This is topic Judge issues some doozie questions to litigators for Prop 8 trial closing arguments in forum Books, Films, Food and Culture at Hatrack River Forum.
It is definitely worth a quick read-through the list of questions. (I am so frustrated the Judge is not allowing the closing arguments to be broadcast to the public. I would so love to watch.)
Several examples of some significant questions: To the plaintiffs (who want Prop 8 overturned):
quote: What does the evidence show regarding the intent of the voters? If the evidence shows that Proposition 8 on its face and through its consequences distinguishes on the basis of sexual orientation and sex, of what import is voter intent?
and here's the six-million dollar question:
quote: Even if enforcement of Proposition 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?
.
To the defendants (who support Prop 8):
quote: What evidence in the record shows that same-sex couples are differently situated from opposite-sex couples where at least one partner is infertile?
quote: Do California’s laws permitting same-sex couples to raise and adopt children undermine any conclusion that encouraging children to be raised by a married mother and father is a legitimate state interest?
quote: How does the Supreme Court’s holding in Michael H vs Gerald D, (491 US 110, 1989) square with an emphasis on the importance of a biological connection between parents and their children?
.
To both sides:
quote: What party bears the burden of proof on plaintiffs’ claims? Under what standard of review is the evidence considered?
quote: What does it mean to have a "choice" in one’s sexual orientation? See eg Tr 2032:17-22; PX 928 at 37.
quote: What evidence, if any, shows whether infertility has ever been a legal basis for annulment or divorce?
quote: Do domestic partnerships create legal extended family relationships or in-laws?
[ June 09, 2010, 03:31 PM: Message edited by: Anthonie ]
Posted by Lisa (Member # 8384) on :
Wow.
Posted by Anthonie (Member # 884) on :
Oops, musta been too late last night when I posted the OP.
Rereading the questions, it seems the humdinger of all of them is posed to the defendants:
quote:Assume the evidence shows that sexual orientation is socially constructed. Assume further the evidence shows Proposition 8 assumes the existence of sexual orientation as a stable category. What bearing if any do these facts have on the constitutionality of Proposition 8?
Ouch. What are they gonna do with that one?
Posted by Samprimary (Member # 8561) on :
Probably needs to be noted that a series of studies concluded today that showed even more conclusively that kids with same-sex parents turn out just as well as kids with a mom and a dad.
Posted by King of Men (Member # 6684) on :
I admit I don't quite see where the judge is going with this. Can someone give an exegesis?
Posted by 0Megabyte (Member # 8624) on :
Now these are some questions.
Posted by 0Megabyte (Member # 8624) on :
Yeah... since KoM said it, I think I'll admit that I, too, am not sure where he's going with this.
I mean, some of these questions are very good. Others are very weird.
Posted by Samprimary (Member # 8561) on :
They all seem to have points of relevance to the exigency of this case. Like, 'okay, let's extrapolate on the arguments by which this law is defended in the sense of legality and justification for necessity ...'
Posted by Kwea (Member # 2199) on :
It sounded to me like he was tired of half truths and lies, from both sides. He wants to make sure each side has thought out the logical consequences of their arguments.
There is no doubt that SOME of sexual orientation is socially determined. Perhaps not for all people, but it is almost impossible to determine how MUCH of a person's sexual orientation is genetic and how much is a choice.
Part of what the judge wanted to know is what if it IS a choice? Does that make a difference? If so, why? Or why not?
I think I LIKE this judge. Posted by Anthonie (Member # 884) on :
quote:Originally posted by Kwea: There is no doubt that SOME of sexual orientation is socially determined. Perhaps not for all people, but it is almost impossible to determine how MUCH of a person's sexual orientation is genetic and how much is a choice.
Part of what the judge wanted to know is what if it IS a choice? Does that make a difference? If so, why? Or why not?
