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Vaughn Walker -- he's so dreamy [Aug. 5th, 2010|08:35 pm]
So I read the Perry v. Schwarzenegger decision today. (I also sorted through piles of notes and hung demotivator posters on the wall behind my door.)

Having also read Kitzmiller v. Dover, the conclusion I come to is that if you really want to annoy a judge, bring a high-profile case into his courtroom and then make an argument that is so weak-ass it implies you don't think he's very smart.

To paraphrase some friends, the Prop 8 decision is not just a ruling, it is a beatdown. The yawning chasm of competence between the two sides is just staggering. There are a whole bunch of places in the decision where Judge Walker quotes defendants' testimony in support of the plaintiffs. And I was almost getting third-party embarrassment cringe over his assessment of Blankenhorn's qualifications as an expert witness. Between every line, you can practically hear him saying, "Seriously, defense team? This was the best you could do? Seriously?"

Luckily, I had buckets of tasty, tasty schadenfreude to counter any discomfort.

Here is one of my favorite bits:

Blankenhorn’s book, The Future of Marriage, lists numerous consequences of permitting same-sex couples to marry, some of which are the manifestations of deinstitutionalization listed above. Blankenhorn explained that the list of consequences arose from a group thought experiment in which an idea was written down if someone suggested it. Blankenhorn’s group thought experiment began with the untested assumption that “gay marriage, like almost any major social change, would be likely to generate a diverse range of consequences.” The group failed to consider that recognizing the marriage of same-sex couples might lead only to minimal, if any, social consequences.

During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that “laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women.” Blankenhorn had not seen the study before trial and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the study and its results, reasoning that its authors “think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person.”

I mean, OW! It's just a bare presentation of facts, so you can't point at anything in particular, but the implications and subtext are just vicious. And beautiful.

And I gather that you don't get to introduce new evidence in an appeal, you have to stick to the findings of fact from the lower court? It's gonna be very rough for the NOM crowd, I tell ya...

[User Picture]From: mellowtigger
2010-08-06 02:46 am (UTC)
One wonders if this kind of sharp criticism in a high court can be used to back lawsuits of "fraud" or at least "slander" at anyone still peddling such lies in public. Maybe within that court's purview anyway? We can hope the Supreme Court weighs in soon by hearing the case (rather than denying certiorari), then it would have impact nationwide.
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[User Picture]From: goobermunch
2010-08-06 03:12 pm (UTC)
Probably not. Generally speaking, before you can pursue a claim for slander, you'll need to be able to show actual monetary damages. Depending on the situation, you'll also need to show that the speaker was acting with actual malice (akin to intent to harm) rather than deeply held, but misguided, beliefs.

Generally, the attitude of the courts is that the First Amendment permits untruthful ideas to circulate in the marketplace of ideas. The idea is that the invalid ideas will be discarded when confronted with better ones.

The other thing to consider is that, in light of the law I mention below, there is a distinctly non-zero chance that the Supreme Court can hear the case and find that Judge Walker was incorrect. There are a number of legal scholars who are very concerned that this opinion will force the issue to the national stage in such a way that it can set back the gay marriage movement for decades. Remember that the Supreme Court found "separate but equal" to be perfectly acceptable for 80 years.

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[User Picture]From: ng_nighthawk
2010-08-06 06:15 pm (UTC)
The analysis I've been reading agrees with goobermunch. This court is the most conservative high court in decades, and frankly I think there is legal merit to the argument that marriage is accessible to everyone under prop 8: you just have to choose the opposite gender. By that reading, there's no limitation on people's rights.

The real parallel, it seems to me, is Loving v. Virginia. But the connection does not constitute precise legal precedent, and the court was willing to ignore previous rulings that implied but did not explicitly state that states and municipalities could create restrictions on gun ownership without being bound by the second amendment. It seems to me that it's at best a 60-40 shot in the SCOTUSA. I'm being generous here because much of the specifics of the argument of Judge Walker are going to appeal to Justice Kennedy, who is generally the swing vote... Again, this is all reading various commentators who know more about this stuff than me.
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[User Picture]From: goobermunch
2010-08-06 06:27 pm (UTC)
I think you may have confused D.C. v. Heller with Loving. Gun control was not an issue in Loving.
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[User Picture]From: ng_nighthawk
2010-08-06 06:33 pm (UTC)
Nope, sorry, two diff issues. I think the precedent that comes close to applying in Prop 8 etc. is Loving v Virginia.

The semi-kinda-implied-precedent that was thrown out by the gun control case was United States v. Cruikshank. The sentence in the decision that seems like precedent was, "[t]he Second Amendment…has no other effect than to restrict the powers of the national government...." But it wasn't explicit, so technically SCOTUSA didn't reverse that decision, exactly, McDonald v. Chicago. But it sure seems like a reversal.

The connection here is the Roberts Court seems willing to overturn laws that they are philosophically against even when legal opinion and the test of time have stood for them. So it seems likely that they will let stand laws they are sympathetic to when the weight of law is leaning the same way.

But, again, I'm a lot of talk and just some newspaper analyst and wikipedia research, so the waters are noisy but don't run too deep here....
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[User Picture]From: goobermunch
2010-08-06 10:08 pm (UTC)
Sorry, my point was your post appears to refer to loving v Virginia as a gun control case.
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[User Picture]From: dr_tectonic
2010-08-06 06:42 pm (UTC)
I read some commentary that suggested that Kennedy is very likely to swing pro, given that he wrote the decision on Lawrence v. Texas after changing his position on gay rights because one of his clerks came out to him. And considering that in his dissent to Lawrence, Scalia essentially throws a hissy fit about the fact that it leaves no justification for banning recognition of same-sex marriage...

It's by no means certain, but I am hopeful.
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[User Picture]From: 0nce_and_future
2010-08-06 03:02 pm (UTC)
If you get a chance (and have not already done so) - go check out the transcripts of the trial.

The defense was flatly amateurish. I'm sure Cooper is a fine lawyer, but you can't build a dam from a bucket of sand.
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[User Picture]From: goobermunch
2010-08-06 03:04 pm (UTC)
While it is true that, generally, a trial court's fact finding is not subject to review on appeal, that isn't necessarily true in Constitutional cases.

A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.”

Heller v. Doe, 509 U.S. 312 (1993)

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[User Picture]From: annlarimer
2010-08-06 03:31 pm (UTC)
Wait. Wait. This guy used one of those stupid-ass throw-it-at-the-wall-and-see-if-it-sticks management team exercises as an argument, and they presented him as an expert witness?

I am so in the wrong line of work.
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[User Picture]From: bear_left
2010-08-07 01:54 am (UTC)
This is a wonderfully devastating decision -- and one that clearly is extremely aware that the author of Romer v Evans and Lawrence v Texas is Anthony Kennedy, the certain swing vote (barring something utterly unforeseen in the composition of the SCOTUS) when this case reaches its ultimate stage.
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[User Picture]From: flwyd
2010-08-10 04:01 am (UTC)
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