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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

http://d1.scribdassets.com/ScribdViewer.swf?document_id=32724803&access_key=key-jssxoh15lutku7zmgyn&page=1&viewMode=list

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Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

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April 25, 2024

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Legal experts appeared somewhat pleased during the first half of the Supreme Court’s historic hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was the President of the United States, as the justice appeared unwilling to accept that claim, but were stunned later when the right-wing justices questioned the U.S. Dept. of Justice’s attorney. Many experts are suggesting the ex-president may have won at least a part of the day, and some are expressing concern about the future of American democracy.

“Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6,” Axios reports. “A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.”

The most likely outcome “might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 case until after Inauguration Day in 2025.”

Slate’s Mark Joseph Stern, who covers the courts and the law, noted: “This did NOT go very well [for Special Counsel] Jack Smith’s team. Thomas, Alito, and Kavanaugh think Trump’s Jan. 6 prosecution is unconstitutional. Maybe Gorsuch too. Roberts is skeptical of the charges. Barrett is more amenable to Smith but still wants some immunity.”

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Civil rights attorney and Tufts University professor Matthew Segal, responding to Stern’s remarks, commented: “If this is true, and if Trump becomes president again, there is likely no limit to the harm he’d be willing to cause — to the country, and to specific individuals — under the aegis of this immunity.”

Noted foreign policy, national security and political affairs analyst and commentator David Rothkopf observed: “Feels like the court is leaning toward creating new immunity protections for a president. It’s amazing. We’re watching the Constitution be rewritten in front of our eyes in real time.”

“Frog in boiling water alert,” warned Ian Bassin, a former Associate White House Counsel under President Barack Obama. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”

NYU professor of law Melissa Murray responded to Bassin: “We are normalizing authoritarianism.”

Trump’s attorney, John Sauer, argued before the Supreme Court justices that if Trump had a political rival assassinated, he could only be prosecuted if he had first been impeach by the U.S. House of Representatives then convicted by the U.S. Senate.

During oral arguments Thursday, MSNBC host Chris Hayes commented on social media, “Something that drives me a little insane, I’ll admit, is that Trump’s OWN LAWYERS at his impeachment told the Senators to vote not to convict him BECAUSE he could be prosecuted if it came to that. Now they’re arguing that the only way he could be prosecuted is if they convicted.”

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Attorney and former FBI agent Asha Rangappa warned, “It’s worth highlighting that Trump’s lawyers are setting up another argument for a second Trump presidency: Criminal laws don’t apply to the President unless they specifically say so…this lays the groundwork for saying (in the future) he can’t be impeached for conduct he can’t be prosecuted for.”

But NYU and Harvard professor of law Ryan Goodman shared a different perspective.

“Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward. It’d be a travesty for Justices to delay matters further. Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.”

NYU professor of history Ruth Ben-Ghiat, an expert scholar on authoritarians, fascism, and democracy concluded, “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and and involves giving them a respected platform.”

The Nation’s justice correspondent Elie Mystal offered up a prediction: “Court doesn’t come back till May 9th which will be a decision day. But I think they won’t decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.”

Watch the video above or at this link.

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Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

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April 25, 2024

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Justices on the U.S. Supreme Court hearing Donald Trump’s claim of absolute immunity early on appeared at best skeptical, were able to get his attorney to admit personal criminal acts can be prosecuted, appeared to skewer his argument a president must be impeached and convicted before he can be criminally prosecuted, and peppered him with questions exposing what some experts see is the apparent weakness of his case.

Legal experts appeared to believe, based on the Justices’ questions and statements, Trump will lose his claim of absolute presidential immunity, and may remand the case back to the lower court that already ruled against him, but these observations came during Justices’ questioning of Trump attorney John Sauer, and before they questioned the U.S. Dept. of Justice’s Michael Dreeben.

“I can say with reasonable confidence that if you’re arguing a case in the Supreme Court of the United States and Justices Alito and Sotomayor are tag-teaming you, you are going to lose,” noted attorney George Conway, who has argued a case before the nation’s highest court and obtained a unanimous decision.

But some are also warning that the justices will delay so Special Counsel Jack Smith’s prosecution of Trump will not take place before the November election.

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“This argument still has a ways to go,” observed UCLA professor of law Rick Hasen, one of the top election law scholars in the county. “But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).”

