Not Quite Justice Delayed, But Almost

Just a quick update today about good ol’ Prop 8.

The Appeals Court ruled essentially two things today.

1) Imperial County does not have standing to appeal. (Good riddance. Their case for appeal was absurd.)

2) The California Supreme Court should address the question of whether the people of the state have standing to defend a ballot initiative when the state government refuses.

This is a bit confusing. There are some legal questions that have not been answered before, and there is also the tricky interaction between the state and federal courts.

Standing in a federal court (like this Appeals Court) is different than standing in a state court. However, the matter at hand is a state ballot initiative. It’s unclear what impact a state determination of standing will have on this federal-level case; it’s only clear that the Appeals Court judges want the answer before proceeding.

Boies argued back in December that the answer doesn’t matter; his arguments against standing at the federal level won’t change. It seems, though, that we’ll simply have to wait to find out.

So, at this point, I think there are three outcomes that could happen.

1) The CA Supreme Court decides not to answer the question of standing and the Appeals Court is left to make a determination of standing without it (and the case may or may not proceed further).

2) The CA Supreme Court decides that Protect Marriage does have standing and then the Appeals Court will have to decide whether to recognize that standing at the federal level (and the case will proceed).

3) The CA Supreme Court decides that Protect Marriage does not have standing, a decision the Appeals Court will likely recognize. The appeal will be unable to proceed and Judge Walker’s ruling will stand.

It’s frustrating that this process is being stretched out, but with the murkiness of the legal territory, I suppose it’s for the best if the Appeals Court has the most information to work with.

Some Brief Thoughts on Today’s Prop 8 Oral Arguments

If you didn’t get a chance to watch today’s oral arguments for the Prop 8 appeal, you didn’t necessarily miss much. Nothing was decided, though the questions from the judges certainly gave us some interesting insight into their perspectives.

The first hour was dedicated to the questions of standing. Do the defendant-intervenors (Protect Marriage) have standing to continue defending Prop 8 since they are not named as actual defendants? Cooper argued for them essentially saying that yes, they do, because if the Attorney General will not defend them, no one can. In doing so, he misconstrued the Karcher case, in which former New Jersey legislators were not given standing (according to Professor David Cruz). Also, the passing of the initiative was a “check” by the people on the CA Supreme Court. Boies countered that the initiative was a legislative act, and that essentially, the people do not also have the executive authority to defend it if their AG won’t.

Basically, the California Ballot Initiative Process is messed up. Two of the judges on the panel seemed interested in the California Supreme Court certifying the DI’s standing, which would alleviate them of that responsibility. Boies pointed out that his arguments would be the same either way, and that awaiting such a decision would merely delay the completion of the case unnecessarily.

As for Imperial County, the discussion was whether the County Clerk is directly impacted by the injunction against enforcing Proposition 8. Boies argued that the role of the clerk is ministerial—that they simply carry out state law as enforced by the Attorney General. Professor David Cruz, who was in the live chat with us, made the brilliant point that San Francisco was not allowed to give same-sex couples marriage licenses in 2004, so in the wake of the injunction, clerks should also not be allowed to not give same-sex couples marriage licenses.

It is my understanding that standing will only be granted to one of these groups, if any. (If no standing is found for either Protect Marriage or Imperial County, then the merits of the case will not be addressed and Judge Walker’s decision that Prop 8 is unconstitutional will stand.)

The rest of the oral arguments were much of what we are already used to.

Cooper kept trying to say the same old arguments about preserving the institution of marriage and all its unique benefits. The judges pointed out that gays and lesbians essentially have everything marriage is defined by except the word. (Therese Stewart, attorney for San Francisco, also later pointed out that California manages all parenting and child-rearing completely separate from marriage.) Cooper offered, “The word is the institution,” trying his best to argue it is okay for the people to take away a right.

Olson countered with a very concise message that this was discrimination motivated by animus. The elimination of Prop 8 does nothing to harm heterosexual couples. He also hammered home that sexual orientation was immutable, and that the “crazy quilt” (all the different marriage statuses that exist in CA as a result of Prop 8) demonstrate just how irrational it is.

The end of the day is slightly anti-climactic, as we await the decision of the panel. If they want the CA Supreme Court to chime in on the standing of the defendant-intervenors, any real decision in the case will be delayed. If they find that neither Protect Marriage or Imperial County have standing, then the case is over and Prop 8 is overturned. If either group is found to have standing, then the case continues and the merits weighed in on.

Nonetheless, it was an important day, if for no other reason than the fact that these arguments were televised. While the first hour’s debate on standing was dry and probably of little interested, the ensuing hour and a half discussion about gay people was poignant. I encourage everyone to watch or read the transcripts and share with others. This is a discussion that everybody needs to hear.

The Prop 8 Trial is Back And… Well, The Same Discrimination As Ever

[Update: I will be participating in a live chat during the arguments through AMERICAblog Gay and Pam’s House Blend.]

