Episode 9: A Motion to Quash

“Hear ye! Hear ye! All rise,” the bailiff intoned as all stood within the courtroom. “The Fifth District Court in and for our great Commonwealth, the Honorable Jordan Connor presiding. God save this state and this honorable court. The case of the State versus Michael Philip Andrews. All those with business before this court draw near; you will be heard.”

The judge walked into the courtroom and took his place on the podium.

“The jury is present,” the judge declared. “The defendant is present. Mr. District Attorney, are you ready to proceed?”

“We are, your honor,” the district attorney confirmed.

“Before the jury is sworn,” Senator Travis rose to speak, “the defense wants to call attention to our motion to dismiss and quash the indictment which has been filed.”

“I have read and reviewed your motion and the state’s brief. I think, Professor Travis,” the judge decided, “that I will have the district attorney and Profesora Castillo read the indictment first, and then when I call upon you, you may present your motion.”

The judge pointed his gavel toward the district attorney. “Mr. District Attorney?”

He rose. “Profesora Castillo will present the indictment for the state.”

“Last week, the grand jurors for the state aforesaid,” Senator Castillo rose and read the indictment, “being duly summoned, elected, empaneled, sworn, and charged to inquire for the body of the county aforesaid, upon their oaths present:

“That Michael Philip Andrews, heretofore on the 24th day of May, in the county aforesaid, then and there, unlawfully did willfully teach in the public schools of this county, which said public schools are supported in part and in whole by the public school fund of the state, a certain theory or theories that deny the gender definition adopted by one or more persons and did teach instead that gender identity has a biological meaning independent of any person's chosen preference, the said Michael Philip Andrews being at the time, or prior thereto, a teacher in the public schools of this county, aforesaid, against the peace and dignity of the state.”

Senator Castillo lowered the paper and concluded. “Signed and certified by the district attorney in and of the aforesaid county.”

“What is your plea, gentlemen?” the judge asked the defense.

Senator Travis rose. “May it please your honor, we make a motion to quash the indictment, and we would like simply to present the motion, possibly read it, and then with a very brief explanation, if any, ask your honor to reserve judgment on that until later in the trial.”

Senator Castillo consulted briefly with the district attorney in hushed tones before she stood to address the judge. “That would not be the usual and customary practice at all. The state insists on the disposition of the motion before we proceed.”

“Under our practice,” the judge declared, “if the defense offers a motion and if the state insists, I would have to rule on the defense’s motion before we go further.”

“We want to get it in the record,” Senator Travis confirmed, “with the reading and a brief statement.”

“I will hear your motion, Professor,” the judge declared. “Do you want the jury dismissed while we consider this matter?”

“The defense does not object to the jury hearing our motion,” Senator Travis replied.

The judge turned to face the prosecution table. “Does the state wish the jury dismissed?”

“No, your honor,” the district attorney confirmed.

“Very well,” Judge Connor declared, “you may proceed, professor.”

“The defendant moves the court to quash the indictment in this case,” Senator Travis read excerpts from his motion, “for the following reasons:

“That the act which is the basis of the indictment is unconstitutional and void in that the caption and substance violates Section 17, Article II of the state Constitution, origin and frame of bills.

“That the act which is the basis of the indictment is unconstitutional and void in that it violates Section 13, Article II of the state Constitution, the legislature’s duty to cherish science.

“That the act which is the basis of the indictment is unconstitutional and void in that it violates Section 19, Article I of the state Constitution, freedom of speech and of the press.

“That the act upon which the indictment is based is void for indefiniteness and lack of certainty.

“That the indictment is so vague as not to inform the defendant of the nature and cause of the accusation against him.

“That the act and the indictment violates the defendant’s due process and equal protection rights under Section 1 of the Fourteenth Amendment of the Constitution of the United States.

“Now, may it please your honor,” Travis concluded, “we would prefer to have you reserve judgment, if the state will permit, and reserve arguments until we present our entire case, the evidence of which will be enlightening both to your honor and the jury. Our intention, unless the state insists, is to read the motion and allow your honor to pass upon it later. We think your honor will be in a much better position to decide these issues after our whole case, rather than hearing an argument this morning, no matter how elaborate.”

The judge turned to the prosecution. “What course does the state want to pursue?”

“We want the matter disposed of at this time, your honor,” Senator Castillo confirmed.

Senator Travis glared at Senator Castillo before returning his attention to the judge. “As I understand your practice, your honor,” he clarified. “I have the right to make an explanatory statement and then the state makes their argument, then I make the final argument?”

“Yes,” the judge confirmed, “you have the right to open and close, take the affirmative of the argument and offer your position. The state may rebut, and then you close the argument. Proceed.”

“Thank you, your honor,” Travis flipped his notepad to the appropriate page. “Your honor has the power, not only the power but the duty, to pass on constitutional matters. A great many people, even a great many lawyers, seem to think that the appellate courts alone have that power, to pass on the unconstitutionality of statutes. I am sure it is not necessary for us to pause to explain to your honor, that it is not only your power but your sworn duty to support and uphold the constitution of the United States and of this state.”

“You need not argue that point,” Judge Connor confirmed.

“Very well,” Travis continued. “So, while I do not expect to read all the motion, I do wish to summarize each of the six specific reasons why we ask the court to quash the indictment. First, we call attention to that well-known provision of your state’s constitution, in regard to the caption and the substance of the bill. The title of the bill must accurately describe the content.

