Thursday, January 14, 2010


The California Supreme US District Court is currently hearing a case over whether 2008 Proposition 8 (which bans same-sex marriage in the California State Constitution) is itself constitutional. If the court rules that it is not constitutional (by the state's US constitution), then same-sex marriage would revert to being allowed in the state. This is a pretty important case as many people feel that California is a cultural leader for the entire US--not to mention its sheer size.

There has been a recent side-show as to whether the hearing would be (video) broadcast to the public. One can make an argument that public interest is served by transparency, especially in such an important case. This little debate went all the way to the Supreme Court of the United States that decided today that there should be no such coverage. The 5-4 decision (with the conservative Roberts, Scalia, Thomas, Kennedy, and Alito in the majority) was ostensibly decided on a technicality. Not too interesting so far; but let's look under the hood, shall we?

The very fact that SCOTUS even heard the case and issued a decision was based on an urgent claim of "irreparable harm" to someone. According to one source, "The Court also found that the high-profile nature of the trial might intimidate witnesses and cause irreparable harm if the rule were not stayed." However, the dissenting justice wrote (page 24-25): "I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from the simple fact of transmission itself." (This article has a good analysis.) Perhaps a broadcast on YouTube would cause irreparable harm to their cause.

So what's going on? The religious supporters of Proposition 8 are wanting have their free speech rights to make false and emotionally manipulative claims, but they are crying persecution when it comes to taking responsibility for them. Consider defendant Hak-Shing William Tam, who wrote, "On their agenda list is: legalize having sex with children," and that, "other states would fall into Satan's hands," if gays weren't stopped from marrying in California. A successful advertising campaign during the Proposition 8 election claimed that homosexuality would be taught in public schools. They want to perpetrate thuggery on gays, but they're playing the persecution card when it comes to taking responsibility for their lies--and the conservatives on the Supreme Court are backing them up. Apparently, taking responsibility is irreparably harmful to the religious.

The irony is so thick here you could build a church with it. Some supporters of Proposition 8 have gotten harassing phone calls and e-mail messages. I can't say I feel any pity for these people. They are being subject to much milder versions of the same tactics they have done to gays and others over the years. (Religious readers are referred to Exodus 21:22-25 and Matthew 7:12 for a little morality lesson and some tasty just desserts. I long for the day when the majority of gays vote on the Christians' right to marriage, just as the Christians have done to gays.) Christian death threats are a common intimidation tactic and the religion has plenty of people who are willing to carry them out. Gays have been subject to (real) hate crimes for years, most of which have been religiously motivated. Christians have made a big business out of persecuting gays. Proposition 8 itself is just part of that business. If same-sex marriage becomes normalized, they will have a much harder time vilifying gays and their red-meat lovin' constituency will turn to other pursuits and take their tithes with them.

Same-sex marriage in the US will happen eventually, but we can count on the religious fighting unfairly every step of the way.


  1. I wouldn't go so far as to say that same-sex marriage in the U.S. is going to be an eventuality. I mean it is looking likely, but you shouldn't underestimate the power of these nutjobs. Conservative (and by conservative I mean crazy fundamentalist) backlashes have occurred in this country on a number of occasions. Look what happened to the last freethought movement...a large number of the population doesn't even know about it, and even Glen Beck writes about Thomas Paine...

  2. Quick reminder: the case is not before the California Supreme Court. It is before the United States District Court for the Northern District of California, venued in San Francisco. The issue is whether Proposition 8, which is now part of the state's Constitution, violates the Federal Constitution.

    But I've no particular dispute with the rest of your post. I think all court proceedings should be as public as possible and the idea of "witness intimidation" is a significant issue in criminal cases but should not be a factor at all in Constitutional disputes, which are mainly about the law rather than about facts.

  3. "Proposition 8 election claimed that homosexuality would be taught in public schools."

    I heard that here in Maine over and over and over. It was sickening. They positioned it as though we were going to teach preschoolers all the positions.

  4. That's not irony, just the usual flagrant hypocrisy of religious activism.

    I agree with the rest of the post, the misuse of "irony" is just a peeve.

  5. Transplanted Lawyer said: Quick reminder: the case is not before the California Supreme Court. It is before the United States District Court for the Northern District of California, venued in San Francisco.

    Thanks for the correction. I've updated the post with strikeouts.

  6. Using the slippery slope fallacy and out right lying seem to be morally correct for the religious. They totally accept the primes that the end justifies the means. If it is for the glory of god then death threats are just fine. It galls me that these fine people feel that they should be the moral leaders of society.

  7. Prop 8 was the bigot's last attempt to push their agenda, after losing court rulings the only option was to set their warez into the highest law in the land.
    So by implication the LGBT side has already won by getting it back into a court dispute, and the outcome will be a formality in their favor.
    Because constitutional cases are about legal convention not considerations of arguments amongst the rabble. i.e. can constitutions override from federal to state, or are the court's necessarily bound by changes to a constitution.

  8. @ Transplanted Lawyer

    Am I correct that the issue with Prop 8 is a that it is a law attempting to deny rights to a targeted minority granted to all other citizens?

    I've been waiting for this since Prop 8 was passed. From what I've heard there's no Constitutional leg for it to stand on. Correct me if I'm wrong.

  9. @MarkB: You've pretty much got it.

    The legal problem here is that sexual preference has never been deemed a "suspect classification" people for purposes of interpreting the Equal Protection Clause of the 14th Amendment. Another issue is that until either Loving v. Virginia or passage of DOMA, marriage was always considered purely an issue of state law, not directly implicating any sort of Federal Constitutional interest.

    Therefore, we should expect the Court to treat Proposition 8 along the most deferential standard possible, which is to say that if someone can articulate a "rational interest" the state has to limit who can and cannot get married, the Federal courts will adopt a hands-off attitude towards the law even if they think it's a bad idea.

    But the hook is a case called Romer v. Evans in which an initiative statute in Colorado was struck down as violating the Equal Protection Clause because it was found to have been motivated overwhelmingly by anti-homosexual animus and therefore lacked any "rational purpose." So the law in Romer failed even that very deferential test.

    The question this trial will resolve, then, is what were the voters who voted "yes" thinking about when they voted for Prop. 8? If they were aiming at something within the legitimate scope of what states can and cannot do, even if their decision was unwise, Prop. 8 will stand. If they were simply trying to discriminate against gay people for no good reason, Prop. 8 will be overturned.

    I'm cautiously optimistic because Romer v. Evans was decided 6-3 and only one vote on the Supreme Court is llikely to have switched by the time Perry v. Schwarzenegger makes it way up there.

  10. >If they were simply trying to discriminate against gay people for no good reason, Prop. 8 will be overturned.

    Hopefully it will be as easy to demonstrate this as it is to observe it from the sidelines. I love how people try to paint over their prejudice and bigotry with wild claims of real harm to come.

    I'm a married woman, and have no clue how gays getting married would negatively impact my relationship. You'd think that if it really would undermine "the institution of marriage"--I'd be all out to stop it as well. But no argument I've been presented with has ever been anything but laughable...? I hope the justices share my sense of humor.

  11. @ Tracy

    The closest thing I can find is the "marrying dogs and cats/pedophilia" slippery slope. Which has the dishonest idea that 'we're not against gay marriage we're against this unrelated blatantly illegal thing' Which you take would be to take steps to make sure the thing you are against is outlawed...not going straight for the collateral damage.


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