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Thursday, August 5, 2010


I will get started on my proposed conversation about the underpinnings of modern ideological positions shortly, but first I need to say at least something about the decision handed down yesterday in the legal challenge to California's Proposition 8 banning of same-sex marriage. last night, I read U. S. District Judge Vaughn Walker's entire 136 page decision online [God, how I hate to read things like that on a computer screen! But I just could not see printing out the entire thing.] Now, I am a complete novice and lay person in this area. I have not even had the benefit of the wisdom of my son, Tobias, who is probably the most knowledgeable person on the issue in America, because he was too busy yesterday doing press and television following the release of the decision. So what follows is my untutored reaction.

By way of background, for those of you who have not been following this issue [or are from other, possibly more enliightened parts of the world, such as South Africa], this was a challenge in Federal District Court to a ballot initiative, or Proposition, in California that successfully overturned a California Supreme Court ruling making same-sex marriage legal in that state. The legal challenge to Proposition 8 was brought by two same-sex couples, whose case was argued by the rather extraordinary legal team of David Boies and Ted Olsen -- the lawyers on opposite sides of the hideous Bush v. Gore Supreme Court case that took the presidency from Al Gore in 2000 and handed it to George W. Bush.

Experienced and knowledgeable LGBT activists [Lesbian, Gay, Bisexual, Transgendered] were horrified by the decision of Boies and Olsen to file the suit in Federal Court, because they feared that when it inevitably made its way to the High Court, the present collection of right-wing judges would be given the opportunity to hand dopwn a sweeping anti-gay opinion that would enshrine prejudice against same-sex couples in America's legal system. Boies and Olsen, who are being paid handsomely for their efforts, have been rather cavalierly dismissive of the advice of lawyers experienced in the field, apparently believing that they can, in arguments before the Supreme Court, hold the four moderate to liberal justices [Ginsberg, Breyer, Sotomayor, and Kagan] and persuade Kennedy to make five.

Walker, who is, by the way, gay, required the litigants in the Prop 8 case to hold a full trial, rather than allowing them simply to submit briefs and supporting materials. The State of California, which was technically the defendant in the case, refused to mount a defense of Prop 8, so it was left to lawyers representing the proponents who had pushed the Prop 8 effort. Boies and Olsen put on a stream of high profile witnesses, who presented masses of evidence rebutting the standard claims that same-sex marriages were bad for children, would weaken the institution of marriage, etc etc. The Prop 8 proponents listed a large nunmber of witnesses in pre-trial papers, all but two of whom backed out before the trial. The two who did testify were extremely weak,and under devastating cross-examination by Boies and olsen [who really are good trial lawyers, let's face it] those two witnesses simply folded.

Walker's decision is extraordinary in several regards. First, he considers the testimony of the witnesses, and in crushing detail concludes that the testimony of the Prop 8 witnesses has no credibility and should be given no weight in the legal proceeding, whereas the testimony of the witnesses attacking Prop 8 is judged by him to be credible. He examines the credentials of these witnesses, and concludes that one Prop 8 witness [someone named Blankenhorn] has no credibility and the other has very limited credibility.

When he turns to the legal dimensions of the case, he concludes that the state has no rational basis for denying marriage to same sex couples ["rational basis" being the lowest bar a law is required to clear], and hence it is not even necessary to submit the law to heightened scrutiny [the highest bar].

When he is finished with his opinion, Walker orders that California immediatelty resume issuing marriage licenses to same sex couples.

So what does it all mean? Well, this decision will immediately be appealed to the Ninth Circuit, generally considered the most liberal Federal Appellate jurisdiction, and regardless of their decision, then to the U. S. Supreme Court. Walker's decision to hold a full trial is important, because it has established a record of fact that is overwhelmingly tilted against Prop 8. Theoretically, appeals courts are supposed to defer to the findings of fact of a court of first instance [because that court, either the judge or a jury, if there is a jury trial, is charged with making determinations of fact on the basis of evidence and testimony entered into the record.] In theory, the appellate court is only supposed to consider whether the lower court has made errors of law. So the heavy evidentiary balance in favor of the opponents of Prop 8 gives them a leg up at the appellate level.

But of course, the US Supreme Court can do anything it damn well pleases, as Bush v. Gore demonstrates, so we return to the question, What will Kennedy do? And about that, I am completely clueless.

Still and all, in these terrible times, it is necessary to take what little pleasure one can from these victories along the way. The Boies Olsen strategy still looks like a bad one, an extremely dangerous one, and it will be several years, presumably, until this works its way to the Supreme Court and is heard by them.

What can one hope for? Barring the untimely death of one of the right wing justices, which of course it would be inappropriate even to contemplate, what we must all hope and pray for is that Boies and Olsen are correct in their self-congratulatory self-image.


Chris said...

I continue to see this struggle for equal marriage rights as bordering on Stockholm syndrome. The church, religious activist, 'god,' etc, have continued to oppress and ridicule the LGBT community. What the LGBT community seems to not realize, in there constant desire to "love and commit" to a partner of their choosing - is that the church and the state are not necessary for that. Frankly I don't support marriage for straights either. If you love someone, why bring god or the state into it? They can't confirm or deny that subjective experience you share with another. Nor can they confirm or deny your sincerity in commitment. Perhaps instead of wasting political capital and energy struggling to have the state and church allow for them to hold marriage certificates, they - along with heterosexuals - should just commit to love and compassion for each other, without third party recognition.

