LA Times: Prop. 8 judge wants a discussion of 'choice' in sexual orientation

[usregimechange]

U.S. District Judge Vaughn Walker is presiding over the Proposition 8 trial. (San Francisco Daily, S. Todd Rogers / March 21, 2006)

Federal Judicial Service:
Judge, U. S. District Court, Northern District of California.
Nominated by George H.W. Bush on September 7, 1989.


A federal judge who will decide the constitutionality of California's ban on same-sex marriage wants lawyers during closing arguments Wednesday to discuss the meaning of "choice" in sexual orientation and a possible finding that Proposition 8 attempted to "enforce private morality."

Chief U.S. District Judge Vaughn R. Walker, who has been presiding over the federal marriage trial in San Francisco, sent lawyers a list of 39 questions he wants addressed when the trial ends Wednesday after four hours of closing arguments.

Walker's questions reveal some of the issues still troubling him and suggest that his decision will rely heavily on evidence about the nature of sexual orientation, the effect of Proposition 8, and the similarities and differences between heterosexual and same-sex couples. He asked each side 12 questions and posed an additional 15 to both.

http://www.latimes.com/news/local/la-me-prop8-trial-20100615,0,471302.story

[DirkGently]

1. We are witnessing the great discrimination debate of our era

And yet it doesn't look like we've learned much. In particular, the anti-gay marriage arguments closely track arguments against permitting racially mixed marriage. The Bible. Tradition. Gut-level aversion without a basis in fact. The need to protect children from the disapproval of others. And at the bottom, an apparently overwhelming need to exclude a group of people from a portion of society.

There's a car at work with a leftover "One man, one woman, vote yes on (our version of Prop 8)" with a happy cartoon of Mommy / Daddy / kiddie, each a different primary color, holding hands. Such casual dismissal of others' right to simply live. No picture of a gay couple trying to cut through the bureacracy at a hospital or being turned down for benefits or adoption on the bumper sticker. Too hard to put in a cartoon, I guess.

[muffin1]

21. Beautiful.

You've been here long enough to have a few hundred posts, but I don't think I've ever crossed paths with you.

Thank you for your thoughtful words. And let me welcome you to DU!

:toast:

[Starry Messenger]

2. This is really a historical trial, IMO.

What a nail-biter this is.

[Toasterlad]

3. The Fact That There Are People Deemed Intelligent Enough To Serve As Judges...

...who need to be convinced that homosexuality is not a choice is one of the main explanations for why this country is such a third-world shithole of human rights violatons.

[Freddie Stubbs]

4. Judge Walker is gay:

http://articles.sfgate.com/2010-02-09/opinion/17872020_1_anti-gay-san-francisco-gay-olympic-games

[Toasterlad]

6. Then He Doesn't Even Have THAT Excuse.

Either he's trying too hard to seem objective, or he's an Aunt Tom willfully working against gay equality.

Anyone who advances the gay = choice meme is an asshole and a moron.

[Prism]

10. I think he's doing it for a reason

My memory is totally failing me right now, but there are rules to establishing protected classes. He's basically telling our side to establish orientation as an immutable characteristic in their arguments, so should his opinion come down on our side, he will then have that basis at his disposal in his determination.

I see it less as him putting it up for debate as much as making sure it's included for the sake of totality. This is a historic trial, the gay Scopes, and I think the judge is looking to get it all "out there" so everything's covered.

If I were a judge inclined to finding against Prop 8, the immutability of orientation would be a big part of my thinking.

[Toasterlad]

12. The Fact That He Cited That Survey (And Where the HELL Did They Come Up With THAT)....

...leads me to believe he's taking the notion that people can choose to be gay or straight seriously.

I'd certainly love to be wrong about this. I'm just sick of waiting for someone with authority to say, "Alright. We've let you bigots blather on long enough. Sexual orientation is not a choice. Now you can move on with us, or we can leave you behind. Either way, you don't get to drive this debate any longer."

[Prism]

24. Agreed

Maybe I'm not being cynical enough, but I don't think judge himself is seriously entertaining the notion orientation is a choice. I can't imagine any out gay man would. There's a method to establish protected classes, and orientation doesn't meet the same legal standards at the moment as, say, race does. (I hope a lawyer will chime in, because I can't remember how a constitutional attorney friend of mine explained it to me, and I know I'm doing a poor job here). If the judge ends up establishing orientation on the same level as race in his decision, he needs a very thorough justification and all the materials at hand.

Also, given the judge is gay, he's under a very, very powerful microscope. Asking for materials and allowing a debate is probably his way of saying "See, I'm even letting this nonsense in so they can't say I was biased in what was allowed."

The right-wing hates this guy and already prejudged him. They're salivating over the prospect of tearing him apart should he decide in our favor. He probably figures why give them any ammunition at all.

[EFerrari]

5. Or it could be that he wants that idea aired out and is offering

his courtroom as a venue. That would be my guess, anyway.

[closeupready]

8. That was my first thought, as well. He could be trying to draw out

'choice' arguments so as to effectively skewer them once and for all.