When was the last time you felt attraction toward someone as a CHOICE? I mean direct, concerted volition. Something like, "Oh, hey, look at that person over there. I am going to CHOOSE to be attracted to him/her." Or something like, "As I have been getting to know this person better I will now CHOOSE to be attracted to him/her."
As a gay man in a very socially conservative part of Utah, I have had discussions with friends about this topic. Some truly believe sexual orientation is a choice and that I could change if I find the "root" of the problem and work hard enough. (Heck, during over 10 years of my life, such internal questions afforded me with some amazing emotional dissonance.)
I have asked several people I know personally how they CHOSE to be attracted to their significant other. (This question is popular in such discussions.) So far, not once has anyone said they CHOSE to be attracted to their significant other, rather they said that they just felt the attraction and responded.
What is more a choice: religious belief/affiliation, or sexual orientation? Both could be said to be socially constructed.
Whatever freedoms/rights/protections/privileges one enjoys, so should the other.
Personally, I believe very strongly that religious belief/affiliation is more easily chosen.
Posted by Kwea (Member # 2199) on :
Keep in mind that sexual orientation is more of a spectrum than most people admit.
I've never been attracted to a man, but I know guys who have been yet were also attracted to women most of the time. I am not saying they are denying they are gay....they aren't. But they aren't at least in part because they chose not to be....they chose to act only on the attractions they feel MOST of the time.
I do believe that for a large section of gay people there is little to no choice in who they are attracted to. I believe that there is most definitely a genetic factor in sexual attraction, and I believe that future research will bear those beliefs out.
But it isn't a simple genetic switch that was thrown making a person gay. There IS an element of choice involved, at least for some people. Denying that is every bit as false as claiming nature has nothing to do with it. It is probably more of a genetic tendency towards homosexuality than an absolute determination.
Posted by Parkour (Member # 12078) on :
#10 is the big question. It means that if this law is considered unconstitutional, it goes up to the federal courts and gets ruled on there, probably. Unless I am mistaken about which constitution is at issue here.
Posted by Anthonie (Member # 884) on :
Thanks, Kwea. I appreciate the points you made.
I am sure there will be many responses from counsel to the judge's question about what "choice" means with respect to sexual orientation.
I do not think the aspect of choice that is relevant in this case with Prop 8 is whether people can choose between options for attractions they have or how people choose to respond to existing attractions.
I believe the more relevant aspect of choice for the case is whether it is possible to choose to CREATE/GENERATE an attraction that someone does not currently feel in a similar way that one might, say, choose to go to bed at 11pm. To me, that is what it what it would mean to truly be able to "choose one's sexual orientation." If such clear choice does not actually exist, then amendments like Prop 8 (and similar laws) relegate those people who cannot make such a choice into an underprivileged situation.
Yes, there is a wide spectrum of sexual orientation. If someone truly feels sexual attractions oriented toward both males and females and can choose between those attractions, they are bisexual to some degree.
Posted by Orincoro (Member # 8854) on :
quote:Originally posted by Kwea: But it isn't a simple genetic switch that was thrown making a person gay. There IS an element of choice involved, at least for some people. Denying that is every bit as false as claiming nature has nothing to do with it. It is probably more of a genetic tendency towards homosexuality than an absolute determination.
There has been a lot of speculation about epigenetic causes as well, I think. This implies both that sexual orientation is inherent, but also can be mutable at certain stages, or possibly at many stages previously believed to be ruled out by traditional genetics.
Posted by happymann (Member # 9559) on :
quote:Originally posted by Anthonie:
quote:Originally posted by Kwea: There is no doubt that SOME of sexual orientation is socially determined. Perhaps not for all people, but it is almost impossible to determine how MUCH of a person's sexual orientation is genetic and how much is a choice.
Part of what the judge wanted to know is what if it IS a choice? Does that make a difference? If so, why? Or why not?
