a lot and nothing

So we had an amazing, excruciating trial, an agonizing wait, an exhilarating victory, a crushing stagnation in the form of the hold on the ruling, and now we have another wait, this one more frightening in a number of ways.

I feel I should say something about how my opinion on the court case changed between first learning about it (when I feared the worst) to the first rough summary of a day in court (when I was pessimistic and wary) to actually reading the details of the day (when I began to hope) to suffering through the history lessons and the dehumanizing arguments and general ignorant questions while getting more and more optimistic as the other side failed to produce any legal argument. Because that's what happened, and it's not documented here, so it looks like quite a jump from thinking the court case was a terrible idea to loving the ruling. It wasn't -- it was a very painful, wonderful process.

The reason I'm posting, then, is partly to clear that up, but mostly because, though Prop. 8 is unlikely to be resolved before 2012, we do have an election coming up, and I have to say something about the biggest part of it -- the gubernatorial race. As an advocate of equality, I have to say I'm terrified now -- as terrified as I was by Prop. 8 -- by Meg Whitman. I'm terrified by her anti-gay stance, I'm terrified by her anti-immigrant stance, and I'm terrified by her anti-feminist stance. As a student, I'm also terrified of her threats to cut back on education more ("cut waste" was how she worded it, but I can promise you, my school's long since done that.) California is desperate and the worst possible thing we can do in this situation is let the education system get weaker. Lower-quality and less accessible education -> fewer people qualified to do high-paying jobs -> less tax revenue in the future -> less funding for education -> even lower-quality and less accessible education -> the economy goes down the toilet at about warp 9. Oh, and a less educated populace is also one more likely to commit violent crimes, petty theft, and other such crimes, so we're also talking about a less safe society here.

So I'm currently raising funds for Jerry Brown, because (besides not being Meg Whitman) Jerry Brown has a great track record on LGBT issues (he signed the law legalizing gay sex in California in his last stint as governor, among other things) as well as on women's issues, other equality and representation issues, the economy, and the environment. And he understands the importance of education. And he's behind in the polls, because Whitman's filthy rich and has been spending a ton of money on dishonest and sneaky ads (though given how much she's been outspending him by, he's holding his own very well). So I figure this is the right thing to do, for myself and for California, at present.


the first federal ruling: in plain English

So you've all probably seen the news about the current court case. You've quite probably also seen quotes from the ruling, and you may have read the entire thing. What I suspect, though, is that people who are less involved will look at that huge document full of legalese and their eyes will glaze over, and people who don't approve of the decision will definitely not read it. So I want to provide the Lazy American's Abridged Ruling here, which will attempt to cover the whole thing in plain English, as concisely as possible. (This will still be long, because the decision is 136 pages, but you can read it in a sitting or two.)


The first two pages are names of people involved in the case and information about the court, and the table of contents. The first page following (numbered page 1; I'm going to use the numbering scheme they use) has a description of what Prop. 8 is and why it's being challenged, namely that it "deprives [GLB people] of due process and of equal protection of the laws contrary to the Fourteenth Amendment." (Text of the Fourteenth Amendment: here.) Page 1 also describes the plaintiffs, two couples (one couple of men, one of women) who couldn't get marriage licenses due to Prop. 8. It notes that there was no other reason suggested that these couples could not marry. The next several pages cover the history of Prop. 8 and Prop. 22 before it, and the history of the court case itself (who moved what, when, etc.).

The meat of the thing begins on page 5, when the arguments against Prop. 8 are presented. In short, the argument is that Prop. 8 violates due process because it prevents people from marrying who they choose, while the Fourteenth Amendment says the state can't intervene in that choice without a good reason (huge paraphrase; this, I gather, is what courts have understood in the past, with regards to interracial marriage and similar) and domestic partnerships aren't an acceptable substitute for marriages, so their existence isn't enough to cancel this problem.

