Why Didn't the Defense Mount a Real Defense During the Prop. 8 Trial?
I assume everybody has heard the news, but I might as well reiterate it: Chief U.S. District Judge Vaughn Walker declared Proposition 8, California's voter-approved same-sex-marriage ban, to be unconstitutional. This is, of course, good news, but there are still a number of questions to be answered, including one in particular that is bugging me.
This ruling is, by all accounts, far from the final decision on this issue. The next step is for the case to go before the Ninth U.S. Circuit Court of Appeals, and then, eventually, to the Supreme Court. Now plenty of people who are both smarter and more informed on this issue than I am have explained what to expect from this process, but there is one nagging issue for me that I've yet to see addressed: why didn't the defense try to present a better case for upholding Prop. 8?
By every account that I've read, the defense (which consisted of a group of lawyers representing Prop. 8's original backers who took over after Governor Schwarzenegger and Attorney General Jerry Brown refused to defend the law) did very little to present their side of the case. Slate's Dahlia Lithwick explains some of the issues with the defense's case by noting that "the plaintiffs presented eight lay witnesses and nine expert witnesses, including historians, economists, psychologists, and a political scientist" while the defense only called two witnesses. And those two witnesses apparently offered less than compelling testimony. Lithwick notes that Judge Walker described one witness, David Blankenhorn, the founder and president of the Institute for American Values, by explaining that Blankenhorn "lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponent's factual assertions." And he had similarly dismissive things to say about the defense's other witness, Kenneth P. Miller. Apparently the defense originally planned to call other witnesses, but didn't for a number of different reasons (including at least one witness who claimed that he dropped out because he feared retribution from the gay community if he provided his testimony). Judge Walker scolded the defense for providing "no credible evidence" to support their claims, despite promising in their trial brief to show how gay marriage would "effect some twenty-three harmful consequences."
But I keep wondering why, after spending so much time and money and effort to get the proposition passed in the first place, the pro-Prop. 8 faction would put forth so little effort to defend the case in court. It seems too easy and reductive to place the blame on some sort of combination of overconfidence and incompetence. Rather, I suspect that this minimal effort may have been a conscious strategy on the part of the defense, in anticipation of the appeals process and eventual case before the Supreme Court. Everybody involved knew that this trial was only one step in a very long process, and perhaps the defense felt that the best strategy was to, in effect, intentionally lose the case. I don't know enough about the law to know what advantages (if any) are to be found by this approach, but I have to imagine that this is a plausible explanation for the defense's incompetence.
In a blog post dated January 11, 2010, Huffington Post writer Karen Ocamb explains how the National Organization for Marriage, one of many groups involved in the fight against gay marriage, expected Prop. 8 to be overturned by Judge Walker. She quotes NOM Executive Director Brian Brown who, in a fundraising letter sent out to supporters, stated that the NOM did "not expect to win at the trial level, but with God's help, at least five members of the current Supreme Court will have the courage to defend our Constitution from this grave attack." Ocamb further cites a column from NOM's Maggie Gallagher that outlines the groups dissatisfaction with Judge Walker's decisions regarding the trial, including allowing it to be a "trial of fact" rather than a "review of law", his ruling that "the private intentions of Prop. 8 proponents ... were properly the subject of this trial", and his decision to allow the trial to be televised (a decision that was eventually reversed by the Supreme Court). Gallagher accuses Judge Walker of possessing an "extraordinary bias" that has "been flagrantly on display" early in the trial process.
If the groups behind Prop. 8 were so upset with Judge Walker and were pessimistic about the outcome from the very outset, it would stand to reason that they may consider some sort of sandbagging strategy such as the one I suggested earlier. Again, I don't know enough to say whether this is a good strategy, but I think it's possible that the defense took this approach. Perhaps they are setting up a future approach in which they attack Judge Walker's methods and question the legitimacy of the trial itself as opposed to trying to argue against the result. Most accounts of the ruling describe it as "sweeping" and a potential "game-changer" particularly because of some of the concerns the NOM raised about Judge Walker's approach. Because the decision invoked the Equal Protection Clause of the 14th Amendment of the U.S. Constitution (as opposed to dealing with how the propostion relates to the California State Constitution) and because the decision was based on Walker's "findings of fact", the decision has further-reaching consequences than it could have if the trial had been conducted differently. And it would make sense for the defense to argue that, given what they felt were wrongly inhospitable circumstances for them to defend their position, they opted against mounting a full defense. It seems to be a specious, manipulative approach, but it could potentially be an effective one.
This is all very loose speculation on my part, but it will be interesting to see what happens as this case progresses through the different levels of the judiciary...
