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Protect Marriage’s 1st Witness Admits DOMA is Discriminatory. Is Their Entire Case Doomed?

The testimony of Kenneth Miller, a government professor at Claremont McKenna College and one of the defendant-intervenors in Perry, can only be described in this way: ultimate fail. How good is he for the defense when he admits under oath that he’s basing all of his conclusions on the propaganda fed to him by Yes On 8? You know, rather than his own research? And that a little thing called the Defense of Marriage Act — which acts in very similar ways as Prop 8 — is discriminatory?

Taking the stand yesterday as Protect Marriage’s first witness, Miller was there as an expert in the political power of California’s gay community. Miller showed he wasn’t exactly qualified to testify on this subject, not only because of how he defined political power — the ability to get the attention of local lawmakers, which, uh, white supremacist groups can do — but because he admitted his own shortcomings, like not knowing about gay leaders, the status of discrimination on a state-by-state level, nor whether black Americans enjoy more political power than gay Americans. (Amusingly, defense counsel Andrew Pugno said Miller “provided ‘striking’ examples of the many ways in which they have won support for their political agenda in California.”)

And then, of course, is Miller’s own admission that the data he was going off of was not acquired independently, but provided by the Yes On 8 camp. This is like a credit ratings agency taking an investment bank’s internal reports at face value, or the Food and Drug Administration not testing or verifying the studies of a new drug from a pharmaceutical company. It is, frankly, malpractice. And on the stand, Miller admitted he practiced just that.

And the the American Foundation for Equal Rights, which is financing the plaintiffs, is overjoyed, at least in the group’s regular email blasts send to media, where they point to this statement Miller made on the stand: “Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples,” which was followed by Miller’s acknowledgments that, according to AFER’s email, “lesbians face greater bias than straight women, and directly stated a federal law that defines marriage as an opposite-sex union as well as Prop. 8 as discriminatory.”

And here’s the real slam dunk (via), where “B” is David Boies and “M” is Miller:

B: Do you believe that laws that discriminate against intimate relationships between gays and lesbians is prejudice?

M: I would vote to repeal such laws. I have no idea what good purpose would they would serve.

B: You defined prejudice in your depo, as an unfair judgment. Using definition that way, does law that prohibits ss relations, rise to definition of prejudice?

M: I can’t speak to what was in the minds of lawmakers. If there was no supporting data as to why such laws were passed, I cannot say.

B: Sitting here today, you cannot say that such laws constitute prejudice?

M: Not something I would support, but cannot say if those constitute prejudice.

B: Laws that prohibited sex between gays and lesbians?

M: Yes and there were sodomy laws that prohibited sodomy between anyone before Lawrence v. Texas.

[...]

B: Any examples of discrimination against gays and lesbians in modern period?

M: Military.

B: Any others?

M: Private situations about which I cannot opine, but only official discrimination of which I can think is DADT.

B: Is that your definition, official discrimination, that is legally enforced by the state?

M: Yes.

B: Are you aware of any official discrimination against gays and lesbians in this country today other than DADT policy?

M: (Thinking) I’m trying to think of other laws that are official…policies that discriminate on that basis. One thing you are looking at would be DOMA policy.

B: There you go!

M: That’s what you are getting at. The DOMA policy is a differentiation of the treatment between gays and lesbians.

Delicious.

EARLIER: How Will Protect Marriage Try to Defend Prop 8 In Perry? With Spin, Hope, and a Prayer

  • 63 Comments
    • PADude
      PADude

      Wow, that hurt. Once it hits the Supreme Court though, I think 4 or 5 justices will just scan over that and ignore it exists.

      Still, never let it be said that a bigot can actually think rationally…and when confronted by rational thought, they tend to cave in and admit they’re completely lost.

      Jan 26, 2010 at 12:00 pm · @ReplyReply to this comment ·
    • terrwill
      terrwill

      This is turning into a clusterfuck for the haters. Instead of having Maggot Gallagher, that miserable old crunt simply spewing her poo to lunatic lemmings who leach on to her every wicked word, there are persons with an actual brain in their cranium arguing this thing. Fools like that pathetic little monkey Mr. Tam are being exposed for the rabid haters they are with no basis of facts in their arguments, other than saying that they read it on the internets, so therefore it must be true…………suffer you fools………..