Just when you thought you’d never see the Prop 8 Trial on TV, here it is!

Today (less than an hour after this post will go up), the oral arguments will take place for the appeal before the Ninth Circuit. Take the time now to catch up then tune in at 1 PM (EST) to watch live. Check back later for more discussion here at ZackFord Blogs.

If you’ve been living under a rock for the past year, you can peruse the complete archive of #Prop8 postings here at ZFb. Chris Geidner also has a great FAQ to help catch you up, especially if you’re unsure about the issue of standing and what all is being dicussed today. Karen Ocamb sets us up for what to expect, and with further legal analysis from Ari Ezra Waldman. Of course, there will be liveblogging at the Prop 8 Trial Tracker, Towleroad, and Pam’s House Blend, among other places.

Where to watch and listen online? Lots of choices: C-SPAN, ABC News, KCBS Radio, KGO Radio, and KQED News, which will also have liveblogging. If worse comes to worst and none of those feeds are working for you, you can watch the National Organization for Marriage’s feed.

After it’s over, check back here for more coverage!

Stay, Stay, Stay: Prop 8’s Ongoing Drama and Protect Marriage’s Gloating

I haven’t written about Prop 8 lately, but only because I feel like folks have been too eager to get a fix when most of what’s happening now is just standard legal procedure. If you haven’t paid attention over the last week, here’s a quick catch-up, and then below I’ll respond to some statements from Protect Marriage.

First, here’s a quick reminder of the vocab, because I know it can get confusing. The plaintiffs are the good guys (represented by Olson and Boies), the defendants are the actual government officials, and the proponents are the Protect Marriage folks who stepped in as defendant-intervenors.

» When Judge Walker first overturned Prop 8 two weeks ago, he implemented a temporary stay for his own ruling for the sole purpose of giving the defendants/proponents a window to demonstrate why the decision should be stayed until after appeal. This was a tough case to make since he said in the decision that same-sex marriage in no way harmed anybody or any marriages.

» We learned that Judge Walker would make his decision on this matter last Thursday (August 12). We waited with baited breath through a three-hour window in which we thought we would hear. Couples were waiting in line to marry and extra city officials had been deputized to help perform the marriages. Finally, sometime in the fourth hour we learned that he would be lifting the stay, but it would still be in effect until this Wednesday (tomorrow, August 18).

Many were underwhelmed by this response. Given that the original decision had been so unabashed in outlining the harm to gays and lesbians by Proposition 8, this seemed an unnecessary extension of that harm. Evan Wolfson of Freedom to Marry called it Justice Delayed. The extension of the stay created room for the Appeals Court to offer their own stay without there being a window of legal same-sex marriage.

» Yesterday, the appeals court did issue their stay until that round of the trial is over. This is disappointing news for most. The court did expedite the case, but that won’t necessarily appease many, as the trial date is in December, and a decision won’t come until potentially months afterward.

» There is still the question of standing, whether the proponents have the right to appeal at all since they are not the defendants. A decision in that matter could end everything else. If that were to happen, Judge Walker’s ruling would apply, but to California only. Still, it would be an important precedent for future trials in other parts of the country.

That’s where we stand now. Same-sex couples still cannot marry in California. A final decision in that matter is still at least half a year away, if that. It’s odd to recognize that we had this huge victory two weeks ago and yet we don’t have much to show for it.

In the meantime, we can still take a whack at Protect Marriage and their ugly gloating over basic procedure that is not really a victory for them at all.

Here was Charles Cooper’s reaction last Thursday when Judge Walker (kind of) lifted the stay:

We are gratified that Judge Walker has continued until August 18th the temporary stay of his decision.  We will promptly seek from the Ninth Circuit Court of Appeals a stay pending the final resolution of the case. On appeal, we look forward with confidence to a decision vindicating the democratic process and the basic constitutional authority of the 7 million Californians who voted to retain the traditional definition of marriage. The decision whether to redefine the institution of marriage is for the people themselves to make, not a single district court judge, especially without appellate scrutiny.

Again, this completely ignores the fact that it is Judge Walker’s job to uphold the Constitution as the law of the land. Andy Pugno then, of course, gloated yesterday when they got a stay:

This afternoon, the Ninth Circuit Court of Appeals granted a request by Prop 8 proponents to stay U.S. District Court Judge Vaughn Walker’s ruling, thereby upholding the vote of 7 million Californians while the Perry v. Schwarzenegger case is heard on appeal. The arguments will occur in San Francisco the week of December 6, 2010.

“California voters spoke clearly on Prop 8, and we’re glad to see their votes will remain valid while the legal challenges work their way up through the courts. Invalidating the people’s vote based on just one judge’s opinion would not have been appropriate, and would have shaken the people’s confidence in our elections and the right to vote itself,” said Andy Pugno, general counsel for, the defendants in the Perry v Schwarzenegger case.

Always eager to play the victim! Enjoining Judge Walker’s decision would have validated my confidence in the judiciary to be a balanced check, but that’s just me.

