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The 39 Questions Both Sides On The Prop 8 Trial Must Answer Today

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Proposition 8, California’s November, 2008 offense against America that bans same-sex couples from marrying, has been on trial — federal trial, that is — since January. The federal case, technically Perry v. Schwarzenegger, concludes this week, with closing arguments starting tomorrow, after months of hiatus. Judge Vaughn Walker has presented both sides with a total of thirty-nine questions they were compelled to answer in writing by noon today or be prepared to answer during closing arguments tomorrow.

There are several references to “Blankenhorn,” as in David Blankenhorn. Here’s a link, and another, but perhaps most importantly, the admission of his lie, to give you some background.

I’ve taken the liberty of copying them in part, stripping the legal references, adding hyperlinks when helpful, and then adding my thoughts (italicized) to a few of them. You’ll find the full, actual document at the end.

I have to say many of these questions would be great debate questions for any group to discuss!

Here’s the list:

To the (pro-gay marriage) plaintiffs:

1. 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? (This gets to the very heart of majority rule, the need for a representative democracy, “the will of the people,” and why civil rights should never be voted upon.)

2. What evidence supports a finding that maintaining marriage as an opposite-sex relationship does not afford a rational basis for Proposition 8?

3. 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?

4. 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?

5. 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?

6. What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians? (There is data. And studies of school-aged children to support this.)

7. 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? (The framing here is a concern to me because it is a federal trial.)

8. 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? (Tons of evidence here.)

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

10. 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? (In my non-legal opinion, yes it can.)

11. 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? (To any gay person, I would think this one is a rather easy one to answer…)

12. 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? (Is Walker covering his bases? Or looking for an eventual Supreme Court ruling to include an examination of First Amendment rights? Also, see: “Prop 8 proponents lose pre-closing skirmish“)

To the (anti-gay marriage) proponents:

1. 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? (In other words, especially for you Libertarians out there, what business does the government have in maintaining only “traditional” marriage?)

2. 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? (See above re: Blankenhorn. And, there are no negative social consequences. Well, unless you’re a hateful bigot.)

3. 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? (Prop 8 does not advance any governmental interest. The role of government in marriage is that government has acknowledged that marriage is of benefit to society. The government can no more make a judgment that only opposite sex marriage is a benefit to society than it can that marriage within one’s race is beneficial to society. And it has already struck that down.)

4. Why should the court assume that the deinstitutionalization of marriage is a negative consequence?

5. What evidence in the record shows that same-sex marriage is a drastic or far-reaching change to the institution of marriage?

6. What evidence in the record shows that same-sex couples are differently situated from opposite-sex couples where at least one partner is infertile?

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? (This assumption is false. Two long-term studies released last week prove it is false.)

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?

9. 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?

10. 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?

11. 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? (Remember this one!)

12. What harm do proponents face if an injunction against the enforcement of Proposition 8 is issued? (None. Groups like NOM will make a fortune taking this to the Supreme Court.)

To (pro and anti-gay marriage) Plaintiffs and Proponents:

1. What party bears the burden of proof on plaintiffs’ claims? Under what standard of review is the evidence considered?

2. 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?

3. 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?

4. 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?

5. What does it mean to have a “choice” in one’s sexual orientation? (Critical question.)

6. In order to be rooted in “our Nation’s history, legal traditions, and practices,” is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice? (I would suggest looking at slavery, women’s suffrage, etc.)

7. 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? (EXACTLY!)

8. The California Family Code requires that registered domestic partners be treated as spouses. Businesses that extend benefits to married spouses in California must extend equal benefits to registered domestic partners. 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? (Perception and bigotry need little to be maintained…)

9. What evidence, if any, shows whether infertility has ever been a legal basis for annulment or divorce?

10. 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?

11. 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?

12. 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.

13. Do domestic partnerships create legal extended family relationships or in-laws?

14. 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?

15. If the court finds Proposition 8 to be unconstitutional, what remedy would “yield to the constitutional expression of the people of California’s will”?