      Jan 26, 2010 at 12:06 pm · @ReplyReply to this comment ·
    • Libertarian and proud of it
      Libertarian and proud of it

      Prop 8 supporters are the National Socialists of the 21st Century. They are no different than the millions of people who cheered Hitler as his motorcade came storming through.

      Jan 26, 2010 at 12:42 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      The question, then, is this: is it possible for the defense to put up such a sorry excuse for a case that a Supreme Court predisposed to side with them can’t bring itself to do so? It’s almost like they’re *trying* to lose; is there some legal benefit to that I haven’t heard of? I’m pretty sure you can’t use your own incompetence as a basis for appeal, for example.

      And apparently they have only one other witness. It had better be a good one.

      (Don’t take that the wrong way: of course I want the plaintiffs to win. It’s just embarrassing even to be following a trial where you can hardly tell by their testimony that their witnesses aren’t on our side!)

      Jan 26, 2010 at 12:57 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      In his own research Miller found that California’s initiative process “undermine[s] the authority and flexibility of representative government”. Did Yes on 8 not vet this guy at all?

      Jan 26, 2010 at 12:58 pm · @ReplyReply to this comment ·
    • rf
      rf

      I was actually quite surprised that he showed up again. Thought maybe there’d be a news story or something…

      Jan 26, 2010 at 12:58 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      I don’t trust those who scowl and smile at the same time.

      Jan 26, 2010 at 1:08 pm · @ReplyReply to this comment ·
    • Brian NJ
      Brian NJ

      I would love too see Gallagher face the truth like these others. True justice!

      Jan 26, 2010 at 1:10 pm · @ReplyReply to this comment ·
    • Brown Gay Al
      Brown Gay Al

      If it is going all the way to the SC the pivotal vote is not Kennedy but Roberts. Kennedy would not go against his own judgment in Lawrence v Texas where he held that this ruling did not legalize gay marriage in his opinion when it was mentioned as a reason to dissent by scalia.

      The best ruling we can hope for is a narrow ruling applicable to only CA under the roberts court. but roberts to me seems less orthodox about gay rights than he is about abortion.

      scalia, alito and thomas are definite nos
      only yes is stevens
      all the others would not vote yes on the right to same sex marriage being defined under the constitution.
      the best they can give us is discrimination under the 14th amendment applicable to only CA since gay marriage was legal there similar to bowers vs evans

      Jan 26, 2010 at 1:14 pm · @ReplyReply to this comment ·
    • Libertarian and proud of it
      Libertarian and proud of it

      Maggie Gallagher can shove Pat Robertson’s crucifix up her fat, yeast infected, nappy, bleeding CUUUUUUNT!

      Jan 26, 2010 at 1:17 pm · @ReplyReply to this comment ·
    • SFNative
      SFNative

      @hyhybt:

      If this case proves to be so lopsided in favor of the plaintiffs that the US Supreme Court refuses to take the case, resulting in a victory for fairness and equality, then Prop 8 will be overturned, and we may be witnessing the end of the first of possibly numerous federal cases against other state constitutional bans on gay marriage, as well as a possible deterrence on future state constitutional bans passed through the initiative process.

      Jan 26, 2010 at 1:34 pm · @ReplyReply to this comment ·
    • Wade macMorrighan
      Wade macMorrighan

      Awe, man, and here I was hoping that the Plaintiffs would call mags to testify, ’cause *I* really wanna’ see her cry! LOL!

      Jan 26, 2010 at 1:34 pm · @ReplyReply to this comment ·
    • schlukitz
      schlukitz

      Queerty’s description of the proceedings is perfect.

      Delicious

      Jan 26, 2010 at 1:38 pm · @ReplyReply to this comment ·
    • Sam
      Sam

      @ No. 9: I think you mean Romer v. Evans, but I agree. The only way we’ll get a win is if it is tailored narrowly to California, either in the way you describe or using a rational that equal protection is being violated because some SSM are recognized in California while others are not.

      Jan 26, 2010 at 1:41 pm · @ReplyReply to this comment ·
    • terrwill
      terrwill

      Ya base your whole agruments on bullshit after a while people begin to notice the stench………But then again Maggots are attracted to shit…………….