Pugno went further in an email to Prop 8 supporters:

As we pointed out in our motion, Judge Walker’s decision totally ignores virtually all legal precedents, the well-recognized public interest served by fostering traditional marriage, and even common sense itself.

Of course, he has to raise the stakes so he can ask for more money two paragraphs later. He’s so appreciative of the prayers and support. Won’t you give these whiny brats a special donation so they can continue to waste the government’s time with unconstitutional, discriminatory ideas?

Or, don’t. 🙂

Protect Marriage: Charles J. Cooper Didn’t Watch Trial/Read Decision

Responding to Protect Marriage’s posts is not always the most fun exercise. Sometimes it’s downright f-in annoying because their statements are always so full of BS. *ahem* But that’s why we respond, right? Rather than paragraph by paragraph as per my norm, I’m going to parse Charles Cooper’s latest statement sentence by sentence. Feel free to go to the Protect Marriage site if you want to read the statement without my annotations.

Statement of Charles J. Cooper, lead counsel for the proponents of Proposition 8, concerning the decision rendered today in Perry v. Schwarzenegger:

Today, a single federal judge has negated the will of the people of California.

No, he didn’t. He overturned an unconstitutional mandate determined by 52% of the valid vote-casters of California who participated in the November, 2008 election in fulfillment of his Constitutionally-mandated responsibility as a federal judge.

The central premise of the court’s ruling is that it is irrational for the citizenry to decide to retain the traditional definition of marriage.

Technically, he ruled that the idea of retaining such a definition was irrational, not the idea of the citizenry making decisions.

The court holds that the ubiquitous definition of marriage as the union of a man and a woman is a historical curiosity that serves no purpose whatsoever, but rather is based solely on anti-gay biases.

Shocking as it may be, that is, in fact, true.

Indeed, the court went so far as to brand as “irrational” all supporters of traditional marriage, which is the vast majority of all people, in American and throughout the world.

No, here you’re quite wrong. He made no such judgment about the people who supported the referendum. In his own words, the word “irrational” appears twice in the decision. On p. 109, he uses it to describe using sexual orientation to classify people. On p. 133, he uses it to describe the post-hoc state interests that your defense team, Mr. Cooper, espoused at trial. At no point did Judge Walker refer to supporters in this way.

As New York’s high court recently recognized, until very recently it “was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.”  [Hernandez v. Robles, 855 N.E.2d at 8 (N.Y. 2006)].

And then recently happened.

The historical record reveals that the traditional definition of marriage is grounded in society’s interest in channeling potentially procreative sexual relationships between men and women into enduring, stable family units to increase the likelihood that children will be raised by the man and woman whose union brought them into the world.

The court record and the expert witnesses reveal that that’s a load of malarkey. For example, the traditional definition of marriage included coverture, the idea that a man owned his wife and all of her belongings. It also never had procreative ability as a prerequisite nor required procreation after affirmation.

Judge Walker’s ruling sweeps aside this historical understanding of marriage.

The one that has constantly changed over the ages? I’d say he did the opposite.

In its place, he has announced that “Marriage is the state recognition of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependants.”

In its place? That’s what it was on August 3rd, too.

His opinion thus treats children as a mere afterthought when it comes to marriage.

Quite to the contrary, Mr. Cooper. I might refer you to Judge Walker’s Findings of Fact 35, 41, 49, 55, 56, 69, 70, 71, and 72. You might be surprised what you learn when you actually read the decision, considering you obviously didn’t pay attention to any of the testimony.

The Court’s disregard for the historical purposes of marriage would require California to embark on a novel experiment with the fundamental institution of marriage.

Wouldn’t be the first time! Besides, how many decades have to pass before ideas aren’t considered “novel” or “experimental” anymore? Or heck, centuries? Emperor Nero is rolling in his tomb.

In doing so, it threatens to harm the vital interests historically served by marriage.

Scary language. No substance.

The United States Constitution provides no warrant for this result, as demonstrated by the all-but-unanimous judgment of other federal courts that have addressed the issue.

Looks like Judge Walker found some pretty solid warrant for this result. Besides, no such judgment has ever heard this kind of testimony on the issue. Look what happens when there’s real information provided in a trial about gays and lesbians!

In addition to dismissing the traditional definition of marriage, the judge incredibly found that children don’t need fathers. Or mothers. To state this proposition is to refute it.

No, that’s not what the judge found at all. The judge found, based on substantial research and evidence, that the genders of a child’s parents do not determine how well that child is raised.

And the court also found that there is no benefit whatsoever for a child to be raised by its own biological parents.

That’s true. Adoptive parents like my own appreciate this resistance to such stigmas as your own, Mr. Cooper.

Fortunately, the Constitution does not require the people to substitute the social science musings of gay rights activists for common sense. This decision will not stand.

Musings? How about overwhelming consensus. And yes, actually, judges are beholden to keep experts and their evidence accountable to standards of intellectual rigor.

