POLS+353+f10+Court+2

This is the place for all Court 2 material.

Here's a short summary of today's practice simulation (Katherine 11/30)

· Sotomayor – Yes for same-sex marriage o Baker v. Nelson – everyone should have equal rights · Ginsburg – Yes for same-sex marriage o Past cases big on civil liberties, likes everything equal and everyone to have the same rights · Roberts – Yes for same-sex marriage o Granted petition for ballot initiative on gay marriage in DC   · Breyer – Yes for same-sex marriage o 2 prior cases found (Dale v. Boy Scouts of America & Romer v. Evans) that he voted FOR gay rights · Scalia – No for same sex marriage o Not in the constitution, should be up to the people to decide; can’t say it’s in there because it’s not in the constitution · Thomas – No for same sex marriage o Should be left to state to decide (Lawrence v. Texas) · Kagan – Yes for same sex marriage · Kennedy- (Nick – need you to confirm this) Yes for same-sex marriage o Lawrence v. Texas – no rational basis for having certain sexual acts illegal · Alito (Nesreen) – No? – SHE’S DROPPING THE COURSE o Per Professor McKenzie vote as if Alito was struck by lightning (not available) o If it comes down to a 4-4 decision the ruling of the lower court will stand

These are some articles i found on how the justices might vote.

http://www.pbs.org/wnet/need-to-know/culture/senate-confirms-elena-kagan-but-same-sex-marriage-case-looms/2719/

http://www.forbes.com/2010/08/05/elena-kagan-supreme-court-senate-opinions-columnists-richard-epstein.html

http://www.examiner.com/political-buzz-in-national/the-confirmation-of-elena-kagan-and-its-effect-on-the-future-of-proposition-8

Ivan Kamdar

The Federal District Court Opinion

__**Page 1-24=Nez**__

__**Page 25-54=Irean:**__

Credibility testimony: After observing and considering the testimony presented, the court concludes that plaintiffs’ lay witnesses provided credible testimony: Witnesses testified regarding their experiences with discrimination and about how their life changed when they got married: · They believe that the struggle that they had validating themselves to other people would be diminished and potentially eradicated. · (Tr 171:8-13: “[T]here is Certainly nothing about domestic partnership as an institution not even as an institution, but as a legal agreement that indicates the love and commitment that are inherent in marriage, and [domestic partnership] doesn’t have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be.”)

The court finds that each of plaintiffs’ proffered experts offered credible opinion testimony on the subjects identified:

Nancy Cott, a historian, testified as an expert in the history of marriage in the United States. Cott testified that United States District Court for the Northern District of California marriage has always been a secular institution in the United States, that regulation of marriage eased the state’s burden to govern an amorphous populace and that marriage in the United States has undergone a series of transformations since the country was founded.

George Chauncey, a historian, was qualified to offer testimony on social history, especially as it relates to gays and lesbians. Chauncey testified about the widespread private and public discrimination faced by gays and lesbians in the twentieth century and the ways in which the Proposition 8 campaign echoed that discrimination and relied on stereotypes against gays and lesbians that had developed in the twentieth century.

Lee Badgett, an economist, testified as an expert on demographic information concerning gays and lesbians, same-sex couples and children raised by gays and lesbians, the effects of the exclusion of same-sex couples from the institution of marriage and the effect of permitting same-sex couples to marry on heterosexual society and the institution of marriage.Badgett offered four opinions: (1 ) Proposition 8 has inflicted substantial economic harm on same-sex couples and their children; (2) allowing same-sex couples to marry would not have any adverse effect on the institution of marriage or on opposite-sex couples; (3) same-sex couples are very similar to opposite-sex couples in most economic and demographic respects; and (4) Proposition 8 has imposed economic losses on the State of California and on California counties and municipalities.

