I’ve been watching the Prop 8 trial…except not really, since SCOTUS disallowed us folks who couldn’t be in the courtroom to watch what may be the most important court case ever for GLBT people. So I watched the transcripts instead, as they were posted by the people at the Courage Campaign Institute and FiredogLake.
One of the assertions made time and again by the defense was that Proposition 8 was not based in animus.
What? No strong dislike of GLBT people? No enmity? Are we seriously expected to believe that there was no hostile attitude?
I’d like to think that one could discount those assertions as being false on there face. But this was a court of law. I am no lawyer, but as a writer and a mathematician, I know words and logic.
Having followed the trial closely, I have to ask the following.
When you deliberately choose not to learn about people who you wish to discriminate against, what is that if not animus?
First off, I would be remiss if I didn’t say
Hats off to Rick Jacobs, Brian Leubitz, Terry Partridge, Marcia Wheeler (emptywheeel) and David Dayen (dday). Yeoperson’s work, all of you.
It is difficult to oversimplify the defendants’ case, but I believe I have done so sufficiently to grasp the central points.
Here’s an summary of the opening statement by the lead attorney for the pro-Proposition 8 folks, aka the defense.
1. The limitation of marriage to a man and a woman has been universal, across time and culture. (aka tradition)
2. Marriage’s central, defining purpose is to promote procreation within stable unions. (marriage is intended to be the baby factory)
3. Too much about the effects of same-sex marriage is unknown to risk harming the institution. (imminent danger)
4. Changing marriage will lead to social harms. (more imminent danger)
5. Voters, not courts, should decide whether to extend marriage rights to same-sex couples. (the animus of the people should be supreme)
The key point I planned to center on is #5. The defense has basically been trying to argue that gays and lesbians do not constitute a suspect class, so that Section 1 of the Fourteenth Amendment does not apply as long as there is a rational basis for thinking it was okay to vote away the rights of a class of people. If gays and lesbians were considered a suspect class, “rational basis” would be replaced by “compelling state interest.”
- Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A suspect class is a class likely subject to discrimination with the following traits:
- a “discrete” or “insular” minority who
- possess an immutable trait (except in the case of religion),
- share a history of discrimination, and
- are powerless to protect themselves via the political process
The defense’s attack was a therefore four-fold. They tried to prove that homosexuality was but an illusion that really didn’t exist, that people change sexual orientation at will, that we aren’t really discriminated against all that much…and that especially not being able to marry the person you love is not discrimination…and that gays and lesbians are politically powerful people who need no help from the courts.
Why are we politically powerful? Because we have won so many protections.
Well, of course, that hasn’t happened everywhere. But according to the defense, it has in California. We have power in California. I make note of the fact that in California, Connecticut and Iowa, sexual orientation has been accorded suspect status.
I wonder if there is a connection.
The measure used for considering our power, was the stereotype of gays and lesbians as highly educated wealthy people.
By gosh that is a lot of background, and I haven’t really gotten to the point yet. The point was animus.
Assuming that all that would be needed to satisfy the court would be a rational basis for their actions, the defense apparently believed they were trying to prove that animus was not the reason behind Proposition 8, that hatred didn’t enter into their thinking anywhere. They just wanted to protect the institution of marriage…for the sake of the children.
The judge, before the beginning of the trial, made it clear that not just any “plausible rationale” for the necessity of Proposition 8 would do. He wanted evidence about the effects of its passage, the motivation of its backers, and the justification for its existence.
There were 5 defense witnesses really, although the plaintiffs had to call three of them. I wrote about Mr. Tam last week. The defense displayed video of the depositions of two other defense witnesses, who apparently decided not to testify at some point. During those depositions, the testimony of each of those witnesses (Paul Nathanson and Katherine Young, religious studies researchers who apparently study misandry…sexism against men) basically came down on the side of the plaintiffs. Dr. Young brought the subject of separation of church and state into the conversation, for instance. Both testified about the animosity of religion towards GLBT folks.
Then there were the two “expert” witnesses called by the defense. Except neither was an expert, apparently in much of anything other than what the defense attorneys wanted them to say…and they were not very good at that.
Dr. Kenneth Miller, an associate professor of political science at Claremont McKenna College, testified as an expert on California politics and American politics, with a special interest, according to his faculty website in the initiative process. The defense put him forward as an expert in gay and lesbian politics as well.
Except it turned out that he knew virtually nothing about gay and lesbian politics. And what little he did know, it turns out, had been fed to him by the lawyers for the defense after he was ripped to shreds in his deposition for not knowing anything.
I’m also an associate professor, though I am not in politics science. But this man gave associate professors a bad name.
The second witness for the defense was Dr. David Blankenhorn, founder of the Institute for American Values. I saw a video of him speaking on CSPAN, claiming to be a progressive democrat.
Somehow he didn’t manage to portray that on the stand. I hope that every one of you was raised by your biological mother and father and in turn have not been a single parent of formed a blended family or adopted a child, because children not being raised by their biological mother and father damages society, according to this guy.
And in any measurement between children being raised by their biological parents on the one hand and the rights of LGBT people, GLBT people must lose.
I don’t really care how someone defines animus for themselves. But I have to discern it in that stance.
I discovered animus in the fact that neither of the “expert” defense witnesses had ever given more than a cursory glance at the literature on the history and politics of the gay rights movement…or gay, lesbian, bisexual, and transgendered people themselves.
There was animosity in the thought that children should never learn anything about GLBT people because just doing so might cause them to grow up to be G, L, B or T.
That is doubly hard, because inherent in that stance is the fact that people who believe that would…and do…abandon their own children if they do turn out to be gay.
And thinking that marriage will be devalued if GLBT people can even touch it is the most hateful thing I can think of.
How about you?