Then we get into the equal protection part, which boils down to GLB people being restricted from marrying the people they want to marry while straight people aren't (thus, unequal treatment) with a note that "gay men and lesbians" are a "suspect class" (laws discriminating against "suspect classes" are harder to legally justify, so it's important that this is the term used here). One last important point is that the argument is given that it's not just discrimination on the basis of sexual orientation, but also of sex -- remember that, that'll be important later.

Page 6 starts the counter-argument from the pro-Prop. 8 side, which includes campaign advertising. There's a bulleted list of the "key premises" of the campaign at the bottom of page 7, boiling down to "protect marriage and children" and "opposite-sex couples are better (for childrearing and just because) than same-sex ones". (I'm not making up that "just because" -- it's in legalese there but very clear.) Page 8 provides a list of reasons given in the legal case, which are different and boil down to "promote opposite-sex marriage because heterosexuals can have children without special effort and because children should have a father and a mother, and keep same-sex couples from marrying because the voters and the state have said they want to". (Again, not making it up; this is the judge's summary summarized.) Here is also where the ruling notes that the Prop. 8 side argued very narrowly.

Page 9 continues to describe how the Prop. 8 side argued, and it's not very favorable. Basically, it's denials of everything the No side said (of course) and incompetence. (The pro-8 lawyer admitting that he "didn't know" how same-sex marriage negatively impacts the state's interest in promoting "procreative" heterosexual relationships is simply quoted, as though it's so weak a description wouldn't do it justice, which is true.) The "expert witness" the Yes side presented, David Blankenhorn, gets mentioned, and is dismissed -- later more on that. The argument that procreation within marriage should be promoted, therefore no gay marriage, is outlined in detail on page 10.

Page 11 is background. Page 12 is the couples in the case's explanation of what marriage means to them, segueing into the experts on the case (Nancy Cott on the No side, Blankenhorn again on the Yes) defining marriage and talking about its history. Cott says it's a choice to commit to a certain kind of relationship, Blankenhorn says it's either a socially-accepted sexual thing between a man and a woman to have kids (barely paraphrasing the ruling there) or a "private relationship between two consenting adults" and then there's discussion of the history of the term and contract. (Pages 13-15 if you want to read the details.) Page 15 includes expert opinions on the benefits of marriage. Interesting note here: on page 14, Blankenhorn actually admits that SSM "would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be 'a victory for the worthy ideas of tolerance and inclusion'" but still opposes. Expert witness, eh? Conclusion on page 15 is that there's no evidence that California "has an interest" in banning SSM.

Page 16 begins a discussion of whether SS couples are "different" in any important way from opposite-sex ones (expert witness shows evidence that they aren't). Definition of sexual orientation comes up here, defined as a pattern of attraction to one or both sexes and/or the identity based on that, and "also sometimes used to describe an enduring pattern of behavior" and that "the vast majority of people" do not change their sexual orientation. Expert testimony on childrearing (is it bad for a kid to be raised by a SS couple? answer: no) and whether Prop. 8 increases stigma against GLB people (yes) follows. Dispute between Blankenhorn and No side expert over whether biological parents are better leads to Blankenhorn contradicting himself. (Adoptive parents average better in some areas, and he admits it after insisting that biology is way way important.) Then we look at the economic impact of Prop. 8 on the couples who can't get married, and veer back into the psychological -- both are negative. More on stigma. Finally, conclusion on page 20 that it's not in the state's interest to "differentiate" between SS and opposite-sex couples (can I say "OS" too, or is that too slangy?)

Doing all right there? Heh. Now (starting page 20) we talk about the "morality" issue. See, if this is a law meant to legislate some people's idea of morals, it's suspect, so the Yes side's been trying to deny that part. We get some interesting history here on the history of "protecting the children" (Anita Bryant is the name we don't get here, but did in the argument itself) as depending on the stereotype of gay people (really, men, but they don't say so) as child molesters despite the scientific evidence against this stereotype. More history and stereotype discussion follows. Then we get the Yes campaigner, Hak-Shing William Tam, who -- I can't describe him properly; if you don't read another page of the ruling, read page 22. More on the harm done by the campaign and the law, psychologically, and some more on financial problems for the state caused by Prop. 8. Conclusion notes that the voters' opinions hold great weight, but since this is a law that is potentially harmful to people it has to be based on more than some people's "disapprobation" of the people being hurt, and Prop. 8 "finds support only in such disapproval" so it fails that test and can't be resolved just by a majority vote.

