Box Turtle Bulletin

The right way to defend an unfair, undefendable, and unconstitutional law

The transcript of the closing arguments in Perry v. Schwarzenegger is now available. Please read them, you won’t regret the lost time. This is oratory at it’s best, advocacy at its most moral, and a complete and total exposure of the absolute lack of any reasonable basis for anti-marriage discrimination.

But just as an amusing side note, the formality of law does have its theater.

The same-sex couples who wished to marry in California after Proposition 8 passed sued Governor Schwarzenegger, Attorney-General Brown, and the county clerk in their official capacities. Here was the defense of the proposition on the part of Schwarzenegger and Brown:

THE COURT: Let me turn to counsel for the Governor and the Attorney General.
Ah, the governor’s counsel.

MR. STROUD: Andy Stroud on behalf of the Governor, your Honor. The Governor waives his right to make closing argument and thanks your Honor for his time.

THE COURT: All right. I’m delighted that you are here.
(Laughter.)

THE COURT: Yes.

MS. INAN: Michele Inan on behalf of the Attorney General. The Attorney General waives his time as well.

And that’s how you fulfill your obligation to defend the undefendable, not at all.

Perry v. Schwarzenegger: closing arguments

For today’s summary, I relied on liveblogging by FiredogLake, Equality California, and the San Jose Mercury News.

Today Judge Walker Vaughn heard closing testimony, a very active process in which the judge asked a great many questions. From an information perspective this was basically a recap of the case, with each side seeking to present their evidence in the best light. But it was the opportunity for the judge to get each side to clarify and flesh out exactly what legal theory they were using for their argument.

First up: Ted Olson, the conservative icon who surprised anti-gay activists by declaring equality to be a conservative principle and by leading the case to reverse Proposition 8.

Olson talked about the various perspectives of those who are involved in the fight. He pointed out that the supporters of Prop 8 had one story during the campaign (protect the children) and an entirely other one during the case (deinstitutionalization of marriage). But for the plaintiffs, this is the most important choice they can make as an adult: who to marry.

Olson talked about how other relationships were not the same as marriage and had not been considered the same in American history. Slaves could enter informal relationships, but when freed and able to marry they found that the “marriage covenant is the foundation of all our rights.” When Loving v Virginia overturned racial restrictions, it removed a stigma.

He discussed how marriage equality makes gay families and their kids “okay”. How it reduces the burden on gay families, but also make America more American (according to the defense’s witness, David Blankenhorn).

Olson told the judge that his decision to allow a full trial on the merits of the proposition has provided evidence and been an education. He compared it to Brown v. Board of Education (the 1954 case which tossed out the “separate but equal” racially discriminatory education system). He lays out the long string of cases in which the SCOTUS has moved towards greater equality, at times overturning previous decisions.

And he laid out the case’s strongest argument: this is government imposed stigma placed in the state constitution. Further, the California Supreme Court did not “create a window” of rights. The right to marry the person of one’s choice had always existed, the CA Court simply recognized that right. The SCOTUS has found the right to marriage to be a fundamental right, and in Lawrence they found that homosexual behavior was a constitutional intimacy right. Applying each case atop the other, Olson said:

It can’t be constitutional to take away a constitutional right because a person engaged in a constitutionally protected behavior.

Olson argued for strict scrutiny, but said the case fails on any scrutiny. There is no state interest and “Because I say so” is not a reason for continued discrimination.

The voters passed Proposition 8 so as to say that same-sex marriage is not okay, to say that gay people are not okay. That is malice. It is not a constitutionally valid reason for denying rights to a class of people. Proposition cannot be found to be supportable in this case by any good valid reason, because no good valid reason was presented to support it.

And that concluded Olson’s closing statements.

Therese Stewart, on behalf of the City of San Francisco, spoke about the costs to the city: institutionalized discrimination increases mental health cost, the policing costs associated with increased hate crimes, costs for addressing bullying, the cost of lost tourism. But it would also cost the city its ability to treat all of its citizens equally.

The Governor and the Attorney General formally waived their right to defend Proposition 8 with closing arguments.

The judge then made an interesting observation. It seems that in most counties when you apply for a marriage license, there is no requirement on the form itself that you be opposite-sex. That really, from an administrative perspective, the decision to issue a license is up to the county clerk. The same is true for the issuance of domestic partnerships to heterosexual couples under the age of 62.

I’m not sure where the judge was going with that. But then they broke for lunch.

After lunch, Charles Cooper presented his closing arguments in defense of Proposition 8.

He argued that restricting marriage to the opposite sex was fundamental to the existence and survival of the human race. The purpose of marriage is for procreation. And without state-defined marriage, society would come to an end.

The judge pointed out that because the state has no requirement that married couples procreate – or even have the capacity or intention of doing so – that there must be some other purpose for marriage. Cooper rhetorically pondered the ways a state might go about insisting on procreation, suggesting that they were ludicrous, but the judge agreed that for his argument to be logical that these would be reasonable steps. None of them are required.

Cooper revised the purpose of marriage to be a that of increasing the likelihood that natural procreation be within the confines of marriage. Walker countered that marriage obligations extend far beyond the control of sexual behaviors.

What happened next was the defense’s worst nightmare. The judge asked Cooper for the evidence to support his premise. Cooper tried to quote various sources but the judge pointed out that none of these sources testified, that defense had only brought one witness “and I think it’s safe to say his testimony was equivocal.”

Cooper was left replying that there was no need for a witness, that there was no need for evidence, that it was obvious. The judge was not much impressed with the “I ain’t need no evidence” defense.

Cooper argued that up until 30 years ago no one considered same-sex marriage. Therefore it just must automatically be tied to procreation. But now gay people want to marry.

