard to gender.
C: That gender limitation is the definition of marriage. The reason that marriage is fundamental is because it is necessary to the continuation of society. The right to marry is bound up with it’s fundamental purpose – procreation and the existence and survival of the human race.
J: Let me ask you about something you said in response to question # 10 – a question posed to both parties. You say, that sexual orientation is a socially-constructed category; sexual orientation fails the requirement of being immutable because it is socially constructed? Aren’t all of these distinctions that we’re drawing, sexual orientation, gender – from a legal point of view – aren’t they all socially constructed?
C: No, there is a fundamental difference between a gender distinction and a sexual orientation distinction. The notion of social construction goes to what we think are the very difficult issues of sexual orientation and it’s amorphous nature. Sexual orientation is not an immutable trait that is an accident of birth.
J. Interrupts: an accident of birth? What do you mean an accident of birth?
C: That term has been used consistently by the Supreme Court, that go into the calculus as to whether heightened scrutiny should apply…..
J: Interrupts, but religious discrimination is not an immutable characteristic?
C: True, but the heightened, strict scrutiny for religion does not spring from the Equal Protection clause, but rather from the First Amendment. For heightened scrutiny, the court has identified race because the central concern of the 14th Amendment was to eliminate all insidious racial classifications. Sexuality is not an immutable characteristic.
[NOTE] The fifth thread is now available for your commenting pleasure.
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