Thursday, August 19, 2010

Prop 8 Trial Resources and Updates

The video and document evidence in the Prop 8 trial (Perry v. Schwarzenegger) has been posted.

In addition, the 9th Circuit has created a website containing all information and orders related to the federal appeal.

Most recently, the 9th Circuit has granted Protect Marriage's motion for a stay (PDF) of Judge Walker's order which means that, unfortunately, same-sex couples will not get to legally marry in California during the appeal period. Protect Marriage had argued (PDF) that a stay was "imperative" in order "to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages."

The brief supporting the motion (available at the link above) is an interesting read, as it purports to show that not only was Judge Walker legally wrong but, and here the "marriage defenders" treat the appeals process kind of like a big do-over trial, that he was also factually wrong. If this case is ultimately decided on the merits, the 9th Circuit will likely address some evidentiary issues.

Supporting this prediction, the brief first accuses Judge Walker of having ignored the "judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense" in making his findings of fact about marriage. What the brief fails to mention, of course, is that it was the "marriage defense" side's job to present this plethora of "extensive" evidence to the trial court and that they failed to adequately do so, instead over-confidently relying on the testimony of two men deemed to be unqualified and assuming that their arguments were "legislative facts," indisputable facts of "general knowledge" that did not have to be proven.

Of note, the brief only cites the "marriage defense" trial "expert" David Blankenhorn once, perhaps conceding his un-expert status (while of course complaining about Walker's decision not to qualify him as an expert). Then, as though the original trial never happened, the brief sets out to prove that there is no fundamental right to same-sex marriage by citing various dictionary definitions of marriage, jurist William Blackstone's description of the relationship between "husband and wife," various court cases describing marriage in procreative terms, and the legislative history behind the Defense of Marriage Act, all in order to question many of Judge Walker's findings of fact.

And yet, having read the bulk of the trial transcripts and supporting evidence, not all of these "marriage defense" facts necessarily contradict or diminish the equality side's expert testimony. For instance, we can look at historical dictionary entries defining marriage as a union between a man and a woman while also acknowledging Walker's finding of fact that, historically, this man-woman view of marriage assumed that men and women have different roles in family life and society. We can likewise read Blackstone's description of marriage while also acknowledging the reality that nobody died and made Blackstone the Ultimate Decider Of What Marriage's One True Purpose Is. While his 18th-century opinion counts for something, are we to shut our eyes to the reality that, at least in the 21st-century, a state that didn't even exist in Blackstone's powdered-wig-wearing, slave-owning, wives-as-property era might now have other purposes for issuing marriage licenses?

Nonetheless, although many of the brief's arguments were not advanced at trial and certainly weren't addressed by "marriage defense" experts (or non-experts as the case may be), the brief asserts that the 9th Circuit can consider these arguments because they're undisputed legislative facts that did not have to have been presented at trial. And, of course, they claim that their compilation of facts trumps the testimony of the equality side's experts and lay witnesses, all of whom are either directly impacted by the ban or academians with actual expertise in history, anthropology, psychology, and sociology and aren't dictionary writers or 18th-century jurists.

In a nutshell, Judge Walker was purportedly wrong because the evidence the "marriage defenders" didn't present at trial trumps the evidence the equality side actually presented. Oh, how the "marriage defense" monopoly on Truth truly astounds.

Indeed, as legal commentator Andrew Cohen remarks:

"During the trial, Walker practically begged and cajoled the Prop 8 lawyers to do better for their cause. He asked them written questions to draw them out. He scolded them during closing arguments to make more persuasive arguments. They simply didn't or couldn't or wouldn't respond."

And so now, of course, "marriage defenders," so used to having having their opinions about marriage and family count as Truth in the court of public opinion, are outraged. Their entitlement to define reality for all people has been challenged by a neutral arbiter, but instead of revising their opinions in light of better evidence, they blame their loss on a judge's alleged "biased" homosexuality and his "activism." At its core, the "marriage defense" rallying cry is we don't have to have evidence for our beliefs about marriage, we have more people on our side- people with common sense who just knowwwww these things. Every ban on same-sex marriage is about the brute force of people enacting a ban just because they can, not because it actually affects them or is in any way rational.

