Prop. 8 Opinion an Object Lesson in Legal Reasoning & Courtroom Tactics

August 2010

Note:  This is itself just a summary blog post—with little or no analysis.  And let’s be crystal clear:  This blog post makes no comment on the issue(s) at hand (same-sex marriage, “traditional” marriage) or the social and moral validity of the holding.  Frankly, anyone who claims otherwise is just blind to rational analysis and just wants to be angry.

I will, however, disclose that my wife and I cannot have children (due to our age) and one of the tenets central to supporters of Prop. 8 is that marriage is for procreation.

Introduction

Ignoring for the moment the topic and the holding of the recent Vaughn Walker opinion in the California Proposition 8 case, it is worth reading the case itself.  See www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL.  Judge Walker crafted a solid structure in his opinion that points to the law of expert witnesses.  If you look at it this way, you will see that the trial transcript could only lead Judge Walker to his conclusion.

Reading the opinion one can see that the case came down to one side amassing evidence consistent with federal law as to expert witnesses with the other side engaging in the legal strategy of what I would call Ipse Dixit Declarations—i.e., believe me because it is obvious.

Lack of Evidence

What proponents of Prop. 8 failed to do was provide any evidence of either of their basic propositions—that marriage was for procreation and allowing gay marriage would endanger children.  That’s right.  No evidence.  There may very well be evidence to support those propositions but nothing was submitted to the court that conformed to the basic legal standards.  I won’t even get into the other assertions they made.

Ipse Dixit Declarations. “Ipse dixit” means, essentially, a statement asserted but not proven, to be accepted on faith (from Wikipedia).  For example, one of the two expert witnesses called by proponents asserted the dangers of gay marriage to the core of “traditional” marriage and to children.  And yet, he provided no evidence supporting his propositions—at least, using the long-established standards in federal court that assertions must somehow be linked to data or replicable methodologies common in a relevant industry.  True, he offered references to certain studies but these studies were largely off point—in fact, plain wrong.  At one point, he admitted that some of his assertions derived from a “thought experiment,” that is, he and his colleagues sat around a conference table and wrote down whatever ideas came up.  I kid you not.

Interestingly, the two expert witnesses the Prop. 8 proponents actually called ended up supporting, on cross-examination, many of the assertions of the Prop. 8 opponents.  For example, one witness asserted essential characteristics of a marriage.  And guess what?  He could not distinguish how ‘traditional” marriages differed from same-sex marriages with respect to the characteristics with which he agreed.

Legal Tactics

Reading the opinion also raises some interesting questions about legal tactics.  First, the California state government (i.e., those who were sued) declined to defend Prop. 8.

But more surprising, the Prop. 8 legal team dropped its expert witnesses just before the trial was to begin.  That’s right.  They were reduced to two—one who runs a center on family values and one who is a political science professor without experience on same-sex (or LGBT) politics and who ended up contradicting his own prior writings.

Thus, those who believe that there is evidence to support the position of Prop. 8 proponents should look to—and criticize—their legal counsel and neither the judge nor the plaintiffs.

Let me repeat: This blog post makes no comment on the issue(s) at hand (same-sex marriage, “traditional” marriage) or the social and moral validity of the holding.  Frankly, anyone who claims otherwise is just blind to rational analysis and just wants to be angry.

James C. Roberts III is the Managing Partner of Global Capital Law Group (www.globalcaplaw.com) and CEO of the strategic consulting firm, Global Capital Strategic Group (www.globalcapstrat.com). He heads the international, mergers & acquisitions and transactional practices and the industry practices concentrating on digital, media, mobile and cleantech technologies.  He is currently involved in opening the Milan office.  Mr. Roberts speaks English and French and, with any luck, Italian in the distant future.  He received his JD from the University of Chicago Law School, his MA from Stanford University and his BS from the University of California—Berkeley.  You can reach him at jcrext@globalcaplaw.com.

The Global Capital firms counsel domestic and international clients on strategic and legal issues inherent in the deployment of intellectual & financial capital—a merger or acquisition, foreign market expansion, a strategic alliance, a digital content license, a mobile deal, foreign and domestic labor and employment policies, starting a new entity or raising capital. Clients range from global Fortune 100 corporations such as Deutsche Bank and News Corporation and its subsidiaries, MySpace.com and Fox Interactive Media, to start-ups.  Industries represented include digital media, Internet, software, medical and biotechnology, nanotechnology, consulting firms, environmental technology, advertising, museums and other cultural institutions and manufacturing.

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