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Prop 8 Talking Points on Same-Sex Marriage for Your Next Dinner Party

5 years ago
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In the 10 days since U.S. District Judge Vaughn Walker issued his landmark same-sex marriage ruling in California, there has been an astonishing amount of public debate over the topic, his decision, the Constitution and the role of popular will as expressed in the law.

Much of the debate has been interesting. A lot more of it has been downright silly or just plain cruel. In drawing out Americans for their views on marriage and equality, Judge Walker's gauntlet has unintentionally but embarrassingly exposed, from sea to shining sea, some fundamental misunderstandings about the law and power and the rules of the road.

Proposition 8 Since everyone is still talking about same-sex marriage and Proposition 8, it might be helpful to have a list of talking points in case you stumble across someone -- at your kid's soccer practice, in line at the post office, at a dinner party, while watching cable news -- whose opinion of Judge Walker's ruling is as pronounced as it is unfounded (or just plain ignorant). If and when this occurs you can simply reel off one of these passages instead of faking a seizure, pretending that you just received a text message, or chewing off your arm to change the subject . . .

Argument: "One Judge Conquers All"

The first 10 amendments to the Constitution -- what we know as the "Bill of Rights"-- were drafted and enacted precisely because their brilliant tribunes believed and understood that minorities would, from time to time, need and deserve formal and explicit legal protection from the tyrannies of the majority. They represent foundational truths about our brand of democracy -- that the power of our vote may in certain circumstances be limited, that the majority's rule and role is not absolute, and that mob rule -- whether via vigilante or ballot initiative or legislative fiat -- should not and cannot overcome the principle that we all have individual rights and freedoms and privileges and protections.

In other words, just because 52 percent of a people in a place say they want something done doesn't mean what they want done is lawful.

To life-tenured judges, our Framers then gave the job of sometimes saying "no" to the whims and caprices of the majority. It's in Article III of the Constitution. They did this because they wanted someone within the three branches of government to be professionally and politically immune from the sort of slander and libel being tossed these days at Judge Walker.

The same concept -- individual rights over government action -- which gave Second Amendment supporters their vast victories over the past three years, applies to the same-sex marriage debate. Why are some judges praised and some tarred for going against the popular grain? Say all that to your neighbor the next time she says to you, about Prop 8: "The people speak, and then this federal judge walks in, and imposes his will over the will of the majority."

Argument: "Gay Judge Was Biased"

Judge Walker was first appointed to the federal bench by President Ronald Reagan and, later, by President George H.W. Bush. He has been consistently conservative -- and occasionally iconoclastic -- and has served with distinction for decades. He has earned the respect and friendship of many of his colleagues on the bench, including those federal judges who were appointed by Democratic presidents. Whether Judge Walker is gay or not, no court anywhere is going to take seriously a challenge to the same-sex marriage ruling based upon the premise that a biased-because-he's-gay judge made it. The record is brimming with examples where Judge Walker went out of his way to urge on Prop 8's lawyers to better supplement their arguments with evidence. In fact, I found these efforts unusual and, in writing about them, bordering on the remarkable.

One same-sex marriage advocate, a litigant in the big case, wrote in The Los Angeles Times this past week: "Much like a suggestion that a female judge could not preside over a case involving sexual harassment, or an African-American judge could not preside over a case involving race discrimination, Proposition 8's supporters are suggesting that a judge will rule in favor of any litigant with whom he shares a personal characteristic. This is an absurd proposition."

Indeed it is, and by far the ugliest of all the propositions offered up in the wake of Judge Walker's ruling. So if, at your next school PTO meeting, someone sidles up to you and says, "Of course the gay judge would rule that way," you can quickly pivot and say: "Actually, Judge Walker ruled as he did because the Prop 8 lawyers presented virtually no evidence supporting the measure at trial." And then you can turn and hand in your visitor's badge to the nice lady at the front desk before you leave the school.

Argument: Biased Judge Ignored Law, Evidence

Walker's ruling last week was grandly one-sided for a very simple reason: The trial he presided over was grandly one-sided. And anyone who claims otherwise either didn't follow the trial or doesn't care to accept the truth. In fact, the Prop 8 trial was the most unequal match-up I have ever seen in a major constitutional case. Not only did Prop 8 foes Ted Olson and David Boies thoroughly trounce Prop 8 supporters Charles Cooper and Company, the evidence that found its way to Judge Walker was a monumental mismatch as well. As Boies later put it, when Cooper's two -- and only two -- witnesses came into court under oath, their arguments against same-sex marriage and in favor of Prop 8 just "melted away." Have you noticed anyone defending the defense of Prop 8? Me neither. There's a reason for that.

What was Walker supposed to do in these circumstances? Pretend that the Prop 8 witnesses proved more than they did? Pretend that the Prop 8 lawyers satisfied their burden of establishing a legitimate or even rational basis for the measure? Undercut or discount the credibility of the experts who came forward against Prop 8 and in favor of same-sex marriage to make it a closer call? Of course not. The rout of Prop 8 as evidenced in Walker's ruling was a direct and proximate cause of the rout of Prop 8 that occurred when the lawyers tested their evidence against one another in his courtroom. This doesn't guarantee that the judge will be upheld on appeal. But it ought to protect him against the allegation that he stacked the scale for the anti-Prop 8 forces; the scale didn't need any further tipping.

