Thoughts To Consider Regarding Perry v. Schwarzenegger, the Prop 8 Case

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Hopefully, many of you already know that today is the first day of trial in Perry v. Schwarzenegger, a federal proceeding to overturn California’s Proposition 8, which could end up opening marriage to same-sex couples across the nation. This could easily be the Loving v. Virginia of our time, where SCOTUS has the final word on marriage equality, though some are less optimistic. Because of the huge ramifications of the trial, I want to offer what I think are some important implications of this trial and the drama that has already taken place in its wake.

(NOTE: You can follow the courtroom proceedings via the Prop 8 Trial Tracker, operated by the Courage Campaign.)

Multiple Perspectives in the Media

I think it’s always a good thing when you can get people talking (that’s why I write a blog!). When issues get a lot of attention in the media, it’s harder for folks to avoid exposure, and I think a lot of progress can be made around the water cooler (or whatever cheesy new metaphor best befits us Millenials). When people have to put voice to their thoughts, it makes them think about what they actually believe. Even the most objective journalism offers explanations for why marriage equality is a reasonable thing, so I think these conversations can be constructive and lead opponents to have some worthwhile cognitive dissonance.

One piece that I think deserves a lot of attention is Ted Olson’s “The Conservative Case for Gay Marriage.” Olson is a conservative but is on the team defending marriage equality. Since he took on the case, many have been dubious of his motives, but I think if any doubt remains, his conviction and intentions are made clear in this piece. While I’m not sure how many conservatives pick up Newsweek, hopefully it makes its way around the internet and gets read. Conservative or not, it is a poignant, easy-to-understand explanation for why marriage equality is essential.

Another piece worth looking at is The New Yorker‘s “A Risky Proposal.” This extensive article covers the history of this case and the issues at stake. One of the points it addresses, as evidenced by its headline, is the fact that not all gay rights groups have been on board with this case from the beginning, which brings me to my next point…

“Ready” vs. “Wait”

When President Obama was campaigning, I heard a lot of people say, “Is America ready for a black President?” Those people saying that would clarify that they’re not racist, but America is. I’d argue that just because they deflect racism upon others doesn’t mean that by humoring such a point they are any less racist themselves. I think these ideas all come down to self-fulfilling prophesy: “If you believe you can, you can. If you believe you can’t, you can’t.”

Many gay rights supporters thought it was “too soon” for a case of this scale. This concerns me, and reminds me of why I came to see the National Equality March as so important: If we want full equality in society, we have to operate from the understanding that we deserve it now. I am constantly inspired by Dr. King’s “Letter from a Birmingham Jail” (as is Olson) and the idea that we cannot accept this idea of “Wait.” Justice delayed is justice denied.

So even though that moment of doubt on the part of “the movement” was long ago, I think it’s still important to reflect on this notion of “when” being up for grabs. For me, “when” is not up for grabs at all, and I would have trouble being on board with any activist or organization who is only interested in playing politics to take baby step because they actually have doubts we’re “ready.” I’m ready. I am unwavering in the validity of this case, regardless of the political implications. The piece in The New Yorker points out:

Many more people condone gay marriage today than condoned interracial marriage at the time of Loving v. Virginia, when only twenty per cent of Americans told Gallup that they approved of it.

So why wait? If I’m going to fall victim to a self-fulfilling prophesy, it’s going to be one with a positive outcome.

Establishing Burden of Proof, Suspect Classification, and Strict Scrutiny

One of the hurdles for the case is determining whether non-heterosexuals qualify as a suspect classification and whether strict scrutiny should be applied. Some people think this will be a challenge; I think those people are poorly educated on sexual orientation. Strict scrutiny was met in the Iowa Supreme Court decision last April because of these four characteristics.

» There is a history of discrimination against gay and lesbian people.
» One’s sexual orientation does not impede one’s ability to contribute to society.
» Sexual orientation is an immutable quality.
» Gay and lesbian people have lacked the political power to overcome their unfair and severe prejudice.

