{"id":230273,"date":"2010-01-25T03:06:20","date_gmt":"2010-01-25T08:06:20","guid":{"rendered":"http:\/\/www.stanforddaily.com\/cgi-bin\/?p=1037561"},"modified":"2010-01-25T03:06:20","modified_gmt":"2010-01-25T08:06:20","slug":"prof-segura-testifies-in-prop-8-trial","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/230273","title":{"rendered":"Prof. Segura testifies in Prop. 8 trial"},"content":{"rendered":"

In S.F., federal court hears arguments for legality of California ban on same-sex marriage<\/h4>\n
\"Plaintiffs<\/p>\n

Plaintiffs called Prof. Gary Segura to the stand last Wednesday and Thursday for the trial of same-sex marriage case Kristin M. Perry v. Arnold Schwarzenegger to speak on the political vulnerability of the gay and lesbian community. (Courtesy of Stanford News Service) <\/p>\n<\/div>\n

The question of same-sex marriage has entered the federal courtroom, and LGBT activists and marriage protection advocates alike have prepared their factual ammunition for the battle ahead. Caught in the controversy\u2019s whirlwind, political science Prof. Gary Segura testified for a total of nine hours Wednesday and Thursday as an expert witness on political representation.<\/p>\n

Both sides of the marriage debate will have the chance to present their evidence in the federal trial Kristin M. Perry v. Arnold Schwarzenegger<\/em>, which began Jan. 11 and is expected to end this week. Plaintiffs are challenging the constitutional validity of the California ballot measure Proposition 8, which passed by a 52 percent margin in November 2008, banning same-sex marriage in the state.<\/p>\n

The trial is the first to bring same-sex marriage to federal courts, and plaintiffs hope to use Segura\u2019s testimony to invoke the federal equal protection clause in favor of marriage equality.<\/p>\n

The Rational Basis Test<\/p>\n

According to law school Prof. Jane Schacter, this trial is particularly significant because it questions whether the gay and lesbian community is \u201ca suspect class.\u201d If the gay and lesbian community is declared a suspect class, the courts may apply a more stringent test to the validity of the ban.<\/p>\n

States are allowed to disadvantage a group as long as there is a \u201crational basis,\u201d and Prop. 8 was originally justified by this test.<\/p>\n

Once a group is declared a suspect class, however, the courts must apply a higher level of scrutiny and prove that states have a right to apply the law due to compelling state interest. Plaintiffs hope to increase the level of scrutiny in order to throw out Prop. 8.<\/p>\n

According to Schacter, in order to be declared a suspect class, the gay and lesbian community must prove three conditions: a history of discrimination, a lack of sufficient political power through the normal political process, and a victimization due to irrelevant traits.<\/p>\n

\u201cA fourth condition may be applied, too: immutability,\u201d she added. \u201cIn colloquial terms, do people have a choice of being gay, or are they born gay?\u201d<\/p>\n

Historically, racial discrimination has been a subject of strict scrutiny, while gender has fallen into the category of intermediate scrutiny.<\/p>\n

Segura\u2019s evidence is intended to support the second condition, which law emeritus Prof. Michael Wald said had evidence in its favor.<\/p>\n

\u201cI do think that gays and lesbians are politically vulnerable,\u201d Wald said. \u201cJust because voters pass something doesn\u2019t mean it\u2019s constitutional.\u201d<\/p>\n

Schacter acknowledged that there are compelling arguments on both sides. While California extends domestic partnership rights and has no ban on sodomy, the gay and lesbian community has also been subjected to discriminatory ballot initiatives.<\/p>\n

\u2018Scare Tactics\u2019<\/p>\n

In addition to reviewing the concept of scrutiny, the courts are also trying to determine if the marriage protection advocates are driven by animosity.<\/p>\n

\u201cThe Court wants to say that if the animosity is the only factor backing Prop. 8, then the judge would strike it down,\u201d Schacter said. \u201c[Judge Vaughn Walker] would invalidate it if that\u2019s the only thing backing it.<\/p>\n

\u201cJudge Walker is conducting a full-blown trial with lots of witnesses and cross-examinations,\u201d she added. \u201cThe trials before were based on dry legal arguments conducted on briefs. [Walker] is really looking at the factual basis behind Prop 8.\u201d<\/p>\n

Sarah Masimore \u201911 commented that the case will force same-sex marriage opponents to give factual support to their arguments. \u201cI think it\u2019s really great that it\u2019s in the court system right now because [Prop. 8 supporters] can\u2019t use scare tactics anymore,\u201d she said. \u201cThey have to give actual evidence of what they said during the campaign.\u201d<\/p>\n

Segura on the Stand<\/p>\n

Segura said he initially declined to participate because of the time commitment but, after thinking about it further, decided it would be a worthy undertaking.<\/p>\n

