Ordinarily, this would be the point where I would present to you a walkthrough of the ruling, and we’d have a fine conversation about the legal implications of what has happened.
I’m not doing that today, frankly, because the ground is already well-covered; instead, we’re going to take a look at some of the tactics that were used to pass Prop 8, as they were presented in Judge Vaughan’s opinion.
It’s an ugly story—and even more than that, it’s a reminder of why it’s tough to advance civil rights through the political process, and what you have to deal with when you’re trying to make such a thing happen.
So first things first: one of the sites where my postings are to be found is The Bilerico Project, and over there Dr. Jillian T. Weiss has gone to the time and trouble of explaining the nuts and bolts of this ruling in a very accessible way; I’d commend to all of you who are looking for that background a visit to her story.
With that out of the way, here’s what I want you to know about how Prop 8 was presented, promoted, and defended: the entire process was designed to use ignorance, fear, disinformation, and God to make same-sex couples a national threat to you and your babies—and when it came time to defend this proposition in court, those who supported Prop 8, frankly, ran away and hid, which had a lot to do with the eventual outcome of the findings of fact, and, of course, the findings of law.
(If you weren’t aware, a court’s opinion will often present as a narrative of the evidence, followed by “findings of fact”, then “findings of law”. In the appeals process, findings of fact are rarely overturned; findings of law are frequently overturned.)
The “Defendants and Defendant-intervenors” (to use the exact language of the Court) who support Prop 8 intended to call 10 expert witnesses to explain why Prop 8 fulfills some sort of rational purpose.
Some of them were “deposed” (a sort of “pre-interview” conducted under oath before trial)…and that did not go well: by the time the trial came around only two of the original 10 were actually called to testify. Of the missing eight, two had their deposition testimony offered into evidence by the Plaintiffs, who were able to use the testimony of the Defendant’s expert witnesses to show the Judge that Prop 8 deserved to be overturned.
After that process was over, here’s what the Judge had to say about the Prop 8 campaign’s tactics:
The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.
One of the two defense experts who did testify was David Blankenhorn; he’s the founder and president of the Institute for American Values. Here’s what the Judge had to say about that testimony:
Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Blankenhorn also testified he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before.”
Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.
Just so everyone knows…in this story, I’m editing the Judge’s opinion to remove various notes (example: “Tr 1900:13-18”) in order to make things more readable.
There were four defendants who were there by virtue of their being the “official proponents” of Prop 8 (other defendants included the Governor, State Attorney General, and certain Public Health officials and County Clerks, each in their administrative capacities); one of those was Hak-Shing William Tam, and, again, I’ll let the Judge handle this one:
Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website “1man1woman.net.” 1man1woman.net encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, and because Proposition 8 will cause states one-by-one to fall into Satan’s hands. Tam identified NARTH (the National Association for Research and Therapy of Homosexuality) as the source of information about homosexuality, because he “believe[s] in what they say.”. Tam identified “the internet” as the source of information connecting same-sex marriage to polygamy and incest.
(The links were not part of the original text.)
The Judge referred specifically to a letter Tam sent to the “friends” of his website during the Prop 8 fight which really shows what these folks are thinking:
“This November, San Francisco voters will vote on a ballot to ‘legalize prostitution.’ This is put forth by the SF city government, which is under the rule of homosexuals. They lose no time in pushing the gay agenda —— after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children * * * We can’t lose this critical battle. If we lose, this will very likely happen * * * 1. Same-Sex marriage will be a permanent law in California. One by one, other states would fall into Satan’s hand. 2. Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals. Even if our children is safe, our grandchildren may not. What about our children’s grandchildren? 3. Gay activists would target the big churches and request to be married by their pastors. If the church refuse, they would sue the church.” (as written)
You can gain more insight into Tam’s thinking from his own trial testimony. Again, from the opinion:
Tam supported Proposition 8 because he thinks “it is very important that our children won’t grow up to fantasize or think about, Should I marry Jane or John when I grow up? Because this is very important for Asian families, the cultural issues, the stability of the family.”
Are these the views of just one very disturbed citizen, caught up in hyperbolic campaign frenzy?