Now, if anybody wants to debate any of those with me, bring it. Warning: You’ll have a lot of reading to do.

An interesting aspect of this case is the notion of burden of proof. The idea of proper burdens of proof is very much my  motivation for advocating for atheism. It’s the idea that you have to make the case for the tradition you stand upon. Among other things, Olson and Boies will argue that there is no compelling state interest to restrict marriage to opposite-sex couples. This means that it’s not just enough that Proposition 8 is in place; its defenders still have to make a case for it. That is why I’m most optimistic about this trial; I don’t think there is a case to be made. Here is an excerpt from the end of that piece in The New Yorker:

For example, one of the arguments that the anti-gay-marriage side has increasingly turned to outside the courtroom is that allowing same-sex marriage would hurt heterosexual marriage. At the pretrial hearing, Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”

“All right,” Cooper said.

“All right,” Walker said. “Let’s play on the same playing field for once.”

There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”

The Victim Meme as a Weapon

In 2009, we saw an ugly precedent prevail in Washington state. Those who opposed partner benefits—the signatories of Referendum 71 signatures—argued that those signatures should remain anonymous because of potential retaliation from the gay community. (This matter still has not been resolved.) In the past week, we have seen similar approaches to the Perry trial.

On Friday, one of the volunteers to defend of Proposition 8, backed out of the case. (Schwarzenegger and his Attorney General refused to defend it, so other sponsors “intervened” on its behalf.) Here’s what Hak-Shing William Tam had to say for himself:

On Friday, Tam told U.S. District Court Judge Vaughn Walker that he fears for his and his family’s safety. In his court filing, Tam’s lawyers say the trial will bring him unwanted publicity and expose him to retribution from gay marriage supporters.

Tam also says the case has been more time-consuming and more intrusive into his personal life than expected.

Apparently these people don’t understand how martyrdom and courage work. You stand up for what you believe in, the consequences be damned. I thought that was sort of Jesus’s MO with the whole “died for our sins” thing. I feel so much pity for this poor man and the sacrifices he had to make in the name of inequality.

Another issue at stake is having the trial televised. Judge Walker had decided that video proceedings could be uploaded to YouTube at the end of each day, but this morning the Supreme Court intervened, temporarily blocking the airing of the case. At stake is whether the “exposure could be harmful to those testifying in favor of the proposition.”

I find these tactics reprehensible, because the entire goal is to paint the gay community in a negative light. As Joe Jervis wrote today:

It appears that the Court agrees with the wingnuts that their lives are in peril from them there radical homofascists.

What is most ironic is that the success of those wishing to keep the gay community powerless depends upon painting the gay community as powerful. Clearly, we are a minority that still suffers under the whims of the majority, but the defendants find glory in the “Victim” meme, painting themselves as those who are hurt.

Hopefully these proceedings bring light to the fact that we are just trying to live our lives peacefully. We just want equality.

History in the Making

Whatever the outcome of this trial, it will undoubtedly have a profound effect on the gay rights movement and public opinion on LGBT issues. Hopefully, it will be an impetus for our leaders, including our President, to speak out on our behalf. For now, though, we can only sit back and wait.

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There are 2 Comments to "Thoughts To Consider Regarding Perry v. Schwarzenegger, the Prop 8 Case"

  • Anastasia says:

    Has there ever been a single example of violence against an anti-gay marriage supporter by a gay marriage supporter?
    I doubt that it’s the anti’s who are in danger.

  • ZackFord says:

    No, but they’ve been threatened and vandalized on occasion.

    But that’s the thing that pisses me off the most. There’s this smug superiority that they should be able to openly advocate against gay people without having to be accountable to gay people. It’s like they think they live in this bubble where they have this freedom of religion but shouldn’t have to deal with the people they don’t like. It’s absurd.

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