Prop 8 Trial Blog

Federal Prop 8 Trial Updates from National Marriage Project Director Jennifer C. Pizer

February 3, 2010

LGBT Legal Groups Urge Court To Strike Prop 8

Today Lambda Legal, the American Civil Liberties Union and the National Center for Lesbian Rights filed a friend-of-the-court brief in Perry v. Schwarzenegger urging Chief Judge Vaughn Walker to strike down Proposition 8 as fatally flawed under the U.S. Constitution.

Throughout the trial in Perry v. Schwarzenegger, the plaintiffs’ legal arguments, witnesses, experts and devastating cross-examinations exposed and proved that Proposition 8 is harmful, unjustified and unconstitutional. The testimony also put a spotlight on the disturbing extent to which bizarre, repellent ideas about gay people drove those who brought the measure to the ballot. In our role as friends of the court, the brief we filed in support of the plaintiffs offers additional legal arguments about the founding American promises of equality and individual liberty that require invalidation of Prop 8 under the U.S. Constitution.

The constitutional deficiencies of Prop 8 are unique. States have dominion over Family Law and California’s laws are explicit that same-sex couples have the same needs as heterosexual couples, and must be treated the same under state law. The California Supreme Court said this in 2008, when it decided lesbian and gay couples must have an equal right to marry, and again in 2009, when affirming the marriages of 18,000 lesbian and gay couples.

Because California governs the family relationships of same-sex couples and heterosexual couples using exactly the same rules, all Prop 8 does is deny same-sex couples the respect, celebration and common language of marriage, while retaining all the same obligations within the same legal system. The only purpose of such a law is to declare that same-sex couples, as a group, are less worthy and less-than-equal.

Prop 8 thus creates a two-tier system that turns gay people into permanent second-class citizens. Because Prop 8 insults America’s most cherished constitutional ideal that each of us is free and equal under this country’s laws, the Court should strike it down.

January 14, 2010

Who’s testifying?

Who’s testifying in the Olson-Boies trial and why? Why hear from those who started and ran the "Yes on Prop 8" campaign?

Plaintiffs also will call as hostile witnesses some individuals who were part of the Prop 8 campaign to recount how they encouraged voters to support the initiative. This testimony will explore the reasons offered to voters, and likely will help Judge Walker assess what "Yes on 8" voters intended to accomplish, which will be a factor in his assessment of whether adequate justifications exist for the amendment’s re-imposition of unequal treatment of gay people under California law.

The U.S. Constitution forbids intentional discrimination, meaning intentionally unequal treatment of a particular group that is "similarly situated" to a preferred group with respect to a public benefit, without an adequate reason. Assessing voters’ intent can be tricky because not all voters who approved Prop 8 shared the same understanding, goals or hopes. As one measuring point, however, the Supreme Court repeatedly has said that a "bare desire to harm" a targeted group can never be a valid government purpose.

Thus, whenever there is evidence of intent to harm a group, or bare dislike of or animosity toward that group, courts should take a closer look at any other reasons offered to explain or excuse the unequal treatment. In other words, when there is evidence of hostility or intent to harm, courts are to be more suspicious, and to test more rigorously, the defendants’ purported other reasons for the discrimination. And when the group being excluded or denied has been subjected to abusive treatment in the past and pervasive prejudice today, the Constitution only permits the unequal treatment to continue if it furthers much more important public interests in a closely related manner that does not trample needlessly on anyone else’s rights.

These legal tests can seem complicated but the bottom line is this: plaintiffs’ counsel will cross examine the witnesses who pressed in various ways for Prop 8’s passage, and will ask Judge Walker to note how false, pernicious antigay prejudices deliberately were employed in the crafting of the Prop 8 campaign’s messages. The excerpt of Hak-Shing William Tam’s deposition testimony played during trial on January 13th — which included Dr. Tam’s assertions that gay people secretly aim to legalize child sexual abuse, for example — illustrates the antigay bias evidence Judge Walker will distinguish from more arguably valid public interests. Dr. Tam’s palpable, misguided fear that his daughter will transform into a lesbian upon exposure to any legitimization of same-sex relationships can only be understood as irrational prejudice. While the existence of that evidence and lots more likely to come does not conclusively negate the possibility of legitimate public reasons for marriage discrimination, such compelling bias evidence should create a strong implication that unconstitutional mischief was afoot.

Why have experts? Why these experts?

In the weeks before the trial started, each side gave the other a list of witnesses likely to be called to testify. The plaintiffs’ team listed the two plaintiff couples, of course, but also experts in diverse fields. They include nationally prominent scholars of gay American history and of marriage, of the psychological and health effects of antigay stigma on lesbian and gay adults and on their children, and of the economic costs of antigay discrimination and the potential rewards of marriage equality both for gay people and for government. Expert witnesses can be of great assistance to a trial judge charged, as in this case, with ascertaining what we call "constitutional" or "legislative" facts, which are broadly applicable facts important to determining constitutional questions that will establish a legal rule for society generally. This kind of fact finding is distinct from determining "adjudicative" facts that will be different in every case (such as how fast a car was going before an accident, or whether two parties in litigation had agreed on the price term for a contract).

