Some thoughts on Proposition 8 and gay marriage

Most of you have by now read about the August 4, 2010 decision on Perry v. Schwarzenegger, more commonly known as “The Proposition 8 case.” I am pleased to say I quietly rejoiced at Judge Vaughan Walker’s decision, and (rather foolishly) stayed up late into the night reading his 138-page findings. This made the following workday a little challenging.


Proposition 8 was a bad bit of law that should never have been passed in the first place, and which got as far as it did only because of a moral panic created in the last weeks of the 2008 election season by wealthy conservative religious groups, including the strange bedfellows of fundamentalist Christians and the Church of Jesus Christ of Latter-Day Saints, better known as the Mormons, who poured millions of dollars in from outside California to buy ad time and influence the state’s voters. It is, simply put, a mean, selfish, and vindictive attempt to take away a right, enjoyed from birth by everyone else, that a community long denied that right had recently gained after an exhausting struggle. It is also a conscious attempt to establish prejudice and discrimination in the law before which all humans are supposed to be equal.


It is also an outstanding object lesson in why some things are, in a sense, too important to be put to a vote. It sounds counterintuitive in a republic in which the popular vote is often seen as the ultimate expression of the peoples’ will and the country’s values. The popular vote is not perfect, nor is any other part of our electoral system. Some rights are, however, so important that they cannot and should not be subject to the variable whims of the electorate—for example, the Bill of Rights, the 14th Amendment, and so on. The people should no more be able to vote away their own inalienable rights (or anyone else’s, for that matter) than they should be able to vote themselves ten feet tall and purple. In fact, most of our system of government is constructed as a system of checks and balances, such as judicial review, which are intended to put the brakes on popular enthusiasms, an intent that predates even the Constitution itself (c.f John Locke and Edmund Burke).


As an analogy, consider the hypothetical situation in which white Southerners (for example) had at some time in the past sponsored an amendment to the US Constitution that defined human beings as including white people only. They could quite easily have done this, as it would have reflected widespread popular sentiment at the time. The Commonwealth of Virginia, for that matter, for many years had invasive genealogical criteria for determining the race of an individual in support of laws against interracial marriage.


Referenda such as Proposition 8 are in a sense even more troublesome than simple elections, because they circumvent many of the other balancing organs of government. In this instance, a process that was originally intended to give people more of a direct voice in government was used by to strip part of the population of their existing civil rights and impose discrimination based on simple prejudice.


“Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," as Judge Walker wrote. In condensed language, “prejudice doesn’t make good law.”


That’s exactly the issue here. The law. Not religion. Not popular prejudice. Not rumor. Not some half-mythical rose-colored view of the United States’ past as a continent-spanning Mayberry.


When you strip away all the religion, the histrionics, and the flag-waving paeans to American culture and pare the matter of gay marriage down to the issue that really matters—equal protection under the law—what becomes clear is that there is no adequate explanation for why gay men and women should NOT be allowed to marry, any more than there was any adequate explanation for bans on interracial marriage. “Civil unions,” for their part, fail the equality test.


Marriage is, as far as federal, state, and local government goes, strictly a matter of civil law disposing a contract between two people. That’s strictly it. Legal rights. Leviticus is nowhere to be found in a court of law.


The Catholic Church, the Mormons, the Southern Baptist Convention, the conservative Islamic community, and the Hasidic Jews don’t have to marry homosexuals in their rites if they don’t want to, because they’re not the government and they don’t (and shouldn’t) deal in civil rights. Personally, I am of the opinion that any church that involves itself in politics should lose its tax-exempt status. Religion isn’t the government’s business (at least, it isn’t until someone gets violent about it, at which point the ghost of Matthew Shepherd will rise again). That’s the flip side of the separation of church and state—religion is to be protected from the government as much as the government needs to be separate from religion.


More to the point, if you’re interesting in marrying another man, you’re probably not likely to belong to one of those religious groups that so vituperatively disapproves of the practice in the first place, rendering the point of the objection moot.