The Economist’s Supreme Court reporter Steven Mazie appeared to agree: “So, big picture: the (already slim) chances of Jack Smith actually getting his 2020 election-subversion case in front of a jury before the 2024 election are dwindling before our eyes.”

One of the most stunning lines of questioning came from Justice Ketanji Brown Jackson, who said, “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into Office knowing that there would be no potential penalty for committing crimes. I’m trying to understand what the disincentive is, from turning the Oval Office into, you know, the seat of criminal activity in this country.”

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She also warned, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? It’s right now the fact that we’re having this debate because, OLC [Office of Legal Counsel] has said that presidents might be prosecuted. Presidents, from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning, but once we say, ‘no criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”

“Why is it as a matter of theory,” Justice Jackson said, “and I’m hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts?”

“So,” she added later, “I guess I don’t understand why Congress in every criminal statute would have to say and the President is included. I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the President just like everyone else.”

Another critical moment came when Justice Elena Kagan asked, “If a president sells nuclear secrets to a foreign adversary, is that immune?”

Professor of law Jennifer Taub observed, “This is truly a remarkable moment. A former U.S. president is at his criminal trial in New York, while at the same time the U.S. Supreme Court is hearing his lawyer’s argument that he should be immune from prosecution in an entirely different federal criminal case.”

Watch the videos above or at this link.

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‘To Do God Knows What’: Local Elections Official Reads Lara Trump the Riot Act

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7 hours ago

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April 25, 2024

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The county clerk for Ingham County, Michigan blasted Republican National Committee co-chair Lara Trump after the ex-president’s daughter-in-law bragged the RNC will have people to “physically handle” voters’ ballots in polling locations across the country this November.

“We now have the ability at the RNC not just to have poll watchers, people standing in polling locations, but people who can physically handle the ballots,” Trump told Newsmax host Eric Bolling this week, as NCRM reported.

“Will these people, will they be allowed to physically handle the ballots as well, Lara?” Bolling asked.

“Yup,” Trump replied.

Marc Elias, the top Democratic elections attorney who won 63 of the 64 lawsuits filed by the Donald Trump campaign in the 2020 election cycle (the one he did not win was later overturned), corrected Lara Trump.

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“Poll observers are NEVER permitted to touch ballots. She is suggesting the RNC will infiltrate election offices,” Elias warned on Wednesday.

Barb Byrum, a former Michigan Democratic state representative with a law degree and a local hardware store, is the Ingham County Clerk, and thus the chief elections official for her county. She slammed Lara Trump and warned her the RNC had better not try to touch any ballots in her jurisdiction.

“I watched your video, and it’s riveting stuff. But if you think you’ll be touching ballots in my state, you’ve got another thing coming,” Byrum told Trump in response to the Newsmax interview.

“First and foremost, precinct workers, clerks, and voters are the only people authorized to touch ballots. For example, I am the County Clerk, and I interact with exactly one voted ballot: My own,” Byrum wrote, launching a lengthy series of social media posts educating Trump.

“Election inspectors are hired by local clerks in Michigan and we hire Democrats and Republicans to work in our polling places. We’re required by law to do so,” she continued. “In large cities and townships, the local clerks train those workers. In smaller cities and townships, that responsibility falls to County Clerks, like me.”

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She explained, “precinct workers swear an oath to uphold the Constitution of the United States and the Constitution of the State of Michigan.”

“Among the provisions in the Michigan Constitution is the right to a secret ballot for our voters,” she added.

Byrum also educated Trump on her inaccurate representation of the consent decree, which was lifted by a court, not a judge’s death, as Lara Trump had claimed.

“It’s important for folks to understand what you’re talking about: The end of a consent decree that was keeping the RNC from intimidating and suppressing voters (especially in minority-majority areas).”

“With that now gone, you’re hoping for the RNC to step up their game and get people that you train to do god-knows what into the polling places.”

Byrum also warned Trump: “If election inspectors are found to be disrupting the process of an orderly election OR going outside their duties, local clerks are within their rights to dismiss them immediately.”

“So if you intend to train these 100,000 workers to do anything but their sacred constitutional obligation, they’ll find themselves on the curb faster than you can say ‘election interference.'”

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