The judge then asked if these changes in the past 30 years might not, as was the case with Loving, be at a tipping point at which the purpose for marriage has changed in the public conscience. Cooper struggled to explain how racist restrictions differ because they had no basis in historical definitions [he may want to read more history], that miscegenation laws created illegitimate children [he may not actually have been listening to the words he was saying].

Cooper argued that the sole distinction – the sole criteria for legitimate marriage – was the ability to procreate “normally”. The judge failed to see how assisted fertility could not also be applied.

So Cooper shifted gears again and declared that the state had a right to “strengthen social norms”. He discussed children born out of wedlock and that restricting marriage to heterosexual couples was a way to protect against this increasing trend.

[So Cooper has within this testimony declared the purpose of marriage to be encouraging procreation so as to further the survival of the species; he then changed his definition to be channeling possible procreation into marriage; and then changed it again into discouraging irresponsible procreation, almost the opposite of his original contention]

Cooper next argued that this case should be subjected only to a rational basis standard. And because of this, he need not prove that the voters had any particular intention to discourage irresponsible procreation (or whatever his current purpose for marriage might be) but only that it is conceivable that they could have used this logic had they so wished. Not that they did, but that a rational person could.

This vein of questioning ended and Cooper clarified his request to have the 18,000 marriage invalidated. He’s said that if this caused irreconcilable differences, it would be better to toss out 18,000 marriages than to disregard the will of the voters. But otherwise, the defendants are fine with them continuing to be recognized as grandfathered-in.

The judge asked Cooper about whether gender (as opposed to incarceration, responsibility or ability to procreate) was the sole exception to marriage being a fundamental right. Cooper said that gender is the definitional feature of marriage.

The judge then asks if because Cooper claims that sexual orientation is only a social construct, then how it differs from gender. And the argument began it’s descent down the ex-gay path.

Cooper claimed that sexual orientation was not immutable and was not an “accident of birth”, i.e. no one is born gay. [I’ve long believed that the immutability of sexual orientation is the basis in which our eventual civil equality will be found.] They discussed how that while religion is not immutable, its rights are found in the First Amendment, not through heightened scrutiny.

Cooper insisted as “plainly right” that sexual orientation is not an immutable trait. He declared that 2/3rds of women change their orientation [a gross misstatement of the facts].

He further insisted that gays are not politically powerless. When the judge quoted a litany of discrimination, Cooper agreed that gays have been victims of discrimination, but insisted that history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The arguments took a veering to discuss whether Blankenhorn is a qualified witness. To support this, Cooper had nothing additional to add.

(to be continued… check back later)

Perry v. Schwarzenegger closing arguments

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.

Blankenhorn rejects Rekers association

David Blankenhorn, the key witness for the supporters of Proposition 8 in Perry v. Schwarzenegger, is incensed over news reports that suggest that he relied on the claims of newly-disgraced Dr. George Rekers. He has written the following letter to the NY Times editor.

To the Editor:

“Scandal Stirs Legal Questions in Anti-Gay Cases” (news article, May 19) and “A Heaven-Sent Rent Boy,” by Frank Rich (column, May 16), suggest that my expert testimony in the California Proposition 8 trial on same-sex marriage was influenced by the writings of George Rekers, a psychologist and Baptist minister.

My expert report to the court — which was written entirely by me, includes a list of scholarly sources and is available for anyone to read — includes no mention of Mr. Rekers. And for good reason: I have never met Mr. Rekers or read any of his writings.

I recently learned that a separate, lawyer-generated document submitted to the court apparently does list an article by Mr. Rekers in connection with my testimony, but that document, on this point, is in error.

This matter is particularly important to me, since in my report to the court, as well as in my testimony on the stand, I clearly and emphatically rejected the anti-gay views that Mr. Rekers has apparently expressed.

David Blankenhorn
President
Institute for American Values
New York, May 19, 2010

Date set for closing arguments in Perry v. Schwarzenegger

Prop8trialtracker.com is reporting

So now we finally have a date for Closing Arguments for the Prop 8 trial — Wednesday, June 16th, or 156 days after the start of the Trial. By now, we’ve heard the evidence, we know what’s been said, and there’s been a lot of analysis on this site about what it means for the outcome, our movement, and our lives.

Anti-8 Campaign must reveal internal memos

It seems that the anti-gay activists supporting Proposition 8 will get a chance to review the internal documents of No on 8. They had been complaining that they the Olson-Boies team in Perry v. Schwarzenegger had access to their documents and that it just wasn’t fair that they didn’t have access to the No on 8 side. That appears to have changed.

From the San Jose Mercury News:

A federal magistrate is ordering several gay rights groups that campaigned against California’s 2008 same-sex marriage ban to furnish some internal memos and e-mails to lawyers for the measure’s sponsors.
…
Spero says Equality California, Californians Against Eliminating Basic Rights, an ACLU campaign committee and an umbrella group that oversaw the campaign against the ban must hand over all documents “that contain, refer or relate to arguments for or against Proposition 8,” with the exception private communications between their core leaders.

This is a very perplexing order for several reasons:

First: The reason that Olson-Boies had access to the Protect Marriage campaign, was because it was pertinent to the question of the trial: was Prop 8 based on anti-gay animus and marketed to appeal to prejudice. Because this dealt with the intentions of the Yes on 8 side, their internal documents were relevant.

But the motivations or intentions of No on 8 were not up for question. There was nothing in the internal documents from No on 8 that could shed any light whatsoever on the question of whether Proposition 8 was intended to deny a class of Californians from equal protections. Nothing in these documents will tell the court whether Yes on 8 was motivated by animus, because they aren’t Yes on 8’s documents and don’t reflect their views.

Second: The trial is over. The testimony is concluded and the final written arguments have been presented. It is unlikely that the turn over of Equality California’s documents to the anti-gay activists will or even could occur before final arguments are made and Judge Walker makes his determination. So it is confusing exactly how this request advances the pursuit of justice in this case.

