[Guest post by Aaron Worthing]
I finished reading the brief of the anti-Proposition 8 forces last night, and while I will not bother to refute every point, there were just some things so ridiculous and overwrought, I couldn’t hold my tongue. Don’t believe me? Well, let’s start with this passage, right at the beginning of the brief:
This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.
Oh my God, did you hear that? If we don’t give them the right to marry, then we are actually ejecting them from the entire human race!
I mean let’s tease this out a little more. You think I was kidding about abortion? Well, yes, I was, but the joke had a basis in their own hyperbolic claims and taking it to its ultimate conclusion. After all in Roe v. Wade, the court found that a fetus was not a person, and that status as a non-person was vital to finding that there was a right to an abortion. Specifically the Court said:
The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment…. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant [Roe] conceded as much on reargument.
So the court found that a fetus was not a person and thus a woman had a right to kill it. So, I guess if gay people are not given the right to marry, they are not persons, and therefore they can be killed freely, right?
Well, obviously not, for two reasons. First, it is ridiculous on its face to say that if we are not going to let you marry whom you want, you are suddenly not a person. Give me a break. And second, the Supreme Court has never taken its suggestion that non-persons could be killed at will particularly seriously.
But moving on, the next ridiculous part comes on page 2 when the brief says:
Thus, the Constitution now fully embraces the truth that, no less than heterosexual persons, “[p]ersons in a homosexual relationship” enjoy “constitutional protection [for] personal decisions relating to marriage.” Lawrence v. Texas, 539 U.S. 558, 574 (2003).
Wait, Lawrence v. Texas, the case invalidating a law criminalizing gay sex, also gave gay people the right to marry whomever they want? Well, then why are we having this case? Its already been decided!
Well, the answer is that the court hasn’t decided any such thing, and all this really amounts to is the writers dowdifying a quote. I don’t know who exactly they expect to fool with this. Or maybe they figure just like the Constitution, the decision in Lawrence is a living document.
On page 9 they mention for the first time that the Attorney General of California (Jerry Brown) said he believed Proposition 8 was unconstitutional, and the Governor was refusing to defend the action. Throughout the piece they cynically cite those officials’ opinions to prove that the state of California doesn’t actually want to promote heterosexual marriages, while at the same time pretending that those persons gave a sufficiently vigorous defense. Not silly, so much as cynical.
And next we get another deceptive quote. Now if you have been following the discussion here at Patterico, you know that one major issue is whether the proponents of Proposition 8 have standing to defend this law. Some jurisdictions have allowed for the legislatures to intervene when the administrative branch failed to protect the law, and so the logic goes that in the initiative process, the proponents are situated the most like a state legislature. The key thing is you have to show they have a stake greater than the ordinary voter, for some reason I cannot fathom.
So do they? Well, here once again they assure us that this has been decided:
Indeed, the California Supreme Court has authoritatively determined that initiative proponents lack standing to represent the State’s interests and are “in a position no different from that of any other member of the public.” In re Marriage Cases, 183 P.3d 384, 406 (Cal. 2008).
Oh, they decided it already. Well, then I guess we should just give up then and… oh wait a minute, they didn’t. If you find the quote in In re Marriage Cases, you find that they are not talking about the proponents, but a fund. And if you investigate the lower court case it comes from, the fund they billed itself not a the proponents of the measure but merely voters, stating the fund “represents over 15,000 residents and taxpayers of California who supported and continue to support Proposition 22[.]” They weren’t the official proponents, they were just voters and supporters. So in fact this decision doesn’t actually bear on the issue at all.
Another example of the silliness of the anti-prop-8 brief comes when Olson and company complain that proponents have “[c]it[ed] a slew of dictionaries and articles … written by authors who never testified at trial[.]” Well, if one turned to Federal Rule of Evidence 803, involving exceptions to the hearsay rule you find both “statements of ancient documents” and “learned treatises” which can be considered exceptions to the rule against hearsay. Further, those specific rules say that the availability of the declarant is immaterial—as in, it doesn’t even matter if the author is ready, willing and able to testify, you are still not required to call the author of such documents in to testify in order to present it as evidence. So they are complaining the proponents doing what the rules allow.
Moving on, later the brief asserts that “in Turner, the Supreme Court held that incarcerated prisoners—even those with no right to conjugal visits—have a fundamental right to marry[.]” Now it may be the case that the prisoner in Turner lacked the right to have such contact, but it was not a point apparently even considered by the Turner court. The words “conjugal” never appears and every instance of the word “visit” has nothing to do with the prisoner’s ability to have sexual contact.
Then on pages 62-64, they try to make the case for finding that discrimination based on sexual orientation should get strict scrutiny—that is, more scrutiny than discrimination based on gender would receive—proclaiming that sexual orientation was an immutable (unchanging) trait. Oh, except they admit that some gay people do change orientation and have experimented with straightness. So how can they say it is unchangeable? Because “an isolated instance of sexual conduct [doesn’t] show that one’s sexual orientation, as properly defined, is a choice or can be changed.” (emphasis added) And what is the proper definition, pray tell? “Sexual orientation is a term that we use to describe an enduring sexual, romantic, or intensely affectional attraction.” (emphasis added) Which means that sexual orientation is unchangeable, because if it changes for a while it is not considered part of their orientation. We typically call this the No True Scotsman fallacy. And of course in this analysis bisexuality doesn’t exist. Who knew?
And all of this in an attempt to say that discrimination based on sexual orientation should be as suspicious as discrimination based on race. You know, because that is what the Evangelical Christians wanted in the wake of the Civil War: gay rights.
But in the end the most outrageous part is the way they used the shenanigans of the California Supreme Court to bolster their case. Let’s cut the bull, people. The original California constitution did not grant the right of gay marriage. When the California Supreme Court declared there as a right to gay marriage, they were making it up. So then thousands of gay couples got married. And then the people of California rose up and amended their constitution to end gay marriage. And what did that amendment say?
“Only marriage between a man and a woman is valid or recognized in California.”
The plain language of that amendment clearly applies not only to marriages made in the future but to the marriages that already existed and to any marriages from out of state. But the California Supreme Court, probably being unwilling to dissolve those marriages, engaged in one last act of activism, declaring that the new constitutional amendment only applied to new marriages.
So over and over again, in the brief, the opponents of proposition 8 rely on the supposed “fact” that this law was taking away rights gay people already had; except that they only had those rights due to judicial activism. On page 38, they cite the fact that thousands of gay couples got married before proposition 8 was ratified, and the fact the California Supreme Court did not declare those marriages void to argue that this undermined the justification for Proposition 8. In other words, they are arguing for judicial activism by citing the effects of prior judicial activism.
Which admittedly, takes some serious nerve to do. But it’s also dishonest.
As a practicing lawyer, I can tell you that this brief has positively harmed their case. One of the best ways to persuade a judge is to first convince him or her that you are a reasonable and reliable advocate. “I am just being reasonable, listen to me.” If you can get a judge to trust your judgment and your honesty, he or she is more likely to rule in your favor. Indeed, the ultimate compliment an attorney can receive is to see a judge literally lift entire passages from your brief in the text of his or her opinion. (I have had that happen to me once, although after he quoted several paragraphs I had written, the judge then said, “however,” and proceeded to completely screw over my client—so there is no guarantee that this strategy will work.)
However this brief starts right off, literally on the first page, with indefensible hyperbole and engages in deception as the piece goes on. This would break the trust needed to be an effective advocate. They have harmed their case.
[Posted and authored by Aaron Worthing.]