Apparently not…because here’s what the Catholic Church was saying a year after the Prop 8 vote:
Catholics for the Common Good, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, Excerpts from Vatican Document on Legal Recognition of Homosexual Unions (Nov 22, 2009): There are absolutely no grounds for considering homosexual unions to be “in any way similar or even remotely analogous to God’s plan for marriage and family”; “homosexual acts go against the natural moral law” and “[u]nder no circumstances can * * * be approved”; “[t]he homosexual inclination is * * * objectively disordered and homosexual practices are sins gravely contrary to chastity”; “[a]llowing children to be adopted by persons living in such unions would actually mean doing violence to these children”; and “legal recognition of homosexual unions * * * would mean * * * the approval of deviant behavior.”
Plaintiff’s witnesses, without exception, were found to be credible, and among those was Dr. Gary Michael Sagura, a Stanford University Professor of Political Science:
“[T]he American public is not very fond of gays and lesbians.” Warmness scores for gays and lesbians are as much as 16 to 20 points below the average score for religious, racial and ethnic groups; over 65 percent of respondents placed gays and lesbians below the midpoint, below the score of 50, whereas a third to 45 percent did the same for other groups. When “two-thirds of all respondents are giving gays and lesbians a score below 50, that’s telling elected officials that they can say bad things about gays and lesbians, and that could be politically advantageous to them because * * * many parts of the electorate feel the same way.” Additionally, “the initiative process could be fertile ground to try to mobilize some of these voters to the polls for that cause.”
“[Proponents’ expert] Dr Young freely admits that religious hostility to homosexuals [plays] an important role in creating a social climate that’s conducive to hateful acts, to opposition to their interest in the public sphere and to prejudice and discrimination.”
“[T]he role of prejudice is profound. * * * [I]f the group is envisioned as being somehow * * * morally inferior, a threat to children, a threat to freedom, if there’s these deeply-seated beliefs, then the range of compromise is dramatically limited. It’s very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That’s just not the basis for compromise and negotiation in the political process.”
As the Judge notes, all this hating has had an effect on actual crime and violence:
“[O]ver the last five years, there has actually been an increase in violence directed toward gay men and lesbians”; “gays and lesbians are representing a larger and larger portion of the number of acts of bias motivated violence” and “are far more likely to experience violence”; “73 percent of all the hate crimes committed against gays and lesbians also include an act of violence * * * we are talking about the most extreme forms of hate based violence”; the hate crimes accounted for “71 percent of all hate-motivated murders” and “[f]ifty-five percent of all hate-motivated rapes” in 2008; “There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.”
So what can we make of all this?
How about this: there’s a community of people who feel that Teh Gay poses an imminent danger to their marriages, their children, and their way of life—but when it comes time to actually explain why, in a court of law…they can’t offer a bit of evidence, except to say “it’s on the Internet” or “because God told me so”.
In the meantime, the group who isn’t actually a threat to anybody is the group most likely to be targeted for violent attacks—because some people are just so sure they’re such a threat to our marriages, our children, and The Good Ol’ American Way.
Political compromise is not likely—and political courage isn’t either, which may be why there’s still so much “not asking” and “not telling” going on these days.
Whether this opinion is upheld or not, its deeper truths remain for all to see; I’ll close today’s discussion with a deeper truth of my own:
If you belong to a political or racial minority…or if you’re a “plain old White American”, facing the prospect of soon becoming a minority group…you better figure out, and quickly, that those same forces of prejudice you’re directing at these people can be turned against you, too (as they were, against the Chinese, not so very long ago, and as they are, against Blacks and Hispanics and Arabs, to this very day), just as soon as it’s convenient for the political needs of another.
The reason we fight prejudice isn’t just to protect the group being affected…but to protect us all from the people who will manipulate this stuff for their own use—and if you don’t think the fear of The Gay Baby Molester, and the Scary Hispanic Border Jumper, and the New Black Panthers isn’t being used by Conservatives, right now, to keep you from thinking about the problems they created as November draws nigh…well, then, Gentle Reader, you’re missing out on Politics 101.