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Posts Tagged ‘Perry case’

Live-Blogging Monday’s Oral Argument in Prop 8 Appeal

December 4th, 2010 No comments

On Monday (Dec. 6), the Ninth Circuit (federal appellate court) will be hearing arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of Proposition 8. I will be live-blogging the argument, beginning at 1 pm EST, over at 365gay.com. (I will link back to it from here when it’s done, but if you want the blow-by-blow, go there — not here.)

The first hour will address the standing issue; the second, the substance of the constitutional arguments. While standing arguments are usually a MEGO1, in this case it’s worth listening closely — there’s more than a minimal chance that the court will toss the Prop 8 defenders out on the ground that intervening parties don’t have standing to appeal.

  1. “My eyes glaze over.”

…But at Least It will Make a Good Made-for-TV Movie

January 13th, 2010 No comments

As I more or less expected, the U.S. Supreme Court has just ruled, 5-4, to continue to block the broadcasting — even the delayed broadcasting — of the Prop 8 trial. As I stated a couple of days ago, this action just ensures that we’ll continue to get our information through filters from the left, rights, and center. Yes, we can piece together the story in broad outline from these sources, if we want to take the time to synthesize all of this. But what a needless obstacle to information.

And the idea that the Prop 8 supporters will be harassed or threatened by the trial? By applying that reasoning across the spectrum of cases, the public dissemination of knowledge would be greatly reduced, indeed. One should have to show a clear and imminent danger for such a claim to carry the day, not the kind of speculative harm that’s really all that’s alleged here. Indeed, the brief filed in support of the defendant’s motion devoted all of one-half of one page to this argument, citing an earlier Supreme Court criminal law case, where (obviously) safety of witnesses and jurors might be a concern.

I was struck by this comment on another blogsite:

I really hope someone’s writing a book or a screenplay in order to present this material to middle America in the near future!

That says it all. Let’s wait for an easily digested version of the actual event, suitable for “the masses.” Why not let all of see it as it happens, and avoid the commercial calculations about what versions should get made? Or is this too obvious?

The Court, though, sidestepped these more difficult issues by ruling that the order to broadcast was procedurally deficient (the lower court did change its rules “at the eleventh hour,” as the Court said). I’m trying to get my hands on the full opinion and will have more to say after I’ve thoroughly digested it. For now, I note the distressing (if wearily predictable) fact that the 5-4 split was along the usual conservative-moderate (by no fair lexical stretch can these four be called “liberal”) fault line. Is this ruling a harbinger of the ultimate decision when the case reaches the Court? Who knows, but I’m not encouraged.

Enjoy whatever scraps you’re able to get from those “on the ground.” A terrible shame, really.

Update: 6:08 EST You can find the decision here. Most of the squabbling between the majority (Roberts, Scalia, Thomas, Roberts and Alito) and the dissent (Stevens, Breyer, Ginsburg, Sotomayor) had to do with the way the rule permitting broadcast was put into effect. The majority disclaims any ruling on the merits of whether trials should be broadcast in the first place. The dissent seems skeptical of this statement. So am I.

(Kind of) Live Updates of Prop 8 Trial

January 11th, 2010 1 comment

As I noted in my previous post, there won’t be any youtube coverage of the Prop 8 trial (Perry) now underway in California. But here’s a link to the Mercury News’s website, which is offering frequent updates of the proceedings. That’s what we’ve got from now, so we’re counting on those in the courtroom to relate what’s happening.

Interpreting Supreme Court’s Stay of Video Coverage in Perry v. Schwarzenegger

January 11th, 2010 1 comment

Less than one hour ago, the Supreme Court voted — by a lopsided 8-1 majority — to grant the defendants’ motion to prevent the youtube broadcast (even the delayed broadcast) of the trial proceedings in Perry v. Schwarzenegger, the California federal case challenging the constitutionality of Prop 8 (and, by extension the constitutionality of the ban on same-sex marriages.)

I can’t yet find the Court’s ruling, but it’s likely short, because the Court only agreed to defer the issue until Wednesday, by which time one would expect they’d issue a more comprehensive decision. But the fact that eight of the justices believe that the application has at least some merit (a least enough for a short stay) surely isn’t a good sign for those, like me, that planned on some good popcorn viewing over the next several weeks.

I’ll have much more to say after the Court’s more substantive decision on Wednesday (especially if the Court affirms and continues the stay), but for now I note:

  • As the linked article suggests, some members of the Court may be allowing their own views about televising of Supreme Court proceedings to affect their judgment here. Several members, notably Chief Justice John Roberts, have been vocally opposed to suggestions that the Court allow anyone to actually see what it’s doing.
  • It’s worth wondering how the professedly (if disingenuously) anti-elitist Justice Scalia will rule. Surely public access to a trial, where people sitting in their living rooms can make their own judgments about the evidence, should be — from the vox populi standpoint, anyway — better than having such proceedings filtered through the media lens; and a small number of media outlets, at that. Let’s see whether this sentiment even surfaces in a case where Scalia might believe that honoring it would do harm to a case in which his belief, from available evidence, is quite strong.

Of course, one might seize on my phrase “popcorn viewing” in support of the position that allowing the citizenry to watch trials of national importance is to permit their trivialization. But if we’re going to let people vote on rights, it seems the least we should do is to let the oppressed see the arguments being used against us.

