Well, today is the day.  Sometime this afternoon, we’ll get our decision in what will go down as one of the most anticipated decisions around these parts since…well…last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive.  No matter which way Judge Walker goes, this is history in the making.  It’s a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)

So, with that as background, what are we looking for today?  How do we win? How do we lose? And what defines a win?  Well, I said yesterday that I’m optimistic, but there’s more than one way to skin the cat here.  So, let’s just go through them, and I’m sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let’s start with the downers.

1. LOSE – Prop 8 is a permissible act of the people acting legislatively.
   
   Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us.  In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest.  This is the so-called “rational basis” test.  Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
   
   Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
2. Win – The implementation of Prop 8 is unconstitutional.
   
   This is how we win, without getting everything we really want.  This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states.  The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed.  This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs.  It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality.  And it further muddies the underlying issues when what we really need is clarity.  Could it happen? Yes, it very well might.  But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
3. WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
   
   This would be our ultimate victory, and really, what Olson and Boies are going for in this case.  As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8.  However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8.  In other words, don’t make wedding plans just yet.

I shouldn’t quite leave that logic of our win hanging in the breeze quite so much, so I’ll pull a quote from Loving v Virginia to show you the Supreme Court’s logic in that case.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law.  If you’ve read much of the history of the era, you’ll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade.  Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.  

I’ll not give you the whole wikipedia version of substantive due process, but long story short, it protects fundamental rights generally.  But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument.  As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won’t rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws.  We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.

But, for now, this is just speculation.  The real thing is just around the corner.

Well, it looks like tomorrow is the big day. Judge Walker will finally issue a ruling in the federal Prop 8 litigation:

District Court Judge Vaughn Walker will issue a decision Wednesday on the constitutional challenge to California’s Proposition 8, the ban on same-sex marriage, according to a court announcement today.

Walker’s written order will be released electronically Wednesday – no hour was given – and will later be available for public review in federal courthouses in San Francisco, Oakland and San Jose.(SacBee)

I am actually fairly optimistic here that Judge Walker will strike down Prop 8, at least as far as the inequity between married same-sex couples and those who missed the cut-off.  That much, at the very least, seems to be something of a narrow decision that many judges like to make.  

However, Judge Walker seemed to be hinting at wanting to take a bigger stand during the closing arguments.  Now, hints are essentially meaningless. I might as well try reading my cranium for clues, but that optimism in me keeps rearing its head.

In legal terms, it all comes down to two questions:

Now, as I’ve mentioned in the past, there are basically three choices for the standard: “rational basis”, intermediate, and strict scrutiny.  Under strict scrutiny, getting a law that discriminates to pass constitutional muster is extremely difficult.  It would have to be narrowly tailored to an important state interest.  On the flip side, under rational basis review, the court need only find a rational basis for the discrimination for any state interest whatsoever.

Now, that last one sounds pretty broad. However, the Defense of Marriage Act (Section 3) was recently struck down under this standard.  In that case, the Court said that the federal government simply had no interest whatsoever in regulating marriage.  Now, this is slightly different, as we are talking about a traditional basis of state power and a state regulation. But all that is to say that even if Judge Walker uses the rational basis test, all is not lost.

The decision will appear on the Northern District’s website some time tomorrow.

Today, the Field Poll released their latest study on California opinions regarding marriage equality (PDF). It’s good news on the whole, with a slight majority favoring marriage equality. But there are some caveats:

The poll’s results – 51 percent in favor, 42 percent opposed, 7 percent undecided – show big differences among age groups, geography and party affiliation.

The results were close to those the Field Poll found in May 2008, six months before voters banned gay marriage by approving Proposition 8, 52 to 48 percent.

The current survey also found that support for same-sex marriage drops below a majority when voters are given another option – civil unions.(SacBee)

So, yes, there is 51% support, but that support is soft.  Basically, we are back where we were two years ago.  Prop 8 repeal can pass, but there is still a lot of work to be done.  This time we have to run a better campaign to get our message out, be proactive and not just respond to the other side’s phony attacks. And of course, talk with our fellow Californians directly.  We can, and should, win in 2012, but it will not be easy by any stretch of the imagination.

