Expect More of the Same

June 15, 2010 at 11:00 pm 24 comments

by Brian Leubitz

First, I apologize for my absence over the past few weeks, it’s been a hectic time with the June primary election. With that gone, I had a bit of time to go over the responses to Judge Walker’s questions, much like some of my fellow Trial Trackers did in the comments to the original post.

First, let’s get this one out of the way: don’t expect anything new. By definition, closing arguments are something of a summary of what’s come before. What you see in closing argument is each side pressing their advantages, and this case is no different. Keep on reading…

So what are the proponents’ advantages? Well, if you read more than a page of their responses you see what they think is their strong point: rational basis scrutiny. In other words, Pugno and the gang believe that because gays and lesbians have never been considered a “suspect class” under the law, they are the ones defending the strategic ground. They only need to prove that there was some “rational basis” for the state to enact the legislation, nothing more.

As you go through their responses you will see this as the dominant theme. And that’s reflected in two ways. First, their rather persistent repetition of the fact that they believe rational basis review applies here. I think I lost count of the number of occasions they brought it up, but I was over two hands on it. Of course, Judge Walker asks this question to both sides, and the answers are instructive. While not the most thrilling question on the list, it does go to the heart of the matter. I offer them here, omitting citations:

Prop 8 Proponents:

Because same-sex marriage is neither “objectively, deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty,” and because Proposition 8 does not classify on the basis of a suspect or quasi-suspect characteristic, Plaintiffs claims are subject to rational basis review. Proposition 8 thus “bear[s] a strong presumption of validity,” and Plaintiffs “have the burden to negative every conceivable basis which might support it.” (Page 31)


Prop. 8 infringes on Plaintiffs’ fundamental right to marry (as well as their fundamental right to privacy and personal autonomy) and discriminates on the basis of sexual orientation and sex. Because Prop. 8 impairs fundamental rights and discriminates on the basis of suspect classifications, Proponents bear the burden of proving that Prop. 8 is narrowly tailored to further a compelling state interest. In the alternative, if the Court concludes that strict scrutiny is not appropriate, then Proponents would bear the burden of proving that Prop. 8 is substantially related to an important state interest because Prop. 8 infringes on Plaintiffs’ right to marry and their right to privacy and personal autonomy—which are significant liberty interests—and discriminates on the basis of sexual orientation and sex, which are both (at a minimum) quasi-suspect classifications. If the Court concludes that rational basis review applies, then it should examine the interests that Proponents offer for Prop. 8 to determine whether they are legitimate state interests. If the interests are legitimate, then Plaintiffs would be required to prove that Prop. 8 does not in fact “advance” those interests.

You’ll notice that the Plaintiffs response is much longer, and to be blunt, this is because they offer a complete response. The Proponents answer only in their optimal case, while the plaintiffs look at all possible scenarios. Much of that completeness is just law school textbook stuff, but it is worth repeating on this site as often as possible. Especially when it is actually in the filings.

To summarize the plaintiffs position a little bit, what they are saying is that they believe that a) gays and lesbians are/should be a suspect class and that b) the proponents must prove their case accordingly. Now, I should point out that in In re Marriage Cases, the 2008 decision that made my marriage possible, the California Supreme Court said that sexual orientation is a suspect class under the California Constitution. That doesn’t apply to the federal courts, who are interpreting the federal Constitution, but it is worth noting. However, no federal court has ruled that the federal Constitution does view sexual orientation as a suspect class. This case seeks to change that. It’s a broadening of the law, but one that is reasonable considering recent jurisprudence.

The plaintiffs also suggest that if strict scrutiny isn’t going to apply, then intermediate should. This is primarily used on gender cases, but there is sound legal argument on this front as a sort of midway point. And finally, they point to rational basis, the least favorable test, acknowledging their own burden under that situation.

The bulk of the rest of the proponent responses tries to shoe-horn in as much of their crazy evidence as possible. They’ve got the discredited Netherlands data in there on page 14. See my post during the trial highlighting the evidence debunking that. Long story short on that: Did marriage rates decline since the Netherlands allowed same-sex marriage? Yes, but at a slower rate than at periods before that. Thus, if anything, it proves our point, not theirs.

On pages 12-13, they have their wildly generalized, and far from conclusive, evidence showing that we don’t make as good of parents. Except not so much. Their strongest evidence for that point is a response that doesn’t even look at same gender parenting, rather, it is more accurately viewed in the context of single parenting. But, on the facts, the proponents/defendants are really grasping at straws.

