Protect Marriage, Day 12: We’re Still Not Sure How This Trial Works

So, the trial is over for a while, but Andy Pugno has to remind us how little the defense understands this trial before we can move on with our lives post-#prop8. (I’m personally entering rehabilitation for my CTRL + R carpal tunnel that has developed.)

Presentation of Evidence Concludes in Perry v Schwarzenegger Federal Trial

Today concluded the presentation of evidence in the federal trial, Perry v. Schwarzenegger, challenging Prop 8’s definition of marriage as only between a man and a woman. Our Prop 8 Legal Defense Team did a remarkable job in defending the will of over 7 million California voters who passed it into law.

You know, I think “remarkable” is an apt descriptor. Certainly, many have remarked about the job they’ve done depending Proposition 8. Are they positive remarks, though? Well, that’s probably why Pugno chose a word that would keep him from outright lying.

What may be lost in all the sensationalism of the past two and a half weeks of trial is that the burden of proof to invalidate Prop 8 lies squarely with the plaintiffs. They cannot win unless they prove that the voters were “irrational” when they chose to preserve the traditional definition of marriage in our state. Contrary to their public relations claims, the outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best.  The plaintiffs simply did not carry that burden.

This is Pugno’s favorite spin. It’s the people’s right to vote! As the defense’s own witness, Dr. Miller, pointed out, the initiative process can be extremely unfair to minorities. The burden of proof is not just on the plaintiffs. The defense has to prove that there is a compelling reason for Prop 8 that outweighs the harm the plaintiffs have demonstrated from its passing. None of the testimony demonstrated any foundation for maintaining marriage between a man and a woman, but Pugno, like Blankenhorn, still believes it’s true.

Meanwhile, we have shown that limiting marriage to its longstanding definition is rational because marriage benefits children, not just the adults. Whenever possible, it is best for a child to have both a mother and a father. And man-woman marriage is the only human relationship that can biologically serve that distinctive purpose.  A same-sex relationship can never offer a child both a mother and father. It’s that simple.

Yes, Pugno, and both of your witnesses also agreed that same-sex marriage benefits the children of same-sex couples. And all the myths about “a mother and a father” were debunked by research your witnesses hadn’t even read! They’re all just archaic gender stereotypes (even more archaic than the “scholarly” documents your witnesses cited).

And for the record, I’m still offended as an adoptee. And so is some woman out there who gave me up for adoption 24 years ago. Sorry for these idiots’ condemnation, birth-mom-I’ve-never-met-and-never-really-care-to-because-I-have-two-amazing-parents-who-have-raised-me-with-all-the-love-in-their-hearts.

The plaintiffs put on a spectacular show-trial of irrelevant evidence, calling to the stand many “expert” witnesses to testify that allowing homosexual marriage would: help local governments raise more tax revenues, help gay and lesbian couples to accumulate greater wealth, and improve the self-esteem of homosexuals.  But those are political arguments for society to consider, not legal support for the claim that the US Constitution contains the right to homosexual marriage. The courtroom is simply not the proper forum for what is clearly a social, not a legal, appeal.

Awww, Pugno is trying to use the “expert” mocking quotes back on the plaintiffs (OH YEAH? WELL YOURS ARE “EXPERTS” TOO!). Sorry, Pugno, the plaintiffs’ experts actually demonstrated their expertise, unlike yours. And all of that evidence was totally relevant, because it all stacks against your claims about the importance of “traditional marriage,” and I have to use the mocking quotes for “traditional marriage” because Dr. Cott, the expert on the history of marriage, totally contradicted your claims of what “traditional marriage” even is!

You also ignored all of the continued discrimination, hate crimes, and denial of equal access on the law that gays and lesbians experience. I guess freedom and equal access aren’t legal issues either? Have you read the US Constitution lately?

I don’t know how much more we’ll hear from Pugno before the court reconvenes for closing arguments, but I’m going to keep following. His whole MO is to control the message to his followers, and I want to continue to interrupt that.

[Brian Leubitz also responded to this post over on the Prop 8 Trial Tracker.]



Protect Marriage, Day 11: We’re Not Watching The Actual Trial, Just Making It Up

Seriously, their witnesses know squat (see the roundup), but Andy Pugno is so proud and thinks the plaintiffs look so pathetic. What trial has he been watching?

Spaghetti Strategy

Once again, religion was on trial this morning as a lawyer for the challengers to Prop 8 cross-examined political scientist Kenneth Miller. In their desperate attempt to make something of their case stick, the anti-Prop 8 lawyer spent extraordinary time – four hours, in fact – trying to get the witness to concede that the margin of victory for Prop 8 in the November 2008 election was driven solely by “religious” voters.  But Dr. Miller’s testimony provided an impenetrable roadblock, establishing that—while religious views were certainly one of many factors that informed some voters’ support for Prop 8—no exit poll or voter study has shown that religion alone determined the result of the election.

In case you’re curious, “impenetrable roadblock” means unable to answer any of the questions.

And actually, this study shows that religious attendance, party, and ideology were the most significant factors in Prop 8’s passing. So, it’s nice that Andy Pugno is ignorant of this fact, but that doesn’t mean he’s right. In fact, it means he’s wrong! Oh, and just in case you don’t feel like bothering with reading through that whole study, here’s a graph that shows what had the biggest impacts on “Yes” votes. (Click to embiggen.)

But let’s assume for a moment that it could be shown that religious views formed the basis for even most of the voters who supported Prop 8.  So what?  Are we to understand that the votes of California’s faithful shouldn’t be counted?

So just in case there is a study, Pugno wants to make sure we know he doesn’t care. It doesn’t matter to him that religious beliefs were used to take a right away, or that those religious groups conspired to ensure the proposition’s passing, or that those groups all used the same messages of demonization to appeal to their congregations. No, Pugno just wants to ensure people can vote the way their hearts pastors tell them miseducate and frighten them to vote.

In any event, the plaintiff attorneys then changed gears and made another run at proving their claim that gays and lesbians are a “politically powerless” minority in California, entitled to extraordinary protection under the US Constitution.

Andy neglects to mention they did a pretty good job. In fact, he tries to say the opposite.

They hit a wall there, too, when they attacked California’s initiative process.  Their theory: that allowing the people to vote for or against ballot initiatives is unconstitutional because the voters on the losing side don’t get their way.  So, they claim, Prop 8 violates the rights of gays and lesbians because they couldn’t get enough votes to defeat it at the ballot box.  Seriously?  But the notion that gays and lesbians can’t win ballot contests in California fell apart when, on cross-examination by Prop 8 Legal Defense team member David Thompson, it came out that in every election in recent history where voters were asked to pass initiatives to increase discrimination against homosexuals, the people of California rejected them.

Actually, they claimed, using the witness’s own writings, that there is not a proper check on ballot initiatives because they allow the majoritarian will to outweigh the representative authority of the legislature and the jurisdiction of the courts.

Pugno’s right that Prop 6 didn’t pass back in the 70s, but he ignores all the times that voters did vote to discriminate against same-sex relationships. (Remember…? That’s the whole point of the trial? Hellloooo?)

The plaintiffs continue to throw things against the courtroom wall in hopes that something will stick.  The trouble is, their target isn’t the law. They’ve missed the mark in terms of legal arguments and therefore have to rely on strictly emotional appeals for sympathy.

Actually, they’ve made quite a few compelling arguments, and also provided plenty of evidence to combat any “arguments” the defense still plans on making.

Now, let’s see Andy remind us how awesome we are. We should be so lucky!

