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Rick Jacobs

Rick Jacobs

Posted: June 8, 2010 06:41 PM

There was big news yesterday in California about "the trial of the century." Judge Vaughn Walker today issued a series of questions (see document below) for the parties to the federal Prop. 8 trial that began in January and was put on by Ted Olson and David Boies and colleagues and defended by the oxymoronic "Protect Marriage" proponents of Prop. 8.

The questions are stunning in their breadth, complexity and essence. Here are just a few:

What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?


What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?

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?

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 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 does it mean to have a "choice" in one's sexual orientation? See e g Tr 2032:17-22; PX 928 at 37



I am not a lawyer, but I can without doubt say that never before has homosexuality been on trial in America in this way. The testimony in January, which I liveblogged, was breathtaking and so sweeping, that the defense (the folks who put Prop. 8 on the ballot) were left with only one argument: marriage has always been between a man and a woman so it should always be between a man and a woman. And Professor Cott and other experts even destroyed that argument. Even so, it's a bit like saying that some people were always forced to live in a certain place so they should always be forced to live there.

We launched Testimony: Equality on Trial because this court case has already changed history. As we can see from the Judge's questions -- read them and pick your own favorites -- the entire scope of the debate has been encapsulated in this trial. But the defense has worked at every juncture to stop you from seeing what happened and will happen in the courtroom. We seek to make this your trial. And soon, we'll seek to hear your testimony.

(You can join us for a Courage Campaign Conversation with Ted Olson Wednesday at 6::00PM PDT to learn more.)

For now, as voting for initiatives and candidates across the state and country winds to a close, we can see unfolding the true story of human rights in America.

Watch the court. Whatever the ruling, this trial is history.

Here are all of the questions Judge Walker sent to plaintiffs and the defense.

Doc 677

 

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slobone
We have met the enemy and he is us
02:54 PM on 06/11/2010
Gosh, I'm no mathematician, but I can count 4 solid votes in favor of Prop 8 on the Supreme Court, with Kennedy being highly iffy. So that will set back same-sex marriage what, 10 years?
HUFFPOST PUNDIT
ThatsTheTheWayItIs
religion, ideology, partisanship are delusional
02:14 PM on 06/10/2010
Does "legal recognition of same-sex marriage reduces discrimination against gays and lesbians?"

Well, it certainly reduces discriminating against their right to marry. Duh.
03:05 PM on 06/10/2010
Legal recognition does reduce discrimination. First, you are corrct because of the right to marry and and the 1149 federal rights inherint with the legal relationship of marriage given to opposite sex couples.
Next the most sacred relationship "stereotypically" valued in society is marrige and that of the family. Marriage is self explainitory. Partnerships are not. Marriages are legal contract that not only come with obligations but protections.

Some children feel more comfortable with their peers when their parents are married. When a child asks if you're really their parent because someone at school said you can't be married, it's a bit of shock. Married is married. Even small children understand this concept.

For those who argue that domestic partnerships are the same, they are not. The are an alternative that does not carry the full force and weight of the word marriage. Religious ceremonies are not marriages. They are religious unions. They are not LEGAL contracts. If you have just a religious ceremony and not a legal marriage contract and license you do not have legal standing in death or dissolution.

If you call marriage something else it is something else.

We cannot continue Jim Crow marriage laws for same sex couples and call it seperate but equal.
03:12 PM on 06/10/2010
If you redefine marriage to include all gender pairings, it becomes something else.
HUFFPOST PUNDIT
ThatsTheTheWayItIs
religion, ideology, partisanship are delusional
06:11 PM on 06/10/2010
I sort of agree, but have a different slant:
Marriage itself is discriminatory to the single. I would favor a law that abolishes discrimination on the basis of marital status. In essence, I would de-legalize marriage and make it a matter of church, or personal vows.

Why should married couples pay less taxes?

Get more SS and SSI benefits (survivor, spouse, etc)?

Get more expensive couple insurance coverage from employer, or a rebate for not taking insurance because covered by spouses policy?

Get special hospital visitation rights? Indeed, why do people with big families get more visitors? Why not say, six visitors per patient, patient picks?

The list goes on. Marriage is not a right, but a whole set of extended rights you get by signing a government contract to legitimize a relationship. It is discriminatory and unfair.
10:55 AM on 06/10/2010
Those are great questions; designed to help the Court decide the matter, fairly and impartially according to the Constitution. Yet someone is going criticize “those liberal, activist judges". Excuse me?

