NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 4

January 14, 2010

cross-posted from Pam’s House Blend

The morning opened with Judge Walker’s announcement that he is withdrawing the Perry case from the pilot broadcasting program.  Judge Walker’s decision followed the Supreme Court’s order preventing any broadcast of the Perry trial even to other federal courtrooms, which has been roundly and rightly criticized as an unwarranted intrusion on lower courts.  Video will continue to be streamed to an overflow courtroom so that members of the public can watch the proceedings live, as is already done in many civil trials.

In light of the court’s decision, Judge Walker did the right thing by taking the issue off the table -ensuring that what is now an entirely moot point will not distract from the constitutional issues in the case.  But Judge Walker’s gracious approach apparently did not satisfy the defenders of Prop 8.  Just before the morning break, Charles Cooper, the lead lawyer defending Prop 8, requested again that the judge to stop all video recording and destroy all tapes of the first few days of the proceedings. He had requested this earlier in writing. Judge Walker said that recording would continue, so that he can review the video in chambers while writing his decision.

It is heartbreaking that a video record of this groundbreaking trial will not be broadcast to the public.  Watching this trial has been tremendously educational, even for those of us who have spent our careers studying and litigating these issues.  The public has lost a unique and invaluable opportunity to see the leading experts in their fields talk about the real-world impact of denying marriage equality, and to learn about how our courts really work in the context of a civil rights case that millions of people deeply care about.

Today’s first witness was Edmund Egan, the chief economist in the Office of the Controller for the City of San Francisco.  Dr. Egan analyzed how Prop 8 has affected the San Francisco economy and the City budget.

A quick bit of backstory: Shortly after this case was filed by the couples, Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, Judge Walker allowed the City of San Francisco to intervene in the case on their side. Judge Walker did so because the City argued that Prop 8 has harmed the City in a way that is different from the harms suffered by the other plaintiffs.

Today’s testimony by Egan detailed those harms. For example, fewer weddings means less economic activity.  The City’s budget suffers because married couples tend to be both healthier and wealthier than unmarried people.  Denying same-sex couples the right to marry also reduces the City’s tax revenues, and the City’s public health costs are higher because many LGBT people do not have health insurance through a spouse and are forced to depend on the City as health care provider of last resort.  It is a challenge to assign a precise dollar value to these effects, but to the extent that it can be done, Dr. Egan showed that it is clear that the City loses millions of dollars annually because of Prop 8.

Peter Patterson, one of the attorneys defending Prop 8, cross-examined Egan for what seemed like an eternity, quizzing him on the minutiae of his analysis in an attempt to show that the economic impact of Prop 8 is less than Egan concluded.  But the relentless nitpicking did nothing to overcome Egan’s larger point:  Prop 8 damages the economy and costs the City money in numerous real, tangible ways.  Unless the defenders of Prop 8 are prepared to present a more persuasive alternative analysis that shows Prop 8 has no negative economic impact, it’s hard to see the relevance of this morning’s cross-examination.
Today’s only other witness was Ilan Meyer, an expert in the health consequences of anti-LGBT discrimination and stigma.  Dr. Meyer had the courtroom riveted throughout his testimony. He detailed the harms LGBT people suffer from the relentless daily stress of living in a society that stigmatizes not just our lives, but our very being.

I bet I’m not the only LGBT person in the courtroom who listened to Dr. Meyer’s testimony with pained recognition of how deeply so many of us have internalized the limitations placed on our dreams and aspirations by homophobia. As plaintiff Kris Perry said in her moving testimony on Monday, she never dreamed she would be able to marry, and it is painful and humiliating to want something you know you can never have.  Listening to today’s testimony rekindled my anger at the damage we all have suffered – and that LGBT youth continue to suffer-by being deprived of the same basic human opportunities others have to belong, and to love.   I am so grateful to the couples who are opening up their lives in this suit on our behalf, and to the brilliant team of attorneys from Gibson Dunn and the City and County of San Francisco who are standing up for all of us in this case.