But no matter how loud the pleas for sympathy become, there is simply no legal basis for the fantastical, unsupportable claim that the homosexual community in California is “politically powerless.” Does Equality California, California’s biggest gay lobby organization, think of itself as powerless? Does the Human Rights Campaign, which featured President Obama at their latest dinner, believe they are politically powerless?  Are we to believe that these groups are politically powerless despite their ability to raise $43 million to oppose Prop 8, and to attract the support of the entire political establishment, Hollywood and the media?  Not with a straight face we can’t.

Is that a pun? You don’t think a group’s politically powerless when despite being a minority with a lot of support, they still lose? Do you even believe that such a thing as “politically powerless” exists?

I loved during Kenneth Miller’s cross-exam when, after he cited the passing of hate crimes protections as evidence of political power, Boies asked, “Would you view the passage of Megan’s Law as demonstrating… the political power of little girls who are raped and killed?” Miller said, “No.”

I have to say, Pugno’s getting very verbose these days. These posts go on forever. Maybe they just seem so long because they are so lacking in substance.

The afternoon brought the testimony of our second witness, David Blankenhorn, president of the Institute for American Values, who provided his expertise on the institution of marriage, fatherhood and the family structure. He rejected the suggestion by plaintiffs that marriage is purely a private construct between two adults.  Rather, he explained, marriage between a man and woman is a globally recognized and historically public institution.  In fact, it is the only social relationship with a “biological foundation” found in the complementary nature of man and woman and their ability to procreate.  Across all cultures and times, no other human relationship has been more closely connected to the ultimate goal of uniting the biological, social and legal dimensions of parenthood for the raising of children.

Actually, he didn’t have any real expertise. He just had a lot of opinions. He couldn’t cite support for any of them and was astonished he would even be asked to do so. He’s an expert, you know! He shouldn’t have to defend his expertise opinions beliefs.

As held by more than 50 experts in the field, the best environment for a child is to be raised by a biological mother who is married to her biological father.  This is not to say that only a mother and a father can do a good job raising a child.  But marriage serves to promote the ideal.

What field? And are those experts still alive? Most of the studies he was citing were 40-50 years old.

I’d like to take this moment to again voice my utter contempt for these claims as an adoptee. I know nothing about my biological mother or father and I turned out pretty okay. I dare anyone to suggest my parents weren’t and aren’t stellar.

Blankenhorn also testified that allowing same-sex marriage would contribute further to the already-existing “deinstitutionalization” of marriage, which means the process of unraveling the purpose, rules and common understanding of the marriage institution as a whole.  “Deinstitutionalizing” marriage, the witness explains, leads to higher rates of out-of-wedlock birth, more unmarried cohabitation, higher divorce rates, and more children being raised outside the scope of optimal conditions provided by their biological parents.

I thought this was so funny when I was reading the transcripts. Blankenhorn admits that marriage is falling apart all by itself, but that’s just an excuse to not add fuel on the fire by allowing more people to get married (as in us). It’s our fault, but we’re blaming you even though you’ve always been excluded from it. Besides, it’s your fault just for suggesting such a thing as same-sex marriage. You’re ruining it for the rest of us. Yeah, shut up.

Doesn’t marriage mean, in the eyes of the law, whatever the law says it means? Isn’t the “institution” of marriage whatever the law wants it to be? This whole idea of some greater “institution” is just bogus. It’s all rhetoric; no substance.

Outside the courtroom, the plaintiffs’ attorneys sharply criticized the notion that redefining marriage to include homosexual relationships would contribute to the deinstitutionalization of marriage.   That argument, they said, is like saying that extending the right to vote to women “deinstitutionalized” the voting process.

Yeah, and it was a good argument. Look at this snappy retort (i.e. Nuh-uh!):

Nice sound bite, but the analogy fails.  Securing women’s right to vote didn’t do a thing to change the meaning and importance of voting.  By contrast there is no doubt that re-defining marriage to include homosexual relationships would ipso facto divorce the institution itself from its fundamental, biological foundation.  Nice try.

Stop making stuff up. It hurts enough to be discriminated against. Having to watch you make a fool of yourself is just a twist of the knife.

[Brian Leubitz also responded to this post over on the Prop 8 Trial Tracker.]



Protect Marriage, Day 10: Quantity, Not Quality! …Oh Wait!

On a day when their witness got confused about whether Prop 8 passed or not, the defense is trying eagerly to hide the fact that Boies continues to decimate their “expert” witness. (See my roundup here.) Still, Andy Pugno is here to remind us the extent of their delusions and their ability to see everything in a positive light. On a day he shouldn’t be too proud, he’s offered us one of his longer posts. Incidentally, little of it has to do with today’s proceedings. Here we go!

A Vigorous Defense for Traditional Marriage

As lawyers for the plaintiffs challenging Prop 8 neared the conclusion of their arguments and prepared to “rest their case” today, the court next turned its attention to the defense case put on by the Prop 8 Legal Team.

Okay, now, I’ve made fun of the mocking quotes before. In fact, I just dedicated a whole post to them. And I created a witty little picture for them with real pictures of real mockingbirds. And I get that they normally use them to be demeaning to us, the “politically powerless” “LGBT” community and our “movement” for same-sex “marriage.” But “rest their case”? Really? You’re now mocking basic legal terms? Perhaps you’re getting so desperate you have to start convincing your followers that the whole justice system is a joke to downplay your impending loss. Or maybe you just don’t understand basic legal terms. Or both, as we shall see.

But that doesn’t mean our legal defense team, while waiting our turn to present the official defense, hasn’t been vigorously fighting to uphold Prop 8 during the plaintiffs’ case-in-chief.  In fact, when the courtroom came to order this morning the time clock tells me that while plaintiffs have logged 28 hours in presenting their case, the defense team has logged nearly as much time – 27 hours – cross-examining the plaintiffs’ witnesses and introducing our own evidence into the record.

Yes, I think they found every single outdated piece of research they could so that they could waste our time asking the witnesses if they were “reasonable.” It definitely seems like Boies isn’t hedging on the cross-exams either, so I don’t really know what Pugno’s point is here. Perhaps he’s just running out of “bright sides” to look on and so he’s boasting his team’s “effort.” I feel real swell when I get a grade of “E” on Dance Dance Revolution. (It means I didn’t work hard enough.)

The fact that Pugno thinks “case in chief” is supposed to be hyphenated reinforces my suspicions that he’s not keen on his legal terminology.

Before resting their case, plaintiffs began Week Three this morning with a “document dump,” which means they admitted into the trial record a slew of documents they view to be evidence to support their case.  Nothing earthshaking in and of itself, but the subtext is utterly astounding.

Yes, there were a lot of documents. For not being earthshaking, defense counsel Nicole Moss objected to many of the submissions. I wonder what the big deal is if there’s nothing “earthshaking” there. Oh, yeah, and Judge Walker overruled all but one of her objections. Nice try, Ms. Moss.

Despite supposedly winning our appeal in the Ninth Circuit to protect the privacy of our internal Prop 8 campaign records, the trial judge has still forced us to hand over literally tens of thousands of pages of sensitive campaign memos, emails and other documents to the plaintiffs.  After sifting through our internal documents for facts they think aid their case, they had them labeled as trial exhibits and added to the court record.

Awww, poor babies! With nothing to hide, it must be so awful that you had to share all those documents! It’s just not fair that the plaintiffs are actually trying their case!! Why can’t they just shut up and let you preserve discrimination? Whhaaaahhhh! (By the way, “discrimination” is what your witness called anti-gay laws like DADT and DOMA today, right? Just wanted to check.)

So if the Yes on 8 campaign has been forced to open up its internal campaign records for this court trial, then shouldn’t also the No on 8 campaign have to do so, too?