Third: As this order has no value on the merits of the case, it appears to be purely political in nature. I’m not suggesting that Justice Spero is engaging in judicial activism, but rather this seems to be an order purely to be “fair” so that “both sides can see each others’ secrets”.

But legal proceedings are to be based on the law, not on making both sides happy. “Making everyone happy” is not a standard that is applied to disclosure in criminal or corporate law.

This decision seems to be a product of the culture war. But justices are sworn to defend the constitution, not make sure that the culture warriors are each provided with the same ammunition.

Maggie Gallagher’s gays

In Maggie Gallagher’s recent debate with Andrew Sullivan at the Cato Institute over whether there is a place for gay people in conservatism and conservative politics, the following exchange took place:

Sullivan: Can you name a single gay person who agrees with you?

Gallagher: Yes… I told you, I have them. They work for me.

Sullivan: Name them.

Gallager: Well no, I’m not going to name them. Because I’m not going to out them.

Sullivan: Why not? Earlier you said you don’t want to out an openly gay person?

Gallagher: As being anti-gay marriage, I’ll let them do it. I’m not outing them as being gay, I’m outing them as being on my side.
…
Not very many, but I do know them…

She goes on for a while giving illustrations of secret confessions of support and emails.

But setting aside Maggie’s flustered blunder and momentary honesty (she never admits to being “anti gay marriage”, only in favor of retaining blah blah blah), the important point that Andrew identified is that even considering the large number of conservative gay men and women, and even considering that our community is very diverse in age, culture, attitudes, religion, and perspective, no one is willing to publicly support Maggie Gallagher and her campaign against their rights.

So who, then, are these hand full of gay people who are secretly “anti-gay marriage”, in Maggie’s words. And why is it so important that she “know them.”

I’ll answer the second part first.

I believe that Maggie thinks of herself as a good person. She doesn’t want to acknowledge that she is engaging in deliberately hurtful, unjust, and discriminatory behavior. She doesn’t want to think of her motivations as being based in bias, animus, and religious supremacy.

Behind all of her “don’t call us haters” mantra is a real fear that she, truly, might be acting out of less than admirable instincts. She doesn’t want to even consider that possiblity, so it is the one thing that she finds most objectionable.

So it is extremely important that Maggie know people who can confirm to her that she isn’t hurting them. If I read her correctly, in order that she not see herself as being homophobic, she needs to believe that some gays – the ones who truly value the country and not their own selfish interests – agree with her. So, like every politician who doesn’t want to be seen as evil, she now “has gay friends”.

But who are these mythical gay friends that we never ever seem to meet?

Well, we do now have an answer in part. From none other than the National Organization for Marriage, of whom Maggie is the voice and face.

This comes from the amicus brief that NOM filed to support Proposition 8 in Perry v. Schwarzenegger:

Even at least a few gay people oppose gay marriage (see, e.g., “Gays Defend Marriage,” at http://www.gaysdefendmarriage.com), and we welcome their participation as fellow citizens in our shared mission.

Oh, yes, I kid you not. Maggie’s “gays that agree with her” are epitomized by David Benkof. Yes, a celibate convert to Orthodox Judaism who spent a brief period trying to convince the world that he was just an ordinary gay guy who was concerned about marriage. Yep, the same one who is “gay” or “bisexual” or “not gay” or anything else he thinks will be convincing at the moment.

Yes, Maggie’s gays – or at least the one she presents – are sad, sad creatures indeed.

(hat tip to reader Mel, with whom I incorrectly argued about whether this exchange took place)

Another Conservative for Gay Marriage

This time, it’s Don Imus on Fox Business:

Perry v. Schwarzenegger: day twelve summary

Today David Boies continued his cross-examination of David Blankenhorn. It started with Blankenhorn saying that the children of gays and lesbians would almost certainly be benefited by their parents being able to marry, but that the rights of gays should take second place to the institution of marriage. It’s about “goods in conflict”; same-sex marriage is good but it should be sacrificed for the greater good (this idea always makes me think of the final Harry Potter book).

Blankenhorn agreed that same-sex marriage would provide a large number of benefits including more committed relationship, less promiscuity, higher living standards, reduced burden on the state, less prejudice and hate crimes, more scholarship and discussion on the value of marriage, an expansion of the American idea, and less heterosexual marital unhappiness due to gay people heterosexually marrying.

He even agreed that civil unions and domestic partnerships harmfully blur the distinctions of marriage.

But he believes that same-sex marriage will harm the institution of marriage. Boies asked him to indicate in his list of references which scholars make this claim, he included Alan Carlson from the Howard Center (an ultra-conservative think tank) and Maggie Gallagher. (It’s amazing how circular the anti-gay argument is. They all rely on each other for validation of their opinion with little to no actual research.)

Boies had Blankenhorn list his three “rules of the game” (essential structures of marriage): 1) rule of opposites, man and woman; 2) set of two; 3) sexual relationship.

When asked if there were exceptions to rule one prior to 50 years ago, he listed a tribe in Africa with possible man-boy temporary marriages as part of a warrior caste.

When asked about rule two, he admitted that previously to 100 years ago, 83% of societies were polygamous. But Blankenhorn doesn’t think that polygamy violates the rule of two because it is a bunch of separate one-man-one-woman marriages. (This is, I believe, a distinction without a difference. It is the fallback position for those who try and imply that marriage has always been the 1950s nuclear family in the face of incredulous historians.)

In referencing Blankenhorn’s third rule, Boies noted that the Supreme Court had already determined that incarcerated persons may marry without the presumption that they would ever have sex.

Boies then entered a report signed by Blankenhorn which listed six dimensions of marriage: legal contract, financial partnership, sacred promise, sexual union, personal bond, family making bond. Blankenhorn testified that both opposite-sex and same-sex couples can engage in these dimensions.

