August 5th, 2010

law geek

Perry v. Schwarzenegger

I really loved how much Daubert was cited in this. The idea that science, data, rigor, publishing, peer review and academic credentials have merit over gut feeling and compilation of other people's ideas was refreshing in an era where educated "elites" are looked down upon.

I'm really really unclear on the proponent's trial strategy. I relize that they had a bunch of experts flail on them during the broadcast public testimoy brouhaha, but SCOTUS ruled in their favor. ( There are no academic experts out there that could have testified to the man-woman thing? It seems that the record is ridiculously one sided. The credentials of the experts on the plaintiffs side were ridiculously impressive, and the proponent's side was just sad. While I think that the proponents understood that the trial was just a first step before getting to SCOTUS, that 50 page list of finding of fact might be difficult to overcome, as the appellate bodies are supposed to look only at the legal issues, not the factual ones. The proponents, it seemed to me, just put together an awful, awful case.

I loved how the court used the Scalia dissent in Lawrence v. Texas for support of the finding of fact that marriage is not about procreation.

The thing that really struck me the most reading the case was how important feminism was in this case. The court spent a lot of time in the finding of fact section talking about coveture. For example:
"Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain.

a. PX0710 at RFA No 12: Attorney General admits that the doctrine of coverture, under which women, once married, lost their independent legal identity and became the property of their husbands, was once viewed as a central component of the civil institution of marriage;

b. Tr 240:11-240:15 (Cott: Under coverture, “the wife was covered, in effect, by her husband’s legal and economic identity. And she —— she lost her independent legal and
economic individuality.”);

c. Tr 240:22-241:6 (Cott: Coverture “was the marital bargain to which both spouses consented. And it was a reciprocal bargain in which the husband had certain very important * * * obligations that were enforced by the state. His obligation was to support his wife, provide her with the basic material goods of life, and to do so for their dependents. And her part of the bargain was to serve and obey him, and to lend to him all of her property, and also enable him to take all of her earnings, and represent her in court or in any sort of legal or
economic transaction.”);

d. Tr 241:7-11 (Cott: Coverture “was a highly-asymmetrical bargain that, to us today, appears to enforce inequality. * * * But I do want to stress it was not simply
domination and submission. It was a mutual bargain, a reciprocal bargain joined by consent.”);

e. Tr 243:5-244:10 (Cott: The sexual division of roles of spouses began to shift in the late nineteenth century and came fully to an end under the law in the 1970s. Currently, the state’s assignment of marital roles is gender-neutral. “[B]oth spouses are obligated to support one another, but they are not obligated to one another with a specific emphasis on one spouse being the provider and the other being the dependent.”);

f. Follansbee v Benzenberg, 122 Cal App 2d 466, 476 (2d Dist 1954) (“The legal status of a wife has changed. Her legal personality is no longer merged in that of her husband.”). "
(pages 62 and 63)

The elimination of this unequal aspect of marriage in the 60s and 70s led to a definition where the parties in a marriage are co-equal partners. This takes the gender roles out of marriage entirely. And because gender roles are no longer proscribed, the gender of the partners becomes less and less relevant. Had the feminist reforms of marriage in the 60s and 70s not been as effective, "husband" would have had some defined duties and rights (usually in the form of finanical other security) and "wife" would have had other defined duties and rights (usually in the form of housekeeping and child rearing). And the argument that a partner of each gender needed to be in a marriage to make it work would have been easier to make.

My mom told me that when she first got married in 1970, she was horrified to discover that in addition to losing her name, she'd lost her idenitity. She discovered that she couldn't get credit cards, couldn't open bank accounts, couldn't buy any property of value, couldn't do anything about her financial life, despite the fact that she'd been perfectly fine on her own for the previous 8 years AND the fact that my dad is a financial idiot who was incapable of balancing a checkbook. Marriage laws at the time meant that the husband was presumed to be the financial administrator and decision maker of the household.

I can't imagine agreeing to that sort of arrangement, and fortunately for the institution of marriage, the laws substantially changed to reflect the society that we live in where women are equally capable of bringing financial security and men are equally capable of childrearing.

The court said:
The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, FF 26-27, social disapproval of same-sex relationships, FF 74, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction, FF 43. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
(page 112-13)

I know that this thing isn't over by a long shot, and Justice Kennedy is probably, once again, going to be the pivitol vote when this thing gets to the SCOTUS, but I think that Olson and Boies got as good as a set up as they could in this case. It was a great read, and the finding of fact should probably be required reading in every marriage and family class offered by a sociology department in this country.