In my last post, I didn't mention that one witness followed Dr. Michael Lamb, and she is worth mentioning for a subsidiary, but very important reason.
Helen Zia wasn't called as an expert witness to any subject except her own life. She has lived in California for 18 years, and is currently legally married to her wife, after a couple of false starts.
Like all lesbians and gay men up until the last few years, Zia came to maturity in a world where there was no question about the fact she could not possibly marry the person she loved, so she accepted that she'd have to make do. But when she met her soul mate, she found her belief that marriage was the patriarchal construction of a hostile world eroded a bit in the face of that love. She and her wife have been together since meeting in 1982.
The other side objected to her testimony being offered. While Danny Chu for the City of San Francisco argued that Zia's experience as a lawfully married lesbian was relevant to the issues in the case, the Prop. 8 defenders insisted that anyone who isn't a scientific expert shouldn't be testifying.
The judge allowed Zia to testify, but clarified that he could decide, as the trier of fact, how much weight to give any evidence she would provide.
That is a central, and -- by lay observers -- easily overlooked part of legal proceedings. Judges want to have as much relevant evidence before them (or a jury) as possible; but how far does relevance extend? Depending on the lawyers involved, it could be infinite. Judges have a duty to limit what can be admitted into consideration. Remember the O.J. trials?
But what does "weight" mean? Simply put, is it credible? Is it probative of the issue for which it's being offered? How credible? How probative? Those are judgments that rest with the decider. In this case, one woman's testimony about her experience with discrimination, and with the changed expectations of her family after she was married are certainly important to her, and illustrative of what others likely could testify to. But it's just this one woman.
Read the summary of her testimony here or here, and judge for yourself how important you think it is to the issues in this trial.
This is important, not just for the weight Judge Walker will
give the testimony, or any other evidence. He will not be the last
word on this case. Some people have wondered why on earth David H.
Thompson was making such nakedly political and anti-scientific
points in his cross-examination of Michael Lamb. And many were
simply absurd, if not ignorant.
But we have had absurd and ignorant arguments used against us
before. The most recent example came just last week, when a
majority of the U.S. Supreme Court
accepted the assertion that we are threatening and dangerous
aggressors against those who seek to (and have the votes to) deny
us legal recognition for our relationships. They are likened to
the civil rights workers of the 1960s, and we are aligned with the
southern police who called out the dogs and cranked up the
firehoses.
The judges who accepted that onionskin thin argument are the audience Thompson was playing to. As long as there is something - anything - in the evidence presented in this courtroom that a judge down the line can believe or pretend to believe, they can put that into black-and-white and retain the legally discriminatory status quo. Under the rational basis test (which will surely be our fate), any evidence at all to support discriminatory treatment will do, as long as five Supreme Court justices can find it in the record before them.
In that sense, Zia's testimony is not that big an issue. The sometimes bizarre questions Prop. 8's defenders are asking on cross-examination are the real meat and potatoes. It is there they have to discover whatever meager justifications they can cobble together to explain why heterosexuals must retain their marital privileges. Judges don't have an obligation to accept the best evidence, just the best evidence they can cite with a straight face.
I admit I was really shaken when the Supreme Court majority accepted the argument about us being the victimizers of our innocent opponents. But that is how this case will - or can be - decided: on the thinnest of excuses, and with one eye firmly planted on politics, not constitutional law. That's happened to us before in the Supreme Court, and it's exactly what lesbian and gay legal groups worried most about with this case. At least as things stand right now, anything weighs more than we do on the Supreme Court's scales of justice.
6 Comments for “A Word About Weight”
posted by Amicus on
the Supreme Court majority accepted the argument about us being the victimizers of our innocent opponents
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I know, I know.
After the Prop 8 cabal told everyone that we were coming for their kids and that civilization would end on account of committed gay couples saying, “I do”, we should be the ones afraid for our lives, right?
to wit:
Tony Perkins, the president of the Christian rightâs most powerful Beltway lobbying outfit, Family Research Council, echoed Colsonâs language. âItâs more important than the presidential election,â Perkins said of Prop 8. âWe will not survive [as a nation] if we lose the institution of marriage.â
posted by Jorge on
I appreciate where you’re coming from, but this is part of something larger. This site has had an eye on the gay political left for a while now–why do they always support the Democrats no matter what, and so on. But there are other trends, too. The phenomenom of “outing.” The hatred and mocking of religion. Assaults or near-assaults on religious protesters. The past few years have added an element of menace to gay culture. No one incident really lasted long or blew up too much, but none of it went under the radar.
As for judges being able to pick and choose which arguments they accept, I had pretty much the exact same thought about the dissenting opinion.
posted by David Link on
Jorge, your second point is right on target in an important way. Judging is about, well, judging which arguments are better, which facts more convincing. It isn’t arithmetic, and answers will vary.
For me, the majority had reasonably cogent arguments on the procedural issue (which, I’m coming to understand, really is a pissing match between the Supreme Court’s resistance to having court proceedings televised in any manner, and the Ninth Circuit’s belief that we’re not in the 19th Century any more). Their reasons are stated and defensible, and they could have left it at that.
However, the majority, for whatever reason, chose to add an additional argument that is not only indefensible, it’s insulting. Justice Scalia has never had any problem with a back-of-the-hand dismissal of any explicitly pro-gay argument (his dissent in Lawrence v. Texas, referencing the homosexual “agenda” is among his pettiest writing, which at its best, in my opinion, is among the court’s most lively), and the majority here, in relying on this sham of an argument, both lost credibility with me, and seemed as politically motivated as Bush v. Gore.