Boies asked Blankenhorn about what professional organizations have said. Blankenhorn answered that their lobbying boards (or leaders) were supportive of same-sex marriage. (He tried to imply a distinction between political opinions and research based opinions.) Boies referred him to the articles listed by the professional organizations supporting their views; Blankenhorn had read about ten percent of them.

Boise closed cross-examination by having Blankenhorn agree that he had written that there is no universal definition of marriage and that it is constantly evolving.

In re-direct, Cooper had Blankenhorn clarify that he sees the same-sex marriage issue as a choice between two goods, the good of dignity and respect for same-sex couples verses the good of children growing up in their biological family. And he sees the way to embrace these two goods in harmony is through domestic partnerships. (This is, I believe, their “rational basis” argument. The Pro-8 side is counting on the SCOTUS not recognizing gay people as a suspect class and therefore there only needing to be a rational basis for discrimination. And the belief, however mistaken, that biological parental marriage would be damaged by same-sex marriage would be the basis they have presented.)

And with that testimony ended.

There are still questions about compelling documents from the No on 8 campaign and if that happens, there may possibly be more testimony about these documents. The attorneys will present proposed findings of fact and findings of law by February 26.

Then the judge will consider all the testimony and all the documents and set a date for closing arguments.

I am very appreciative of the efforts of Courage Campaign and FireDogLake in liveblogging the entire trial and allowing for a timely summary. For those who want more accuracy and the absence of any inherent bias from either myself or the livebloggers, the American Foundation for Equal Rights has posted the official transcripts (there is a one-day delay).

Perry v. Schwarzenegger: day eleven summary

Thanks to Courage Campaign and FireDogLake

Today started with the continued cross-examination of Professor Ken Miller. Attorney David Boies further proved that Miller was ill informed and that his stated opinions did not seem to be consistent with the facts.

Boies provided exit polling that revealed that the third of Californians who attend church weekly voted 84% for Proposition 8 and in all other category of Californians the majority voted “no”. And while Miller had claimed that gay people have power due to union support, the exit polls show that union households supported the proposition. (which, I suppose, means that union households are disproportionately religious)

Boies provided a poll that showed that Americans were much less willing to vote for a presidential candidate that was gay (55%) than they were for a Catholic (95%), an African American (94%), or Hispanic candidate (85%).

He went on to illustrate that Miller had not familiarized himself with workplace discrimination, school bullying, or stereotypes about gays preying on children, or the extent to which such stereotypes impacted voters. (In short, the proponents’ expert witness isn’t very expert at all. But considering what he might have found had he bothered to look, ignorance may have been their best option.)

Miller admitted that some people voted for Proposition 8 based on stereotypes, but he could not say to what extent.

Then it got unpleasant for Miller. He has a new book that came out in 2009 in which he argues that initiatives that disadvantage minorities “can easily tap into an anti-minority sentiment”. He even gave examples including initiatives directed towards restricting the rights of homosexuals. One of Miller’s examples of initiatives that tapped into anti-minority sentiment and disadvantaged homosexuals was Proposition 22, the original ban on gay marriage that was overturned by the California Supreme Court.

Miller argued in his book that courts needed to strictly scrutinize initiatives and not be lenient because their role was to protect minorities from such initiatives. He had written in an article that “Once this majority puts its preference into the state constitution, the legislature and state courts can\’t take it out. Only federal courts are the remedy.”.

A year later, Miller “no longer believes” his own book. In fact, he “did not believe all of it” when he wrote it. (Miller has just torpedoed his own career.)

Miller had earlier presented the support of the California Council of Churches as evidence of large religious support for gay rights. In cross-examination he reveals that he really doesn’t know what the CCC is or even if they were a group organized to oppose Proposition 8 (they trace their history back to 1913). His earlier position was that if a church belonged to the CCC then they supported gay marriage.

After all of Miller’s testimony about support from the Democrat Party, he was presented with an article in which he said that Democrats splintered along religious lines. Miller had already written that the issue, the primary determinant was religion: In order for gay people to have marriage rights, “They need to persuade those Christian voters that extending marriage rights to the gay community is consistent with their religious beliefs, not undermining them.” He had written that blacks and Latinos had been taught in church that sexual orientation was a matter of scripture and thus could vote for Barack Obama as a civil rights issue and for Prop 8 as a religious issue without conflict.

Boies got Miller to agree, as a social scientist, that “it is a general principle that it is undesirable for a religious majority to impose its views on a minority”. While Miller was babbling trying to find an out for the religious oppression of gay people, Boies announced that he had no more questions.

Thompson tried to recover in redirect. He had Miller reiterate that the Briggs initiative (to ban gay school teachers) and the LaRouche initiatives (to quarantine AIDS patients) did not pass.

Miller testified that he used to think that initiatives did not well serve democracy but since Massachusetts legalized marriage he changed his views and now sees them as a way for people to express their popular sovereignty. The exception he now sees is marriage. (In short, he found that his prejudices disagreed with his principles, so he made an exception. I can’t see how this will help either his credibility or his argument.)

In the afternoon, the defendants presented their second witness, David Blankenhorn. He is president of the Institute for American Values, a non-profit think tank that focuses on fatherhood, marriage, child rearing, child well being, and family structure.

He testified that to write his book, The Future of Marriage, he sought to learn about the anthropology of marriage across cultures.

In voir dire, Boise noted that none of Blankenhorn’s marriage writing was peer reviewed. Nor has he taught courses about marriage, fatherhood, family structure or anything else. Blankenhorn’s examinations of the results of same-sex marriage are limited to discussions with colleagues and reading articles. His only peer-reviewed work was on cabinet makers and black fathers. Judge Walker indicated that were this a jury trial Blankenhorn might not be qualified to testify as an expert but that he can testify.

