Prop 8 On Trial (Again)

[jimkeller]

The mainstream media, even before the horrific tragedy in Haiti, barely mentioned this, so I don't fault anyone for not realizing, but the Federal court case against Proposition 8 (which again suppressed the right of gays and lesbians to marry in California) began a week ago today.

Comments

[kclightman]

I'm so glad you're posting about this. I've been searching for what I can but news can be hard to find.

Couple of questions I'd love to hear your thoughts on:
1) Do you think closing the trial helps or hurts? My initial thought was that while I'm dying to know what's going on and think everyone should know what's going on, I could understand that some people might be hesitant to testify honestly before the world if it might make them come out and they are in a position where that could be damaging. While some people read court reports, Youtube is like being on prime time. So I'd like to know what you think.

2) What's your gut feel? I mean, when I read anything on this topic it seems so face-smackingly obvious that the plaintiffs should carry the day to the fullest extent, but I've been disappointed before. I can't find any actual logical, reasonable, or legal reason why the defense could hold up.

3) I've heard talk that the reason some groups didn't take this case up was because the timing was wrong. But if the legal ground stands, does that make any real difference? What do you think?

I am hoping so hard for this. Do please keep us posted.

[jimkeller]

1) I think it only helps people who want to be able to stand up in court and spew whatever nonsense they feel like without having to face the consequences of their actions. Our legal system is based, fundamentally, on the right to publicly confront your accuser. If we can't force people to go on record and stand behind what they say, then anything they say can't have true strength of their convictions behind it. I also find it interesting that the respondents were citing cameras in the courtroom as the reason why they kept pruning their witness list; however, when the Supreme Court ruled in their favor, not only did they fail to put back the witnesses who were so afraid of the cameras, they pruned their witness list further. I think the "cameras in the courtroom" flap is just smoke to cover the fact that these pro-hatred witnesses don't actually know what they are talking about and were going to be ripped to shreds on cross-examination. However, since the Supreme Court is personally afraid of cameras (after all, what would the public think if they actually saw Justice Thomas sleeping through oral arguments?) they were prepared to grab hold of any excuse they were offered to ban the cameras.

[kclightman]

Good point, I hadn't thought of it that way.

[jimkeller]

2) I'm with you that this is a no-brainer of 14th Amendment grounds. But that said, courts have made a mockery of the 14th Amendment many times in the past. One court went so far as to take a case of a law that had been proven, conclusively, to have no rational basis, and make up a rational basis of its own. (They concluded that since same-sex couples can't have unplanned children, then banning same-sex marriage makes sense for the protection of unplanned children. It hadn't been argued. It doesn't even make sense. But they ruled it.)

That said, the fact that the court in this case has been repeatedly erring on the side of allowing the Pro-hatred groups to get away with stuff that shouldn't be tolerated, and erring on the side of not letting the Pro-equality camp do things that should be allowed actually speaks highly for our chances here, because it feels to me like the court over-compensating for its own bias that this is a 14th-Amendment no-brainer, and therefore working very hard to not let that bias come into the courtroom. (Yes, judges have biases, as we all do. Their objective is to not let it cloud their impartiality, not to pretend they don't have it.)

But, again, the outcome here doesn't matter much. This one is going to the U.S. Supreme Court. There we've got two sitting justices who have gone out of their way to write homophobic diatribes in response to 14th-Amendment claims by the LGBT community (one -- the same one who sleeps during arguments -- neglecting to city any law in at least one of his opinions), and three of which don't have enough of a track record to predict how they might rule.

[jimkeller]

3) The fight for justice can't be put on hold. Even if we lose at the Supreme Court level, that's a setback, not a defeat. There will be an eloquent dissenting opinion that will someday be the law of the land, through Constitutional inclusion of a non-discrimination clause or subsequent court ruling. Remember that Bowers v. Hardwick in 1986 ruled that anti-sodomy laws were legal, and Lawrence v. Texas in 2003 completely reversed, stating that the dissent in Bowers should have been the prevailing argument. Meanwhile, by keeping up the fight, we stay visible and force people to address the issue. Anyone who wants gays and lesbians to quietly go away and not bother anyone any more should work to get us our equality, and then we won't have any reason to be uppity, now will we? Until we're equal, though, we have to be uppity, or the argument I'm seeing in today's transcripts that gays and lesbians are perfectly happy with second-class status will seem rational to people, and the time will never be right.

[kclightman]

That I am in full agreement with, I meant more along the lines of, do you think it will affect the rulings at all or public opinion or votes? As far as I'm concerned, the pressure should never let up, the conversation should never quiet down.

Even after, too. A friend of mine at work today had been insulted recently for being female, and was wondering if she should say anything, or risk getting a reputation as someone you have to walk on eggshells around. I personally have no qualms about letting people know when they say something offensive, that I am offended. I used to worry like her, but then I realized that the main reason that stuff still went on in this day and age is because people allow it. Disallow it and you make some people feel crummy and defensive, but they can cry me a river someplace else while I feel good about doing the right thing.

[jimkeller]

If you mean, "Are we more likely to lose at the U.S. Supreme Court because this case will reach them in 2011 or 2012 instead of 2050?" then, yes, probably. But I don't see losing a battle as a problem as long as we win the war.

The biggest risk is we'll win at the U.S. Supreme Court, and whichever party the fascists are in control of at that point will sweep into office on a "Ban the Gays!" platform, and succeed in amending the Constitution. However, since W couldn't pull that off when Massachusetts did the right thing, I sincerely doubt anyone can. Especially since, after the legal setbacks to marriage equality, the TBLG community has begun withholding funding from candidates and parties who don't actively support equality. After the vote in NY, long-serving members of the legislature who voted against equality suddenly announced their retirement when they realized they couldn't raise money any more, and there was a real possibility of a well-funded primary challenge. With just under 50% of Americans favoring equality, if now isn't the time to press in for the touchdown, never is.

[kclightman]

Yes, I think the tide of opinion has come too far our way to ever be that big a risk again.

I guess what I'm really wondering is why in the world would some of the LGTB groups have wanted to wait to press the case? I read that while they support the case, they hadn't wanted to bring it themselves, at least not yet. I forget who it was, I'd have to look it up.

[jimkeller]

There seem to be, from what I can glean, three camps to the "it's too soon" camp within the BGTL community. 1) Those who don't understand that a loss at the Supreme Court level is not the end of the movement. 2) Those who irrationally fear that the U.S. Supreme Court could overrule Massachusetts, Iowa, and Connecticut in upholding Prop 8, removing same-sex marriage everywhere. 3) Those who are loyal Democrats and buying into the "we want your money and your votes but not to help you" talking points.

[kclightman]

You're saying they lack courage... I can see that. I'm glad someone had enough to keep going.