Inversely, the plaintiffs are chock full of facts. On page 20 of the plaintiffs response, they go over the testimony showing few poor effects on the institution of marriage in jurisdictions where same sex marriage is the law, primarily from the evidence of Drs. Badgett and Cott. And of course, there are these quotes from the eloquent tongue of the proponents’ star witness: David Blankenhorn:

Indeed, Mr. Blankenhorn himself conceded on cross-examination that allowing gay men and lesbians to marry would “be a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.” Mr. Blankenhorn conceded that allowing gay men and lesbians to marry “would probably reduce the proportion of homosexuals who marry persons of the opposite sex and, thus, would likely reduce instances of marital unhappiness and divorce” , and also “would likely be accompanied by a wide-ranging and potentially valuable national discussion of marriage’s benefits, status and future.”

Thus, the questions for the court really are what standard to apply, and how to apply that standard. If we are on the rational basis test, our burden is considerably higher, but as noted above, the facts the defense offered were paper-thin with more holes than a nice block of Emmentaler cheese.

That being said, there is a way for either side to win this case. Rational basis standards have been known to allow some weak logic through the gates. Of course, it is my sincere hope that Judge Walker takes a look at that Swiss cheese case, and sees right through it. However, I will be eagerly awaiting the argument tomorrow.

Entry filed under: Uncategorized.

Preview of the big day Energy and excitement

24 Comments Add your own

  • 1. Billy  |  June 15, 2010 at 11:12 pm

    This sounds like a done deal, from a logical perspective. From a *legal* perspective, I cannot say, but it sounds like our side has a more solid case.

    I’ll be watching tomorrow to see how this all plays out! <3

  • 2. JonT  |  June 15, 2010 at 11:17 pm


  • 3. Shun  |  June 15, 2010 at 11:22 pm

    It sucks I will be asleep through most of this due to time difference, but I hope to wake up to very good news/arguments.

    However, I’m much more interested to know when Judge Walker is thinking of making a decision on the case. I would assume he already knew, for the most part, what both sides were going to say for the responses and closing arguments. So there really isn’t as much for him to go through this time…I would assume…

  • 4. Kathleen  |  June 15, 2010 at 11:24 pm

    Thank you Brian, as always, for a clear concise explanation of the essence.

    I have a couple of mundane questions:

    1. From what I’ve heard in news conferences, I was under the impression that Ted Olson would be delivering closing arguments for Plaintiffs, but Julie’s post lists both Olson and Boies in the Plaintiffs’ slot. Is David Boies also intending to argue?

    2. Are there any Administrative Defendants left who intend to give oral argument – that 11:45 – 12:00 slot? So far Schwarzenegger, Dean Logan (L.A. County Registrar-Recorder/County Clerk), Mark Horton (Director of CA Dept of Public Health and State Registrar of Vital Stats), and Linette Scott (Deputy Director Health Info and Strategic Planning for CA Dept of Public Health) have all waived closing arguments.

    • 5. Dan Hess  |  June 16, 2010 at 5:23 am

      I don’t believe it’s necessary for one lawyer to give closing arguments; I think they can be read by anyone who wants to speak should they choose to do so. That said, it’s possible that Walker just included Boies’s name on the list in case he wants to speak and Olson will be giving the entirety of our side’s closing arguments.

      As to the second question, no idea. There are a number of administrative defendants who could speak, don’t know if any of them actually will. Since it’s only a 15-minute time block, I’m thinking at most one person is expected to.

  • 6. Kathleen  |  June 15, 2010 at 11:28 pm

    Forgot to subscribe (wish there was a way to do this without posting.. for all the MANY times I forget)

  • 7. Shun  |  June 15, 2010 at 11:33 pm

    Prop 8 spending found to have swayed no voters


    Basically it says that an academic study found that no one from both sides changed their minds on ss marriage all these years, despite however much money they spent on campaigning.

  • 8. Sheryl  |  June 16, 2010 at 12:05 am

    don’t know if I can accept that conclusion. I think a lot of voters were swayed by the Yes on 8 campaign. I truly believe that people believed those outrageous claims made about schools and children. Heck, the Yes on 8 even used the example of the SF children that went on the field trip to celebrate the marriage of their teacher (ss marriage) in their response to one of Judge Walker’s questions. So conveniently not mentioned that this was planned by the parents not the teacher and that all children that went on the field trip has permission slips signed by their parents. And, let’s face it, if campaigns did not work, we would not have all of the campaigning during elections.

    • 9. Shun  |  June 16, 2010 at 12:09 am

      yea i feel the same way
      if anything, campaigning may have just gotten the people that normally wouldn’t have voted to vote
      So no minds were changed…just that more may have chose to vote one way or another

      the whole “children will learn about it in school” is perhaps one of the most frustrating argument to me.

    • 10. Bryan  |  June 16, 2010 at 2:29 am

      Now if only there was some wonderful truth in television type law… or something along the lines of a libel/slander case that could be done here. We can’t get what we really SHOULD be given (the vote thrown out over lies… and this trial is the only way we can do that).. we can at least create a situation where they have to pay an exorbitant fee for lying with an agreement that they’ll never do it again.