      Jan 26, 2010 at 1:42 pm · @ReplyReply to this comment ·
    • Sam
      Sam

      This just illustrates the amazing conundrum presented by this case: the Constitutional principles at question are so undeniably on our side that the other side can’t even mount a cogent defense. YET, as we’ve seen time and time again with SCOTUS (and especially the Roberts court) they have no problem perverting the Constitution to fit their own agenda.

      Just look at Citizens United: The First Amendment’s protection of free speech for citizens was somehow twisted to strike down spending limits on corporations. Talk about perversion!

      Jan 26, 2010 at 1:47 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      HYHYBT sez: I’m pretty sure you can’t use your own incompetence as a basis for appeal, for example.

      Inadequacy of counsel is only an appealable issue in criminal cases.

      Brown Gay Al sez: Kennedy would not go against his own judgment in Lawrence v Texas where he held that this ruling did not legalize gay marriage in his opinion when it was mentioned as a reason to dissent by scalia.

      Kennedy did not say that Lawrence didn’t legalize SSM. He said, “The present case … does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” It is an attempt to narrow the scope of the decision but does not foreclose reliance on Lawrence in the Perry trial.

      Brown Gay Al continues: all the others would not vote yes on the right to same sex marriage being defined under the constitution.

      On what are you basing this conclusion?

      And concludes: the best they can give us is discrimination under the 14th amendment applicable to only CA since gay marriage was legal there similar to bowers vs evans

      This makes no sense for a variety of reasons, first and foremost being that there is no such case as “bowers vs. evans”. There is Bowers v. Hardwick, which was overruled by Lawrence, and there is Romer v. Evans, in which a state constitutional amendment repealing existing LGBT rights laws and forbidding the passage of new ones was struck down. Only one state had such an amendment, Colorado, but the decision prevents every state from passing such an amendment. Similarly the striking by SCOTUS of Prop 8 would invalidate every such amendment in the country. SCOTUS cases are national precedent. Our legal system doesn’t require separate trials in separate circuits to re-litigate the same issue.

      Jan 26, 2010 at 1:50 pm · @ReplyReply to this comment ·
    • rf
      rf

      SAM 16 – Agree. Citizens United may actually take us back to the dark ages after a few election cycles. Equal rights won’t be an issue for anyone, we’ll be lucky to get our daily gruel. Of course the legislature can try to fix it with laws…but aren’t they the same legislature that stands to gain the most from Citizens? now I’m feeling sick again. thanks.

      Jan 26, 2010 at 1:59 pm · @ReplyReply to this comment ·
    • Sam
      Sam

      @ No. 17:

      I think what Brown Gay Al is suggesting is a narrowly tailored ruling that Prop 8 was driven solely by anti-gay animus, because California allowed same-sex marriage prior to its passage. This would be similar to what Kennedy wrote in Romer, addressing a similar situation (i.e. certain municipalities had added “sexual orientation” to their anti-discrimination laws which Amendment 2 then took away). An opinion in this vein wouldn’t overrule any other state Constitutional marriage ban, because none of the others took away a right already granted out of animus.

      You could then re-file in another state and argue that even these pre-emptive bans were driven by animus, but I could definitely see a “win” in Perry that still didn’t get us there on its own.

      Jan 26, 2010 at 2:05 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      “Inadequacy of counsel is only an appealable issue in criminal cases.”
      Thought so. I expect, anyway, that even then the original counsel is unlikely to use it.

      Jan 26, 2010 at 2:06 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      Sam sez: Just look at Citizens United: The First Amendment’s protection of free speech for citizens was somehow twisted to strike down spending limits on corporations. Talk about perversion!

      To be fair, the Roberts court merely completed the perversion set in motion 34 years ago (almost to the day) in Buckley v. Valeo, when it held that political campaign contributions were a form of protected political speech. What needs to come out of Citizens United is a constitutional amendment limiting the definition of “person” to actual people.

      Jan 26, 2010 at 2:09 pm · @ReplyReply to this comment ·
    • Sam
      Sam

      @ No. 21: “What needs to come out of Citizens United is a constitutional amendment limiting the definition of ‘person’ to actual people.”