Blankenhorn testified that marriage is the socially approved sexual relationship between a man and a woman which establishes the parenthood of the children. Marriage brings about the social, the legal, and the biological consequences of parenthood. “East, West North, South, 1000 years ago, it always does this thing.” As marriage changes, this aspect never does.

This is based on a broad consensus of scholars and anthropologists. For his “broad consensus”, Blankenhorn relies on a number of quite old books, the most recent of which is from 1985.

Blankenhorn read from some who say that marriage is an adult relationship but stated that he disagrees. Earnestly. He testified that he could not find any animus or hatefulness of gay people as the reason that people get married. (I dare say he’s correct. No one marries to spite gay people. And the original definitions were not designed to exclude but rather to allow society to know which man owns which woman and is responsible for her care. But the new definitions as applied by anti-gay amendments are absolutely intended to exclude gay people and to spite them.)

He testified that research shows that the ideal family relationship for a child is a biological mother and father in low-conflict marriage. (Again, he’s likely correct. And a principled argument could be made that these are the only family forms that society should reward with marriage. But it doesn’t. It rewards remarriage of widows and widowers, divorced people with children, the childless, the elderly, and indeed absolutely every other less-than-ideal coupling provided that they are opposite-sex. The question is not whether biological parents are a smidgen better than two mothers (a position that could probably be made), but why two mothers (who are better than, say, a mother and stepfather) are not provided with marriage.)

Blankenhorn testified that changing the rules of an institution results in weakening, what he calls deinstitutionalization. He notes that the deinstitutionalization has been the fault of heterosexuals: out of wedlock childbirth, divorce, assisted reproductive technology, and the very idea of same-sex marriage. He claims that “Scholars are telling us that process of weakening will be accelerated significantly by same sex marriage.” Transferring the institution from a child centered one to an adult-pleasure centered one would erase the institution.

It would become impossible to opine that a child needs a father. It could lead the public to consider polygamy. In short, Blankenhorn believes that allow same-sex couples to marry would remove the core purpose for marriage and leave it essentially meaningless and valueless. An institution that doesn’t define heterosexual couples tied to their biological children would have no purpose and would eventually die off.

Blankenhorn supports domestic partnerships and civil unions. He just wants to protect the privilege of marriage. (This is, in my thinking, the weakest argument. If one truly wants to “think of the children” then any structure that “denies a child their biological mother and father” would be equally disadvantageous. It matters little whether this deprived child’s same-sex parents are civilly unioned or civilly married.)

He co-authored an article supporting civil unions (and implies that Jonathan Rauch agrees with him that they are better – he does not). In reality the article supported a temporary compromise in which the federal government would recognize state marriages as civil unions provided that there were robust religious-conscience exceptions.

He argued that marriage is bigger than just the legal incidences of marriage (a point that our side has made repeatedly). Domestic partnerships are comparable but not the same as marriage. Then he said something perplexing: “It is discriminatory and morally wrong to call two things that are the same by different names.”

Boies then led cross-examination.

Boies showed that Blankenhorn’s institute treats biological and adoptive families the same. Blankenhorn testified that adoptive families are just as good. And he is not aware of any study that shows that children of gays and lesbians have different worse outcomes than straight.

If I understand the liveblogging correctly, Blankenhorn believes that the adoption of same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children. And he believes that America would be more just by allowing same-sex marriage. But he thinks it would lead to fewer marriage between heterosexuals.

(Odd, it never occurred to Blankenhorn that he would actually have to tie his opinions back to those who did research. I get the impression that he thought it would be similar to the polite debates in which everyone’s opinion is considered to be valid and that real research was treated as no more valuable than opinions based on “thinking about it for a long time” or writing a book.)

Boies gets Blankenhorn to admit that few (perhaps none) of his listed sources actually discuss either disinstitutionalization or same-sex marriage and that none make the two part linkage: same-sex marriage leads to deinstitutionalization which then leads to fewer heterosexual marriages. (This may be simply an extrapolation on the part of Blankenhorn, and he simply is not qualified to make such an extrapolation. He has not done research and it appears that he cannot back up his positions with the research of others. It’s difficult to understand why Cooper allowed two very unprepared witnesses to take the stand.)

That was it for today and cross-examination will continue tomorrow. The case is scheduled to end around noon, after which the judge will go ponder the evidence before the attorneys make their closing statements some time in February. Then Judge Vaughn Walker will make his decision.

Pugno’s illogical complaint about documents

Anthony Pugno is the general counsel for ProtectMarriage.com and is posting his daily perspectives and arguments about Perry v. Schwarzenegger on the ProtectMarriage.com website. As such, Pugno is responsible for spinning the story in the way that the supporters of Proposition 8 wish and one of his themes has been Judge Walker’s “bias” against his side.

In a commentary posted yesterday he expresses a complaint that reveals the lack of logic, principle, or purpose behind the team seeking to defend Proposition 8:

Before resting their case, plaintiffs began Week Three this morning with a “document dump,” which means they admitted into the trial record a slew of documents they view to be evidence to support their case. Nothing earthshaking in and of itself, but the subtext is utterly astounding.

Despite supposedly winning our appeal in the Ninth Circuit to protect the privacy of our internal Prop 8 campaign records, the trial judge has still forced us to hand over literally tens of thousands of pages of sensitive campaign memos, emails and other documents to the plaintiffs. After sifting through our internal documents for facts they think aid their case, they had them labeled as trial exhibits and added to the court record.

So if the Yes on 8 campaign has been forced to open up its internal campaign records for this court trial, then shouldn\’t also the No on 8 campaign have to do so, too?

Well, although we filed a motion some time ago asking the court to order the “No on 8” campaign to disclose to us the same types of documents as those we had to disclose to them, the court has refused to rule on our request and thus we have been prevented from examining even one single document from the opponents of Prop 8. [emphasis in original]

This argument betrays that either Pugno is completely lacking in logic and knowledge of the purpose of the case, or else he believes that his readers are not too bright.