Page 25 starts a discussion of the witnesses and their credentials, including the couples bringing the case, the mayor of San Diego, Tam the pro-8 extremist, and some gay witnesses as well as the experts. Interesting part here is, on pages 35-37, the number of Yes witnesses who dropped out, even when they knew they wouldn't be recorded/broadcast.

When we get to the two who did show up, Blankenhorn gets skewered; his testimony is dubbed "inadmissible" and "should be given essentially no weight" because his work is not peer-reviewed and he has no degree in any relevant field. We get lines here like "[n]one of Blankenhorn’s opinions is reliable" and the accusation that his definition of marriage is "a dichotomy" and there is a snide line that translates as "he recited stuff he'd read somewhere and dude, I can read, I don't need you to do that, I need you to explain why it matters" at the start of page 43. This goes into great detail about why the guy failed to carry his side, and is recommended reading for anyone who thinks that there's solid science behind the idea that same-sex marriage will damage opposite-sex marriage, children, or society in general. After pages and pages shredding Blankenhorn, the other Yes witness gets off easily, being simply not qualified to talk about GLB issues specifically but being accepted as an expert on American and Californian politics. He got hammered for not having thoroughly researched his subject, though, and for having stated before the case that "gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process", but saying the opposite in the courtroom. Oops. He's granted "little weight" overall.

Page 54 starts a listing of people involved, etc. again, and a history of the case. Mentions of religious groups involved are worth noting. Then we get to whether "any evidence" supports the law, noting that churches may choose to not marry people, only people legally capable of consent may marry (relevant to the people making bestiality/pederasty comparisons), and marriage does not legally require procreation/fertility. Further, we get a history of marriage in California and the US, which mentions slaves not being allowed to marry, interracial marriage bans, and the OS understanding California initially used, then noting the overturning of interracial marriages and removal of "coverture" (wife as property of husband), and finally the introduction of no-fault divorce. Leads into the change in age of consent laws from gendered to neutral, and then the history of same-sex marriage in California specifically.

On page 66, we get some interesting stuff about gender roles in marriage, namely, that the state does not treat a wife's obligation to her husband differently from a husband's to his wife. Also a note that getting rid of coverture and race restrictions hasn't hurt marriage as an institution. We then (pages 67-71) segue back into more about what marriage is (looks like Cott's definition about commitments and forming a household carries the day) and there are lots of reasons the state has for "licensing and fostering" it, and for people to want it. Page 71 starts a discussion of sexual orientation, rehashing what they covered earlier, with a key note that the state has no reason to want to change or drive out GLB people. Mentions children of SS couples, benefits to them, and how adoption/AI is not prohibited. Also notes that "[m]arrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals" -- in other words, so much for that strawman. Rehashes problems with domestic partnerships and dismisses idea that SS marriage will reduce marriage rates in OS couples.

Things get interesting in a different way on page 85, when it specifically notes that gender is an issue here -- a man can marry a woman but a woman can't. We touch again on social stigma, the unequal status of SS and OS couples, and gender roles in marriages. This is important as heck, okay? Prop. 8, says this judge, "amends the California Constitution to codify distinct and unique roles for men and women in marriage" -- it's not just anti-gay, it's directly linked to sexism. After this we get a reiteration of the fact that it doesn't violate freedom of religion to allow SS marriage, and that Prop. 8's only effect on anyone's rights is preventing some people from marrying anyway. Restatement of the financial impact on the state and the couples involved follows. Then we're back to more about stereotypes and stigma, and more on the impact on children (pages 94-96 now, if you want to read that part) and a note that anti-gay discrimination happens (odd that they'd have to mention this, but the Yes side actually tried to dispute it!) and more on stereotypes. Also, religion-based ones. And what "protect the children" meant in the campaign (learning about gay people = becoming gay = bad) and what stereotyping was relied on to pass Prop. 8.

