Friday, January 29, 2010

Perry v. Schwarzenegger, Prop 8 Trial RECAP

Easy access in chronological order to our posts on the Proposition 8 trial is available:

A Primer (January 11, 2010):

The well-publicized trial on the constitutionality of California’s Proposition 8 banning same-sex marriage begins today before Judge Vaughn Walker in the United States District Court for the Northern District of California (court website for case here). Recall that the California Supreme Court upheld Proposition 8 as we previously discussed here.  Publicity of this federal trial has itself been an issue: SCOTUS has just stayed the order that the court's trial proceedings were to be made available on You Tube.  

Update: Live blogging of proceedings from anti-Prop 8 perspective here.

Although there are some statements in the press that this is the first same-sex marriage trial, that’s not exactly true.  After the Hawaii Supreme Court decision in Baehr v. Lewin, state court judge Kevin Chang held a trial on the issue of whether the state had compelling reasons to prohibit same-sex marriage.  In an extensive Order in late 1996, Judge Chang held that the state failed to satisfy its burden of showing compelling interests and that the law was therefore unconstitutional.  This order was later stayed because of developments in Hawaii.

But certainly this is the first federal trial.  Interestingly, counsel for plaintiffs in the case are outside the usual LGBT movement, but are Theodore Olsen and David Boies, the attorneys who represented Bush and Gore respectively in Bush v. Gore.  Also interestingly, the state of California is not defending the lawsuit (Governor Schwarzenegger has taken no position and Attorney General Jerry Brown supports the plaintiffs).   California’s position is therefore being argued by intervenors including, who the trial judge described as the “proponents” of Proposition 8.  A New Yorker article published today discusses the attorneys, the parties, and some of the arguments.

The best description of the issues to be determined at trial is in Judge Vaughn Walker’s from-the-bench order denying the motion for summary judgment filed by the proponents of Proposition 8 (transcript available here; order at pages 72- 91).

478px-Vaughn_Walker Judge Walker (pictured), Chief Judge of the Northern District of California, states that he cannot determine that the due process claims are foreclosed because although the government interests that Proposition 8 fosters may be "akin to a legislative fact," "embedded within such a legislative fact are certain assumptions about human behavior and relationships that have simply not been developed in the record."

On the equal protection claim, Judge Walker ruled that there are genuine issues of fact concerning the level of scrutiny to be applied.  He ruled that a sex/gender discrimination was no foreclosed as a matter of law.  He also ruled that the level of scrutiny to be applied to sexual orientation was also not determined, holding that while the proponents seem to accept that gays and lesbians have faced discrimination and "contribute equally to society," there remains material issues of fact on the Carolene products factors of "immutability and political power."  Additionally, Walker decided that whether or not Proposition 8 was enacted with animus remained an issue requiring factual development and specifically rejected the proponents argument that a finding of animus would mean that "everyone who opposes same-sex marriage is a bigot."

Regardless of the level of scrutiny - - - be it intermediate scrutiny based on gender/sex; some form of heightened scrutiny based on a Carolene Products analysis or on a Romer v. Evans analysis of animus; or lowest tier rational basis scrutiny - - - Judge Walker held that there remain material issues of fact both on  whether the actual state interests satisfy the appropriate standard and on whether those interests are actually served by the same-sex marriage ban as measured by the appropriate standard.

Thus, the trial will feature not only the plaintiffs, but a large number of experts. The trial is also expected to  highlight the role of organizations such as, one of the proponents, on the issue of animus in the Proposition 8 campaign.

Day Two (January 12, 2010):

The ongoing "Prop 8" trial in California, see our "primer" here, has just completed its second day.

For day one coverage and tweets, see the post with a list from our colleague Steve Saunders on the Sexual Orientation Law blog here, as well as the update from Shannon Minter, of National Center for Lesbian Rights here.

Minter (and others) tweets from day two of the trial are available here.  The testimony included the experts Nancy Cott and George Chauncey.

Cott_000 Professor Nancy Cott (pictured left) is Professor of American History and Pforzheimer GeorgeChauncey Foundation Director of the Schlesinger Library at Harvard University and the author of Public Vows: A History of Marriage and the Nation.  Cott testified and was cross-examined regarding marriage, coveture, polygamy, and the relationship between same-sex marriage and the divorce rate.

Professor George Chauncey (pictured right) is Professor of History at Yale University and the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940, and Why Marriage? The History Shaping Today's Debate over Gay Equality.  Chauncey testified and was cross-examined about the history of sodomy laws, the history of discrimination including in public employment, in the Hollywood codes, and Anita Bryant's crusades in the 1970s, as well as current conditions such as Don't Ask, Don't Tell policy in the military and hate crimes.