Fortunately, the case is not over. Judge Walker acknowledged from the outset that “this case is only touching down in this Court, … it will have a life after this Court, and what happens here, in many ways, is only a prelude to what is going to happen later.”  July 2, 2009 Tr. of Hr’g at 12.  About that he was right. We have already filed a notice of appeal and look forward to the next stage of this litigation.

And we’re all so glad you will continue to spin your foundationless vitriol for us all to see.

Is he really that stupid or does Protect Marriage just pay him enough that he’s willing to sound like it for the sake of the case?

I’m sure such a statement will get them a ton of donations, though.

(You can find all my Protect Marriage responses listed in italics in my Prop 8 Archive.)

The Prop 8 Decision: A Victory for Science and Education

Way back in January, I wrote a post about why atheists should care about the Prop 8 Trial, pointing out that science was on trial. I was not alone in pointing out that Perry v. Schwarzenegger is the Scopes Monkey Trial of our day, merely challenging psychology instead of biology. I think it is important to now look at Judge Walker’s decision and see that not only was this a victory for gay rights, but a victory for science (the APA agrees) and the dismantling of religious privilege in our nation.

I don’t think anything in the decision is as powerful as the Findings of Fact I compiled yesterday. Another important aspect was the determination of expertise for the witnesses that were offered as “experts.” As I pointed out back in January, there were some compelling face-value distinctions between the plaintiffs’ witnesses and the proponents’ witnesses. It seems that Judge Walker thought so too.

He takes a fair amount of time in the decision to outline the credentials of the expert witnesses and the criteria used to evaluate them. This was surely necessary given that he did not accept them all. Starting on p. 28, he affirms the testimony of all the plaintiffs’ experts. Scroll over each to see the brief summary of their testimony and then check out the decision to see all the credentials: Nancy Cott, George Chauncey, Lee Badgett, Edmund A Egan, Letitia Anne Peplau, Ilan Meyer, Gregory Herek, Michael Lamb, and Gary Segura.

Those Religious Studies Professors

Then (starting on p. 35), Judge Walker gets to the matter of the proponents’ witnesses. First he describes Katherine Young and Paul Nathanson, “experts” the proponents’ withdrew, but whose taped depositions were still submitted as evidence by the plaintiffs. What is remarkable is how—perhaps because they were withdrawn—their expertise and their testimony have little to do with each other (p. 36-37 citations omitted):

Young has been a professor of religious studies at McGill University since 1978. She received her PhD in history of religions and comparative religions from McGill in 1978. Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples. Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples.

Nathanson has a PhD in religious studies from McGill University and is a researcher at McGill’s Faculty for Religious Studies. Nathanson CV. Nathanson is also a frequent lecturer on consequences of marriage for same-sex couples and on gender and parenting. Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples.

Proponents made no effort to call Young or Nathanson to explain the deposition testimony that plaintiffs had entered into the record or to call any of the withdrawn witnesses after potential for contemporaneous broadcast of the trial proceedings had been eliminated.

This seemed an incredibly useful tactic by the plaintiffs’ legal team. It demonstrated that even if Young and Nathanson had testified at trial, their expertise on religioun would have been irrelevant to what we actually know about gays and lesbians.

Kenneth P Miller

I’m going to save David Blankenhorn for last, because he makes for a grander finale. Skipping down to p. 49, we see where Judge Walker considers the testimony of Kenneth P Miller, who plaintiffs contended did not have sufficient expertise to testify on the subject of the political power of gays and lesbians.

Miller received a PhD from the University of California (Berkeley) in 2002 in political science and is a professor of government at Claremont McKenna College. Plaintiffs contend that Miller lacks sufficient expertise to offer an opinion on the relative political power of gay men and lesbians. Having considered Miller’s background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.

It seems that the proponents found a witness who was willing to say what they wanted him to say, but really had nothing to back it up. There are several pages where Judge Walker showed how Miller could not explain how his conclusions contradicted studies and reports submitted by the plaintiffs. My favorite was this one (p. 52):

Plaintiffs questioned Miller on data showing 84 percent of those who attend church weekly voted yes on Proposition 8, 54 percent of those who attend church occasionally voted no on Proposition 8 and 83 percent of those who never attend church voted no on Proposition 8. Plaintiffs also asked about polling data showing 56 percent of those with a union member in the household voted yes on Proposition 8. Miller stated he had no reason to doubt the accuracy of the polling data. Miller did not explain how the data in PX2853 are consistent with his conclusion that many religious groups and labor unions are allies of gays and lesbians.

It was also revealed that Miller was fed most of the documents he cited by the defense. I’ll let Judge Walker take us home on Miller’s testimony (p. 53-54):

The credibility of Miller’s opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group’s political power.

Miller’s credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process. Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment.

For the foregoing reasons, the court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.

I think Judge Walker ought be applauded for his critical observations here.