So say that at the beach this week, when the guy sitting in the sand next to you is lecturing his pals about how biased and inaccurate the judge's ruling seems to be. Ask him to point to one proven fact in favor of Prop 8 established during the case. If nothing else, he might move and open up more space for your chair and blanket.

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For those of y'all who think that same-sex marriage will "ruin the sanctity" of marriage, please look up the story on PD titled "The Un-Divorce" and tell me that the sanctity still exists. Also: Drive-through weddings, Britney Spears' 48-hour wedding, etc. etc. ad infinitum. There truly is no logical LEGAL reason why same-sex marriage is not fully supported. Regarding your religious rights, if two men or two women came into your church asking to be married, yes, you would have every right to turn them down. They can then step outside and go to one of the thousands of churches nationwide (found here: that are willing and happy to marry a same-sex couple...but who is defending the religious rights of these churches? Shouldn't they have the same right to practice their religion as you do?

August 18 2010 at 4:27 PM Report abuse -1 rate up rate down Reply

Now that the next decision will be taken up by the 9th Circuit Court of Appeals it is up to those to show where this law does not violate the constitution of the Republic of the United States of America. Then it will surely be appealed by either side win or loose to the Supreme Court if they decide to hear the case.
For those of you that say that "marriage" is a religious term. You would be correct, but it is also a legal term used in the court system as well. Those of you who keep pushing your religious beliefs have all the right to voice those beliefs. I will stand by you and agree with you on that point. But, you know, your rights end at the tip of your nose. As long as you are not infringing upon another person's rights you can thump your Bible, Koran, or Torah all you want. I support you and respect those rights. You should let others excercise their rights as you do with freedom.
We all know that you are holding onto the last threads of your defense and hiding behind the wall of your religion. Believe me when it is said, "The gays know you don't want them in your places of religion"! I am sure most gays would be happy to let you live in your own little world of your own holding those religious beliefs. I know speaking for msyself when I say this, "more power to you".
I do think that it is not really a religious issue for most of you that are protesting the decision by the judge to invalidate prop 8. It is simply that you don't want others to have the same privilidges as you do. You are just like spoiled children saying "mine, mine, all mine".
There has been not one person who has made a real case where letting gays live their lives without the love and care of religious bigots trying to steer them away from sin. We are all grown ups here. Also, why is it that you people who profess religious reasons are all concerned what gays do in the privacy of their own home? Are you jealous and you are mad because you can't involved yourself?

August 16 2010 at 9:54 PM Report abuse +3 rate up rate down Reply

ok now here this here is how to solve the gay marriage problem --make a new law that repeales taxes for married copules make married and singles pay the same taxes and get the same medical insurence benefits--eliminate the marriage equation

August 16 2010 at 8:11 PM Report abuse -1 rate up rate down Reply

Ask them about the FEDERAL law that defines marriage as between one man and one woman. Ask them if Judge Walker ruled that the federal law was unconstitutional too.

August 16 2010 at 8:05 PM Report abuse -6 rate up rate down Reply
1 reply to Joey's comment

Some day, that will also be challenged in Federal Court over issues such as survivors rights to spousal social security benefits, and access of a same sex spouse to their spouses VA medical benefits. Citizens of states that affirm the right of same sex couples to marry and have state income taxes create the burden of the couple being subject to two different ways of filing and planning their taxes two different ways. The concept of civil union also requires the couple to pre-file to preserve the right of health care decision making or it can (and often is) readily set aside by Hospitals and Doctors. This isn't just a theoretical discussion of your or my view of what I believe about gay marriage. There are legal issues of equal access involved here as well.

August 21 2010 at 10:26 PM Report abuse rate up rate down Reply

Marriage is a Biblical term just as Bar Mitzvah is a Jewish term, and to have someone commit a sin according to the bible (homosexuality) and then asked to have their sinful relationship recognized with the same label as a wedded couple is an insult to my faith. It would be as if a 16 year old non-jewish boy wants to have a drunken (sinful) party for his birthday, and call it a Bar Mitzvah. That would also be a slap in the face to Jews the world over. If Gays want to be joined in a Civil Union in the eyes of the Government and receive the same legal rights as married couples, I could care less. They will answer to God in the end for the sin. Just don't expect me to sit by and have you spit in the face of my religion or my belief by hijacking a term that literally means a man and a women joined in matrimony in the eyes of the Lord.

"Let marriage be held in honor among all, and let the marriage bed be undefiled, for God will judge the sexually immoral and adulterous."