Anyways, the dramatis personae in Perry v Schwarzenegger:


Plaintiffs (people bringing the suit): Kristin Perry, Sandra Steir, Paul Katami and Jeffrey Zarrillo, two couples who were denied marriage licenses because they were intent on same-sex marriages.


Proponents aka the Defendants (supporters of Proposition 8) included the official proponents of Proposition 8, organized as a group named Protect Marriage. Oddly, although the suit itself named Governor Schwarzenegger and a number of other state government officials (in their capacities as heads of state agencies) as defendants, California’s Attorney General, Jerry Brown, declined to defend Proposition 8 because in his office’s view the amendment violated the state constitution. None of the other state officials named in the suit lifted a finger to defend the amendment, which is probably a good metric for how much official support Proposition 8 ever enjoyed in government. The result was that Protect Marriage, an intervening defendant (someone not named in the suit but who asserts a right to participate in the trial process because it involves them) wound up as the sole defenders of the Proposition 8 amendment—which in my opinion is only as it should be. Proposition 8 was their baby—they should defend it.


It was, on the face of it, the proponents’ fight to lose, which they did in a most spectacular fashion. In fact, one of the most interesting aspects of the case is how it highlighted the intellectual bankruptcy of the Proposition 8 supporters, who offered no hard evidence, no real experts, no data, and no first-person testimonials from people affected by the issues at hand. As the proponents learned to their humiliation, prejudice will only get you so far. A court of law is not like an election. Every statement and fact is ruthlessly scrutinized and tested to the breaking point, so while it is easy to splash anti-gay falsehoods all over the commercial breaks in the 6 o’clock news, it is a different matter to attempt the same wholesale slander and demagoguery in a courtroom.


The plaintiff’s lawyers amassed a mountain of evidence to support their case, with nine expert witnesses and seven lay witnesses, addressing everything from economics to history, psychology, and the prejudices and obstacles encountered in everyday life as a gay person.


The proponents of Proposition 8 called only two witnesses during the entire process, and both of those received short shrift from the judge because they had no evidence for their testimony. Judge Walker singled out David Blankenhorn of the Institute of American Values for some particularly scathing criticism, finding that Blankenhorn “lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions,” and that Blankenhorn’s testimony “should be given essentially no weight.”


One would assume that in a case of this magnitude, the proponents would have called out their biggest guns and leading intellectual lights, men of the caliber of William F. Buckley or William Jennings Bryan, who understand law and society and who can have an informed discussion on the great issues of the day. Such brains were nowhere to be found on the proponents' side-- in the case of a cause as odious as Proposition 8, maybe they don't exist. Instead, with nobody in their camp to call upon but (apparently) a clutch of bigots and dupes, the proponents brought the proverbial knife to a gunfight.


Several of the expert witnesses the proponents deposed before the trial began subsequently refused to testify in support of the proponents’ case. The plaintiffs promptly entered these witnesses’ depositions as evidence on the plaintiffs’ behalf, since their testimony appeared to support the plaintiffs’ case better than the proponents’.


The high (or low, depending on whose side you’re on) point of the trial was when the plaintiffs called Mr. Hak-Shing William Tam, one of the proponents and an organizer of Protect Marriage, as an adverse witness. Mr. Tam, who is secretary of the America Return to God Prayer Movement, a fundamentalist Christian organization, did a spectacular job of showing himself to be an uneducated, theocratic bigot who could point to nothing more specific than “the Internet” as a source for his statements linking homosexuality to child molestation, polygamy, incest, and Satanism. Satanism is obviously a major theme of concern in civil rights. Consider it this way: Mr. Tam is one of the heavy lifters behind Proposition 8, but he is such a blatantly ungrounded religious fanatic that not even the proponents' lawyers wanted him to testify on behalf of Proposition 8.


In other words, the proponents got pwned, and pwned so thoroughly and dramatically that reading Judge Walker’s decision actually made me laugh out loud.


In the end, the proponents failed to prove that gay marriage caused any significant harm, while the plaintiffs proved that forbidding gay marriage was first, discrimination, and second, inflicted social, economic, and other harms on the people involved, and that it therefore violated the California State Constitution.


If you ask me, the good guys won this one.