A Court only has the authority provided by the Federal and/or State Constitution and its jurisdiction is basically that of "resolving disputes" (of a kind recognized and permitted under statute). Consider for a moment, just getting along with others and there wouldn't be a need to go to court. In other words, "no dispute - no decision/verdict. Then nobody can accuse a court of being run by "a liberal, activist judges".

Do some believe that folks in long, black robes scour the community to make a pest out of them themselves and create rancor among one or both sides of a controversy? Not for a minute is that so. It is the very nature of a particular category of “dispute” which gives a Court the authority to hear the matter and reach a decision.

Let's give some credit to the vast majority of judges actually taking their oath of public office seriously, which does have the potential outcome of making one (or both) of the litigants happy or unhappy as the case may be. They work hard to apply certain defined balancing the competing interests to determine if a governmental entity is properly advancing a legitimate state interest – and is constitutional or not. Yes, reasonable people may differ, but isn’t that human?
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midknightryder13
02:16 PM on 06/14/2010
As to the criticism of "those liberal activist judges" -- this judge was nominated by Ronald Reagan and confirmed when George H.W. Bush was president. Just thought you might like to know.
04:39 PM on 06/14/2010
I wasn't critizing "liberal activist judges (laj)" (as if such a thing exists outside the fear and paranonia of what passes for American conservatism these days, in the pews and parlors of our dyed-in-the-wool right wingers -- whose throughts and political philosophy can be traced to the "Know Nothing Party" of the 19th century, if not further back); but those who harp-on about "laj". 250 words doesn't often give me the elbow room I'd like; unless and until I can sharpen my skills and get to the point a lot sooner.

But I didn't know the history of the judge asking these wonderful, to the heart of the matter questions. Thank you. At the bottom line, I'd simply like judges to be fair and impartial, that is not coming-in with an axe to grind and in the pocket of the government like they are in most non-democratic regimes. Stalin probably had no difficulty in finding a judge to rule his way, for example.

Fair and impartial can be an issue for those unable to sort-out the fact all of us come to our adult careers with a bias; be it the one taught in our formative education or trade or professional schools. That isn't evil. I'd like the Jeffersonian democratic impulse to hold sway over the Hamiltonian-Federalist approach; the latter favoring the actions of a strong central government. Too many decisions under a conservative agenda favor the few (powerful) over the many.
09:54 AM on 06/10/2010
"...never before has homosexuality been on trial in America in this way."

That seems like a faulty conclusion, inaccurate at best. It is the traditional notion of marriage and whether this should be maintained and enforced in the law that is on trial. Judge Walker's questions are entirely appropriate toward reaching a just decision in the case.
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Marcus047
given up on HP
11:23 AM on 06/10/2010
No, he's right. This case is disguised as a trial about marriage, but really it's all just a trial about homosexuality, can the state descriminate against gays and lesbians, and can one group uphold their religious mores on all of society.
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HUFFPOST COMMUNITY MODERATOR
iskra
Natural enemy of sharks and tro//s
11:34 AM on 06/10/2010
Let's hope not or we will have a return to slavery which is condoned by the same 'good' book as moral.
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ObamaSupporterPete
04:30 PM on 06/10/2010
I agree. I've had someone else's religious beliefs imposed upon me in my civic life. I don't go to church, so I need not be subject to their quaint ways.
09:04 AM on 06/10/2010
It's not discrimination if it's based on truth, right? At least, I imagine that's the logic behind it.

This is not a parody:

http://www.answersingenesis.org/home/area/overheads/pages/oh20030621_179.asp
CJ1
Love the Ignorant, hate the Ignorance
01:26 PM on 06/10/2010
What is truth? Fact? In which case, what is even being argued regarding "truth"? What is or is not equal is the only concrete "thruth" here, and it ain't on the religio's side.
Religious belief of what is "truth" is has been proven to be faaaaarrr from it, as exemplified by "intelligent design," man riding dinosaurs, etc.
03:00 PM on 06/10/2010
The bible is "belief", not "truth". It was written by man, in order to control man. And the people that follow it have spent the last 2000 years trying to control everyone else. This is a free country - you're free to believe the fairy tale, and I'm free to disregard it. But just because you believe it's the word of some god doesn't make it truth, when it comes to the laws in a free country.
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NHGranite
Killer Koala escapes diner, eats shoots & leaves
07:20 PM on 06/10/2010
I wonder if many Christians are like fish in a fish bowl. The fish does not "see" the water, it doesn't even know it's in a bowl. It believes that their little world is all there is and that is how it has to be for others. Why do I have to subscribe to fishbowl laws? I would drown~

(and when it dies it goes to the great big fish heaven that is the ocean, once it goes through the hell of being flushed down the toi let)
08:40 AM on 06/10/2010
Do you want a complete, comprehensive, unemotional, and well-reasoned debate, or not?
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HUFFPOST SUPER USER
PhilipB
10:26 AM on 06/10/2010
Love that, Seawillow!
HUFFPOST SUPER USER
JeanRR
08:16 AM on 06/10/2010
Asking for eimpirical data is a good thing, usually. But how can you need data to answer theis question:

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.").

