Judge Walker has released questions for closing arguments for the proposition 8 trial. Theses are questions requested to be answered by noon on June 15, or during closing arguments on the 16th.
While obviously you cannot tell a judge's state of mind from just the questions he asks, there is a lot to glean here. Let's take a look (and get your answer to these queries) below the fold!
This is a public document, so I don't think plagarism rules applies. Please let me know if I am incorrect.
Questions to Plaintiff (seeking to overturn Prop 8):
- Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Proposition 8 was rationally related to a legitimate interest. Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Proposition 8? See Hernandez v Robles, 855 NE2d 1, 7-8 (2006) ("In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and a father in the home.").?
I think this is easy: you go with the evidence, not with what people believe. You don't decide issues based on truthiness (props to Stephen Colbert for a perfect word to define this question).
- What evidence supports a finding that maintaining marriage as an opposite-sex relationship does not afford a rational basis or Proposition 8?
- Until very recently, same-sex relationships did not enjoy legal protection anywhere in the United States. How does this fact square with plaintiffs’ claim that marriage between persons of the same sex enjoys the status of a fundamental right entitled to constitutional protection?
- What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition?
- What does the evidence show regarding the intent of the voters? If the evidence shows that Proposition 8 on its face and through its consequences distinguishes on the basis of sexual orientation and sex, of what import is voter intent?
- What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?
- What evidence supports a finding that recognition of same-sex marriage would afford a permanent – as opposed to a transitory – benefit to the City and County of San Francisco? To California cities and counties generally?
- What is the relevance, if any, of data showing that state and local governments would benefit economically if same-sex couples were permitted to marry? Does that relevance depend on the magnitude of the economic benefit?
- What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?
- Even if enforcement of Proposition 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?
- What evidence supports a finding that the choice of a person of the same sex as a marriage partner partakes of traditionally revered liberties of intimate association and individual autonomy?
- If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?
A break here. I think of all these question 10 is the big question. The judge is, I think, basically asking the plaintiff for a REASON to declare DOMA unconstitutional. Is there any other take on that? I don't see how you can find prop 8 unconstitutional but DOMA to be constitutional.
TO PROPONENTS (Pro Prop 8):
To Proponents:
- Assuming a higher level of scrutiny applies to either plaintiffs’ due process or equal protection claim, what evidence in the record shows that Proposition 8 is substantially related to an important government interest? Narrowly tailored to a compelling government interest?
- Aside from the testimony of Mr Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?
- The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?
- Why should the court assume that the deinstitutionalization of marriage is a negative consequence?
- What evidence in the record shows that same-sex marriage is a drastic or far-reaching change to the institution of marriage?
- What evidence in the record shows that same-sex couples are differently situated from opposite-sex couples where at least one partner is infertile?
Small question, and not a small change here. What evidence in the record is asked over and over. Since the proponents got scant evidence in the record I think they are really going to be hurting here.
Number 3 is a nice dig too: "You only had one guy give evidence that gay marriage damaged straight marriage, and he was destroyed on the stand. Got anything else?"
4 & 5 are the important ones though: The claim is that gay marriage destroys straight marriage. Asking, again, for any proof of that claim is a good thing for the us.
- Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Proposition 8 furthers this state interest?
- Do California’s laws permitting same-sex couples to raise and adopt children undermine any conclusion that encouraging children to be raised by a married mother and father is a legitimate state interest?
- How does the Supreme Court’s holding in Michael H v Gerald D, 491 US 110 1989) square with an emphasis on the importance of a biological connection between parents and their children?
These are dealing with children. The proponents stated that straight marriage is better FOR CHILDREN than gay marriage. There doesn't seem to be any proof of that, and (7)and (8) asks, "Even if so, how does allowing gays to marry harm straight families raising children?".
To summarize (9) The non-genetic father of a child was found to have more rights to the child than the genetic father who waited to long to assert interest in seeing the child (in this case 2 years). The point being that biology does not trump association with a child.
- Assume the evidence shows that sexual orientation is socially constructed. Assume further the evidence shows Proposition 8 assumes the existence of sexual orientation as a stable category. What bearing if any do these facts have on the constitutionality of Proposition 8?
- Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc 605 at 11 ("But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination."). What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?
- What harm do proponents face if an injunction against the enforcement of Proposition 8 is issued?
I think we're getting to the heart of it here: (11) Just because it's a religious view, can't it also be discriminatory? And what harm comes to straight couples if gay couples are allowed to marry.
