Former Attorney General (cringe) Edwin Meese decided to take on the Prop. 8 trial in the pages of the Washington Post. As a non-lawyer, I'll do my best to prove his arguments don't make legal or logical sense. (Um, he worked for The Guy Who Let AIDS Kill Thousands, so I'm sure this will be easier than it sounds.)
By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision.
Oh snap. Judge Walker ignored important precedent and evidence to make his point. This is a very damning claim. Judge Walker, in his 138-page opinion, apparently ignored everything presented in the three week trial. And then, oh wow, oh wow, he ignored BINDING (!!!) Supreme Court precedent and just made stuff up to get where he wanted to go. I'm sure there will be some examples of binding precedent and facts he ignored to make his points.
In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court's action establishes a binding precedent in favor of Proposition 8. But Judge Walker's ruling doesn't mention Baker, much less attempt to distinguish it or accept its findings.
Wow, so, my god. Judge Walker must be a terrible judge ignoring precedent like that. I mean, the holding in the Baker case from 1972 is a longstanding tradition that has not been undermined at a...oh, wait. So, in 1986, the Supreme Court decided Bowers v. Hardwick In that case they determined that there is no constitutional right to sodomy (i.e., same sex sexual intercourse can be criminalized.) Justice Stevens and others joined in a dissent by Justice Blackmun (fun fact: that dissent was written by Pam Karlan.) In 1996, the Supreme Court decided Romer v. Evans, in which they said that animus toward gay people and dislike of gay people is not a rational basis for laws against gays. They did not overrule Bowers in that case because doing so would eliminate one of the justifications for same sex marriage - that you can dislike gay people and effectively punish them by allowing criminalization of their behavior to continue to be constitutional.
In 2003, Lawrence v. Texas was decided at the Supreme Court. They overturned bans on sodomy, overruled Bowers, finally, seventeen years after it was decided, and blasted away another reason for denying same sex marriage. They said that morality is not a suitable rational basis to deprive rights to homosexuals.
In his dissent, as I wrote about before, Justice Antonin Scalia freaked out. He ranted and screamed and begged for a whole bunch of pages. He said that the Court keeps eliminating reasons that they've always held that marriage is between a man and a woman. He said that we've always made laws based on morality and that it's totally fine to ban sodomy based on morality. He said that gay people are politically powerful (translation: please, oh please god, don't let the Court apply a stricter standard of review to gay people) and he wondered aloud why our behavior can't be criminalized. He yelled at the other Justices for, basically, not distinguishing between gay people and couples in their decision, which was written by Justice Kennedy. The decision also noted a history of discrimination against gay people, but was pretty conservative on the history of that.
Of course, shortly after Lawrence was decided, conservatives started an "impeach Kennedy" movement that fizzled out quickly.
Then, just this past year, in Christian Legal Society v. Martinez, the Court makes clear that there is no distinction between gay people and homosexual acts. This is the final and most obvious thing blocking gays from being considered a suspect class entitled to a higher level of constitutional review. You simply have to be a class in the first place. Along with that, a history of discrimination needs to be present, and you need to show that you're not politically powerful.
The Supreme Court has itself obliterated any reason not to hear this marriage case. Marriage is a fundamental right. If you are going to deprive fundamental rights to a group of people you need a very good reason. Meese's whining about ignoring precedent is funny because he ignores all the binding precedent from the 1980s til today.
And then there are the facts that Walker ignored.
It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the "legal union between one man and one woman as husband and wife."
Where do I start? First of all did those history professors or social scientists testify? Or were they some of the witnesses who refused to testify because they didn't want to be recorded, and then still refused to testify even after they knew they wouldn't be recorded? Or are they just the people David Blankenhorn parroted while he was on the stand? If they are, well, that's all Blankenhorn did. He wouldn't even say whether or not he agreed with all the works he cited on the stand. He just cited them. And he even said that we would be more American on the day that same sex marriage is allowed. So I'm not really understanding this. I certainly read all the liveblogs of the trial and none of these witnesses showed up and the proponents did not offer much on the stand.
As far as "legal giant William Blackstone and philosophers John Locke and Bertrand Russell", well, Locke and Blackstone wrote in the 1700s. And not only that, they did not write as experts on gay people, gay couples or gay marriage. You know why? Because our understanding of human sexuality and coupling and relationships has changed a little bit since the 1700s. They specifically cited Russell in one of their recent reply briefs as pointing out that men and women get married. Well, good for him. It certainly has been true that men and women get married.
Finally, yes, Congress and Bill Clinton were assholes. They passed discriminatory, unconstitutional laws in order to punish gay people. This actually proves Walker's point more than the proponents. We have a history of discrimination and institutional bigotry against gay people in this country and that was plainly laid out by the proponents' constant references to that discrimination.
Meese then goes on to say that two men can't procreate. Well okay, but not all male-female pairings procreate, nor do they want to. Meese says that whole bit about "channeling" people into responsible procreative relationships to keep them from running out on their obligations with children, the same thing the proponents have argued. I'm still not sure how it is "rational" to try to deal with irresponsible procreation and deadbeat dads who run off on their kids by punishing gay people and taking their right to get married away from them. Could someone explain how that's a rational basis for a law and how it's rationally related to any state interest? Please?
He then completely goes off the rails and ignores reality. He says that Walker is wrong to suggest that bans on marriage are based on a private moral view that heterosexuals are superior because... gays get domestic partnerships in California. Well, DPs and civil unions are creations of law that were meant to specifically segregate us from the heterosexual population. They are designed to treat us differently and distinguish us from heterosexual couples. Why? Why is there any reason to distinguish us from heterosexual couples if it's NOT to make us feel like we're less worthy?
And then there's this:
Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have "no rational reason" to oppose gay marriage.
Walker wasn't saying this. I'm sure he doesn't think it. What he said was that he agreed with the plaintiffs' testimony presented at trial that EVEN IF voters supported this out of something other than animus or outright hatred for gay people, all of the underlying reasons for the ban on marriage are not rational.
However, I'll say it: they ARE bigots. Sorry. But they are. If you support the government's continual punishment of gay people by taking our rights away, even if it's for political expediency, you're bigoted.
Whiny conservatives need to Get. The Fuck. Over It.
If you support some equality but not all of it then you have a problem with morality.