I think there’s a dramatic difference here. The Yes on 8 documents demonstrate the motives for the proposition, which goes to what the plaintiffs are actually trying to show. What does it matter how it was opposed?

Well, although we filed a motion some time ago asking the court to order the “No on 8” campaign to disclose to us the same types of documents as those we had to disclose to them, the court has refused to rule on our request and thus we have been prevented from examining even one single document from the opponents of Prop 8.

The answer is that the No on 8 documents are probably largely irrelevant to the defense’s case. This is just another opportunity to demonize the court itself. It’s a defensive tactic. Rather than continuing to openly chastise their opponents, they’re now trying to diminish the court proceeding so a defeat doesn’t look as bad. They’re lowering expectations, but I’m not sure it’s even working.

I just want to point out that we’ve now been through six paragraphs, which is half of Pugno’s post, and he has not yet mentioned a single detail about the day’s proceedings. Watch this trend continue.

This is the sort of striking disadvantage we have suffered all along even before trial started and now during trial.  Since the moment the case started, the court has consistently sided with our opponents as they continue to “railroad” their case against the people’s right to vote for traditional marriage.

The defense only has one trick in their bag: play the victim. They can’t get any further playing victim to the opponents of Prop 8, so now they’re playing victim to the court itself. This is new. We have not heard any complaints like this before now, so the only logical explanation is that it’s a last-ditch effort to rally sympathy to their cause. It’s pathetic that this is the best Pugno can come up with.

Another example:  For months the plaintiffs have been practically foaming at the mouth to get our campaign manager, Frank Schubert, onto the stand to be questioned as a witness.  Having come up empty-handed in their search for evidence of “anti-gay bias” in campaign records, they suddenly dropped their plans to call Mr. Schubert to the stand.

Actually, it was because Schubert refused to answer questions during depositions. And not just a few. He refused to answer 76 questions. What’s the point of calling a person to testify who won’t say anything? By the way, what does he have to hide? Now watch this sneaky little tactic they pulled and how they’re playing it:

But when we announced plans to call Mr. Schubert as our own witness to help defend Prop 8, they filed a motion to prevent him from testifying at all.  They got their chance to question Mr. Schubert on the stand but when they saw the whites of his eyes, they blinked.

That’s because the plaintiffs would have had one day to review the huge mass of documents they had previously been refused access to and to prepare the cross-examination. I doubt the defense had any actual expectation of calling Mr. Schubert; this was likely just a little scheme to try to embarrass the plaintiffs. Given that all they’ve done is rouse further suspicions about Mr. Schubert and all the questions he refused to answer, I don’t think it worked.

Note: Pugno still has not revealed a single detail about any of the documents they spent over two hours reviewing or any of the testimony of their “expert” witness, Dr. Miller. Finally, three-fourths through his post, we get some detail. (Perhaps Pugno was hoping his followers would not read down this far?)

After plaintiffs rested their case today, our legal team called to the stand our first witness, Dr. Kenneth Miller, a political science professor at Claremont McKenna and expert on California politics.  Dr. Miller’s task was pretty straightforward: to lay out the reality that gays and lesbians in California have achieved enormous political power at all levels of government.  Why is this important?  Because to trigger the highest level of constitutional protection in favor of their claims, our opponents need to prove that gays and lesbians are a vulnerable and “politically powerless” minority.

And was he able to do that, despite the fact that Boies pointed out that “not one gay or lesbian has ever been elected to statewide office in history?”

To show that homosexuals are not politically powerless, Dr. Miller provided “striking” examples of the many ways in which they have won support for their political agenda in California, claiming allies such as federal officeholders (both US Senators and President Obama) , local and statewide elected officials (more than 30 local officials, mayors of the top three cities, and every single Constitutional officer); organized labor (more than 54 such groups opposed Prop 8); major newspapers (21 of 23 opposed Prop 8 while the other two took no editorial position); major corporations (including a consortium of Silicon Valley businesses), and the fact that the “No on 8” campaign actually raised more money than the “Yes” side.

Miller’s claim was that access to legislators, visibility of allies, and money were enough to constitute political power. Apparently, having our rights constantly voted away despite the support we have isn’t an indication of anything. But then, what does Miller know? Judging by the number of times he answered, “I don’t know” to Boies’ cross-exam, I’m going to go with “not much.”

Far from being “politically powerless,” the evidence has firmly established that the political influence of gays and lesbians in California has become quite powerful.

That is, except, of course, for the great details Dr. Segura outlined last week about political powerlessness that Dr. Miller couldn’t comment on. After reading that much Pugno—we’ve actually arrived at the end of his piece (didn’t you notice that conclusive last sentence?)—I’ll leave you with an excerpt from Shannon Minter’s recap juxtaposing the two testimonies.

This simplistic analysis contrasted sharply with the nuanced approach adopted by the plaintiffs’ expert, Professor Gary Segura, in his testimony last week.  Prof. Segura emphasized that to understand a group’s political power, one has to consider not only the number of legislative victories or the number of elected officials, but also the broader context-including factors such as the incidence of anti-gay hate violence, the number of initiatives attacking the civil rights of gay people and our persistent inability to defend ourselves against them, and the long history of government-sponsored discrimination against gay people in employment, which continues to the present day in the military’s ban on openly gay servicemembers. This rigorous attention to detail was notably lacking from Prof. Miller’s testimony.

In fact, under Prof. Miller’s definition of power as the ability to attract any favorable legislative attention, it’s hard to think of any group that would not qualify as politically powerful.  Certainly, neither race nor gender would be a suspect classification under the Constitution, since many federal and state laws prohibited discrimination on those bases before  the United States Supreme Court held that women and racial minorities were sufficiently politically powerless to merit constitutional protection.  In contrast, we still do not have a single federal law that prohibits sexual orientation discrimination, and, most states still permit employers to fire workers because of their sexual orientation.  If Prof. Miller’s analysis were correct, no type of discrimination would be subject to heightened constitutional scrutiny.

[Brian Leubitz also responded to this post over on the Prop 8 Trial Tracker.]



Protect Marriage, Day 9: Umm… We’re Still Right!

The longer this trial progresses, the easier it is to see why Protect Marriage doesn’t want you to actually see the details of the proceedings. In fact, it might even be fair to assume that the reason yesterday’s cross-examination lasted five hours is just to make navigating Dr. Herek’s testimony unwieldy. It’s actually pretty easy when you skip over all the out-of-context excerpts from studies 15-50 years old and the defense’s repeating questioning of “is this reasonable?” For more on these issues, check my previous posts from yesterday: here and here. But for now, let’s see how Andy Pugno is spinning things today.

Week Two Wrap-up

On Friday the plaintiffs called to the stand a witness to testify as an expert in social psychology and sexual orientation.  Dr. Gregory Herek, a University of California, Davis researcher, appears to be the last in a long line-up of the plaintiffs’ expert witnesses.  Initially, Herek gave his professional opinion that sexual orientation is an unchangeable trait for gays and lesbians.  This is a critical issue in the plaintiffs’ case.  A key legal element of their constitutional claim requires them to prove that sexual orientation is “immutable” (cannot be changed) in order to have the same high level of constitutional protection as for race and gender.

If the court sides with the plaintiffs on this and establishes a new legal precedent declaring homosexuality to be “immutable” like race and gender, it becomes far more difficult for any state to continue the traditional definition of marriage.

This is all true! But that “initially” doesn’t bode well for what’s coming.