      Agreed!

      Jan 26, 2010 at 2:11 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      HYHYBT sez: I expect, anyway, that even then the original counsel is unlikely to use it.

      On the contrary, defense attorneys are required to use it and every other legally available means to defend their clients. If that means admitting they were inadequate as counsel they have a legal and ethical obligation to do so.

      Jan 26, 2010 at 2:12 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @Sam: They could; there’s no real limit to what the SC can do. But why would they *bother* making such a narrow case? Why not say either that ssm is not protected at all, or else strike down all prohibitions, and either way be done with it for a while?

      @FakeName: Could you see them striking “every such amendment in the country” and leaving DOMA somehow in place, since it’s a state amendment in question, or would it go as well? (If it did get left out, surely voiding it separately would be a relatively easy next case)

      Jan 26, 2010 at 2:17 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @FakeName: Thank you, that actually makes sense now that I think about it.

      Jan 26, 2010 at 2:21 pm · @ReplyReply to this comment ·
    • B
      B

      QUEERTY: “And then, of course, is Miller’s own admission that the data he was going off of was not acquired independently, but provided by the Yes On 8 camp. This is like a credit ratings agency taking an investment bank’s internal reports at face value, or the Food and Drug Administration not testing or verifying the studies of a new drug from a pharmaceutical company. It is, frankly, malpractice.”

      Slow down – he said he got some papers to review from the Prop 8 people. He did not say the Prop 8 people wrote those. The Prop 8 lawyers possibly paid someone to do a literature search and they may have given what they found to Miller, who noted what they had looked up versus what his search had found independently.

      Don’t be too hard on Miller – he said that gays are getting more political influence (true) and that they matched the Prop 8 side on campaign funding (true but it ignores timing issues) and that there is a fuzzy line between “differentiation” and “discrimination” (also true). He also wasn’t sure if DOMA was an example of discrimination versus differentiation.

      Of course, getting more political influence doesn’t mean you have enough influence to get something necessary to protect your legitimate interests done. Differentiation is not necessarily discrimination – almost any law will treat people differently depending on whether they are in a situation the triggers the law – but if the differentiation consistently works against you or was designed to put a particular group at a disadvantage, that is a sign of discrimination. Also, a group can be treated more or less equally according to the law but still be subject to a serious level of discrimination due to widespread prejudice among the general public.

      Now, Miller’s statements may not have helped the Prop 8 side very much if at all, but expert witnesses are not supposed to be arguing for one side or the other – they are supposed to be providing objective information with differing opinions being mostly the result of our understanding of some issue being currently incomplete (so lawyers will shop for experts to find those whose opinions are most likely to help the lawyers’ clients when there is a difference of opinion among experts in a particular field).

      Just because the Prop 8 side appears to be having trouble finding witnesses that really help their side is not the fault of the witnesses. It is rather an indication of a weak case.

      Jan 26, 2010 at 2:27 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      Miller is off the stand. The defense’s only other witness is expected to talk about how banning same-sex marriage furthers the state’s supposed interest in procreation. Given that Judge Walker pretty much blew off that argument before the trial even started I don’t see it gaining a whole lot of traction.

      Jan 26, 2010 at 2:32 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      Oops, spoke too soon. The defense is redirecting Miller.

      Jan 26, 2010 at 2:33 pm · @ReplyReply to this comment ·
    • linkinbarby
      linkinbarby

      Well of course the defense team won’t win. That’s the whole point
      I mean cmon. They knew they would not win. They do not expect to win on this level.
      They are going to get this case kicked out by the Supremes citing victimisation and
      partiality. That idiot judge played into their hands with the video nonsense.

      Jan 26, 2010 at 2:44 pm · @ReplyReply to this comment ·
    • Sam
      Sam

      @HYHYBT: I actually DON’T think they’ll issue a narrow win. I think the most likely outcome is a narrow loss: they’ll rule that Prop 8 doesn’t violate the Constitution because all the same rights and obligations of marriage under California law are available to same-sex couples under California’s domestic partnership system. This will leave for another day A) whether or not states are OBLIGATED to give the same rights as marriage to same-sex couples, even if they call it something else, B) whether or not domestic partnerships/civil unions will still be okay once DOMA is repealed and (perhaps) federal recognition is only granted to married same-sex couples and C) a whole bunch of other issues.

