Culhane: Questions facing Prop 8 closing arguments

June 12, 2010

Posted by John Culhane on 365gay.com:

"The Proposition 8 trial concluded some months ago, but the closing statements and arguments have been delayed until next Wednesday (June 16).

"This kind of gap between trial and summation is quite unusual, but this whole case has been unusual. It was brought not by any of the LGBT legal advocacy groups that have been tactically pressing for marriage equality in courts and legislatures, but by litigation megastars David Boies and Ted Olson. It’s the first case to challenge the denial of equality under the federal, as opposed to a state, constitution – increasing the likelihood that the matter won’t be resolved until the Supreme Court weighs in.

"And federal district judge Vaughn Walker’s decision to hold a trial was also unusual; marriage equality is almost always treated as a legal issue rather than a factual one.
 
"Now comes the latest wrinkle: Judge Walker has just issued a long and thoughtful set of questions  for the litigants. In an eleven-page Order captioned 'Questions for Closing Arguments,' he took the unusual step of inviting the plaintiffs and the defenders of Prop 8 to address certain specific issues, either next Wednesday or in writing before then. (As a former litigator, I can guarantee that the attorneys will take the hint and spend most of their waking hours drafting responses.)
 
"The questions have been repeated and posted in a few places, but I’ve not yet seen sustained analysis of them. Here’s my stab at thinking through just a few of the most interesting ones (questions are simplified and paraphrased for your reading pleasure):

 

"'What if the evidence shows that there’s no rational basis for excluding same-sex couples from marriage? Is it enough that the voters believed there was such a rational basis?'

"This question (unlike some of the others Walker raises) assumes that the ban on the freedom to marry can stand as long as there’s some rational basis for it.  (Here’s an explanation of the different standards of review.)  

"It’s an apparently simple question that suggests a complex dynamic between voters, legislatures, and courts in the process of determining constitutionality. That process is unusually tricky in California, where the voters have breathtaking power to pass on the rights of minorities. Is it enough for the voters to have thought they were acting rationally? (A related question from the judge: Why isn’t “disapproval based on morality” really just another way of saying “discrimination”?)

... "'Does it matter whether sexual orientation is immutable for men but not for women? Must lesbians and gays be treated identically under the equal protection clause?'
 
"This might be the first time this question has been raised by a court. The answer might matter because discrimination against a group is likelier to be subject to a higher level of judicial scrutiny where that group’s defining characteristics are “immutable.”
 
"I suspect the question is, in essence, rhetorical. By openly considering that gays and lesbians could be treated differently, Walker might be signaling that immutability is really not required, but is instead a clumsy stand-in for what’s really important: that a trait or characteristic is so fundamentally a part of one’s self-definition that it would be unfair, unwise, or impossible to require changing it. This more nuanced view is becoming more common.

 

... "'Even if the evidence shows that kids do best when raised by their biological parents, how does that finding support Prop 8? How does that argument square with the fact that California allows same-sex couples to adopt? And does legal precedent support the primacy given to biology?'
 
"I’ve collapsed a few questions here. The first has been raised by judges in other cases: Even if the two-parent home of 'biological origin' is ideal, how does it follow that other couples should be excluded from marrying?

"Both of the first two questions are particularly pointed in light of the concession of a Prop 8 defender that children of same-sex couples would benefit if their parents could marry. In short, no one has been able to explain how existing marriages would be harmed by allowing same-sex couples into the club.
 
"The last part of the question is especially interesting, as it refers to a 1989 Supreme Court decision in which the Court upheld the constitutionality of a presumption that a man married to a woman who bears a child is the father – even when another man produces clear evidence that he’s the father. The rule is thought to serve the child’s best interest in valuing the stability of legal, married family over brute biology. Why, Walker seems to be asking, isn’t that also true of same-sex families?

"There’s so much more! Expect a full day of animated discussion. Apparently, it’s not yet been decided whether the arguments will be broadcast.  Democracy hopes so."  [NOTE: it was announced after this post that TV coverage of the closing statements and arguments will be banned just as the trial was]

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