However, under hours of piercing cross examination by Prop 8 defense attorney Howard Neilson, Jr., Herek admitted that the evidence that homosexuality is genetically wired is “weak,” that “we don’t understand or know the origin of sexual orientation in men or women,” and that “no one knows what causes homosexuality.”  In fact, he said there are at least 3 different ways of defining sexual orientation, and conceded that there is actually no scientifically unambiguous definition of homosexuality.  He also explained that the number of categories of sexual orientation (straight, gay, lesbian, bi-sexual, etc.) has expanded and continues to grow as certain groups find new ways to describe their sexual orientation.

“Piercing”? I think “denting” would be too generous. There is a lot to unwind in this paragraph…

First, what is understood about sexual orientation is that a lot of complex factors affect it. We know that it’s not entirely genetic (hence the “weak”), but we do know that certain genetic factors affect it. Twins studies have shown to be quite conclusive in this regard.

It would be true to say that no one knows exactly what causes any sexual orientation. Homosexuality is not unique; how it presents is not any different than heterosexuality or bisexuality. (By Pugno’s logic, there’s no way to defend “traditional marriage” because we don’t know the cause of heterosexuality, and heterosexuality could change! I bet he doesn’t see it that way.)

Further, Herek did not say there are three “different” ways of defining sexual orientation. He said (MANY TIMES) that defining sexual orientation requires considering at least three components together: behavior, attraction, AND self-identification. There is no ambiguity in how sexual orientation is defined, and Dr. Herek reiterated this many times. The challenge for researchers is that sometimes it’s not feasible to consider all three components. Dr. Herek gave the example of someone studying STIs would probably focus solely on behavior. People also aren’t always aware of their mental processes and can convince themselves of many things (*coughreligioncough*).

Heterosexuals are also known as “straight” and “breeders,” so does that mean heterosexuality is being redefined? No. A lot of new identities, like the youth-popular “queer” that was discussed, echo people’s struggle to avoid exactly what the defense was trying to do: boxing people in. I can call my sexual orientation whatever I want. I know how I feel, I know how I act, and I know how I want people to understand and recognize me. If I called my sexual orientation “jackie,” I would be no less gay.

This proves up our point: If the meaning of sexual orientation is fluid and constantly changing, how can it possibly be likened to race, gender or any other “immutable” trait that invokes the highest level of legal protection?

Yeah, and like religion! Because nobody’s beliefs are ever fluid or changing. (“Proves up?” Does this guy even know how to talk?)

And let’s make an important distinction here. Just because sexual orientation can change doesn’t mean it can BE changed. It’s easy for Pugno to spin this, but it doesn’t represent what Herek testified.

On a practical level, a major problem for the plaintiffs’ case is the fact that one of the plaintiffs testified that she has, in fact, changed her sexual orientation from heterosexual to homosexual.  Though now in a same-sex relationship, she testified last week that she was formerly married to a man whom she loved and with whom she had children.  But now she is a lesbian.  That sounds like a change.

HEY! I’m straight! Look, I’m straight now. I like girls now. My friend Laurel? I totally love her. I could live happily with her for many years! I’m a heterosexual! I’m changed!

What a pathetic argument. Way to ignore Dr. Herek’s whole point about sexual orientation not having to be consistent for a whole life, but just for an “enduring period of time.”

By the way, I’m gay. I changed back just then. But I do totally love Laurel.

So as Week Two comes to a close in this trial, and as plaintiffs appear to be wrapping up their case, there is no question that the thrust of the plaintiffs’ case has been a series of emotional appeals, rather than a legal case for changing the meaning of marriage. Testimony about witnesses’ personal feelings and changes of heart—no matter how moving and emotional they may be—are simply not legal evidence that the United States Constitution gives gays and lesbians the right to redefine marriage for the rest of society.

That’s not what’s at stake. Apparently Pugno forgot that his responsibility is fulfilling a burden of proof that there is a compelling reason to continue discriminating against gays and lesbians. Most of those arguments (assuming they ever had any merit, which they didn’t) have been thoroughly debunked. I kind of hope Pugno’s false confidence makes next week’s proceedings just hilarious.

In fact, when the video cameras stop rolling and the sensationalism of this trial fades away, it will become clear that plaintiffs have essentially presented a political argument—not a legal claim.  Such a case belongs in the public debate, not a courtroom.

Yawn. You mean the sensational video cameras you’ve worked so incredibly hard to hide? I’m pretty sure that’s the only reason it’s not as public a debate as it could be. Thanks for that, Andy.

What a load of bull.

[Brian Leubitz also responded to this post over on the Prop 8 Trial Tracker.]



ADF Invokes Same Demonization Tactic It’s Trying To Downplay

I haven’t written as much about the Alliance Defense Fund, but I’m sure many of you know that they are a Christian legal group working with Protect Marriage to defend Proposition 8. They also put out their own twisted interpretations of the proceedings and other propaganda to rally support for “traditional marriage.”

If you’ve been following the testimony at all, you know that the theme of children has come up quite a bit. There has been a history of demonizing gays and lesbians as being linked to pedophilia (and recruiting!) and Yes on 8 continued this theme with their constant messages of “Protect Our Children.” The plaintiffs’ experts’ testimony has all verified that gays and lesbians pose no risk and these tactics are used just to play on people’s fears and misunderstandings so that gays and lesbians continue to experience discrimination.

Now, I found this interesting document published by ADF that one ADF tweet called a “Call To Action.” The action? Prayer. (Click to embiggen!)

In the spirit of this blog, I need to take a moment to make fun of this, but the more important relevance is below. ADF wants everybody to pray together every morning at the same time. I don’t know if there are specific tactics that make prayer “more effective” (0 • x = 0) that I don’t know about, but apparently praying across the country at the same time makes a difference. I’d be pissed if I was on the west coast and had to get up early just to pray at 7:30 just so I would be praying simultaneously with east coast folks at 10:30. I’m sure prayer every day is making a big difference. God is surely going to intervene in these proceedings, because discrimination is just as important to him as it is to the people who worship him. (Note: Belief is not self-serving at all.)

But anyways, as I analyzed the handout that ADF made for Bible study groups, I noticed something more alarming. A lot of it is the same self-victimization nonsense that we’ve been hearing. But take a look at that third bullet under “What’s Also at Stake?”:

THE INSTITUTION OF MARRIAGE. Will marriage be treated as nothing more than a legal arrangement, subject to constant reconfiguration to satisfy the whims of adults, without regard for the important interests of children and social stability?

Unbelievable.

Even as they seek to separate themselves from the fallacies of messaging invoking children, they are sending out new propaganda invoking children!

It’s subtle, but it’s there!

Alliance Defense Fund, shame on you. It’s totally clear that the motivations of you and your ilk is to continue the demonization of gays and lesbians. Even though the testimony over the past two weeks has made it clear that children are not at all at risk, you continue to use them as a tactic to scare your followers into persisting in their discriminatory views.

Just a reminder to everyone out there: our lives are on the line.



Protect Marriage, Day 8: Freedom of Religion = Freedom to Discriminate

You know, it’s both interesting and frustrating. As the trial proceeds, it seems that Andy Pugno is losing his cool. It’s nice to see him get defensive, but he gets snarkier the more defensive he gets. His latest post on Protect Marriage’s blog is absolutely ridiculous. Let’s get to it.

What First Amendment?

Over the last couple of days, we have been treated by the plaintiffs to astonishing intrusions into areas supposedly protected by the First Amendment, including religious freedoms and the political rights of free speech and association.