Perry v. Schwarzenegger seeks to prove that animus and bias were the bases for the initiation, collection of signatures, strategy, marketing, and implementation of the campaign to pass Proposition 8. As such, Pro-8 campaign correspondence is relevant in that it can reveal whether, indeed, animus and bias were motivators.

But the correspondence of the Anti-8 side would tell us nothing about the motivations for passing Proposition 8. It would add no value, answer no questions, and provide no insight. Pugno and company would have to argue for a reason to see this material based on its relevance to the question at hand, and there is none.

But in Pugno’s us-v.-them Culture War mentality, if you can read my email then I should be able to read yours. It’s not about the legal principles behind the constitutionality of discrimination, it’s all about waging war on a culture that doesn’t privilege the religious beliefs of his faith.

Perry v. Schwarzenegger: day ten summary

Thanks to Courage Campaign and FireDogLake

Today the day started with plaintiffs (those seeking to overturn Proposition 8) entering a large quantity of items into the record. They began by playing a video of a simulcast of religious supporters of Proposition 8. (Were there any other kind? Yes, there were non-religious voters, but I’ve yet to find a prominent non-religious advocate for denying marriage equality.) This are rather nasty and claims:

• same-sex marriage will lead to polygamy, bestiality, and incest
• gays are trying to “hijack the civil rights movement”
• race is inborn and homosexuality is “deviant behavior” and a choice
• children in Massachusetts are “being taught homosexuality”
• same-sex marriage is comparable to the 9/11 terrorist attacks
• children raised without fathers will not learn how to be leaders

Boutros presented a document that, in the words of Ron Prentice, illustrated that he wanted to keep the simulcast off the Dr. Phil Show because such imagery “shows religious bias to a national audience”. He also showed Prentice telling pastors that the way to flip a No vote was to tell voters that “children will be taught about homosexuality”. Prentice also told pastors how involved the Mormon Church was in the campaign and how they were instrumental in Hawaii (as Fred Karger has revealed).

Boutros provided a flyer prepared by Prentice which claimed that the goal of the community was not to get married but the full annihilation of the institution of marriage. He showed that NOM cleared everything with the campaign.

There were also a lot of documents that related to or supported earlier testimony but which had not been specifically discussed.

This is the completion of the case for the plaintiffs. (However, because they received 7,500 documents at 11:30 last night, they are reserving the right to reopen testimony based on their review.) Boies: “The plaintiffs rest.”

The first witness for the defendants is Prof. Kenneth Miller, an attorney who also teaches constitutional law in powers and civil liberties on a graduate and undergraduate level. Boies objected to Miller being presented as an expert on gay and lesbian political power. Before deposition he had never heard of the Mattachine Society and he still doesn’t know about a number of important events during the 70s, the period Miller presents as an expert. Miller said that since the deposition he’s read more and could probably write an article now. The judge allowed Miller to testify about current gay political power as he knows American and Californian politics.

(Miller may not have been a good choice. In addition to a lack of knowledge about gay history, he was nervous and kept confusing whether Prop 8 supported gay marriage or opposed it. Additionally, the Prop 8 attorneys continued to commit the cardinal sin of trials: they asked questions when they did not know the answers.)

Miller testified that the keys to political power are money, access to lawmakers, ability to persuade, size and cohesion, and allies. He testified that opponents of Prop 8 raised $43 million, more than supporters; that gays have influential allies including the Democratic Party, labor unions, and newspapers.

Miller testified that many churches opposed Proposition 8. However, he was unaware which churches actually conducted them. He wondered about the United Methodist and the Episcopalians. (at the time of Prop 8, the only sizable churches in California to do so were the Univeralist Unitarians and the United Church of Christ).

He testified that educators and professional organizations often support gay causes. Miller provided examples of when California voters chose not to quarantine HIV positive persons as evidence gay political power. Additional evidence was “increased support” for ENDA and overturning DADT and DOMA.

David Boies led the cross-examination. He illustrated how Miller was unfamiliar with laws and history impacting the gay community (he didn’t even know that the term “gay-bashing” could include physical violence). He then had Miller identify the subsequent research he did himself and the documents which were provided to him by the attorneys. It took him twenty minutes. (This is why Boies is so respected. Illustrating that the expert was told what to say by the attorneys is breathtaking.) Boies went on to show that his testimony relied not on his own documents but on what he was fed.

And then. Oh my. Oh my, oh my, oh my. Boies got Miller to describe the Defense of Marriage Act as “official discrimination” against gays and lesbians. He even said that speaking as a political scientist, Proposition 8 is discrimination (There is not adequate agreement between FireDogLake, Courage Campaign, and the Mercury News. He definitely said it “creates a distinction” and tried to say it was not invidious discrimination but we’ll have to defer to the transcripts whether he said “discrimination”.)

Miller testified that he had written that initiatives are less democratic than legislatures because there is no ability to have transparency, compromise and consensus building. He tried to argue that frequently initiatives are pulled back and reworked after the signatures were gathered but couldn’t name a single instance of it occurring (neither can I).

Miller’s cross-examination will continue tomorrow. I don’t think he will get a good night’s sleep.

Perry v. Schwarzenegger: day nine summary

Thanks to Courage Campaign and FireDogLake

On stand today is Dr. Greg Herek, a leading authority on the psychology of sexual orientation. Herek will discuss three opinions:

• Nature of sexual orientation and how it is understood in sociology and psychology
• The immutability of sexual orientation
• Stigma and prejudice against gays and lesbians and how that intersects with Proposition 8

First Herek clarified that there are three different ways of observing sexual orientation: behavior, attraction, and identity. Because their focus is on STDs, health professionals use behavior. But when psychologist study discrimination, they focus on identity, since that is how people are singled out for prejudice. They measure in terms of relationships and attachments as these are a core part of human behavior.

