Prop 8 trial: Backers have no case

Posted on 28 Jan 2010 at 3:31pm
By Jennifer Vanasco | Jennifer.Vanasco@gmail.com

Without the usual ‘gays recruit children’ scare tactics, lawyers for Prop 8 had little to work with

If there was one thing we learned during the Proposition 8 trial over the last three weeks, it was this: Prop 8 people have no good argument against gay marriage.
Many of us already knew that in our hearts, if not completely in our heads. After all, how could they?

We knew that our relationships are just like straight relationships. We knew, from the inside, how committed and loving and strengthening they are.

Even so, when Perry v. Schwarzenegger began, I was worried. What well-crafted argument did they have that would keep gay Californians from marrying?
The answer is: There isn’t one. There is nothing behind the curtain. The Prop 8 side is still arguing their case as I write this, but it is clear.

Our case against Prop 8 relies on Ted Olson and David Boies proving that we are a suspect class — that is, that sexual orientation is immutable (like race or place of origin), that we share a history of discrimination and that we are politically powerless to protect ourselves.

Also, because the Supreme Court, in Romer v. Evans, found that a law that forbids seeing gays and lesbians as being just such a protected class was unconstitutional partly because it was motivated by animus — hostile dislike — Olson and Boies tried to show that the only reason Prop 8 passed was because straight voters didn’t like gay people, and that sentiment was encouraged by the Prop 8 campaign.

Because these were the lines of the case, something interesting happened: The lawyers who supported Prop 8 couldn’t say that gay people are immoral (that might seem like animus and isn’t a legal argument anyway).

They couldn’t pass off all their old tropes as facts — that gay people recruit children, say, or that being gay is a sign of perversion, or that gay marriage would lead to polygamy.

And they had to partly prove that the country likes us, that we are tastemakers, that we are legitimate players in the political process. They nearly crowed over anti-discrimination laws, touting the fact that 21 states and more than 140 cities and counties have passed anti-discrimination laws. In other words, they were trying to show we were ordinary and just like everyone else.

The result is that they had nothing. Without hate, without the ability to pretend that gay marriage will lead to beastiality or incest, without being able to prove in a court of law that gay marriages hurt straight marriages, they were left with this:

1. The purpose of marriage is natural procreation and raising children created from that union.

2. Marriage is traditionally between a man and a woman.

3. The state has a strong interest in protecting natural procreation and what is traditional.

Plus, weirdly, they had to say that the most devastating portrayals of who gay people are had nothing to do with the actual Prop 8 campaign, but were instead crafted by crazy outliers.

That’s right: The Prop 8 lawyers had to basically say that the claims that gay people are perverts/child molesters/polygamists-to-be are all nuts.
I wish America could have seen this trial.

After the first few days, it stopped making front pages and likely won’t again until the judge makes his decision.

I never saw it trend on Twitter. If you weren’t watching for it, scanning the news for it, faithfully following the few Twitter feeds coming directly from the courtroom, you may not have really known about the case at all.

I wish America could have seen it live, because this Prop 8 case, like nothing else before, laid out a case both for gay normalcy and for gay marriage.

And it showed — clearly, distinctly — that the Prop 8 campaign (and its supporters and its voters) didn’t just have a case we didn’t like when they took away the right for gays and lesbians to marry in California. They literally didn’t have a case against gay marriage at all. 

Jennifer Vanasco is an award-winning, syndicated columnist. Follow her at Twitter.com/JenniferVanasco.

This article appeared in the Dallas Voice print edition January 29, 2010.

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