As for the claim that witnesses will be intimidated or harassed should be trial be televised, it might be answered that the witnesses and their statements will (unless there’s something I’m not aware of) be part of the public record. Anyone determined enough to find out the information can already do so. Let’s not allow speculative, incremental risk to get in the way of full disclosure.

After all, the arguments against marriage equality are surely compelling, aren’t they?

Oh, Perry! (Hold On)

January 10th, 2010 No comments

In case you were wondering whether the Prop 8 defenders believe their arguments are sound, wonder no more: They have gone so far as to seek, from Supreme Court Justice Anthony Kennedy (who decides such applications for the Ninth Circuit, of which California is a part), an emergency stay of the California court’s order to allow a delayed broadcast of the trial proceedings. The trial is to start tomorrow, with the youtube broadcast to be offered on time delay (maddeningly, we don’t know when the video will be available; later the same day, or early the following day).

Does this action sound to you like that of a group confident in the strength of its arguments? Me, neither. The stay application cites the prospect of witness intimidation and harassment if this show trial is broadcast. Translation: We’re much better off if people can’t see that we have no good arguments against allowing gay couples the same right to marry that heterosexual couples take for granted.

One interesting tea leaf to read here: Justice Kennedy is among the Court’s most consistent defenders of the First Amendment, reading its guarantees quite broadly. Thus, if he does grant the stay, the prospects for ultimate success at the Supreme Court dim. His vote is likely decisive. And Kennedy probably can’t dodge the issue by asking the full Court to weigh in, because the other eight justices would likely split 4-4, throwing it right back to him.1 There’s something fitting about Kennedy’s role here: He can decide this, all by himself. We might as well say that about marriage equality, generally.

  1. I know, this is much too simple, because this isn’t the same as deciding the marriage issue on the merits. And the First Amendment issue could split the Court in a different way. Yes, but if Bush v. Gore taught us anything, it’s that theory and doctrine will be subordinated to political result when the chips are down. So I don’t expect the conservative wing of the Court to do anything that would diminish, even hypothetically, the case against marriage equality which they may soon have to hear.

The Perry Case: If This is the Evidence They’re After, No Worries

August 19th, 2009 No comments

Judge Vaughn Walker isn’t fooling around. Today, in the case challenging the constitutionality of Proposition 8 (Perry v. Schwarzenegger), he rejected requests by both various LGBT advocacy groups and a pro-Prop 8 group to intervene in the litigation.  Law Dork has a typically clear summary of the ruling here. The judge also appears to have set a remarkably early date for trial — January 11, 2010!

Too bad that this truncated timeline won’t give the Proponents of Prop 8 much time to pursue what is surely one of the most quixotic — even counterproductive — discovery efforts I’ve ever seen.

In response to Judge Walker’s order for specifics on what evidence they’re hoping to gather, and what it might prove, they offer these two statements (again, h/t to Chris Geidner at Law Dork — I can’t find this document on-line). Here they are (brace yourself!), followed by my analysis:

We will…develop evidence that homosexuality is not immutable by analyzing marriage and domestic partnership records from California. . . . From the domestic partnership records, we will compile a list of all the individuals in California who have entered a same-sex domestic partnership.  We will then cross-reference these names with the marriage records to identify individuals were previously or subsequently married to a member of the opposite sex.

Proposition 8 promotes the natural and mutually beneficial bond between parents and their biological children by encouraging parents to raise their biological children.  We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means.  We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records).  We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.

The first of these is comically absurd, and might tend to prove the opposite of what the Proponents hope. The second is a fascinating mix of the unintelligible and the irrelevant.

As to the first: I have no idea how many same-sex couples now married or in domestic partnerships were once married to members of the opposite-sex, but their “conversion” surely doesn’t prove that sexual orientation is “mutable.” Indeed, given the societal pressure on gays and lesbians to conform to heterosexual norms, including marriage, evidence that some moved from straight to gay relationships only serves to reinforce that self-abnegation and denial are painful and, for some, impossible to sustain. In short, migration in this direction might reinforce that sexual orientation is stronger than even powerful forces in the other direction — immutable, perhaps?1 And am I the only one who finds interesting that the Proponents aren’t offering to find evidence of people moving from gay unions into straight ones? Wouldn’t that at least be more logically relevant? Not if you don’t have any exhibits to produce.

I’m not sure what point the Proponents are trying to make in the second proposed evidentiary expedition.  In addition to the possible concerns about privacy that Geidner has raised, there’s the more basic question of what the evidence  would show. Same-sex couples, just like single people and members of opposite-sex couples, already have the legal right to use technological assistance to reproduce. Nothing about Proposition 8 affects that right one way or the other. Moreover, if  “many are [already] satisfying these desires with the assistance of technology or by other means,” shouldn’t the law step in to help the kids born through such means by recognizing their parents’ relationships? I don’t get it.  And what about foster and adopted children? It seems the Proponents are tacitly acknowledging that recognizing the relationships of parents of these kids would make sense.  Otherwise, why are they seeking to prove that most same-sex couples want to create their families in a different way?

OK, so maybe facts aren’t their best bet….

  1. I should say for the record that the whole “mutability” issue is to me a distraction; as the California Supreme Court has stated, sexual orientation, whether mutable or not, is central to one’s identity — and that should be that.