NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 3

cross-posted from Pam’s House Blend

As other bloggers and news outlets have reported, the U.S. Supreme Court issued a final order today preventing the trial from being broadcast. The 5-4 opinion was unsigned, meaning that its authorship was not attributed to any one justice.  The court largely ducked the substantive issue of whether federal trials should be more accessible to a broader public, holding that the San Francisco district court judges had not followed the proper procedures when they amended the local court rules to allow the broadcast.  Justices Roberts, Scalia, Kennedy, Thomas, and Alito were in the majority.

In a dissenting opinion, joined by Justices Stevens, Ginsburg and Sotomayor, Justice Breyer challenged the majority’s interpretation of the rule-changing procedures and  strongly disputed that the broadcast would cause harm. Justice Breyer described the majority’s ruling as an “extraordinary intervention,””micromanaging” local court procedure, and stated that “the public interest weighs in favor of granting access to the courts.”

Although many had anticipated this outcome, it is deeply disappointing. As Geoff Kors of Equality California pointed out in his statement about the ruling, this trial presents an unprecedented opportunity to educate people across the country about our community and about why the Constitution requires that same-sex couples be given access to marriage. The public could only benefit from the opportunity to see firsthand that the arguments made by the proponents of Prop 8, both during the campaign and now in court, are so clearly false and demeaning. Those of us attending the trial will have to fill the gap by passing along as much of what we see and hear as we can. NCLR will continue to tweet live from the court – follow @NCLRights for frequent updates on testimony.

Trial resumed this morning with David Thompson’s cross-examination of Professor George Chauncey.  Thompson asked primarily about the progress LGBT people have made, politically and in popular culture, in the last 20 years.

In his cross, Thompson highlighted employment nondiscrimination bills, the increasing numbers of gay and lesbian elected officials, and the very recent increase in support for domestic partnerships and civil unions among national Democratic leaders.  He also focused on the increasing depiction of gay men and lesbians in popular culture, such as the TV series “Will and Grace” and films such as Brokeback Mountain and Philadelphia.

Prof. Chauncey acknowledged that LGBT people have made progress. But he also stressed the limited nature of that progress and the persistence of severe discrimination and hostility toward gay people.  Even today, he noted, there are remarkably few films that include openly LGBT characters and a continued paucity of scholarship exploring the history and contemporary reality of LGBT lives (to mention just two examples).

Thompson’s questions were directed to an important legal issue in this case -whether systemic bias against lesbians and gay men prevents them from being treated by others as equal citizens in the political process.  In prior cases, federal courts have sometimes considered that issue in deciding whether to apply heightened scrutiny to laws that classify on the basis of a particular characteristic such as race, gender, religion, disability, age, and so forth.   If a court determines that widespread (and unjustified) bias prevents a group from being able to fully protect itself in the elected branches of government, it is more likely to find that the group should be afforded heightened constitutional protection under the federal equal protection clause.

On that score, it’s worth noting – and the Olson/Boies team will no doubt argue – that laws that discriminate on the basis of race are still subject to the strictest type of constitutional review, even though it’s been more than a half century since Brown v. Board of Education was decided and nearly half a century since the Civil Rights Act of 1964.  Likewise, laws that discriminate based on sex are still subject to a heightened level of scrutiny even though a majority of the voting public are women.  By contrast, for example, there is still no federal statute prohibiting private employers from discriminating based on sexual orientation, despite decades of effort to get those protections passed.  And the federal government itself still openly discriminates on the basis of sexual orientation in federal military, marriage, and immigration law-as do the laws of most states.  By any measure, anti-gay bias continues to permeate our laws and culture.

After the cross-exam, Therese Stewart, attorney for the City of San Francisco, asked Professor Chauncey to analyze some of the messages used in the Yes on 8 campaign.  Stewart focused on statements made by one of the official proponents of Prop 8, Dr. Hak-Shing William (“Bill”) Tam. Stewart played excerpts of Dr. Tam’s deposition, featuring some extraordinarily inflammatory messages in campaign documents authored by Tam.

One of Dr. Tam’s publications claimed that if Prop 8 did not pass, other states would “fall into Satan’s hands.” The document also claimed that “more children would become homosexuals,” and that the next item on the “gay agenda” would be to “legalize having sex with children.”  Prof. Chauncey connected these messages, delivered by one of Prop 8’s official sponsors, with the long history of fear-mongering and demonization of lesbians and gay men that he eloquently described yesterday.

In the afternoon, the court heard testimony from social psychologist Anne Peplau, one of the country’s leading academic experts on couples and relationships.  Kudos to Christopher Dusseault of Gibson Dunn for his skillful handling of the direct and redirect of Professor Peplau.  His performance was a model of precision and highly effective.

Prof. Peplau offered four expert opinions: (1) most individuals who marry gain physical, psychological, and social benefits from being married; (2) the quality and stability of same-sex relationships are similar to those of heterosexual relationships; (3) if permitted to marry, same-sex couples will derive the same benefits from marriage as heterosexual couples; and (4) permitting same-sex couples to marry will not harm the institution of marriage in any way. These opinions disprove the defense’s argument that allowing same-sex couples to marry would fundamentally change and undermine marriage, and support the plaintiffs’ claim that marriage is a basic civil right that same-sex couples need and are entitled to.

During her cross of Prof. Peplau, attorney Nicole Moss tried to elicit an admission from Prof. Peplau that same-sex couples differ from heterosexual couples in some relevant way.  Prof. Peplau reiterated that there are no relevant differences.  But at Moss’s insistence, she did confirm that a lesbian couple cannot “accidentally” procreate a child through spontaneous generation-one of the few moments today that elicited universal laughter.

Tomorrow we will hear from three experts discussing the impact of marriage discrimination on our community.  Again, follow @NCLRights for a blow-by-blow from the court.

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