Forget the law. Chief U.S. District Judge Vaughn Walker has allowed the
trial over a challenge to overturn Proposition 8 — the 2008 California
ballot initiative that limited marriage to "a man and a woman" approved
by 52 percent of California voters — to turn into what the measure's
opponents like to call a "teachable moment." That's another way of
saying that the law isn't as important as feelings in this trial.
Feelings rule — and not just because the measure's foes somehow believe
that Californians haven't been taught enough about gay people. Anti-8
attorneys have chosen to argue that Proposition 8 is unconstitutional in
light of a 1996 U.S. Supreme Court decision that overturned a Colorado
ban on gay-rights measures because it was motivated by animus toward
homosexuals. If they can convince Walker that the Proposition 8 people
are haters, he may overturn the will of the majority of California
voters.
Plaintiff Kristin Perry of Berkeley testified in the first week of
trial, "The state isn't letting us be happy." You know, that's the way a
teenager talks — yet it now rates as evidence in Walker's court.
On Tuesday, the feelings-a-thon continued with Republican San Diego
Mayor Jerry Sanders as star witness for Proposition 8 foes. Sanders used
to oppose same-sex marriage, but favored domestic partnerships for
same-sex couples. In 2007, the San Diego City Council passed a
resolution supporting San Francisco's legal efforts supporting same-sex
marriage. Sanders' lesbian daughter, Lisa, told him it was OK if he
vetoed the measure. She explained in a press conference later that it
was "more important" that her father remain mayor of San Diego.
Nonetheless, a teary-eyed Sanders supported the resolution. He testified
that his earlier support for civil unions had been "grounded in
prejudice." And: "I was discriminating even against my own daughter."
Sanders also said, however, that his support for civil unions was not
based on "moral disapproval" or hatred and that others could support
Proposition 8 without animus toward gays. That punctures the "no" side's
legal argument.
UCLA Williams Institute researcher Lee Badgett also testified for the
anti-8 folks. She talked about the economic advantages of same-sex
marriage as opposed to civil unions. But as pro-Proposition-8 attorney
Chuck Cooper noted, Badgett herself wrote an October 2006 op-ed piece
supportive of civil unions that referred to domestic-partner law as
"equal treatment of same-sex couples."
Equal? That's odd. The anti-8 complaint refers to domestic partnership
as a "separate-but-unequal" institution that brings "irreparable harm"
on the two plaintiff same-sex couples.
Was Badgett a hater who wanted to hurt gay people in 2006? Did she want
to treat the two couples as, to quote the complaint, "second-class
citizens?" When Lisa Sanders told her father he could oppose same-sex
marriage, was she intent on "stigmatizing gays and lesbians"?
Of course not. Domestic partnerships exist to recognize and provide
legal protections for committed gay and lesbian couples. But after Mayor
Gavin Newsom decided to flout marriage law and open up City Hall to
same-sex marriages in 2004, the ground shifted.
I'm happy for those same-sex couples married during San Francisco's 2004
Winter of Love, before voters passed Proposition 8. But any attempt to
force same-sex marriage legalization through the courts makes it
impossible to pre-empt possible unintended consequences.
My fear: that someday, some judge will recognize polygamous marriages
lest a family in Berkeley feel unhappy or because anti-polygamy laws
discriminate on the basis of religion. If the no-on-Proposition-8
argument prevails, why not?
Besides, after hundreds, arguably thousands, of years of Western
marriage limited to heterosexual couples — with the occasional but
never-lasting recognition of polygamy — a humble society ought to
hesitate before upending a tradition that has worked. A court fiat is
not how a smart society makes deliberate and informed decisions.
This lawsuit may not be about Proposition 8 alone. If Walker strikes
down Proposition 8 and the U.S. Supreme Court backs him, you could see a
same-sex marriage ruling as sweeping as Roe vs. Wade.
And to think that the outcome could hinge on whether the "no" side
successfully establishes animus. Toward that end Thursday, anti-8
attorney David Boies succeeded in marginalizing Proposition 8 supporter
Hak-Shing William Tam, by prompting Tam to admit he believes homosexuals
are 12 times more likely than heterosexuals to molest children. Talking
to the press later, the Yes on 8 folks tried to distance themselves from
Tam, but he was one of the measure's official proponents.
Thing is: Tam does not speak for the 7 million Californians who voted
for Proposition 8. Boies' colleague Ted Olson, who beat Boies in the
rancorous legal battles over the 2000 Florida recount, made a strong
argument for same-sex marriage in a recent Newsweek. But he did not make
a strong "conservative" case, as he claimed. While many conservatives
support same-sex marriage, a conservative should want to debate the
possible consequences of upending family law. A good conservative
doesn't push a court to impose a ruling that shreds states' rights, as
well as the right of Californians to govern themselves.