Let’s be clear. At no point in time has there even been a suggestion that anyone was not entitled to their beliefs or the right to speak them. This is distortion of an incredible magnitude that the religious right is quite fond of. The plaintiffs are effectively demonstrating that any vote for Prop 8 is rooted in prejudice, if not overt animus, fueled by misinformation and bad science used intentionally to rally public fear and stigma of gays and lesbians, arguing that there is no compelling reason to pass such a law other than to intentionally discriminate against a group that does not have the power to protect their own rights. The defense is trying to say “it doesn’t matter, they’re allowed to believe whatever.” That’s not a compelling defense for Prop 8, but it’s all they have. This is nothing but self-victimization, but in no way is anyone’s constitutional freedoms of speech or religion on the line in this trial.

Let’s see how Pugno tries to suggest they are.

It started Wednesday when a Stanford political science professor testified that, in his opinion, organized religion in the United States is such an overwhelming threat to gays and lesbians that they should be declared a vulnerable “minority” entitled to extraordinary legal protections under the US Constitution.  In short, he concluded, “religion is the problem.”

Pugno loves his mocking quotes. How is a group not a minority if they’re, at best, 4-7% of the population and their rights are constantly voted on by the “majority”?

The way he words this also craftily draws a sharp dichotomy between gays and lesbians and the monolithic “religion.” In some ways, this is what it looks like politically, but I’m sure Pugno does this to make sure his supporters see all gays and lesbians as satanic atheists. He ignores the fact that many gays and lesbians are quite spiritual and participatory in religion, as well as the fact that some religious groups (smaller ones, unfortunately) have been quite supportive. This is all about taking umbrage on behalf of religion to further Prop 8 supporters’ self-victimization.

As a result of this “problem,” the witness testified, gays and lesbians in the United States are “politically powerless,” a legal term of art meaning that they are at such a disadvantage so as to be incapable of defending themselves in the political process.  Of course, the notion that the gay and lesbian community is politically feeble should sound backward to anyone, especially living in California.  Common knowledge tells us that gays and lesbians wield substantial political power in our state, both in passing major gay rights legislation and in amassing opposition to Prop 8.  Just one example:  While the California Teachers Association and other labor unions gave millions to the No on 8 campaign, not a single labor union ever contributed to the Yes on 8 campaign.

A legal term of art? He sure will use any turn of phrase he can to make it look like he’s not losing this case. Politically powerless is not just a “legal term of art,” but a key legal term in determining whether sexual orientation should be a suspect class. And when the case is question was an unprecedented vote to strip a group of a right it already had, how can you see that group as anything BUT politically powerless? And your argument is that the unions were on our side? How convenient he didn’t mention the massive covert collaboration between religious organizations to preach and campaign “in every zip code.” Oh wait, he does, but he uses those snarky quotes again to play it down:

Of particular concern to the witness was the “breathtaking” numbers of people who volunteered their time in the campaign to help carry Prop 8 to victory.  The volunteer effort was so strong, he said, that it was impossible for gays and lesbians to defeat Prop 8.  And so Prop 8 violates the U.S. Constitution.  Really?  So let me get this straight.  If you lose a campaign because you can’t persuade the majority of people to rally behind you, then you have a constitutional right to nullify the votes of the majority.  Hmm.

It boggles the mind, truly.

If you lose a campaign for your own (formerly) constitutionally protect civil rights? Then, yes. It’s not mind-boggling at all.

Later Wednesday, lawyers for the plaintiffs started submitting evidence of the “improper” influence of Catholics, Baptists, and other major religious communities in support of the traditional definition of marriage.  As though the First Amendment itself had disappeared, the court allowed their lawyers—over the strenuous objections of our legal defense team—to pry into the internal records of churches, communications between church members and church leaders, and other similar documents revealing these religious organizations’ commitment to protecting traditional marriage.

Once again, Pugno neglects to mention anything about the Mormon church. Perhaps he knows there’s nothing he can do to play that one down, or maybe, despite all the support they gave to the campaign, they’re just not his audience any more. All of those documents pertained to the campaign, and it is bogus to think that just because they’re “religious” documents that they somehow get some extra special protection. I’m very glad the judge didn’t fall for that. It’s petty and pathetic and most importantly, an abuse of the privileges and respects that have been accorded religion.

For anyone who values the right to associate with others in a church community and freely exercise the tenants of their faith without fear of being dragged into court because of their beliefs, yesterday afternoon’s blitzkrieg by the plaintiffs into our previously protected religious and political freedoms was terrifying to behold.

I love it. They were “previously” protected. There was nothing terrifying. Freedom to hold beliefs does not mean complete immunity from accountability when you’re trying to encumber others’ civil rights. Let’s call this kind of language what it is: whining. Pugno is a cry-baby sissy pants. Yeah, I said it.

Then Thursday, for the first time (we believe) ever in a court of law, a proponent of a voter initiative was put on the stand to be interrogated under oath about his own political, moral and religious views.  Not only was the Prop 8 supporter forced to reveal his political and religious views under penalty of perjury, but he was further forced to defend and substantiate his views so the court can decide whether his views are “improper.”

More like illegitimate and motivated by animus. I guess I wouldn’t call them “proper” either. Despite desperate attempts to distance Tam from the Yes on 8 “core group,” it was clear they worked together and that the language he used confirms all of the messages of stigma and demonization that previous testimony described. He was your buddy, Pugno; he’s yours to deal with.

Clearly the plaintiffs will go to any lengths—even if it means sacrificing the precious protections of the First Amendment—to achieve their goal of invalidating the vote of the people.

And clearly the defense will go to any length to play the victim to avoid taking any accountability for their actions.



Protect Marriage, Day 7: We Don’t Get It (And That’s Our Case)

Apparently, Pugno had the chance to get some more spin up about yesterday’s proceedings, and he’s mad! Let’s take a look.

A Head Shaker of an Afternoon

Religious bigotry found an inordinate amount of expression in the seventh full day of testimony by the plaintiffs.  According to their witness, Stanford professor Gary Segura, the homosexual community is “politically powerless” and can point their collective finger at religion for their supposed lack of political success. The essence of their testimony is that the federal courts should make religious and moral views an illegitimate basis upon which voters make their decisions and cast their ballots. Segura took particular aim at the Catholic Church and Southern Baptists for holding religious views that, he believes, colors societal prejudices that gays and lesbians are “inferior.” He said it is almost impossible for gays to overcome the religious views of churches.

Well, Andy, mock as you may, “politically powerless” is a technical term. I don’t think this case has anything to do with what voters base their decisions on. Yesterday’s testimony was about a coalition of power built up specifically to target civil rights (and by the way, based on scientifically illegitmate points of view). I can’t help but note that Pugno intentionally omits the Church of LDS, who probably was portrayed the worst in the testimony. Is Protect Marriage trying to distance themselves from their old good friends, the Mormons?

And by the way, if you say gays and lesbians can’t raise children, aren’t you calling us “inferior” at raising children? And if you say gays and lesbians can’t honor the institution of marriage, aren’t you calling us “inferior” at committed relationships? And if you’re saying the will of the majority should determine the rights of the minority, aren’t you inherently saying we aren’t capable of speaking on behalf of ourselves? No, there are no societal prejudices that we’re “inferior.”

Upon another outstanding cross examination by Prop 8 defense attorney David Thompson, it became clear to any reasonable person that gays and lesbians have had substantial amounts of political capital in their grasp for at least the last decade, the two initiatives (Prop 8 and Prop 22) on same-sex marriage notwithstanding.

Just look away! If you take out all the bad stuff, you’re only left with good stuff! Actually, my favorite response to this claim came from the expert witness, Dr. Segura himself. He said: “It’s like saying a person with lots of prescriptions is very healthy!

