As I’ve mentioned previously, the issue in reviewing these claims is not whether the government is discriminating against a protected class or violating a fundamental right, but whether they have a good enough reason to do so. So each time our attorneys argue for intermediate scrutiny or strict scrutiny, they’re really just asking the court to look more closely at the government’s reasons for their actions.
For different levels of review, the lawyers have to prove different things about the government’s reasoning regarding Prop 8:
+ With strict scrutiny, Prop 8 lawyers have to demonstrate that the law is narrowly tailored to further a compelling governmental purpose.
+ With intermediate scrutiny, Prop 8 lawyers have to demonstrate that the law is substantially related to an important governmental purpose.
+ With just rational basis, Team Totally Right has to demonstrate that the law is not rationally related to any legitimate governmental purpose.
+ Much like the concept of substantive due process, though, compelling/important/legitimate governmental purposes or interests are not clearly written down in a single place. Instead, this is one more place for attorneys to present their arguments.
What are the governmental interests at stake?
In their trial memorandum, the defense provides a lengthy list of “legitimate” reasons, and promise that they’ll demonstrate that these are also compelling reasons at trial, if necessary. These legitimate reasons include “promoting the formation of naturally procreative unions,” “increasing the probability the each child will be raised by both of his or her biological parents,” “providing men with a stake in families and societies,” and “using different names for different things.” To my knowledge, there is no Supreme Court case asserting that any of these things count as legitimate state interests, let alone important or compelling state interests.
Our attorneys are a bit more specific; they preemptively tackle five arguments that they expect the defense to suggest — procreation, responsible procreation, tradition, recognition of California marriages by other states, and administrative convenience. Using actual legal analysis and citing actual case precedent, they reassure us that none of these can be considered legitimate reasons, let alone important or compelling interests.
They illustrate by analogy: clearly procreation cannot be the state goal, because we do not (nor should we) deny the rights of marriage to people who are incapable of having children. At trial, they offer expert witnesses like psychologies Dr. Michael Lamb to make it abundantly clear that gay marriage doesn’t harm kids, and actually benefits them, to demonstrate that same-sex couples are fully capable of responsible procreation.
As for tradition, they reassure us that the Supreme Court has already ruled on this matter in Williams v. Illinois: “[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.” And again from Lawrence v. Texas, the Court has recognized that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” They presented testimony from Dr. Nancy Cott, who explained that marriage has not been a static institution as a legal matter; the laws have evolved with time to reflect our changing values, needs and understanding.
The defenders of Prop 8 have alleged that California has a legitimate interest in ensuring its marriages are recognized outside the state. Take a moment and think about it. They allege that the State might have been concerned about same-sex marriages receiving too little legal recognition outside of the state — so it banned them entirely. Thanks, California? (Tragically, the defense doesn’t really elaborate on this point, so I’m afraid I can’t comment much on their argument. It just seems bizarre and untenable.)
Administrative convenience? Seriously, defendants? Administrative ease is well-established as insufficient grounds for discrimination (see Craig v. Boren). It doesn’t matter that it would be easier for the state government if they didn’t have to distinguish between same-sex marriages and opposite-sex marriages. Moreover, there’s no connection between administrative convenience and Proposition 8 (in fact, they presented testimony from Dr. Edmund Egan to demonstrate the costs for cities and counties of denying marriage equality).
Obviously, all of these alleged interests are nonsense. So what’s really prompting Proposition 8? I know this is going to come as a shock to you all, but the evidence is pretty clear: the real purpose of this law was to express moral disapproval of gay men and lesbians and their families. (Because if they pretend we’re not here, maybe we’ll just go away?)
My favorite insane witness William Tam promised that if Prop 8 didn’t pass, every child will grow up dreaming about being gay and that the gay agenda is to “legalize sex with children.” As an Official Proponent of Proposition 8, he gets to be the voice of their people — but certainly he is not alone. The h8ers were such great campaigners and left behind such great campaign material that our attorneys are using this to prove the point, as well. The arguments are not rational or well-considered; they’re motivated by hate and fear of the unknown.
But moral disapproval doesn’t mean that you can take away someone else’s rights. In Lawrence v. Texas, the Supreme Court struck down sodomy laws because “moral disapproval” of gay men and lesbians, “like a bare desire to harm the group, is an interest insufficient to satisfy” even rational basis review.
Paths to Victory
How do we win, you ask? Let me count the ways:
+We persuade the court that sexual orientation is a suspect class worthy of intermediate scrutiny, and the defendants are unable to demonstrate that Proposition 8 is substantially related to an important governmental interest.
+ Or we persuade the court that marriage is a fundamental right, and the court finds that there is a compelling governmental interest, but Prop 8 isn’t narrowly tailored to this interest.
+Or we fail to persuade the court that sexual orientation is a suspect class, but the court decides that Prop 8 fails even rational basis review, due to a lack of a legitimate governmental purpose.
But how do we lose? We can also count those ways…
+ We persuade the court that sexual orientation is a suspect class worthy of intermediate scrutiny, but the defendants can demonstrate that Prop 8 is substantially related to an important governmental interest.
+ Or we persuade the court that marriage is a fundamental right, and the court finds a compelling governmental interest and decides the law is narrowly tailored to meet that interest.
+Or we fail to persuade the court that sexual orientation is a suspect class, and the court decides the Prop 8 passes rational basis review.
The thing to remember, though, is that we only need to win once. Prop 8 only has to violate one part of the Constitution for it to be declared unconstitutional. We could lose both equal protection arguments and win because Prop 8 violates the Due Process Clause. We could lose on sexual orientation discrimination and the due process argument, but win because Prop 8 discriminates based on gender.
What happens next?
The presentation of evidence will wrap up soon, but the case is far from over. Judge Walker has requested time, possibly quite a bit, between wrapping up the presentation of evidence and closing arguments in the case. Ostensibly, this is because he wants time to review the evidence in detail and mull any remaining issues so that he can ask informed questions.
However, I can’t help but assume that he maybe also just wants some time away from these people. (At times, just watching the Prop8TrialTracker live blog and Twitter feeds of the trial were painful. I can only imagine sitting through hours of cross-examination as the Prop 8 attorneys try to persuade scholars who have devoted their lives to this work that gay men and lesbians aren’t really a distinct group of people.)
So at some yet-to-be-determined point in the future, Judge Walker will hear closing arguments, and at some point after that, he’ll render an opinion. And more or less immediately, regardless of the outcome, this process begins again when one side or the other brings the case to the Ninth Circuit Court of Appeals.
Any questions? I will, again, be in the comments.
[cartoons from bobster1985]