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Dale makes a good point that many minorities view the courts in heroic and almost mythic terms. But Newton's law has its legal counterpart: For every myth there is an equal and opposite counter-myth. The anti-gay right, in particular, has done a splendid job of not just de-mythifying the courts, but of delegitimizing them for "activism" on gay equality; it's seldom you will hear them utter the word "court" in the gay rights context without its now joined-at-the-hip modifier, "activist." And, in Newtonian fashion, the left responds in kind when the opportunity presents itself, as it did in the Citizens United case about corporate speech.

Both sides are now positioned for their entirely predictable frenzy on this case. So I'd like to make my usual plea that we not convict judges of politics (usually someone else's) without some kind of due process. In this case, that could be accomplished by actually reading the opinion any judge or group of judges offers.

Dale may be a bit guilty of prejudging in responding to one of the comments to his post, where he says that a very narrow ruling posited by the commenter could look "nakedly unprincipled." That is possible. It's also possible it could look entirely reasonable. Most likely, its bottom line (supporting or opposing marriage equality) will guide people to their conclusion about the judge's principles. While I'd trust Dale to make that decision at the appropriate time, I have a feeling such niceties won't bother the partisans.

Dale's skepticism, though, comes from having read previous opinions on this subject, and I think it's fair for me to disclose that I have some predispositions of my own -- in the opposite direction. To the extent the courts have been political in dealing with homosexuality, it is sometimes against gays.

The fact that we don't know what level of scrutiny sexual orientation should receive from the courts is the tip-off. The courts do - and, frankly, should - make the narrowest decisions that will decide the case before them. Courts shouldn't decide issues (and particularly constitutional issues) unless they have no other choice.

But the question of whether sexual orientation is a suspect class or not has been hanging around the federal courts since the military discrimination cases back in the 1980s. Federal opinions have nibbled around the edges of this, but have taken advantage of the military's unique factors to sidestep the question. The military's vital functions give them constitutional authority to override even fundamental rights like freedom of religion in order to carry out their duties.

For those of us not in the military, though, the question is still unresolved. Some courts have assumed without deciding that sexual orientation gets the lowest level of review. I think that comes from the politcs. Everything we know about equal protection law from the U.S. Supreme Court would and should lead to a finding that laws distinguishing among citizens based on sexual orientation are entitled to the highest level of court scrutiny.

The California Supreme Court is the only one that concluded sexual orientation is entitled to that level of review. It explicitly goes through the neutral principles courts have established for this kind of case, and I think provides a credible and persuasive analysis of each one. Compare their analysis to the dismissal given the issue by New York's highest court.

The retreat to rational basis review can be seen as a response to the heightened politics surrounding sexual orientation. On this issue, the charges of activism will come mostly from the right, and the only defense is for courts to adopt the most deferential posture possible.

But that's not what the precedents say, at least with respect to minorities who have a documented history of irrational discrimination. Laws making a group criminals (some laws still on the books into the present century) would seem to suggest that kind of history.

If this case is decided on equal protection, a responsible opinion would seem to require application of the longstanding principles of equal protection, and a conclusion of whether sexual orientation is entitled to strict scrutiny, middle-tier scrutiny, or rational basis scrutiny - with reasons stated, so those of us so inclined will be able to decide, based on the reasoning, not the result, how neutral (or not) the judge was.

As I predicted, Don't Ask, Don't Tell (DADT) is the one gay issue that has a chance of moving forward - Obama's State of the Union made no mention of pushing the Employee Non-Discrimination Act (ENDA) or repealing/modifying the Defense of Marriage Act (DOMA). What if he had moved on legal equality last year when he and his party were riding high, instead of squandering his political capital on a massive expansion of government? Spilt milk.

On DADT, conservative pundit Jim Geraghty blogs:

I'm a bit of a squish on this issue. If you told me the guy who was the best pilot and who had the best shot of putting a J-DAM bomb on the Iranian nuclear program's main facility was Harvey Fierstein, I'd say get that goatee airborne over Persian skies pronto.

But the politics of this issue are pretty clear, and so after pledging to repeal DADT and pledging and promising and promising, Obama's big step on this issue for the gay community is to say, "Now is precisely the moment for all of you red state and red district Democrats to vote to end 'don't ask, don't tell,' nine months before an election that's already looking miserable for our side." Somehow, I suspect they'll be less than fully enthusiastic.