TO BOTH PLAINTIFF AND PROPONENT:
- What party bears the burden of proof on plaintiffs’ claims? Under what standard of review is the evidence considered?
- Does the existence of a debate inform whether the existence of a rational basis supporting Proposition 8 is "debatable" or "arguable" under the Equal Protection Clause? See Minnesota v Clover Leaf Creamery Co, 449 US 456, 469 (1981); FCC v Beach Communications, Inc, 508 US 305, 320 (1993).
- What does the evidence show the difference to be between gays and lesbians, on the one hand, and heterosexuals on the other? Is that difference one which the government "may legitimately take into account" when making legislative classifications? See City of Cleburne v Cleburne Living Center, 473 US 432, 446 (1985).
- What does the evidence show the definition (or definitions) of marriage to be? How does Professor Cott’s proposed definition of marriage fit within Mr Blankenhorn’s testimony that competing definitions of marriage are either focused on children or focused on spousal affection? See Cott, Tr 201:9- 14 and 222:13-17; Blankenhorn, Tr 2742:9-18 and 2755:25-2756:1.
- What does it mean to have a "choice" in one’s sexual orientation? See eg Tr 2032:17-22; PX 928 at 37.
- In order to be rooted in "our Nation's history, legal traditions, and practices," see Washington v Glucksberg, 521 US 702, 710 (1997), is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?
- If spouses are obligated to one another for mutual support and support of dependents, and if legal spousal obligations have no basis in the gender of the spouse, what purpose does a law requiring that a marital partnership consist of one man and one woman serve?
- The California Family Code requires that registered domestic partners be treated as spouses. Cal Fam Code § 297.5. Businesses that extend benefits to married spouses in California must extend equal benefits to registered domestic partners. See Koebke v Bernardo Heights Country Club, 36 Cal 4th 824, 846 (2005) ("We interpret (Cal Fam Code § 297.5(f)) to mean that there shall be no discrimination in the treatment of registered domestic partners and spouses."). If, under California law, registered domestic partners are to be treated just like married spouses, what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?
- What evidence, if any, shows whether infertility has ever been a legal basis for annulment or divorce?
(7), (8) and (9) are quiet shots across the bow here. If infertility is not a basis for divorce or for forbidding marriage, how can you say marriage is only for the formation of children? And if the law doesn't assign gender roles to spouses in a marriage, how can you argue that, well, there are gender roles? And if we are saying that "marriage" and "domestic partnerships" are equal in all but name...why is the name so very important..what does it bring to the game that is so important that homosexuals cannot have it?
- How should the failure of the Briggs Initiative (Proposition 6 in 1978) or the LaRouche Initiative (Proposition 64 in 1986) be viewed in determining whether gays and lesbians are politically powerless?
- What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? Must gay men and lesbians be treated identically under the Equal Protection Clause?
- How many opposite-sex couples have registered as domestic partners under California law? Are domestic partnerships between opposite-sex partners or same-sex partners recognized in other jurisdictions? If appropriate, the parties may rely on documents subject to judicial notice to answer this question.
- Do domestic partnerships create legal extended family relationships or in-laws?
- What does the evidence show regarding the difficulty or ease with which the State of California regulates the current system of opposite-sex and same-sex marriage and opposite-sex and same-sex domestic partnerships?
- . If the court finds Proposition 8 to be unconstitutional, what remedy would "yield to the constitutional expression of the people of California’s will"? See Doc #605 at 18.
I don't understand the scope of this class of questions, I'm hoping for discussing in comments. Perhaps (13) is the heart: do "domestic partnerships" really equal marriage in all regards? Really? With in-laws and everything?
(11) I see going to the "choice" issue, and does it MATTER if homosexuality is a choice or a genetic decision.
MY OVERALL TAKE:
The judge is unhappy with the Proponents. The fact that he keeps reminding them, "what facts did you put in the record to support that" while pointedly NOT doing that to plaintiff is I think telling. And the direct question about the constitutionality of DOMA I think is pretty far-reaching.
I think that, while many have feared this case as being too soon, we are not going to see a better group of plaintiffs, against a worst group of proponents, any time in the next 10 years. This could be it...the entire basket of eggs at one go. The more I follow the trial the more excited I get.
Closing arguments are on the 16th, they will not be broadcast but there will be live-blogging ( try the Prop 8 trial tracker).