Day Three (January 13, 2010): 

The Court declined to allow the broadcast of the trial, reaffirming its stay issued Monday.   Today's Order begins:

We are asked to stay the broadcast of a federal trial.  We resolve that question without expressing any view on whether such trials should be broadcast.  We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

Justice Breyer, issued a dissenting opinion, joined by Stevens, Ginsburg, and Sotomayor.

Thus, reports of the trial will be by newsmedia and tweets.   As a refresher, our primer on the issues of the case is here.

The day began with the continued cross-examination of George Chauncey, apparently seeking to elicit information that there is stronger support for gays and lesbians now than in the past and that Nancy Pelosi is a “powerful ally.”  This would pertain to the argument regarding gays and lesbians as politically powerless or not for the Carolene analysis of heightened scrutiny, and could also apply to the animus argument for heightened scrutiny.  The redirect focused on the ways in which bias against lesbians and gay men continues.

The next expert witness was Anne Peplau, Professor of Psychology at UCLA.  Peplau is a social psychologist who studies gender and sexual orientation, with a long list of publications.  Her initial testimony stressed the similarity between same-sex and opposite sex couples.

Update: A narrative from National Center for Lesbian Rights' Legal Director Shannon Minter is here; a live blogging summary from Julia Rosen is here.

Teaching Opportunities (January 16, 2010):

The first week of trial testimony has concluded in the first federal trial on the constitutionality of same-sex marriage bans.  Our primer of the case is here, a Q&A for CUNY School of Law here, and our previous discussions of testimony in previous days here and here.  

Thursday and Friday saw more expert witnesses including 

  • Edmund Egan, the Chief Economist of the City of San Francisco (the city is an intervenor in the case), who testified that Proposition 8 has had a negative impact on the city's economy and budget;
  • Professor Ilan Meyer (pictured right) Mailman School of Public Health, Columbia University, who testified about his research regarding the relationship of minority status, minority identity, prejudice and discrimination and mental health outcomes in sexual minorities and the intersection of minority stressors related to sexual orientation;
  • Professor Michael Lamb, Department of Social and Developmental Psychology, Cambridge University UK, who testified about the consequences of denying same-sex marriage to parents given that children in general do better when their parents have adequate social supports such as marriage;
  • Helen Zia (pictured left) former Executive Director of Ms. Magazine, who testified, over defense objection, regarding her experiences regarding her lesbianism and same-sex marriage.

Images Im15_3_Meyer-pic More specifics about the testimony can be found at the twitter and live-blogging sites previously mentioned, as well as daily synopsis notably from National Center for Lesbian Rights and, as well as the excellent live-blogging from Howard Mintz of the Mercury News (starting with day 1 here).

The reporting - - - and widespread student interest - - - in the case provides some wonderful teaching opportunities. Most of the study of constitutional law concentrates on SCOTUS opinions, and highly edited ones at that.  The type of fact analysis necessary for the practice of law, including constitutional law, can be difficult to glean from most SCOTUS opinions.  The Proposition 8 trial coverage (alas not on You Tube, but nevertheless) provides the important perspective of litigating constitutional law at trial.

One could ask students to consider a specific portion of testimony elicited on direct or redirect, or a specific question asked in cross-examination, and answer questions such as the following:

  • to what legal argument does it pertain?
  • could it be relevant to more than one legal argument? which ones?
  • what type of testimony/evidence should the opposing party introduce?
  • are there credibility issues with the witness?

This could be a great in-class exercise, a short take-home assignment, or even a multiple choice quiz.

Trial Resumes Today (January 19, 2010):

The challengers to the constitutionality of California's Proposition 8 are expected to rest their case today after almost two weeks of trial. (Our last post, with previous trackbacks including a primer, is here).

Transcripts of the first nine days are here.  Great coverage from our colleague Steve Sanders at Sexual Orientation Prof Blog here.

Last week saw witnesses including:L_badgett

*    Jerry Sanders, Republican mayor of San Diego, whose testimony (reiterated in his HuffPo column) included discussions about his lesbian daughter who married her partner in Vermont last year;

*    M.V. Lee Badgett, (pictured left) Professor of Economic at Amherst, and author of When Gay People Get Married, whose testimony included the economics of marriage and whether same-sex marriage would have a harmful effect, including an economic effect on opposite-sex marriage.

