Perhaps it’s the setting – I’m in Provincetown for Family Pride Week – but after slogging through the exhaustive and compelling opinion by Judge Walker in yesterday’s decision striking down Prop 8, I don’t feel like delivering a particularly analytical assessment.
Spending some time around the reality of all these gay and lesbian families and their de facto marriages, I’ve had a revelation that no amount of legal training could have prepared me for.
We in the mainstream LGBT movement do a lot of apologizing for our support of marriage equality, in the face of criticisms such as: “It’s too assimilationist, it’s the wrong fight, and oh! the banality of marriage.” Tell that to the thousands of happy, multi-racial, non-conforming families that pepper Commercial Street and its environs during the week. No, it’s not we who are banal: It’s the forces arrayed against us in their pathetic, doomed holding action who wear their banality like a crown.
Read the arguments that the Prop 8 proponents put forth, and that Judge Walker clinically (and mercilessly) summarized and destroyed yesterday: Marriage is for procreation; it fosters the optimal setting for children, and responds to the natural impulse that causes men and women to create new life by creating institutional support structures around supporting the children who are products of their sexuality. I can type these points as fast as my fingers will move, so rote and tiresome are they. They have nothing to do with the reality of actual families — and not just gay and lesbian ones — that thrive, whatever the sterile arguments against their existence pronounce. The proper question is: What arguments support excluding gay and lesbian families from the one universally recognized marker of commitment and mutual support? The answer, of course, is: none.
Judge Walker took the unusual approach of exposing the ritual pronouncements of the anti-equality forces to the withering glare of a trial: evidence needed to be adduced; witnesses called; arguments supported by facts. This, the Prop 8 proponents couldn’t do. Their factual case was based, at bottom, on the conjecture of David Blankenhorn, who acknowledged that marriage would be good for same-sex families – compare Maggie Gallagher, who won’t even concede this much – but then stated that it wasn’t worth the cost to traditional marriage, which would (somehow, likely, maybe) thereby be weakened.
In other words: Factually, they threw the case. And they paid a very heavy price for doing so: In eighty detailed findings of fact (many with numerous subparts) that ran to some 60 pages, Judge Walker dissected every admissible — as opposed to moral or religious — argument for and against marriage equality, and the results were unambiguous: Logic and fact overwhelmingly support marriage equality. Once the facts had been laid out, the treatment of the state’s justifications had the feel of a ritual execution.
The Prop 8 supporters’ only hope – but it’s a solid one – is that the Supreme Court will ignore the facts and do the following by-the-numbers legal analysis: Gays and lesbians aren’t entitled to a higher level of protection from courts than, say, milliners, and since rational basis scrutiny is very deferential, the side supporting the law usually wins. (There’s a compelling argument for affording the GLBT community more protection under the law, and the great, mostly overlooked accomplishment of the recent CLS v. Martinez case is that it establishes us as a community.) Walker made a compelling argument that Prop 8 can’t even clear the low rational basis hurdle, but the surest route to victory is through some kind of heightened analysis. (Walker made the case for heightened scrutiny for classifications affecting gays and lesbians, but explicitly stated that his decision was grounded in rational basis analysis.)
The Prop 8 proponents’ strategy might work, but – despite my skepticism about this case from the start – I’m starting to doubt it. Facts matter. The closest parallel here is to Iowa, where the trial judge’s exhaustive detailing of the facts led to a unanimous decision for marriage equality in the state supreme court’s later ruling in Varnum. And even a rational basis test demands some level of review; the Court has lately looked askance at laws that seem animated mostly by animus against a disfavored group. Without facts in support of the exclusion of gays and lesbians from marriage, the animus stands revealed. Indeed, anyone reading the Perry decision would come away convinced of the basal fear and loathing of gays that animated Prop 8.
I’ve been on this vertiginous ride for years now, so I can’t get too giddy about a win in Round 1 of any case. But every decision that lays bare the bankruptcy and exhaustion of the opposing side is another wrecking ball’s blow against an indefensible orthodoxy.
Does anyone, even the blusteriest members of NOM, really think this won’t all be over within a generation?