Thus, for example, where there is a scientific consensus across the mental health professions that one’s sexual orientation generally is fixed at a fairly young age and highly resistant to change thereafter, constitutional cases turning on that issue should yield similar results in different courtrooms and with different experts because these "constitutional facts" can be ascertained in a consistent manner. Yes, there is an exciting, unpredictable quality to litigation sometimes, but lawyers aim to have their experts provide a solid, reliable factual foundation on which the constitutional arguments rest.

Originally published in LGBTPOV.com.

January 14, 2010

Cut!

Why did the Supreme Court ban videocasting of the Olson-Boies marriage trial?

Following the emergency appeal filed by the Prop 8 team, the U.S. Supreme Court on Wednesday ruled 5-4 that the federal marriage trial may not be videocast for public viewing at other federal courthouses. The earlier plan to upload trial video to the court’s website already had been nixed by the Ninth Circuit Court of Appeals’ Chief Judge Kozinksi, who decided there are technical problems to be worked out before webcasting will be possible.

The high court’s majority decision is troubling in its accommodation of Prop 8's proponents' supposed fears of harm. As the dissent points out, the standard for Supreme Court interference with trial court management of such things is high and the evidence of threat submitted was paltry at best. In other words, despite the many excited claims, when the details are parsed out, there’s just not much there there.

The antigay defamers' apparent success (still) at casting themselves as victims who need defending (like their marriages?), while running campaign after powerful campaign to eliminate gay people’s rights, is an Orwellian problem calling for a reality check. But the absurd victimhood claims of right-wing political operatives and religious leaders are not the heart of the Supreme Court ruling. Instead, the court simply concluded that proper procedures were not followed for changing the court rules about broadcasting.

Most importantly, this isn’t a ruling on the merits of the Olson-Boise marriage case. The issues are entirely unrelated.

January 14, 2010

Through the Looking Glass

Who’s really targeted, defamed and stripped of basic rights?

This and every well-done marriage discrimination case spotlights for the court and public the harms suffered by lesbian and gay couples by denial of the equal liberty to marry. Many people of good will, including judges and other officials, simply do not see and understand the stigma and resulting pain and problems that flow from the heterosexist convention of excluding same-sex couples and their families from this core social institution. Thus, at the heart of every discrimination case is the story of injustice and its unacceptable human costs. Judge Walker heard four such stories from the plaintiffs at the outset of the trial.

In contrast to the daily demeaning wrought by antigay stigma, there is a "Through the Looking Glass" quality to the assertions by Prop 8's lead champions, their campaign staff and their lawyers that they fear violence and intimidation at the hands of gay equality advocates. These folks who sought the public spotlight for months to spread their Prop 8 campaign messages as broadly as possible suddenly are scared to be seen and heard?

Perhaps I’m jaded because I’ve had to learn that vicious email sometimes is the price of public advocacy in the Internet age. Yes, it’s upsetting but...just delete it.

That five of our nine Supreme Court justices apparently credited, at least to some extent, the claims that gay people have been meting out violence and intimidation, is worrisome. It would help if they become familiar with the federal hate crime statistics that have been discouragingly consistent for years in confirming the disproportionate prevalence and cruelty of antigay hate crimes. All bias crime is destructive and wrong.

True, San Diego’s Manchester Hyatt has become "hotela non grata" for many because its owner, Doug Manchester, was one of the largest individual donors to the Prop 8 campaign. But there is no rule that individuals must continue to give business to those who have helped eliminate their legal rights; each person is free to patronize only the businesses they prefer. Likewise, after the Prop 8 vote, there was a spontaneous boycott of a Hollywood-area restaurant, El Coyote, better known for the tourist-appeal of its old-style decor than its food. The fact that a close relative of the owner had supported the Prop 8 campaign made it briefly the focus of some people’s hurt and anger about the campaign’s tactics and success. But whether objectively warranted or not based on the size of the campaign donation (only $100), taking one’s enchilada order elsewhere is hardly a hate crime.

January 14, 2010

Why did the Prop 8 team really fear video cameras?

Many of us suspect that they worry their witnesses won’t be able to explain their support for Prop 8 without revealing antigay prejudice and a determination to keep lesbians and gay men unequal and heterosexuality officially designated as preferred. Equally important may be a concern that their experts will not be as sensible, clear, knowledgeable and compelling as plaintiffs’ experts. We believe accurate information catalyzes positive change and every chance for rigorous examination moves us forward. Perhaps that is exactly what they fear.

