CA's Prop 8 court case hearing closing statements today

http://www.huffingtonpost.com/rick-jacobs/equality-on-trial_b_605176.html

Questions the judge apparently planned to ask:

What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?


What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?

If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?

The court has reserved ruling on plaintiffs' motion to exclude Mr Blankenhorn's testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?

Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc #605 at 11 ("But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination."). What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?

What does it mean to have a "choice" in one's sexual orientation? See e g Tr 2032:17-22; PX 928 at 37

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Some responses to earlier questions from the defendant:
Doc 687

and the plaintiff:
http://www.equalrightsfoundation.or...-Plaintiffs-Responses-to-Courts-Questions.pdf

I've only skimmed through the defendant's answers, but their argument seems to bank on procreation being a state interest, and that banning same-sex marriage somehow furthers that interest. I can almost buy procreation as being a state interest, although such a ruling would have some far-reaching implications that even the "Anti" crowd might not like, but I fail to see how banning same-sex marriage furthers it. Defendant claims "Proposition 8 advances the
government interests in marriage, especially increasing the likelihood that children will be born to and raised by both their natural parents in stable and enduring family units."

I don't buy it. The reverse implies that overturning Prop 8 would decrease the likelihood of such a family unit. I don't see how. How many homosexual couples procreate "naturally" anyway? Not to mention there's strong evidence showing that a homosexual couple provides an equally "stable and enduring" family units.

They also appeal to the status quo a lot. "That's the way it's always been!"

I try to understand the other side in most arguments, but I've just never been able to wrap my head around the idea that two dudes marrying each other somehow affects my relationship or marriage. Why would this harm me somehow? Am I going to be less in love than I was before? More likely to get a divorce? Defendant's answer to this kind of question was really, really weak.

12. What harm do proponents face if an injunction against the enforcement of Proposition 8 is issued?

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This Court has already held that Proponents have a “significant protectable
interest in defending Proposition 8” that is not adequately represented by any other party. That
interest would obviously be harmed by an injunction against enforcement of Proposition 8.
Additionally, Proponents would be harmed by the issuance of an injunction against the enforcement
of Proposition 8 in their capacities as agents for the People and Government of the State of
California, recognized as such under state law to defend, in lieu of the defendant public officials,
the constitutionality of Proposition 8.See Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009)
(permitting Proponents to intervene to defend Proposition 8 against state constitutional challenge
where Attorney General asserted state constitutional claims against Proposition 8).

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Ruling will probably be in a couple weeks. We'll probably see some transcripts popping up later today.

Edit: Also I'm glad the Governator and the California AG both continued to decline to testify in favor of Prop 8.

Edit2: Yes-On-8 crew also wants to essentially nullify previously issued same-sex marriage licenses by making them not recognized by the state. This was already settled by the California Supreme Court... not happening, assholes.

Well, nothing to do now but cross fingers and hope the prosecution made it's case.

Prop. 8 trial closing arguments: Live coverage from the courtroom - San Jose Mercury News

When the judge repeatedly asked Cooper what evidence his side had for the argument that barring gay marriage is justified to promote the procreative purpose of traditional marriage, Cooper kept insisting that the premise is self-evident. And that countless courts have found that to be the purpose of traditional marriage. And that millions of Californians backed Prop. 8 to
preserve traditional marriage and the need for couples to bear children.

Where's the evidence? Walker asked.

"You don't have to have evidence of this," Cooper tried to assure him.

The judge tried again.

"Why in this case did you present but one witness on this subject?"

The argument continues.

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...not a very good argument, defendant!

Hoplite said:

Well, nothing to do now but cross fingers and hope the prosecution made it's case.

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This, lets hope the courts stand up for equality.

Hopefully the court will make the right decision and overturn proposition 8.

molten_dragon said:

Hopefully the court will make the right decision and overturn proposition 8.

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Eh, either way it will probably eventually hit the Supreme Court, and I'm not sure I like the breakdown there. SCOTUS has a conservative majority at the moment, and a loss there would set back the movement for equality many years. Right now, a narrow majority of Americans still oppose gay marriage. SCOTUS doesn't often jump out ahead of public opinion like that. In five or ten years, I bet that majority is gone, but for now I still fear the result will not be to my liking.

On the other hand, if SCOTUS took the case and ruled that denying gay marriage rights is unconstitutional, it would be pretty sweet.

where is the "Did the voters of California make their will specifically known by amending their Constitution, and can it be proven that this Constitutional Amendment is in contradiction to the Federal Constitution" question ? does he even care?

:roll: can we all stop pretending we don't already know what this judge is going to rule... and that we haven't from the beginning.

The bill shouldn't have even been allowed to pass in the first place. It altered intrinsic parts of the existing constitution, namely the

A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.

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and thus would have needed a 2/3 majority to pass. I don't get why nobody even brought up such an obvious contradiction.