When was the last time you felt attraction toward someone as a CHOICE? I mean direct, concerted volition. Something like, "Oh, hey, look at that person over there. I am going to CHOOSE to be attracted to him/her." Or something like, "As I have been getting to know this person better I will now CHOOSE to be attracted to him/her."
Looking at this without the sexual orientation angle, I wonder about people who fall in love with their spouse in arranged marriages. Did they just get extremely lucky to be forced into a marriage with someone they would have naturally gravitated to anyway? I don't believe so. I think that there can be a lot more choice (maybe not in regards to sexual orientation, but at least within sexual orientation) concerning who we love. One of the reasons that choice in who we love is generally frowned upon is because there's no romance in "Oh, hey, look at that person over there. I am going to CHOOSE to be attracted to him/her." In my own life, for example, I was a jerk in junior high school. One of my friends pointed out a girl that he had a crush on. I thought, "well she's not someone I would crush on, but I think I'll try to crush on her anyway." and I did. That was very mean of me, but it worked anyway. I developed a crush on her by choice.
Posted by scholarette (Member # 11540) on :
I think sexual orientation is a continuum, which means some people make a choice, but others don't.
With genetics, you can also have genes with switches basically. There is a gene (FADS2) that if you have it and are breastfed, on average, there is an increase in IQ. If you don't have this gene, breastfeeding or not, you don't get that bonus. Is the increased IQ a genetic condition (since your genes matter) or an environmental one (since you need to be breastfed for it to kick in)? Obviously, its a mixture of both and I think as we get more sophisticated experiments, we'll be able to tease these things out better. I imagine that we'll find some aspects of sexuality to be like that- neither environment entirely or genetics entirely.
Posted by Ecthalion (Member # 8825) on :
I don't think it is a choice that i find women infinitely more attractive them men. There are several instances though where i have chosen whether or not to let the attraction grow into more than just a simple "there's something about this person" or simply "she's hot lets do her" that most of the men in this town seem to exhibit.
I have also found that by choosing to place myself in more intimate situations with a woman that i did not originally consider myself attracted to i start to notice things about them that i enjoy. I have in this situation taken both roads. One where i chose not to let those interests develop and have remained friends with the woman, in another instance i have developed a romantic relationship with another. Of course it could be posited that i was never really attracted to the first person or that my decisions were made for me on a biological/evolutional (yes, before someone makes a silly remark i am aware evolutional is not a word) level and thus my choices are only perceived as choices.
My experience with homosexuals has changed greatly over the years though. In high school i would have gladly attached myself to the belief that being gay/lesbian was obviously a choice. It seemed like many people were gay/lesbian/bisexual/bi-curious then and people's orientations also seemed to change frequently.
As people (including myself) have grown up and begin to understand themselves and their desires most people seem steadfast about their orientation and also exhibit serious signs of it being true. So as i have gotten to know homosexuals in the post-college era of my life i tend to believe they are serious and that choice has little to do with their orientation.
Posted by Anthonie (Member # 884) on :
quote:Originally posted by Orincoro: There has been a lot of speculation about epigenetic causes as well, I think. This implies both that sexual orientation is inherent, but also can be mutable at certain stages, or possibly at many stages previously believed to be ruled out by traditional genetics.
I would agree that epigenetics (Scholarette gave a good illustrative example) is a viable candidate for some explanation of orientation.
Posted by Teshi (Member # 5024) on :
quote:(RNS) The Church of Jesus Christ of Latter-day Saints will pay a $5,000 fine for not reporting non-monetary contributions in support of Proposition 8, which banned same-sex marriage in California.
The California Fair Political Practices Commission concluded the church “failed to timely report making late non-monetary contributions totaling $36,928” during the November 2008 election. It assessed a penalty of $5,539.
In a Tuesday (June 8) statement, the church acknowledged a reporting error.
The above is a supportive source.
This is an alternative source that is not supportive.
quote:Three months later the Mormon Church filed an amended return in which they admitted to spending $190,000. Unfortunately, this was 3 months after the election, so 17 million California voters never were able to know the full extent of the Mormon involvement until well after the election...
