In the days before it began, the court hearing over the constitutionality of California’s Proposition 8 was set to be a show trial in many ways. With its planned dissemination on YouTube, some boosters were forecasting a second Scopes Trial. It was not hard to guess the casting — superlawyers Ted Olson and David Boies representing the forces of progress and reason versus the Proposition 8 defenders standing in for narrow religious bigotry. Judge Vaughn Walker argued that broadcasting would provide an important civics lesson.
The U.S. Supreme Court’s order to halt the show (at least the televised portion), citing unseemly shortcuts in the approval process and the threat of witness intimidation, deflated much of the expectation for this unedifying spectacle. The show trial had to go on, though, and for two weeks in January it did. Those following the trial have had to rely mostly on second-hand accounts. This hasn’t prevented a civics lesson of sorts. What we’ve learned, however, is less likely to inspire confidence than cynicism and distress about our legal system.
The constitutionality of marriage has been litigated in more than a dozen state and federal courts, but only once before (Hawaii in 1996) has a formal trial been thought necessary. With the near unanimous conclusion of the courts that the constitutional question is a legal one rather than a dispute over facts, why has the Proposition 8 case required a trial? It is probably driven by the ultimate goal of the case — a hearing before the U.S. Supreme Court. Since appellate courts typically defer to the conclusions of the trial court on factual matters, holding a trial theoretically gives the lower court a chance to influence later court proceedings. For instance, if the trial judge says that the amendment campaign was motivated simply by animus towards gays and lesbians, as a factual matter, the hope is that higher courts would accept that finding since they weren’t at the trial to weigh the evidence in the same way the trial judge was. (This is not to say the finding would be binding, only that it would carry more weight.)
Understanding the evidence presented in this case requires understanding just what it is the plaintiffs are trying to prove and what “facts” they would like to have established for later court review. They are not likely to be able to prove that the U.S. Constitution contains an unwritten and heretofore undiscovered fundamental right to one’s own definition of marriage. Doing so would require demonstrating that such a right is rooted in the history and tradition of the nation. That is not a likely scenario, to say the least.
The plaintiffs, instead, are trying to show that California’s marriage law (and the laws of all but five states) denies gays and lesbians of the equal protection of the laws. Specifically, to show that Proposition 8 can only be explained as a manifestation of hatred towards homosexuals. Thus, plaintiffs are trying to provide evidence that the marriage law harms gay people, because of their sexual orientation, and that there is no rational justification for the law.
One obstacle to the showing of harm is that while same-sex couples cannot marry in California, they are able to contract domestic partnerships that give them access to all of the tangible consequences of marriage the state provides. Thus, the thrust of much of the testimony is to demonstrate psychic harms flowing to same-sex couples from the mere existence of Proposition 8. This is the point, such as it is, of including first-hand accounts from the plaintiffs and others about their distress over the passage of the amendment and the some of the experts’ speculation about emotional distress to which gay people are subject, purportedly because of the marriage law. This is admittedly wholly subjective and slippery “evidence” that has no promise of being representative or rigorous but it’s really all the plaintiffs have.
While three state courts have decided that gays and lesbians are a “suspect class,” the idea has gotten no traction in the federal courts. The Proposition 8 plaintiffs are trying to change that by showing (1) a history of discrimination, (2) based on an innate and immutable characteristic (the analogy being race or sex), and (3) political powerlessness that makes the affected group unable to fend for itself in the normal political process. This, in turn, would justify special judicial protection. So, one of the plaintiffs’ witnesses, a historian, testified that gays have long been stereotyped. Another witness, a young man from Colorado, told his experience of being forced by his parents to meet with a therapist to unsuccessfully lessen his feelings of same-sex attraction. Yet another expert witness described a survey he had conducted that reported 88% of gay men and 68% of lesbians do not believe they chose their orientation.
Showing political powerlessness has been, if possible, even more difficult than showing historical discrimination and an innate and immutable class. Both the governor and attorney general of California opposed Proposition 8 and have refused to defend it in court. It’s unlikely that any statewide office holder openly expressed support for the measure, the campaign against the amendment garnered more than $64 million in contributions, and 48% of the electorate voted against it. Add to this California’s domestic partnership status for same-sex couples, statewide anti-discrimination laws that include sexual orientation, full joint parenting recognition for same-sex couples, etc. The only evidence of political powerlessness seems to be the inability to defeat Proposition 8. It seems a stretch to claim that losing an election should trigger special judicial scrutiny.
Plaintiffs’ efforts to show that Proposition 8 is without rational justification have been particularly unimpressive but also deeply troubling. They have an Ivy League professor who said marriage is now about nothing more than adult desires (so why exclude anyone?). Another academic said being gay doesn’t necessarily make a person a bad parent. One proponent of Proposition 8 was brought on to presumably represent the attitudes of all voters who supported the measure. Mostly, though, there was a persistent suggestion that the only reason anyone voted for Proposition 8 was religious belief. This, in turn, the plaintiffs assume, means that the only motivation was bigotry. The plaintiffs’ simple equation of religious belief with bigotry was never explained, the innuendo seeming to suffice for their purposes.
Even this attempt to explain the motivation for the evidence offered at the trial doesn’t explain many of the plaintiffs’ witnesses. For instance, the mayor of San Diego who told how he changed his opinion about marriage because his daughter had a same-sex partner or the economists who said the state could get more tax revenue if marriage was legally redefined to include same-sex couples.
With the extreme subjectivity and irrelevance of nearly all of the plaintiffs’ evidence, it is fair to ask what illumination this show trial has provided. This “civics lesson” is beginning to look more like a cautionary tale about the dangers of legal hubris. Certainly our fundamental social institution deserves better.