(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
recognition?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.
Feminist Philosophers 
“6) What empirical data, if any, supports a finding that legal
recognition of same-sex marriage reduces discrimination
against gays and lesbians?”
Finding a legal recognition of same-sex marriage reduces discrimination against gays and lesbians because it provides gays and lesbians the opportunity to enter into a legally recognized marriage.
Maybe that’s ruled on the grounds that it’s apriori rather than empirical.
Sorry, I meant “ruled _out_ on the grounds that it’s apriori rather than empirical”
i have a feeling that’s the sort of answer this judge is looking for, to be honest. it strikes me he’s on the ball with this stuff.
wait i can’t help but play devil’s advocate (NB. i am *entirely* against prop 8; just arguing to see where the argument can go):
one might say that marriage is only nominally different to civil partnership. and we have civil partnership in california (i think? someone correct me?). there are all sorts of instances of people being legally prohibited from referring to themselves in certain ways. for example, a person who is legally female may not be referred to as ‘he’ in state/legal documents. but we don’t consider this discriminatory: merely accurately descriptive. the term ‘marriage’ refers to the union of a man and a woman; therefore, to call the union of a man and a man (or a woman and a woman) ‘a marriage’ is simply inaccurate.
?
(again: this is *not* my view. i’m just keen to play out the argument.)
huh. i can’t think of a legal prohibition on calling a female “he.” so far as i know, that is a matter of practice, not law. i tend to refer to my legal opponent [the state] as “it,” regardless of the gender of the lawyer on the case.
the marriage lawsuits that preceded prop 8 were brought because civil unions do not carry all the legal advantages and obligations of marriage. the “it’s almost the same thing” argument did not hold up. and i just want to point out, the california supreme court, which found the limitation of marriage to opposite-sex couple to be unconstitutional, is not exactly a flamingly liberal court in most regards.
judge walker does seen to have a good grip on the issues.
This gives one hope.
Meanwhile the Icelandic parliament just voted today to make the marriage laws gender neutral, and abolish the registered partnership laws that have been in effect since the mid 90s.
“Separate, but equal” no more…
uncia that’s great news!!
@ Clayton,
I may be misunderstanding you, but I believe the judge is asking for some kind of evidence that suggests that, if the state allows same-sex marriages, same-sex couples will experience less discrimination on grounds other than their marital status. Or, will legal recognition of a same-sex marriage lead to a reduction in aggregate discrimination and reduced marginalization of gays and lesbians.
I am not completely up on the suit, but I am assuming the plaintiffs made such a claim and provided that it was self-evident. Perhaps studies have been done in states with legalized same-sex marriage that demonstrate just such an effect? If so, that would lend more credence to the plaintiff’s claim on those grounds.