Edmund A Egan, the chief economist in the San Francisco Controller’s Office, testified for CCSF as an expert in urban and regional economic policy. Egan conducted an economic study of the prohibition of same-sex marriage on San Francisco’s economy and concluded that the prohibition negatively affects San Francisco’s economy in many ways. <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">Letitia Anne Peplau, a psychologist, was qualified as an expert on couple relationships within the field of psychology. Peplau offered four opinions: (1) for adults who choose to <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">enter marriage, that marriage is often associated with many important benefits; (2) research has shown remarkable similarities between same-sex and opposite-sex couples; (3) if same-sex couples are permitted to marry, they will likely experience the same benefits from marriage as opposite-sex couples; and (4) permitting same-sex marriage will not harm <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">Opposite-sex marriage.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">Ilan Meyer, a social epidemiologist, testified as an expert in public health with a focus on social psychology and psychiatric epidemiology. Meyer offered three opinions: (1) <span style="background-clip: initial; background-color: yellow; background-origin: initial; font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">gays and lesbians experience stigma, and Proposition 8 is an example of stigma; (2) social stressors affect gays and lesbians; and (3) social stressors negatively affect the mental health of gays and lesbians.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">Gregory Herek, a psychologist, testified as an expert in social psychology with a focus on sexual orientation and stigma. Herek offered opinions concerning: ( 1) the nature of <span style="background-clip: initial; background-color: yellow; background-origin: initial; font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">sexual orientation and how sexual orientation is understood in the fields of psychology and psychiatry; (2) the amenability of sexual orientation to change through intervention; and (3) <span style="background-clip: initial; background-color: yellow; background-origin: initial; font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">the nature of stigma and prejudice as they relate to sexual orientation and Proposition 8.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">Michael Lamb, a psychologist, testified as an expert on the developmental psychology of children, including the developmental psychology of children raised by gay and lesbian <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">parents. Lamb offered two opinions: ( 1) children raised by gays and lesbians are just as likely to be well-adjusted as children raised by heterosexual parents; and (2) children of <span style="background-clip: initial; background-color: yellow; background-origin: initial; font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">gay and lesbian parents would benefit if their parents were able to marry.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">Gary Segura, a political scientist, testified as an expert on the political power or powerlessness of minority groups in the United States, and of gays and lesbians in particular. Segura offered three opinions: (1) gays and lesbians do not possess a meaningful degree of political power; (2) gays and lesbians possess less power than groups granted judicial protection; and (3) the conclusions drawn by proponents’ expert Miller are <span style="background-clip: initial; background-color: yellow; background-origin: initial; font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">troubling and unpersuasive.

· <span style="font-family: 'Times New Roman','serif'; font-size: 12pt;">Federal Rule of Evidence 702 provides that a witness may <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">be qualified as an expert “by knowledge, skill, experience, training, or education.” The testimony may only be admitted if it“is based upon sufficient facts or data” and “is the product of reliable principles and methods.” Id. Expert testimony must be both relevant and reliable, with a “basis in the knowledge and experience of [the relevant] discipline.

<span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">Several factors are relevant to an expert’s reliability: <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(1) “whether [a method] can be (and has been) tested” <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(2) “whetherthe [method] has been subjected to peer review and publication”; <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(3) “the known or potential rate of error”; <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(4) “the existence and maintenance of standards controlling the [method’s] operation”. <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(5)“a degree of acceptance” of the method within “a relevant community,” <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(6) whether the expert is “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(8) whether the expert has adequately accounted for obvious alternative explanations. <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(9) whether the expert “employs in the courtroom the same <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">level of intellectual rigor that characterizes the practice of an expert in the relevant field,”. <span style="font-family: 'Times New Roman',serif; font-size: 12pt; line-height: normal; margin: 0in 0in 0pt;">(10)whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

__**Page 54-60=Matt**__ __Findings of the Fact__ Court makes the findings of the fact after considering evidence, credibility of the witnesses and legal presented by counsel. __Parties__ -Plantiffs Kristin Perry and Sandra Stier are a lesbian couple living together in Alameda County, California. -They raise 4 children and they seek to marry. -They applied for a marriage license in May of 09, but it was denied by the Alameda County Clerk Recorder, due to Proposition 8. -Paul Katami and Jeffery Zarillo are a gay couple living together in Los Angeles County, California. -They also applied for a Marriage License, and it was also denied due to Proposition 8 by the LA County Clerk. __Plantiffs Intervenor__ -San Francisco, California -Responsible for Issuing Marriage Licenses, performing civil marriage ceremonies,maintaining vital records of marriages. __Defendants__ __ddfagf__ Arnold Schwarzenegger- Gov. of California Edmund G. Brown- Attorney General of California Mark B. Horton- Director of the California Department of Public Health and State Registrar of Vital Statistics of the State of California. Linette Scott- Deputy Director of Health Information Patrick O'Conell- Alameda County Clerk and Registrar Dean C. Logan- Los Angeles County Regestrar and County Clerk.

Defendant Intervenors Dennis Hollingsworth, Gail S. Knight, Martin F. Gutierrez, Hak-Shing Tam, and Mark A. Anderson -"Official Proponents" of Proposition 8. They put a substantial amount of time, effort, and reputation into Proposition 8. They established protectmarriage.com Protect Marriage was responsible for all aspects of the campaign to qualify Proposition 8 for the ballot and enact it to law.