Judging is hard when the questions are hard, or the facts are obscure. But as we’re seeing now in the Prop. 8 case, our opponents are now scraping the bottom of the barrel in putting their own case together, now having lost four of their six witnesses, who refuse to testify even though their appearances will *not* be televised. If the other side had a compelling, or even a respectable legal and factual case, isn’t this the place to make it?
All they have is politics — which works for them, God knows. But that’s exactly what the courts are supposed to be able to filter out. That’s the theory, at least. But if that second, personal argument in the majority is any indication, this will be nothing more than the show trial the right accuses it of being — except they’ll be the ones who prevail.
posted by Jorge on
However, the majority, for whatever reason, chose to add an additional argument that is not only indefensible, it’s insulting. Justice Scalia has never had any problem with a back-of-the-hand dismissal of any explicitly pro-gay argument (his dissent in Lawrence v. Texas, referencing the homosexual “agenda” is among his pettiest writing, which at its best, in my opinion, is among the court’s most lively), and the majority here, in relying on this sham of an argument, both lost credibility with me, and seemed as politically motivated as Bush v. Gore.
That was another case I couldn’t decide very well on, though I don’t remember it.
If you’re talking about the argument that televising the proceedings may place witnesses in danger, that’s pretty central to their decision to get involved in the first place. Both opinions made it pretty clear that issuing an injunction would only be justifiable if there was a potential harm that could not be reversed. What remains is what to think of it. Like does the fact that they are already well-known personalities mitigate the threat, or is introducing the possibility of streaming on YouTube too big an escalation?
Judges are triers of fact, but to determine fact they weigh other things. Minorly, but they look at them. Justice Breyer likes to look at laws in other countries, Justice Scalia tends to cite traditional/religious . Justice Thomas once memorably cited the violent history of the Ku Klux Klan (then voted the other way). And Justice-appointee Sotomayor got into trouble over past remarks about how a Latina justice would decide cases. I suppose I see the point of your post.
Anyway, if you want to change the mood that is leading to this trend, you probably can’t do much better than trying to attack the belief in the “homosexual agenda.” You need to understand what this is about.
posted by DragonScorpion on
~”They are likened to the civil rights workers of the 1960s, and we are aligned with the southern police who called out the dogs and cranked up the firehoses.” ~ David Link
Precisely. This, and in spite of the fact that we live in a heteronormative society, where heterosexual coupling is assumed in almost any situation, yet allowing homosexuals to serve openly in the military, marry, or (shockingly) to hold hands while strolling through a park or set out a picture of your same-sex partner at work â this is ‘shoving the gay lifestyle down the throats of decent society’…
Or mobs of people voting away our legal right to marry our same-sex partner, but yet we are the ones depicted as imposing our wills unfairly onto them for daring to even suggest that we should have access to the same civil contracts as them in the first place.
They’re the victims, we are the offenders… It all has this Alice in Wonderland, the-world-turned-on-its-head feel to it.
I hope more people are catching on to the craven hypocrisy of it all, but I don’t know. Some people don’t want to see what is right in front of them. Especially when it doesn’t involve them directly. And let’s face it, our civil rights aren’t much of an issue for most people in the heterosexual community. They may support us, but not to the point of getting involved.
Maybe that is changing. Maybe this trial will help.
posted by Debrah on
“……..in spite of the fact that we live in a heteronormative society……..”
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Stop the presses.
~Heteronormative~
Anytime you have someone—anyone—use this word, you know you’re dealing with a vehement social segregationist…..engaged in the sheer pleasure of using this as a tool for discussion, much like the rabid feminists have used the word “sexist”.
By the way, in your leisure, go back and check out the physical appearance and the demeanor of some of the feminists of our society.
Most of them who have used words like “sexist” thrown at men and “sexual harassment victim” as an identity plastered across their foreheads would have little experience in the real world of sexual harassment.
If most of them could conjure a real episode where they were ever “sexually assaulted” by a man, it would not be a crime, but a coup.
Likewise, “heteronormative” which is all the rage is about as potent and meaningful as its predecessor.
“Hetero”, like it or not and care about it or not……would, necessarily, be the “norm” simply because of the biological reality of all us humanoids.
I’m sure all you guys are grateful that your Moms and Dads put their equipment to good use in producing YOU.
Must we now go on the attack because about 5% of the population wants a new “norm”……(and they don’t care how they define it !!!) ?
Surely, we all can be more grown-up about this, no matter one’s sexual orientation.
If offspring could be produced by two men frotting, or by using the more popular method of gay men, anal sex, then we could call that “homo-normative”.
And I, and I dare say most others, wouldn’t care less if this were the “norm”.
All the grandstanding and demands for compliance from such a small segment of the population is quite curious.
And only a society that is still crippled somewhat by political correctness would bow to such thoroughly fascist gyrations.
” And let’s face it, our civil rights aren’t much of an issue for most people in the heterosexual community. They may support us, but not to the point of getting involved.”
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That’s very true.
But most like myself wouldn’t work against SSM.
It’s only when some of us have been brought face-to-face with the destructive forces and the raw self-serving double standards of many in the “gay community” that we prick up our ears and begin checking out the proceedings.
The issue for many is that they simply do not think the technical use of the word “marriage” applies.
And the behavior and obnoxious demands of some of the high profile “activists” do nothing to sway public sentiment.
The most offensive feature of all this is attempting to frame it as a “civil rights” issue alongside race and ethnicity.
Personally, I would wish equal protection for gay couples in all legal and financial matters, however.