The Perry v. Schwarzenegger Prop 8 Trial Closing Arguments

Tomorrow morning U. S. District Court Judge Vaughn Walker will hear the final arguments in Perry Vs. Schwarzenegger, the federal court trial to overturn Proposition 8. Last week Judge Walker issued a list of 39 questions he wanted answered by both sides in advance of closing arguments. The responses of the Plaintiffs' team lead by Ted Olson and David Boies can be found here. The responses of the Proposition 8 supporters can be found here via Good as You. I have not yet read all 100 pages of answers, but from my initial perusal so far, the Olson/Boies team seems to have far better answers. In contrast, the answers of the Proposition 8 supporters parrot conclusions/talking points of the Christian Right as to the detrimental effect of same sex marriage yet show ZERO linkage between same sex marriage and erosion of heterosexual marriage world wide. Yes, there are more divorces, more single parent households, blah, blah, blah - but these phenomenon started long before same sex marriage came on the scene in Massachusetts. Judge Walker's questions looked for fact based answers and the Proposition 8 supporters seem to have failed to deliver - likely because no statistical data exists to support their religious based diatribe. Karen Ocamb at LGBT Pov has further analysis. Here are some highlights:
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[T]he federal Prop 8 case seems to boil down to the constitutional rights of gays as a group of historically disadvantaged people versus the political will of “the people” based on their religious beliefs. After the majority of the case concluded last Januray, philosopher/columnist Linda Hirshman wrote in the Daily Beast that the “gay-marriage case now unfolding in a San Francisco courtroom may be the most important battle between tradition and modernity since the Scopes trial.”
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Indeed, one of the questions plaintiff’s counsel has been instructed by Walker to answer in closing arguments is whether sexual orientation is a “choice” or not – a key to whether gays can be legally considered a minority deserving of equal protection under the US Constitution.
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See Trial Summary at: http://www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/
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See complete court filing of answers at: http://www.equalrightsfoundation.org/legal-filings/plaintiffs-response-to-courts-questions-for-closing-arguments/
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In advance of delivering closing arguments on Wednesday, June 16 in the Perry v. Schwarzenegger trial, the plaintiffs’ legal team led by Theodore Olson and David Boies submitted answers today to the 39 questions posed by the court last week.
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The American Foundation for Equal Rights brought together Olson and Boies, who notably faced-off in Bush v. Gore, to demonstrate that Proposition 8 violates Americans’ Constitutional rights by creating separate classes of people with different laws for each, in conflict with the nation’s founding principles, including equal protection under the law. Proposition 8 unconstitutionally stripped the right of same-sex couples to marry in California.
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“Neither tradition nor moral disapproval is a sufficient basis for a State to impair a person’s constitutionally protected right to marry,” their answers state. “Tradition alone is not enough because the constitutional imperatives of the Equal Protection clause must have priority over the comfortable convenience of the status quo.”
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“If a state constitutional provision is inconsistent with the Fourteenth Amendment of the U.S. Constitution, it can no longer be given effect—regardless of its level of public support,” their answers continue. “Whether or not Prop. 8 was motivated by discriminatory animus, it is unconstitutional because it facially discriminates on the basis of sexual orientation and sex.”
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“While Proponents speculate that permitting same-sex couples to marry could result in a parade of horribles, when asked point blank, their lead counsel admitted that Proponents ‘don’t know’ whether allowing same-sex couples to marry would harm heterosexual relationships.”
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“The campaign employed some of the most enduring anti-gay stereotypes—many of which reflect messages from prior anti-gay campaigns—to heighten public apprehension, including messages that gay men and lesbians recruit and molest children, that gay and lesbian relationships are immoral or bad and should be kept ‘private’ and that there is a powerful gay ‘lobby’ or ‘agenda’ intent on destroying heterosexual families and denying religious freedom.”
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Some additional excerpts:
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• “The issues that the Supreme Court confronted in a number of its most significant equal protection cases were the subject of widespread public debate at the time of the Court’s decision (see, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954); Loving, 388 U.S. 1)—but such debate did not cause the Court to hesitate when invalidating discriminatory legislation. This holds true whether the Court applies strict scrutiny, intermediate scrutiny, or rational basis review.”
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• “Thus, just as the plaintiffs in Loving v. Virginia, 388 U.S. 1 (1967), were not asking the Supreme Court to recognize a new right to interracial marriage, Plaintiffs here are not asking this Court to recognize a new fundamental right to same-sex marriage. They are instead seeking access to an existing constitutional right that has long been denied to gay men and lesbians. The mere longevity of those discriminatory and irrational restrictions on the right to marry is a constitutionally inadequate ground for continuing to exclude gay men and lesbians from this ‘vital personal right.’”
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Frankly, if religion and religious based animus is stripped from the equation, I do not see how the Proposition 8 supporters can rebut the factual data and testimony entered by the plaintiffs.