Herek testified that the APA has considered reparative therapy many times, most recently in 2009, and found it ineffective. Further, there was anecdotal evidence that such efforts may cause harm.

Herek discussed how structural stigma give permission to discriminate against and to mistreat gay people. He presented studies that showed that gay people believe they had no choice of very little choice in their orientation.

In cross-examination, Neilson, attorney for Prop 8, distinguishes between social identity and personal identity (ie some persons may not want to identify with the gay community). Neilson tried to break the assertion that sexual orientation can be a distinct category by suggesting that different measures get different collections of people. Herek testified that there are small numbers of people for whom that might be true (ie those who have same-sex behavior but don’t call themselves “gay”), but that for most, the population is the same.

This is a very important aspect of the trial as this is where the Prop 8 supporters seek to attack one of the four qualifications for being a suspect class: the group is a discrete or insular minority. If a group is not a class, then they cannot be a suspect class. (However, while I’m not an attorney I seem to recall that Romer v. Evans established that gay people are a class – or rather Amendment 2 set them as a class and the SCOTUS didn’t disagree. This establishment of a class of people was, I believe, reinforced in Lawrence v. Texas).

In one fascinating interplay, Neilson tried to get Herek to agree with a statement from one of Lee Badgett’s books that there’s a “heated debate” over the definition of sexual orientation. Neilson kept asking and Herek kept saying that he’s not read the book and doesn’t know what she meant by that sentence. The Prop 8 supporters kept trying to enter the whole book based on questions asked to Herek even though they did not ask Badgett about her own book. This appears on the surface to be an exercise in deception.

He continued quite a bit in that vein, pulling a sentence from a book and demanding to know if Herek found it “unreasonable” (obviously going for the idea that it is “reasonable” that there’s no definition of homosexuality). Herek kept consistent, insisting that studies have different goals and thus different measurement criteria but that does not mean that we have no understanding of how to define sexual orientation: “It could be understood as an ongoing pattern of attraction, sexual behavior, or self-identification.”

Neilson is also very fond of old sources, the older the better. His quotes tend to come from books or articles from the 80s, and even include Kinsey’s research in the 50s.

One of Neilson’s gotchas is that most people who engage in same-sex behavior before 18 do not identify as gay. Thus “only 24 percent of men fit in all three categories” (attraction, behavior, and identity). He showed Venn diagrams. But Herek illustrated that those who identify as gay experience both behavior and attraction and that other measures are so vague that they can be meaningless (e.g. would having sex with another woman be “somewhat appealing”?)

(At one point in the afternoon Neilson may have erred in discussing social construction (the way that culture defines how people view reality). He and Herek got in a bit of a debate about whether it was appropriate to see sexual orientation and race only as social constructs and without merit as definitions. Neilson allowed sexual orientation to be equated with race.

Yet we know, without quibbling or arguing or looking for exceptions at the fringe, that most people can be clearly identified by race. Only a fool or a bigot would argue that discrimination against Aretha Franklin cannot be illegal because we can’t define her race.)

Next Neilson, the Pro-8 attorney, sought to attack the fixed nature of orientation. To prove that sexual orientation is mutable, they pointed out all of the gay people who used to be heterosexually married. (While that might work well in a high-school debate class, I doubt anyone really believes that this proves that gays can become straight).

Herek did agree that women’s sexuality can be fluid and change over time. But he pointed out that the much-touted studies that showed mutation in orientation of women was between the “bisexual” and the “no identity” categories and reflected change in labeling, not attraction.

Neilson pointed out that many of those who identify as gay have had heterosexual intercourse. (Shocking!! Surely, oh surely no gay folk here have ever had heterosexual intercourse at some point in their life!! Meh.)

Next the discussion revolved around the ex-gay studies. First was Dr. Spitzer’s sad little telephone survey. Then Freud’s 1935 letter. But he didn’t want to talk about Exodus, it seems.

Then much of the afternoon was spent trying to prove that women’s orientations are whimsy, undefinable, and due to education.

In redirect, Detmer walked Herek back over the very very lengthy cross-examination to see if it changed any of his views. It did not.

Herek pointed out that all of the pro-8 discussion was about those persons who fall on the edges, the exceptions. He reiterated that other groups (like race and ethnicity) have difficulty with definitions.

Herek reiterated that most gay and lesbian people are consistent within their orientation and that very few indicated any choice in the matter. And then Detmer brought the whole argument back into perspective:

Detmer: If two women want to marry, are they lesbians?
Herek: Yes
Detmer: If two men want to marry, are they gay men?
Herek: Yes

On Monday morning the plaintiffs will show ninety minutes of video and then the Prop 8 proponents will begin their testimony.

Perry v. Schwarzenegger: day eight summary

Thanks to Courage Campaign and FireDogLake

Cross-examination of Professor Gary Segura continued.

The result was evidence that many politicians opposed Proposition 8; that some churches supported marriage equality but that they were in the minority. Established a very strong correlation between those who believe in Biblical literalism and those who supported Proposition 8.

Thompson provided evidence that many gay groups supported domestic partnerships and hailed their passage. Segura agreed but pointed out that this was not in contrast to marriage but rather in contrast to nothing at all.

(The Prop 8 side seems to be encouraging testimony that shows that religion was the reason many voted for the proposition. I’m not sure where they are going with this other than perhaps arguing that religion, as a suspect class, is entitled to discriminate? Or that religion is by definition not animus?)

Thompson brought up the “violent” reaction after Prop 8 passed. (For the record, there was very little violence, “vandalism” seemed to be limited to spray paint, and “intimidation” seemed to consist mostly of boycotts of those who funded Prop 8 but sought gay or gay supportive customers for their business ventures.)