Geraghty links to the LGBT left site AMERICAblog, which posts:

The President needs to do more than call for gays to serve openly. He needs to announce he will insert repeal language in the defense authorization bill he will submit to Congress in the next few months. Then, he needs to actually go out and round up the votes like he's doing on health care.... You will tell how serious the President is about repealing Don't Ask, Don't Tell not by a bland, fleeting mention, but by what he does to go out and get it done...

In case you'd forgotten, Barack Obama still opposes the ban on gays in the military. Here's the President tonight, in his first State of the Union speech:

This year -- this year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It's the right thing to do.

If your heart still flutters at the sound of words like this, you should really get it checked. 2009 was a squandered year for gay equality. Now 2010 starts with a pledge to "work" on the problem. It can't really be fact-checked and can't easily be broken.

David's constitutional equal-protection analysis is a respected one with a long pedigree in the Court's cases and in gay-rights legal theory. My aim is not to comment on the merits of that argument, but to make a somewhat different observation: for all the heroic feats of the Warren era and a few other decisions here and there, the federal courts have not been white knights riding in to save beleaguered minorities. As David knows well, we cannot rely on courts alone, or even on courts primarily, as a way to advance policies (or rights, if you prefer) resisted by popular majorities.

The Olson-Boies litigation is an act of faith in the heroic myth of the courts. It is faith-based litigation. Veteran court observers and litigators in gay-rights circles knew better than to act on this faith right now, which is one big reason they initially opposed the suit (another big reason is that they did not want to lose control), although they certainly share the commitment to the constitutional arguments.

Solely as a tactic to advance the cause of gay marriage, the Prop 8 litigation has offered two possible gifts. First, it might actually result in a constitutional win, giving us nationwide gay marriage decades ahead of legislative action. I doubt this will happen, even more now than when it was filed last year, for reasons I outlined yesterday.

Second, the process of litigation itself, win or lose, might educate the public about gay marriage. Through lawyers' arguments, brilliant briefs, landmark published decisions, and the live testimony of witnesses on both sides -- the sacraments and holy texts of lawyers -- the public might come to see how compelling the case for SSM is, and how thin or even hateful the opposition is. That has been the theory.

Now the theory meets fact. Other than those with committed views on SSM, nobody is paying attention to this trial. True, the pro-SSM and anti-SSM blogs are full of "coverage," which consists mostly (David excepted) of hooray- for-our-side commentary. Yesterday, while we reveled in the latest devastating analytical blows to Prop 8, its supporters were deriding the trial as a "desperate" attack on religion, which was halted by an "impenetrable roadblock" from their expert witness.

The public is oblivious to all of this. The Supreme Court precluded any possibility of a wider educative impact by stopping even limited broadcast. Now all we have is a transcript, in all its black-and-white glory. There has been no coverage of the trial on television and very little of it in major newspapers. Yesterday, the New York Times ran a three-paragraph story in the lower right-hand corner of page A13. That's been about it. Meanwhile, there's Haiti. There's healthcare. There's the ongoing meltdown of the Obama administration and the Democratic Congress. But even if these things weren't happening, something else would be sucking the oxygen out of the image-less Prop 8 trial.

At this point, the best outcome for SSM in the Prop 8 litigation might well be a loss in the Ninth Circuit. This would limit the harmful precedential effect of the case, allowing the Supreme Court to defer consideration of the constitutional claims so ably defended by David and others.

We don't need more faith-based litigation. We need to do the hard political work of persuading people that they have nothing to fear from the happiness and security of gay families. That is being done in only a very limited and indirect way in the Prop 8 trial, at potentially high cost. We need much more focus on democratic processes. Fortunately, that work has begun and is showing signs of success, both in polls and in legislatures.

I can't disagree with Dale Carpenter's thoughts about the Prop. 8 trial. But I think they ultimately just reiterate the problem: we can't rely on the constitution when it promises equal protection, and that's mostly because of politics.

I know Dale has reasons he believes a court could find rational enough to support inequal marriage laws, and as a professor of constitutional law, he speaks with some authority on that point. But here, his concerns are almost all political ones: about liberal and conservative justices; the mercurial Justice Kennedy; the filibuster rule on a possible replacement for Justice Stevens (should he ultimately need replacing; he's proven to have some kind of stamina).

