Saturday, January 30, 2010

Prop 8 : Around and around it goes. . . .

Burden of proof to overturn Prop. 8 was unmet, backers say as testimony ends

San Francisco, Calif., January 28 (CNA) .- The testimony period of the trial of California's Proposition 8 ended on Wednesday. Backers of the measure claimed that those seeking to overturn it did not meet the burden of proof but had produced a "spectacular show trial of irrelevant evidence." Opponents claimed it was based in discredited religious beliefs and prejudice comparable to racism.

Chief U.S. District Judge Vaughn R. Walker said he would review evidence before the closing arguments, which will likely be held in March or April.

Prop. 8, the contested 2008 ballot measure, passed by more than 52 percent of voters and restored the definition of marriage in California as a union of a man and a woman.

Backers of Prop. 8 have said there is a rational, nondiscriminatory basis for the voters' action. Opponents have contended that a rational basis was unproven and that the measure must pass a higher standard.

They said that homosexual rights are entitled to the standard of legal protection as racial minority rights, claiming that homosexuals lack political power and have been discriminated against on the basis of a characteristic they claim cannot change.

The plaintiffs' lawyers argued that the U.S. Supreme Court had recognized marriage as a fundamental right and therefore there was no legal reason to deny marriage to homosexuals. They claimed Prop. 8 was a product of anti-homosexual prejudice rooted in long-discredited religious and psychological theories about homosexuality.

"We said on the first day of trial we would prove three things," commended plaintiffs' lawyer David Boes after the trial testimony ended, reports. "Marriage is a fundamental right; that depriving gays and lesbians the right to marry hurts them and hurts their children; and there was no reason, no societal benefit in not allowing them to get married."

Alliance Defense Fund (ADF) Senior Lead Counsel Austin R. Nimocks reported on the ADF website that one of the defense's witnesses was David Blankenhorn, a liberal Democrat who has historically supported homosexual political causes including domestic partnerships.

However, he believed marriage should be reserved to a union between man and woman.

Blankenhorn's opposition to overturning Prop. 8 threw "a huge wrench" into the plaintiffs' case, according to Nimocks.

Andy Pugno, general counsel of Prop. 8 backer, thought his team did a "remarkable job" in its defense.

He said in a statement that "sensationalism" should not excuse the plaintiffs' burden of proof.

"Contrary to their public relations claims, the outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best," Pugno argued. "The plaintiffs simply did not carry that burden."

Nonetheless, he said the defense had shown that the longstanding definition of marriage is rational because marriage "benefits children, not just the adults." A household with a mother and a father is "best for a child" and marriage between a man and a woman is the only relationship that can "biologically serve that distinct purpose," Pugno said.

"A same-sex relationship can never offer a child both a mother and father. It's that simple."

Pugno claimed the plaintiffs had produced a "spectacular show trial of irrelevant evidence" with assertions that recognizing same-sex "marriage" would increase tax revenues, help homosexual couples accumulate greater wealth, and improve their self-esteem.

He said these were social and political arguments, not legal arguments pertinent to the constitutionality of Prop. 8.


J said...

I know I'm going to catch hell for saying it, but well meaning as it is, bringing this case was a mistake. You don't have to be a conservative lawyer to support the notion that in a democracy it is an abuse of judicial discretion to "legislate from the bench". In other words, judges shouldn't under the rubric that they are protecting "fundamental rights" start issuing decrees in areas that have traditionally been left to elected rather than appointed representatives. After all, how far should they go in their discretion? Do we overturn the ban long ago held constitutional against polygamous marriages, or overturn the bans against marrying your sister or your mother, or against underage marriage? After a while we will have a dictatorship of the black robes.
The closest case these plaintiffs can cite in support of their position is Loving v. Virginia, in which the US Supreme Court struck down the ban on interracial marriage. That was an important decision, but imminently justifiable in the Civil Rights era of the 60's, and in recognition that we are the same species and miscegenation had been going on since the beginning of time, not the least in the American South. (I believe Ms. Loving was genetically more white than black.)
In this case the Plaintiffs, having failed in their effort to eliminate the ban in a referendum, are asking the courts to overturn a popular vote. They can claim that the ban is an invidious discrimination, but that is a very tough sell given the fact that women are different from men and presently are necessary for propagation. Moreover, and in a purely political calculation, why do the Plaintiffs think their case will get past the Supremes? Conservatives on the court have a majority of five votes. If the liberal judges of California strike the ban it is highly likely the US Supreme Court will reinstate it. Then the only thing we will have accomplished is the creation of a major decision on the limits of judicial intervention.(Actually, I think we need such a statement, although I don't know that I would like to have the present court craft it.)
Gay marriage activists should have waited a while and put the issue back on the ballot.

Gary Kelly said...

If I'm ever in deep crap with the law, I'll get J to argue my case.

Stew said...

Very well stated J.
When it comes down to it, the people have to want it. Until the majority does, we'll wait. I've done my part by being out and proud. I have no issues with using the term "my husband" and the people around me have become more comfortable as well. When enough people are comfortable, it will just happen.

JustinO'Shea said...

