There's plenty to think about in Frank Rich's NYT
Sunday column. I'm not sure if he invented the phrase, "Rat
Pack From Hell," but it certainly got my Sunday off to a good
start.
His discussion of Perry v. Schwarzenegger brought me back to a
theme I've been pretty interested in: the right's dogged fight to
keep any aspect of the trial from being televised or broadcast.
That is consistent with their efforts, in general, to avoid any
public defense of their opposition to same-sex marriage except in
commercials and other species of sound bites, including religious
ones. They're happy to agree among themselves, but they do not
care to have pubic debate with people who disagree with them.
Rich takes note of the fact that the defense of Prop. 8 could
only muster two actual experts to take the stand for their entire
case. One of them was David Blankenhorn, who seems barely to be an
expert on anything, at least in the academic or scientific sense.
Like many of us, he certainly has his opinions. But it's a close
call whether they're any more reliable than the next guy's. The
other expert they called,
Prof. Kenneth Miller, did appear to possess some expertise on
politics and government, but his testimony that lesbians and gay
men are not really discriminated against by initiatives like Prop.
8, isn't exactly open-and-shut.
Judge Vaughan Walker is doing everything he can to supplement
the defense's case, since they don't seem to be very interested in
doing that, themselves. This is how a responsible judge approaches
a trial, considering the interests even of parties who don't seem
capable of or willing to make their own best arguments.
Judge Walker released 39 questions he
would like answered (by both sides), and Number 1 goes right to the
heart of the defense's passivity:
Assume the evidence shows Proposition 8 is not in fact
rationally related to a legitimate state interest. Assume further
the evidence shows voters genuinely but without evidence believed
Proposition 8 was rationally related to a legitimate interest. Do
the voters' honest beliefs in the absence of supporting evidence
have any bearing on the constitutionality of Proposition 8?
There's a constitutional question for you: What should a court
do if voters genuinely, but without any basis, believe there is a
reason for a law? Do honest but unsupportable and possibly
discriminatory beliefs have a role in a court's decision about
whether a law is constitutional?
That's important for any number of reasons, but here's how it
plays out for me. It's possible very few people would actually
have watched the Prop. 8 trial if it had been televised. It's also
possible a whole lot would have watched it - maybe not O.J. Simpson
numbers, but a lot.
The point of a trial, as opposed to a political campaign, is to
examine, with some level of thoughtfulness, the facts supporting
each side's best case. Prop. 8's defenders obviously don't think
they have much in the way of factual support. But they also don't
think they need facts. They rely on intuition and time-tested
feelings and beliefs, rather than facts. Politics permits
that.
In contrast, a public trial (in the sense that the public could
actually watch it) would have been quite the opposite of the trench
warfare of the Prop. 8 political campaign. No one really gets
cross-examined in a political campaign; everyone gets
cross-examined in a trial. Every piece of evidence is subject to
challenge and counter-evidence, and it's hard to slide by on sloppy
reasoning.
The lack of a full public trial will leave us in no better
position than we were during the political battle. The questions
and the answers in court are much more focused than the blasts and
sputters of the Prop. 8 30-second ads. The very hard work of Ted
Olson and David Boies - and the less hard work of their opponents
-- will utterly disappear in the rush to judgment when Judge Walker
releases his opinion.
The O.J. Simpson criminal trial isn't exactly a model for trials
being made public, but whether it led to justice or not, it
certainly allowed people to form an opinion based on actual
evidence presented in a court. Disagreeing about the evidence is a
very different thing from disagreeing about beliefs.
When Perry v. Schwarzenegger is decided, very, very few people
will have had access to the strong evidentiary case made by the
challengers, and the extremely weak, and nearly nonexistent case
made to defend Prop. 8. Judge Walker will be accused of judicial
activism if he rules that Prop. 8 is unconstitutional, irrespective
of what the facts show, what his reasoning is, or anything else.
He could issue a one page judgment or a two-hundred page treatise,
and it will make little difference. The headlines will be written
only minutes after the bottom line is available.
That is how courts are drawn into politics despite the best
intentions of the framers. The public would have been better
served if it had been privy to the trial, itself; we could all have
seen, directly, that a court has an obligation to take more time
than any voter ever will in making a decision about matters of real
consequence. Maybe people would still disagree with Judge Walker's
opinion, but if so, they'd be able to explain why. That, in my
opinion, is the lifeblood of a constitutional democracy.