Dale's not kidding about any of that. But the constitution does make a promise, and the courts were established as the branch most immunized from politics so that such constitutional promises would be reviewed by cooler heads.

The equal protection clause in particular doesn't need to mean a lot to mean something. It obviously isn't necessary for political majorities. It must protect minorities from something. The questions are (a) which minorities, and (b) what somethings? As an extremely small minority, and one that has a long history of quite vivid discrimination, both in the law, itself, and in the culture, I think lesbians and gay men have to qualify somehow under (a). Perhaps marriage isn't one of (b)'s somethings, but all of the court cases declaring marriage as a fundamental right tell me that state recognition of marriages has to be one of the laws that ought to be applied equally to all citizens, not just the majority.

As we learned with Bowers v. Hardwick, politics and pretty offensive notions about homosexuals still color the opinions of some judges at even the highest level. I have no doubt that the uglier language and insinuations in that case would not appear so publicly in an opinion upholding unequal marriage rights today. But the opinion would have to use the highest level of deference to the political will of the majority (which in the case of Prop. 8 is the voters themselves), and would have to accept reasons I think are little more than other ways of saying "Because we said so."

And that is taking it for granted that laws discriminating based on sexual orientation should be given no special regard at all. Sexual orientation doesn't need to be entitled to the highest level of scrutiny in order to fit into the middle tier of review, where laws have to be supported by something more than wink-and-a-nod rationality. There is more than adequate evidence already in the record that the proponents of Prop. 8 knew the value of misinformation and untruths in courting the votes they needed.

That's hardly unusual in politics, but there's a difference between when a politician loses an election because of unfair - and even unethical - reasons, and when a constitution is being altered to take away a right from a minority that had been specifically recognized. One person is affected unfairly in the former, but a whole group of people bears the burden of the latter.

This will be a hard case for any court. Same-sex marriage is acutely political. But that's exactly the reason we need courts - to tell us, every now and then, that politics has prevailed over justice, not achieved it. In those uncommon cases, if courts, too, bow to politics, we have little need for them.

As a legal strategy, the Prop 8 litigation was always a high-stakes bet. The bet was that there were either five votes on the Supreme Court to strike down Prop 8 or that, by the time the case works its way up, there would be five votes to do so. And let's face it: if the lower courts strike down Prop 8 the pressure on the Supreme Court to consider the case will be overwhelming. A successful outcome for David Boies and Ted Olson means a successful outcome in the Supreme Court -- not merely a win in Judge Walker's trial court or even a win in the Ninth Circuit Court of Appeals.

Like many others, I was dubious from the beginning about this bet. I don't see how you get to a 5-4 majority on the current Court to strike down Prop 8. The hope has been that Justice Kennedy would join the Court's liberal wing in such a decision. I'm not completely convinced that even this liberal wing -- Justices Stevens, Breyer, Ginsburg, and Sotomayor -- will take on the marriage laws of 45 states. Whatever else one thinks of their constitutional philosophies, the Court's liberals are not nearly as adventurous or as aggressive as their liberal forebears.

But even if they voted to strike down Prop 8, it's even less certain that Kennedy would side with them. If nothing else, the recent decision he joined to prohibit the broadcast of the Prop 8 trial -- a decision that diminished whatever political salience it might have had -- suggests that Kennedy believes the beleaguered group needing the extraordinary protection of courts is the supporters of Prop 8.

Now two factors have made a favorable outcome in the Supreme Court even less likely than when the litigation was filed last year. The first is the election of Scott Brown to the Senate from Massachusetts. This denies the Democrats a filibuster-proof majority. The second is the likely retirement this summer of the most stalwart of the Court's liberals, Justice Stevens.

The possibility of a filibuster of the president's nominee to replace Stevens will likely have a moderating effect on Obama's choice, which means the replacement will be somewhat less likely to vote to strike down Prop 8. With Republican gains in the Senate this fall, any hopes for strongly liberal nominees to replace conservatives before the 2012 election seem even more vain.