J. . ..I like your reasoning. . .and I agree. It does no good to shove it down voters' throats. .. . builds up resistance.

At first the national heads. . .who appointed them???? --- were against a national push with the supremes, etc. . . then they caved and went along reluctantly.

J. I'd like to watch you in court.
BTW, how are you enjoying all the SNOW and ICE???? it is GROSS.

We are having bitter cold. . . . and Peter is home in Provincetown and I am here in the hinterlands. . . .shivering. . .hahahahaa

J said...

The snow's pretty nasty and still falling where I am. The dogs don't want to go out the door, so I have to insist on it. Either that or put down newspapers. God I hate that!

Gary Kelly said...

27 C here at the mo, with light to moderate east to northeasterly winds. I really hate doing this, ya know.

JustinO'Shea said...

You hate it. . . but you're so good at it, Gary. ;-)

Bet you were good on the radio too. . your news commentaries must have been pithy and informative. . ;-)

Gary Kelly said...

Yes, pithy and informative, that's me. But now I'm a star of Youtube, and if you miss it you'll have denied yourself one of the great moments in internet history.

Adelaide Greg watched it and is now inundating my mail box with fan letters.

Florida Josh said...

I earn my daily bread analyzing case law here in the States and wanted to offer some comments. It seems Andy Pugno, general counsel of the Prop. 8 backer, feels his strongest arguments are: 1) "The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best," and 2) "the defense had shown that the longstanding definition of marriage is rational because marriage 'benefits children, not just the adults.' A household with a mother and a father is 'best for a child ' and marriage between a man and a woman is the only relationship that can 'biologically serve that distinct purpose.' . . . 'A same-sex relationship can never offer a child both a mother and father. It's that simple.' As for 1), the question whether Prop. 8 is constitutional is not done by asking the people what they think is best. If we did that, we would still have segregation simply because whites outnumber the blacks. As for 2), if that has merit, then to "protect the children," we should make it illegal for a child to be raised by a single parent since only, "a household with a mother and a father is 'best for a child.'" Thus is it his arguments, not the other side’s, that are aimed at stirring the emotions of the "the people," rather than making sound legal arguments. The question is will U.S. District Judge Vaughn R. Walker make a decision based on the law. The great American super attorney, Gerry Spence, (retired in his 70’s and never lost a criminal case), in his book "How to Argue and Win Every Time," pointed out that to win an argument, you must first make the decision maker want to decide in your favor, then you must show him how to do so without making a fool of himself. The material is solid that Prop. 8 is unconstitutional so the question is does he want to rule that way. In 1982, a group started the “Gay Olympics” and the International Olympic Committee (IOC) and the United States Olympic Committee (USOC) sued, saying the word "Olympics" belonged to them and couldn't be used. Defendants of the lawsuit contended that the law was capriciously applied and that if the Nebraska Rat Olympics and the Police Olympics did not face similar lawsuits, neither should the Gay Olympics. However, the IOC and USOC prevailed and the name was changed to "Gay Games." Judge Walker, then Attorney Walker, represented the USOC, and this became an issue when Ronald Reagan originally nominated Walker for a federal judgeship and he didn’t become a judge until later under Bush. A San Francisco Chronicle columnist and reporter wrote in a commentary that Judge Walker has an "aversion to harsh sentences for well-educated, well-heeled criminals and, in particular, perpetrators of securities fraud," so he seems to willing to bend his decisions to cater to his own agendas. But what about his job security today. He is now answerable to President Obama, who taught Constitutional Law at the University of Chicago Law School for twelve years (1992-2004). If he wants to stay in good favor with is current boss, he should make a decision based on the constitution rather than any personal agendas he might have. Further, he will certainly be aware that President Obama grew up being discriminated against because of his skin color, and he is currently fighting battles with organizations like FoxNews and Glenn Beck, who work the masses into an uproar with partial truths and things that are irrelevant. So he might want to make a decision based on the law for his own job security, instead of any agenda’s be might have.

JustinO'Shea said...

Thanks, JOSH. . .another excellent 'legal mind'. These are very cogent thoughts, it seems to me. Interesting.

If this case was judged as "unconstitutional" how can a valid binding law be overturned like that? If the marriage equality is right, how can a vote "by the people" make the fact "wrong". Doesn't seem to me to be an arbitrary choice. . .one day it is, the next day it isn't. . .!

What is said to be "unconstitutional" cannot be made "constitutional by an election so strongly pushed, financed by tax-exempt church groups. Correct?
Then, how do they get away with it?

They have a living minority - the gay marriages declared legal and allowed to stand as such - standing as a daily live witness to the illegality of their present votes and 'binding law'.


J said...

