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January 19, 2010

Tweeting the Prop 8 Trial

Today is the sixth day of the Proposition 8 trial in San Francisco. I will be livetweeting starting at 8:30 at @gabrielmalor.

The plaintiffs are still presenting their case-in-chief, but it is expected that they will call Proposition 8 co-sponsor William Tam to the stand to hear his controversial view that gay marriage will lead to legalized sex with children. If there is time, they may also call San Diego Mayor Jerry Sanders.

The plaintiffs are trying to demonstrate a couple of things. First, if they can get it, they want to show that gays as a group are deserving of "heightened scrutiny." To do that, they have to show a couple of things, including that there has been a history of discrimination against them, that they are relatively less powerful politically, and that the discrimination is based on an immutable trait (with the exception of religion, which gets heightened scrutiny even though people can change their religion).

This is a long shot. No court has come right out and said that laws that affect gays get heightened scrutiny. The Supreme Court in Romer and Lawrence failed to explain which level of scrutiny applied to gays. (This has been the practice of the Court for about the past decade, where for reasons passing understanding they decide not to give clear directions to the lower courts. See e.g. Scalia's majority opinion in Heller.)

Second, since they can't be sure they'll get heightened scrutiny for gays, they're attempting to show that even under the most lenient type of review Prop 8 lacks a rational basis and was, in fact, motivated toward animus toward gays.

On the other side, the defendants are trying to show that gays as a group are not deserving of any special scrutiny, that Proposition 8 was not motivated by animus, and that there are rational reasons for limiting marriage to one man and one woman. So, for example, the cross-examination to this point has focused a lot of questions on the idea that marriage is fundamentally linked to procreation.

Anyway, there's been some pretty amazing testimony and cross-examination so far. Defendants have brought up Will & Grace, Brokeback Mountain, and Homer Simpson as examples why there's no discrimination against gays, as to the first two, and why it's important to have a woman in the home, in the case of the latter.

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posted by Gabriel Malor at 09:38 AM

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