Join Shannon Minter in a liveblog on Pam’s House Blend on Friday, January 15 at 5 p.m. Pacific/8 p.m. Eastern for a recap of this week’s proceedings.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 2

January 12, 2010

cross-posted from Pam’s House Blend

The Perry plaintiffs had another great day in court. Professor Nancy Cott wrapped up her powerful testimony, which made three crucial points. First, Professor Cott provided a detailed historical account of how marriage restrictions based on race, ethnicity, and immigration status have been used “punitively” – to stigmatize and demean disfavored groups – in the same way that Prop 8 now stigmatizes same-sex couples. When these kinds of laws are enacted, she explained, many people believe they simply reflect “common sense” or God’s will. Only later is it fully apparent that they are in fact based on a failure to appreciate the full humanity of certain groups. The same is true of Prop 8.

Second, Professor Cott explained that in the past, marriage law imposed strict gender roles that sharply distinguished the legal rights and duties of wives and husbands. For example, at one time, married women were unable to sign legal documents or testify in court, because they were not considered to be individual citizens – once married, a woman had no legal identity apart from her husband. But today, the law recognizes that all adults should be given equal rights regardless of gender and should be able to choose for themselves how to allocate duties in a marriage. Because modern marriage law is gender-neutral in this way, permitting same-sex couples to marry doesn’t change the law’s basic structure.

Finally, Professor Cott showed that marriage has changed significantly over the years, and that most of those changes involve “shedding inequalities.” But the central function and purpose of marriage – to enable adults to create stable families that provide enormous benefits to the couple, to children, and to society – has endured. Professor Cott testified that based on the historical evidence, permitting same-sex couples would not undermine marriage, but instead would strengthen it. Both couples and the larger community would benefit.

The remainder of the morning was taken up by the cross-examination of Professor Cott by David Thompson, one of the lawyers defending Prop 8. Thompson’s approach was to take statements out of context from Professor Cott’s deposition testimony or from her publications, and to ask her if she agreed with them.

Even at then end of two grueling days of testimony, however, Professor Cott was a model of composure and sophistication. She was not rattled by Thompson’s aggressive questioning, and was particularly firm in stating her opinion that the fundamental purpose of marriage is to create stable families, not to require that all children be raised by both of their biological parents.

Overall, Thompson’s cross-examination strategy did not succeed in undermining Professor Cott’s testimony, and toward the end Judge Walker encouraged Thompson to speed it up. From a legal strategy perspective, it’s not clear why the defense chose to spend so much time asking Professor Cott about books and articles she had written, when all of those materials had already been put into evidence. While that approach might occasionally win some points in a jury trial, in this case the judge will decide the facts. In a nonjury case, it’s sufficient (and usually preferred) for the lawyers simply to read from articles and other documents that are in evidence in their closing arguments to the judge. Given that reality, the cross-examination of Prof. Cott seemed mostly to be a waste of time that did very little, if any, good for the defenders of Prop 8.

Last up today was expert witness Professor George Chauncey, a social historian from Yale University who specializes in lesbian and gay history. He is best known for his book Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (Basic, 1994), which won a number of scholarly awards. He is also the author of Why Marriage? The History Shaping Today’s Debate over Gay Equality.

Professor Chauncey testified about how government discrimination has created and perpetuated anti-gay stereotypes like those relied on by the Yes on 8 campaign. He described how criminal laws have been used to penalize same-sex intimacy and to stigmatize gay people as inherently criminal. Professor Chauncey also detailed the long history of discrimination against gay people in public accommodations – for example, for much of the twentieth century, bars were legally prohibited from serving gay patrons and often sported signs saying, for example, “gays go away” or “it is unlawful to serve homosexuals.”