This ruling is, by all accounts, far from the final decision on this issue. The next step is for the case to go before the Ninth U.S. Circuit Court of Appeals, and then, eventually, to the Supreme Court. Now plenty of people who are both smarter and more informed on this issue than I am have explained what to expect from this process, but there is one nagging issue for me that I've yet to see addressed: why didn't the defense try to present a better case for upholding Prop. 8?
By every account that I've read, the defense (which consisted of a group of lawyers representing Prop. 8's original backers who took over after Governor Schwarzenegger and Attorney General Jerry Brown refused to defend the law) did very little to present their side of the case. Slate's Dahlia Lithwick explains some of the issues with the defense's case by noting that "the plaintiffs presented eight lay witnesses and nine expert witnesses, including historians, economists, psychologists, and a political scientist" while the defense only called two witnesses. And those two witnesses apparently offered less than compelling testimony. Lithwick notes that Judge Walker described one witness, David Blankenhorn, the founder and president of the Institute for American Values, by explaining that Blankenhorn "lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponent's factual assertions." And he had similarly dismissive things to say about the defense's other witness, Kenneth P. Miller. Apparently the defense originally planned to call other witnesses, but didn't for a number of different reasons (including at least one witness who claimed that he dropped out because he feared retribution from the gay community if he provided his testimony). Judge Walker scolded the defense for providing "no credible evidence" to support their claims, despite promising in their trial brief to show how gay marriage would "effect some twenty-three harmful consequences."
But I keep wondering why, after spending so much time and money and effort to get the proposition passed in the first place, the pro-Prop. 8 faction would put forth so little effort to defend the case in court. It seems too easy and reductive to place the blame on some sort of combination of overconfidence and incompetence. Rather, I suspect that this minimal effort may have been a conscious strategy on the part of the defense, in anticipation of the appeals process and eventual case before the Supreme Court. Everybody involved knew that this trial was only one step in a very long process, and perhaps the defense felt that the best strategy was to, in effect, intentionally lose the case. I don't know enough about the law to know what advantages (if any) are to be found by this approach, but I have to imagine that this is a plausible explanation for the defense's incompetence.
In a blog post dated January 11, 2010, Huffington Post writer Karen Ocamb explains how the National Organization for Marriage, one of many groups involved in the fight against gay marriage, expected Prop. 8 to be overturned by Judge Walker. She quotes NOM Executive Director Brian Brown who, in a fundraising letter sent out to supporters, stated that the NOM did "not expect to win at the trial level, but with God's help, at least five members of the current Supreme Court will have the courage to defend our Constitution from this grave attack." Ocamb further cites a column from NOM's Maggie Gallagher that outlines the groups dissatisfaction with Judge Walker's decisions regarding the trial, including allowing it to be a "trial of fact" rather than a "review of law", his ruling that "the private intentions of Prop. 8 proponents ... were properly the subject of this trial", and his decision to allow the trial to be televised (a decision that was eventually reversed by the Supreme Court). Gallagher accuses Judge Walker of possessing an "extraordinary bias" that has "been flagrantly on display" early in the trial process.
If the groups behind Prop. 8 were so upset with Judge Walker and were pessimistic about the outcome from the very outset, it would stand to reason that they may consider some sort of sandbagging strategy such as the one I suggested earlier. Again, I don't know enough to say whether this is a good strategy, but I think it's possible that the defense took this approach. Perhaps they are setting up a future approach in which they attack Judge Walker's methods and question the legitimacy of the trial itself as opposed to trying to argue against the result. Most accounts of the ruling describe it as "sweeping" and a potential "game-changer" particularly because of some of the concerns the NOM raised about Judge Walker's approach. Because the decision invoked the Equal Protection Clause of the 14th Amendment of the U.S. Constitution (as opposed to dealing with how the propostion relates to the California State Constitution) and because the decision was based on Walker's "findings of fact", the decision has further-reaching consequences than it could have if the trial had been conducted differently. And it would make sense for the defense to argue that, given what they felt were wrongly inhospitable circumstances for them to defend their position, they opted against mounting a full defense. It seems to be a specious, manipulative approach, but it could potentially be an effective one.
This is all very loose speculation on my part, but it will be interesting to see what happens as this case progresses through the different levels of the judiciary...
posted by Carlos Animals at 6:37 PM
2 Comments:
I really hadn't thought about that, although I was aware that this was just one step in a long process I hadn't considered that losing might have been intentional. Well written Chris.
Also, good to read that you are still around and writing.
Best- Cordelia
Thanks, Cordelia.
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