More A Way Of Life… Look, this is just between you and me

Marriage Matters

Following up from my last post I thought I'd reflect a bit more on the Prop 8 case and for the benefit of the Brits and anyone else who didn't follow the detail I present a (long) summary of the key points and an unexpected shift in my own perspective arising from it:

The Prop 8 case was fascinating, mostly for the startling lack of effort that seems to have gone into the case of those defending the ballot initiative, and also for the nature of the legal team seeking that Prop 8 should be declared unconstitutional.

As I noted last time the legal team was led by Theodore Olson and David Boies, both experienced litigators with past form arguing all the way up to the Supreme Court, most famously when they were on opposite sides of the Bush/Gore fight following the 2000 election.  Ted Olson went on to be part of GWB's legal team and is a card-carrying Republican, as well as the most experienced of currently-active Supreme Court litigators.  The fact that these two legal giants came together and saw this as a case capable of winning is, to me, an incredible testament to the strength of the case for same-sex marriage(SSM)  and also to the protections that should be inherent in the US Constitution (which is the foundation of trying to have the initiative declared unconstitutional, obviously).  More, the fact that Olson in particular was able to see past the the dogma of his political 'soulmates' and take a stand for what he perceived to be right makes him worthy of significant respect.

Almost more astonishing than this alliance though, is the way the case itself unfolded.  (Note to keep things clear - the case was brought on behalf of two California couples who argued that the result of the Proposition was to deny them their right to marry - therefore the prosecution and plaintiffs in this case are people against Prop 8 and the defendant was the State of California.  The State, by the way, declined to defend the Proposition in court - effectively saying that it agrees the proposition is unconstitutional - leaving it to a group of anti-SSM activists to assemble a defence).

When it came to the trial, Olson and Boies presented what was to every neutral viewpoint I've read, a robust, rational, compelling case that systematically dismantled every argument against SSM.  They made the case that not only was the intention and effect of the proposition to deny rights to an identifiable minority, but that the institution of marriage is in no way harmed by SSM, while those who cannot create legally protected unions are indeed harmed by that fact.  They called the plaintiff couples, and other affected parties, and a list of expert witnesses to show how marriage has evolved over time, how the LGBT community is discriminated against, and how the campaign for Prop 8 had been conducted through lies, smears and false innuendoes.  By every account it was a textbook case.

The defence case, conversely, was simply bizarre.  The initially six-strong witness list was whittled down to two, allegedly because the other four feared the wrath of the violent homofascists if they testified (yes, I know...).  With hindsight though it seemed they also failed to take part because their pre-trial depositions actually strengthened the case against Prop 8.

Among other points, the depositions of some of these witnesses confirmed that marriage equality would strengthen family stability, and that lesbians and gay men have a long history of being discriminated against, including by propositions such as this one...

The two defence witnesses they did call to the stand were catastrophic for their case.  One 'expert' supposed to demonstrate that LGBTs are not politically vulnerable (ie not prone to being legislatively discriminated against) had only had one peer-reviewed article published, and that was about Prop 8 itself.

The second was so bad for them you'd think he was a prosecution plant.  He turned out to have NO relevant research qualifications or published works, and didn't even know what past Supreme Court judgements had said about the right to marriage.  Worse (for them), he made plenty of statements about how marriage equality would be a good thing; that it would be, among other things, "a victory for, and another key expansion of, the American idea" - and this is the key anti-SSM witness!

Olson and Boies even called one of the defence witnesses who had declined to appear, one of the Official Proponents of Prop 8, and just took him apart.

Last week, when Judge Vaughan Walker ruled on the case and declared Proposition 8 unconstitutional, he would clearly have been prepared for the cries of "activist judge!" that inevitably sprang up.  He was probably also prepared for the shrieks that as an alleged gay man he should have recused himself from the case (right, because all those straight white judges keep recusing themselves from cases affecting straight white men...), and he was probably prepared for the attempt to pass a Congressional motion condemning his ruling.  But his ruling itself - all 130+ pages of it, should be all the defence he needs of his actions - it's argued dispassionately, based heavily on facts as presented by both sides in the case, and establishes both key legal principles that the prosecution sought, based on the actual case presented to him.

Last Sunday in the wake of the ruling, and pending possible appeals, Olson and Boies both took to the morning talk TV shows.  Olson ripped up the challenges to him on Fox News, which in other times would be his natural constituency, and David Boies took on Tony Perkins of  the grimly homophobic Family Research Council on CBS and, in the vernacular, tore him a new one.  This comment from Boies in particular has been well circulated but is worth repeating:

And what we saw at trial is that it's very easy for the people who want to deprive gay and lesbian citizens the right to vote, to make all sorts of statements and campaign literature or in debates where they can't be crossexamined. But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that's what happened here. There simply wasn't any evidence. There weren't any of those studies. There weren't any empirical studies. That's just made up. That's junk science. And it's easy to say that on television. But witness stand is a lonely place to lie. And when you come into court, you can't do that. And that's what we proved. We put fear and prejudice on trial, and fear and prejudice lost.

This gets to the heart of it.  When robbed of the ability to scaremonger; when forced to justify their claims with evidence; when compelled to address the real world, not the world they make up based on one reading of one 'holy' book, every argument that the anti-LGBT forces can rally is revealed as bigotry or sham, and it withers and dies.

 

Bringing this to the personal, something has struck me as this case has unfolded, which is that in some ways my own viewpoint has been affected by the arguments here.  The Mrs and I regard ourselves as married.  We occasionally use the word 'husband' of each other, and we talk about our wedding.  But strictly speaking, we're civil partners.  This hasn't ever tended to bother us, since we legally we have every right and responsibility of marriage, just not the name.  And legal recognition is what concerns us.

But we don't live in a country where the concept of 'separate but equal' has such powerful connotations.  We don't live in a culture which has so painfully and publicly endured a period where 'separate but equal' was a code phrase for 'institutionalised discrimination'.  Simon Hughes, one of the sad shower currently running our country, rec
ently made a commitment to 'proper' marriage equality in the UK.  Not long ago I wouldn't have been bothered much one way or the other.  But after really, seriously, examining my feelings about marriage equality, not similarity, and especially after looking at what separate but equal actually means, I find I am bothered.  Very much so.

There will inevitably more on this subject over time.