Determining Expertise

Now, you might read all that and wonder, “So what exactly qualifies an expert?” Judge Walker will happily walk you through it.

First, we have Federal Rule of Evidence 702 (p. 39-40):

Federal Rule of Evidence 702 provides that a witness may be qualified as an expert “by knowledge, skill, experience, training, or education.” The testimony may only be admitted if it “is based upon sufficient facts or data” and “is the product of reliable principles and methods.” Expert testimony must be both relevant and reliable, with a “basis in the knowledge and experience of [the relevant] discipline.”

This is key language. The information provided has to, essentially, be scientifically valid and reliable. Scientific literacy is so vital to our society and we are fortunate that Judge Walker understands that. He goes on to say that formal training and peer-reviewed publications are not necessary, but speak to the intellectual rigor expected of an “expert.” However, the court is not required to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. So peer review is an effective way for the court to ensure that an expert’s methodology is sound.

Several factors are relevant to an expert’s reliability:

(1) “whether [a method] can be (and has been) tested”;

(2) “whether the [method] has been subjected to peer review and publication”;

(3) “the known or potential rate of error”;

(4) “the existence and maintenance of standards controlling the [method’s] operation”;

(5) “a * * * degree of acceptance” of the method within “a relevant * * * community”;

(6) whether the expert is “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation”;

(7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

(8) whether the expert has adequately accounted for obvious alternative explanations;

(9) whether the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field”; and

(10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

I know that kind of reads like gobbledygook, but each of those is a significant point in which the court upholds scientific thinking.

Essentially, the court holds (or should hold and has precedent to hold) experts accountable to their testimony. If their research isn’t accepted by their field or their conclusions don’t match their claims, they are violating the expertise they claim to have. This is so important, and I think we have to appreciate the way Judge Walker carefully meted out and considered all the facts in this case.

And why did he have to write this all out in the decision? Because of David Blankenhorn.

David Blankenhorn

You might think I’ve already beaten up on David Blankenhorn a bit too much. It’s not without irony that I was chastising his pity party yesterday just hours before the decision came down. But you ain’t seen nothing until you’ve seen the way Judge Walker eviscerated Blankenhorn’s testimony (p. 39):

Plaintiffs challenge Blankenhorn’s qualifications as an expert because none of his relevant publications has been subject to a traditional peer-review process, he has no degree in sociology, psychology or anthropology despite the importance of those fields to the subjects of marriage, fatherhood and family structure, and his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.” Plaintiffs argue that Blankenhorn’s conclusions are not based on “objective data or discernible methodology,” and that Blankenhorn’s conclusions are instead based on his interpretation of selected quotations from articles and reports.

The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn’s opinions. The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

Ouch. That’s gotta hurt. And Walker says it a few more times, too. You see, Walker didn’t just dismiss Blankenhorn’s testimony; he took the time to dismantle it. (And there is a lot more detail in the decision than what I’ve excerpted here!)

In regards to Blankenhorn’s opinions on the definition of marriage (p. 43-44):

Blankenhorn’s interest and study on the subjects of marriage, fatherhood and family structure are evident from the record, but nothing in the record other than the “bald assurance” of Blankenhorn suggests that Blankenhorn’s investigation into marriage has  been conducted to the “same level of intellectual rigor” characterizing the practice of anthropologists, sociologists or psychologists. Blankenhorn gave no explanation of the methodology that led him to his definition of marriage other than his review of others’ work.  The court concludes that Blankenhorn’s proposed definition of marriage is “connected to existing data only by the ipse dixit” of Blankenhorn and accordingly rejects it.

Strike One!

In regards to Blankenhorn’s opinions on the ideal family structure and children (p. 44-45):

Blankenhorn’s conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents. Blankenhorn did not in his testimony consider any study comparing children raised by their married biological parents to children raised by their married adoptive parents. Blankenhorn did not testify about a study comparing children raised by their married biological parents to children raised by their married parents who conceived using an egg or sperm donor. The studies Blankenhorn relied on compare various family structures and do not emphasize biology. The studies may well support a conclusion that parents’ marital status may affect child outcomes. The studies do not, however, support a conclusion that the biological connection between a parent and his or her child is a significant variable for child outcomes. The court concludes that “there is simply too great an analytical gap between the data and the opinion proffered.” Blankenhorn’s reliance on biology is unsupported by evidence, and the court therefore rejects his conclusion that a biological link between parents and children influences children’s outcomes.

Strike Two!

In regards to Blankenhorn’s opinions that same-sex marriage will lead to the “deinstitutionalization of marriage” (p. 48-49):

Blankenhorn stated he opposes marriage for same-sex couples because it will weaken the institution of marriage, despite his recognition that at least thirteen positive consequences would flow from state recognition of marriage for same-sex couples, including: (1) by increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage
might well lead to fewer children growing up in state institutions and more children growing up in loving adoptive and foster families; and (2) same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships.

Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.

Strike Three! You’re Out!

