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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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News

Trump Witness Turns ‘Strawberry Red’ After Judge’s Scalding Scolding

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New York Supreme Court Justice Juan Merchan, after becoming visibly angered by Trump defense witness Robert Costello, cleared the courtroom of the jury and the press before admonishing the “MAGA-friendly lawyer” Monday afternoon in the ex-president’s criminal “hush money” trial.

Calling it a “brawl,” The Daily Beast set the scene: “After Costello, a former prosecutor, was reprimanded for delivering outbursts in the court whenever he was interrupted or told not to answer a question that had been objected to and sustained, Costello began to stare down the judge.”

Before the reprimand, CNN’s Kaitlan Collins reported: “Twice now the judge has sustained an objection and Costello answered regardless. Judge Merchan addresses him directly to not answer if he’s sustained the objection. ‘Jesus,’ Costello mutters after it happens again. ‘I’m sorry,’ the judge, visibly annoyed, says to him. ‘I’m sorry?'”

And then, the admonition.

READ MORE: ‘Wack Pack’: Questions Swirl Over ‘Trump Uniforms’ and Who’s Funding ‘Weird’ Trial Surrogates

“I’d like to discuss proper decorum in the courtroom,” Judge Merchan said, according to Collins. “If you don’t like my ruling, you don’t give me side eye and you don’t roll your eyes.”

Collins added: “Then in a raised voice, Merchan asks, ‘Are you staring me down right now?!'”

“The jury was NOT in the room for this,” Collins added. “Merchan sent them out, then admonished Costello, then when he was staring him down, Merchan became furious and cleared the courtroom. So the jury witnesses none of this. (And the press missed whatever was said in the interim.)”

Here’s how it went down, according to MSNBC host and legal contributor Katie Phang.

“Judge Merchan is ANGRY,” she observed, before reporting the dialogue:

“MERCHAN: ‘I’d like to discuss proper decorum in my courtroom’
MERCHAN: ‘If you don’t like my ruling, you don’t say ‘Jeez’ ‘
MERCHAN: You don’t say ‘strike it’ because I’m the only one who can strike it.
MERCHAN: ‘You don’t give me side eye and you don’t roll your eyes’
COSTELLO: I understand.”

Phang added, “When the media were allowed back in, Costello is seated at the witness stand looking decidedly chastened. Merchan looks calm.”

The Guardian’s Hugo Lowell reports the judge didn’t calmly just clear the courtroom:

MSNBC legal contributor Lisa Rubin called it, “one of the wildest things I’ve ever seen in court.”

READ MORE: Law ‘Requires’ Alito and Thomas to Recuse Says Former Federal Prosecutor

And while CNN’s Collins noted the jury was not in the courtroom for exchange, Phang reports: “Although the dressing down of Costello took place outside of earshot of the jury, they witnessed firsthand Costello’s demeanor and petulance and heard firsthand his quips and remarks from the witness stand. Perhaps Costello just reinforced to the jury why Cohen didn’t want to keep Costello as his lawyer…Costello is pandering for an audience of one: Trump.”

MSNBC legal analyst Kristy Greenberg noted, “Michael Cohen was respectful. Bob Costello is acting like a clown. Jurors will notice and this will hurt Trump. Any concerns that jurors may have had about Cohen have now been overshadowed by Costello’s disrespect to the judge right in front of their faces.”

Lowell also reported after that the reprimand, “Costello is so red in the face he resembles a strawberry.”

See the social media post above or at this link.

 

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OPINION

‘Wack Pack’: Questions Swirl Over ‘Trump Uniforms’ and Who’s Funding ‘Weird’ Trial Surrogates

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Trump trial watchers are raising questions over the increasingly large number of elected Republicans and big-name allies showing up at the Manhattan Criminal Courts Building to show support for the indicted ex-president, often giving angry and factually inaccurate speeches before the cameras, or standing behind the defendant in the background as he delivers his rants to reporters.

They are usually all men, and usually all dressed just as Donald Trump does: blue suit, white shirt, red tie.

