Monday, January 11, 2010

Grasping at Strawmen

As the Prop 8 trial begins today, Edwin Meese III, who was an Attorney General in the Reagan administration, leaps to the end of the story and assumes that the plaintiffs have several unfair advantages and therefore will prevail. He bases his presumption of verdict on several factors:

– The trial is taking place in San Francisco. “More than 75 percent of San Francisco voters opposed Proposition 8. That’s quite a home-court advantage for same-sex marriage advocates.” Well, unless the trial is taking place in the middle of Castro Street, I would hope that the court will be able to maintain an air of impartiality, and one would hope that the outcome would be the same if it took place in Fresno.

– The judge has issued a series of pre-trial rulings that Mr. Meese thinks stacks the deck against the defendants. “The judge went so far as to order the Proposition 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He has even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.

“Most troubling, Judge Walker has also ruled that the trial will investigate the Proposition 8 sponsors’ personal beliefs regarding marriage and sexuality. No doubt, the plaintiffs will aggressively exploit this opportunity to assert that the sponsors exhibited bigotry toward homosexuals, or that religious views motivated the adoption of Proposition 8. They’ll argue that prohibiting gay marriage is akin to racial discrimination.” If that was the basis of the campaign for the sponsors of Prop 8, then their motives are relevant to the case. After all, it’s hard to make the case for depriving an entire class of people a right without bringing up something other than equal protection under the law, and the plaintiffs have the right to explore them.

– The judge will let the proceedings be shown on YouTube. “This will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment and bullying attacks already used by some of those who oppose the proposition.” Assuming that some people will do bad things because of what they see on TV would carry a little more weight if just such an argument wasn’t usually dismissed by conservatives when a right-wing nut shoots up a church based on what he saw on TV as just fingerpointing.

Mr. Meese then goes on to state that the supporters of Prop 8 “will work hard to demonstrate that it was rational for voters to conclude that marriage is a unique institution that promotes the interests of child-rearing, and that those interests are broader than the personal special interests of the adults involved. And they’ll make the case that voters were very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage — or any other subject.” I find it interesting that a conservative who presumably believes in smaller and limited government would come to the defense of a government-sanctioned institution such as marriage over the rights of individuals. That sort of turns conservative orthodoxy on its head. But it must also be remembered that conservatives turn to that argument when an institution they believe in is in the dock; after all, they made the same case for maintaining segregation in the military and in the public schools, and no doubt it was also argued thus in opposition to the case of Loving v. Virginia that ultimately banned interracial marriage. Fortunately, the Constitution speaks only of the rights of the citizens, not religious traditions or morality.

Mr. Meese concludes,

It remains to be seen whether traditional marriage, and the rights of the voters who approved Proposition 8, will prevail in Judge Walker’s courtroom. Most likely, no matter how the judge rules, the Perry case is destined for appeals and a final decision in the United States Supreme Court. But it is during the present trial that the facts in the case will be determined, and it is there that the two sides should be able to present their cases on a level playing field.

First, the rights of the voters are not on trial here: they got their chance to vote on the issue. We have a long tradition, however, of the courts overturning the votes of the people based on the fact that sometimes they vote for things that go counter to the intention, if not the letter, of the federal law. I assume Mr. Meese is in favor of the federal Justice Department rulings that have held that medical marijuana or assisted suicide laws — approved by voters in several states — are illegal.

Second, Mr. Meese does not define what “traditional marriage” is, but I presume he’s referring to the relatively new concept that a man and a woman are the only parties to a marriage and they get married for the sake of love alone and to have children. That’s not how it’s defined in the Bible or in some of the traditions in other countries and faiths, but we’ll give him that for the sake of argument.

Finally, if any group has the deck stacked against them, it is the plaintiffs. Prop 8 won in November 2008. Not only did it win, but the California Supreme Court, the court that initially ruled in favor of same-sex marriage in the state in May 2008, upheld the election results in favor of Prop 8 last year. There is a vocal and well-financed lobby of religious and conservative groups who are vehemently opposed to granting equal rights to all people on this issue, and they have made their case quite clearly. However, the fact remains that they won based on fear, bigotry, and religious intolerance and have yet to put forth a reasonable case as to why providing an entire group of citizens with the same rights as everyone else either harms the rest of the citizens or deprives them of their rights. If they can do that, then we’ll have a level playing field.