Checking in on Ted and Dave’s excellent adventure

by on December 10, 2009  •  In Constitutional law, Marriage

A slew of pretrial memoranda have been filed in the last couple of days in Perry v. Schwarzenegger, the mega case challenging the constitutionality of Prop 8 in federal court in San Francisco.  A side issue involving whether the defendants will have to turn over to plaintiffs a series of e/mails and other communications related to the campaign strategy behind passing Prop 8 is pending on appeal before the Ninth Circuit. Judge Walker ordered that the materials be turned over, 2009 WL 3234131 and 2009 WL 3823174, but the panel of Ninth Circuit judges that heard the appeal indicated during oral argument that it was likely to rule that forcing disclosure would violate the First Amendment. Other than that, however, the case seems to be on track for its trial date of January 11. There is a pretrial hearing next Wednesday, the 16th, at which final decisions about the scope and length of the trial may be made.

And what a trial it is going to be -

In comparing the plaintiffs' witness list and the defendants' witness list, it is clear that defendants are sticking to their primary theory of the case, which is that plaintiffs' claim is invalid as a matter of law.  Defendants filed a summary judgment motion on those grounds, which Judge Walker denied.  But it appears from their list of proposed witnesses – which includes several of the same individuals expected to testify on behalf of plaintiffs – that the defendants will seek to score points by aggressive cross-examination of plaintiffs' witnesses (which is why the same witnesses are also on the defendants' list), and that they apparently plan to introduce few experts of their own.  Perhaps because few scholars support their position…

Persons on both plaintiffs' and defendants' lists include Lee Badgett, economics professor at the University of Massachusetts and research director at the Williams Institute at UCLA Law School; George Chauncey, a professor at Yale and leading gay historian;  Nancy Cott, another Yale history professor who has written extensively on the relationship between marriage and citizenship; Greg Herek, a psychology professor at Cal-Davis who has been studying sexual orientation for many years; Michael Lamb,a psychology professor at Cambridge who is an expert on parenting; Ilan Meyer, a professor at the Columbia School of Public Health, who will testify about the psychological stress associated with minority status; Anne Peplau, a UCLA psychology professor who will testify about the effects on individuals of equal marital status; and Gregory Segura, a Stanford political science professor who will testify about the political power or lack thereof of the lgbt minority in the United States.  

I gave a talk today at the Department of Justice, and one of the attorneys there suggested that the Perry trial might rival the Scopes trial (on the theory of evolution) as a critical turning point in public understanding.  I hope he's right, with one caveat: the good guys lost the Scopes case, Clarence Darrow's efforts notwithstanding. Let's hope this one turns out differently.


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