Of course, there’s still this Prop 8 trial going on, so I’ll just take a look at what one of the big California-centric pundits had to say.  Dan Walters is the big California columnist at the Sacramento Bee. While I frequently disagree with his take on governance and other issues, he does offer an interesting perspective.  Butin today’s column, he just misunderstands the law. From today’s Bee:

In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal “Defense of Marriage Act,” which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.

Although Tauro’s ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states’ rights, to decide whether to recognize same-sex marriage, and the federal law “offends” those rights.

Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states’ rights matter, neither could they overturn California’s anti-gay marriage law, Proposition 8. (SacBee)

From a simple reading of a summary of the cases, that would appear to be the case, but once you delve into the law, that sort of fades away. Judge Tauro’s decision actually strikes down Section 3 of DOMA under two constitutional provisions.  First, he does it under the more expected Fifth Amendment of the Constitution, ruling that DOMA has no rational basis.  This is the first of the two combined cases, the Gill v OPM case.

It is very clear that this part of the two decisions is clearly not a setback whatsoever.  This decision argues that the marriage ban on same-sex couples violates the Bill of Rights. The Fifth Amendment has generally been considered to apply most of the Fourteenth Amendment equal protection jurisprudence to the federal government.  In other words, the fifth amendment equal protection clause in Gill is, for our purposes, functionally the same as the fourteenth amendment’s protections in the Prop 8 case.  Rather than hurting the challenge to Prop 8, Gill affirmatively argues for Prop 8 to be struck down.

Now, to the Massachusetts case, there the court says that the federal government cannot block the states from defining marriage as they wish due to the Tenth Amendment.  Now, first, let’s just say that this part of the ruling is on some shaky legal footing. While some of the TEA-baggers are fond of the tenth amendment, it simply doesn’t have much standing in the legal world.  The tenth is rarely enforced in any substantive way, and this component of the case very well may well get some new reasoning on appeal if it is upheld. In some exceptional cases, the federal government has been batted down as over-reaching. But the bar is high, and essentially applies only to Congressional action, in other words, legislation.  

The final point here is that the Equal Protection Clause applies to both the states (14th) and the federal government(5th).  Whether or not the federal government has a right to tell the states through legislation how to define marriage, the states still have no right to violate the equal protection clause.  So, long story short, far from being a back-handed gift to the proponents of Prop 8, the DOMA decision supports the plaintiffs case in Perry.

To bring it back around…Prop 8 is going to be short for the California law books, whether it goes down via judicial action or electoral.

While this might not have been on everybody’s radar, the IRS kicked down a huge decision for California same-sex couples. But PLR-149319-09 (PDF) has some big importance to California registered domestic partners and same-sex married couple. Long story short, the IRS is now recognizing California’s community property rules. And that’s big. Really big.

Let’s start from the beginning. I’m no accountant, but bear with me as I try to recall my tax class in law school.  Basically, California, like many Western states, has a default rule for marriage that any property acquired (other than through inheritance) is treated as “community property” between the two married spouses.  For California same-gender couples that got married in 2008, these community property rules apply unless you have opted out through contract (a “pre-nup”).  Also, in 2006 and 2007, the legislature passed, and the Governor signed, two pieces of legislation that granted registered domestic partnerships the same rights and responsibilities of marriage, with community property first being excluded for tax purposes in 2006, and then being completely folded in to the RDP in 2007.  

Of course, the problem here is that under the so-called “Defense of Marriage” Act, the federal government was not supposed to recognize any marriage not between a man and a woman. Thus, we had a real pickle on our hands. Under California property law, the property was community property, half belonged to both partners.  But how that property got there was anybody’s guess.  Just off the top of my head, there are a number of ways the federal government could have handled the issue:

1) Ignored community property between same gender couples entirely. Sure, it would cause conflicts with state tax issues, but who cares, according to the Yes on 8 folks, this is a future of civilization thing here.