Much of today felt as if the plaintiffs had dragged us down the proverbial rabbit hole into an alternate world of fantasy where up is down. In the real world, it is impossible to square the claim that homosexuals do not enjoy significant political power in California when the newly-elected Assembly Speaker is an openly gay man and numerous state and local elected officials are openly homosexual. California has extensive domestic partnership protections which provide all the legal provisions of marriage, and the Governor, Attorney General, both our United States Senators and Superintendent of Public Instruction all aggressively opposed Prop 8. In 2008, our opponents raised $43 million to attempt to defeat Prop 8 and outspent us by over $3 million.  Equality California (the state’s most influential homosexual rights lobby) secured the passage of 11 separate pieces of legislation benefitting homosexuals.  And homosexual political advocates have the support of Hollywood, labor unions, the technology sector, leaders of corporate California, and nearly every single newspaper editorial board in the state.

It’s a fantasy of an alternate world of a rabbit hole. If he didn’t write so much of it, I’d say I’m glad Pugno doesn’t write fiction.

Yes, it is wonderful that the new Assembly Speaker is an openly gay man (and thanks for using his name). Pointing this out is reinforcing Segura’s point. If you can count on one finger the number of people who are offering representative power, that’s a clear sign that they’re exceptional. In addition, most of the other folks he listed did not actively (let alone aggressively) do much of anything to oppose Prop 8. Segura pointed out that most of the 11 pieces of legislation were non-binding resolutions. And yes, a lot of those groups are supportive, but we still lost. Gosh, Andy, thanks for making our case for us! (For future reference, you can’t polish a turd.)

Add to that laundry list the fact that the United States Speaker of the House, Nancy Pelosi, is a Democrat from the most gay-friendly region of California and that there is not a single state with more anti- discrimination laws specific to homosexuals on its books.   I’m left shaking my head how a political science professor from a prestigious university reaches the conclusion that homosexuals are politically powerless in the United States, let alone California.

When you’re trying to claim we’re not inferior, comparing our progress to laundry probably doesn’t help your rosy picture much. Segura pointed out that both our President and Speaker Pelosi have been less than stellar allies. He pointed out that she has been resistant to introduce gay-friendly legislation. Apparently Pugno missed the part about how there have been over 200 referenda on gay rights, and we’ve lost about 70% of them, including all bans on same-sex marriage. What fantastical alternate rabbit hole has Pugno been living in?

Apparently Professor Segura’s conclusion that gays are politically powerless hasn’t reached the gay community itself. You’d think that a group that sees itself as powerless wouldn’t be eager to push a ballot initiative on same-sex marriage. Yet that is exactly what groups like Equality California, the Courage Campaign and others are focused on doing – if not for 2010 then for 2012.

So… Pugno wants people to have the right to vote, but only on things he likes. If referenda are used against us, it’s pretty much the only tool we have to fight back. We have to try. We have to keep fighting for our lives. Doesn’t this kind of make Pugno sound like some epic war-drama villain? The good guy keeps getting smacked down but keeps getting back up… WHY DO YOU PERSIST?! SUBMIT TO MY TYRANNY! NEVER! Freedom must prevail!!

Only down Professor Segura’s rabbit hole does the fantasy of gays lacking political power exist, leading to the conclusion that gays and lesbians are a defenseless minority entitled to extraordinary legal protection.  In the real world, gays and lesbians are one of the most powerful, effective special interest groups who wield power far in excess of their numbers. The fact that they have amassed untold millions of dollars to fund a legal team that includes dozens of lawyers and some of the nation’s top litigators to come into federal court claiming to be powerless is rich with irony.

Oh yeah, we’re so powerful. That’s why we can still be fired just for who we are in 29 states. That’s why the federal governments respects us so much as to honor our relationships the way they do straight couples.

Poor naive, conservative capitalist. You only see power as money. Someday, you’ll see that the wealthiest people are those who have freedom and happiness. It’s been almost 234 years, and some people still don’t get what Jefferson was trying to say…



Protect Marriage, Day 7: The Truth Hurts, But We’re Laughing It Off

I wrote earlier about the heavy and important testimony this morning, but let me be very clear about what happened this afternoon. Despite fervent objections by the defense’s Mr. Pugno himself, internal documents were admitted as evidence that unveiled a vast conspiracy between the Mormon Church (aka LDS), the Catholic Church, and Protect Marriage to mobilize a coalition against same-sex marriage. Julie Rosen called the afternoon “explosive.”

Mr. Pugno called it laughable.

Let’s take a look at the latest Protect Marriage spin. It’s clear they’re on the defensive today, so I might not have to write as much in response.

Religion Put on the Stand

Today, the legal challenge to Prop 8 took an ugly turn as religion itself was put on trial. Plaintiffs’ witness Gary Segura, a Stanford University political science professor with expertise in the area of the political power of minorities including homosexuals, summed it up when he said “religion is the chief obstacle for gays’ and lesbians’ political progress.”

It’s only ugly for the defense.

In trying to make the case that homosexuals are a vulnerable minority with no ability to achieve and secure success in the political system for their interests, Professor Segura blamed hostility, political opposition and even violence towards gays and lesbians on the teachings of major religious denominations. He further testified that there is no more powerful organization in the United States – save the government – than the church. Particular scrutiny was given to the official religious doctrines of the Catholic Church and Southern Baptists about marriage, family and sexual relationships. Therefore, according to his logic, gays and lesbians must be given special legal protection by the U.S. Constitution against religion itself.

Remarkably, the only spin is the conclusion Pugno tries to make. No one is trying to get special protection “against religion.” The incredible revelations we had about religion today speak only to the incredible power that religion exerts in a pointedly anti-gay fashion, and consequently the powerlessness of the gay community to combat that coalition against our rights.

If it weren’t such a serious and troubling matter, their line of attack against people of faith would be laughable. To suggest that the people of California cannot consider their own political, moral and religious views when casting their vote on Prop 8 is preposterous. Every election, many issues are presented to voters that involve moral issues, including stem-cell research, the treatment of animals, assisted suicide, the death penalty, health care reform and so on.

To translate Mr. Pugno’s spin: It should be okay to discriminate if your discrimination is motivated by religion. Segura’s testimony included reminders that religion was used to discriminate against women and people of color too!

And let’s call it out now. There was no attack against religion. Pugno was not very happy that all these internal documents between church officials were brought to light, but there was no attack against religion. If religion’s reputation was maligned today, it was only because of the actions of the religions in question.

In any event, religion has taken the stage, front and center, in the battle over the constitutionality of Prop 8, and is being portrayed as an illegitimate basis for supporting traditional marriage. Religious bigotry surely found expression in today’s presentation by the plaintiffs.

Bigotry? I didn’t see any “intolerance” in today’s proceedings. The witness called a spade a “spade.” Instead of spades, Segura was discussing a vast conspiracy to surreptitiously rally the support of religious groups against gay rights. The truth hurts, Andy, but calling it out isn’t bigotry.

Before he signed off his post, he had to address this morning’s discussions on reparative therapy.

The trial testimony also swerved way into “irrelevant” territory today when plaintiffs called to the stand a young man who was, as a child, forced by his Christian parents to undergo conversion therapy by a therapist because of his sexual attraction to men. No matter that this witness has never resided in California, was wholly unfamiliar with the Prop 8 campaign, was not a willing participant in his conversion therapy, and emancipated himself from his parents as a minor. What the personal experience of a person from Colorado who experienced a deeply troubled family life has to do with the constitutionality of Prop 8 is beyond me. What is clear is that today, however, the plaintiffs put the role of religion clearly in their sights and are likely to fire away at the legitimacy of religious and moral views, as well as the votes and voices of those who hold them.

There’s another snarky use of quotes I don’t get. Since he uses them to deligitimize what’s between them, he must be trying to say “not irrelevant,” which means Andy is admitting there was relevance to the testimony.

