Whether the Prop. 8 trial is televised live, or available on YouTube or even if all we get are the transcripts of testimony, it will be valuable because the arguments against same-sex marriage can be put to the test. Few people opposed to same-sex marriage are willing to debate it in public any more, and this will allow us to see their state of the art thinking.
Yesterday's debate in New Jersey's senate illustrates the problem. (Here is a sampling of the speeches) While 20 senators voted against marriage equality, only four tried to defend that position. That's a 400% increase over what we heard in New York's debate, so there are more words to respond to, but not more arguments. You can listen to all four of those speeches, and learn no more about why it is proper for government in the modern United States to treat same-sex couples and opposite sex couples differently under the law than this: marriage has traditionally been between one man and one woman.
That isn't an argument, though, it is an assertion. A fairly true one, to be sure - though Sen. Michael Doherty inadvertently juxtaposed an argument against polygamy with a plea to look through thousands of years of history and ask people to define marriage, confident they would say "one man and one woman," and not, as so many in the upper classes in particular might have said, "one man and as many women as he wanted or could get." That was a definition of marriage, too.
But that doesn't answer the question at issue - not "why has marriage historically (and generally) been between one man and one woman," but "why, today, should it exclude people who are homosexual and want the same protections, rights and obligations under the law for their own relationships that heterosexuals have?"
All four senators spoke around this point, saying that the voters should decide. Sen. Doherty was insistent that this wasn't about prejudice, it was about "process." But, again, that's not an argument. Of course voters have voted down equality for same-sex couples, in many cases actually changing their state constitutions to clarify that same-sex couples are not entitled to equality. But the rejection of a constitutional principle for a very small minority, a principle that is generally applicable to everyone in the majority, is not only not the solution to the problem being presented, it is, itself, the problem which the equal protection clause was supposed to address. Why would an equal protection clause be necessary if it was only there to protect the majority?
The Prop. 8 case will be addressing that question head-on, and the witnesses opposing same-sex marriage will have to present the kind of arguments that the New Jersey senators were not obligated to offer. The question is a focused one: What justification does the government have for treating same-sex couples and opposite sex couples differently in light of the fact that the federal constitution does include a provision that explicitly says all citizens should be treated equally under the law?
The fact that we have historically discriminated between those groups is not an argument. The fact that many voters have a predisposition to favor their own relationships at the expense of the minority's is not an argument.
Finally, and most importantly, the fact that many religions believe that homosexuality is a sin is also not an argument - or at least not one the court will be able to properly assess. There are many religions and many theologians who think homosexuality is not a sin. No secular court could competently resolve that theological dispute. Nor should it. Ours are not religious courts, and the damage they would do if given the authority to decide what is sin and what is not, what God intends for us and what he (or she) does not is immeasurable.
What, then, is left? We will hear many people trying to discredit the court, which is to say discredit rational argument, itself and the entire idea of our constitutional system. There is no shortage of this kind of tactical and nihilistic maneuver on the right these days. But as long as we have a constitution that purports to guarantee equal protection for all citizens (and despite what some states have done, the federal constitution does still guarantee minorities equal protection of the laws), there must be someone who determines what that means in particular cases. Because that is a constitutional duty, and because it is often controversial, judges both at the trial level and at the appellate level, are required to show their work: issue their opinions publicly, lay out the evidence they considered, and explain their reasoning.
In the context of the equal protection clause in particular, this will be, by definition, anti-majoritarian. Courts must, as part of their job description, sometimes be asked to decide whether the majority is giving itself legal advantages that it is denying to a minority. Sometimes that can be justified, sometimes not. It all depends on the evidence and the reasons offered. If the court's reasoning is faulty, we'll have it before us to criticize, and possibly correct at a higher court, or over time as we refine our thinking. And as a public document, anyone is free to offer their insights about how the court reached its decision.
That is what we will all be able to do with this public trial - follow the testimony and evidence and argument for ourselves, and when the judge makes his decision, agree or disagree. Rhetoric is not enough, nor are television and radio ads, nor insinuations. The political tools that have served the anti-marriage side so well now need to be supplemented with real, assessable reasons.
11 Comments for “Why the Prop. 8 Trial is So Important”
posted by Jorge on
Not necessarily. Constitutional issues in the courts tend to be decided on rather arcane principles. Then again, that seems to apply more to the highest courts. In any case several state courts have heard the issue already, so this isn’t new. Just a new battlefield.
The thing is, all those things you said are not arguments or reasons to deny narriage equality, you’re wrong on that. We may have serious problems with their sensibility and fairness, but the voters and their legislators have stood behind those same arguments. In this case, there is a large burden of proof on the plaintiffs’ side to prove that Proposition 8 is a violation of the US Constitution. The defendants of course need to argue that it is not. And in order to do that, they need to draw out the assumptions behind traditional and religious opposition to legalizing same sex marriage. This has been done several times with mixed results.
posted by TS on
“Not necessarily. Constitutional issues in the courts tend to be decided on rather arcane principles”
I said that on my comment to the last article. I also said why our case is a losing one. The Cali state constitutional referendum process is a straightforward one which produced a bad outcome back in 2008, as it has in the past and surely will again on various issues. The court doesn’t get to consider anything about gay marriage, only the arcane constitutionalisms.
posted by DragonScorpion on
I agree with much of the article. There isn’t really any legitimate moral or legal argument against same-sex marriage. A theocratic one, perhaps, but theocracy is not the law of the land.