*    Ryan Kendall, presently employed in law enforcement, testified regarding his family's hostility toward his sexuality. His testimony, admitted over defense objection, was that his family discovered his sexuality when he was 13, forced him to undergo "conversion therapy" to change his sexuality, and became increasingly hostile when the therapy was unsuccessful, causing him to feel suicidal. Segura

*    Gary Segura, Professor of Political Science and chair of Chicana/o Studies at Stanford, (pictured right) testified that GLBT people do not possess a meaningful degree of political power, including stating that religion was a major obstacle to GLBT political advancement and that President Obama was not a reliable ally of GLBT people. On cross-examination, the attorney defending Prop 8 played a video of Obama. Interestingly, at the end of Segura's testimony, Judge Walker reportedly asked Professor Segura whether losing elections or failures to get legislation passed denotes political powerlessness.

*    Hak-Shing William Tam, called by the challengers and cross-examined by Boise as an adverse witness, testified regarding his views of homosexuality, including its link to pedophilia and as destructive to Asian families, as reasons for his activism in favor of Prop. 8. Questioning from the proponents of Prop. 8 sought to distance Tam from

*    Gregory Herek, Professor of Psychology at UC-Davis, was the witness on Friday. He testified on direct that sexual orientation is not chosen and is stigmatized. The cross-examination of Hereck lasted more than five hours, with some discussion of Sigmund Freud's theories.

Also admitted were video depositions of Professors Katherine Young and Paul Nathanson, both at McGill University and co-authors of Legalizing Misandry: From Public Shame to Systemic Discrimination Against Men.  They were originally scheduled to be witnesses for the defendants of Proposition 8.   Transcript excerpts here and here, video excerpts here and here.

If, as expected, the Prop 8 challengers rest their case today, and however quickly the Prop 8 defense attorneys complete their case, a resolution is not expected soon.  Judge Walker is reportedly expected to schedule the closing arguments for several weeks after the trial concludes.

Trial Evidence Ends (January 27, 2010):

The trial proceedings of the Proposition 8 trial ended with the judge's compliments, familiar to anyone who has ever been involved in a federal trial, if slightly modified in this situation:

THE COURT:  Well, I want to extend my congratulations to the lawyers in the case for, obviously, a fascinating case.  Extremely well-presented on both sides. Obviously, there are some old hands in the courtroom in this proceeding.  But I have been particularly struck by the very fine work of many of the younger lawyers in the case, both here in the courtroom and, I'm sure, behind the scenes.

It really -- the old hands should take great pride and pleasure in the younger colleagues that you've worked with.  They have done a splendid job, and so you have much to be pleased with. And I would just like to take a moment to personally congratulate you and tell you what a good job you've all done.

After thank-you responses from Cooper, Boutrous, and Boies, the “proceedings” of the so-called “Proposition 8” trial were adjourned at twelve noon, on Wednesday January 27, 2010, after twelve (or eleven and a half) days and almost 3,000 pages of transcript, available here.

The  trial had resumed Monday (our last post here) with evidentiary questions and the plaintiffs’ concluding their case with the introduction and playing of videos of simulcasts from the Proposition 8 sponsors,, in which the well-known analogies of same-sex marriage to polygamy and bestiality were featured, as well as the less well-known analogy of same-sex marriage to the World Trade Center attacks.

Then the defendant-proponents presentation began.  (As a reminder, the defendants presenting are not the named defendants of the state of California, but the proponents of the Proposition 8 ballot initiative.) The Picture 3Kenneth Miller (pictured left) associate professor in Government at Claremont McKenna  College.  Miller, who also has a law school degree, is the author of Direct Democracy and the Courts, published last year by Cambridge University Press.  The book asks the very question that is at the heart of the litigation: "Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders – the people, through direct democracy, and the courts."   The cross examination of Miller by Boies was extensive, centering on Miller's knowledge of LGBT issues and how much such issues have played a part in Miller's work, as well as surfacing some of Miller's criticisms of initiative processes.  

By Tuesday, Blankenhorn the Proposition 8 proponents called their second and final witness, David Blankenhorn, (pictured right) the president Institute for American Values and author of Fatherless America. Blankenhorn's testimony on direct was directed to the issue of the universality of opposite sex marriage and the effect on marriage of allowing same-sex couples to marry.  The cross-examination, again by Boies, began late in the day and continued on Wednesday morning. By all accounts this was a rather testy cross-examination, with questions regarding Blankenhorn's qualifications, his knowledge of the literature, and the specificity of his conclusions regarding the effects on traditional marriage.

The closing arguments remain to be scheduled.


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