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.
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 votersâ€™ 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 plaintiffsâ€™ 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 â€“ as opposed to a transitory â€“ 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, plaintiffsâ€™ 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 plaintiffsâ€™ 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 plaintiffsâ€™ motion to exclude Mr Blankenhornâ€™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 stateâ€™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 Californiaâ€™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 Courtâ€™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 (â€œBut 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.â€). 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 plaintiffsâ€™ 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 â€œdebatableâ€ or â€œarguableâ€ 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 â€œmay legitimately take into accountâ€ when making legislative classifications?
4. What does the evidence show the definition (or definitions) of marriage to be? How does Professor Cottâ€™s proposed definition of marriage fit within Mr Blankenhornâ€™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 â€œchoiceâ€ in oneâ€™s sexual orientation? (Critical question.)
6. In order to be rooted in â€œour Nation’s history, legal traditions, and practices,â€ 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 â€“ in name only â€“ 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 â€œyield to the constitutional expression of the people of Californiaâ€™s willâ€?
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82-Year-Old Black Woman Arrested and Handcuffed by Alabama Police Over $77 Unpaid Trash Bill
Martha Menefield, an 82-year-old Black woman in Valley, Alabama, had police officers show up to her home on Sunday and arrest her for failing to pay a $77 trash bill, CBS42 reports.
Menefield told CBS42 that she thought the bill had already been paid, “but they said it hadn’t.”
“And the cuffs,” she said, her eyes swelling with tears. “They’re so heavy.”
When the officer told her not to cry, Menefield asked him, “How would you feel if they came and arrested your grandmama?”
“I’m just happy my grandkids weren’t here to see that,” Menefield said, her voice shaking. “That would have upset them. I was so ashamed. And it’s been bothering me.”
In a post on the city’s social media account, Valley’s police chief defended the arrest.
“City of Valley Code Enforcement Officers issued Ms. Menefield a citation in August of 2022 for non-payment for trash services for the months of June, July, and August,” Chief Mike Reynolds’ statement said. “Prior to issuing the citation, Code Enforcement tried to call Ms. Menefield several times and attempted to contact her in person at her residence. When contact could not be made, a door hanger was left at her residence. The hanger contained information on the reason for the visit and a name and contact phone number for her to call. The citation advised Ms. Menefield that she was to appear in court on September 7, 2022, in reference to this case. A warrant for Failure to Pay-Trash was issued when she did not appear in court.”
Since the arrest, Menefield has been thinking about the role of God in her life.
“I’ve been questioning God a little bit,” she said. “I guess cause I’ve been so upset. I had a daycare here for eight years, and I’ve been asking the Lord. I say ‘Why did this happen to me as much as I’ve done for people, Lord? I’ve paid my tithes every Sunday. I ushered at church. I was just questioning. Something’s just not right.”
Read the full report over at CBS42.
‘Another Happy Jobs Day’: Economists Thrilled With ‘Amazing’ Report as Jobs Growth Beats Expectations, Wages Increase
The Biden economy added a whopping 263,000 jobs last month, crushing expectations of 200,000, and wages are growing as well, leading one economist to declare “another happy jobs day.”
The U.S.Bureau of Labor Statistics (BLS) adds that unemployment remains at a near-historic low of 3.7% in November, “and has been in a narrow range of 3.5 percent to 3.7 percent since March.”
University of Michigan School of Economics Professor Justin Wolfers exclaimed, “It’s yet ANOTHER happy jobs day. Payrolls rose +263k, well above expectations.”
“This expansion just keeps on rolling on,” added Wolfers, a senior fellow at The Brookings Institution.
Wolfers also takes on those who have been falsely pushing “recession” talking points.
“BTW, remember all that recession talk? It was nonsense. Bollocks. Cow dung,” he tweets. “There never was a recession. And the economy sure doesn’t look like it’s in one now. Job growth at this rate is the economy singing: ‘This is a robust expansion.'”
And he also slams the doom and gloom forecasters.
The flip from “Recession!” to “Overheating!” is just about the perfect example of the bad news bias in most economic commentary.
Look folks, if the economists you talk to are always gloomy, they’re only giving you half the story.https://t.co/mcD76jthvN
— Justin Wolfers (@JustinWolfers) December 2, 2022
Economist David Rothschild sums up where the Biden economy is compared to the rest of the world.
“Economy is far from perfect,” he writes, “but conditional on the worldwide pandemic and supply chain issues generated from pandemic: US economy has done *amazing* over last 2 years.”
In news alerts The New York Times reported hiring “continued to exceed expectations,” The Wall Street Journal called it “a sign of continued strength in the labor market,” and even Fox News reported it as “stronger-than-expected.” CNN referred to the jobs report as “robust” and “defying expectations.”
“America’s jobs engine kept churning in November, the Labor Department reported Friday, a show of continued demand for workers despite the Federal Reserve’s push to curb inflation by tamping down hiring, The Times reported. “The labor market has been surprisingly resilient in the face of successive interest rate increases by the Fed over the past year. Even sectors normally sensitive to borrowing costs, like construction and manufacturing, have been slow to back off the brisk pace of growth they posted coming out of the pandemic.”
The BLS also broke down unemployment numbers by demographics.
“Among the major worker groups, the unemployment rates for adult men (3.4 percent), adult women (3.3 percent), teenagers (11.3 percent), Whites (3.2 percent), Blacks (5.7 percent), Asians (2.7 percent), and Hispanics (3.9 percent) showed little or no change over the month.”
Image: Matt Smith Photographer / Shutterstock
‘The Law Is Clear’: Appeals Court Rules Trump Handpicked Judge Should Never Have Appointed Special Master
A three-judge panel on the conservative 11th Circuit Court of Appeals has ruled against Donald Trump, and effectively against his hand-picked federal district court judge Aileen Cannon in the ex-president’s “special master” case.
The judges, all three conservatives, two of whom appointed to the bench by Trump himself, ruled that Judge Cannon should never have agreed to Trump’s request to appoint a “special master” to review all the items the Dept. of Justice removed from his Mar-a-Lago residence by executing a legal search warrant.
Cannon had ordered the special master to specifically review approximately 100 classified documents, and blocked the DOJ from accessing them while they were under review. That block halted its investigation into Trump’s likely illegal retention of the documents and other items – over 10,000 – he removed from the White House and was string at Mar-a-Lago.
CNN calls Thursday’s ruling “a major defeat for former President Donald Trump.” The appeals court’s ruling halts “a third-party review of documents seized from his Mar-a-Lago estate,” and “removes a major obstacle to the Justice Department’s investigation into the mishandling of government records from Trump’s time in the White House.”
“The law is clear,” the judges wrote in their ruling Thursday, posted by NBC News’ Daniel Barnes. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations.”
“And both would violate bedrock separation-of-powers limitations,” they continued. “Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.”
They also wrote: “In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.”
“The district court,” meaning Judge Cannon, “improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.”
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