The problem with Blankenhorn isn’t just that he speaks out against the rights of gays and lesbians. It’s that he’s wrong. Like so many believers, he puts the cart before the horse, and thus looks for studies that support his opinion instead of drawing opinions from studies.

I hope he sees this decision as an important check on his credibility as well as the authenticity of the work coming out of his so-called Institute for American Values.

Ultimately, science won this case. There is no getting around the solid facts about sexual orientation that make it quite clear that Proposition 8 was discriminatory and wrong. Anyone who disagrees needs a lesson in science.

With So Much #Prop8 Content, What Should You Be Looking At?

When I started my coverage of this trial, I committed to aggregating the coverage. There is almost too much content out there right now regarding yesterday’s decision, but if you’re just started to look for it all, here are some highlights you ought to check out. (See all the ZFb coverage here!)

For in-depth looks at the decision, I recommend:

» Chris Geidner
» Shannon Minter and Christopher Stoll from NCLR
» Ari Ezra Waldman
» Nan Hunter

Looking to see what various people thought of the decision? Towleroad has an extensive list of reactions, both positive and negative. If you really want to see all the ugly negative ones, Pam and Louise have those.

Need to be reminded that our President is not a fierce advocate and is not a supporter of same-sex marriage? Read Joe Sudbay’s response to the anonymous White House aide and then today’s piece about David Axelroad on The Hill. If that’s not enough, read more on Politico, The Washington Post, and FiveThirtyEight. Most importantly, go here and sign the open letter to the President to get his head out of his appeasing-the-religious ass. (The letter words it more nicely than that.)

Need a constant flow of information about the case? The Prop 8 Trial Tracker is still hard at work.

On MSNBC, Keith Olbermann showed an encore of his special comment about love from November 2008. Rachel talked to Boies and Olson and also spent another segment showing how flawed the proponents’ arguments were. (Thanks to AMERICAblog for the links.)

Look ahead with Evan Wolfson to what’s next for Freedom to Marry.

Lastly, watch these two videos. The first is a video showing the reaction when folks first heard the results of the decision. The second then follows Vanessa Judicpa & Maria Ydil as they attempt to get a marriage license during the brief window before Judge Walker’s temporary stay.

Protect Marriage: Sticking To Our Untrue Talking Points

Of course, in the wake of today’s decision, Protect Marriage is vying for an indefinite stay of today’s ruling and an appeal, as we knew they would. What’s sad is that Andy Pugno talks as if he hasn’t even read the decision (maybe he hasn’t). Protect Marriage’s press release reiterates the same old demonizing stereotypes that Judge Walker disregarded. Take a look:


SACRAMENTO – Andy Pugno, general counsel for, the official proponents of Proposition 8, released the following statement today in response to the ruling of U.S. District Court Chief Judge Vaughn Walker in the Perry v. Schwarzenegger case:

“Today’s ruling is clearly a disappointment. The judge’s invalidation of the votes of over seven million Californians violates binding legal precedent and short-circuits the democratic process. But this is not the end of our fight to uphold the will of the people for traditional marriage, as we now begin an appeal to the Ninth Circuit Court of Appeals.

Pugno must have missed the part where Walker wrote, “That the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'” We can thank the Jehovah’s Witnesses for that precedent.

It is disturbing that the trial court, in order to strike down Prop 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop 8.

Actually, the court doesn’t say that. What he says is that the proponents of Prop 8 had discriminatory intent, which they spread through fear-based propaganda that fed into untrue stereotypes. The law is discriminatory, whether the voters understood it to be or not. (See Findings of Fact 45, 47, and 57-68, 79, and 80.)

But the reality is that Prop 8 was simply about restoring and strengthening the traditional definition of marriage as the unique relationship of a man and a woman, for the benefit of children, families and society.

At trial we built a solid record to show that marriage has served as the foundation of the family and society as a whole, has universal functions and features attributable only to unions between a man and woman, has been defined in both law and language as a union between a man and a woman, and acts as the predominate relationship in which to create and support children.

It’s a cute line, but it’s simply not true. The experts’ testimony showed that the “traditional definition of marriage” was quite shortsighted and that given the equality of individuals in marriages, there is no compelling interest in maintaining only opposite-sex marriages. (See Findings of Fact 21, 26, 27, 31, 32, 33, 34, and 35, among others.)

It’s amazing (but unsurprising) that Protect Marriage continues to encourage the evil misperception that gay and lesbians put children at risk. (See  Findings of Fact 70, 71, 72, 76, and 79.)

We are confident that the trial court record we built will help us ultimately prevail on appeal and reverse today’s ruling.

You mean like how your star witness’s testimony was thrown out?

Reversing today’s decision will also serve as a reminder that the role of the courts is to interpret and apply the law only as enacted by the people and their elected representatives, not to impose new social policies.

Andy, did they not teach you at McGeorge School of Law that the Constitution is the ultimate law of the land, not the whim of a simple majority? (I’d be embarrassed to be a McGeorge alum today!)

