Posts Tagged ‘intervenors’

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.

DOJ Files Reply Brief in DOMA Case — Evidence of the Power of Outrage

August 17th, 2009 No comments

Today, the Obama Administration filed its reply brief in the California Smelt case, where gay couples have challenged the Defense of Marriage Act (“DOMA”). Let me start by giving away the punch line: It contains powerful statements on gay parenting and the weakness of the procreation argument that are likely to cause apoplexy in opponents of equality. This brief goes a long way towards undoing the legal and political damage that an earlier filing caused.

As you may recall, the Department of Justice’s first brief was in support of its motion to dismiss the couples’ claim, and generated disbelieving outrage (from me and many others, whom you can find referenced on my earlier post). The DOJ brief in that case made absurd and offensive arguments that, I wrote then, “seem to have been intended to set the course of judicial progress on gay rights back many years.”

Today’s brief, which you can find here, represents a significant step forward, and bears testimony to the power of strong but justified criticism.

First, what’s a reply brief? (Skip this paragraph if you don’t care.) It’s the last “salvo” in the flurry of briefs that a court sees before deciding a motion. In the case of a motion to dismiss, this means that the party seeking dismissal (here, the U.S.) first makes that motion, accompanied by a brief setting for its arguments that the case is without merit. The plaintiff then replies, attempting to refute these arguments, and urging the court to  allow the case to proceed. Then, typically (but not invariably), the moving party (again, the U.S.), then files a much shorter brief that responds, in a targeted way, to new arguments and to alleged misstatements by the other side — or just to have the last word on the contested legal issues. That’s the reply brief.

Here, short of withdrawing the motion to dismiss (which was almost certainly not going to happen), the Obama Administration essentially had three courses of action open to it: (1) Reiterate, defend, and refortify the initial arguments; (2) Decline to file a brief; or (3) File a brief that “walks back” from some of the rhetoric or arguments of the earlier brief, and rejects new arguments offered in support of dismissal. As you might expect, (3) is the best option — and that is what the Obama Administration did here.

In the short (seven page) brief,  DOJ starts by strongly urging dismissal on procedural grounds, stating that’s its wholly unnecessary for the court to reach the merits of the claim. This point was made, but with less conviction, in the earlier filing. Procedural dismissal would of course be best, as it would create no precedent potentially destructive to the cause of marriage equality.

The rest of the brief offers three very hopeful signals. First, there’s an unenthusiastic repeat of some (but not all) of the original arguments. Second, there is a direct statement that the Obama Administration believes DOMA is “discriminatory,” does not support it and urges its repeal. These are important statements, even though DOJ then states that it must defend validly enacted laws.

But it’s the third signal that’s the most encouraging, and potentially powerful. The DOJ takes on certain “intervenors” (interested third-parties who are given court leave to join the case so that otherwise unrepresented arguments will be made), who argued that DOMA’s support of opposite-sex only marriage is justified by the need to encourage procreation and the best setting for child-rearing. The Administration’s response is enough to reinstill a sense of hope, and warrants quoting in full:

Unlike the intervenors here, the government does not contend that there are legitimate government interests “in creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’ decision to define marriage as a union between one man and one woman. Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child  Welfare League of America have issued policies imposing restrictions on gay and lesbian parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.  Moreover, in Lawrence v. Texas, Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion — which, of course, is the prevailing law — because “the sterile and the elderly are permitted to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing, and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

Prepare for eruption of the right-wing volcanos.