Doc 677

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RIGHT WING EXTREMISM

Former GOP Lawmaker Trashes Rep. Clay Higgins for ‘Cosplay Ridiculousness That Actually Could Spark Violence’

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June 10, 2023

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Appearing on MSNBC early Saturday morning, former Rep. Denver Riggleman (R-VA) lashed out at a fellow Republican who responded to Donald Trump’s latest indictment with what appears to be a call for another insurrection.

After the announcement that the former president will be formally indicted by the Department of Justice in Florida next week, Rep. Clay Higgins (R-LA) fired off a tweet stating: “President Trump said he has been summoned to appear at the Federal Courthouse in Miami on Tuesday, at 3 PM. This is a perimeter probe from the oppressors. Hold. rPOTUS has this. Buckle up. 1/50K know your bridges. Rock steady calm. That is all.”

Agreeing with militia expert Jeff Sharlet, who wrote, “This isn’t a metaphor. This isn’t slow civil war. This is a congressman calling for the real thing. I think this is scary as hell,” Riggleman piled on.

Speaking with MSNBC host Katie Phang, he stated, “I know Clay, I’ve served with him back in 2019 to 2021. This is so irresponsible.”

“But it’s also almost a cosplay ridiculousness that actually could spark violence with people that maybe are too ignorant to understand, or absolutely understand what a Clay Higgins is putting out there,” he suggested.

“I think at this point, he probably needs to retract that or delete it, and to apologize for such ridiculous language,” he continued. “Because it makes real military individuals almost cringe. It’s so cringeworthy that I do believe that we have to have a point in this country where their saying rise up against this hyperbolic bulls–t.”

“I think, for me as a former military person, it’s embarrassing to see somebody, especially an elected representative, it’s just embarrassing to see somebody tweet something like that, ” he added.

Watch below or at the link:

 

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OPINION

‘We Are Not Going to Stand for It’: McCarthy Defends Trump – Vows to Use Jim Jordan’s Committee to Target Attorney General

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18 hours ago

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June 9, 2023

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The Republican Speaker of the House, Kevin McCarthy, barely hours after the U.S. Dept. of Justice unsealed a 49-page, 37-felony count criminal indictment charging Donald Trump with violations of seven federal laws, decided to double-down on his defense of the ex-president by threatening to target the Attorney General of the United States and declaring House Republicans “are not going to stand for” the criminal prosecution of the ex-president.

McCarthy went on Fox News Friday afternoon, saying “this judgment is wrong by this DOJ. That they treated President Trump differently than they treat others. And it didn’t have to be this way. This is going to disrupt this nation because it goes to the core of equal justice for all – which is not being seen today and we are not going to stand for it.”

McCarthy, a California Republican who cobbled together a tenuous pact with far-right extremists to win his speakership on the 15th try, is incorrect on the facts.

RELATED: DOJ Unseals 37-Count Trump Criminal Indictment – Legal Expert Calls It ‘Egregious’ and ‘Devastating’ (Full Text)

The Dept. of Justice does not pass judgment, the courts – in this case a jury, does. The Dept. of Justice did not treat Trump “differently,” except to give him multiple opportunities over an approximately two-year period to return national secrets he allegedly unlawfully removed, retained, and refused to return, even after being served with a subpoena and a search warrant.

What McCarthy does not do is claim Trump’s actions were legal or reasonable, because the damning indictment makes clear they are not.

Later, McCarthy took to Twitter to effectively declare he would target the Attorney General of the United States, Merrick Garland, who – for nearly a quarter century – served as a federal appeals court judge and chief judge before being nominated to serve at Main Justice.

(Garland was nominated to the U.S. Supreme Court in 2016 but then-Senate Majority Leader Mitch McConnell refused to allow the confirmation to move process forward.)

“Many officials, from Secretary Hillary Clinton to then-Senator Joe Biden, handled classified info after their time in office & were never charged,” tweeted the Speaker, not just wrongly, but grossly and dishonestly characterizing the allegations against Trump.

“Now Biden’s leading political opponent is indicted—a double standard that must be investigated,” he again dishonestly declared.

