To re-cap, this is a federal trial that challenges Prop8 on equal protection grounds under Federal law. Whatever District Judge Vaughn Walker decides, the case can be appealed to the Ninth Circuit court of appeals and from thence to the Supreme Court of the US (SCOTUS). It's important to distinguish this from previous trial which was in the State Supreme Court on state constitutional grounds, which allowed for no further appeal (not being a federal challenge). To remind you, the SCoCal found regretfully that under California's dysfunctional constitution, a simple majority can take away rights from a minority. Thus, on STATE constitutional grounds, Prop8 stands, which led to the current federal challenge. You can see all my previous posts on the prop8 Federal case here.
Interestingly, the Judge has released a list of questions for both plaintiffs (the good guys) and defendents (the bad guys, pro-H8) that have been described as "breathtaking" in their scope.
These questions (which you can read here) cover all the Big Arguments.
For example, the plaintiffs are asked, if Prop8 is not based on "a rational state interest",
Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Prop 8?That is, does it matter if they thought they were acting rationally?
What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition.
There are several questions asking whether "tradition", the "it's always been this way" argument, can or should apply there. Think slavery, women's emancipation, etc. Some of these questions are addressed to both parties:
Both Sides are asked:
In order to be rooted in “our Nation’s history, legal traditions and practices,” ...., is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?And the defendents are asked,
Defendant #2: Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?I expect we'll see the same tired arguments from the proH8 side as in all the previous campaigns--I won't bother to debunk them here, but if you check out my posts on The Questions, you can find most of them.
Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?The illogic of the bad guys here continues to amaze me, and I'm glad the judge is calling on it. Denying us marriage does not affect any children of straight parents. It doesn't take them away. It also doesn't turn us into straight parents. What it does is endanger OUR children, while having no tangible benefits to the children of straight opponents.
Then there's this set that takes on the whole churchy argument, that a Mormon's or Catholic's religious freedom depends on denying ME basic civil rights, and that my civil marriage somehow affects their right to practice their religion. (I've yet to see the Roman Catholics challenge civilly marriages between divorced people, although their religions tenets also disallow remarriage following divorce. )
If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?
Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?
More info from
And read Frank Rich's brilliant column in yesterday's NY Times.