DriveThru – Get What You Need

The trial judge makes it clear here that media reports that he was considering allowing television cameras to record the closing arguments were incorrect.

And oddly enough, the case is apparently not even ready for closing arguments just yet, as a document discovery dispute has only within the last several days been resolved, requiring the LGBT opponent groups to produce certain internal documents of the kind that the Prop 8 proponents were required to produce. I don’t think I’ve ever heard of a case where discovery was still going on after the trial finished up, but nothing about this case has been “normal,” so we’ll just wait and see. I assume that if the documents produced turn up any evidence that the Prop 8 lawyers want to introduce into evidence before closing arguments proceed, they will be allowed to do so.

According to a column on Sunday:

“The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.”

As any reader of this blog already knows, I’ve criticized Walker’s handling of the case from the beginning. His rulings on discovery disputes, unnecessary factual issues he wanted to see developed at trial, and his incomprehensible series of maneuvers attempting to get television cameras in his courtroom, have all revealed a bias in favor of the anti-Prop 8 plaintiffs. The source of that bias could be the judge’s sexual orientation. At this point that’s just speculation. The fact that the bias exists is what’s important. As Andy Pugno, a lawyer for the Prop 8 folks said in the article:

“In many ways, the sponsors of Prop 8 have been put at significant disadvantage throughout the case,” Pugno said. “Regardless of the reason for it.”

Ed Whelan at Bench Memos comments on the Chronicle article in a post entitled: “Judge Walker’s Skewed Judgment.”  Key excerpts:

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.

….

Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.

I agree with both Pugno and Whelan. Whatever the source of Walker’s bias, the results have been clear – any chance for an impartial trial based on the actual (as opposed to the Walker-contrived) constitutional issues surrounding marriage – has been lost.

I waded into a discussion of the apparent trial strategy of the anti-Prop 8 legal team of Olson and Boies to attack religion in the Perry case in an earlier post.

The always-incisive Al Mohler takes on the issue in a much more extensive way in this column addressing this Time Magazine article. Mohler’s key graph:

Boies’ argument finds its roots in philosophies of public reason such as those proposed by Robert Audi and the late John Rawls. Rawls argued that a liberal society must require the exclusion of all “comprehensive doctrines,” by which he meant religious worldviews. Audi argues that public discussion — and certainly any legislative or judicial forum — must require all parties to come to the table with both a secular rationale and a secular motivation. In his words, all parties have an “obligation to abstain from advocacy or support of a law or public policy that restricts human conduct, unless in advocating or supporting it one is sufficiently motivated by . . . adequate secular reason.”

So what do you believe? Should a religious worldview be a disqualifier for participating in the enactment of our nation’s laws? I don’t think there’s a middle ground on this one. You’re either all in, or all out.

…except for closing arguments (to be set after Judge Walker has finished digesting the evidence), a decision (probably in a few months), an appeal to the 9th Circuit (a decision in a couple years), and a probable trip to the Supreme Court. It could take several years to complete the process. It behooves both sides in this clash of values over marriage neither to take too much solace from a win in the lower courts, nor despair over a defeat. The issues are destined for the Supreme Court, and no one can confidently predict what the final outcome will be, because the outcome there may depend largely what the makeup of the Supreme Court is by the time the case gets there. I personally am convinced that the constitutional case for traditional marriage is rock-solid, but I’m realistic enough to understand that Justice Ginsburg (and her three liberal friends on the Court) and I agree eye to eye on almost no social issues. As usual, Justice Kennedy is the expected wild card.

Prof. Dale Carpenter, a law professor and pundit who favors legalized same-sex marriage, expresses doubts over same-sex marriage’s chances given the current makeup of the Supreme Court even among its liberal members:

“Like many others, I was dubious from the beginning about this bet. I don’t see how you get to a 5-4 majority on the current Court to strike down Prop 8. The hope has been that Justice Kennedy would join the Court’s liberal wing in such a decision. I’m not completely convinced that even this liberal wing — Justices Stevens, Breyer, Ginsburg, and Sotomayor — will take on the marriage laws of 45 states. Whatever else one thinks of their constitutional philosophies, the Court’s liberals are not nearly as adventurous or as aggressive as their liberal forebears.”