The lack of televised access does make it harder for the general public to sort professional talking points from actual testimony in the immediate term. It means the public impact of the case will depend more on Judge Walker’s evidentiary findings and the other material that comprises the record that goes to the Court of Appeal. As we saw in our Iowa litigation, however, experienced judges readily can and do sort solid data and reasoning from unsubstantiated opinions, whether or not the courtroom is also an open classroom.

Originally published in LGBTPOV.com.

January 11, 2010

Giving Thanks to All our Courageous Speakers of Truth and Makers of Change

From the Marriage Equality USA "Sunrise Vigil" speech, upon the commencement of trial in Perry v. Schwarzenegger:

As LGBT people, our biggest challenge for generations has been our invisibility, others’ continuing ignorance about us, and their resulting disrespect and fear. That’s changing rapidly these days because of all of you, who have been steadily building this passionate, determined freedom and equality movement. Each time one of us comes out and speaks up, and dispels myths and misconceptions, and rebukes prejudice, we all move forward.

And sometimes this truth-telling can be especially powerful when done by allies who speak out because they care, and have come to see it’s the right and moral thing to do.

Because this has been happening across the country, one-third of the U.S. population now lives in states that respect and protect same-sex couples and our families with a formal, state-conferred legal status. That's all been achieved within ten short years.

And it’s happening around the world as well.

Five European countries have been showing the rest of that continent that gay weddings pose no threat. As of last week, Portugal is joining their ranks!

Canada has been providing that leadership for North America for years. South Africa has been doing the same on that continent. Nepal is leading the way in Asia. And now Argentina has hosted Latin America’s first marriage of a same-sex couple, with Mexico City voting to open marriage equally in that hugely populous national capital.

And let’s take note, as Spain, Portugal, Argentina and Mexico City all make this change, they all are Catholic countries! We should stop making assumptions about what progress is possible, and where.

Soon the District of Columbia will show our federal government, the Obama Administration especially, and our country as a whole that no one needs "defending" against lesbian and gay couples who want to celebrate their love, pledge their commitment, and create stable families. The City Council of this majority African American city voted overwhelmingly for full inclusion. Again, let’s stop making assumptions about where change is possible, and who does and doesn’t support equality.

In this courthouse, starting today, there will be a lot more truth spoken, and a lot more myths disproved. In Chief Judge Vaughn Walker, this case has a judge who wants solid information that will be tested, so he can find the facts. This is a good thing for those who believe in accuracy, clear thought and fairness. We know that information dispels ignorance. Cross-examination separates fact from fabrication. This trial will give our country a chance to learn better who we are, and why "liberty and justice for all" has to mean gay people, too. And if the Supreme Court allows this trial court to offer public viewing via the Internet as planned, a lot more people nationwide and worldwide will have the chance to consider the witnesses’ testimony for themselves and draw their own conclusions about what’s true, and what’s just.

Thanks to each of you for being an essential part of this inspiring, powerful movement that honors honesty and positive action. You are the proof — in the way each of you lives your life — of why our Constitution must be read to require freedom and equality for everyone. Through your dignity, and generosity, and love, and fidelity to principle, each of you speaks your truth from your heart and makes possible the change each of us needs and deserves.

Originally published in LGBTPOV.com.

January 10, 2010

Cause for Optimism

At 8:30 Monday morning, the curtain will rise on one of the compelling legal dramas of our time. At the helm of Perry v. Schwarzenegger will be former Bush v. Gore courtroom adversaries, Ted Olson and David Boies, standing together against Proposition 8 and the petitioners and strategists who pushed that measure on California voters. Perry was brought on behalf of two same-sex couples who have the burden of proof in the case. But it's fair to say that it's really Prop 8 and the goals of the initiative's proponents that will be on trial. And a core question is whether the initiative advances any valid public purposes — at all — adequate to justify having changed "equal protection" in California into "equal-if-we-like-you protection."

Many are startled to learn how many big federal constitutional questions about the legal status of lesbian and gay Americans remain open and could, possibly, be decided in this case. That's part of why the excitement, and anxiety, have been running high as the trial approached.

These questions include: How rigorous should the constitutional analysis be of laws that discriminate against gay people? Should such laws be presumed invalid like laws that treat people differently based on sex, race, nationality or religion, such that weighty public purposes are required to justify them? Should sexual orientation discrimination be considered a form of sex or gender discrimination such that more searching review is warranted for that reason? Do gay people have the same basic right to marry the person they love that straight people have?

Lambda Legal's 2003 U.S. Supreme Court win against Texas's criminal sodomy law (in the Lawrence v. Texas case) determined that our national charter is "sexual orientation neutral" with respect to adult couples' personal privacy, just as it now is gender-, race- and marital status-neutral with respect to voting and property ownership, and all Americans equally enjoy the right to speak, publish and worship.