2) Acknowledge the community property, treating  it as a gift between two unrelated partners for federal tax purposes. This would have been very bad for same-gender couples. Basically, couples would have had to pay gift tax on any difference in income over $13,000 (or so, depending on what the gift tax is that year). That would get pricy fast.

3) Acknowledge the community property, but treat it as earned jointly. Basically, each partner, for tax purposes, earned half of the income. This would be far more favorable and basically treat community property the same for all couples.

I’ll let you read PLR-149319-09 (PDF) on your own if you’d like to, but long story short, the IRS went for #3.  Once they went over the law, it seems obvious, but these things rarely are obvious before hand. And that’s the case here.  The IRS first relied on past precedent to first say that the federal goverment defers to the states to determine property law  (U.S. v. Mitchell) and then to say that California community property law determines who owns what for California couples (US v Malcolm).  Finally, the IRS simply stated that once California treated property as community property, the IRS would do so as well.

Now, in practical terms, what does this mean? Well, say you are a couple where one partner earns substantially more than the other.  You’ll have noticed that your California tax bills went down with community property. Now the same will apply to the federal government. For example, say “Adam” earns $50,000 as a public school teacher.  His husband “Bill” earns $150,000 as a investment hot-shot or something.  (No comment on our society’s priorities there.) Under this new law, each would report income of $100,000. For a variety of reasons in the tax code, that’s going to be advantageous. Now, I’m not a tax lawyer, and this isn’t specific advice.  If this is something that might apply, ask whomever prepares your taxes or some other tax professional.

There is one wrinkle in here. Technically, the IRS “private letter ruling” specifically addresses registered domestic partnerships, and uses that language. However, the ruling is entirely directed at the concept of community property, which applies in the same way for the 2008 marriages.  In theory, it should be handled the same way, but theory often gets you audited by the IRS.

If you’ve been busy waiting for the Prop 8 ruling you may not have been expecting the news yesterday that Section 3 of the so-called “Defense of Marriage” Act was ruled unconstitutional.  But it happened, and you have, at least in part, Martha Coakley to thank for it. (Yes, that Martha Coakley, you can check her out over the flip.) But, this decision is real, and powerful:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

This was actually two consolidates cases, the first case being brought by ten married couples (Gill v OPM – decision here), the other being the Massachusetts case (decision here).  In the Mass case, the judge ruled that DOMA violated the 10th Amendment. Yup, the one about the states having power over issues not delegated to the federal government.  It’s not used much, although the right wing is trying to go all anti-Obama with it these days.

Nonetheless, there are a couple of issues for Californians here. First, there are currently about 18-20 thousand same-sex married couples in the state. Give or take for folks who married in other states before moving here pre-2008 and for those relationships that have ended since then.  So, how does this ruling affect us here?

Well, unfortunately, this federal court decision really doesn’t affect us at all.  In theory, the ruling only covers Massachusetts for the time being. The case was brought on behalf of the state, and unless and until it moves up through the 1st Circuit and possibly to the Supreme Court, the case only has persuasive precedential value.  For now, DOMA is still valid in California.

That being said, there are still many ways to challenge DOMA, and this is a big first hurdle of getting a federal judge to call it for what it is: clearly unconstitutional.  We should see additional lawsuits challenging DOMA from a variety of legal fronts over the coming months and years.

Of course, that Prop 8 decision will also play a major role in all this.  The end game is, of course, for universal marriage equality, but the legal doors on the way there are slowly and steadily opening.

Check the flip for an interview with Martha Coakley about the decision as well as an interview with Tobias Wolfe, President Obama’s campaign advisor for LGBT issues.

Background and Coakley:

Visit msnbc.com for breaking news, world news, and news about the economy

Tobias Wolff:

Visit msnbc.com for breaking news, world news, and news about the economy

You interested in what the polling looked like back in 2008 for Prop 8?  Well, you can get all the data you could possibly want (and then some).