No judge is answerable to the President of the U.S. (Remember U.S.v. Nixon?) Its called separation of powers. Assuming Judge Walker is as stated a U.S. District Judge, he has life tenure under Article III of the Constitution, subject to removal only by impeachment by the U.S. Senate on proof of bad behavior. (Remember that great Florida jurist Alcie Hastings, who was impeached for taking bribes and later elected to the U.S. House--a far more forgiving body, apparently, than the Senate.) So how, Josh, did Obama become Judge Walker's boss?
That said, I really don't think the case law clearly shows this ban to be unconsitutional. The 14th Amendment has been interpreted as forbiding only invidious discriminations, that is discriminations that are not based on objectively reasonable distinctions. If the legislature and the voters believe the marital state and its legal privileges should be limited to unions of men and women because of their sole biological ability to propagate the species, is that not based on a reasonable distinction? And is not the gay community's previous decision to rectify the situation through popular referendum an acknowledgement that the remedies are legislative rather than juridical?
I personally think there is no reason why the marital status should be withheld from same sex couples, but that doesn't mean the proper remedy for change is through the courts rather than the ballot box.
David Boies is probably as good a litigator as we have in the country today, to the Plaintiffs are certainly well represented. It will be interesting to see how this story plays out, and I hope you, Justin, will call me to account if my predictions about the ultimate disposition of this case prove inaccurate.

JustinO'Shea said...

YES,Sir! YES, I shall as you ask. . ;-)
I find all this talk fascinating but in this case - from both of you - I do not fully grasp the intricacies of The Law. . .and who is who to whom.
I am afraid on this one I am too simplistic.

So I shall stick to psychology and the twistings n turnings of the human heart/soul. I do much better here.. . .hehe

Hey I got an private email from a guy under 35. . about the website[s]. Cool.

Gary Kelly said...

Hmmmm... I rather enjoy a bit of a barney between legal minds. Your blog is a magnet for all kinds of people, Justino. There's obviously a lot more to you than your furry butt.

Coop said...

I am reading all this, DUDES...
I don't know if this case was the best tactical idea. At LEAST there is a noted right-winger advocating for equality.

JustinO'Shea said...

Aaawwwww.. . .Gary. . .you're sweet. . .and astute. . .LOL

Yepper, more than a fuzzy butt!!! That won't pay the bills! hehehe. . .but noice to sit on. . for me, I mean!!!! Oooopsss.

Yeah, lots of nice people here. .getting to love them all! I am so semimental. . .jajjajaajaja

FL Josh said...

Justin asks, "If this case was judged as 'unconstitutional' how can a valid binding law be overturned like that?" We create constitutions to express our philosophical ideals and we create laws and rules to put them into effect. The purpose of our courts of law is to settle disputes as to the application of our laws and disputes as to whether laws are in keeping with what we have in our constitution. The court decisions create what we call "case law," as it answers specific questions about the application of our laws. It is not a judge's job to look for problems but to resolve problems brought to him. So, a law can be passed that is unconstitutional and it will be the law of the land and duly enforced until someone takes it before a judge. There can also be amendments to a constitution that the legislators with the job of creating the laws to put it into effect choose not to do so. The citizens of Florida some years ago passed a constitutional amendment limiting the number of students in a class. Putting it into effect would cost the state a lot of money building new schools, plus statistics actually show that students in larger classes do better, so the legislature has chosen to ignore it. Anybody can come up with an idea for a constitutional amendment, get others worked up, get it on the ballot, and it can pass, thus constitutional amendments come from the emotions of the masses. They may be good and they may be bad. The laws are created by elected legislators, so in theory, by people with a bit more thinking power than the masses, but legislators still are human and have their own agendas, which we are seeing only too well with the current battle of health care reform. So when you say, "What is said to be 'unconstitutional' cannot be made 'constitutional' by an election so strongly pushed, financed by tax-exempt church groups. Correct?" No, that's incorrect. Anyone can push through a constitutional amendment. It ultimately must be voted on by the people, "the people" are not too bright, and will believe what they want, so they are easily manipulated in today's media. A good example is Glenn Beck with FoxNews. My sister never misses Glenn Beck and she tells me the horrors of what Obama is doing, for example, he is doing away with Social Security, those who can't buy the government's health care plan will be locked up in jail, and the disabled and elderly will systematically be put to death to save money. She really believes this because Glenn Beck plants these seeds. As for J's comment, "No judge is answerable to the President of the U.S. (Remember U.S. v. Nixon?) Its called separation of powers. Assuming Judge Walker is as stated a U.S. District Judge, he has life tenure under Article III of the Constitution, subject to removal only by impeachment by the U.S. Senate on proof of bad behavior." J is absolutely right in theory, but look what President Bush did with federal judges who were not ruling in line with his Administration's policies - the midterm dismissal of seven United States Attorneys on December 7, 2006 by the Bush administration's Department of Justice. Realistically, I doubt Judge Walker has to worry about losing his job, but a decision unpopular with the administration could shut down any hopes he might have of becoming a supreme court justice, although admittedly, he is really, really old, born way back in 1944, so is virtually a fossil, so probably isn't thinking about that. But then, the supreme court attracts fossils, and I expect many of the judges at this level have pretty strong egos, so my bet is that he would not want to make a decision that might close the door to a big promotion.

JustinO'Shea said...

Thanks, Josh, again for your good commentary. . .could be fun playing in law. . hehe. . .but why? Enough players as is. . .and again not my cuppa.

I m grteful for your replies. . and also grateful to all the others sharing idesa.