Eerie silence from anti-same-sex marriage legal minds after Prop 8 ruling

Round one of the federal Prop 8 trial ended last Wednesday when Judge Vaughn Walker released his findings, handing the pro-same-sex marriage side a resounding victory. The trial was a historic event because for the first time in America history, homophobic people (who claimed repeatedly they were not homophobic) were forced to present evidence supporting their views in federal court and they failed spectacularly. Stripped of innuendo or recourse to religious doctrine, there was nothing for them to say. The lead anti-same-sex-marriage lawyer, Chuck Cooper, even let slip during closing arguments that felt he didn't need to offer evidence (ctd at p 10 in Walker's ruling). That won't fly anymore.

Digital ink was spilled across the web celebrating the eloquence and rational underpinnings of Judge Walker's decision, as well as its canny construction. It was designed to appeal to Justice Kennedy, who will be, as usual, the swing-vote when the case inevitably arrives at the Supreme Court in a year or two. (Dahlia Lithwick offers an excellent analysis in Slate). For me what was most interesting were the reactions from people opposed to same-sex marriage in the wake of this defeat.


The political pressure groups whose purpose is to ensure that gay people don't have rights were predictably apoplectic (as this roundup shows with aplomb), but it was all but impossible to find socially-conservative commentators who had anything to say about the legal arguments in the ruling or indeed the facts in the case. Judge Walker's ruling has 80 different findings of fact so presumably there must be something that someone can argue against by bringing contradictory evidence. But no one bothered. Instead commentators on the Right have made their usual tired case about "liberal activist" judges trampling the will of the people to invent rights for people who don't deserve them (moaning about the "sanctity of marriage" is especially rich coming from twice-divorced Newt Gingrich) and have stated that Judge Walker should have recused himself because he is himself gay (albeit not publicly out of the closet).

The first argument is irrelevant since the Supreme Court's own precedents establish the idea that minority rights are not up to a vote. That's because, as the framers of the Constitution well understood as they created a system of checks and balances, the majority cannot necessarily be trusted to safeguard the rights of a minority. (See below for some surprising facts about opinions concerning interracial marriage.) The judicial overreach meme is also completely hypocritical since the Supreme Court's recent decision overturning of scores of gun control laws across the country or the Citizens United decision that opened the way to unlimited political contributions by corporations were not called "activist judging" by these same commentators. Judges who make sweeping decisions are only activist if you disagree with them (a point which Ted Olson made eloquently on Fox News). The second argument, that the judge should have recused himself, is disgraceful (see Andrew Sullivan's take here). Do divorced judges recuse themselves from divorce proceedings? Do female judges recuse themselves from trials involving battered women? If, as the anti-same-sex marriage side argued (albeit without evidence) same-sex marriage hurt heterosexual marriage then wouldn't a heterosexual judge also have to recuse himself? As I argued a few months ago during the Sonia Sotomayor confirmation hearings, the problem here is that old, White, well-off, heterosexual men often mistakenly believe that old, White, well-off, heterosexual men have an unbiased view of the world while everyone else is necessarily biased. (Walker has the old, white, Well-off part down--he is a George H.W. Bush appointee--but he happens to be gay. There is an irony that most of the trenchant critics of homophobic legislation in the judiciary were appointed by Republicans.)

But what of the few bloggers who did actually address the substance of the ruling? It truly amazed me that they addressed the findings only in order to deploy the "slippery slope" argument, the weakest rhetorical device on the planet. Basically, they said (as The Atlantic summarizes) that all of Walker's arguments could be applied to polygamy or indeed to underage marriage: If A is the case [gay marriage] then it follows that B [polygamy], C [underage marriage], etc will happen. The slippery slope argument is weak because it has hollow core, namely the "it follows" part which adduces a necessarily hypothetical (not a proven) connection between A and B, A and C, etc. Evidence supporting the hypothesis is not offered 99% of the time the slippery slope argument is deployed. This kind of rhetoric collapses under any scrutiny.

Obviously polygamy will not follow because marriage is a contract between two people as it always has been in American law. To make same-sex marriage happen, you just replace "Husband" and "Wife" on the marriage license with "Party A" and "Party B" whereas in polygamy you have some questions to answer: Who is married to whom in a polygamous relationship? If a man has two wives and he dies, are the two wives still married to each other? Clearly this is a very different case from same-sex marriage, as David Link has argued. It is the same with child marriage (or bestiality or whatever), which I am so tired of hearing about. Marriage is a contract and society (and American law) recognizes that children cannot enter into some kinds of legal agreements. So basically we're back where we started: No one has been able to attack Judge Walker's reasoning except to make a milquetoast argument about the slippery slope or by arguing that gay marriage has not been a fact of American life until recently (which is not an adequate reason since after all women owning property and having the vote is a pretty recent development).

I was not surprised by the lack of any legal analysis of the court's findings (because to my mind there is no response to Judge Walker's cogent, fair-minded arguments except "we don't need evidence because this is the way it's always been"), but it did amaze me that other than the anti-gay groups, the response from the Right-wing establishment was almost non-existent. Rachel Maddow did a entire segment on Thursday joking about the possibility that Republicans are luring President Obama into a trap in which he will be forced to explain his actual views on the subject (his public views are totally incoherent: he's against gay marriage but also against Prop 8 and for gay and lesbian equality but only if equality means civil unions and not marriage even though he made a statement in support of gay marriage when he was a state senator). Nate Silver, the political number cruncher extraordinaire, thinks that it is "cynicism not progress" keeping Republicans from using the issue as a wedge this November. He thinks that immigration and the so-called "Ground Zero Mosque" (which is not actually a mosque but an Islamic community center and not actually at Ground Zero) have made gay rights a distant third in terms of wedge issues.

The political fall-out of the decision aside, I am glad that rationality has prevailed. The Economist's headline, "O learned judge" (a quote from the Merchant of Venice) says it all for me: Even though there are people who are religiously opposed to homosexuality, the secular machinery of the state cannot cater to their prejudices but must do justice. Now we await the appeal to the Ninth Circuit and the Supreme Court.

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Bonus: People have argued, with conviction and sometimes good reason, that courts should not be in the business of "social engineering" (whatever that means exactly). The example inevitably offered is that when the Supreme Court struck down the remaining state laws against interracial marriage in a unanimous decision (Loving v. Virginia), it was only after all but sixteen states had done away with the statutes prohibiting it. But as it turns out the Supreme Court was way, way ahead of public opinion. This amazing chart of a Gallup Poll measuring attitudes to interracial marriage shows that in 1968, the year after Loving v. Virginia was decided, 73% percent of Americans disapproved of interracial marriage. Incredibly, it was not until the mid-nineties that a majority of Americans supported interracial marriage. By the crazy populist arguments against gay marriage, laws against interracial marriage should have stayed on the books until fifteen years ago. [Update 12 August:] For gay marriage the process is perhaps accelerating, since the first reputable poll ever to show a majority of Americans in favor of same-sex marriage came out this week.