The evidence portion of the trial of
Proposition 8 in California ended on
January 27 and the closing arguments of attorneys will begin
soon.
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.
