Proposition 8: Marriage Equality Day 2 (Up Dated)

The second day of testimony challenging Proposition 8 will begin at around Noon EST. The first day seemed to go well for the plaintiffs who are saying that Prop 8 violates their rights under the Fourteenth Amendment.

There is live blogging from Rick Jacobs at Courage Campaign’s Prop 8 Trial Tracker and by Teddy Partridge and David Dayen at FDL

Here are some highlights and observations from yesterday’s opening statements and testimony.

Judge Vaughn Walker questions defense attorney Charles Cooper’s contradictions

   Walker: If the Prez’s parents had been in Virginia when he was born, their marriage would have been unlawful. Doesn’t that show a TREMENDOUS change in the institution of marriage? doesn’t that show evolution? Isn’t that correct?

   Cooper: Racial restrictions were never a feature of the institution of marriage. (laughter in our courtrtoomm)

   Cooper: These restrictions were loathesome, and a detail. “Man and woman” has been universal, across time and all societies.

   walker: Is the evidence going to show these racial restrictions are different than the restrictions imposed by Prop 8?

   (like a bug pinned to a piece of wood)

   Cooper: Naturally procreative instincts….

   Walker: Only purpose?

   Cooper: Basis of marriage is procreation. It is a pro-child societal institution.

   Walker: Many things attend marriage, will your evidence show that those are all secondary to procreation?

   Cooper: This is about deinstitutionalizing marriage…

   Walker: Yes, you say that. But will your evidence show that?

Up Date From FDL h/t to Dayen

Gay Rights Groups Praise First Day Of Testimony, Call On Obama DoJ To Submit Amicus Brief

Geoff Kors, the Executive Director of Equality California, which led the opposition to Prop. 8 in November 2008. He was excited about the first day of testimony, particularly the words of the four same-sex partners who took the stand, the first time in a federal trial that same-sex couples have testified. “Their testimony was really moving. You heard them say that marriage is not just about rights and benefits but about love and commitment.”

Kors also singled out Ted Olson’s opening statement as the conservative case for marriage equality. Olson said that allowing certain couples a separate status despite similar rights and benefits creates a stigma without a compelling rational basis for doing so. “To have a conservative legal scholar take that position is very powerful.”

Before the trial began, Kors released a statement calling on the Obama Administration’s Justice Department to issue an amicus brief in favor of their position in Perry v. Schwarzenegger.

   “The time has come for elected leaders to empower all Americans, regardless of sexual orientation or gender identity. Once again, we call on the Obama administration to join Equality California and others in urging the federal courts to strike down this grossly unjust law. In doing so, we will bring our nation one step closer to realizing its promise of equality for all. Our country’s bedrock principles of democracy and freedom are at stake.”

Kors elaborated on that after the first day of testimony. “This is the civil rights trial of the decade,” he said. “We’re asking the Justice Department to weigh in on a basic principle. This doesn’t only apply to the LGBT community, but all minorities. And to be silent is unacceptable.”

(emphasis mine)

I’m certain Kors isn’t holding his breath

Night Owl made a good argument in comments last night that this may be the Right fight. Wrong Case. and could eventually hurt any future case for Marriage Equality and overturning DOMA.

paulhogarth at Calitics has an excellent synopsis of the case and the players.  

It his piece, he also make a lot of important points about why Prop 8 may be the wrong statute to challenge:


Every major lawsuit to achieve marriage equality has consciously avoided claims under the federal U.S. Constitution for a reason.  As long as the claims are kept in the confines of a state constitution, that state’s Supreme Court has final say – and the case cannot be removed or appealed to federal court.  The concern is that, while there are legitimate and arguable federal claims, any federal case can be appealed to the U.S. Supreme Court – in front of Justices Clarence Thomas, Antonin Scalia, John Roberts and Samuel Alito.

The problem here is that because Prop 8 is a state statute, any removal of the issue to Federal court opens up the possibilty that Scalia, et al could find in favor of discrimination and thereby cement not just California’s ban, but bans in all of the other states as well.

Keeping the issue at a state level, by contrast, allows a lot more leeway for legal challenges of individual state laws without the heavy hand of the Supreme Court clearing the field in one knock out blow.

A far better legal strategy than suing over Prop 8 would be to sue over DOMA, which is a Federal law itself and therefore far less threatening to state based marriage equality initiatives – not to mention that DOMA is hands down the most insidious of all anti-SSM statutes.


you can’t have marriage equality without challenging federal law.  Even before California voters passed Prop 8, same-sex couples never had full marriage rights.  The Defense of Marriage Act (DOMA) prohibits gay couples from any federal benefits – such as the right to sponsor an immigrant spouse, Social Security or joint federal tax returns – and allows states to not recognize out-of-state gay marriages.

The big irony here is that DOMA is far more restrictive of same sex marriage rights than Prop 8 (which is simply restricts the use of the word ‘marriage’), yet DOMA is not even mentioned anywhere in Boies and Olson’s claims.  

Boies has already lost one challenge to an election result before the Supreme Court.  Another loss, in front of an even more hostile bench, has the potential to set back the cause of gay marriage by decades.  


Night Owl goes on to clarify

I said:


The problem here is that because Prop 8 is a state statute, any removal of the issue to Federal court opens up the possibilty that Scalia, et al could find in favor of discrimination and thereby cement not just California’s ban, but bans in all of the other states as well.

paulhogarth specifically argues that other state laws are not threatened by the Prop 8 case, but that a loss would make it more difficult to overturn DOMA itself.

I agree that a Prop 8 loss could indeed short-circuit current and future challenges to DOMA proper, but I think he underestimates the impact that an adverse US Supreme Court decision would have on state courts and legislatures in deciding whether to sanction same sex marriage.  I also think an adverse ruling would complicate US Constitutional challenges under the Full Faith & Credit Clause to states who outlaw recognition of gay marriage from other states.

Some of this gets technical I know, but the bottom line is that I think we’re making a big mistake here.

This could be a serious problem for GLBT right to marry.


Skip to comment form

    • TMC on January 12, 2010 at 17:28
    • Joy B. on January 13, 2010 at 01:28

    Cooper: Racial restrictions were never a feature of the institution of marriage. (laughter in our courtrtoomm)

    Laughter in the courtroom. The last of the miscegenation laws on the books in this state only got excluded in the 1990s – under which Obama wouldn’t have been a legal ‘person’ at all. Really. Due to a challenge on forced sterilization for wards of the state (attached under the eugenics classification).

    God. And I do mean Jahova (not sic on Jah). The reality is clear, even as many things “traditional” in the post birth control ’70s are not clear. It’ll work itself out culturally regardless of what politicians do. But gays have no better opportunity ever than to jump in right now to establish their rights. We as a society should be encouraging committed pair-bonding, not prohibiting it.

    Wow. Just… wow.

    • Robyn on January 13, 2010 at 17:00

    …is a bunch of hooey.  Before I had sex-reassignment surgery 16 years ago, I was able to marry a woman and raise a child, but we got divorced.  Now I cannot marry another woman.

    It’s all about appearances.

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