And federal precedent is clear that there is no constitutional right to same-sex marriage. To prevail in the end, our opponents have a very difficult task of convincing the U.S. Supreme Court to abandon precedent and invent a new constitutional right.

Actually, after today’s decision, that is simply wrong. Today’s decision affirmed that marriage is a constitutional right and that to prohibit same-sex marriage is simply to discriminate based on sex and sexual orientation. There is nothing new in this decision except validation for the lives of gays and lesbians throughout time and space.

Best of luck to Andy Pugno and the Protect Marriage team. You’re going to need it.

By the way, I don’t believe in luck.

The Prop 8 Decision: The Findings of Fact (Everything We Should Learn From This Trial)

I want to begin my coverage of the Prop 8 decision (Read it on Scribd) with the Findings of Fact. This is the series of 80 points Judge Walker used to organize the multitudes of information in the case. Note that these are not all the ideas that were presented in the case; these are the facts used in the decision.

These concise points address the information presented in trial amazingly. They are straight-forward and compelling. Here is, essentially, what everyone should learn from this trial. The facts stack up nicely, but get particularly interesting—I think—starting down at #38.

All emphasis in green is my own and I have omitted citations for ease of reading,  but page numbers are provided. I have included the whole list, but I think people ought to pay particular attention to the following: 38, 39, 41, 43, 44, 46, 48, 50, 54, 55, 56, 58, 62, 66, 67, 70, 71, 72, 76, and 77; I have highlighted those numbers as facts I think are particularly compelling and noteworthy.

Let’s dig in (p. 54).

The Players

The first 13 or so facts simply outline the players in the case (many of whom are players in name only). Scroll over each for a description: Kristin Perry and Sandra Stier, Paul Katami and Jeffrey Zarrillo, San Francisco, Arnold Schwarzenegger, Edmund G Brown, Jr, Mark B Horton, Linette Scott, Patrick O’Connell, Dean C Logan, and the Defendant-Intervenors.

Now we learn a little bit more about who these folks are who promoted Proposition 8:

14. Proponents dedicated substantial time, effort, reputation and personal resources in campaigning for Proposition 8. (p. 57)

15. Proponents established —— Yes on 8, a Project of California Renewal (“Protect Marriage”) as a “primarily formed ballot measure committee” under California law. (p. 57)

16. The Protect Marriage Executive Committee includes Ron Prentice, Edward Dolejsi, Mark A Jansson and Doug Swardstrom. Andrew Pugno acts as General Counsel. David Bauer is the Treasurer and officer of record for Protect Marriage. (p. 57)

17. Protect Marriage was responsible for all aspects of the campaign to qualify Proposition 8 for the ballot and enact it into law. (p. 58)

18. Protect Marriage is a “broad coalition” of individuals and organizations, including the Church of Jesus Christ of Latter-Day Saints (the “LDS Church”), the California Catholic Conference and a large number of evangelical churches. (p. 59)

This description of Protect Marriage is important. It recognizes who was involved, what they tried to do, and how they were financially supported.

Should California Refuse to Recognize A Couple’s Marriage Because Of Their Sex?

19. Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law. (p. 60)

20. A person may not marry unless he or she has the legal capacity to consent to marriage. (p. 60)

21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate. (p. 60)

Given that the entire case is about the right to marry, Walker walks us through the way that marriage is defined and has been defined throughout history.

22. When California became a state in 1850, marriage was understood to require a husband and a wife. (p. 61)

23. The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained. (p. 61)

24. Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other. (p. 61)

25. Racial restrictions on an individual’s choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967. An individual’s exercise of his or her right to marry no longer depends on his or her race nor on the race of his or her chosen partner. (p. 62)

26. Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain. (p. 62)

27. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family. (p. 63)

28. The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage. (p. 64)

We can see how other forms of identity were used in defining marriage in the past.

29. In 1971, California amended Cal Civ Code § 4101, which had previously set the age of consent to marriage at twenty-one years for males and eighteen years for females, to read “[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage.” (p. 65)

30. In the 1970s, several same-sex couples sought marriage licenses in California, relying on the amended language in Cal
Civ Code § 4101. In response, the legislature in 1977 amended the marriage statute, former Cal Civ Code § 4100, to read “[m]arriage is a personal relation arising out of a civil contract between a man and a woman * * *.”  That provision became Cal Fam Code § 300. The legislative history of the enactment supports a conclusion that unique roles of a man and a woman in marriage motivated legislators to enact the amendment. (p. 65)

The “tradition” of one-man/one-woman marriages is very much founded upon not just gender roles, but gender inequality.

31. In 2008, the California Supreme Court held that certain provisions of the Family Code violated the California Constitution to the extent the statutes reserve the designation of marriage to opposite-sex couples.  The language “between a man and a woman” was stricken from section 300, and section 308.5 (Proposition 22) was stricken in its entirety. (p. 66)

32. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman. (p. 66)

This is an important question. If all the other changes to marriage have removed gender imbalances, why does California still require a man and a woman?

33. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality. (p. 66)

34. Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents. (p. 67)

35. The state has many purposes in licensing and fostering marriage. Some of the state’s purposes benefit the persons married while some benefit the state: (p. 67-68)

Here Judge Walker offers six benefits: a) cohesive family units, b) liberty, intimacy, and free decision-making for spouses, c) stable households, d) legitimating children, e) assigning care-providers, and f) facilitating property ownership.

36. States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs. (p. 68)

37. Marriage creates economic support obligations between consenting adults and for their dependents. (p. 68)

38. Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals. (p. 69)

Number 38 is important, because it’s the first (of many to come) that establishes psychological and sociological research as facts in the case. Here are a few more:

39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses. (p. 70)

40. The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity. (p. 70)

41. The tangible and intangible benefits of marriage flow to a married couple’s children. (p. 71)

I think it’s pivotal that the decision recognizes the intangible benefits of marriage.

Should California Differentiate Between Same-Sex and Opposite-Sex Unions?

This section outlines a lot of important history about the gay community as well as information about same-sex couples. Important definitions are entered into the record as fact regarding the nature of sexual orientation.

42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century. (p. 71)

43. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives. (p. 71-72)

YES! Sexual orientation refers to which sex a person is attracted to, not which sex a person is attracted to in reference to their own.

44. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence. (p. 72)

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals. (p. 73)

46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation. (p. 74)

I think there is incredible power in the stipulation of these qualities as facts. This essentially puts the legal kibosh (for the sake of at least this particular ruling) on any debate about whether sexual orientation is a choice.

47. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California. (p. 76)

48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex. (p. 77)

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children. (p. 78)

50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive. (p. 79)

51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals. (p. 79)

This kind of makes me laugh, but also makes me sad for all the sham marriages out there motivated by internalized homophobia.

Domestic Partnerships

One could easily insert “civil union” for DP in each of these statements and the same would be true. But, California has never had civil unions.

52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States. (p. 80)

53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government. (p. 81)

54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships. (p. 82)

55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. (p.83)

56. The children of same-sex couples benefit when their parents can marry. (p. 84)

Did Prop 8 Enact a Private Moral View Without Advancing a Legitimate Government Interest?

57. Under Proposition 8, whether a couple can obtain a marriage license and enter into marriage depends on the genders of the two parties relative to one another. A man is permitted to marry a woman but not another man. A woman is permitted to marry a man but not another woman. Proposition 8 bars state and county officials from issuing marriage licenses to same-sex couples. It has no other legal effect. (p. 85)

58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society. (p. 85)

59. Proposition 8 requires California to treat same-sex couples differently from opposite-sex couples. (p. 86)

60. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples. (p. 86)

61. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage. (p. 87)

62. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples. (p. 89)

63.  Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. (p. 90)

64. Proposition 8 has had a negative fiscal impact on California and local governments. (p. 90)

65. [The City and County of San Francisco] would benefit economically if Proposition 8 were not in effect. (p. 91)

66. Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs. (p. 91)

67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents. (p. 93)

68. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships. (p. 94)

Yes, the stigma against same-sex couples is now part of court record.

Same-Sex Couples as Parents

69. The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) the availability of economic and social resources. (p. 94-95)

70. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. (p. 95)

Seriously, read that one again. Not only does the evidence show that same-sex couples make good parents, but the question is not even up for debate.

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted. (p. 95)

72. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes. (p. 96)

73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. (p. 96)

Discrimination Against Gays and Lesbians

74. Gays and lesbians have been victims of a long history of discrimination. (p. 96)

75. Public and private discrimination against gays and lesbians occurs in California and in the United States. (p. 97)

76. Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes. (p. 98)

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. (p. 101)

78. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians. (p. 103)

Can you feel the validation, folks?

79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that  parents should dread having a gay or lesbian child. (p. 105)

80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships. (p. 108)

So there you have it! THOSE ARE THE FACTS. If you have any question as to why this decision is what it is, it should be answerable by those facts. If you don’t like those facts, tough. You cannot disagree with them; they are facts.

Processing the Prop 8 Decision

Whew! I just finished reading Judge Walker’s mammoth decision. If you haven’t heard yet:

Proposition 8 is unconstitutional!

According to the decision, it violates both due process and equal protection. The decision is brimming with amazing detail about the lives of gays and lesbians and will certainly serve as precedent for the future of our movement.

While in the past, I have covered court decisions in one long sweeping post, I think I will handle this decision in several posts over the next 36 hours or so. Here is what you can expect to see here on ZackFord Blogs tonight and tomorrow:

» The Conclusions of the Case
» The 80 Facts
» Defining Expertise
» Follow-up discussion re: my adoption post

History has been made today, and I hope you’ll take the time to understand why. Stay tuned.