June 16, 2010
By Rick Jacobs
Fresh thread time. More of Judge Walker trying to get Cooper to make a legitimate argument.
Cooper: To come back to the immutability case, the 9th circuit said, “sexual orientation is not immutable.” Against the Supreme Court cases, we know of no case that sexual orientation meets heightened scrutiny. The characteristics of immutability simply do not apply to sexual orientation. Behavioral, attraction and self-identity are the three definitions that the plaintiff’s experts used and depending upon which you use, a different group falls into that, so the definition is not clear. The plaintiffs made clear that sexual orientation does change over time, especially in women. Peplau commented on the “astonishing elasticity” of women, whose sexual orientation changes many times over their lifetimes. Some 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime.
C: Goes to Supreme Court question of immutability. Justice Ginsberg says, “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”
Judge: Does this have to do with national orientation?
J: Sometimes of the year everyone is Irish. (Laughter). People may choose via an ancestor to have a national origin. These questions of immutability are not key.
C: Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says. Clearly in the Cleveland case in regard to mentally disabled, does the group have the ability to attract the attention of the lawmakers? 20 years ago in “high tech gays?” the court ruled that gays and lesbians can attract the attention of legislators. As Dr. Segura testified, since that time there has been a sea change.
J: Isn’t that the most important factor, the historical context? Women are hardly politically powerless, yet a law protects them, laws that single them out subject to strict scrutiny. African Americans have considerable power and yet a law that singles them out is subject to strict scrutiny. Isn’t the historical context what makes the point?
C: It’s an interesting question. Here’s a group whose political power has changed so dramatically (women). In 1970 and 1973 when the court had before it the political power of the group (women) needed extraordinary protection from a majoritarian electorate so they needed protection. At that time, only 2% of the offices held by them but 50% of the population. That’s not the case with gays and lesbians in California.
J: The DOMA Statute that has been mentioned, Prop. 8, exclusion of gays and lesbians from military for a long period of time, all indicia of discrimination?
J: P8, these other props in other states, the exclusion of gays and lesbians from military service – aren’t those all indicia of a long history of discrimination?
C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination. Thankfully, the situation today in 2010 is not what it was in the past. The fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.
The question of political powerlessness was very different 20 years ago, but the 9th Circuit nonetheless believed that gays and lesbians could attract the attention of the lawmakers; thus, it follows that it must be true today.
Even though mental disability is an immutable characteristic, the disabled could not qualify for heightened scrutiny because the court found that they had political power (could attract the attention of lawmakers), sure they had to rely on allies to create that political power. If the mentally disabled weren’t politically powerless, I would submit that gays and lesbians are definitely not powerless. I submit that Court’s that have decided against heightened scrutiny have been correct.
j: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?
C: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage – the potential parenting structures, the potential for harm to marriage due to a variety of social phenomena, including same-sex marriage, he’s written books that have been received with respect by recognized experts.
J: Were they peer-reviewed?
J: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?
C: Sir, as I stand here right now. I don’t know…don’t remember.
J: Fair enough.
C: I didn’t come here prepared to argue that particularly. May I request a 5 min break?
J: Why don’t we take 10 minutes….back at 3:10.
[UPDATE 3:27] from Rick
(Here’s a bit of commentary and some color from the break while Arisha does the hard work.)
Bruce Cohen, the Academy Award-winning producer and key figure behind this case, said to me,” Can you believe that they are pointing to the one court ruling banning gays and lesbians from adopting (Florida) as their standard?” As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas. Yet Mr. Cooper is saying Judge Walker should refer to that ruling for guidance here.
Kris Perry introduced me to her two wonderful, poised teenage sons. I also had the honor of meeting Kris’s mother. Of course ___ Steer was right there, wondering with all of us what Mr. Cooper is really filibustering about. Can you imagine being the subject of this case and having your kids and your mom sitting there with you throughout all of this? Imagine these young fellows, who have such wonderful, loving, caring parents, hearing a high-powered, gray-haired lawyer pontificating about how horrid lesbian mothers must be? I really can’t. It’s not removed at that point.
One distinguished lawyer (not on the legal team) said, “The only thing he has is the strict scrutiny test which has never before been applied to marriage equality.” He went on to say, “What he said about Loving is bullshit. The only reason society had to prevent black and white people from marrying was procreation. Society did not want mixed-race kids.” That’s right. Society did not want Barack Obama to be born.