 * __Page 60-85=Gabby__**

=<span style="color: windowtext; font-family: Calibri; font-size: 12pt; line-height: 115%; margin-top: 0in;">Whether any evidence supports California’s refusal to recognize marriage between two people because of their sex. =  · F 19: Marriage is a civil not a religious matter. · F 21: California like every other state, has never required that individuals entering a marriage be willing or able to procreate. o //In re Marriage Cases and Lawrence v. Texas// · F 22: When California became a state in 1850, marriage was thought of as between a man and a woman. · F 31: In 2008, California Supreme Court held that certain provision of the Family Code violated the state’s constitution to the extent that the statutes reserve the designation of marriage to opposite-sex couples. o In //re Marriage Cases, 183 p3d at 452// the language “between a man and a woman” was stricken. · F 32: California has eliminated marital obligations based on gender. Regardless of sex or gender, partners share the same obligations ton one another and their dependants. As a result of Proposition 8, requires that marriage consist of one man and woman. · F 34: Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another, join economic partnership, support one another and dependants. · F 35: The state licensing marriage benefits both the state and individuals. · F 36: Benefits, rights, responsibilities are channeled by the state and federal government through marital status. Marital status affects immigration and citizenship, tax policy, property, and inheritance rules and social benefit programs. · F 37: Marriage creates economic support obligations between consenting adults and for their dependants. ** Whether any evidence shows California has an interest in differentiating between same- sex and opposite-sex unions. ** · F 44: Sexual orientation fundamental to a person’s identity, is distinguishing characteristic that defines gays & lesbians as a discrete group · F 46: Individuals don’t choose their sexual orientation. · F 48: Same-sex couples are identical to opposite-sex in characteristics that are relevant to forming a successful union. · F 49: California law permits & encourages homosexuals through adoption, foster parenting, reproductive technology. · F 51: Marrying a person of the opposite sex is an unrealistic option for homosexuals. F 52: Domestic partnerships lack the social meaning associated with marriage, and marriage is regarded as definitive expression of commitment. F 54: Availability of domestic partnership doesn’t provide same sex couples with a status equivalent to marriage because the benefits and cultural meaning associated with marriage are withheld from gays & lesbians in domestic partnerships. · F 55: Allowing same-sex marriage won’t affect number, stability, or divorce rate of opposite-sex marriages F 56: Children of same-sex couples benefit when their parents can marry.
 * F 47: California has no interest in asking homosexuals to change their sexual orientation or in reducing the number of homosexuals in California


 * __85-109=Ivan__**

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§ Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. =====

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§ Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same sex couples. =====

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§ Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. “Proposition 8 does not eliminate the substantial substantive constitutional protections afforded to same-sex couples. (Emphasis in original). =====

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§ Proposition 8 increases costs and decreases wealth for same sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs. =====

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§ Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays, lesbians are incapable of forming long-term loving relationships, and that gays and lesbians are not good parents. =====

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§ The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) the United States District Court availability of economic and social resources. =====

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§ The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. =====

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§ Children do not need to be raised by a male parent and a female parent to be well adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well adjusted. =====

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§ Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. =====

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§ Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes. =====

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§ The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child. =====

§ The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.
Judge Walker takes each claim in turn. There was a Due Process ("DP") claim and a Equal Protection ("EP") Claim.
 * __109-125=Nick, Rich, and Katherine__**

__Due Process__ Issue 1: Do Plaintiff's seek a FUNDAMENTAL right to marry OR do they seek a new sort of right?


 * Issue 1-A?: What's a fundamental right?
 * Judge Walker argues that marriage has changed throughout History; the EVIDENCE showed the following:
 * Used to contain specific gender roles (e.g. doctrine of coverture--husband takes wife under his financial wing)
 * It no longer does
 * Marriage is NOW compatible with gender equality
 * Marriage is now a "union of equals"
 * No evidence showed that states (Cali) have required married couples to procreate
 * Plaintiff's are not seeking a new right
 * California law has a variant of legal marriage called a "domestic partnership"
 * issue: does the "domestic partnership" fulfill California's due process requirement for same sex couples?
 * Each type of couple in Cali (i.e. same-sex or opposite-sex) has only one option for marriage: if a couple chooses to 'marry', gays/lesbians must have a domestic partnership and straights must have marriage.
 * Fails DP because:
 * domestic partnership has a lesser social meaning than marriage
 * domestic partnership only created to give gays/lesbians the benefits of marriage
 * evidence shows that Plaintiffs are placed at a disadvantage by this
 * Plaintiffs' DP claim entitled to Strict Scrutiny
 * i.e. state must show show Prop 8 is tailored to a compelling gvt. interest
 * Prop 8 can't even pass the hurdle of rational basis let alone strict scrutiny!
 * again, lack of evidence is why Prop 8 fails strict scrutiny
 * Prop 8 violates DP clause

__Equal Protection Claim__ Sexual Orientation or Sex Discrimination
 * Voters enact Prop 8 so court must "insist on knowing the relation between the classification adopted and the object to be attained"
 * "classification itself must be related to the purported interest."
 * they can be one in the same thing
 * Prop 8 discriminates against the fact Perry that Plaintiff is a woman (but a lesbian)
 * (Nick Flores 11/18)
 * sex discrimination leads to discrimination based on sexual orientation; you can't the latter without the former
 * Plaintiffs' EP claim id based on Sexual Orientation; Prop 8 attacks a right "that only gays/lesbians would exercise"

