prop 8 update

[enders-shadow.livejournal.com]

I don't know who has been following the Prop 8 trial out in California, but here's an update.

The judge has issued a series of questions to both sides. The questions are here:

http://www.scribd.com/doc/32724803/Doc-677

I welcome your responses to any/all of the questions. My two cents is in regards to:

"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?"

Loaded question; it implies A) marriage has historically been limited to a man and a woman [I would argue it's often been multiple wives, and in some places even multiple husbands; to say it has historically been limited to a man and a woman, well, it's cherry picking history] B) the limitation has enjoyed constitutional recognition [I don't know where in the constitution marriage rights are specifically enumerated on{if it turns out they are somewhere, please inform me so I can say: FML...}]

Then, even if we accept A as true:

History is full of mistakes and we are all willing to admit that; nobody can deny that in certain places/times ritual killings were the historical norm. We cannot infer from history showing a trend of behavior that the behavior was the only correct way to act.

Then, even if we accept B as true:

To suppose a constitutional limitation on the liberty of citizens derived from the discriminatory dislike of a sub-group that wants nothing more than equal protection under the law--it goes against the spirit of the constitution if not the letter. The 9th amendment to the bill of rights states:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The right of marriage is not enumerated in the constitution, but that doesn't mean it doesn't exist. The limitation on same-sex marriages has vanished in a number of states of the Union--there is no reason to believe that those states have violated the constitution of the United States; they have in fact enacted the spirit of the constitution--a constitution designed to protect the rights of the citizens of this great country. Thank you.


That's clearly not worthy of the judges consideration; but you aren't the judge in the real trial; what do you, oh internet judges, think of those questions and my response?

Comments

[a-new-machine.livejournal.com]

TBH, they will probably uphold it. I see this coming down on rational basis. Reading rights into the due process clause is terribly out of vogue these days, and the gender argument is a stretch due to the amorphousness of the gender discrimination at issue, and the fact that this is a facial challenge. Facial challenges have to prove that there is *no* circumstance under which the law could be applied constitutionally. That's a hugely heavy burden to bear, and if it's rational-basis test, and any judge could possible suppose a situation in which a child would be better off with a mother and a father instead of 2 mothers or 2 fathers, it'll pass muster.

[enders-shadow.livejournal.com]

Questions for pro-prop8 defendants:

7. 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?

8. 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?


So....I dunno. I mean, it's easy for a judge to suppose a situation where a mother/father is better than 2 mothers; that's simple as: the 2 mothers are sociopaths and the mother/father are not. I mean, imagining such a scenario requires no real mental work and I must imagine it is more complex than that.

[a-new-machine.livejournal.com]

I mean, it's easy for a judge to suppose a situation where a mother/father is better than 2 mothers; that's simple as: the 2 mothers are sociopaths and the mother/father are not. I mean, imagining such a scenario requires no real mental work and I must imagine it is more complex than that.
Nope. The legal standard for facial challenges posited on a rational basis standard is that, if the judge can dream up a situation in which the law is rationally related to the legit objective, it's OK. It can be under-inclusive (IE not target gay and lesbian adoptions) so long as it's still rationally related. Those questions you quoted are by no means fatal, or even determinative. They only matter if he's using heightened or strict scrutiny, which I don't see being likely, as I said above. Note that while he asks the defendants to defend Prop 8 on heightened/strict scrutiny, he also asks the plaintiffs to attack it on rational basis. He's really trying to decide which standard to apply. All of his other questions - like those relating to the economic impact, or the legislation of private morality - are trying to get the plaintiffs to agree that their case relies on strict or heightened scrutiny, as otherwise those elements don't matter.

And more likely, the judge will posit that the child will be harmed by teasing from heteronormative classmates.

[enders-shadow.livejournal.com]

"And more likely, the judge will posit that the child will be harmed by teasing from heteronormative classmates."

oh, you mean like that judge in Louisiana who refused to wed an inter-racial couple:

posit[ing] that the child will be harmed by teasing from single-race classmates.

[a-new-machine.livejournal.com]

That's a different standard, though. It was also a justice of the peace, not a judge, and the couple won their suit for discrimination. They won because equal protection of racial classifications is judged on a strict scrutiny standard, because race is a suspect class. I'm assuming the judge here will apply a rational basis standard, because there are no suspect classes at issue and there are no fundamental rights at issue. And yes, this will sidestep Loving, but only the dicta from that opinion (which was from a totally different era in terms of due process rights), not the equal protection argument that is Loving's core. Besides, there's the tired old conservative argument that marriage is still equally extended - so long as you want to marry someone of the opposite gender. And under a rational basis standard, that passes muster.

I hate that it does, and I think sexual orientation should be a suspect class and get the same treatment that race gets. But I just think that's how it's going to come out. Like I've said before, though, what this guy says is ultimately irrelevant, as the standard applied is what's at issue, and the inevitable appeal will review the applicable standard de novo without the lower court's decision really having an impact.