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Sorting out legal entanglements of Prop. 8 |
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Written by Byron Williams
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Saturday, 11 December 2010 |
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 If you, like me, are fascinated by constitutional arguments and arcane legal procedures, the federal appeal court's three-judge panel that recently heard oral arguments for Proposition 8 was definitely to your liking.
Judge Vaughn Walker's decision overturning California's ban on same-sex marriage moved into its second phase of what many believe will reach its crescendo in the chamber of the U.S. Supreme Court.
Since California Gov. Arnold Schwarzenegger and state Attorney General Jerry Brown declined to defend Prop. 8, the issue of legal standing dominated this week's proceedings.
Did the sponsors of Prop. 8 have the legal standing to argue the case? In other words, were they effective in demonstrating how they were harmed by Walker's decision?
I heard nothing from Prop. 8 proponents that would suggest they were uniquely harmed by the marriage of a gay, lesbian, bisexual, or transgender couples.
Then again, I'm not an attorney; and the only bar I've passed is my local tavern. Nor am I an unbiased observer since my support for same-gender marriage has long been established.
Very early into the proceedings, it became clear the fear, emotion and deceitful arguments that played well in 30-second sound bites during the campaign were not as effective in a court of law. Charles Cooper, an attorney arguing on behalf of Prop. 8 proponents, said the state has a "reason" to distinguish between gays who cannot procreate and heterosexual couples, without ever stating the actual reason.
One of the judges responding to Cooper wondered what exactly is the rational basis for providing every right to gay couples, but withholding the title of marriage. The result reduces the argument to a single word.
Cooper agreed stating: "The word (marriage) is essentially the institution."
Is that what this debate has been about -- preserving the definition of a word in perpetuity that has undergone an evolutionary process for thousands of years?
Judge Michael Hawkins asked Prop. 8 proponents, "Could the people of California reinstate school segregation?" The response was a quick and unequivocal, "no" because it would be inconsistent with the Constitution.
The response reaffirmed what I have always felt to be at the foundation of the argument in support of Prop. 8 -- gay and lesbian citizens are somehow less than equal and, therefore, do not deserve the full rights of citizenship reserved for other Americans.
That obviously is a politically incorrect argument, laced with the toxins of homophobia, so the arguments have taken on different emotional appeals.
One of the most effective questions among Prop. 8 proponents has been: "What about the children?"
Without a shred of data, simply asking the question raises the possibility with some that there is a dysfunction within the gay and lesbian family structure that does not occur with heterosexuals.
We don't know what that something is, but if it's worse than the high divorce rates and social destabilization occurring in heterosexual families, it must be bad.
The unfortunate aspect of these court proceedings, necessary as they are, is it only has room for winners and losers, engulfing the teachable moment that is crying out to be liberated from the shackles of emotionalism and political agendas.
Though there is an aspect of the debate that is the undeniable hatred of gays and lesbians, I don't believe a majority of Californians are homophobic.
Burdened by an unpredictable economy, ongoing housing crisis and the failures of state government, aside from the highly publicized court hearings, most have not given much thought to their support of Prop. 8 two years ago.
The majority of those I've engaged with who supported Prop. 8 never considered the 14th Amendment's equal-protection clause. They only saw it from the perspective of emotion-based messaging that appeals to the fear of the unknown.
It is in the teachable moment, not in a courtroom or political campaign, where fears are debunked and shared values emerge.
Theologian Reinhold Niebuhr reminds us that groups tend to be more immoral than individuals. While Niebuhr offered this observation on the behavior of humankind, it is also applicable to the stereotypes we hold.
When the debate centers on gays and lesbians, however one feels about the group will often determine one's actions. But when the debate focuses on Steve, who among his many qualities is also gay, that invariably produces a response based on how one feels about Steve the individual.
It is usually in the latter example where one also finds the teachable moment that allows us to progress as a society.
At this point, that can only be accomplished once we've sorted out the legal entanglements of winners and losers.
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