Tuesday, August 10, 2010

Summarizing the Prop-8 Decision

Not surprisingly, a lot of anti-gay folks are complaining about Judge Walker's ruling that California's Proposition 8 limiting marriage to heterosexual couples was unconstitutional. Those who are really involved in the issue have read the judge's opinion - that is probably not one percent of the population. The rest of us like to see it boiled down. Here's the most succinct summary I have seen, as presented by winning attorney David Boies in an interview on the Rachel Maddow Show.

There were three points.
It was a very, very careful and well-written opinion, and it was very well grounded in the facts of the case. We said at the beginning that we would establish three things -- marriage is a fundamental right; depriving gays and lesbians the right to marry harm them and harm their children; and depriving gays and lesbians the right to marry cannot help heterosexual marriage at all. The judge pointed out that we were right on all three of those grounds, and that not only were we right, but the defendant's own witnesses admitted the three propositions during the trial. I think that one of the things the judge has done is it made a very, very strong opinion that's very, very difficult to overturn on appeal. Transcript: Rachel Maddow show

Three points. The courts have already upheld the right of citizens to marry, and you cannot deprive some segment of the population that right. Taking that right away from some people is harmful to them in a legally valid sense. And finally, taking away gays' and lesbians' right to marry the one they love does not make marriage any better for straight couples.

These are three simple points, easy to understand. The citizens of California might not want to grant gay and lesbian couples the right to marry, but this is the United States of America, governed by a Constitution that guarantees that rights given to any are given to all.

The Fourteenth Amendment says: "...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It's that last little piece, the "equal protection" clause, that requires Judge Vaughn Walker to rule against Proposition 8. (Walker's original nomination by President Reagan in 1987 was stalled in the Senate because he was perceived to be insensitive to gay and poor citizens; a group of House Democrats led by Nancy Pelosi also opposed the nomination. G. H. Bush's nomination of Walker was approved by the Senate in 1989.) The courts have ruled many times that citizens have the right to marry, and you can't deny that right to gay and lesbian citizens.


Anonymous David S. Fishback said...

One very important thing to keep in mind here is that the Proponents of Prop 8 at the trial were represented Chuck Cooper, one of the most prominent and competent conservative lawyers in the country (see http://en.wikipedia.org/wiki/Charles_J._Cooper) and the Alliance Defense Fund, which is a Focus on the Family spinoff and probably is the most prominent social conservative public interest law group in the country.

The Prop 8 attorneys were given every opportunity to present evidence. So no argument can be made that Judge Walker did not have all the relevant facts before him due to incompetence of counsel.

Everyone should remember this when the anti-gay spin machine tries to argue that Judge Walker's decision was only based on the information presented at trial, and that there is other information out there that would have counseled a different outcome. The fact of the matter is that the Prop 8 proponents were the A-Team on that side of the argument. This A-Team had every opportunity to show at least some actual evidence that same-sex marriage would have a negative impact on opposite sex marriages or children, such that there would be a rational basis for discriminating against same sex couples. They could not make the factual case -- they were not even close.

August 10, 2010 11:12 AM  
Anonymous Robert said...

They couldn't make the case, I think, because there is a decided dearth of evidence that same-gender marriage is harmful to anyone, and clear evidence that it is directly benficial to a large number of couples and children.

I find it hard to imagine why anyone would oppose this, other than some level of animus towards lgbt people. It may not amount to hate or full-fledged bigotry, but it is definitely inexplicable dislike or disapproval.

Can anyone who loves lgbt people make an argument otherwise?

August 10, 2010 6:37 PM  
Anonymous Bose said...

I'm not an attorney. My primary exposure to the court room has been my divorce trial and subsequent court filings which prepared for a likely appeal to the state supreme court. (I backed out of that for family- and financially-related reasons.) In all of that, I was an unusually pro-active layperson, writing a couple of key affidavits, collaborating closely on strategy, firing the first attorney after action was taken free of consulting me until weeks later.

David S. Fishback: The Prop 8 attorneys were given every opportunity to present evidence. So no argument can be made that Judge Walker did not have all the relevant facts before him due to incompetence of counsel.

I want to believe that, but the Prop 8 defense team strikes me as remarkably similar to opposing counsel at my divorce trial.

My attorney had deposed my soon-to-be ex (s2bx) thoroughly, as well as their proposed expert witnesses. The s2bx attorney's firm had been known as an African-American father/son civil rights team which had a group born-again experience a couple years earlier.

It was odd that they elected not to depose me or our witnesses. Thinking it might be part of a stealth, last-minute attack strategy, we prepared as well as we could for whatever questions might be posed in court. We didn't exactly prepare for the possibility that 20-30 people would form a prayer circle just outside the courtroom an hour before the trial (many of whom had been close friends of the family previously), but my attorney and I dealt with it, and we moved on.

We won everything we asked for.

If I was a law student assigned to represent a conservative/anti-gay client in a mock version of my divorce trial, I have a clear sense of where I'd need to go to assemble evidence, and discredit the other side (me).

It was (a little) disappointing that my s2bx's attorneys failed so completely.

But, I can't escape the parallels between the s2bx's attorneys then and the Prop 8 proponents' attorneys now. Both failed. Badly. Neither anticipated that the judge would carefully parse the evidence. If they were to prevail, they needed to think creatively, believing that their instincts could fail them, and multiple fall-back strategies were required.

The pro-Prop 8 legal team failed. Badly. Completely. If I had been on that side, and hired them, I don't know when I would have fired them, but it's not a question of if, just when.

August 11, 2010 2:26 AM  
Anonymous David S. Fishback said...


The thing to remember here is that the Alliance Defense Fund is not just any law firm. Rather, it is the group that has spent years doing litigation in this area. See http://www.alliancedefensefund.org/main/default.aspx As the ADF website shows, it is part of the James Dobson/Focus on the Family/Family Research Council empire. If anyone could make the case, they should have been able to do so. For years, these people have been asserting that gay people can change their sexual orientation, and that openly-gay people are a danger to everyone else. Many assumed that there was some basis for their assertions. Now their utter failure to back up their assertions is on full display -- that, I believe, is why they were so afraid of having the proceedings televised.

In any event, if any law firm was in the position to have the knowlege and skill to back up the Dobson/FOTF/FRC assertions, it was the ADF. Moreover, by bringing in Charles Cooper, they added legal fire power on a par with Olson and Boies.

Even with that, they could not make any case on the facts. They were given every opportunity to make their case. What the trial showed is that the James Dobson/Tony Perkins/Peter Sprigg-inspired homophobia is nothing more than a bundle of unfounded prejudices and theological dogma.

As a lawyer myself, I have seen incompetent or misguided legal tactics lose cases that might have been won. But a reading of the decision and the backgrounds of the Prop 8 lawyers here demonstrate that it was not bad lawyering that lost the case for Prop 8 -- it was the law and the actual real world facts.

August 11, 2010 9:30 AM  
Anonymous David S. Fishback said...

This piece by Law Professor Geoffrey Stone (who happens to be straight) is also instructive:


August 11, 2010 2:09 PM  
Anonymous svelte_brunette said...

This is a test. This is only a test. You may delete this.

August 27, 2010 8:32 AM  

Post a Comment

<< Home