[haele]

7. Actually, he probably needs to have all of those questions answered in writing -

So as to minimize the potential for appeal against his ruling.
He probably has his own answer as to whether or not orientation is a choice. But the reason for this court case is due to a very subjective outcome on a proposition that could be considered to be a violation of human legal rights.
He has to prove that this is a violation of a legal right, that it's not as if someone is being inconvenienced because of not being able to indulge in a personal moral choice - say, of not being able to take a son to a X-rated movie as part of his Bar-Mitsva.
Because that's what the proponents of Prop 8 see equal marriage rights for gay/straight like - and that's the argument they're making. That homosexuality is a moral choice, and gay/lesbian/transgendered people have no rights to enter into a legal marriage outside "the normal moral family". That being gay is like being catholic. It's a choice.

He has to get those questions answered, and the science down, so that it's a big ol' "bigot" sign to hang around the necks of those who support Prop 8.(edited - I was going to put "religious wacko bigot", but not all supporters of Prop8 were religiously motivated)
Actually, reading some of the info above, especially because he's gay, he has to have them answered so his own ability to judge fairly would not be questioned.

Haele

[Fearless]

13. +1

[Johonny]

23. I agree

[gratuitous]

9. I don't think that's it

The judge wants arguments from the lawyers on the issue of choice, probably so that he can address that in his ruling. This way, the lawyers do the research and organization of material on the issue, and the judge can then put in a section addressing the issue based on what the lawyers present.

If the issue isn't addressed, you can very well bet that someone somewhere will complain about the ruling on that basis. The judge is being thorough.

[jp11]

11. Haven't there been studies that show people don't really have a 'choice' ,

unless you count living a lie to make other people who judge happy, in whom they are attracted to and how they identify their sexuality?

http://articles.latimes.com/2008/jun/17/science/sci-gaybrain17

http://www.transgenderlondon.com/What%20Causes%20It.htm

I couldn't find a more recent one and I have been operating under the idea people are born with the traits that make them like a man or a woman or both since I pretty much understood that people 'liked' each other in different ways.

[DirkGently]

14. The whole "choice" thing bugs me

Yes, movements to end race and gender discrimination have always drawn in part on the fact that these are groups of people who are *born* within the group in question, and thus have no choice in the matter.

But is having "no choice" but to be part of one group or another really a requirement to be free from discrimination? How about religion? That's a choice. "Traditional" marriage in this country would be one Protestant man and one Protestant woman. We're really mucking around with the "institution" of marriage by "letting" all those Catholics and Jews and Muslims and Wiccas marry here, aren't we? After all, they could just "choose" to be "normal," right? (And I hope the facetious quote marks are clear).

How about diet? Marriage is traditionally one flesh-gobbling man and one meat-rending woman, right? Why should we rock the boat by letting vegetarians and vegans participate? It's their oddball choice to eschew the joys of digesting fresh Bambi flesh. How can we trust them not to wreck things for everyone? Cat fanciers? - Pfffft. *Traditional* marriage involves just red-blooded dog-having people like me, and I don't want those prancing feli-philes screwing it up.

Just a thought. Again, I see how it simplifies the supposed "moral" debate if sexuality is hard-wired, but we ought to just as easily be able to see that you can't deny a whole set of legal rights and privileges to people who make a "choice" that harms no one, but which others find unappealing for whatever reason.

[Toasterlad]

16. "we ought to just as easily be able to see that you can't deny a whole set of legal rights..."

"...and privileges to people who make a "choice" that harms no one, but which others find unappealing for whatever reason."

Yes, we OUGHT to be. But we're not.

In any case, sexual orientation is NOT a choice, and discussing it as if it were only weakens the case for equality.

[DirkGently]

20. You could lose the argument that way, though

Agreed it's the stronger argument amongst the populace, but insisting that sexual orientation is hard-wired also invites a devolution of the whole discussion into a war of stats and surveys and studies, and worse, accepting the false assumption that if there IS choice involved, to any degree, you open the door to an argument that discrimination is okay on any other basis.

What happens if, as the survey posted indicates, some percentage of gay people believe their orientation is a matter of choice, or in part a matter of choice?

It shouldn't have any weight as to whether discrimination is acceptable or not, but if you frame the argument in those terms, don't you risk losing over a red herring?

[FreeState]

18. The lawyers against Prop 8 answered this by pointing out change and choice are not the same thing

peoples orientation can change overtime - but the people who do experience some fluidity can not turn it off and on because its a natural change that happens to a minority of people and one has no choice in it.

[jp11]

19. Well said, on reading the article link I saw that aspect of the law 'may be wrong only because

people might not have a choice' inferring if they do then the law is fine, but I got so focused on finding 'proof' that science had shown it wasn't really a choice I glazed over that 'gem' of stupidity. People don't like how other people live their lives so lets make laws to deny them rights/etc, as long as they can choose to not be that way they can 'escape' the penalties of our hateful laws.

[DirkGently]

22. Bingo

No reason to let UFOlogists or vegans or telemarketers get married either, then -- they have a "choice" to be like everyone else, right?

We're setting up an ugly set of false assumptions limiting people's right not to be discriminated against exist only where they've never made a "choice" outside of social norms.

We'll let you shop here even though you're black -- after all, you were born that way.

You can still have a job, even though you're a woman -- you had no choice.

WE FORGIVE YOU FOR BEING DIFFERENT, BECAUSE YOU HAD NO "CHOICE."

I think we should think twice before embracing THAT kind of "equality" for anyone.

[hvn_nbr_2]

15. He asked each side 12 questions and posed an additional 15 to both.

So, who can tell me: What's the difference between asking a question and posing a question?

[FreeState]

17. Either way heres both sides answers just posted online today

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8564197