That middle “sentence” is actually all true, despite being a fragment.

Ryan Kendall (he’s a real person with a real name) testified about the way he constantly suffered religiously-motivated admonishment for his sexual orientation. This was based on an unscientific belief that his orientation can and should be changed. Such points have incredible relevance, no matter how eager Pugno is to dismiss them.

In the interest of full disclosure, this blog consistently “fires away” at the legitimacy of religious beliefs, and will continue to do so. Just because Pugno takes offense to the suggestion beliefs might not be legitimate does not change the fact the beliefs might not be (or definitely aren’t) legitimate.



Protect Marriage, Day 6: Body Blows and Flying Cards

Earlier today, I highlighted the two most significant points in today’s testimony. Keep those handy. As we dive into Andy Pugno’s latest Protect Marriage spin, you’ll need them because he conveniently neglects to include them in his summary. (Also, I’ve included the video of Mayor Sanders’ press conference that was shown in court today at the bottom of the post, if you’re interested. It’s pretty moving.)

Here we go!

Second Verse, Same as the First

The second week of the Perry v Schwarzenegger trial against Prop 8 began the way the first week ended: full of emotional testimony about how it “feels” for the relationships of gays and lesbians to not be considered “marriage.”  The plaintiff attorneys hope that the personal sentiments of a handful of witnesses, alone, will sway the court to invalidate the vote of more than 7 million Californians for keeping marriage between a man and a woman.

Pugno’s smug sarcasm is lost on me. What does it mean to “feel” as opposed to feel? Are “feelings” fake… maybe illegitimate? How does Pugno decide when feelings are real and when feelings are just “feelings”? And why put “marriage” in quotes? He seems to be implying that even if gays and lesbians had marriage (the real thing), he would still see their relationships as “marriage” (not the real thing). I guess the only take away is that Pugno will do whatever he needs to do to remind us of his contemptuous attitude towards the plaintiffs; even if they win, he still won’t respect them or their “rights.” The will of the majority must be protected!

San Diego Mayor, Jerry Sanders, provided emotional testimony wherein he expressed his feelings behind changing his mind on the issue of civil unions.  At the time he previously supported civil unions for homosexual couples, he believed it was “a fair alternative to marriage,” and that he “didn’t communicate hatred and didn’t feel hatred” toward gay and lesbians by supporting civil unions.

Sanders also conceded on cross examination by Prop 8 defense team attorney Brian Raum that he believes “reasonable people can disagree on the value of civil unions versus same-sex marriage without hostility, animus or hatred” for homosexuals, and that a “good number” of people who voted for Prop 8 likely did so without animus, simply believing in the traditional meaning of marriage.

I don’t see a compelling point in the first paragraph to warrant an “also” in the following paragraph, but whatever. Here’s where you can pull out that important little excerpt from the very cross examination Pugno refers to. How many times did Sanders make the point that anything short of full marriage equality is “grounded in prejudice“? According to Firedoglake’s transcripts, Sanders made this point at least five times. As a teacher, I know that repetition is important for helping students learn, but apparently learning is not Pugno’s strong point. (OR, it is, but sharing isn’t.)

This is an important point for the plaintiffs to have made. Yes, there are plenty of folks who think that their (self-constructed) beliefs in the “traditional meaning of marriage” does not intend animus or hatred. That doesn’t change the fact that their message is received in that light, and that no matter their motives, their beliefs cannot be separated from prejudice.

Sanders has a lesbian daughter who married her partner in Vermont last December while on a trip to visit her partner’s family in New York.  It seems they decided, by Sanders’ testimony, to marry on the spur of the moment and did not include any family or friends at their ceremony.  After the fact, Sanders was informed by a telephone call that his daughter had gotten married.  Sanders repeatedly testified about his hurt feelings about missing his daughter’s nuptials that weren’t witnessed by any family or friends (no word why the New Yorkers didn’t make the short trip to Vermont) as a way of validating his earlier change of heart about same-sex marriage.  Mayor Sanders’ love for his daughter is genuine and heartfelt, and he readily admits that his change of heart was based on emotion for his daughter, rather than any social, legal, or religious perspective.  However, this emotion-based testimony proves our point:  a court of law is not the forum for Mayor Sanders to push his views. The place for Mayor Sanders’ position to have any relevance was during the campaign, not in this courtroom.  Since when does the constitutionality of a measure hinge on how a single local mayor feels about his daughter? The only conclusion I can reach is that the plaintiffs are attempting to make an emotional rather than a legal argument to invalidate Prop 8.  Emotion is about the only thing they’re focusing on, witness after witness.

Oh my. First clarification: the Sanders family was still in California. Second clarification: Sanders actually testified that his daughter did not affect his decision to change his mind. Here’s the testimony as transcribed on the Prop 8 Trial Tracker:

Did you daughter talk you into signing the resolution?

No. Quite to the contrary. She understood the civil unions position, and understood the political reality. She thought it was important that I be reelected.

H: What convinced you to sign the resolution?

S: I struggled for a long time since I took the position. But the night before that video, I invited some LGBT friends over to tell them I was going to veto. I was shocked at the hurt that they showed when I told them. One friend said that we interact with you as a family. They felt that their children deserved married parents. I could see the harm that I would do with the veto. This was a night not about politics, but about the depth of their emotions. That created part of the emotion in the video. I realized how much it hurt for them.

As for the fact that much of the testimony has been emotionally charged, I think Pugno was not paying enough attention during Dr. Meyer’s testimony last week. Dr. Meyer spoke at length about the negative impacts of stigma on the mental health of gays and lesbians. The emotional impact on its own might not make a compelling legal argument, but the consequences of that impact do. Of course, Pugno wouldn’t want to remind anybody of this point; his sole intent is to paint a picture of futility for the plaintiffs. Maybe he should go to art school.

Will emotion and “hurt feelings” be enough for this judge to overturn the will of the people and be the first court in the nation to declare a federal constitutional right to same-sex marriage?  Time will tell.  But the body blows that we’re striking in our outstanding cross examination will make a compelling case to the U.S. Supreme Court, where legal experts predict this case will finally land.

Body blows? Really? When your opponents are trying to demonstrate the consequences of the law you’re defending (including hate crimes), your metaphor of choice is “body blows”?

I just have to say that having read all of the cross examination, I think this claim is pathetically overreaching. The experts have tactfully responded to the near-interrogations of the defense’s counsel, conceding nothing of value (unless you hide, like Pugno does, the relevant testimony that invalidates the points the defense is trying to make). The words “striking,” “outstanding,” and “compelling” are laughable. If the cross-examinations are “body blows,” then the expert witnesses are “sea urchins.”

As for this afternoon’s testimony, it was replete with dense statistics about the impact of same-sex marriage in the Netherlands, the first country to legalize it in 2001.  Their expert witness, Lee Badgett, research director of the Williams Institute at UCLA and same-sex marriage advocate, testified that same-sex marriage has no impact on opposite-sex marriage in the Netherlands.

But on cross examination by our lead trial counsel Charles Cooper, the witness had to admit that, since the legalization of same-sex marriage in that country, there has been an increase in the rate of children born out of wedlock and the number of single-parent families, and that the rate of opposite-sex marriage has declined. On re-direct questioning by plaintiff lawyer David Boies, the witness testified that these trends were in place before same-sex marriage was legalized.

I should point out that the statistics didn’t seem to get dense until Cooper got a hold of them and tried to mangle them in bizarre ways that fit his case. P8TT took a look at some of the data in question, and I’ll share more analysis about the defense’s use of these numbers in my roundup later. I don’t know why Pugno bothered to share that last point, because it reveals that everything else he just said is wrong. It’s refreshing to see him include a point that doesn’t serve his own interest; he must not have proofread.