    • 11. Sagesse  |  June 16, 2010 at 5:40 am

      With all polling, you have to ask the right question. I’m skeptical of the answer to the question they did ask, but I believe a big effect of advertising is to Get Out The Vote. This tactic generally works better with the anti-forces, who are more likely to vote anyway.

  • 12. Alto  |  June 16, 2010 at 3:30 am


  • 13. DebbieC  |  June 16, 2010 at 4:15 am

    I’m so grateful for a site like this. I’m in Florida (Anita Bryant land) and even though I live in a gay-friendly area it’s still makes me angry to know I’m not seen as equal to the red-neck drunken abusive couple across the street. Thank you O&B and all their supporters for doing this. Change will happen.

    Just wanted to share – we can vote for Courage Campaign to be a recipient of a donation from Chase, but we all have to vote on facebook.


    Last time they did this, Matthew Shepard Foundation got $25K.

    • 14. Billy  |  June 16, 2010 at 5:34 am

      I voted :D

    • 15. funkifried  |  June 16, 2010 at 9:14 am

      i agree. A friend was telling me the other day about her co-worker who married a convicted child molester while he was serving time in jail. Yet the woman is an uber *Christian* who is completely against gay marriage because it’s “immoral.” Totally blew my mind.

  • 16. Richard A. Walter (soon to be Walter-Jernigan)  |  June 16, 2010 at 6:37 am

    In other words, even in their closing arguments, the D-I’s can’t tell their rears from holes in the ground

  • 17. Alan E.  |  June 16, 2010 at 6:43 am

    I loved how the Plaintiffs used the Blankenhorny quotes many times, especially the one about allowing marriage between same-sex partners would be more American. I think they used hat line at least 5 times.

    • 18. Chris B  |  June 16, 2010 at 10:49 am

      Yes, I loved that too. After seeing his name a few times I remembered he was the Proponent’s witness.

      I think the whole “we’ve never historically recognized ss marriages” is a silly argument, because until the late 20th century, gay behavior was illegal!

      At some point you have to figure out what a civil marriage really is and why does the gov’t recognize married couples? The whole ‘stable family for raising children’ can’t apply anymore due to no-fault divorce, right? And sterile couples, etc. I could probably put an ad on Craig’s list, meet someone and be married within a week–someone I don’t love (or even like), don’t want to have sex with, don’t want to live with and don’t want to have children with. THAT the gov’t would have no problems with. THAT would not be defiling the sanctity of marriage.

      CA has domestic partnerships and gay couples can adopt. (Which I think the lawyers pointed out to argue against the ‘raising children’ argument). How is that any different than a ‘marriage’, other than not using the name ‘marriage’?

      From a purely logical standpoint, it seems like an easy decision. But I won’t count my chickens…

  • 19. truthspew  |  June 16, 2010 at 9:11 am

    I think that Walker has already made his decision if his comments during the trial are any real indication. He wasn’t very happy with the defendants arguments in this case.

    Right now I think he’s just dotting the i’s and crossing the t’s, particularly since the closing arguments are nothing but a re-hash of things said at trial.

  • 20. IT  |  June 16, 2010 at 9:54 am

    SF Gate reports that the Defendants are seeking to revoke recognition of the 18,000: that includes MY marriage;
    SF Gate:

    As the trial over California’s prohibition on same-sex marriage enters its final stage today, the ban’s sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8….

    Andrew Pugno, an attorney for Prop. 8’s backers, said in an interview that the sponsors aren’t asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married…..

    Gay rights advocates argued that the unequal treatment of couples who married at different times was one of many reasons to overturn the ballot measure. But Cooper said Tuesday there was a better way to treat both groups of couples equally while respecting the people’s will – “sustaining Proposition 8 by giving it retrospective effect,” that is, deny state recognition to the pre-election marriages.

  • 22. David  |  June 16, 2010 at 10:46 pm

    You might say the defense was telling Emmantaler tales… eh? eh?

  • 23. José Merentes  |  June 21, 2010 at 9:23 am

    It is not Hernandez Montiel v. INS a precedent which supports strict scrutiny? It was mentioned by Olson in his closing arguments.

    • 24. Kathleen  |  June 21, 2010 at 12:12 pm

      Hello Jose, I don’t understand your question. Are you asking “Does the case [Montiel v INS] support the claim that strict scrutiny should apply to sexual orientation?”

      And you saw it was mentioned by Olson in his closing arguments. I couldn’t find reference to it in the transcript. Can you find the page number for me? The transcript is available here:

      I’ll be glad to try to answer your question once I better understand it.


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