Prop 8 Talking Points on Same-Sex Marriage for Your Next Dinner Party
Andrew Cohen
Legal Analyst
Posted:
08/15/10
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.
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.
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.
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.