The afternoon’s take away:  the impact of same-sex marriage is an evolving social experiment and it is fully within reason for Californians to retain the traditional definition of marriage while the Netherlands—and any other state in our nation – throw the deck of cards in the air and see where they land.  Californians are well within their right to choose not to be the guinea pigs for this social experiment.

Social experiment? Is this a lead-up to calling us Nazis? I feel like there’s just a little insinuation of Godwin’s Law going on there.

Actually, the take away is that there is plenty of research that shows there are no valid reasons for not moving forward with marriage equality. The experiment has been totally flawless everywhere else, with plenty of evidence (especially out of Massachusetts) demonstrating this. Pugno wants you to see the cards in the air and a mess afterward. The only mess of cards is the defense’s strategy.

San Diego Mayor, Jerry Sanders, provided emotional testimony wherein he expressed his feelings behind changing his mind on the issue of civil unions.  At the time he previously supported civil unions for homosexual couples, he believed it was “a fair alternative to marriage,” and that he “didn’t communicate hatred and didn’t feel hatred” toward gay and lesbians by supporting civil unions.

Sanders also conceded on cross examination by Prop 8 defense team attorney Brian Raum that he believes “reasonable people can disagree on the value of civil unions versus same-sex marriage without hostility, animus or hatred” for homosexuals, and that a “good number” of people who voted for Prop 8 likely did so without animus, simply believing in the traditional meaning of marriage.



Protect Marriage, Day 5: Screw Scientific Inquiry (And Other Tidbits)

First, some tidbits about Protect Marriage.

It might not have any significance, but I have to point out that the Protect Marriage blog is under some odd management. There is a post stickied to the top about Monday’s temporary injunction by the Supreme Court. It’s been there all week. There was no replacement when the indefinite decision was delivered on Wednesday. It’s awkward and no longer relevant; it isn’t really even doing much for them. Also, their penultimate post from yesterday (Plaintiffs’ Witness Trend Continues) was bumped up above the post that only went up very late last night (Are We There Yet?). I checked to see if it had been tweaked in any way, but it was the same as before. Perhaps they realized how egregious the other post was and wanted to bury it a bit. Still, I find it all a bit peculiar.

I also have to mention with greatest disappointment that I was totally excluded from the “bloggers-only” update call they advertised for this evening. I had sent an email earlier in the week, and even followed up this morning with an incredibly polite voicemail. I didn’t even get a polite reply saying, “Sorry, this is only for people willing to spread our vitriol.” I was summarily ignored. I am SO curious what’s on that call. (Anybody want to set up a fake site to crosspost their spin so we can get access to these mysterious calls?)

Anyways, let’s turn now to the latest spin from Andy Pugno of Protect Marriage’s General Counsel. Only one update today, but boy is it a doozie. Today’s testimony and the tactics of the cross-examination show how clearly ignorant the defense is on all matters of scientific inquiry, research methods, and just general logic. Still, Pugno claims, “Plaintiffs Can’t Contradict Our Position.”

This morning’s session of trial found expert witness Dr. Michael Lamb, a child development psychologist put on the stand to testify for same-sex marriage, having to admit under cross examination by Prop 8 attorney David Thompson that there exists no body of substantial research that contradicts our claim that children are best raised by a married mother and father.

I want you to note two things about this opening paragraph. First, Pugno identifies (accurately) Dr. Lamb as a “child development psychologist.” That’s going to be important in a few paragraphs.

Second, note the complete fallibility of his argument: he boasts there is no proof for a negative. It does not matter whether there is any evidence actually supporting their claim that children are “best raised” by a married mother and father. It only matters if there is anything that proves that wrong. Hypothetically, the only thing that could prove that wrong is significant evidence that same-sex couples can raise children better than heterosexual couples, as opposed to just comparably.

In fact, he had to admit that the benefits known to flow to children of married parents are significantly stronger when the child has a biological connection to both parents—which is clearly something impossible for any same-sex couple to achieve.

That’s actually the complete opposite of what he did. I’ll talk more about this later in my roundup of the day, but the entire cross-examination involved the defense attorney citing a study decades older than the research Dr. Lamb was working with and trying to make the conclusion that because the conclusions are different, “science is wrong” (and yes, I’m actually quoting the attorney). Dr. Lamb pointed out that none of the studies found any significant difference between connections to adoptive parents and birth parents. Further, the defense was trying to use “fatherless” studies (which meant the father abandoned his heterosexual wife) to draw conclusions about lesbian couples (who would technically be “fatherless,” but had nothing to do with the studies they were citing).

As an adoptee myself, I took deep offense to the kinds of claims they were trying to make. I have incredibly loving parents and I don’t think of them as anything but my parents. To suggest, as Pugno reiterates here, that biological connections are “significantly stronger,” completely insults and invalidates adoptive families like mine in favor of some bizarre essentialist position that no studies reinforce.

Beyond some of his interesting opinions about adjustment of children raised by homosexual couples, it is noteworthy that Dr. Lamb based his expert testimony solely on research documents completed by others, as he has never completed a single study of his own on the subject.  Despite being offered as an expert in this case, he is not actually a clinical psychologist.  He has never treated children raised by gay couples. In fact he has never treated a patient at all.  He’s never interviewed a single child raised by gay men or lesbians, and his last interview of any child was more than 20 years ago.

Consider this: Do you have to administer therapy to be a psychologist? No. In fact, many psychologists don’t. They do this thing called “research,” where instead of regularly serving clients they “do research.” Just like other scientists, they design studies and collect data, data which then inform the work of the practicing psychologists. And as Pugno pointed out above, Dr. Lamb is a “child development psychologist.” And his specialty is meta-analysis, which means he studies ALL of the different research that is done and works to create more in-depth and solid conclusions, a synergy of knowledge if you will. I can’t imagine how that could possibly inform his expertise on—oh wait.

Get ready, because this next paragraph might be Pugno’s ultimate demise (though, not to any of his followers).

When you synthesize the hours of testimony provided this morning, two points come in to focus: the plaintiffs have done absolutely nothing to disprove the belief that the optimal social and personal outcomes of children are best achieved by being raised by their biological married parents, and that such a notion is a reasonable and rational reason for people to have voted for Prop 8.

Disprove the belief.

This is why I get frustrated with LGBT activists who are overly concerned with catering to religious communities. It is catering to religion that keeps us where we are. I write this blog to dismantle the privilege beliefs have, so that it’s not just good enough for people to believe. There has to be evidence to support.

WHERE IS THE BURDEN OF PROOF? If I say there is free ice cream and you say you don’t know of any free ice cream, that doesn’t automatically make me right. In fact, you would probably not believe there is free ice cream until you see (and receive) said free ice cream. At that point, beliefs are irrelevant, because we would know there is ice cream, and neither of us would have to believe it anymore.

If you say there are “optimal outcomes” to being raised by “biological married parents,” you have to show that there are, in fact, such outcomes. You can’t just believe it to be true. And in fact, all of Dr. Lamb’s testimony demonstrated that while having married parents is great, there is NOTHING that makes biological or heterosexual couples any better at raising kids. Thus, their argument is moot, regardless of how many times they repeat it.

Again, I will reiterate that the testimony of all the plaintiffs’ experts to this point—essentially a social policy debate—should instead be brought forward in a legislative or congressional hearing where it is the job of the legislative branch of government to make those decisions.  That is not what the courts are there for.

And to Mr. Pugno, I will suggest you open a history textbook (and do your best to overcome how bored you get). This is actually exactly what the courts are for. (Psst, that’s why you’re in court!)