The Federal Prop. 8 Trial / Gay Marriage Catch-All

DSGamer wrote:

If they are as Strict Constructionist as many say they are, then surely they can't find "one man, one woman" in the Constitution. It will be a test of the right of the SCOTUS's intellectual integrity.

But not every law requires a strictly explicit Constitutional basis - they'd need to prove it violates the Constitution to overturn it, no?

NormanTheIntern wrote:
DSGamer wrote:

If they are as Strict Constructionist as many say they are, then surely they can't find "one man, one woman" in the Constitution. It will be a test of the right of the SCOTUS's intellectual integrity.

But not every law requires a strictly explicit Constitutional basis - they'd need to prove it violates the Constitution to overturn it, no?

"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is. However, a SCOTUS case is still unpredictable when you consider sh*te like Kelo vs. New London.

What this trial is doing is making a farce out of the alleged harm that same sex marriages and households cause. Makes you wonder what the defense's briefs to the Supremes are going to look like, if this is even their 'A' game.

From my perspective on the SCOTUS being a court that rules in favor of corporations the vast majority of the time, i'd predict that they would uphold gay marriage on the economic argument -- more gay marriages is good business.

I at first assumed they would shoot it down to save corporations money on insurance for partners, but DPs already destroy that argument.

GioClark wrote:

"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is.

Well. The real question there is, does sexual orientation define a protected class? SCOTUS has had the opportunity to extend protected class status to non-racial (or gender) groups before and did not - for example, people with mental or physical disabilities.

GioClark wrote:

What this trial is doing is making a farce out of the alleged harm that same sex marriages and households cause.

Which is why I think that whichever way this goes, it is a positive for SSM.

As I said early on, even if Prop. 8 is upheld, that only means we are where we are right now. However, we now have loads of testimony from Prop. 8 witnesses and documents from ProtectMarriage.com that demonstrate the animus that was involved in the Prop. 8 campaign and the blatant lies they told were based on pipe dreams and magic wishes.

After the testimony of Bill Tam, Prof. Miller and Mr. Blankenship, the only rationale for believing that gay marriage is a threat to straight marriage and society is "because I think it is."

NormanTheIntern wrote:
GioClark wrote:

"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is.

Well. The real question there is, does sexual orientation define a protected class? SCOTUS has had the opportunity to extend protected class status to non-racial (or gender) groups before and did not - for example, people with mental or physical disabilities.

They have, however, struck down at least one State constitutional amendment explicitly discriminating against homosexuals, which is what California's Prop 8 is.

http://en.wikipedia.org/wiki/Romer_v...

As weak as the anti-SSM case seems to be in this trial, I hope that the imminent SCOTUS case doesn't come down to politics. A victory at that level will could lay the groundwork to bring down the Defense Of Marriage Act.

Phoenix Rev wrote:

After the testimony of Bill Tam, Prof. Miller and Mr. Blankenship, the only rationale for believing that gay marriage is a threat to straight marriage and society is "because I think it is."

Keep in mind there were several witnesses they had listed that backed out at the last minute. Considering that Tam was also practically screaming to get out of the trial but was allowed in anyway, I have a feeling that the defense just decided to throw their crap witnesses to the dogs this trial and save people who don't look like complete morons for the SC.

Bloo Driver wrote:
Phoenix Rev wrote:

After the testimony of Bill Tam, Prof. Miller and Mr. Blankenship, the only rationale for believing that gay marriage is a threat to straight marriage and society is "because I think it is."

Keep in mind there were several witnesses they had listed that backed out at the last minute. Considering that Tam was also practically screaming to get out of the trial but was allowed in anyway, I have a feeling that the defense just decided to throw their crap witnesses to the dogs this trial and save people who don't look like complete morons for the SC.

No witness testimony is allowed at that level. Lawyers and briefs only.

Oh then I have absolutely no idea. Maybe they really are just that stupid.

Also, no statements or evidence not admitted to the trial record can be presented on appeal.

For me the greater subtext is the idea of voter referendum law. Just how far can the voter go without federal checks and balances? Can a law or state constitutional amendment go from the booth to the record? These have been highly controversial for centuries.

NormanTheIntern wrote:
DSGamer wrote:

If they are as Strict Constructionist as many say they are, then surely they can't find "one man, one woman" in the Constitution. It will be a test of the right of the SCOTUS's intellectual integrity.