      As to why I think SCOTUS would rule narrowly rather than issue a sweeping opinion that settles things once and for all: I don’t know why. I just know they’ve been doing it that way for a loooooong time.

      Jan 26, 2010 at 2:46 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @linkinbarby: I’d imagine it’s hard to argue that you lost because of bias when you haven’t bothered to present a case yourself, though.

      Jan 26, 2010 at 2:49 pm · @ReplyReply to this comment ·
    • PopSnap
      PopSnap

      Well, at least we’ll know we will probably never get federal gay marriage if this case fails. Because, just like in Maine, we are doing virtually nothing wrong and doing virtually everything right.

      What it will come down to, if it fails, is the fact that the Fascist Five totally decided the case before it even hit the damn courts. And there would have been nothing we could do better about it.

      Jan 26, 2010 at 3:01 pm · @ReplyReply to this comment ·
    • linkinbarby
      linkinbarby

      U need to understand the sheer political chaos that gay marriage can cause.
      Many people are still horribly opposed to gay marriage. That’s the fact
      SCOTUS is not stupid. This is not about feelings its politics. That’s why NOM
      is doing all they can to get the repubs back in some level of power. We need to remember this
      When we think of closing the gayTM.

      Jan 26, 2010 at 3:11 pm · @ReplyReply to this comment ·
    • fix
      fix

      Excuse me my ignorance but what does “a government professor” means? Couldn’t read the rest of the post after that. Reply urgently since I want to continue reading the whole post.

      Jan 26, 2010 at 3:16 pm · @ReplyReply to this comment ·
    • Sam
      Sam

      @PopSnap: And there would have been nothing we could do better about it.

      Well, except wait until we had five definite YES votes on the court.

      Jan 26, 2010 at 3:46 pm · @ReplyReply to this comment ·
    • schlukitz
      schlukitz

      No. 33 · linkinbarby

      U need to understand the sheer political chaos that gay marriage can cause.

      Substitute black civil rights in that sentence.

      Many people are still horribly opposed to gay marriage.

      Substitute black civil rights in that sentence.

      That’s why Lyndon B. Johnson signed the black civil rights law back in 1964.

      SCOTUS is not stupid.

      Not a bit. Just rabidly anti-homosexual and homophobic.

      This is not about feelings its politics.

      Wrong. It’s about civil rights and equality for all. But, unlike Lyndon B. Johnson, Mr. Obama lacks the guts to do anything about equality and chooses, instead, to just remain silent on all of the issues linked to equality for LGBT people.

      Jan 26, 2010 at 4:14 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @FakeName: Inadequacy of counsel applies only to criminal cases, not to civil cases like the Prop 8 case.

      Jan 26, 2010 at 4:34 pm · @ReplyReply to this comment ·
    • Fickle Finger
      Fickle Finger

      @Prof. Donald Gaudard: He said that in post 17.

      Jan 26, 2010 at 4:48 pm · @ReplyReply to this comment ·
    • terrwill
      terrwill

      @PopSnap: You are 100% correct dude………..And anyone thinking the SCOTUS is gonna tip in our favor anytime in the near future please find something really fun to do for like the next 20 years. The only two with a remote chance of retiring are John Paul Stevens, who bless his heart is like 200 years old and Ruth Ginsberg, who is battling pancreatic cancer. And the Supreme Court Fairy is not blowing good fairy dust on us because they are two reliable votes for the Gays.

      Changing either of them would be like going to the store to return half dozen eggs and getting six in return…………

      Jan 26, 2010 at 5:47 pm · @ReplyReply to this comment ·
    • VoDongCung
      VoDongCung

      I really sorry about my little English. I only try to point against “homo-marriage undermine hetero-marriage”, as NOM used to strip our right to marry.

      The ban and discriminate Gay marriage force gays marry to straight. So there are million families of Gay+Straight without love at all. No body think these families last long, and will left children behide with single parent.

      The DOMA said protect traditional family but is actual creatting these kind of family of man and woman to distroy the traditional family.