Perhaps most chillingly, Professor Chauncey described deliberate government campaigns in the 1950s to demonize gay people as dangerous sexual deviants and child molesters. Those campaigns included an executive order by President Eisenhower directing the federal government to identify and fire all gay federal workers – and also requiring private businesses with government contracts to do the same. In the words of one federal publication from the 1950s, “one homosexual can ruin an entire government office.” State governments – including California — adopted similar campaigns, churning out official reports and “public education” materials labeling gay men as violent, psychopathic predators who posed a grave threat to children and families.

Toward the end of the afternoon, Professor Chauncey analyzed several videos and printed brochures used by the Yes on 8 campaign to show how they incorporated many of the same demonizing messages – particularly about the supposed need to “protect” children from gay people. For example, he explained that some of the Yes on 8 campaign messages were “a strong echo of the idea that simple exposure to gay people and gay relationships is somehow going to cause a whole generation to become gay.” Professor Chauncey’s testimony provided a powerful historical validation of yesterday’s testimony from Paul Katami and Jeff Zarrillo, both of whom described their personal experience of feeling vilified by the Yes on 8 campaign messages.

Judge Walker continues to keep this case moving, repeatedly urging counsel on both sides to “pick up the pace,” while making sure that all witnesses have ample opportunity to share their views. He deserves considerable credit for giving this enormously important and complex case the close attention and careful managing it deserves. Tomorrow, we will hear more from Professor Chauncey and additional witnesses for the plaintiffs’ side.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 1

January 11, 2010

cross-posted from Pam’s House Blend

From the first moment to the closing bell, Judge Walker moved the proceedings forward at a rapid clip. It was a great day for our side, spiced with some intriguing hints from Judge Walker about how he may be viewing some of the key legal issues in the case. Ted Olson and San Francisco Deputy City Attorney Therese Stewart gave eloquent opening statements. Both plaintiff couples presented emotional and moving testimony during their examinations and cross-examinations. And by the end of the day, the plaintiff’s first expert witness (the distinguished American history scholar, Professor Nancy Cott) had made significant headway through her testimony, showing that that marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.

Even as attorneys, clients, and spectators were filling up the courtroom early this morning, the U.S. Supreme Court issued a disappointing but temporary order blocking any video or audio transmission of the trial at least until Wednesday. On Wednesday, the full court will issue a more considered (and permanent) opinion.  Judge Vaughn Walker took the first few minutes of today’s trial to note the Supreme Court’s ruling and express his hope that this case would call attention to the larger issue of the public’s right to access judicial proceedings-and the need to update the meaning of that right in light of new technologies.

According to Judge Walker, the court received more than 138,000 comments on the proposed broadcasting, and all but 32 were in favor of allowing the public to view delayed broadcasts of the trial.  At the request of the plaintiffs’ attorneys (and over the objections of attorneys for the Proponents of Prop 8), the judge agreed to record today’s session so that it can be broadcast if the Supreme Court rules favorably on Wednesday.

Judge Walker took an active role from the very beginning of opening statements, grilling Ted Olson and defense attorney Charles Cooper, who represents the official sponsors of Prop 8, on many details of their arguments for and against Prop 8.  Although it’s highly unusual for a judge to interrupt opening statements during a jury trial, in this case there is no jury.  Judge Walker will decide both the factual questions and the legal issues in the case, so he is free to ask questions whenever he likes.  The judge’s questions to both the lawyers and the witnesses showed that he will not be content to just sit back and listen during this trial.  He clearly has spent a lot of time studying the issues, and we can expect that he will continue to ask lots of tough questions of both sides as the trial progresses.

Several of the judge’s questions today focused on whether the Constitution would allow California to decide that it wants to get out of the marriage business altogether – whether the state could decide to stop issuing marriage licenses and have only domestic partnership for all couples.   It’s risky to read too much into a judge’s questions, especially so early in the trial.  But the judge’s questions may indicate that he is thinking about what will happen if he declares Prop 8 unconstitutional.  Will he have to order the state to issue marriage licenses to all couples, or could he leave it up to the state to decide whether it wants to let same-sex couples marry or just stop issuing marriage licenses to anyone?