1. it wan't a 'bill'; it was a constitutional amendment. amendments alter intrinsic parts of existing constitutions all the time; and are considered to invalidate those portions of the earlier constitution that they alter. For example, the 18th Amendment was invalidated by the 21st, and the 14th Amendment invalidated the "3/5's Clause"

2. there is no reason to suppose that that portion of the existint constitution was necessarilty altered. All that was altered were the requirements necessary to recieve a license. Nobody is out there protesting the "intrinsic rights" of 12 year olds or the blind to get driving licenses.

cpwill said:

where is the "Did the voters of California make their will specifically known by amending their Constitution, and can it be proven that this Constitutional Amendment is in contradiction to the Federal Constitution" question ? does he even care?

:roll: can we all stop pretending we don't already know what this judge is going to rule... and that we haven't from the beginning.

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Voters cannot over-ride the rights of any group or individual with any vote.

cpwill said:

where is the "Did the voters of California make their will specifically known by amending their Constitution, and can it be proven that this Constitutional Amendment is in contradiction to the Federal Constitution" question ? does he even care?

:roll: can we all stop pretending we don't already know what this judge is going to rule... and that we haven't from the beginning.

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State Constitutional amendments can't contradict the US Constitution. Indeed, in overturning Colorado Amendment 2 in Romer v. Evans, Kennedy writes that not only did Amendment 2 fail to meet "strict scrutiny"; it failed to meet much lower standards: it failed to even show a "rational relationship to the legitimate state interests."

Thus, those in favor of Prop 8 are required specifically to show that the amendment (a restriction of rights once legislatively granted; then vetoed; then re-established by the state Supreme Court) has a legitimate state interest.

Since the state wasn't willing to defend it; and those defending it could provide NO evidence as to what harm comes to the state in overturning Prop 8.

The state has no legitimate interest.

You can claim to be indignant; but legally, this has precedent and (especially in light of the piss-poor case by the defendant), it's the right decision.

Hoplite said:

Voters cannot over-ride the rights of any group or individual with any vote.

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That depends on what you consider a "right". The state overrides things some people would like to have a "right" to all the time.

I would like to have the right to beat the living **** out of people who annoy me. The State has decided that I don't have that right. Oh well, no fun for me... :mrgreen:

The question of whether SSM is a "right" is being addressed Constitutionally in CA by Prop 8, in an attempt to define whether there is a "right" to SSM at all. Right now everyone has a right to a hetero marriage, and no one has a right to a SSM. Apparently most folks like it like that... :mrgreen:

Hoplite said:

Voters cannot over-ride the rights of any group or individual with any vote.

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This is ridiculous. Our rights are outlined by the constitution, and if enough people vote to do so, the constitution can be changed. Therefore, voters can indeed override the rights of a group or individual with a vote. It doesn't necessarily make it okay, but the ability to do so is quite clear.

cpwill said:

where is the "Did the voters of California make their will specifically known by amending their Constitution, and can it be proven that this Constitutional Amendment is in contradiction to the Federal Constitution" question ? does he even care?

:roll: can we all stop pretending we don't already know what this judge is going to rule... and that we haven't from the beginning.

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Are you implying that the judge is not impartial or are you implying that defense had a really weak ass case? (hint: the second one is the correct answer)

edit: He asked some really tough questions of the plaintiff too, you know. Like "will an injunction stopping Prop 8 reduce discrimination and can you provide evidence of that."

Also I just wanted to reiterate my tremendous amusement that the defense actually said "We don't need evidence" in the closing arguments of a really huge court case.

molten_dragon said:

This is ridiculous. Our rights are outlined by the constitution, and if enough people vote to do so, the constitution can be changed. Therefore, voters can indeed override the rights of a group or individual with a vote. It doesn't necessarily make it okay, but the ability to do so is quite clear.

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California's constitution cannot override the US constitution. For instance, no amount of votes could institute slavery in California, to make the ridiculous example.

it wan't a 'bill'; it was a constitutional amendment. amendments alter intrinsic parts of existing constitutions all the time; and are considered to invalidate those portions of the earlier constitution that they alter. For example, the 18th Amendment was invalidated by the 21st, and the 14th Amendment invalidated the "3/5's Clause"

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It was actually a proposition, my bad for calling it a bill. Under the California rules, which are horribly convoluted, any proposition that alters fundamental portions of the constitution require a 2/3 majority in order to be made law. Prop 8 did not get the 2/3, so it wouldn't have passed if it was determined to be amending the current California Constitution.

there is no reason to suppose that that portion of the existint constitution was necessarilty altered. All that was altered were the requirements necessary to recieve a license. Nobody is out there protesting the "intrinsic rights" of 12 year olds or the blind to get driving licenses.

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Any who can pass the drivers license test can drive except minors who don't have full rights. Blind people could drive if they were capable, with advanced technology it might be possible in the future. Marriage is not being offered on equal terms, as homosexuals are not allowed.

This is ridiculous. Our rights are outlined by the constitution, and if enough people vote to do so, the constitution can be changed. Therefore, voters can indeed override the rights of a group or individual with a vote. It doesn't necessarily make it okay, but the ability to do so is quite clear.

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I agree with you, but in the case of Prop 8 they didn't actually get the votes needed to override the constitution. Instead, it magically was decided it didn't conflict, despite obviously giving special treatment to heterosexuals and marriage.

Goshin said:

That depends on what you consider a "right". The state overrides things some people would like to have a "right" to all the time.