READ MORE: ‘Fail’: Critics Blast Youngkin for Claim Trump Is a Victim of ‘Politically Motivated Actions’ Just Like ‘Parents in Virginia’

President Joe Biden had nothing to do with the decision of the Special Counsel to ask a Florida grand jury for an indictment. Nor was the President even told before Trump was indicted – like every American, President Biden learned of the Trump indictment through news reports. Attorney General Garland did not sign off on the decision to ask a grand jury for an indictment.

McCarthy, meanwhile, vowed House Judiciary Committee Chairman Jim Jordan and the House Republicans “will get answers.”

“Merrick Garland: the American people elected us to conduct oversight of you. We will fulfill that obligation,” he declared.

McCarthy made those remarks atop a Friday letter from Jordan to Garland that begins: “The Biden Department of Justice is reportedly about to indict a former president and President Biden’s chief rival in the upcoming presidential election.”

“According to reports, the Department will indict President Donald Trump, despite declining to indict former Secretary of State Hillary Clinton for her mishandling of classified information and failing to indict President Biden for his mishandling of classified information.” (The letter does not mention former Vice President Mike Pence, who is not being charged for his mishandling of classified information.”

On Thursday a defiant and angry McCarthy, after Trump was indicted, wrote: “Today is indeed a dark day for the United States of America.”

“It is unconscionable for a President to indict the leading candidate opposing him,” he said, which is egregiously false – Biden did not indict Trump, nor did his Attorney General or even Special Counsel; a grand jury of Florida citizens did.

“Joe Biden kept classified documents for decades,” McCarthy charged, which is a legitimate claim and there is a current federal investigation underway. The difference is Biden did not take the documents, did not know they were among his papers, and immediately upon learning they were, contacted the National Archives to arrange their return.

Donald Trump, we now know, according to the indictment, packed some of the boxes himself, not only refused to return the documents but hid them from the Dept. of Justice and National Archives, lied about them, and kept them at times in public areas of his Florida resort and residence.

“I, and every American who believes in the rule of law,” McCarthy wrong declared, “stand with President Trump against this grave injustice. House Republicans will hold this brazen weaponization of power accountable.”

READ MORE: SCOTUS ‘Surprise’ Voting Rights Decision Could – and Did – Have Big Implications for Democrats, Legal Experts Say

In response to McCarthy’s remarks, U.S. Rep. Eric Swalwell (D-CA) posted a photo from the DOJ’s indictment of Trump.

“These are the secrets that protect our troops. And Kevin McCarthy thinks it’s perfectly OK that Donald Trump stole and stored them like this,” he charged.

Watch the video and see Rep. Swalwell’s tweet above or at this link.

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RIGHT WING EXTREMISM

‘Fail’: Critics Blast Youngkin for Claim Trump Is a Victim of ‘Politically Motivated Actions’ Just Like ‘Parents in Virginia’

Published

21 hours ago

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June 9, 2023

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Virginia Republican Governor Glenn Youngkin, a possible 2024 presidential candidate, is under fire after remarks he made Friday morning defending Donald Trump after the ex-president was indicted on what has now been revealed to be 37 federal felony counts related to the Dept. of Justice’s criminal probe into his handling of hundreds of classified and top secret documents.

Youngkin Friday suggested that the prosecution of Donald Trump, which includes Espionage Act charges, conspiracy charges, and obstruction of justice charges among others, was just like the alleged prosecution of parents.

Gov. Youngkin, often wrongly portrayed in the media as a moderate Republican, may have been attempting to invoke the false yet viral far-right claim that Attorney General Merrick Garland was investigating and prosecuting parents for merely speaking at school board meetings. That claim came about after Garland issued a letter asking the Bureau to come up with strategies to address violence and violent threats directed at school board members. Some who have promoted that erroneous claim, including Speaker of the House Kevin McCarthy, have falsely claimed Garland called ordinary parents “terrorists.”

On Friday, Youngkin tweeted about the Trump indictment, saying, “These charges are unprecedented and it’s a sad day for our country, especially in light of what clearly appears to be a two-tiered justice system where some are selectively prosecuted, and others are not.”

“Parents in Virginia know firsthand what it’s like to be targeted by politically motivated actions,” he added.