You can find the data right here.

It’s part of the wind-down of the Equality for All organization that ran the No on 8 campaign.  Now, go get to the data madness…

I’ve been trying to keep abreast of the Prop 8 closing arguments, hitting refresh on several different websites.  Through all of this, I have tried to at least, on occasion, take a step back to be as objective as possible.  I was always something of a skeptic. After all, much of our judiciary has been appointed by Republicans.  It just seemed like the logical conclusion of all this was some sort of temporary victory for Maggie Gallagher’s team.  However, all that being said, I am now coming to the conclusion that our odds really aren’t that bad.  And in many ways, the real legal reach would be to not overturn Prop 8.

That isn’t to say that Prop 8 will be overturned by the Supreme Court.  The Roberts court has been known to make a few reaches of legal logic in the past, and a decision favoring Cooper’s  case would not really shock anybody.  But, the case that the legal team, headed by Olson and Boies, has built here is really quite solid.

As Rick noted, Judge Walker spent much of the day trying to get a legally valid point to emerge from Cooper’s mouth.  But, when it comes down to it, this is the heart of their case:

The legislative process involves setting priorities, making difficult decisions, making imperfect decisions, and approaching problems incrementally. That process is what is at work in this state.

And it’s at work elsewhere in this country. And as the court…said, there is a debate about the morals, the practicalities, and the wisdom of this issue that really goes to the nature of our culture. And the constitution should allow that debate to go forward among the people.

In other words, what Cooper is arguing here is that despite how wrong Prop 8 might be, it should still stand.  He has essentially given up on arguing that Prop 8 is actually accomplishing some valid purpose. Instead, he is relying on the “rational basis” test to argue that the state legislative authority allows Prop 8 as some sort of valid exercise because the state might have some sort of “channeling” power towards marriage. (Who exactly they are channeling remains an open question. Because, I’m pretty sure I will not be channeled anywhere.)

He doesn’t bother to claim that this is a good idea, or a just idea. Rather, it simply a “rational basis” to legislate from.

Trouble is that, quite simply, it is not a rational basis. I don’t think I can say it any better than Ted Olson:

So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it’s the right of the person. It’s not the right of the State of California to channel us into certain activities or in a certain way.

There’s a long way to go folks, but today was a good day.  Even if we lose at the Supreme Court, this case has been a valuable exercise for the nation. Cross-posted from Prop 8 Trial Tracker

Today, the Proposition 8 trial in San Francisco Federal Court will hear its long-awaited closing arguments – as gay marriage advocates prepare to return to the ballot.  And a new study conducted by the Haas Jr. Foundation looks at pre-election polling data from 33 states that passed anti-gay marriage initiatives.  It concludes (a) we always do worse than what polls say, and (b) voters don’t change their minds about this issue during campaigns.  The lesson, of course, is that we must work harder to move hearts and minds – and that work can’t be done in a short election season.  Sadly, the implications of this study will strike many as discouraging – was all the money, time and energy we spent in California and Maine somehow a waste?  It’s true gay marriage is a sensitive topic that voters develop hard feelings about that can’t be changed overnight.  But the study did not focus on the small sliver of “persuadable” voters in each election who decide the outcome.

The Haas Jr. Foundation hired NYU political scientist Patrick J. Egan to study 167 polls in the 33 states that had a gay marriage ban from 1998-2009 – and compared it with the results on Election Day.  And as we already knew – having painfully experienced this in state after state – the results after votes are counted are worse than what polls had said.  Moreover, as Dr. Egan reported, poll results throughout the campaign were mostly static.

Did people lie?  Yes and no.  Egan’s analysis showed that polls accurately predicted the pro-equality vote – i.e., people who voted “no” on Prop 8 – but that they undercounted people who voted to ban gay marriage.  So if a pre-election poll would show us winning a plurality of 48-45 (which campaigns find encouraging), it would mean that we lost 52-48.  