—Hebrews 13:4

August 16 2010 at 7:44 PM Report abuse -8 rate up rate down Reply
1 reply to Rich's comment

Oh, Rich. Thankfully we don't live in a theocracy. It always amazes me when "Christians" point to the Bible and say "Traditional Marriage". You know what else in your book? Gensis 2:24 (A nuclear family); Deuteronomy 25 5-10; Brother-in-Law marries his brothers wife; Genesis 4:19...and many, many other references for Polygymous marriage...MEN can have many, many wives. Women can only have 1. (Gee, even then women were looked on as property). Genesis 29-30: Man, Woman and SLAVE(s). Deuteronomy 22:28-29: Raper and Rape Victim. Genesis 22:24 (and others). Man and Woman (or wives) and throw in some Concubines too! Numbers 31:1-18: Male Soldier and female prisoners. And less we forget the Bible is FULL of enlightened, well-reasoned commandments like when a women is having her period she is "unclean" and therefore not to be permitted under her husband's roof. Do these sound like the laws of a modern, enlightened (have to use that term because, as a species, we ARE more enlightened than say, we were 2,000, 3,000, or even 5,000 years ago.) society? Would we want to change our current marriage laws to encompass the above Biblical practices? Of course not. Marriage has been and always will be an evolving institution.

And furthermore, one of countries greatest beliefs is the principle that the rights of the minority are NEVER voted on by the majority. (That's why the founding father's, in their wisdom, created the THREE branches of government. The Judiciary branch is there to correct the Legislative when, as in this example people vote to deny marriage benefits to Gays and Lesbians.

When it comes right down to it Rich, the marriage of Adam and Steve does not affect YOUR marriage. You keep doin' what you're doin' and praying to your G-d. It's called live and let live.

August 17 2010 at 10:21 AM Report abuse +1 rate up rate down Reply

We don't take votes on rights..they are inalienable which means not up for discussion. Why, pray tell me, are conservatives always trying to take away rights? Ever seen a conservative who believed in granting rights other than gun rights? It totally confounds me.

August 16 2010 at 5:41 PM Report abuse +9 rate up rate down Reply
At Last DS!

Article 111 of the Constitution says NOTHING about protection from "tyrrany of the majority." Again, NOTHING. I've been overruled at the polls many times. I accepted it believing that the majority ruled. Little did I know that it doesn't
matter nor does logic apply any more. I'm fed up. Gays are now afforded most of the priveleges of marriage except tax exemptions - Let them have it but don't call it marriage. Doing so will legitimize that which isn't, opening up another horrible can of worms for no good reason. Their agenda is simply to indoctrinate innocents to believe that their life style is normal. They are a minorty in this world and I don't see why we're expected to buy into their agenda. They don't buy into mine.

August 16 2010 at 2:59 PM Report abuse -1 rate up rate down Reply
3 replies to At Last DS!'s comment

This is a well reasoned article, it present valid answers to comments being made. However, it is unfortunately a waste of time. Those who support prop. 8 are not interested in reasoned thinking, legal points or justice. They would reather live in their ignorant biggotry. They have all of the answers, don't confuse them with the facts.
If the judge is gay, and I say if, and therefore in someway unfit to decide this case because he could beneifit from the ruling, the lawyers for prop. 8 should have challenged his assignment to the case at the start of the trial. But think about it, if being gay means he could benefit from the judgement, couldn't the same be said if he is straight? If civil partnership is equal to marriage, what benefits would he gain by the judgement? The pro prop 8 folk have painted themselves into a corner, and now can find no way out, except outlandish claims of biais.

August 16 2010 at 10:32 AM Report abuse +10 rate up rate down Reply
1 reply to revblueroof's comment

Love the quote by Gandhi. "I like your Christ. It's your Christians I do not like. They are so un-Christlike."

August 17 2010 at 10:25 AM Report abuse +1 rate up rate down Reply

Also, the judge ruled as he did to remove his temporary stay of his order overturning Prop. 8 because the litigants could list various ways gays were being harmed by prohibiting gay marriage, while those defending Prop. 8 could not list a single way anyone would be harmed by allowing gay marriage. Those who support Prop. 8 simply have no valid legal arguments.

August 16 2010 at 5:22 AM Report abuse +1 rate up rate down Reply

The judge is in a long term relationship with another man and is a resident of California. Therefore, he may be a direct beneficiary of his own ruling. Obviously, he should have recused himself.

This was hardly a 'whim' by the electorate. There were sustaing 10,000 years of human history. It was the judicaiary that was 'whimsical' when they allowed gays to marry. W

August 16 2010 at 1:10 AM Report abuse -7 rate up rate down Reply
2 replies to jbernardg's comment

If he was in a long term straight relationship, he would also gain from ruling the other way. If a (reportedly) gay person would possible gain from the ruling going one way, and a (self proclaimed) straight would possibly gain from the ruling going the other way, where do we go to get an unbiais ruleing?

August 16 2010 at 10:47 AM Report abuse +1 rate up rate down Reply

Yeah - the gay judge gains about as as much as an african-amrerican "gains" from civil rights legislation. Except, the Gay community does not seem to have support from african-americans so I do concede that there is a big question there.

August 16 2010 at 11:56 AM Report abuse +2 rate up rate down Reply

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