Conclusions begin on page 109. The basic gist is that both the equal protection and due process arguments are valid, and we get detail on why. Interesting note is that a major and recurring theme here is the fact that marriage is legally a relationship of equals, now, not defined by gender roles, and that historically a reason SS couples were not considered was that equality in a marriage was not the expected model. That is, when men owned their wives it made no sense to anyone to think that two men or two women would want to marry, because who would own whom then? Another interesting point is that we get a specific clarification that this isn't a "new right" or a "right to same-sex marriage" but just a right to have a recognized marriage -- specifically countering the idea that we're "inventing rights" here.

The conclusion goes on, having established that we're talking about a fundamental right here (and thus can use "strict scrutiny"), to say that not only does Prop. 8 fail that test, but it doesn't even have a "rational basis" -- it doesn't stand up under any scrutiny at all. We get a discussion of what equal protection means and under what circumstances it can be denied to people, which aren't these because the state has no interest that is being protected here, and so there's no justification for discrimination. (Touching back on the gender theme, this is specifically described as being "equivalent to" sex-based discrimination.) A note here is that, although sexual orientation is described as a suspect class, strict scrutiny is not used because it's not needed -- Prop. 8 fails less severe tests. There's some disagreement as whether this case can count as precedent for use of strict scrutiny on other anti-GLB laws or not; I think it can but IANAL.

We get a blow-by-blow of why stated reasons aren't good enough, starting on page 123. Tradition is dismissed, with a note that that argument boils down to "an artifact of a foregone notion that men and women fulfill different roles in civic life" and that OS-only marriage is the only place "legally-mandated gender roles" still exist in California. The potential effects on society are dismissed because there's no evidence of them. The procreation/childrearing argument is roasted. The freedom of religion argument is worse. The idea that SS couples are measurably different (worse) than OS ones, well, you can guess. All other arguments are grouped into a "catchall" category that contains... nothing but bigotry? Yeah. So there's no good reason for Prop. 8 to exist.

Then there's this section header on page 132: "A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION" and that section basically says that Prop. 8 -- I'm going to quote again, actually, from page 133 -- "enacts a moral view that there is something 'wrong' with same-sex couples" and is based on prejudice and the idea that GLB people are inferior.

So with all this laid out, the conclusion is that Prop. 8 is discriminatory and unconstitutional and cannot legally be enforced.



Any last doubts I may have had about the federal case have gone out the window today. First there's the stupid delay on being able to broadcast the trial, because gay people might pressure the anti-gay witnesses into changing their testimony -- bullshit. Fucking bullshit. Homophobes, you're the majority, with the power to define the debate and strip away our rights -- you're not fucking oppressed. The Gay Mafia will not terrorize your family for your bold stand, because there is no Gay Mafia. Christ. Yes, people will be angry with you, but you don't have a right to avoid that, not if you're going to do things that make people angry.

*clears throat* I got a little carried away there. Anyway, on top of that now, we have the judge:
Chief U.S. District Judge Vaughn R. Walker asked attorney Theodore Olson, who represents two same-sex couples suing to overturn Proposition 8, how the ban could be called discriminatory, since California already allows domestic partnerships.
Wow. Just -- wow.

"How is it discrimination to ban you from entering into a contract that is understood and recognized by many jurisdictions and the general population, when you've got one that has a different definition in every jurisdiction that might recognize it, is poorly understood by the general population and thus not granted the same respect?"

"Gee, I don't know! Sorry to have wasted your time, Mr. Judge!"

I thought I was done being depressed for a while, but apparently not.

EDIT: Should've looked for more complete coverage -- here's a liveblog showing more of the questions, and in context it's not so bad. Still an uphill fight, but not so hopeless.