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The Post-Game Show » Blog Archive » Prop 8 On Trial: The Brokeback Defence

Prop 8 On Trial: The Brokeback Defence

Today was the third day of the Proposition 8 trial, which looks set to be a landmark case in US legal history. At issue is the question of whether Proposition 8, which banned marriage equality for same-sex couples in California, was constitutional.

The California constitution states, “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws”. The plaintiffs argue that denying gays the right to marry clearly violates the equal protection doctrine. Proposition 8 was discriminatory.

I am not a lawyer, but on the face of it I’d say this seems clear cut. The right to marry one’s partner should apply equally to gays as to straights because the constitution says so. The reason there’s any controversy at all is not because the issue is unclear, but because the majority consensus has always opposed applying the constitution fairly to this traditionally maligned minority. If this were just about what’s right, what’s fair, what’s humane, this would be over already; but it’s not about any of that. It’s about protecting the conservative status quo from erosion by the civil rights movement.

Extraordinarily, the central question of the case today appeared to be, ‘are gays still discriminated against?’ The anti-gay Prop 8 lawyers want to argue that gays are no longer discriminated against, therefore gays in California were stripped of their right to marry for non-discriminatory reasons. They actually cited Brokeback Mountain and Will & Grace as evidence that everything is just A-OK for gays today. They also pointed out that gays no longer get locked up in asylums. That’s the warm embrace of social acceptance right there!

The main Prop 8 lawyer also pointed out that Barack Obama opposes gay marriage. Well, yes. Barack Obama is not our friend. We need to come to terms with the fact that anyone who supports civil unions over marriage equality is an opponent of equal rights. Those who support civil unions are part of our opposition.

My favourite exchange of the day was between the Prop 8 lawyer and Yale historian Professor George Chauncey:

Evil Lawyer: “Isn’t it true that people voted for Prop 8 based upon their sincere moral values?”
Clever Historian: “Many people opposed desegregation and interracial marriage based upon their sincere moral values.”

The strangest part of the proceedings must have been the video testimony of Hak-Shing William Tam of the Traditional Families Coalition. Tam was one of the initial proponents of Prop 8, and he notably tried to remove himself from this trial because he was concerned about the attention it would bring him. As Rachel Maddow remarked on her show earlier this week, “Where is the anti-gay pride?”

Tam distributed literature claiming that San Francisco was ruled by a secret enclave of homosexual activists who saw gay marriage as a step towards their ultimate agenda of legalised prostitution and sex with children. It is extraordinary fringe tin-hattery, and the Prop 8 lawyer ardently objected to the airing of the video because it so clearly demonstrated the irrationality of the hatred directed towards gays.

Today’s proceedings seem encouraging, but there was a heavy cloud on the day, because the US Supreme Court - where this case is surely ultimately headed - ruled 5-4 that the Prop 8 case could not be televised or shown on YouTube because the judge failed to follow the proper procedures.

The Prop 8 side knows that, the more people are exposed to their arguments, the less they will be convinced by their position, so they really didn’t want this trial on YouTube. They are cowards who know their position is absurd and irrational.

This boon of public exposure has been denied us due to a technicality, and the fact that the Supreme Court split along ideological grounds bodes ill for this case’s chances in America’s highest court. The Supreme Court are likely to be as hidebound by their prejudices as every other conservative body in America, however discriminatory those prejudices may be.

The upside, however, is that we’re certain to get some hilarious YouTube reconstructions from the court transcripts.

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One Response to “Prop 8 On Trial: The Brokeback Defence”

  1. Paul O'Brien Says:

    “I am not a lawyer, but on the face of it I’d say this seems clear cut.”

    Well, not really. The problem with equal protection clauses is that they’re really just statements of general principle. In practice, it’s all a lot more murky, because almost every law has disproportionate effects on somebody, so the clause has to be read as subject to unstated qualifications. And besides, there are always difficulties with arguing that a clause should be read as meaning something which we all know the draftsmen didn’t intend. To justify that sort of interpretation, you really have to appeal to changing social values, and since the point is still highly contentious in America, that’s not a straightforward argument.

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