\u201cIt seemed like an important thing to be associated with,\u201d he said. \u201cWhen they called the second time, I just said, \u2018Alright.\u2019\u201d<\/p>\n

Segura\u2019s argument for the political vulnerability of the lesbian and gay community rests on his claim of the group\u2019s subjection to widespread public disapproval and condemnation. \u201cGays and lesbians are more likely than any other American to be targeted with rape and murder and hate crimes.\u201d he said.<\/p>\n

Through his research, Segura found that gays and lesbians do not have basic employment discrimination prevention rights in 29 states, are underrepresented in public office and are targeted by more political initiatives than any other group.<\/p>\n

According to Segura, the gay and lesbian community has lost 70 percent of the time on issues not concerning marriage, and 100 percent on issues concerning marriage.<\/p>\n

\u201cNow, three-fifths of the states have constitutionally established a group of people as not fully equal,\u201d Segura said. \u201cIt\u2019s wrong to view all of these things and conclude that a group is still sufficient to protect their basic rights through the normal political process.\u201d<\/p>\n

Segura, whose academic background is in minority rights, said his role in the trial was professional. \u201cI was not testifying as an advocate,\u201d he said. \u201cI am a social scientist. My work is a fair assessment of the strategic political circumstances of gays and lesbians.<\/p>\n

\u201cI\u2019m part of the trial to provide expertise to the court but there are competing experts,\u201d he added. \u201cMy views are not consistent with the person that the defendants are bringing.\u201d<\/p>\n

The defendants will bring in Claremont McKenna government Prof. Kenneth Miller to testify more about political power, speaking in opposition to Segura\u2019s arguments.<\/p>\n

End of the Road?<\/h4>\n

Schacter and Segura both agreed that the San Francisco case will not be the end of the road. According to both, whoever loses the decision will probably appeal to the Ninth Circuit. From there, the Supreme Court may decide to hear the case.<\/p>\n

\u201cThe bringing of this case was so controversial,\u201d Schacter said. \u201cSome gay rights groups didn\u2019t think it was the right time since there may be a five-member majority [of conservative values] in the Supreme Court.\u201d<\/p>\n

According to Schacter, Supreme Court Justice Anthony Kennedy \u201958 would be the swing vote if the decision made it to his court. Kennedy ruled on behalf of striking down the ban on consensual sodomy in the 2003 case Lawrence v. Texas<\/em>, but Schacter said it was unclear whether he would go so far as to support same-sex marriage.<\/p>\n

\u201cYou read between the lines and you can see that he made the distinction clear that he wasn\u2019t deciding anything about the marriage issue,\u201d she said. \u201cAt the level of legal argument, you can use the sodomy decision to support marriage equality, but whether [Kennedy\u2019s] willing to do that is a separate question.\u201d<\/p>\n

Schacter also said that if Prop. 8 is upheld, the Supreme Court may not review the case \u2013 a possibility with complex implications for the political struggle over gay marriage.<\/p>\n

\u201cIt won\u2019t really change the status quo,\u201d she said. \u201cIt will not threaten the many anti-marriage equality measures that are already placed around the country, so the Supreme Court might just wait before reviewing it.\u201d<\/p>\n

Schacter made the comparison between the previous ban on interracial marriage and the current ban on gay and lesbian marriages.<\/p>\n

\u201cIt took almost 20 years before the ban on interracial marriage was struck down,\u201d she said. \u201cThe gay rights battle began in 1993, approximately.<\/p>\n

\u201cThere are astonishing parallels,\u201d she added. \u201cMarriage has been a changing, evolving institution. At the time that there were bans on interracial marriage, there was tremendous public support for banning it since it violated religious barriers.\u201d<\/p>\n

According to Schacter, there was probably 90 percent disapproval for interracial marriage around the country before the Supreme Court finally overturned the ban.<\/p>\n

\u201cIf voters voted that there cannot be interracial couples, then that wouldn\u2019t be constitutional,\u201d Wald added. \u201cIt\u2019s a restriction of choice to marry. Whether you restrict a choice on race or gender or other factors, that is generally unconstitutional in terms of policy.\u201d<\/p>\n

Schacter added that strict scrutiny was applied to the 1967 case of Loving v. Virginia<\/em>, which struck down the ban on interracial marriage.<\/p>\n

\u201cThe heart of this case is whether this issue is comparable to Loving v. Virginia<\/em>,\u201d she said. \u201cWhether it will carry over to the same-sex controversy is not settled. It may be an uphill battle for gay rights activists.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

In S.F., federal court hears arguments for legality of California ban on same-sex marriage Plaintiffs called Prof. Gary Segura to the stand last Wednesday and Thursday for the trial of same-sex marriage case Kristin M. Perry v. Arnold Schwarzenegger to speak on the political vulnerability of the gay and lesbian community. (Courtesy of Stanford News […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-230273","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/230273","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=230273"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/230273\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=230273"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=230273"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=230273"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}