I'm sorry of this post offends anyone - I've just never understood the sanctity of marriage - but I've always understood the sanctity of love.

Robert Paul Wolff said...

If the enormous web of legal and economic and other rights, privileges, and preferences attached to marriage could all be eliminated, I might agree with you. But the reality is that in countless ways, the status of marriage confers rights that are otherwise denied. For example, if a loved one is in a hospital, deathly ill, a marital partner has visitation and other rights denied to even the closest "partner." Believe me, that makes a big difference in your life.

Chris said...

I agree the act of state recognition does confer on one these 'extra rights,' but that seems to me - and Emma Goldman - to border on prostitution. One is now engaging in marriage for material, financial, and other gain, instead of for the initial reasons that is supposed to be primary; love.

Furthermore, although there might be tax breaks, in regards to seeing loved ones, aren't there loop holes in that system through lawyers?

Benjamin said...

I would reject the overly sharp distinction you draw, Chris, between financial matters and love. If I am in love and have been with a partner for years, why wouldn't it be part of that love to want my partner to have survivor rights to my pension, so that my partner is not left impoverished by my death? Furthermore, why are visitation rights in a hospital a matter of financial gain? I think the "financial gain" argument is a bit of a straw man for the complex web of priveleges marriage grants a spouse.

Unknown said...

I agree with Chris up to a point, and since I am a woman that point is first and foremost providing for children Life for a woman with children but no partner is too often total misery for all concerned.

Chris said...

Benjamin, I consider love an entirely subjective experience; whereas financial matters are more objective considerations. Your love may aid in your decision to benefit your spouse in some financial way, but love is (or should not be) contingent upon such a thing.

Regardless, I'm pretty sure the pension you refer to, visitations rights, and a host of other financial matters, can still be accomplished through a lawyer, no?

Chris said...

Benjamin, I hope you don't mind I want to draw one more distinction.

The majority of complaints and grievances I hear from the LGBT community is that by not being allowed to marry they are not allowed to share equal "love and commitment" with their partners as heterosexuals are. On that point, I think their claim is fundamentally and inherently false. Love and commitment do not come from documents, court orders, the church, etc.

I have not heard, and this could be my own ignorance, an LGBT complaint solely regarding visitation rights, wills, finances, etc. That is in fact a stark problem, and it can probably be equally channeled politically as their campaign for marriage. I would support the latter, but I don't support the former. If the LGBT community was spending their political capital towards legislation that addressed matters of finance, I would be on board with the movement. However, at the moment, they seem to have Stockholm syndrome, and remind me (this is for Wolff) of how the AFL-CIO rose to power, by accepting their oppression and oppressors, when it should of been the IWW.

Robert Paul Wolff said...

I don't think a great deal is accomplished by arguing about this, Chris. If you are able in good conscience to support the efforts under way to secure equal economic and other legal rights for same sex couples, then that is where your efforts should go. Social change is not brain surgery. It is more like a landslide. Just so long as each of us is a pebble rolling down the right side of the hill, we will crush those standing in our way.

Chris said...

You're probably right that a great deal isn't accomplished. But as a big admirer of your 'In Defense of Anarchism,' it's with that in mind that I am comfortable spouting my morally autonomous positions that stand by principle over pragmatism ;). I apologize if my rigidness is disenchanting to further discussion.

That said, when it comes to pragmatic politics, and making legislative change, I do think the LGBT community would of done themselves a service had they aimed for the financial, visitations, and other rights, over the marriage rights. Simply because marriage brings in religious baggage, and a host of opposition groups. Where as the opposition to economic fairness across sex and lifestyle is a lot less partisan and hostile. ie more people are inclined to grant LGBT rights to visitation, and civil union tax breaks, than they are things religious.

In regards to sliding towards a greater goal, well we've reached a fork between marriage, the state, and the church, one one side, and visitation, and tax equality on the other.

That's a dangerous fork to choose a destination on. Perhaps I'm wrong to chose my path, but I'm not certain of that...yet.

GTChristie said...

Interesting that the decision is made mostly on the "credibility of witnesses" on matters of fact on an issue in which there are few actual facts in the scientific sense, and then on the "rational basis" of a law issued, at one crucial point, from a judicial bench. This strategy in judging the case bypasses the more fundamental constitutional question whether the legally introduced and democratically voted decision of a majority of citizens takes precedence over legislation from the bench.

A sad day for jurisprudence, regardless of anyone's take on the rights of the GBLT minority.

Robert Paul Wolff said...

Well, I knew I was in over my head when I undertook to comment on a legal issue, and pretty clearly I am, so I am going to stop. To all of you who have raised questions, let me urge you to go to Andrew Sullivan's blog, The Daily Dish, and read the lengthy comments sent in on Prop 8 by several different lawyers who clearly know what they are talking about. I am not suggesting that the matter is an open and shut case, simply that their discussion of it is way more knowledgeable than mine.

Chris said...

But the philosophical approach is always more enticing than the judicial ;)