The most moving testimony today was presented by the two plaintiff couples. Each of the four plaintiffs testified about their experiences growing up gay or lesbian, how they met and fell in love, how they were affected by the Prop 8 campaign, and why they want to marry.  Both Jeffrey Zarrillo and Paul Katami testified about how painful and insulting it was to be cast as a threat to children by the Yes on 8 campaign.  Paul (the only plaintiff to be cross-examined) held his ground in the face of aggressive questioning by an attorney for the proponents of Prop 8, Brian Raum. Raum repeatedly pushed Paul to “admit” that the campaign’s false and inflammatory claims about children were somehow based on legitimate parental concerns.  But Paul handled the ordeal with grace, consistently refusing to be drawn in by Raum’s simplistic and misleading premises.

Plaintiff Kristin Perry, who has worked in the field of child development and child protection for local and state governments in California for 25 years, testified about raising four children with her life partner Sandra Stier.  Despite her obvious reluctance to expose such an intensely painful and private aspect of her life, Kristin also spoke about the heartbreak of having married in San Francisco in 2004, only to have the California Supreme Court invalidate the marriage.  She also explained that she hesitated to marry again after the California Supreme Court’s 2008 decision because she feared that marriage would be invalidated as well.  Kristin testified about growing up in Bakersfield, constantly being made to feel different and inferior because she was a lesbian. If Prop 8 could be undone, Kristin testified, “kids like me growing up in Bakersfield could never know what that felt like, their entire lives would be on a higher arc, it would improve the entire quality of their life.”

Last up today was the plaintiffs’ first expert witness, Professor Nancy Cott, who teaches American history at Harvard and previously taught at Yale for 26 years.  She specializes in the history of women, gender, the family and marriage, and is the author of the book “Public Vows,” a history of marriage in the United States.

Defense attorney Charles Cooper had claimed in his opening statement that marriage has been “universally” defined, across time and cultures, as the union of one man and one woman. Asked to comment about Cooper’s statement, Professor Cott responded in no uncertain terms that it was historically inaccurate.  She also noted that while religion has played a role in many Americans’ ideas about marriage, our civil laws, not religion, have always defined marriage in the United States.

Discussing the social meaning of marriage in America, Professor Cott testified that although most people think of marriage as a private choice, it also has a public aspect.  For example, slaves in America were unable to get married partly because they were not considered citizens, and therefore had no legal right to give their consent to enter into a marriage.  After emancipation, former slaves flocked to get married, because they now enjoyed this basic civil right for the first time.  As Professor Cott explained, the right to marry is an essential element of being treated as an equal citizen.

Professor Cott’s testimony will continue tomorrow (January 12, 2010).  No doubt each day’s proceedings will be the subject of intense interest.  Of course, only time will tell whether the Perry case will lead to a ruling that restores the equal citizenship of same-sex couples in California.


What’s at Stake in the UC Hastings-Christian Legal Society Case

December 23, 2009

by Shannon Price Minter and Christopher F. Stoll | L.A. Times

We represent Outlaw, the UC Hastings College of the Law’s lesbian, gay, bisexual and transgender students group, in the case brought against Hastings by the Christian Legal Society (CLS). The Christian group argues that Hastings’ nondiscrimination policy violates 1st Amendment rights to the extent that it prohibits officially recognized student groups from discriminating against prospective members on the basis of religion or sexual orientation. The Times’ Dec. 16 editorial supporting CLS’ case before the U.S. Supreme Court fails to grasp the implications of what a ruling in favor of the Christian group would mean. Stating the issues clearly and accurately is all the more important because this case has enormous implications for the future of anti-discrimination laws that reach far beyond the intersection of religion and LGBT rights.

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