Isn't it obvious that beliefs become discrimination when they are codified into law?
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HUFFPOST PUNDIT
deluk
disgusted.
08:08 AM on 06/10/2010
Hmmm Obama could cease to be our favourite American president over this.

http://www.guardian.co.uk/commentisfree/cif-green/2010/jun/10/obama-lessons-bhopal-bp
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shryock
It never is what it is anymore
07:29 AM on 06/10/2010
i have never understood, and probably will never understand, why the sexual identity of any two coupled partners should be an issue to anyone other than themselves.
how could gay marriage be more of a threat to straight marriage than infidelity is?
how can gay marriage be illegal when straight people are allowed to marry and divorce as many times as they want?
why is divorce not illegal? is it not a far bigger threat to straight marriage and the social order than gay marriage could possibly ever be?
and since churches perform marriages, why is the state involved?
two baptists cannot marry in the catholic church, can they? should the state therefore mandate that baptists cannot marry at all? or is it only the rules of the fundamentalist christian sects that the government should be upholding?

(maybe it's that men, who seem to be making all the rules here, are afraid. which leads one to wonder just what has them so frightened?)
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HUFFPOST COMMUNITY MODERATOR
Gudrun
My micro-bio is empty
10:45 AM on 06/10/2010
These are all excellent questions! Rush is on his fourth marriage, and nobody seems to care about that, because the object of his affection is the opposite sex.
10:52 AM on 06/10/2010
Marriage has been established to protect families and their offspring.

Last time I checked two people of the same gender can not produce offspring. That is why the sexual idenity is important.
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HUFFPOST SUPER USER
cmaciain
11:03 AM on 06/10/2010
Neither can sterile people. Older couples. People who choose to be child free. Yet they are allowed to marry. And hey, guess what? Gays can produce offspring. Who said they have to have their spouse as the biological parent?
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lisalulu
I stand for Planned Parenthood.
11:11 AM on 06/10/2010
Many couples can't produce offspring! They adopt. Gay Couples can adopt or in the case of two (2) women - can have a donor.

And just because someone can procreate - doesn't mean they will be good parents or the relationship is stable because they are married.

People don't get married to procreate.
HUFFPOST SUPER USER
ltfday1
06:50 AM on 06/10/2010
The Court is, I believe, giving directions or signposts, to the parties regarding the proper constitutional standards and the necessary proof. Because this is a case that has gone on for months, the possibility would be otherwise that we go through hours of closing argument without addressing these really critical issues. The truth is, that marriage is a fundamental right under the constitution and the ability of the government to "control" it was disavowed in Loving v. Virginia, the case overturning the law making it illegal to intermarry racially.
12:28 PM on 06/10/2010
Marriage was defined as between a man and a woman at the time of Loving v. Virginia, and while the case resulted in overturning the law to allow interracial marriage, it did not redefine marriage as genderless.
CJ1
Love the Ignorant, hate the Ignorance
01:31 PM on 06/10/2010
Wrong. Re-read it. If you can...
It said how marriage can NOT be legally limited...etc.
If you have to lie by omission, maybe that means you're wrong, eh?
CJ1
Love the Ignorant, hate the Ignorance
02:20 PM on 06/10/2010
Although your more recent circularly reasoned comment is not showing here, I will respond anyway. The decision by NO MEANS defines marriage. And although I don't have time to find the quote that I am fairly sure you know of, it makes a very good argument for same sex marriage.
01:07 AM on 06/10/2010
This is why more people ought to become libertarian. What right or reason does the gov't have to sanction a marriage?
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HUFFPOST COMMUNITY MODERATOR
Anaxamenes
It's not how big your micro-bio is...
03:05 AM on 06/10/2010
The problem I have with Libertarians is that they also feel that the government shouldn't legislate rules for businesses. While I wish it were different, I just don't believe that corporations would do the right thing without being compelled by government regulations.
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HUFFPOST SUPER USER
John Cunningham Bowler
04:44 AM on 06/10/2010
It's not inherent in a libertarian viewpoint. If you also have a capitalist viewpoint then you ascribe rights to *capital* and restrictions on capital (including corporations) are contrary to your libertarian beliefs.