Maggie Gallagher over at The Corner thinks Olson and Boies chose the wrong strategy to win Kennedy’s vote..

“…for gays’ and lesbians’ political progress.”

So testified Professor Gary Segura of Stanford University as an expert witness for the anti-Prop 8 plaintiffs on Wednesday.

Chilling. The implications for people of faith are unmistakable.

Andy Pugno, the General Counsel for ProtectMarriage.com, has more on Wednesday’s developments. The Catholic League weighs in as well. Bill Duncan calls it “religious bigotry.”

Should people of faith be prohibited from participating in public policy, the creation of our laws? Is every law that expresses morality consistent with some religion automatically unconstitutional? That seems to be what the plaintiffs in Perry are after. That’s a bridge too far even for Judge Walker, I suspect.

I like this statement about faith and public policy made by a well-known politician:

“Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, Williams Jennings Bryant, Dorothy Day, Martin Luther King – indeed, the majority of great reformers in American history – were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their ‘personal morality’ into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.”

Can you guess who said that?

(UPDATE: ADF tweets from the courtroom that Segura has backed away from his “religion is the obstacle” statement. He’s now saying that it’s okay for religious groups to participate in the democratic process.  Gee, thanks)

You know you’re a veteran Twitter user if you know what the “hashtag” in the title of this post means. For the rest of us, it means that any Twitter users can enter that search term from their home page and find a Twitter search result page where everybody is talking about the Prop 8 trial in San Francisco in 140 characters or less, either from insiders watching the trial in progress, or those retweeting the updates from the insiders. (You get extra points if you know what “retweet” means.)

However, since the anti-Prop 8 folks have a home-field advantage in San Francisco, most of the tweets (and retweets) you’ll find with that hashtag search will be courtroom spectators (or their Twitter followers) sending out updates that are decidedly skewed against Prop 8 and/or its defense team. I also have to issue a language warning if you venture that particular search, as not all anti-Prop 8 Twitterers are civil.

If you are interested in following the trial from the viewpoint of the Prop 8 defense team, then you need to become Twitter followers of one or more of these: @ProtectMarriage; @ADFMedia; @AllianceAlert; or @AllianceDefense.

Here are a couple examples of “tweets” from the ADF court room team as a Prop 8 defense lawyer cross-examines one of the opposition’s experts, named Lamb:

Lamb agrees w/ social science showing kids benefit greatly when raised in intact mom/dad home vs cohabiting/divorced/step home #prop8

Lamb admits children w/o dads do worse academically, display more delinquent behavior…#prop8

ADF has experienced some difficulties in getting all their tweets into the #prop8 stream, but at this point it’s more of a mystery than anything sinister.

If you’re more interested in courtroom blog summaries, try here and here.

Erick Erickson at Redstate.com says it just right:

The Democrats have certainly realized that cameras are serious causes of intimidation. They do not want cameras to film the health care negotiations because they fear voter intimidation based on what happens. But they are outright desperate to get cameras into the courtroom in California to make sure all the faces of those who oppose gay marriage can be seen by the militant gay rights activists who threatened, bullied, attacked, and boycotted those who gave money to Prop. 8 donors. Intimidation at its finest.

Nicely put.

Two days ago the Supreme Court issued a temporary stay of Judge Walker’s order permitting live streaming of courtroom video. The court’s order today, which continues the stay pending a full appeal, is here. The vote was 5-4, with a typical conservative/liberal split. (Is anyone surprised that Sotomayor is solidly with the liberal wing of the Court at this point?).