Standard of Review/Prop 8 Does Survive Rational Basis Review
 * Prop 8 fails all hurdles
 * Rational Basis, Intermediate Scrutiny, and Strict Scrutiny
 * Gays/lesbians are the types of people for whom strict scrutiny was intended to protect
 * Strict Scrutiny analysis not even necessary because prop 8 fails the first hurdle (i.e. rational basis)
 * Conclusion: Prop 8 not "rationally related to any state interest"
 * Judge Walker then proceeds to spell out Defendant-Intervenors' arguments for various purported state interests (DIA) and then explains why they ALL FAIL to pass muster
 * So the following are what the DI purport to be California State interests
 * DIA 1: Reserving Marriage Between a Man and a Woman, and Excluding any other relationship (This is "purported interest #1)
 * Argument based on tradition
 * tradition insufficient to form a rational basis for law
 * State of Cali gains nothing by restricting marriage to heterosexuals
 * EVIDENCE showed that State actually suffered
 * Argument FAIL
 * DIA 2: "Proceeding with Caution When Implementing Social Changes"
 * State interest in safeguarding against the negative effects of a "sweeping social change"
 * However, evidence shows that:
 * allowing gays to marry is not a sweeping social change
 * said allowance won't negatively affect the institution of marriage for heterosexual couples
 * Cali has already allowed gays to marry (it will be simple for state do allow them to marry again)
 * Overall "the institution of marriage will remain unaffected"
 * Argument FAIL
 * (per evidence) no state interest in proceeding with caution when implementing the social change of gay marriage because allowing gays to marry isn't a social change to begin with
 * DIA 3: Promoting Opposite Parenting Over Same Sex Parenting
 * Largest Argument
 * Prop 8 promotes stability
 * stable family structures
 * increases chance of procreation, which will benefit society
 * promotes bond between parents and their biological children
 * probability of kids being raised by their biological parents is increased
 * However, evidence shows that:
 * Same sex parents and opposite parents are EQUAL
 * Prop 8 doesn't increase probability of heterosexuals marrying and having kids
 * even if it did, this is not one of Cali's state interests
 * Prop 8 will won't affect who can and can't be a parent (gays can adopt even with prop 8)
 * Very interesting point: Prop 8 in fact encourages sexual activity, child rearing, child birth, etc. all to take place out of marriage
 * since gays can't marry, but can be parents, all the stuff that married couples might do (sex, raise kids, have birth) can't take place in marriage like DI's are saying it should
 * DIA 3 backfires terribly
 * no evidence that married households are more stable for kids than non married house holds
 * No state interests in any of the above bullet points
 * DIA 4: Protecting the Freedom of Those Who Oppose Marriage for Same-Sex Couples
 * Argument that under Prop 8:
 * parents can provide their children with proper morals about marriage
 * First Amendment rights of those against same-sex marriage are protected
 * These both fail "as a matter of law"
 * no rational relation between protecting these first amend rights of people for Prop 8 and Prop 8 itself
 * Morality is an insufficient basis of law
 * DIA 5: Treating Same Sex Couples Differently from Different Sex Couples
 * DIA assumes that the two types of couples are different (False premise, which the evidence rebutted)
 * Prop 8 will reduce an admisntrative burden on the state of Cali
 * No it won't (per evidence)
 * Even if it did, that is by no means a sufficient basis
 * In fact, evidence showed that:
 * under California law same sex and different sex couples are the same (for all intents and purposes); aside from getting married, the two couples can do the same stuff (raise kids, etc.)
 * DIA 5: The Catchall Interest
 * Arguement basically says: and any other interests that we haven't thought of but that someone else may think of"
 * Rejected
 * Any legit state interests are unrelated to Prop 8
 * No nexus
 * Prop 8 conflicts with 14th
 * *It Violates EP Clause of US Constitution because it treats homosexual and heterosexual couples differently w/out a rational basis for doing so

A Private Moral View that Same-Sex Couples are Inferior to Different Sex Couples is Not a Proper Basis on Which to Legislate


 * Title of Section says it all
 * This fact notwithstanding, can Cali **voters** (as opposed to Cali legislature) enforce moral principles through measures like Prop 8?
 * No.
 * They have a duty to treat the citizens of Cali equally; Cali voters can't "mandate their own moral code" (Judge Walker quoting //Casey//)
 * //Romer//, //Lawrence// and //Planned Parent Parenthood of Southern Pennsylvania// are all cited in this section
 * Trial and evidence refuted this premise

Conclusion and Remedies (last two sections)
 * No rational basis to deny gays a marriage license
 * Prop 8 violates DP and EP clauses of 14th Amendment
 * Prop 8 Permanently enjoined

(Nick Flores 11/20)