Perry v. Schwarzenegger closing arguments

Timothy Kincaid

June 16th, 2010

Today is the last day of Perry v. Schwarzenegger, the legal challenge to Proposition 8. By the end of the day, the case will be in the hands of Judge Vaughn Walker. Karen Ocamb has a guide to of the final day’s expected events.

The legal team of Ted Olson and David Boies have crafted a compelling argument for why this proposition should be found to be in violation of the US Constitution. And much of it was supported by the defense’s own witnesses.

There is no question that Prop 8 harms gay individuals and families. There is no question as to whether it discriminates against gay people. The only questions are whether it was motivated by malice and whether there are state interests sufficient to justify the discrimination.

And in answering Judge Walker’s questions, Olson and Boies were eloquent.

The extensive evidence that Prop. 8 was in fact motivated by moral disapproval of gay men and lesbians underscores its unconstitutionality. Indeed, where, as here, a law is subject to heightened judicial scrutiny, the “justification[s] must be genuine, not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996). Accordingly, the messages presented to voters during the Prop. 8 campaign and the voters’ motivations for supporting Prop. 8 are relevant to whether Prop. 8 was enacted to further a sufficiently important interest to survive constitutional scrutiny. Proponents’ laundry list of purported state interests, invented after Prop. 8 was enacted and for the purposes of this litigation, cannot be considered under heightened scrutiny if Prop. 8 was not in fact enacted to further those interests. See id.; Doc # 605 at 12-15. And, if Prop. 8 was motivated simply by moral disapproval of gay men and lesbians, then it cannot survive any standard of constitutional scrutiny. See Romer, 517 U.S. at 634.

In other words, all the crap they came up with during the case is irrelevant. It’s not the pseudo-scientific sounding justification for Prop 8 that was presented in court that tells us the intent of the voters; it’s the campaign commercials. The intent and motivation of the proposition is reflected in the vile, nasty, campaign of hate and bigotry that waged on the airways in 2008.

We will have to wait and see when the Judge will announce his determination. But we have reasons to be hopeful that this very careful judge will weigh the evidence and come to the only possible conclusion: that marriage discrimination against gay people serves no legitimate state interest, is based in animus, and is contrary to the protections enacted in the Constitution of the United States.

I. R. Trollen

June 16th, 2010

You gay activists are keen to use the courts instead of ballots to prove your point. I would like you to keep my mind: “Judicial decisions must be tempered by popular votes, otherwise the rule of law becomes a panel of wolves deciding which sheep to have for dinner.”
You are making the same mistake as atheists campaigning for secular government, reinforcing minority rights that may be used one day against you. At least you do not expect to become the majority, as atheists do; when they do, they will want to ban praying in churches and replace Bibles with Das Kapital, but will find the same constitutional guarantees they have secured in court used against them.
I only ask you to remember an old cautionary tale:
“When Communists were the majority, I spoke up for minority rights, because I was not a Communist.
“When Jews were the majority, I spoke up for minority rights, because I was not a Jew.
“When Catholics were the majority, I spoke up for minority rights, because I was not a Catholic.
“Now I am the majority, I am not allowed to do anything with it and it all feels so pointless.”


June 16th, 2010

I don’t know which was stupider, the ‘gay activists’ line or the crap about atheists. Amazing how the attacks against both groups are similar.

Atheists don’t want the government blatantly favoring Christianity or any other religion so the people who want to keep the government blatantly favoring Christians lie through their teeth and claim atheists want to “ban prayer” and “Silence Christians”.

Gays don’t want the government blatantly favoring straights or any other orientation so the people who want to keep the government blatantly favoring straights lie through their teeth and claim gays want to “force churches to marry them” and “Arrest people for criticizing homosexuality.”

Thankfully in both cases them being forced to use lies can only mean that they can’t find anything real to back up their cause.


June 16th, 2010

@ IR TRollen (Cute pseudonym)

“I only ask you to remember an old cautionary tale:
‘When Communists were the majority… etc”

You just made that up, right?

Perhaps you meant:

“”THEY CAME FIRST for the Communists,
and I didn’t speak up because I wasn’t a Communist.

THEN THEY CAME for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist.

THEN THEY CAME for the Jews,
and I didn’t speak up because I wasn’t a Jew.

and by that time no one was left to speak up.”


June 16th, 2010

@ IR Trollen:

I think that you need some athiest friends, because you clearly don’t understand what many of them are fighting for.

Also, I’m disgusted that you have the audacity to (even incorrectly) quote Niemoeller who suffered in a Nazi concentration camp for the civil rights of his religious sect to practice their religion. He was a freedom fighter.

We don’t want to take away your freedoms, we want to have our freedoms declared. We want our freedom to marry protected. That’s all. We don’t want to take away your ability to marry AT ALL. We just want OUR right to marry.

As a Christian who is gay, I find your stated opinion both ignorant and anti-christian.


June 16th, 2010

Further, I see no reason why the majority should have the right to remove my rights. Would you have advocated that the majority have the right to decide whether or not to give African-Americans full equality back in the early 20th century?

Timothy Kincaid

June 16th, 2010

That is a fascinating cautionary tale. To look at it closely, it says:

I spoke for minority rights when I was a minority, but now that I’m a majority I want to be as oppressive as they were if only I were allowed to.

Yep, that’s cautionary all right. It cautions me to be wary of you and your motives.


June 16th, 2010

Glenn Buck much, Mr. Troll? Hope you bought your copy of his universally-panned thriller!

Priya Lynn

June 16th, 2010

I can’t believe Mr. Troll used the idiotic line that gays shouldn’t seek equality because if they get it that right will be used against them. You’re never going to find a gay person stupid enough to believe that one Mr. Troll. If you believe that line how about you campaign to deny heterosexuals the right to marry because that right might be used against you?

Jason D

June 16th, 2010

Uh, guys, the name “IR TROLLen” should’ve been a non-starter. It reads as a bad attempt at satire.


June 16th, 2010

People, you’re feeding a troll, a not even a good one at that.

Priya Lynn

June 16th, 2010

Tell us something we don’t know Donnchadh.

Chris McCoy

June 16th, 2010

Obvious troll is obvious.

Timothy Kincaid

June 16th, 2010

IR Trollen,

You got me. I fell for the troll bit without catching the satire. Clever.

I really should have recognized the bastardization of Bovard’s quote:

“Democracy must be something more than two wolves and a sheep voting on what to have for dinner.”

And I even have the advantage of being able to look to see your real identity.


My bad.

Lindoro Almaviva

June 16th, 2010

You gay activists are keen to use the courts instead of ballots to prove your point. I…so pointless.”

That is the biggest bunch of propaganda brain washing I have seen since Maggie and Debbie Thurman populated these pages.

Does this guy have an original thought in that sh1t-filled brain? I mean, is he capable?


June 16th, 2010

Don’t feed the trollen……..

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