But not every law requires a strictly explicit Constitutional basis - they'd need to prove it violates the Constitution to overturn it, no?

Right. But you missed my point entirely. All of the Republican nominations for the last 20 years have came from this background of taking the Constitution at its word and avoiding interpreting it as a "living document". That's a constant argument. So what I'm saying is that in this case I believe you'd have to come down against prop 8 since it does indeed violate the Constitution taken in the most strict sense, if you're a member of the Strict Constructionist wing of the court (Alito, Thomas, etc.). Therefore, it will be interesting to see how they would handle this case. If their intellectual integrity and rigor could stand the test of something they disagree with.

Yeah, I don't see any way you can be strict about interpretations of the constitution and not rule against this. It is very clearly discrimination. There are lots of arguments put forward about how it will lead to goat love, etc. or that historically marriage has meant this but when you look just at the constitution then the law is in violation.

DSGamer wrote:

So what I'm saying is that in this case I believe you'd have to come down against prop 8 since it does indeed violate the Constitution taken in the most strict sense

How so, from a literalist point of view?

NormanTheIntern wrote:
DSGamer wrote:

So what I'm saying is that in this case I believe you'd have to come down against prop 8 since it does indeed violate the Constitution taken in the most strict sense

How so, from a literalist point of view?

Fourteenth Amendment, Section 1:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis mine)

Uh, it takes a good amount of interpretation to get there from the fourteenth though - SCOTUS has certainly never made that connection, and if it was an explicitly clear anti-discrimination clause, they wouldn't have needed the 15th or 19th.

Not really. The 14th Amendment's expansion of the Due Process clause from the 5th Amendment was what drove Loving v. Virginia, with the court stating that marriage is one of the basic civil rights of people, and that the statutes at the time were deemed to be "directly subversive" to the principle of the 14th Amendment. What this case lays out are parallels to the Loving case, with the exception being that we're looking at same-sex couples instead of mixed-race couples.

In what way does a law preventing two people from getting married based on each person's race differ significantly from a law preventing two people from getting married based on each person's gender?

Rubb Ed wrote:

In what way does a law preventing two people from getting married based on each person's race differ significantly from a law preventing two people from getting married based on each person's gender?

Because interracial porn is hot, guy on guy is gross.

This, in my opinion, is the heart of why the prosecution has been bringing out all of these economic and social good arguments, along with beating down the "it's for the family" and "protect the children" arguments. The only argument that *can* attempt to show that interracial marriage is fundamentally different from same sex marriage is an argument based on the lines of "one of these is bad for the state and the other is not". For example, one will cost the state money, or one will decrease the stability of families (in which the state has an interest), or it will lead to pedophilia, etc.

If you show that same sex marriage is in fact *in* the interest of the state, that it has a positive economic impact, that it has a positive social impact, and so on... that makes it really hard to argue that the state has an interest in preventing it for any reason other than popular prejudice.

Hypatian wrote:

If you show that same sex marriage is in fact *in* the interest of the state, that it has a positive economic impact, that it has a positive social impact, and so on... that makes it really hard to argue that the state has an interest in preventing it for any reason other than popular prejudice.

Which is why more and more conservatives are jumping on the SSM bandwagon. They know that stable relationships are a benefit, not a determent to society.

Day 12 –

Part 58 – Continuation of Cross Examination of David Blankenhorn
Boies continues his cross examination of Blankenhorn and asks him again, point blank, if he believes it would benefit gay and lesbian couples and their children to allow same sex marriage. He says yes. Boies asks him about some of his writings including the statement that gay marriage was not a bad thing. Blankenhorn says he never said gay marriage was bad, just that it is in conflict with traditional marriage.

Boies asks Blankenhorn some questions about one of his books and Blankenhorn starts to give a lecture. Boies asks Judge Walker to have Blankenhorn answer his questions instead of lecturing. Blankenhorn gets upset and shouts, “I am making important points! I do not need those instructions from the judge!” Judge Walker says directly to Blankenhorn, “I am sure you would not want your testimony to be diminished by your demeanor.”

Blankenhorn is asked about his reference to “marriage lite.” He says that CUs and DPs may blur the distinction between marriage and non-marriage.