Judge Walker asked an interesting question. He asked whether there were times in which violence did not result in reduced support but rather in increased support. Segura said that happened when it was perceived as acts of desperation by an otherwise powerless group. However, he hesitated to make that leap.

Then Thompson brought up everyone’s favorite Mormon boycott victim, Marji of El Coyote. He referred to Steve Lopez’ column which claimed that police in riot gear were there. (For the record, that is not true. I was there, police were there, Steve Lopez was not. But they were NOT in riot gear and the ONLY interaction they had with the crowd – other than friendly chatting – was to direct people out of the street if they got too far.) Thompson is seeking to argue that the public rejected marriage equality because they heard media reports (or anti-gay exaggerations) about gays behaving badly after the vote. He tried to suggest that any lack of political power that gay people may have was due to a handful of incidences of bad behavior.

In redirect, Theodore Boutrous showed how boycotting is a tool that is employed by the otherwise powerless. He showed how it has a long history in our country and was used by colonialists colonists and by African Americans in the South during civil rights efforts. Segura noted that bad acts were not limited to the gay side but that vandalism and theft of signs also occurred on the pro-8 side. Such behavior, while counterproductive, does not influence many voters.

Because Thompson had brought up after-the-vote events, video, and articles, this opened the door for the ookie-spookie “Gathering Storm” video created by National Organization for Marriage. While it is preposterous and ridiculous, it is a good example of the effort by anti-gays to demonize gay people and portray them as a threat. Segura says that this reinforces disparity in power.

Segura finished by saying that any individual vote or political gain by gay people can be held up as an indication that gays have political power, he has to look at the broader scope of all bills and conclude that gays are indeed unable lacking in influence. To do otherwise would be malpractice.

Next up to the stand is Hak-Shing William “Bill” Tam, as a hostile witness. He is one of the five proponents of Proposition 8 who tried to drop out of the case.

After having previously petitioned the court as a deeply involved party, Mr. Tam now tried to downplay his connection to ProtectMarriage.com. (Frankly, his reluctance to answer honestly – even when the answer is obvious – does not credit his position.) Boies was able to show that Tam was involved with the Proposition 8 campaign since 2007 and before the proposition itself was written.

Tam testified that he believes that homosexuality is linked to pedophilia and that gays are 12 times more likely to molest children than heterosexuals and that gays want to legalize sex with children. Boies had to drag every admission from him. It was nasty.

Tam testified that he said that homosexuality is mutable based on what he had read at about Dr. Francis Collins on the NARTH website that “homosexuality is not hardwired” and has no genetic basis. (I hope that the plaintiffs have read Dr. Throckmorton’s website where he confirms that Dr. Collins said no such thing.) Tam said he never tried to find out what the APA says because NARTH is a better source.

Tam seemed to have consistently undermined his own integrity. In one example, Boies asked him about a rally and Tam tried to downplay his involvement. Then Boies showed documents proving that Tam was the one who brought in Ron Prentise as a speaker and was one of the two press contacts for the rally.

Boies also cleverly got Tam to show that his objection to gay marriage was really an objection to anything gay, supporting Prop 8 would oppose social moral decay including polygamy and incest. He testified that after the Netherlands legalized same sex marriage they legalized polygamy and incest. He testified that after Sweden passed Civil Unions, they allowed siblings to marry.

Boies showed that Tam was ready to believe and repeat anything negative about gay people, no matter how bizarre or heinous. Also, Tam says that he supports domestic partnerships, but it’s pretty clear that this is just a talking point and that he really opposes anything positive for gay people.

Tam testified that his statements were not representative of the campaign and that “Mr. White” called and asked him not to make them. (Based on Tam’s earlier, umm, mistaken testimony which had to be corrected by documents which proved him to have, umm, misspoken, I doubt the veracity of that claim).

Boies pretty much illustrated that everything that was coming out of Tam’s mouth was contrary to evidence. Tam claimed that the campaign was unaware of his OneManOneWoman website in an effort to separate the outrageous claims on the website from the motivations of the campaign.

Boies: Let\’s do more than infer, let\’s look at that August 22, 2008 memo from Mr Schubert\’s firm. What did Schubert\’s firm do again?
Tam: He ran the campaign.
…
Boies: Now look at the last page? Third bullet? Read that please?
Tam: “A website is up, OneManOneWoman.com”

In redirect, Moss tried to show that Tam was insignificant, a rogue, someone who did not clear his messaging with anyone or have his fliers approved.

(There was moment when Tam said he didn’t recognize the voices on the conference calls because English isn’t his first language and they all sound the same. Yikes.)

In redirect, Boies showed that contrary to his claim about being involved only in the “petition phase” and not the “campaign phase”, Tam could be proven to be involved a few days before the election.

Boies concluded the day by reminding Tam of the time in which Asian Americans could not marry the person they loved. He asked if Tam would have felt aggrieved. Yes, Tam said that he would have. Sad.

Hak-Shing Tam To Be Called As Hostile Witness

Expect some dramatic fireworks today at the Prop 8 trial:

A proponent of California’s same-sex marriage ban who warned that gay rights activists would try to legalize sex with children if Proposition 8 did not pass is expected to be called as a hostile witness Thursday for two same-sex couples suing to overturn the measure.

Lawyers for the couples said they planned to call San Francisco resident Hak-Shing William Tam to testify even though he has asked to be dismissed as a defendant in the case, the first in a federal court to examine if state bans on same-sex marriage illegally discriminate against gay Americans.

Part of the case by lawyers seeking to overturn California’s ban on same-sex marriage is being built on the fact that the proponents of Prop 8 acted out of malice toward gay people. Tam had been an intervenor-defendant in the case but dropped out last week because he didn’t like being subjected to the discovery process. No wonder, because attorneys discovered written statements saying that “other states would fall into Satan’s hands” if same-sex marriage weren’t halted in California. With Tam on the stand today, I’m sure that other similar statements will come to light.