Thursday, August 12, 2010

Prop 8: on the other side

I hopped over to and (not giving them any links, sorry) to see if conservatives were freaking out about the Prop 8 decision. The Next Right didn't mention it at all--they are, or were when I was reading more regularly, trying to create a sane American conservatism not based on retrograde culture war and massive tax breaks for billionaires. Well, not based on culture war, anyway.

RedState had a few pieces on the decision, of which I read the two longer ones (hereand here): wrong, sometimes in subtle ways, but to their credit, they both managed to write two pages without mentioning that the judge was gay (something the defense declined to contest at any point in the proceedings). And the comments were relatively moderate, free of suggestions for armed rebellion, and with some clear peer pressure to keep the nuttiness down. This surprised me, and not only because American conservatism is a cesspool of fear-driven reactionary polemic divorced from reality. RedState's founder, Erick Erickson, called retiring Supreme Court Justice David Souter a "goat f*&king child molester" on Twitter, and that's a representative sample of his discourse.

The columns themselves have a lot of tricky fallacies (which usually amount to "Of course gay marriage is wrong, it's GAY MARRIAGE"), but the comments are more striking, and match conservative views of law and government over the past many years.

The recurring theme is a profound misunderstanding, which seems nearly deliberate, of what's in the Constitution, why it's there, what "rights" are, how the government works. See, for example, this classic Onion article.
  • "Free speech" suits the needs of the moment. Sarah Palin referred to media criticism of her as a violation of her free speech rights, and opponents of marriage equality seem to think their "First Amendment rights" including preventing gays from getting married. The honest idea of the First Amendment as supporting, say, free speech, or religion--you know, for everyone--seems less important.
  • Selective reading: one commenter said that California already treats everyone equally, because everyone has the right to marry a person of the opposite sex. The decision specifically notes that that for gays and lesbians, that's the same as not having a right to marry, and the fundamental right in question is to marry the person of your choice.
  • One comment, which I now can't find, said something like "Yes, but where's the constitutional harm?". As though the decision didn't address that in the first 3 pages and spend the remaining 135 explaining it.
  • The commenters seem very upset that one man nullified the will of 7 million California voters. One more leftist commenter responded, "Yes, those 7 million voters enacted an unconstitutional statute." I imagine if the voters of California voted some right-to-abortion law that a judge overturned, they'd be fine with it.
They seem not to understand that this was the chance to litigate this. The state declined to defend Prop 8: the proponents themselves stepped in to provide the defense, and they did an awful job, because they were holding a logically indefensible position. Most of their expert witnesses were withdrawn before trial, for no stated reason, and one of the remaining two was determined to be partly unqualified as an expert, and the other was deemed wholly unreliable because he's not an expert in anything. This was the time to throw your cards down: you think gays marrying will somehow damage heterosexual marriages? Prove it. Think straight couples are better parents than gay couples? Prove it. There was no shortage of money or fanaticism on the proponents' side, but they had a full trial in open court to prove every lie and stereotype they'd been spreading about homosexuals, and all that happened is they disproved their own points. Here's the scale of the failure:
At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was “not the legally relevant question,” but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.”
That's a bad answer to be coming from a lawyer. Especially if it's your lawyer.

There may be a twist in the epilogue: this article wonders how much farther the case can actually get: if California doesn't appeal the decision, Prop 8 proponents may not have standing to drive the appeal, since they weren't originally the defendants and only stepped in to cover for the state. And really, who's going to be able to show they've been harmed by another group of strangers being able to marry? Comedy!

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