PROP 8

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.