Andy Pugno goes back to the well

by Brian Leubitz

The Prop 8 proponents aren’t giving up. Just because they were told that they don’t have standing doesn’t mean they won’t try to find some way to fight the tide of history. This seems to be what they think is their best hope:

ProtectMarriage, the group that sponsored the 2008 ballot measure banning gay marriage, urged the state high court to act under a California constitutional provision that prohibits officials from refusing to enforce a law unless an appellate court has first determined the law is unconstitutional. There is no binding appellate ruling that says Proposition 8 is unconstitutional.

Legal experts predicted the California court would reject the challenge. Lawyers for the gay couples who fought Proposition 8 in federal court said they anticipated such an action and were prepared to respond to it. They said a state court may not interfere with a federal court’s decision.(Maura Dolan / LAT)

You can read Mr. Pugno’s handiwork here (Full Petition PDF). The petition alleges that since there was no appellate court ruling against Prop 8, the state actors violated Article III, Sec. 3.5 of the California Constitution.  Under that section, state actors are not allowed to ignore state laws on their own finding of unconstitutionality barring an appellate ruling against the law. Now, that’s all well and good, but in reality, a federal court has struck down Prop 8.

Judge Walker’s opinion in the district court level has been left as the last court case in the matter. And as the stay against marriages has been lifted, that is a valid federal court matter. Whether Pugno and his gang like it, federal law is supreme over state law. Prof. Vic Amar of the UC Davis Law School said this of the petition:

“The California Supreme Court will likely stay out of this and say the scope of Judge Walker’s order is a matter for the federal courts to determine,” Amar said. “State courts generally won’t get into the business of construing federal court orders. They leave that to the federal courts.”(Maura Dolan / LAT)

It’s not likely to go anywhere, but apparently Pugno has nothing better to do than spit into the wind of history.

This is crossposted from the Prop 8 Trial Tracker. Today should be the last day of testimony, with the closing arguments coming in a couple of weeks as to let Judge Walker digest the evidence a bit. You can get a whole slew of information about the trial at the Prop 8 Trial Tracker.

Well, this should be the last day of testimony, and the defense’s case is looking pretty shabby so far. Unless Blankenhorn’s redirect is simply amazing, he’s also going to be a net loss for their side. But don’t worry, Pugno can tell you how it really is:

The afternoon brought the testimony of our second witness, David Blankenhorn, president of the Institute for American Values, who provided his expertise on the institution of marriage, fatherhood and the family structure. He rejected the suggestion by plaintiffs that marriage is purely a private construct between two adults.  Rather, he explained, marriage between a man and woman is a globally recognized and historically public institution.  In fact, it is the only  social relationship with a “biological foundation” found in the complementary nature of man and woman and their ability to procreate.  Across all cultures and times, no other human relationship has been more closely connected to the ultimate goal of uniting the biological, social and legal dimensions of parenthood for the raising of children.

You’ll be shocked (shocked!) to know that Pugno doesn’t mention Blankenhorn’s cross examination where he goes on to say that “We would be more American on the day we permit same-sex marriage than the day before.”  Pugno argues that their definition is the correct definition, the only definition. But Ted Olson puts the lie to that:

This is the game that they’re playing. They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would de-institutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it. It’s a game. It’s a tautology. They’re saying, ‘this is the definition. You’re going to change the definition by allowing people access that don’t have it now, and that would change it so that people who currently have access won’t want it any more because it’s changed.’ This is all nonsense. They are not proving that. This is a syllogism that falls apart. The major premise, minor premise and conclusion are empty.

Pugno responds that voting didn’t really change when women were allowed to vote. History might disagree. The effects of women voting were pronounced and dramatic. The world, and this country specifically, would be a very different place without universal suffrage. But even if we take Pugno’s point on its surface, that the definition of marriage would be changed, it doesn’t take much more than a few google searches or a little time with a history book or two to realize that the concept of marriage is and has been a hodgepodge across the nations. Pugno’s definition, while perhaps true for him, needn’t be given more weight than the definition which excluded miscegenation or the definition of marriage that viewed women as property.

Marriage itself began as a way for human, who were living in caves at the time, to be sure of paternity. In some societies, it became a virtual indentured servitude to the husband. For example, a simple Wikipedia search for marriage will net you several different definitions. The Comanches and Ancient Greeks used marriage to subjugate, the medieval Europeans saw love as antithetical to marriage, and used it as a means of sealing political bonds. In fact, early Christian rulers almost always forced their daughters and siblings into marriages for their games of political chess. The fact behind all this ranting is that you can only use tautology for so long. Eventually, you need some real facts. And throughout this entire case, all we’ve seen is more empty vessels. Even NPR remarked today that Blankenhorn was the fifth defense expert who ended up giving testimony that favored the plaintiffs.

Today, the dust should settle on the testimony, and the judge will move on to consider the evidence before him. We should get a date for closing arguments soon, but we will definitely keep you posted.