      Friend in here, please tell the Judge or the plaintif lawyer. Very Thanks

      Jan 26, 2010 at 5:51 pm · @ReplyReply to this comment ·
    • schlukitz
      schlukitz

      No. 39 · VoDongCung

      No worries about your English, VoDongCung. We understand you perfectly.

      The DOMA said protect traditional family but is actual creatting these kind of family of man and woman to distroy the traditional family.

      Your point is well made.

      Now, if only Maggie Gallagher and NON could get that through their thick skulls.

      Jan 26, 2010 at 6:12 pm · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      @FakeName: AND @B: Thanks for your clear remarks on the case.

      As I said on a related thread, Boies nailed MIller’s logic and “facts.” If I’m reading the tea leaves right, and Prop H8 is struck down [or whatever the right verb is], then how would the case move to SCOTUS? My apologies if that’s already been explained and I missed or didn’t grasp the answer.

      Is there any truth or logic behind the idea that the P8 supporters are purposefully doing poorly or “throwing” the case? I’ve heard a few people intimating that, but can’t fathom their reasoning. Or their willingness to drink a 6 buck pitcher of light beer!

      Jan 26, 2010 at 9:58 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @fix: A degree in government differs from a degree in political science in that a degree in government encompasses much more theory than pol sci, and often, at least with my degree from UVa, allows one to take courses in political economics, economics, and history to count toward the degree. Not sure if this has changed.

      For example, I took a year long course in the political economics of the U.S. followed by another course in comparative political economics comparing the U.S. to at the time Japan, Brazil, Germany, China, etc.

      In other words, I get to know exactly how our system is slowly fucking us over.

      I am pessimistic about the S.Ct. here. I think this court is trying to narrow equal protection analysis. When you think about it, even the citizen case has implications for equal protection in that in essentially says some speech is more important than others if you have enough money versus those who don’t. And, there is the affirmative action case in which they distorted the statute for the purpose of narrowing equal protection. I just don’t see them announcing a new suspect class here.

      We forget, but the S.Ct. that decided Brown v. Board was a fluke, and there were decades of case law supporting the overturn of Jim Crow. There is no such case law here, and the court is packed with conservatives who have been vetted to make certain they are true blue sociopaths.

      Jan 26, 2010 at 10:06 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @Lukas P.: They are not throwing the case. It is just that they really don’t have one. The facts and logic are on our side. The problem with bigotry is that it is, however, not about facts or logic. It is about the lizard brain that tells Scalia that his sex life is to be protected, but ours should be land us in jail. That’s not rational. But, he’s a justice on the Supreme Court so it does not matter if he’s rational or not. That’s the predicament we face here. Logic, facts and even the concepts under equal protection says we should win. And, yet, the bulk of the evidence here suggests we will lose with this S.Ct. That’s the warning that the gay groups who were against this case tried to make. Not that they did not want to eventually bring the case, but that they wanted to wait until some of the hard core bigot sociapaths were not still on the court so that we would not need a perfect storm. Now, we need a perfect storm of votes yes because we know there are probably 4 against us.

      Jan 26, 2010 at 10:15 pm · @ReplyReply to this comment ·
    • Chris
      Chris

      If this gets to the current Supreme Court, the conservative majority will side with the bigots. To think otherwise is to be a Pollyanna.

      Jan 26, 2010 at 10:15 pm · @ReplyReply to this comment ·
    • romeo
      romeo

      Betcha the Supremes don’t take it. Too big a can of worms. Bet they just leave it in California.

      Jan 26, 2010 at 10:38 pm · @ReplyReply to this comment ·
    • mac mcneill
      mac mcneill

      Like I said before, if it goes to the Supremes, either they will soil their robes and vote their religion or they will do their jobs and support the constitution. If they go with their religion, they should resign for not upholding their vows to support the Constitution of the U.S. It will be interesting to see what happens. The attorneys against Prop 8 is doing a fantastic job. Maybe it might just flow over to the Supremes.

      Jan 26, 2010 at 10:55 pm · @ReplyReply to this comment ·
    • Wade macMorrighan
      Wade macMorrighan

      @ SAM, said, “This just illustrates the amazing conundrum presented by this case: the Constitutional principles at question are so undeniably on our side that the other side can’t even mount a cogent defense.”