Public Notice founder Aaron Rupar on Monday, observed, “they’re all in Trump costumes again. how cute.”

Questions about their “uniforms,” and more importantly, who is funding and organizing their travel, are being raised.

Media critic Jennifer Schulze, a former Chicago Sun-Times executive producer, WGN news director, and adjunct college professor of journalism, commented: “The trump uniforms angle is flying way too low beneath the mainstream news radar. The same is true for how this weird courtroom guest star show is being organized & financed.”

READ MORE: Why Alito’s ‘Stop the Steal’ Flag Story Just Fell Apart

And they are being called “uniforms.”

Filmmaker and podcaster Andy Ostroy declared, “I’m sorry, but all these #Trump capos showing up each day at the trial dressed exactly the same as The Godfather in blue suit and red tie is not only creepy AF but is a chilling foreshadowing of the fascist uniform-wearing government they’re jonesin’ to be a part of…”

Talk radio host Joan Esposito also asked who’s paying for these appearances: “Is the trump campaign paying for these surrogates to fly to & from nyc? If not, who is?”

Political commentator Bob Cesca remarked, “Trump’s fanboys are like the Wack Pack from the Stern show circa 1990.”

Monday’s star surrogates included South Carolina Attorney General Alan Wilson, an election denier who had supported overturning the 2020 presidential election and signed onto what has been called a “false and frivolous” lawsuit attempting to overturn the results.

Also, Republican U.S. Reps. Eric Burlison, Andrew Clyde, Mary Miller, and Keith Self. And John Coale from the Trump-aligned America First Policy Institute, attorney Alan Dershowitz, Trump attorney and GOP attorney general candidate Will Scharf, convicted felon and Trump pardon recipient Bernie Kerik, Trump loyalist and former Trump administration official Kash Patel, and others.

READ MORE: Law ‘Requires’ Alito and Thomas to Recuse Says Former Federal Prosecutor

Op-ed columnist Terry Cowgill last week called them “manservants…standing at attention like automatons.”

“Scary and very very strange” was actress and activist Mia Farrow’s observation last week.

Vanity Fair’s Molly Jong-Fast, an MSNBC political analyst, last week asked, “Why did they all wear the same outfit?”

The Biden campaign was only too happy to post this video last week:

See the social media posts and videos above or at this link.

READ MORE: ‘Partisan Insurrectionist’: Calls Mount for Alito’s Ouster After ‘Stop the Steal’ Scandal

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News

Law ‘Requires’ Alito and Thomas to Recuse Says Former Federal Prosecutor

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U.S. Supreme Court Justices Samuel Alito and Clarence Thomas have no choice but to observe federal law and recuse themselves from cases involving the 2020 presidential election, according to an attorney who served as a federal prosecutor for 30 years, while a noted constitutional law expert is warning Justice Alito “may be responsible for delaying” the Court’s decision on Donald Trump’s claims of absolute immunity.

Their remarks come as Americans are waiting for the U.S. Supreme Court to issue its decision on Donald Trump’s claim of absolute and total immunity from prosecution.

“The Supreme Court, as led by insurrection advocates Alito & Thomas, has caught & killed Trump’s prosecution for trying to overturn the 2020 election. The impartiality of Thomas & Alito ‘might reasonably be questioned’ so the federal law REQUIRES their recusal. Period. Full stop,” wrote Glenn Kirschner, now an NBC News/MSNBC legal analyst.

Kirschner posted text from federal law, 28 U.S.C. Sec. 455, which reads: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

READ MORE: ‘Partisan Insurrectionist’: Calls Mount for Alito’s Ouster After ‘Stop the Steal’ Scandal

The renewed interest in both far-right justices comes after Friday’s New York Times bombshell report that revealed a symbol of January 6 insurrectionists, the “Stop the Steal” flag, which is the U.S. Stars and Stripes flying upside down, was flown at Justice Alito’s home just days before President Joe Biden was inaugurated.