But before the first opening sentences are spoken about any of these questions, the case already has had enormously positive educational impact nationally because Ted Olson and David Boies have shown that marriage equality is not a partisan issue, but rather one of basic fairness and equality under our Constitution. Olson in particular, given his preeminent conservative credentials of many decades, encourages many fellow conservatives to rethink why they don't want to see same-sex couples marrying. (Or, why they want us to continue "living in sin," when many of us want to settle down and "make honest women" (and men) of each other, to use the archaic expressions.) It is, for gay and heterosexual alike, the same stabilizing, conservative value to encourage mutual commitments, formalized parenting responsibilities, and continuity of family traditions generation-to-generation through civil marriage.

Pundits and prognosticators seemingly can't help trying to predict the final outcome of this contest. To me, it's far too early for that as the first-round bell is only just ringing. True, the case might go all the way to the U.S. Supreme Court. It might possibly yield breakthrough rulings on the big questions. But the case just as likely may be concluded in the 9th U.S. Circuit Court of Appeals with a ruling that Prop 8 is unconstitutional for reasons unique to California and without breaking any new legal ground. While such a decision would be of great importance to same-sex couples in love, and to their friends and relatives, it would be far less significant legally. And thus, it would be of less interest to the justices of our nation's high court who only hear a tiny fraction of cases offered up for review.

Why might this high-drama, first "marriage equality" trial in federal court not produce answers to the looming questions that spark so much discussion? Because Prop 8 can and should be recognized as fatally defective under any standard of constitutional review, just as the U.S. Supreme Court concluded in Romer v. Evans when assessing Colorado's antigay constitutional amendment in the mid-90s. Lambda Legal and our co-counsel tested that measure through a trial that considered many of the core questions that, remarkably, still remain open today. Ultimately, Justice Anthony Kennedy wrote for a majority of the Court that a state initiative that targets the small minority of lesbian, gay and bisexual citizens for elimination of rights enjoyed by all others, and serves no purpose other than to put that group into a lesser legal and social status, cannot stand. Prop 8 does precisely that. The context of California law and the Prop 8 campaign are unique in that the state since 2005 has governed formalized relationships of same-sex and different-sex couples using the same set of legal rules; California's high court has concluded that the state has no valid reasons for denying same-sex couples the right to marry; but then the voters insisted that heterosexuals again should enjoy an esteemed status and gay people again should be relegated to a lesser one.

At trial, will any of the proponents' ballot arguments be shown to make sense? I don't think so but do expect the evidence will be fascinating. And if their testimony shows that Prop 8's champions intended to harm lesbian and gay couples, an important presumption of unconstitutionality would arise. But whether or not there is evidence of antigay antipathy, the measure cannot survive if it does not further legitimate public purposes. The government simply cannot allocate benefits and burdens between groups arbitrarily, and especially must never do so along lines of irrational, historically entrenched prejudice.

Judge Walker transformed this case into a more complex, potentially helpful exercise by calling for a trial at which he can examine evidence, hear witnesses and cross examination of each side's experts, and make factual findings about key questions in the case. He has said his job is to help the appellate judges who will make the ultimate legal rulings, and of course that is true. But the trial also promises to be an important teaching moment for the whole country, especially as most of the proceedings will be available on YouTube. Indeed, the decision to open Internet windows onto this trial means there likely will be fascinated viewers around the globe who never would have had access via cable TV.

This is thrilling, and a little scary, for many of us working to secure equality for LGBT Americans because the discrimination against us most often is based on ignorance and resulting discomfort or worse. Accurate information is the antidote. Cross-examination usually separates valid science and reasoning from ginned-up junk and propaganda. So the public spotlight on Prop 8's proponents on the one hand, and plaintiffs' personal stories and contrasting experts on the other, likely will open eyes and encourage rethinking nationwide, even as Judge Walker's rulings will be just one step in the deciding process. And yet, although live witness testimony can be riveting and compelling, it also can be unpredictable. Thus, as case preparation has proceeded, initial questions about case timing and national movement strategy have been supplanted by keen anticipation to hear the testimony and rising hopes for an important success.

And there is cause for optimism. As we await the joyous images of lesbian and gay couples exchanging vows in the shadow of our Nation's capitol, increasing numbers agree that the promise of "liberty and justice for all" has to include gay people, too. And as people think again, more and more agree that equal liberty has to mean the freedom to marry the one you love according to your own traditions, conscience and heart. As the gavel starts the proceedings Monday morning, gay people across the country will be rooting for plaintiffs' legal team, as we all passionately want to see Prop 8 recognized as the constitutional offense that it is so the four Perry plaintiffs and the rest of our community again will be free to exercise the right marry in the Golden State.

Originally published in LGBTPOV.com.

The case is Perry v. Schwarzenegger.