      I gotta’ agree. However, one must wonder why the news media is not jumping all over this and siding with us and portraying prop 8 as a grossly unconstitutional move that has allowed a religion, essentially, to impose it’s views onto the Nation, and specifically onto a minority?!

      Jan 26, 2010 at 10:56 pm · @ReplyReply to this comment ·
    • B
      B

      No. 41 · Lukas P. asked, “If I’m reading the tea leaves right, and Prop H8 is struck down [or whatever the right verb is], then how would the case move to SCOTUS?” Basically, you file an appeal and it moves up a chain ending at the Supreme Court, which can refuse to hear it. You can give up at any point (typically done when there is obviously no chance of winning and no political advantage for trying).

      Then “Is there any truth or logic behind the idea that the P8 supporters are purposefully doing poorly or “throwing” the case?”
      The answer is almost certainly “no.” You don’t get to introduce new evidence on an appeal, so if you botch the initial trial, you are stuck with a lot of baggage that you can’t drop. Read http://legal-dictionary.thefreedictionary.com/Appeal+(law) and specifically “The function of the appellate court is limited to a review of the trial record sent up from the lower court and the briefs filed by the appellant and appellee. Amicus Curiae briefs, if permitted by the appellate court, also become part of the record on appeal. The trial record, sometimes called the record proper, must show the pleadings that initiated the case, the complete transcript (in cases of jury trial) of lower court proceedings, the verdict, and the entry of the final judgment or order. The appellant must clearly demonstrate that the grounds for review had been raised and unsuccessfully decided upon at the trial level and, therefore, prejudicial error exists to warrant the reversal of the decision of the lower court.”

      Jan 26, 2010 at 11:57 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @B: So what might they base an appeal on, in this particular case?

      Jan 27, 2010 at 12:02 am · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      @B: plus @NoDoubleStandards: Thanks to both for the clarifying comments and to B for the link.

      I discussed this case with my foreign-born Mom, a trial which she’s been avidly following along. She said something echoed here, that other than “religious” arguments, there are no “sound” logical reasons to oppose same-sex marriage. The bias against us comes from many factions, but those people all seem to have nothing but the Bible or other religious text to justify their “animus.”

      With SCOTUS being filled by Catholics and many members of Congress beholden to the religious fundies, I worry that we may never in my lifetime reach a favorable national outcome for people wishing to marry their same-sex partners. I now regret sleeping through the poly sci class that explained USA federalism.

      Justice just ain’t for us, here, it seems.
      Time for me to see what’s cooking over on the intellectually less taxing Adam Lambert thread! ;- §

      Jan 27, 2010 at 12:59 am · @ReplyReply to this comment ·
    • B
      B

      No. 49 · hyhybt wrote, “@B: So what might they base an appeal on, in this particular case?” … something in the judge’s decision (which has yet to be written making it hard to guess). If they want to appeal, they’ll simply look for something they might be able to complain about.

      They could, of course, just give up if they realize that they do not have a case.

      Jan 27, 2010 at 2:03 am · @ReplyReply to this comment ·
    • Ryan
      Ryan

      The vote will be 5-4, upholding Prop 8, the evidence presented will be wholly irrelevant. SCOTUS already told us how they would vote based on their ruling to prevent cameras in the courtroom. If they agree with the defense that those evil queers will cause “irreparable harm” to those who testify against them, then they damn sure won’t allow those same queers to get married. How Olsen and Boises can be this naïve is beyond me.

      Jan 27, 2010 at 5:00 am · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      @Ryan: And what do you base your prediction on? Is this rumor, gossip, fact, delirium, fortune cookie talk or supposition? Why might anyone believe you? I’m hoping to hear your reasoning or logic or sources. Otherwise, you can’t quite weigh in as effectively here as, gosh, people who have law degrees or who don’t make wildass statements without including info on which end of the magic crystal ball is speaking to them directly in secret code. Explain please.