I would like to have the right to beat the living **** out of people who annoy me. The State has decided that I don't have that right. Oh well, no fun for me... :mrgreen:

The question of whether SSM is a "right" is being addressed Constitutionally in CA by Prop 8, in an attempt to define whether there is a "right" to SSM at all. Right now everyone has a right to a hetero marriage, and no one has a right to a SSM. Apparently most folks like it like that... :mrgreen:

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molten_dragon said:

This is ridiculous. Our rights are outlined by the constitution, and if enough people vote to do so, the constitution can be changed. Therefore, voters can indeed override the rights of a group or individual with a vote. It doesn't necessarily make it okay, but the ability to do so is quite clear.

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Really? So, neither of you would object if the federal government stopped recognizing ANY marriage at all?

Voters cannot over-ride the rights of any group or individual with any vote.

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Your statement rests on the argument that the Federal Constitution forbids governments from limiting marriage to heterosexual couples. You're free to make that argument, but it's not had much success as of yet.

Hoplite said:

Really? So, neither of you would object if the federal government stopped recognizing ANY marriage at all?

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I can't speak for them, but that would be absolutely perfect for me.

Let "marriage" remain a private concept and have the government recognize partnerships between consenting adults.

Really? So, neither of you would object if the federal government stopped recognizing ANY marriage at all?

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I'd be thrilled. Civil unions for all, leave marriage to the people.

RightinNYC said:

Your statement rests on the argument that the Federal Constitution forbids governments from limiting marriage to heterosexual couples. You're free to make that argument, but it's not had much success as of yet.



I can't speak for them, but that would be absolutely perfect for me.

Let "marriage" remain a private concept and have the government recognize partnerships between consenting adults.

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rathi said:

I'd be thrilled. Civil unions for all, leave marriage to the people.

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Then we are in agreement

I'm not sure where they are going with the argument about enduring natural parent relationships. Are they just completely ignoring modern psychological evidence to the contrary? I mean, every objective social study about same sex parenting has yielded the same results: that two parent, stable partnership households are conducive to healthy children, regardless of the genders of the parents.

If this case were based entirely on scientific grounds, the anti-GM side would lose. But this court case doesn't have much to do with that. They're still harping on the prop 8 vote and for that, I only hope that the judges in charge are rational.

Goshin said:

The question of whether SSM is a "right" is being addressed Constitutionally in CA by Prop 8, in an attempt to define whether there is a "right" to SSM at all. Right now everyone has a right to a hetero marriage, and no one has a right to a SSM. Apparently most folks like it like that... :mrgreen:

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You're missing some of the facts.

Right now, 18,000 same-sex couples are legally married in CA. The state gave them this right between June and Nov 2008.

Same-sex couples that want that same right are being turned away from the county clerks office because of Prop 8. How do they get equal protection?

Hoplite said:

Really? So, neither of you would object if the federal government stopped recognizing ANY marriage at all?

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It depends on whether they replaced 'marriage' with something similar.

If they stopped recognizing marriage and simply recognized domestic partnerships, yes, I'd absolutely be on board with that.

If they simply stopped recognizing marriage altogether and there was no similar institution in place, I'd have a problem with that. While an argument can certainly be made that married couples get too many benefits from the government, some of the benefits they get I believe are absolutely necessary. As long as there was a way for couples to still get those benefits, I'd be fine with the government not recognizing marriage.

Defense's case was so hilariously awful that you have to wonder if they were trying to lose. When asked how gay marriage would harm heterosexuals, the lawyer said he didn't know. When asked for evidence that the purpose of marriage was procreation, he said he "didn't need evidence." The principle witness for the defense testified that we would be "more American the day we permit same-sex marriages". Plaintiff clearly showed that the voters of California were given a completely different picture than was given in court. (the "marriage is for procreation" argument never showed up during the campaign, it was one based on driving up fear of the GAY AGENDA) I don't see how a judge could possibly rule in favor of Prop 8 based on this trial.

The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.
Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support. It is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could easily be withdrawn if the state were to change its mind about procreation. In other words, it is a right belonging to Californians, to persons. It is not a right belonging to the State of California.

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"Because it's always been this way" is not an argument. Ask any successful businessman if "we've always done it that way" is a good reason to do anything.

And really, how the hell can you look at a couple that is in love and tell them that their relationship shouldn't be treated like yours, that their love is somehow less deserving of the privileges and recognition that comes with marriage?

Orion said:

I'm not sure where they are going with the argument about enduring natural parent relationships. Are they just completely ignoring modern psychological evidence to the contrary? I mean, every objective social study about same sex parenting has yielded the same results: that two parent, stable partnership households are conducive to healthy children, regardless of the genders of the parents.

If this case were based entirely on scientific grounds, the anti-GM side would lose. But this court case doesn't have much to do with that. They're still harping on the prop 8 vote and for that, I only hope that the judges in charge are rational.

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Rational here only means "that I agree with." The rational thing is for the court to through this case out. This was a State Constitutional Amendment and therefore the guiding law of the land that the judge should follow (whether he agrees with it or not). The judge should make the citizens of California repeal this Amendment if he were being rational.