All of this is speculation. Maybe Kennedy is on board. Maybe Justice Stevens won't retire. Maybe his replacement, or a replacement for a conservative in the next couple of years, will surprise us. Earl Warren the nominee wasn't Earl Warren the Chief Justice. Maybe the Republicans won't mind letting one strong liberal be replaced by another and will let it go just as the fall election approaches. Maybe lions will lie down with lambs.

But as of now, the Prop 8 litigation bet just went from bad to worse.

It's not really so important that Prof. Kenneth Miller is not as much of an expert on gay political power as the defense was hoping. The general landscape is obvious enough. We have garnered more support over time than we started with, and working with our allies (particularly in California) have been able to get laws passed in the legislature to provide some basic and necessary protections.

But we've also lost two elections here on gay marriage, which fit right alongside the 29 other elections we've lost in states across the country.

What Prof. Miller wanted to avoid, and what David Boies steered him directly into on cross-examination is the difference between legislative support and electoral losses. Miller actually does have cogent thoughts about that difference, and unfortunately for the defenders of Prop. 8, they are at the core of our case.

Here is what Prof. Miller has written:

"In allowing proponents to eschew compromise and accommodation of competing interests, the initiative process fosters polarization rather than consensus building."

That single sentence expresses what Karl Rove knew and deployed so well on behalf of his boss, a tactic that continues to have life in it. The residual prejudices about homosexuality are still potent within many people, even if they are not publicly articulated. Many legislators have identified and abandoned those outdated notions, and even the ones who retain them (or cynically wish to exploit them) don't often say them out loud. (Here's a good example of why they don't)

It is not necessary to announce anti-gay prejudice in public to appeal to it, though. In fact, an election on gay rights (and specifically marriage), polarizes voters by its very nature, and undermines the consensus building that gays have been patiently working on for decades. The fact that the proponents of anti-gay marriage initiatives don't openly proclaim such motives shouldn't be very surprising.

The trick is to take the focus off of their own motives. Because Prop. 8 was, in fact, dominated by religious groups, its defenders have insisted that opposition to Prop. 8 must therefore be anti-religious. But that leaves out something important. Religion can be a perfectly adequate motivation for any individual citizen's vote. Voters can cast their ballots for good reasons, bad reasons or no reasons at all. They can flip a coin, if they choose.

But courts have an obligation to determine (on behalf of all of us in the aggregate) whether a law is supported by at least one good, constitutionally sufficient reason. And our secular courts can't accept religious reasons, or else they would find themselves intruding into theological disputes within and among religions.

It is that fact - that courts can't accept religious reasoning - that is made to appear to be anti-religious. To be fair, there is no shortage of anger among gays and gay supporters about how religions treat homosexuals. But it is not our side that has to defend the law.

That leaves non-religious reasons as the only ones the court can consider. This is the task the Prop. 8 defenders are struggling with. There is ample evidence of Prop. 8's leadership baiting voters behind the scenes with polygamy, pedophilia (and more general fears about children), bestiality, religious prejudice, etc. Again, like them or not, those are reasons any individual voter can find adequate. But aside from prejudice and theological beliefs, what reasons support the majority favoring itself and disfavoring an extremely small minority, particularly in the context of something as personal and profoundly important as the decision whether to marry one other person?

Prof. Miller's observation shines a glaring light on the reason that, while gays have been successful in the legislative arena, where compromise and consensus are possible, their power dissipates in elections over marriage equality. If there is a good reason to discriminate, the court can accept it. But Prop. 8's defenders do have to provide something the court can rely on. The next couple of days will give them that opportunity.

I try to give myself some political and emotional distance from the arguments in the Prop. 8 trial (I'm not always successful) so I can better assess what the other side's best case could be, in order to figure out how to respond appropriately. Good lawyers have to know the strength of the other side's case, not to mention the weaknesses of their own.

But sometimes life gets the better of you. As I was posting about Dr. Tam's testimony, a not unrelated drama was playing out closer to home. One of my cousins told her father he could have only supervised visits with her very young children. He is gay, and she believes he might molest them.