Cooper has surrendered, really, on all of the other issues. He’s trying to say immutability is not assured, but the judge pointed out that that does not really matter here. And even though the judge keeps bringing this back to marriage as a right vs. sexual orientation, he keeps trying to say it’s about sexual orientation because that is his canard.
Short notes: Maggie has her shoes on. Lance Black is watching intently, having not been absent for a second of this. And there to my left is the (oxymoronic) Protect Marriage gang that sued us in January for having a logo that they say is indistinguishable from theirs even though ours has two women with two children instead of a man and a woman. That’s the point of the whole thing. There’s no difference. It’s about the right to love.
C: The US Supreme Court in Crawford vs. Bd. Of Education in 1982 upheld a California constitutional amendment that reduced the remedial tools given to the courts in the school segregation area. In that case the court rejected the contention that once a state chooses to do more than the 14th Amendment requires that the state could not return the “lower” federal standard.
J: What do we make of that in the context of this case? What baring does that have?
C: The California Supreme Court’s interpretation that we believe goes beyond the 14A, was something that the people of the state were empowered to reverse. The people of California are the ultimate appellate tribunal of the California Supreme Court. The Court’s decision was no more final in the state of California than the Appellate decision that upheld Prop 8. It was reviewed by the ultimate, judicial tribunal and the judgment of the Supreme Court in Crawford is on point here.
C: I also want to address whether there is a legit basis for California citizens to be concerned that redefining marriage to include same-sex couples, does not show concern for the potential harm to the institution of marriage or show respect for the role that marriage is supposed to play (procreation, again). Redefining the institution will change the institution. Blakenhorn, our expert, said if you changed the definition of a thing, it’s hard to imagine how it would have no impact on “the thing.” Others have acknowledged that change will result. [He quotes a few “experts” who believe gays marrying will change the institution.] Redefining will divorce the institution of marriage from it’s core procreative purpose. It is not possible to predict with certainty what that change will beget. It seems undeniable that change as profound as this one, would have some consequences. The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove – and their own expert (quoting Cott now) agrees that we can’t predict. Andrew Churling, a sociologist and equal marriage supporter, also states that “predicting the future of marriage is risky business.” He cites as example the fact that no sociologist forecasted the baby boom during the Great Depression; no sociologist predicted the rise of co-habitation.
Let me say 3 words that I haven’t said that often. “I don’t know.” Jokingly, I wish I could have those words back. Because usually whatever your question is, “I damn sure know.” Courtroom laughs.
J: What about Blakenhorn’s testimony about the negative outcomes that will result if gays can marry?
C: Blakenhorn was giving voice to sentiment that the threat of harm to vital social institution is too daunting to run the risks of gratifying what would otherwise favor the advent of same-sex marriage. There are many who went to the polling place with that sentiment – that’s my speculation. There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage. Their hearts are pure – as pure as the plaintiffs – but they still believe that this is profound…could be profound. It could portend some social consequences that would not be positive and that reality
C: No one can know what tomorrow will bring. If there is a legitimate and rational basis to be concerned about that, couldn’t be more rational for people of California to say wait. We want to see what happens in Mass. and here. Perhaps Mr. Olson and his client’s whose sentiments are powerful (he’s speaking very haltingly) will be able to convince their fellow Californians they are right.
J: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”
C: Yes. In looking at what society’s interests are and interests in regulating and caring and about marriage, if there is no basis for drawing a distinction from one to another, the distinction can’t stand. But if there is s distinction, it must stand. It’s been our position from the outset that we do not have to prove that exclusion of gays and lesbians from marriage is a problem; we only have to prove that inclusion of those people would erode marriage.
J: Would you wrap up?
C: Yes. (Pause) The California court (missed which one) goes to the heart of the matter. It is the proper role of the legislature to set priorities and make difficult and imperfect decisions and approaching problems incrementally.” That process is at work in this state and the county. As the court considers this, there is a debate about the morals, the practicalities and the wisdom that really goes to the nature of our culture. The constitution should allow that debate to go forward among the people. Thank you.
J: Thank you Mr, Cooper.
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