You can decide which one you like best or try to find a more complete intermediary report.
Posted by Anthonie (Member # 884) on :
I was following along with live blogs of the closing arguments for the Prop 8 trial today. One of my biggest concerns: what level of scrutiny will be applied. From some of the questions he posed last week, it appeared Judge Walker had not yet decided.
Besides the mountains of testimony from expert witnesses about sexual orientation being a significant and intrinsic attribute that usually does not involve "choice", there is already a precedent from the Ninth Circuit that sexual identity is immutable. This suggests the Prop 8 case will be viewed under strict (or maybe intermediate) scrutiny.
The proponents of Prop 8 are already hard pressed even under rational-based scrutiny. "The will of the voters does not have to have any reason other than they truly believe it," is not going to hold up against a stricter scrutiny requirement to show that Prop 8 is substantially related to an important government purpose. It isn't.
I am going to sleep better tonight.
Posted by Samprimary (Member # 8561) on :
"The will of the voters does not have to have any reason other than they truly believe it,"
therefore, we should be allowed to keep blacks out of our white schools.
oh, wait, wrong generation.
Posted by Geraine (Member # 9913) on :
quote:Originally posted by Teshi: [QB] Related Link.
quote:(RNS) The Church of Jesus Christ of Latter-day Saints will pay a $5,000 fine for not reporting non-monetary contributions in support of Proposition 8, which banned same-sex marriage in California.
The California Fair Political Practices Commission concluded the church “failed to timely report making late non-monetary contributions totaling $36,928” during the November 2008 election. It assessed a penalty of $5,539.
In a Tuesday (June 8) statement, the church acknowledged a reporting error.
At least they are honest about making the mistake
Posted by Mucus (Member # 9735) on :
Actually, $5529 seems to be a pretty acceptable cost in order to hiding $190,000 worth of spending until after the proposition is voted on, especially if it helped lead to $30 million raised for the cause as the Examiner article states.
I think Visa charges more than that for me to simply convert $190,000 to American dollars ...
Posted by scholarette (Member # 11540) on :
As a church member who was reassured repeatedly that no tithing money was spent towards this bill, I am a bit upset over the whole lying thing. I said flat out that I would not pay any money that would go to such a cause, so now I am feeling like my money may have gone there which is very upsetting to me.
Posted by SenojRetep (Member # 8614) on :
Scholarette-
Are you referring to the news article linked above? The article says the contributions were non-monetary. I have the impression that they were things like church representatives contributing time, expertise, reputation, etc. to the Prop 8 campaign. I haven't seen any suggestion that the church made any monetary contributions to the Prop 8 campaign.
Link to the official church response about the error. Also, note the error was corrected 1 1/2 years ago; the church noticed it's error quickly and amended it. It was minor (with regards to the total amount of contributions of the overall campaign).
Mucus-
The error wasn't $190,000, it was $32,000. The Church had filed preliminary documents that estimated it's non-monetary contribution at around $158,000, and then amended those just after the new year to reflect a more accurate auditing of their contributions. There's nothing nefarious about it, just the result of accounting limitations in a large organization.
Posted by kmbboots (Member # 8576) on :
Where is the money for the fine coming from?
Posted by SenojRetep (Member # 8614) on :
Valid point, but I would consider that an expenditure to pay a fine rather than to support the Prop 8 campaign. Or an unanticipated cost arising from, but not contributing to, the Prop 8 campaign.
<edit>By similar logic, I guess the money paid to repair the vandalism to church buildings after Prop 8 opponents defaced them could be considered using tithing money in support of Prop 8. But I think it's a bit circuitous, and in any event inconsequential all things considered.</edit>
Posted by Sterling (Member # 8096) on :
Now if only you had to put answers to such questions on the public record before you could float a proposition in the first place...
![[Big Grin]](biggrin.gif)