Anyway, more analysis from Ed Whelan can be found here, and from Lyle Denniston at SCOTUSblog here. Technically, the Court’s grant of a stay is only limited to a period of time until the Court can hear a full appeal of Judge Walker’s order. Practically speaking, that probably can’t happen before the trial concludes, keeping the stay in place for the duration. That’s a good result for the witnesses who feared harassment for testifying on behalf of traditional marriage.

The Court’s majority opinion chastised Judge Walker for violating the procedural rules regarding potential televising, but also declared that this particular case was particularly unsuitable for televising:

“This case is…not a good one for a pilot program. Even the studies that have been conducted thus far have not analyzed the effect of broadcasting in high-profile, divisive cases.”

Walker continues to confirm all my prior doubts about him.

The anti-Prop 8 folks (plaintiffs) in this case presented the “expert” testimony of  Harvard professor Nancy Cott yesterday. It’s no surprise that as the plaintiffs’ expert she testified favorably for gay marriage. What was surprising, however, is the extent to which her credibility was severely damaged by her own admissions of bias. Prop 8 counsel Andy Pugno blogged an update about her cross-examination. A key excerpt:

The notion that Ms. Cott was called to the stand to provide neutral and impartial “expert” testimony was blown wide open when she admitted under cross examination by our defense team that she has long been an active advocate for gay marriage. We exposed the facts that she has lobbied in favor of legislation to legalize same-sex marriage; joined in lawsuits seeking to strike down traditional marriage; and is a key supporter and contributor to a group that actively pushes to “deconstruct” marriage in America. In fact, one of the groups that she has financially supported has openly encouraged polyamory, which is a relationship of three or more people in a sexual “group marriage.”

As a former trial attorney, I’ve looked for and selected expert witnesses for my case. I know how they are cross-examined for hidden biases, and I took pains to make sure that my experts had credibility. That’s why I’m amazed at the incredibly poor choice the plaintiffs’ attorneys made in selecting Ms. Cott as an expert. If I was this trial judge (or any reviewing appellate court) I would give no weight to her testimony in favor of same-sex marriage, but I would give great weight to any “admissions” she made that would hurt her case. And Pugno lists several from her cross-examination in his blog update.

More experts for the plaintiffs on tap for today. The trial should last 2-3 weeks.

The trial in Perry v. Schwarzenegger began this week with opening statements from the attorneys. Ted Olson, one of the lead attorneys for the two same-sex couples bringing the suit, published the text of his opening statement online. Although I disagree with almost every legal conclusion he draws, there was one statement of fact that he advanced that struck me as being divorced from reality:

“But Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity.”

The portion bolded above, “But Proposition 8 singled out gay men and lesbians…” is simply wrong factually. His various legal arguments can be countered by other legal arguments, and don’t concern me in this post. His allegation of fact on the “singling out,” however, has substantial bearing on the ultimate decision of the court on his equal protection claims.

Here are the 14 words that Prop 8 added to the California constitution:

Only marriage between a man and a woman is valid or recognized in California.

In protecting the traditional definition of marriage, Californians defined marriage as what it is, not what it isn’t. No one is “singled out.” By implication, however, many groups are excluded, some of which are known, some of which may be invented later. In addition to gays and lesbians being unable to marry same-sex partners, the definition would also exclude by implication polygamists, polyamorists and bisexuals, just to name a few off the top of my head. (The California state statutes also restrict marriage by age and consanguinity.) It seems like Olson’s factual statement misses the target by a constitutional mile.

Olson might be arguing that the Prop 8 media campaign didn’t address polygamists and bisexuals, etc. and “singled out” only same-sex marriage in its messaging. I haven’t seen all their commercials or media materials. But that’s legally different than arguing that the language of Prop 8 singled out gays and lesbians. It doesn’t. That should make a significant constitutional difference for whatever court finally decides this case.

The “singling out” rhetoric might make for a nice talking point designed to elicit sympathy. But one would expect Olson to deal more straightforward with the facts.