Respondents didn’t tell pollsters they were going to vote “no” and voted “yes” – the so-called Bradley effect where voters want to give the “politically correct” answer.  What instead happened is that embarrassed voters said they were undecided.  Which is why, said Geoff Kors of Equality California, we should only go to the ballot after polls show a majority who plan to go our way.  “Once people are for equality, we don’t see slippage.”

Voters are also not confused about which position – “yes” or “no” – is pro-gay marriage in ballot campaigns.  In California, the “No on 8” side wasted enormous efforts trying to make sure that San Franciscans knew the right way to vote.  In Maine, the “No on 1” campaign also spent a lot of time educating the base – but my anecdotal experience was that we saw more confusion there.

Egan’s analysis debunks the “confusion” theory because (a) we would have found it less of a factor in more educated and politically motivated states; and (b) if it was a problem at the start of a campaign, polls closer to the election would have gotten more accurate.

So why the discrepancy?  Egan speculated that pollsters screened out “yes” voters more than “no” voters – leading to skewed samples.  I believe that’s valid, because those who oppose gay marriage are less comfortable talking about the issue in general to people.

A second theory, which Egan said was “unlikely,” is that there was a substantial shift in opinion during the final days.  Again, this goes back to the general theme of the study that political campaigns don’t change voters’ opinions on this issue.  But having gone to Maine twice in October 2009, I believe there was a major change during the final week.  We lost the election by six points, but my understanding is we won the early absentees.

At yesterday’s press conference, Egan was asked about Figure 1 from his study – featured here – that showed a visible bump in the final week before an election.  “It’s very small and statistically insignificant,” he said – saying it only accounted for about 1%.

But what the data doesn’t show is who that one-percent shift was.  Without question, same-sex marriage is an issue where the vast majority of voters on each side already made up their minds – and no amount of campaigning would change their opinions.  Elections come down to just the sliver of undecided voters – maybe five percent – who don’t know or think much about the issue.  A 1% shift could be 20% of those people.

After Maine passed Question 1, the Washington DC think tank Third Way did a post-election poll that zeroed in on “movable middle” voters.  They produced a great study that argued we lost because of voters who support civil unions, but had not made the connection on marriage.  Their report offers an excellent guide to “reframing” the issue for this targeted group.

Frank Schubert famously told a gathering they were going to lose Prop 8 – until he and Jeff Flynt decided to bank the whole campaign on fears that your children would have to learn about gay marriage in public schools.  In the final week, “Yes on 1” in Maine shot an ad that endorsed civil unions.  Their right-wing base was nonplussed, but it may have swung the election.

Could a campaign in Maine or California have won marriage equality – if we had done a better job persuading swing voters in the short span of an election season?  The best part of yesterday’s press conference was when Geoff Kors of Equality California explained what happened when gay marriage activists had more time to change hearts and minds.  

For the first several months of 2008 – long before the Prop 8 campaign began in earnest –

EQCA ran a project in Santa Barbara County called Let California Ring.  The goal was to start conversations about marriage outside the pressure of an election – via house parties, canvassing and a TV ad campaign that tapped into peoples’ emotions.  The project did not achieve all of its goals due to inconsistent fundraising, but it laid the groundwork for “No on 8” locally.

Santa Barbara became the only county in Southern California to reject Prop 8.  While the state moved nine points towards equality between Prop 22 in 2000 and Prop 8 in 2008, Santa Barbara County shifted a whopping 24 points.  There is no question Let California Ring played a role, and the work that groups like EQCA and the Courage Campaign (with its regular Camp Courage) is doing now will eventually repeal Prop 8.

I’m just not willing to give up the idea that electoral campaigns matter …

Paul Hogarth is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.  He was a summer intern at Equality California in 2005 when the California legislature passed its first marriage equality bill, and was heavily involved in Maine’s “No on 1” campaign to help make travel arrangements for out-of-state volunteers.

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 a post with the parties responses to Judge Walker’s questions.

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.

See more over the flip…

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)

Plaintiffs:

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.