It’s election day in California and several other states.  With the exception of one statewide race, (AG) Democrats and progressives won’t be compelled to the polls.  Republicans will because of the battle of the billionaires (okay, one billionaire two multi-millionaires).  We can only hope that enough of us vote(d) to beat back two odious ballot measures put on by two big corporations.

But there was already big news today in California about “the trial of the century.”  Judge Vaughn Walker today issued a series of questions (see document below) for the parties to the federal Prop. 8 trial that began in January and was put on by Ted Olson and David Boies and colleagues and defended by the oxymoronic “Protect Marriage” proponents of Prop. 8.  

The questions are stunning in their breadth, complexity and essence.  You’ll see just a few of them below:

What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?

What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?

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?

The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?

Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc #605 at 11 (“But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are 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?

What does it mean to have a “choice” in one’s sexual orientation? See e g Tr 2032:17-22; PX 928 at 37

I am not a lawyer, but I can without doubt say that never before has homosexuality been on trial in America in this way.  The testimony in January, which I liveblogged, was breathtaking and so sweeping, that the defense (the folks who put Prop. 8 on the ballot) were left with only one argument: marriage has always been between a man and a woman so it should always be between a man and a woman.  And Professor Cott and other experts even destroyed that argument.  Even so, it’s a bit like saying that some people were always forced to live in a certain place so they should always be forced to live there.

We launched Testimony: Equality on Trial because this court case has already changed history.  As we can see from the Judge’s questions – read them and pick your own favorites–the entire scope of the debate has been encapsulated in this trial.  But the defense has worked at every juncture to stop you from seeing what happened and will happen in the courtroom.  We seek to make this your trial.  And soon, we’ll seek to hear your testimony.

For now, as voting for initiatives and candidates across the state and country winds to a close, we can see unfolding the true story of human rights in America.  

Watch the court. Whatever the ruling, this trial is history.

Here are all of the questions Judge Walker sent to plaintiffs and the defense.