Liberal blogger Teddy Partridge has been doing an amazing job liveblogging the day’s proceedings in the California same-sex marriage case over at The Seminal. Here are the four parts so far, with parts three and four the substantive ones:
Part One, just an introduction to the scene.
Part Two, the lawyers introduce themselves.
Part Three, opening statements.
Part Four, the testimony begins.
JohnF says:
Could some Cal. lawyers tell us about this judge? Smart/dumb? Fair/biased? Good record on appeal/bad? Etc.
January 11, 2010, 5:35 pmThanks.
Don Sherfick says:
Is it possible that Judge Walker, or a higher federal court on appeal including the SCOTUS, could rule that although the federal equal protection clause did not require gay marriage, it did preclude the state from limiting the rights and benefits of marriage to heterosexual couples only. Or at least that the state would have to show something more than a rational basis for individual differences in treatment? I know that this isn’t the specific instance before the court in this litigation, and that California does have a civil union concept that is ALMOST equal. (I also understand the “separate but equal is no equal” argument borrowed from the racial school segregation cases.) It just seems to me that if SCOTUS failed to go all the way and mandate same sex marriage, it could still send a powerful statement in ruling that the federal equal protection clause mandated equality. Any thoughts on this?
January 11, 2010, 6:18 pmDr. Patent says:
Smart, generally libertarian. Hass been described as biased in favor of plaintiffs, i.e., gay marriage in this case by people on the right. For example, Ed Meese in the NY Times or National Review Online (see a series of posts including this, this, this, and this.)
January 11, 2010, 6:20 pmJohn Herbison says:
Very interesting colloquy. I wonder why counsel for the Prop 8 supporters declined to cross-examine three of the four plaintiffs, and cross of the other was minimal.
As a litigator, I surmise that it would be difficult to present evidence without knowing what standard of proof the judge will ultimately apply.
I am pleased that the standard of review applicable to classifications based upon sexual orientation is squarely at issue here, so that the higher courts will make some law. The Supreme Court in Lawrence v. Texas pointedly declined to identify the standard it was applying, and Romer v. Evans, which purported to apply rational basis analysis, is unlike any other rational basis case that I am aware of.
January 11, 2010, 8:56 pmRupp says:
Found your site through google search. I have enjoyed reading your posts. Looking forward to more. Thanks!
January 12, 2010, 9:38 ambpbatista says:
Does anyone NOT think that the fix is in at this trial?
January 12, 2010, 10:16 amMichael Ejercito says:
I would like an explanation for this.
In Minor v. Happersett , the United States Supreme Court rejected a Fourteenth Amendment challenge against a law that prohibited women from voting, while men were permitted to vote. It took the Nineteenth Amendment to prohibit denial of suffrage on the basis of sex.
Why is the Fourteenth Amendment insufficient to overturn laws denying suffrage on the basis of sex, but sufficient to overturn laws to deny marriage on the basis of sex?
January 12, 2010, 10:51 amMichael Ejercito says:
A legal argument that the Fourteenth Amendment requires Congress and the several states to provide the same legal benefits to same-sex couples than married couples, and permits the states to classify same-sex couples separately from married couples (for administrative purposes, if nothing else), would have a better-than-even chance of winning in light of current constitutional case law regarding gender discrimination.
January 12, 2010, 12:17 pmresh says:
“Why is the Fourteenth Amendment insufficient to overturn laws denying suffrage on the basis of sex, but sufficient to overturn laws to deny marriage on the basis of sex?”
When did that happen? I missed it.
Of course, the broad answer might be that the liberty leg of the 14A would have ultimately allowed the women’s vote (absent the 19A,) just as it appears that the 14A’s evolution or progression of thought is inviting ssm. Obviously, the 14A hadn’t rec’d the expansive reading in Minor that it does today but than neither did, say, Plessy.
January 12, 2010, 12:54 pmMichael Ejercito says:
Minor v. Happersett was a Supreme Court case where Virginia Minor alleged that the refusal of Reese Happersett to register her as a voter violated the Fourteenth Amendment. The Supreme Court ruled that the United States Constitution did not provide suffrage for women, therefore the Fourteenth Amendment did not protect women’s suffrage. Minor was never explicitly overturned (although another amendment to the Constitution addresses women’s suffrage).
It would be difficult to show that the 14th amendment would have ultimately allowed women’s suffrage absent the 19th amendment.
January 12, 2010, 1:21 pmA Trial Example « Blog Test says:
[...] Orin Kerr links to liveblogging of the California same-sex marriage trial. It might be useful as an example of federal trial proceedings. [...]
January 12, 2010, 3:23 pmWalker Trial « Weblog says:
[...] Orin Kerr links to liveblogging of the California same-sex marriage trial. It might be useful as an example of federal trial proceedings. [...]
January 12, 2010, 3:27 pmChris Travers says:
But in Plessy, the court did hold that blacks were entitled to equal treatment in railway accommodations. It just declined to hold that mixed-race train cars were required. In essence, Plessy (overturned on other grounds) held that people, regardless of race, deserved equal treatment under the Equal Protection guarantee.
Later cases have essentially said that any consideration of race in the form of such accommodations is pernicious and denies equality. However race is a special category and gender is not held to the same degree. For example, separate but equal restrooms are still generally OK although they pose some issues for transsexuals.
One important question then becomes whether the state is allowed to provide segregated, separate but equal institutions, whether it is REQUIRED to provide such equal institutions (whether separate or not), etc.
January 13, 2010, 2:48 pmChris Travers says:
I hate playing “if history.” It’s like asking “if we had a desegregation amendment to the Constitution at the same time as the 19th Amendment was passed, could we show that the 14th amendment would have ultimately ended segregation?”
This being said, I don’t think “liberty” includes suffrage. I don’t think that one can similarly argue convincingly that equal protection under the laws includes equal rights to vote. Certainly voting is a protection against certain kinds of excesses, but given that the 15th Amendment gave blacks the right to vote, it is hard to argue that the 14th Amendment should have.
Part of the problem is that the 14th Amendment prohibits denying equal protection to any person within a state’s jurisdiction. There is no reason to believe that every person within a state’s jurisdiction will be eligible to vote under any test. Certainly it doesn’t require us to allow 5-year-olds to vote, nor does it allow foreign tourists or alien residents to vote.
January 13, 2010, 2:57 pmMichael Ejercito says:
Courts have come up with levels of scrutiny. And gender discrimination has never been held to the same level of scrutiny as racial discrimination.
Another issue seems to be if the use of different legal names, classifications, categories, or definitions can constitute unconstitutional discrimination. Laws that recognize different categories do not necessarily lead to substantial discrimination; the very fact that we have different legal names should be proof. Can the use of different names for married and same-sex couples really be as discriminatory as making black people sit in the back of the bus?
January 13, 2010, 3:19 pm