He is given the list of documents he used to prepare his deposition and rebuttal. He is asked which of the documents say that SSM is a threat to straight marriage. He says the documents were written before the SSM debate started happening, but cites a few of the articles. Boies asks him about the article written by Maggie Gallagher (the president of National Organization for Marriage). Boies asks him if Gallagher is a scholar. Blankenhorn calls her an “intellectually serious person.” Blankenhorn then says that he really didn’t rely on her article for his testimony.

Blankenhorn is then asked about the article by Norval Glen. He says Glen’s work says that gay marriage is “likely” to have a negative impact on straight marriage. Boies quotes Glen who says that legalizing SSM would at most have a small effect on the percentage of fatherless children. Blankenhorn is asked if agrees with Glen. Blankenhorn gets upset and says that what he says and what he means are two different things.

He is then asked about Glen’s claim that there is no precedent for creating a prohibition on family form. Blankenhorn bring up polygamy and says there is a prohibition on that. Boies asks him if he is an expert on the history of polygamy and asks him if he knows why polygamy was outlawed in the U.S. He says he is not an expert.

Boies asks him about his statement that in the game of marriage there are three hard and fast rules. Blankenhorn says Boies makes the rules sound “jocular.” Judge Walker reminds him that he has a question before him and Blankenhorn throws a tantrum saying that if the court wants him to stop talking he will just sit silently. (I am speechless. This guys needs a contempt citation.)

After a break, Blankenhorn is asked which scholars he has relied on for his reading. He cites Malinowski and Fortis. He is asked again about the three rules of marriage and Blankenhorn says that he never called it that, that it was the term from a Nobel-winning economist.

Blankenhorn talks about the rule of opposites in marriage, that you have to have one man or one woman. He is asked about other times when marriage constituted non-opposite partners. He says that in the past there may have been three or four cases, but they require explanation and that marriage has always been about one man and one woman and there has never been an exception to that. He cites a society in Africa that allowed SSM, but says that has changed and it was confined to warriors. He is asked about ancient Greece and other societies. He says those were never marriages by any definition.

He insists that marriage has only been one man and one woman. Boies asks, “Do you know that in history there have been more polygamous marriages than marriages of just two people?” Blankenhorn says 83% of societies permit polygamy, but in those societies there are still marriage of just two people of opposite sex.

Blankenhorn then says that in those societies that allow polygamous marriage, it still is a marriage of one man to one woman because he marries each of those women one at a time, so that constitutes a separate marriage. (This is surreal. I am completely dumbfounded.)

Blankenhorn is asked about another rule, the rule of sex. Boies asks if there are marriage that are devoid of sexual contact from the outset. Blankenhorn says no, although it is hypothetically possible, but is not a pattern by any means. Boies asks about a felon who marries while in prison and asks if Blankenhorn is aware the SCOTUS ruled that prisoners cannot be deprived of the right to marry. Blankenhorn says he isn’t a constitutional scholar and hedges.

Boies asks if Blankenhorn has ever read a SCOTUS case that discusses marriage as a fundamental right. Blankenhorn says no, but says he has heard summaries of the cases that established marriage as a fundamental right in the U.S. Boies asks if he knows about cases where prisoners have been given the same fundamental right. He says no.

Blankenhorn is asked about a position paper he signed about the principles of the “marriage movement.” He says he agrees with it but would have worded things differently. BO says the document says marriage is in crisis but there is no mention of gay marriage causing that crisis. Blankenhorn agrees the document does not mention gay marriage.

Blankenhorn is asked about the six dimensions of marriage and is quizzed on each one: legal contract, financial partnership, sexual union, personal bond, commitment, and family making bond. Blankenhorn says they would be the same for straight or gay married couples, although he takes issue with using the term “raise” vis-à-vis children if the couple is gay.

Blankenhorn is asked about scholars who say that SSM does not pose a threat to straight marriage or society. He says that there are scholars who say the opposite and their statements don’t have to be tested because it is obvious on its face that marriage is between a man and a woman.

He is then asked if he has read the positions of the various medical and psychological groups that endorse SSM along with various well-known scholars. He says he has read some. Blankenhorn is asked if he ever wrote that it would be best if single mothers gave up their children for adoption. He says he meant teen mothers.

Blankenhorn is asked if he is aware of a study that says there is no difference in outcome between a child raised in a gay home as opposed to a straight home. He says he is aware of that study and others that say that. He is asked if he has stated in the past that there is no universally recognized definition of marriage and that marriage is evolving. He says he has written that before.