“Probably four-fifths of the laws which your state supreme court has ultimately held unconstitutional were because they failed to comply with this particular provision. It is not a technicality, but rather an important protection, to hold the legislature accountable.

“Now, coming to the application of this particular provision. We will just mention our contention in this respect and not elaborate. The statute commences, ‘The Gender Awareness in Academia Act: An act inhibiting the teaching of the BIOLOGICAL THEORY of sex in our universities, and all other schools of the state which are supported in whole or in part by public school funds.’ There is the caption speaking of the BIOLOGICAL THEORY of sex. When we get to the body of the act:

“Be it enacted by  the general assembly of this state that it shall be unlawful for any teacher in any of the Universities, and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach ANY THEORY that denies the gender definition adopted by any person, and to teach instead that gender identity has a biological meaning independent of any person's chosen preference.”

“Any theory,” Travis reiterated. “ANY theory. Not the specific theory of the biological determination of sex described in the caption, but rather any theory. The body of the act, which MUST BE in EVERY WAY responsive to the caption simply isn’t in this statute, in defiance of the clear requirement of Section 17, Article II of the state Constitution, origin and frame of bills.”

Travis flipped a page on his legal brief. “Now we move to our second objection in that it violates Section 13, Article II of the state constitution. I will not read the entire section which. is rather lengthy, but only the particular provision we have in mind, when we say this particular provision conflicts with the statute:

“Knowledge, learning and virtue, being essential to the preservation of republican institutions, and the diffusion of the opportunities and advantages of education throughout the different portions of the state, being highly conductive to the promotion of this end, it shall be the duty of the general assembly in all future periods of this government, to cherish literature and science.

“In other words, in this very part of the constitution that grants the legislature their authority, we find the mandatory duty to cherish science.”

Travis lowered his pad to his side and spoke directly to the judge. “Now, may it please your honor, we will demonstrate through expert testimony and evidence that in no possible way can biological science be taught or studied without bringing in the doctrine of biological sex, which this particular act attempts to make a crime. It would be impossible to strip from biological science the theory of sex determination, and therefore, we think the GAIA Act defies the very provision of the constitution upon which the school system is based and thus conflicts with the very purpose for which this power was given.”

Travis flipped to the next page of his legal pad. “Our third objection is that the GAIA Act violates Section 19, Article I of the state constitution in regard to freedom of thought and opinion:

“The free communication of thoughts and opinions, is one of the invaluable rights of man and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”

Travis slammed his pad on the table. “THIS is one of the fundamental human rights. Every citizen may freely speak and write and express themselves on any subject. We argue there is the freedom of expression of opinion regardless of the site, whether the site of it is in a schoolhouse, or store, or street, or building, or any place-the freedom of expression of a man's ideas and a man's thoughts, limited only by his responsibility under libel law.”

Travis retrieved his pad and flipped to the next page.

“Our fourth and fifth objections pertain to the vagueness of both the statute and indictment. Our contention, may it please your honor, is that this supposed crime is so indefinite that it is absolutely impossible for the defense to know exactly the nature of the charge. If there is one thing that is fundamental to criminal law, it is that the crime must be defined with sufficient particularity, not only in the indictment, but in the statute, so that the court, the individual, everyone, may know whether this particular individual has violated that particular command of the state or not.

“Now, we think that the act in many particulars, especially in attempting to make a crime of teaching of certain theories that deny the gender definition adopted by any person, is so indefinite that many of us who read the act will have different interpretations of what is a ‘gender definition,’ how it is ‘chosen,’ and whether there is in fact any conflict between biological theories of sexual identity and a chosen gender identity at all!

“For instance, it is not clear what is meant by ‘teach.’ Suppose I expound upon the geocentric theory of the solar system. Or fluid theories of electricity. Or the notion that heat is due to the movement of caloric fluid. These theories may be generally recognized as incorrect today, but by examining these flawed and discarded theories we may help our students better appreciate their replacements. In doing so, have I taught these false doctrines in the sense implied by the statute?

“Our final basis for quashing the indictment, if your honor please, is the principal one: the Fourteenth Amendment to the United States constitution which encompasses all these objections to the indictment:

“All persons born or naturalized in the United. States and subject to the jurisdiction thereof, as citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

“Due process requires a clear and understandable statute and indictment. The statute violates not only the state constitution, but also the privileges and immunities Dr. Andrews enjoys under the U.S. Constitution regarding his free exercise of speech.

“The GAIA Act attempts to pronounce a judgment and conclusion in the realm of science and opinion. We contend, may it please your honor, that that was not the purpose for which legislatures were created. The framers of our constitution regarded freedom of speech of debate of opinion of robust exchanges of ideas so important that no power, legislative or court, would attempt to lay down and assign a rule to bind conscience and the minds of the people.”

Senator Castillo rose, raising a hand to indicate to the judge that she wanted an opportunity to speak.

“Now, may it please your honor, this is my concluding word,” Travis preempted her. “We have been met constantly by the assertion if you don't like this law, have it repealed. The bitter tragedy and humor of such a remark to us is we cannot have this law repealed. We grant you that the legislature spoke for the majority of the people of this state, but we represent the minority of this state, the minority that is protected by this great provision of our constitution. In my own state, we are the majority and they are the minority, and this same impartial provision protects their exercise of opinion as well. Anyone that hollers out to us the assertion that our only recourse is to have this law repealed is either ignorant or has only contempt for this great provision of the constitution that was made to protect one sole individual or a dozen or a thousand.”

Senator Travis sat down to a scattering of applause.