Many years ago, my uncle married a woman, though it was reasonably clear to most of us (even back then) that he was gay. My grandmother knew, and she was born in 1907. We nevertheless supported the marriage, and the two great kids it produced, and when the inevitable happened and my uncle met a partner more suited to his natural homosexual orientation, everyone hunkered down for that transition, as solid families do. I can't pretend it was easy, particularly for the kids. That's why I am such a strong proponent of eliminating social and religious pressure on lesbians and gay men to deny their sexual orientation, which so often results in wrong marriages - the best evidence (for those who want to believe it) of heterosexuality. Kids should have two parents who have the same sexual orientation. If you honestly don't want homosexuals to marry each other, and want to avoid them marrying heterosexuals, come right out and say you'd just rather they be single.

My cousin eventually got married, and my uncle adores the grandchildren, whose photos he prominently featured on the Christmas card he sent out last year. But his daughter has been drifting deeper into an evangelical sect, and they have now helped her convince herself that there is too much of a risk her father will molest her children.

The most amazing thing is her belief that her father would accept her low opinion of him. She told him he is free to see his grandchildren, as long as the visits are supervised, and she was nonplussed to learn that he wasn't taking that well.

This is the divide we face. People like my cousin view the assumption that gay men will probably molest children as eminently reasonable, even uncontroversial. They expect us - everyone - to accept that fact. That is why they view themselves as compassionate when they fail to prohibit gay relatives (even fathers) from having any contact whatsoever with their children. Supervised visits seem like a reasonable compromise.

Similarly, Dr. Tam believes he is being more than fair in supporting the political compromise of domestic partnership. Of course homosexuals shouldn't have access to marriage - everyone believes that. They get their due (maybe even more than their due) under the law. Why are they complaining?

This is how our willingness to compromise is used against us. If my uncle were to accept the insulting offer his daughter has put on the table, she will be confirmed in her unreasonable beliefs about gay men. For my uncle's part, his self-respect is being pitted against his love of his grandchildren. His daughter can't imagine he would have self-respect.

This morning, the dilemma was resolved. My cousin, based on her religion-based-on-love has cut off all contact with her father. Once again, offhand comments in Leviticus, which are decidedly not about pedophilia, trump a specific demand in the Ten Commandments that says in no uncertain terms (and I believe I am quoting here) "Honor thy father and thy mother."

This pedophilic spin on homosexuality is our own contribution to the theology of sexual orientation. At the very least, it is highly arguable that Leviticus or Genesis, or even St. Paul, were primarily concerned about pedophilic homosexuals. It took a lot of time and effort to figure out how to turn the one into the other.

The last thing I'd have expected from the people defending Prop. 8 was for them to be post-gay; but they seem to have at least one attorney who's there.

On Friday, Howard Nielson cross examined Prof. Gregory Herek extensively about the scientific literature that shows "erotic plasticity" and the idea that "the very concept of sexual orientation may be misguided." To my mind, this was the most rigorous cross-examination the defense has offered, and the most intellectually honest.

There is scientific evidence, some of it offered by our own witnesses, showing that some people's sexual orientation is, indeed, fluid. It's not like this should come as any surprise, since the "B" in "LGBT" is now quite taken for granted.

But Nielson was going further with this. He was trying to blast open the entire notion that homosexuality even exists as a category. That, of course, is what the post-gays have argued -- that we should move past this insistence on categorizing ourselves based on sexual orientation. Some ex-gays, too, have found it more convenient to latch onto this term.

Nielson's insistent drumbeat of questions to Prof. Herek suggested very strongly that this will be offered, somehow, to support Prop. 8's rationality. My guess is that the argument would go something like this: The post-gays are right. It's a waste of our time to try and divide ourselves up based on a factor that (the literature shows) is so indeterminate. The marriage laws don't discriminate against homosexuals because even homosexuals can't figure out for certain who counts as one of them. How can you discriminate against a group you can't define?

Well, it's hard to define race, too, in a pluralistic society that doesn't mandate racial uniformity through marriage laws, but that doesn't mean there's no such thing as racism.

But even at its strongest, I'm not sure this argument takes Nielson where he wants to go. If homosexuality doesn't exist as a category, then neither does heterosexuality. As Prof. Herek repeatedly noted in his testimony, though, Nielson was focusing a bit obsessively on the margins. Most people do, in fact, know and identify themselves with one of the two primary sexual orientations.

