Religious right doom - DOMA trial a repeat of the Prop 8 trial?

According to Equality Matters, the government's case for the Defense of Marriage Act (taken up by Speaker of the House Boehner after the Obama Administration refused to defend the law) may be a repeat of the the disastrous Proposition 8 defense in 2010.

That defense was so pitiful that those defending Prop 8 (the law that outlawed gay marriage in California) could only muster two witnesses and both witnesses actually helped the case against the law.

Equality Matters breaks the similarities of the two cases down in three ways, bringing up information which the gay community should take note up (don't worry - I highlighted it):

Same Old Arguments

Last month, Paul Clement – the lead attorney hired by Rep. John Boehner (R-OH) to defend DOMA in federal court – filed two motions to dismiss the case of Windsor v. United States, one of several current legal challenges to the 15-year-old marriage law. The briefs revived a long list of typical anti-gay talking points: children need a mother and a father, ‘traditional marriage’ is necessary to encourage procreation, etc.

These arguments are nothing new: many of them are the same ones that were used (and rejected) in the 2009 First Circuit case Gill et al v. US Office of Personnel Management, which found Section 3 of DOMA unconstitutional. 

They’re also the same arguments put forward by proponents of Proposition 8 in the 2010 district court case, Perry v. Schwarzenegger. In Perry, each of those arguments was thoroughly dismantled, first by the plaintiffs’ attorneys and eventually by U.S. District Judge Vaughn Walker’s “factual, well-reasoned, and powerful” 136-page decision. Walker found that, even under the most deferential standard of judicial review, there was no rational basis for denying gay and lesbian couples the right to marry. 

( Editor's note - I published a post earlier looking at the pitiful junk science Clement is using to defend DOMA)

Same Old Non-Witnesses

In the Windsor case, Clement has had a difficult time securing credible experts and witnesses to provide testimony in defense of DOMA. As AMERICAblog’s Joe Sudbay has noted, Clement tried to rely on the ‘work’ of anti-gay activists like Maggie Gallagher. Windsor’s lawyers filed a motion to strike Maggie’s work from the record, citing their lack of an opportunity to cross examine her in court. 

A similar situation arose during the Perry trial. Defense attorney Charles Cooper found himself unable to put forth more than two ‘expert’ witnesses – one who was quickly dismissed as lacking “the qualifications to offer opinion testimony” and another who’s testimony was given “little weight.” Cooper’s inability to find credible experts to support Prop 8 eventually led Judge Walker to ask:

Seven million Californians, 70 judges and this long history that you described. Why did you present but one witness on this subject?

(Editor's note - For all of Maggie Gallagher's talk of "protecting marriage," why won't she allow herself to be put in a position to be cross-examined. The fact that the gay community has allowed this crucial contradiction to slip by unexploited - yes I said "unexploited" - is a huge problem in our fight for marriage equality.)

And Now, Same Old Shame


Monday it was reported that the House’s Bipartisan Legal Advisory Group (BLAG) would oppose video recording the courtroom proceedings in Golinski v. United States, another case challenging DOMA’s constitutionality in federal court. BLAG’s opposition effectively ensures that the proceedings won’t be videotaped, as all parties must agree before the arguments can be recorded. 

BLAG’s position is reminiscent of the ongoing battle to prevent the public from viewing the footage of the Perry trial.  

For months, Prop 8’s proponents have been fighting “tooth-and-nail” to prevent the release of the trial footage, claiming that their anti-equality witnesses might be harassed and targeted for opposing same-sex marriage. This claim makes little sense: transcripts from the trial are publicly available, and both anti-equality witnesses had national profiles well before the Perry trial began.

As the American Foundation for Equal Rights – which represented the plaintiffs in the Perry case – has pointed out, it’s much more likely that Prop 8’s defenders are embarrassed about what happened during the trial. The defense’s witnesses admitted to lacking specific knowledge on a number of issues, contradicted themselves, and on several occasions, even agreed with the arguments made against Prop 8.

If these trends continued to hold, then we will probably be seeing a repeat of what happened last year when Prop 8 was overturned - i.e. the gay community dancing in the streets while the religious right and their supporters trying to cover up their faulty case by blaming the judge.

I'm already shopping for my dancing shoes