But frankly, it doesn’t even matter, really, whether these people have a legitimate argument or not. Most people currently are not comfortable with same-sex marriage. And currently, the law in most states does not allow or strictly prohibits same-sex marriage. We can’t count on courts to overturn all of this as they did with anti-miscegenation laws. And so far the population is rejecting efforts to legalize same-sex marriage…
Right now the status quo is no same-sex marriage. And when it comes to the difference between maintaining the status quo or enacting change, there doesn’t seem to be much impetus for people to alter the status quo at all.
Clearly we need to win hearts and minds. But how do we do this? I think it is paramount that we get to the heart of what our strategy for winning the argument in favor of recognition of equality for homosexuals and same-sex couples is going to be. I think we need to do a better job at convincing the mainstream folks who are riding the fence.
Belligerent militancy is not the answer. Legalize is fine for the courtroom but it doesn’t play in people’s living rooms. And we cannot simply wait for inevitability. What, then, is our argument that common folks can accept and relate to?
posted by Lymis on
One of the ways to win hearts and minds is to make sure we are out of the closet wherever and whenever we can be.
In this particular issue, it is even more important than usual for those of us who hesitant straight folks would think of as normal or mainstream – especially those of us with families and mortgages and kids and grandkids, and the kinds of things that they are dealing with.
Be out at the grocery store, at the PTA, etc. One of the biggest reasons that the younger demographic groups are fine with gay people is that they know gay people and think of us as peers.
We need older people to think of gay people as couples, and as “those nice girls next door” or “those helpful boys across the way” rather than the vicious monsters they are being told we are.
posted by james davis on
everything you say in this article is true. there is no real argument against gay marriage but it will fail anyhow. why… fear and hatred. who else is left to occupy the bottom rung on the ladder if us gays are given equal protection.
posted by Regan DuCasse on
Hi Dragon Scorpion, although you have an excellent point, I don’t think there is much left that hasn’t been done.
My father fought in a segregated army, as did many black people, believing that their effort and personal sacrifice towards fighting in WW2 would engender respect enough in America that Jim Crow would be abolished.
That didn’t happen for another twenty years and in the meantime there were many casualties of the Civil Rights movement.
We have the examples of Lt. Daniel Choi and Col. Fehrenbach, willing to serve in our armed forces to protect rights and freedoms for others they don’t have for themselves at home.
To say nothing of all the gay boys who reached the rank of Eagle Scout in the BSA and the millions of gay adults out there who adopted and fostered institutionalized children unwanted anywhere else.
There has already been quite heroic and unsung effort made, and not the mainstream media, nor anyone else cares to acknowledge this.
I’m sorry, maybe I’m tired right now.
I’m not saying you’re wrong, but whatever good a person does, seems to offend or goes neglected.
To paraphrase Pat Califa ‘prejudice won’t survive close contact with what is supposed to be a demon class of people. Which is why the emphasis so much on separation.’
Even upon finding out someone is gay, however exemplary, too many straight people are willing to punish gay people for it.
Correct me if I’m wrong, but outstanding soldiers like Choi and Ferehnbach are no longer serving their country ONLY for being gay and having the courage to be honest about it.
posted by TS on
not anymore. not that it mattered. our judicial activist friends at the supreme ct blocked it.
posted by Bobby on
“Correct me if I’m wrong, but outstanding soldiers like Choi and Ferehnbach are no longer serving their country ONLY for being gay and having the courage to be honest about it.”
—They made themselves gay martyrs, they came out and got punished for it. During my unemployment I’ve struggled with the question of joining or not joining the army. I’ve seen documentaries about basic training, I’ve done my reading, but I don’t think I could stand being in the closet when I’m 34 and have been out since I was 18.
Does anyone know if talking during your sleep violates DADT? What if you say something gay while you’re dreaming? Can they kick you out for that?
posted by BobN on
Does anyone know if talking during your sleep violates DADT? What if you say something gay while you’re dreaming? Can they kick you out for that?
Your question implies some sort of fairness or ethical implementation of DADT. It doesn’t work that way.
posted by DragonScorpion on
~”I’m not saying you’re wrong, but whatever good a person does, seems to offend or goes neglected.” ~ Regan DuCasse
Sorry, I must have not seen this before. I don’t disagree with what you stated here. Not at all. But I think we must continue to do what’s good, what’s right; take the moral highground. It may not convince the hardcore opponents, nothing will, but it certainly makes them look more sinister in the process to those who are perhaps a bit misguided but open to change. I guess that is my point overall.
posted by brad on
Well I hate to be the pessimistic one but I think we are gonna get totally screwed.I think we will definitely win the California trial but the Supreme Court is going to rule against us. We should have waited till we had 5 liberal leaning judges on the panel. It doesn’t matter how much our side argues those 5 conservative bastards are not going to hear reason. Sorry I just do not have a lot of faith in our legal system.Hopefully I am dead wrong on this though.