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Some Thoughts on the Proposition 8 Ruling

Wednesday, August 4th, 2010

Today’s Proposition 8 verdict is truly momentous. In ruling that the 2008 ballot proposition was unconstitutional, Judge Vaughn Walker did not end the fight for marriage equality in the US, but he took a huge step towards that¬†inevitability.

Ezra Waldman at Towleroad offers some excellent analysis, highlighting Judge Walker’s admirable attention to detail. Walker’s ruling lays out the evidence with such clarity that the appeals court would break its back trying to reach a different conclusion.

The major talking point in opposition to the ruling have been as follows: First, the courts should not overturn the will of the voters. Second, the judge is gay, and therefore biased.

In keeping with all the arguments put forth by the pro-Prop 8 side, both points are nonsense. It is the duty of the law to protect the weak against the powerful, and the minority against the majority, and in this case the ruling establishes that Proposition 8 should never have been put to the vote in the first place. Courts are meant to overturn the will of the people, when the expressed will of the people is to remove rights and freedoms from an unprotected minority.

(While we’re on the subject of the majority vote, I note that some are hailing this ruling as a victory for California, by California. It isn’t. It’s a victory for the anti-Prop 8 defendants, their lawyers and their experts. California still bears the black mark of the Prop 8 vote. While Prop 8 passed by only 52% to 48%, that was with turnout of just under 80%. Almost two-thirds of all Californians who were eligible to vote were happy to see gays stripped of their rights in their state. You can’t spin that; you have to own it.)

As to the suggestion that Walker should have recused himself because of his homosexuality, this is an impossible argument for the bigots to win. First of all, it’s central to the ‘protect marriage’ argument that gay people are not losing anything by being denied the right to marry the person they love. If the bigots then contend that Judge Walker stands to gain something personally or financially by overturning Prop 8, that shows that they know their argument is bunk.

It’s also the Prop 8 advocates’ contention that gay marriage undermines straight marriage, on which basis a straight judge would also have a personal prejudice. Then there’s the question of whether religious judges should recuse themselves. What happens if/when this case reaches the Supreme Court? Do the six Catholic justices all recuse themselves? I’m perfectly happy for this case to be decided by Ginsburg, Breyer and Kagan. (Then again, maybe they won’t let Kagan play either.)

Obviously, from where I’m sitting, I can’t find fault in Walker’s ruling, and nor would I want to. If he’s potentially biased, I’m proudly so. Still, I think even an objective reading of the case in support of Proposition 8 would conclude that it offered nothing of substance. What few experts they were able to call were not able to offer any evidence in support of their cause, and in many cases their arguments helped their opponents. Any verdict other than the one delivered would have looked highly questionable.