“Regardless of your party, this undermines faith in our judicial system at exactly the time when we should be working to restore that trust,” Youngkin concluded, remarks that themselves could undermine faith in our judicial system.

Days before his election, Youngkin also promoted the false Garland claim, even after the Attorney General that same day explained to the Senate Judiciary Committee his letter directed the FBI to investigate not ordinary parents, but people who were organizing attacks on school board members.

Candidate Youngkin appeared on Fox News in October 0f 2021 (video below) and falsely told Tucker Carlson, “What happened today was, of course, Merrick Garland doubled down. He said, ‘No, I’m absolutely maintaining my position that the DOJ and the FBI should be investigating parents.’ Parents who are trying to stand up for their children when there’s been a sexual assault in a school bathroom. We have a board of education and in Loudoun County that tried to hide it from parents, hide it from hiding from the public, and they move this child into another school and then that child again committed another sexual assault.”

READ MORE: DOJ Unseals 37-Count Trump Criminal Indictment – Legal Expert Calls It ‘Egregious’ and ‘Devastating’ (Full Text)

Youngkin made education and “parents’ rights” a campaign issue when he ran in 2021. His opponent, Democrat Terry McAuliffe, during a debate said, “I don’t think parents should be telling schools what they should teach.” While experts claim it didn’t swing the election for Youngkin, it at least established him nationally as focused on education and “parental rights,” a mantle Florida Republican Gov. Ron DeSantis quickly co-opted.

The Washington Post, alternatively, on Friday focused on Youngkin’s “two-tiered justice” remarks, reporting: “Youngkin’s suggestion that a rich White man — he didn’t actually name Trump — had been victimized by a ‘two-tiered justice system’ drew fierce pushback, with many critics noting the governor’s opposition to the notion that racial and ethnic minorities face systemic racism. The Republican won the governorship on a promise to purge ‘critical race theory’ from K-12 classrooms, though it was not part of any curriculum. Once in office, Youngkin launched a tip line for parents to report on teachers discussing ‘inherently divisive’ concepts in schools.”

Youngkin, who technically is a “populist conservative” but swings far-right on social issues, was quickly chastised for his tweet.

“You know what you are saying is wrong and incendiary. Shame on you,” declared former CIA officer John Sipher. “These charges stemmed from a grand [jury] of Florida citizens. Trump will have access to a Fair process. But instead you spread information to anger and confuse people. You are stoking misinformation and violence.”

READ MORE: SCOTUS ‘Surprise’ Voting Rights Decision Could – and Did – Have Big Implications for Democrats, Legal Experts Say

MSNBC’s Chris Hayes took a different approach, mocking the Virginia Republican.

“It’s the pivot to ‘Parents in Virginia…’ in the third sentence that elevates this to art,” he wrote.

“The moderate, genial suburban dad in a fleece vest suggests that the only way to restore confidence in the justice system is to place Trump above the law,” wrote The Washington Post’s Greg Sargent, also mocking Youngkin.

“Youngkin is pro-Trump, as usual–even though Virginia voted heavily AGAINST Trump in both 2016 and 2020. When it comes to Donald Trump, Liz Cheney has more courage in her pinky than Youngkin does in his whole body,” observed Larry Sabato, the well-known professor of politics, political analyst, and founder and director of University of Virginia’s Center for Politics.

The vice president of research for the liberal super PAC American Bridge 21st Century, Liz Charboneau, called Youngkin’s tweet an “especially stupid statement when a large portion of your state has a security clearance, handles classified documents, and has never been charged under the espionage act.”

Conservative Mona Charen, a syndicated columnist and Policy Editor at The Bulwark: “So here’s our answer as to whether Youngkin is a man of character. Fail.”

The Lincoln Project’s Michelle Kinney tweeted, “Youngkin twisting himself into pretzel to weave a vaguebook repudiation of Trump indictment and his weirdo anti vaxx anti trans ‘parents rights’ obsession into one tweet. It reads like Veep dialogue.”

Historian, professor, Holocaust expert Dr. Waitman Wade Beorn tweeted, “Hey dude, the Pentagon is literally in your state. Maybe stop in and have a chat…”

Watch the video above or at this link.

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