Justice Alito claimed his wife was responsible for flying the American flag in that manner, which is also used to indicate a situation of dire or extreme distress. He claimed she had done so after an altercation with a neighbor, who had a “F*** Trump” sign on their lawn that could be seen by children awaiting the school bus. But those claims seemed to fall apart after sleuths noted because of COVID schools were operating virtually, so there were no school buses running, and neighbors did not remember what allegedly was extreme neighborhood drama.

On Friday, Laurence Tribe, University Professor Emeritus at Harvard University, a constitutional law scholar and professor who has argued three dozen times before the Supreme Court, told CNN (video below) he believes Justice Alito must recuse.

“I do. I don’t think there’s any question about it. It’s in many ways, more serious than what we’ve seen with Justice Thomas. At least Justice Thomas could say that, ‘my wife Ginny has her own separate career. We don’t talk about the cases.’ You may believe that or you may not, but that’s very different from what’s going on with Justice Alito. He’s not saying, ‘My wife has her own separate career.’ He’s throwing her under the bus and blaming her for what is on his house, his flagpole. It’s his flag malfunction. It’s his upside down flag and everyone knows that the upside down the flag, which the United States Code says should be flown that way only in cases of absolute emergency as a kind of SOS, was in this case, a symbol of the claim that the election was stolen from Donald Trump.”

“It was the banner of the insurrectionists,” Tribe continued. “And I’m reminded of something that the late Justice Scalia said in the opinion he wrote in 1987, he said, ‘you cannot expect to ride with the cops if you cheer for the robbers.’ In this case, Justice Alito expects to preside over a decision about whether there wasn’t it direction and who was responsible for it. And whether Donald Trump who has been charged with involvement in trying to obstruct the operations of government and the transfer of power is immune, or if cases before the court, he’s obviously not qualified to sit in this case.”

READ MORE: ‘Mouths of Sauron’: Critics Blast ‘Mobster Tactic’ of Trump Surrogates ‘Violating’ Gag Order

Like Kirschner, Tribe pointed to 28 U.S.C. Sec. 455, saying, “28 US Code section 455 says that any federal judge or justice must – not may, but must – recuse him or herself in any case where either that justice or the justice’s spouse has any skin in the game. There’s no distance here between Mr. Alito and Mrs. Alito. It’s clear that whatever offensive sign was involved, that dispute between neighbors trivializes what’s involved here.”

On the Supreme Court’s pending decision on Trump’s immunity claims, Tribe added, Justice Alito “may be responsible for delaying it.”

“After all, the protocol within the court is the different justices dissenting and Alito is probably writing a dissent from a rejection of the extreme claim of absolute immunity. That didn’t seem to gain traction with the court. If a justice is dissenting, you wait till the dissent is done before announcing the case. So by delaying this immunity decision so long that a trial can’t occur before the election, the effect may be to give de facto immunity to the former president, who if he wins the election will pick an attorney general who will dismiss the case. So ultimate accountability is very much on the line.”

As for Justice Thomas, back in March of 2022, The New Yorker‘s Jane Mayer wrote: “Legal Scholars Are Shocked By Ginni Thomas’s ‘Stop the Steal’ Texts,” which also read: “Several experts say that Thomas’s husband, the Supreme Court Justice Clarence Thomas, must recuse himself from any case related to the 2020 election.”

And in June of 2022, former Bush 43 chief White House ethics lawyer Richard Painter, also posting that federal law, wrote: “Justice Thomas’s participation in Dobbs means Ginni Thomas was not receiving payment from persons seeking reverse of Roe. Right?”

He was referring to the Supreme Court’s Dobbs decision, coincidentally written by Justice Alito, which overturned five decades of civil rights law and removed abortion as a constitutionally-protected right.

“We have no idea who’s paying Ginni Thomas,” he continued, referring to Clarence Thomas’s spouse, who also alleged worked to overturn the 2020 election. “Justice Thomas refuses to recuse from any cases because of her. This conflict of interest is unworkable.”

Watch Professor Tribe below or at this link.

READ MORE: ‘Not Weighing in on That’: Republicans Refuse to Pull Support for Trump as Trial Nears End

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