Perry v. Schwartzenegger Questions for Closing Arguments

(or ‘Why I suddenly want to go to law school’.)

Closing argument questions have been published for Perry v. Schwartzenegger (ie, San Francisco’s civic challenge to prop. 8). U.S. district judge Vaughn R. Walker has issued 39 questions to be considered in closing. Among them,

To the Plaintiffs…

1) Assume the evidence shows Proposition 8 is not in fact
rationally related to a legitimate state interest.  Assume
further the evidence shows voters genuinely but without
evidence believed Proposition 8 was rationally related to a
legitimate interest.  Do the voters’ honest beliefs in the
absence of supporting evidence have any bearing on the
constitutionality of Proposition 8?

4) What is the import of evidence showing that marriage has
historically been limited to a man and a woman?  What evidence
shows that that limitation no longer enjoys constitutional

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

10) Even if enforcement of Proposition 8 were enjoined,
plaintiffs’ marriages would not be recognized under federal
law.  Can the court find Proposition 8 to be unconstitutional
without also considering the constitutionality of the federal
Defense of Marriage Act?

To Proponents…

2) […] what evidence in the record supports a finding that same-sex marriage has or
could have negative social consequences?  What does the evidence show the magnitude of these consequences to be?

4) Why should the court assume that the deinstitutionalization of marriage is a negative consequence?

6)  What evidence in the record shows that same-sex couples are
differently situated from opposite-sex couples where at least
one partner is infertile?

10) Assume the evidence shows that sexual orientation is socially
constructed.  Assume further the evidence shows Proposition 8
assumes the existence of sexual orientation as a stable
category.  What bearing if any do these facts have on the
constitutionality of Proposition 8?

11) […] 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?

And to Both…

3) What does the evidence show the difference to be between gays
and lesbians, on the one hand, and heterosexuals on the other?
Is that difference one which the government “may legitimately
take into account” when making legislative classifications?

6)  In order to be rooted in “our Nation’s history, legal
traditions, and practices,” see Washington v Glucksberg, 521
US 702, 710 (1997), is it sufficient that a practice has
existed historically, or need there be an articulable purpose
underlying the practice?

7) If spouses are obligated to one another for mutual support and
support of dependents, and if legal spousal obligations have
no basis in the gender of the spouse, what purpose does a law
requiring that a marital partnership consist of one man and
one woman serve?

And so on. What interesting questions; the fact that this is the level of the debate makes me feel hopeful. Read more here.

“Pregnant or Fat?”

Supposedly, that’s the question on every commuter’s mind as they consider whether or not to offer their seat to a large woman on the bus. Because it would be SO embarrassing to offer your seat to someone who isn’t pregnant. This claim appears to be simply on the fact that lots of pregnant women don’t get offered seats.

As a once-pregnant woman who was never offered a seat even when she had to use a cane due to her knees dislocating, I call “bullshit”. Folks might have wondered whether I was pregnant or not. But they had no cause to wonder whether I needed a seat, and they still didn’t give me one. My take: simple selfishness. Human nature in action is not always a pretty sight.

Further evidence for my claim of “bullshit” is the fact that nobody offers a seat by saying “you look pregnant– would you like my seat?”. Instead they simply get up, or offer the seat without citing a reason. (Or at least that’s what I do– my experience of receiving such offers is limited.)

Thanks, Jender-Parents, for the therapeutically ranty break from marking!