      Jan 27, 2010 at 6:59 am · @ReplyReply to this comment ·
    • Ryan
      Ryan

      I don’t need a crystal ball. I’m using logic, common sense, and most importantly, prior ruling records. Most notably their most recent ruling in this very case, that I mentioned in my previous post. But I guess you missed that? The five conservative justices knew it would be very bad PR for the Yes on 8 people if their bigotry was televised so they stopped it from happening, being sure to have it on record that they agree with the defendants that “irreparable harm” will befall the witnesses who speak out against homosexuality. There is no good faith or plausible reason to believe this is true. But they made sure their ruling stated for the record books that gay=bad. That’s what you call a “tell”. They’ve made it clear how they will vote when it finally gets to them. we’re done.

      Jan 27, 2010 at 7:30 am · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      @Ryan #54: Ok–I’d misunderstood you.

      I know see that that for you, your opinions equal facts and that you grapple with discerning the difference between an informed guess and reality.
      Getting a PhD in ESP must’ve been tough, man.

      Gotcha. Ok, Now that you factually disarmed and resolved those pesky Prop8 questions I REALLY need your 20/20 vision on the SOTU address tonight and the result Superbowl. Hurry! Help! I need to know who to place my bets on! Thanks.

      Jan 27, 2010 at 8:16 am · @ReplyReply to this comment ·
    • schlukitz
      schlukitz

      No. 54 · Ryan

      I guess it rains an awful lot where you live, eh?

      I’ve read that ontinually cloudy and rainy skies causes very severe depression.

      What is your prediction with respect to the end of the world?

      Sometime in the very near future, I would suspect.

      Jan 27, 2010 at 8:16 am · @ReplyReply to this comment ·
    • Ryan
      Ryan

      If you guys want to ignore what I wrote and just claim I’m just making groundless predictions, that’s fine. I find it pretty telling that you couldn’t actually address the recent SCOTUS ruling in any way. it will hurt you a lot more than it hurts me when they rule against us(although make no mistake, it will still hurt me); I’m genuinely sorry about that.

      Jan 27, 2010 at 8:25 am · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @Lukas P.: It will happen in our life times. The problem is that timing is a factor for bringing these cases that non-legal activists don’t understand. They want to treat the courts like they treat going to congress or protests. In the case of the later two, if you make a mistake, you can always go back next year to try again. In the case of case law, if you make a mistake, you are probably not going to go back for 20 years. I remember studying Bowers v. Hardwick in the early 90s, and even then, most people said it was bad law including many of my conservative professors (of the non-religious variety). Yet, it took another decade to overturn. If the polling is right, there is a critical mass on gay rights right now happening at the generational level. By that count, it will take a few more years before that critical mass is met. But there is a critical mass happening. The reason for an eventual S.Ct. case is to resolve the issue once and for all because some places (like down South will take 100 years and even then nothing will change) so you need to push for the national strategy. BUT, the question in the next few years would have been when , not if to go to the S.Ct. Once can only hopes one of the conservatives kills over. And no, I am not above hoping for that. THey are evil.

      Jan 27, 2010 at 8:29 am · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @Ryan: I don’t think that many people are disagreeing with you here and you are focusing in on those who are. I think you are right regarding the outlook being pessimistic with the S.Ct. Faux optimism is not a useful trait except to fools.

      Jan 27, 2010 at 8:31 am · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @Ryan: “This case is not a good test run for televising federal courts” and “this case has no merit” are two completely different decisions. It might well come down to the same vote, but there’s no necessary reason for it to do so; it’s perfectly within reason to be on opposite sides of the two. There is at least the possibility of winning this.

      Jan 27, 2010 at 10:48 am · @ReplyReply to this comment ·
    • Ryan
      Ryan

      @hyhybt,

      But they didn’t say “this case is not a good test run for televising federal courts”. They *could* have said that. They could have rejected televising the trial for any number of dry, neutral, procedural reasons. But they didn’t. They chose to reject while specifically endorsing the Yes on 8 People’s utterly groundless claim that televising a trial would cause “irreparable harm” to those testifying against gay marriage, fully endorsing the idea that gay people are both harmful and politically powerful, automatically negating Olsen’s assertion that we are a suspect class. I really don’t see how they could’ve made it any clearer how they’re going to rule.

      Jan 27, 2010 at 11:48 am · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      All the more evidence needed that gays are oppressed.

      Jan 27, 2010 at 2:45 pm · @ReplyReply to this comment ·

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