If, on the other hand, you are not a capitalist (i.e. socialist or neither) individual liberty is the start and end of libertarianism.

In that case an individual with a lot of money has the same rights as one with none and the potential to use that money to restrict the individual rights of others has to be handled by the government. (Libertarians aren't anarchists - the libertarian government protects liberty, I guess you might be an anarcho-libertarian but I've yet to hear from one.)
12:27 AM on 06/11/2010
The very fact of incorporation is a gov't favor which most libertarians o not support. Any time the gov't protects a business it is allowing for exactly the kind of behavior you and I hate.
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jackbond
03:21 AM on 06/10/2010
Inheritance, visitation rights, child custody, protections against self incrimination.
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MNKen
You're not the boss of me...my cat is!
08:09 AM on 06/10/2010
This is the bottom line. Thanks for bringing us back to the basics.
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okim5150
I only drink to make you more interesting
08:43 AM on 06/10/2010
You said it! The government gives rights and privileges to married people that unmarried people don't have. Not letting folks marry deprives them of those rights and privileges.
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FairProgressive
Liberalism is totalitarianism with a
12:04 AM on 06/10/2010
looks like they are about to drive the nail in the coffin for the GBLT crowd.....those questions were put in place to allow him to leave 8 in place
11:32 AM on 06/10/2010
Maybe you were going by the excerpts? After reading it through, I thought the Judge provided a balanced document that addressed tough and legitimate questions to both sides, giving them guidance in terms of connecting the record to on point arguments.

Courts operate in a complex hierarchy of laws and precedents. A plaintiff comes before them and says "Based on the Constitution, these laws and these prior rulings we believe the Court should grant us relief and remedy." Opponents point to the Constitution, other laws, and precedents, and disagree.

I think Proposition 8 was wrong. I believe that same-sex couples should be able to enter into, as the state defines it, marriage. I also believe that a challenge before a federal court requires deliberate review, because overthrowing votes of the people should not be casually undertaken. Even as I know from experience that 10 million Californians can be wrong.

It may be that under our current constellation of equal protection laws and court rulings Proposition 8 survives this challenge. As long as both sides have the opportunity to argue their best case, I'm satisfied.

If Proposition 8 remains standing, it is hardly a nail in the coffin of a community and those who agree with it on this matter. We'll meet again at the ballot box.
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manray05
01:19 PM on 06/10/2010
2012. Get ready. We will be. I think 8 is going down in the court - but to confirm it it will need to lose at the ballot.
CJ1
Love the Ignorant, hate the Ignorance
01:39 PM on 06/10/2010
You are clearly in favor of prop eight, because your poor thinking skills are showing.
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BraxtonC
I want my Republic back
10:32 PM on 06/09/2010
I'm a 56 yo tried and true conservative. I was raised Southern Baptist and am a firm believer in the power of God and the sanctity of life and marriage. That said, I see absolutely nothing wrong with two people who are in love getting married, settling down, and living their lives together. Why is this even an issue? Proposition 8 was wrong both morally and legally. Throw the thing out and let's get on with more important issues. Heaven's people, don't you have anything better to do than worry about who is snuggling down next to whom?
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momcat4obama
10:46 PM on 06/09/2010
I think I love you. Do you think a liberal progressive and a "tried and true conservative" could be fans? I'm willing to give it a try. :-)
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BraxtonC
I want my Republic back
10:53 PM on 06/09/2010
Maybe we won't see things the same way very often, but I do believe people should always respect each others beliefs and, more importantly, the persons themselves. Sure, I have liberal progressive friends in real life so why not here.
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Downix
10:46 PM on 06/09/2010
Sir, thank you.
09:39 PM on 06/09/2010
Let's hope the future ain't what it used to be!
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MNKen
You're not the boss of me...my cat is!
08:14 AM on 06/10/2010
Great Meat Loaf song!
09:14 PM on 06/09/2010
Aside from the actual issue, the standpoint of the majority of the right wing in America is a glaring example of just how little they actually believe in and value real freedom.
Basically if it doesn't benefit them - the dominant culture - directly, then they're against it.
When will they ever have the courage to stand up for the rights of people they disagree with and are culturally different to them?
They seem to have no understanding of what America's founding fathers stood for and wrote about.