And that's for a very good, and solidly practical reason. It's easy enough to decline to state a sexual orientation when you're single - though there's certainly no shortage of people willing to declare a major. But when it comes time to commit, and specifically to marry, you can only pick one of the two available options. That returns us back to the original question: should the government be steering people into one of those options and away from the other through the force of law? If so, why? It's not enough simply to say the government is not discriminating against a group of people because we don't know if some of those people really are "those people." The government is, in fact, discriminating against every individual who is willing to declare him or herself, not only a member of that group, but a publicly identifiable member. It's hard to be a closeted homosexual after you've obtained the marriage license with someone whose gender looks suspiciously like your own.

Just because the law isn't discriminating against every conceivable member of a group doesn't mean it isn't discriminating against the group, and (particularly when it comes to marriage) the individuals in the group. Marriage, unique among most civil rights issues, involves two people who must individually agree that this is the course for both of them. If the government chooses to recognize such relationships, can it prefer the relationships that heterosexuals wish to enter to the relationships homosexuals wish to enter?

Nielson's argument seems to be trying to recreate the closet in plain sight. As in days gone by, there are no gay people in it, and no straight people either - just people who get married to members of the opposite sex or don't get married at all. That's not a justification for the status quo, it's just a reiteration of it.

There are a couple of things right up front that should be said in favor of Hak-Shing William Tam. On Thursday, he testified under oath at the Prop. 8 trial that he does not think bestiality is related to homosexuality. He supports domestic partnership rights for same-sex couples. He might even support gay adoption, though he hasn't yet made up his mind about that.

That's a lot for a man who believes homosexuals are twelve times more likely than heterosexuals to molest children, and that same-sex marriage will necessarily lead to - might even be intended to lead to -- the legalization of prostitution and sex with children.

Whatever the satisfactions of judging Dr. Tam, I think there's more value in a gimlet-eyed look directly into the contradictions and paradoxes of his testimony.

Start with that "twelve times more likely." It's absurd on its face, contradicted by both science and common sense. But that's not the half of it. It doesn't matter where it actually came from (Dr. Tam doesn't know, attributing its provenance vaguely to the internet), to know that it lumps into its prepackaged assumptions one of the most obvious and often ignored of all the misunderstandings about homosexuality.

It doesn't include lesbians.

Attributing the supposed predisposition toward sexual misconduct of gay men to lesbians is something of a blood sport among our opponents, and they seldom get called on it. The courtroom would have been an ideal opportunity to explore that, but you can't have everything.

David Boies obviously had bigger game to go after when questioning Tam (and came home with a bounty), but I'd love to have heard Tam's answer about whether he thinks lesbians are as voracious as he seems to assume gay men are in their appetite for molesting children. If not, can they get married?

It's possible, maybe even likely, that he does believe they are sexual predators, too. That is the nature of belief: it not only doesn't require facts to support it, it exists independent of, and sometimes contrary to facts. People often believe in God, not because their lives are so good, but because they are not. There are very few facts for the survivors in Haiti to look to that can give them comfort about the future, but faith can sustain them through the grim reality. It has sustained others.

Dr. Tam seems to have the same unshakable faith in his understanding of homosexuality as he does in his understanding of God. He would violate that faith if he questioned it. When he testified that he does not believe he is hostile to lesbians and gay men, there's no doubt he believes that. That's why he supports domestic partnership, protections against discrimination, and other gay-supportive laws.

But would he support laws protecting child molesters in any other context? If gay marriage will really lead to "falling into Satan's hands" as he dramatically wrote, why is domestic partnership okay? Groups in Hawaii don't see any difference at all, which is why they are demonstrating against the civil unions bill now in the Legislature there.

I doubt Tam can explain that difference. But as a voter and even as a political activist, he doesn't need to. Voters can vote for good reasons, bad reasons or no reasons at all.
But the equal protection clause in the constitution is not just puffery. It doesn't have to mean a lot for it to mean something. Dr. Tam is not the only person who worked very hard to get Prop. 8 passed, and his testimony embodies the most common, irreconcilable discords about homosexuality. No matter what any individual voter believed, it is possible - and necessary under constitutional rules - to ask whether there are any consistent reasons, any rational ones, that would support a majority treating a minority differently, and less favorably, than itself.

Dr. Tam did not provide anything like that on Thursday. But Friday's cross-examination of Prof. Gregory Herek provided a glimmer of such an argument.