So, true to echolalic form, the "marriage defense" brief repeats many of the arguments unsuccessfully advanced at trial and gives us a good idea of how they're going to argue the case on the merits. They repeated the line about how it "defames not only seven million California voters, but everyone else in the Country" who opposes legal same-sex marriage to infer that Prop 8 was enacted because of anti-gay animus, despite evidence presented at trial that actually shows the Prop 8 ads that deliberately fostered and played upon such animus. Refer to the above evidence link to see some of these pro-Prop 8 videos. Yet, in an Orwellian play, this "marriage defense" brief calls charges of anti-gay animus "false and unfair," as though each and every "seven million California" voter is a kind-hearted paragon of tolerance and we have no reason at all to believe otherwise.

They also argued that there is no fundamental right to marriage because marriage in the US and "in every civilized society" has always been between one man and one woman. (Or, you know, one man and one woman, and another woman, and another, and another; Or, say, one man and one young girl; Or, perhaps, one man and one woman, both of whom are having sex with people other than their spouses; Or, between a man and his female property; Or, perhaps a woman who was born male who is married to a woman....). While the "marriage defenders" have a point that marriage in most societies has had a different-sex aspect, they err in claiming, while ignoring contradictory evidence that proves otherwise, that "an overriding purpose of marriage in every society is, and has always been, to approve and regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society."

Really? That's a huge sweeping statement. Only by ignoring all of the evidence proving otherwise is that a thing someone just says with total confidence. And, isn't that defamation of the millions of humans that have existed throughout history for whom that hasn't been their "overriding purpose" for getting married?

Furthermore, even if we were to concede that the One Big Purpose of marriage was to regulate the "unique" sexual relationship between men and women, the brief fails to demonstrate how banning same-sex marriage burdens that purpose. Given that that's a big something the "marriage defense" experts and attorneys were unable to answer at trial, I have serious doubts that this is a zero-sum game where if same-sex couples win marriage rights, marriage loses its alleged capacity to regulate heterosexual sex.

If there's something really specific "marriage defenders" can articulate, I need that to be spelled out really clearly, because (and I'm sure others can relate), it's far from obvious. I've read Blankenhorn's marriage book, I've read "marriage defense" sites, I've read armchair marriage pundits, and the best they give us are vague, amorphous, and unsupported claims about the impending "deinstitutionalization" of marriage, patently ridiculous and hate-group sponsored propaganda that blames same-sex marriage on a host of social ills, and fear-mongering pieces suggesting that men will begin wantonly raping (more) women once same-sex marriage is legal. The worst they give us isn't even worth delving into, although if confronted with it, Protect Marraige would be hard-pressed to argue that accusations of anti-gay animus are "false and unfair."

To end, for those trying to predict an outcome (and aren't we all?), I have some items of note. First, in order for a stay to be granted, the party must be able to demonstate a likelihood of success on the merits. Purportedly, "marriage defenders" have met this standard, although the 9th Circuit provided no discussion of the actual merits of the "marriage defense" claims.

Second, note that this order was related only to the stay motion. The panel of judges that actually decides the case on the merits will likely consist of a different panel of judges. All things considered, I am less optimistic than I was a few days ago of our on-the-merits chances on appeal, but, um, hopechange?!

Three, the 9th Circuit has also ordered that the appeal be expedited, with oral arguments to occur in December 2010, and has directed Protect Marriage to discuss why their appeal should not be dismissed due to lack of standing. So, there is still the chance that the case will be dismissed due to Protect Marriage's lack of standing, meaning that the case will not be decided on its merits.

Finally, many people have read, or will read, Judge Walker's opinion and see for themselves the evidence presented. In his opinion, Walker recounted the testimony of everyday people who are harmed by Prop 8, of scholars who rebuked nearly every argument against same-sex marriage, of professional "marriage defenders" who admitted that we would be more American the day we legalize same-sex marriage, and of a "marriage defense" attorney who admitted that he didn't know what the harm would be by allowing same-sex marriage. No matter what ultimately happens in court on the merits, it would be difficult for a reasonable person to not be at least somewhat swayed by all of this evidence. A rational person would have doubts about the "marriage defense" monopoly on Truth. That will help us in the court of public opinion.

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