Part 59 - Re-Direct of David Blankenhorn
Several articles are shown to Blankenhorn and he is asked if traditional marriage and DPs can be embraced in harmony. He says yes, but traditional marriage has a special place and needs to be protected.

Part 60 - Procedural Motions
The trial wraps up with various motions regarding evidence. Attorneys for both sides and Judge Walker agree to approximately 30 days for Judge Walker to review all the evidence and then return for closing arguments. Judge Walker thanks both sides and the trial is recessed until Judge Walker calls for closing arguments around February 26th.

End of Day 12.

I will update again when Judge Walker calls for closing arguments.

Until then, we have a lot to digest and talk about.

Phoenix Rev wrote:

Blankenhorn then says that in those societies that allow polygamous marriage, it still is a marriage of one man to one woman because he marries each of those women one at a time, so that constitutes a separate marriage. (This is surreal. I am completely dumbfounded.)

Wait, so gay marriage will lead to polygamy, and polygamy is bad, therefore gay marriage is bad.
But polygamy is really just straight marriage happening a bunch of times to the same guy, and straight marriage is good, so polygamy is good?

LOGIC ERROR

So, I'm not a lawyer, but does this need 30 days? Based on the testimony and evidence, doesn't it seem really obvious? Or am I missing something?

Judge Walker wants the time to pore over the submitted documentation so he can be better prepared for closing arguments and for any questions he might have of the two sets of council.

Sooo... reading this, did the defense ever get to stop face-palming? This needs one of those looping gifs
Face-palm "Stop talking stop talking stop talking... Oh! A new question! YES! It's an easy one! Just say 'Yes!' Don't... " Face-palm "Stop talking stop talking stop talking... Oh! A new question!"

EDIT: I'm really looking forward to the outcome here. Something tells me that Iowa Conservatives will use the first opportunity they get to put the brakes on SSM here. I'd love to see this established at the Federal Level so that we can let the crazies get on with the territorial bickering over State's Rights and let the sane people tend to their families.

I'm not worried about Iowa, actually, they buck the trend by being very socially conscious (and they have *great* beef products, so I'm hesitant to offend them.)

What does worry me is that this court and it's immediate preceding one have made at least two, possibly three judgments which break with precedent (Bush v Gore, the recent campaign funding one, and arguably the 2nd Amendment decision) but are not due to a change in circumstances, as far as I can tell. It's ironic that after all the yelling about "judicial activism", the only concrete examples in the last few decades come from Federalist Society judges...

They're only activist judges if they don't agree with you.

NormanTheIntern wrote:
GioClark wrote:

"Mixed Race Marriage" isn't in the Constitution either. But "Equal Protection Under Law" is.

Well. The real question there is, does sexual orientation define a protected class? SCOTUS has had the opportunity to extend protected class status to non-racial (or gender) groups before and did not - for example, people with mental or physical disabilities.

Did anyone else catch this section of the State of the Union address last night?

[quote=President Obama]Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.

Nomad wrote:

Did anyone else catch this section of the State of the Union address last night?

President Obama wrote:

Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.

Well indeed, but if the 'common values' include an aversion to SSM, and you don't let anyone marry someone of their own gender, then no-one's being treated differently from anyone else, right?

I'm certain that line was written specifically so that people on either side of the SSM issue could read what they wanted from it.

Jonman wrote:
Nomad wrote:

Did anyone else catch this section of the State of the Union address last night?

President Obama wrote:

Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.

Well indeed, but if the 'common values' include an aversion to SSM, and you don't let anyone marry someone of their own gender, then no-one's being treated differently from anyone else, right?

This came up earlier. If the rule is only relevant to some of the population, then it isn't necessarily the "same" for everyone. The example was that if it is illegal to sleep under a bridge, then it is unlikely that you will charge a middle class or higher person with breaking this rule. It will target an already challenged minority. Most people sleeping under bridges are poor and not in a position to have another place to sleep. "Everyone equally" is sometimes "separate but equal" in disguise.

In SSM, the population in question doesn't want to marry someone of the other gender. In some cases the idea of sex with someone of the opposite gender is abhorrent, so to say that "they could marry if they wanted to marry" is like saying "you can marry a (insert something that turns your stomach) if you really want to get married". It isn't about whether or not they can enter into the state of marriage, but rather with whom they can enter into a marriage.