Thursday, June 17, 2010

Prop 8 and The Infinite Wait

Yesterday saw the closing arguments in the first of what may be several rounds of Federal Trials regarding the constitutionality of Proposition 8 here in California. As one who has been living it here since the first marriages were issues to the final feels like something that will never end. It struck our lives and changed them forever. First came the shock and joy that we could marry...then the utter heartbreak that, as it had been was it taken away. Prop 8 launched my family into Youtube and by extension, into blogging. We protested, phonebanked, engaged our family members, and did all we could to help raise awareness about what initiatives like prop 8 represent...not only to the gay community but to everyone. After all, if they can do it to us, what stops them from doing it to others? In short, our lives have come to revolve around Prop 8 in one way or another. But we have done all we can physically do and again it is in someone elses hands. All we can do is wait and ponder the path we have walked to get to this point...and the minds of those who hold our fate in their hands.

From my perspective closing arguments went brilliantly. David olsen was never caught unable to answer the tough and rather pointed questions that Judge Walker put to both sides. His answers were eloquent, thought provoking, contained substance, and rang with common sense. Many people have questioned the motivations of Olsen and Boies in taking on our case. They were accused of being conservative moles out to torpedo gay marriage before it could get any further. However, their conduct of this case has been inspiring. They reached so much farther than the issue of same-sex marriage into the journey of all gays and lesbians through generations of fear and darkness. When you see the scope of the evidence brought to bear just for the right to marry...the picture it makes, once all assembled, is stunning...even when you already knew the tale.

A few of Mr. Olsens closing comments

Olsen: Mr. Cooper says first you have to accept my definition that marriage is between a man and a woman and marriage between man and man or woman and woman would change definition. Of course it did because you defined it. How does it help to keep gays and lesbians out of the club?

Olsen: I believe your honor that there is a political tide. But that does not justify saying that the polls need to be a little bit higher before change, because even if they change it here in California we still have to go to every state. There will never be a case with such a wildly crazy system like California had, there will never be case like Romar. The right to privacy is the same right we’re talking about in the context of marriage.

Olsen: Mr. Blankenhorn is right. The day that ends(discrimination against homosexuals), America will be better off. Thank you, your honor.
Prop 8 attorney Charles Cooper however seemed at a loss to convey a substantial reason to support Proposition 8. At times he stammered, he was forced to answer "I don't know" on some important questions from Judge Vaughn Walker, and his main argumentative thrust was that marriage was a device meant to "channel" heterosexuals into marriage for "responsible" procreation. When ask to show evidence of this, he could not in any substantial way.

I in no way mean to suggest that Cooper is inept as a litigator...far from stand up there and support Prop 8 at all must take some degree of cleverness...its like making a full meal out of cornflakes, ketchup, and vienna sausages...theres just nothing there. So it was with Prop 8. There was no reasonable argument to be made that didn't fall back onto societal bias or religion. Thats why so many witnesses for their side dropped out and the ones who remained, helped our side more than theirs. That Mr. Cooper was able to make a meal at all out of what he had to work with must have been a minor miracle.

However, I don't believe that the forces that marshalled against gay marriage are defeated, they are moving into position to play the martyr card. Just wait...its coming. The first cries have already begun as demonstrated by Maggie Gallaghers latest quip on NOM's Prop 8 site:

"Chuck Cooper is a heckuva lawyer. At stake in this case is the future of marriage in all 50 states, and he's right that this attempt to shut down the debate by constitutionalizing gay marriage will backfire. Americans have a right to vote for marriage. Ted Olson doesn't seem to understand the argument, and judging from today's exchanges neither does Judge Walker. I expect Judge Walker will overrule Prop 8. But millions of Americans do understand why marriage is the union of husband and wife and I believe the majority of the Supreme Court will as well."
Except they weren'r voting FOR marriage where they Maggie?...

They will claim the will of the voter was thwarted and democracy tarnished....They will claim that religion was silenced in the face of the implacable juggernaut of the gay agenda....And lastly, they will claim that an activist judge stacked the deck against them. They will roll over and pretend to play wounded victim while simulataneously preparing to fight the battle again in another state with the same playbook and same lies.

Will the Supreme Court see it their way? Its surely possible, but not even Maggie Gallagher can be that confident.

And so we wait again...

As I type this, the world sits on the edge of its chair waiting for another man...Judge Walker, is himself sitting behind a computer and contemplating what he will write a document that could again launch our lives into a whole new direction. Much has been the speculation about his decision. A straight rulling for or against Prop 8 will most likely see an appeal and move up the chain on its way to the Federal Supreme Court. I have also heard speculation that  ruling Prop 8 was a hate-based initiative would invalidate it and prevent it from moving up the chain of the federal court system. I have no idea of the likely hood of any of these possibilities...or if there is an option D in our list. One wonders whether Judge Walker makes this decision with an eye to rumors about his own sexuality...if he will consider it with an eye on his further career...or will it just be the best decision he can make based on the merits of the case. I hope that the questions he asked the apposing attorneys points to the latter. In any case...we wait...


  1. Not to say Charles Cooper is dumb, but he definitely sounded unprepared and lost during the closing statements. Though, I'm curious how much impact the closing statements really have in a case like this, after so many days of actual testimony.

  2. I really hope we win this case because when I'm older I would like to marry the person I love without someone saying no.

  3. I worry about the fact that the Judge is gay for two reasons.

    1. It gives the right a (flimsy in my view) excuse to say that the trial was biased.

    2. Many gay people of his generation and age find it hard to have fulfilling relationships and are jaded about their own sexuality.

    Hopefully he will come through and pronounce on the merits of the case.

  4. There is one good thing that came because of the passage of Prop. 8 I doubt very much that you and Jay would have started your YouTube channel. If that hadn't happened then none of us would have ever known you or seen your wonderful family.
    And, your videos made me more active in our movement. I only did a couple YouTube vids (I should do more) but I have had some wonderful responses AND I have told your story and our story to my friends and family..and you know how that spreads like wildfire. I have also become more politically active..donating money and writing politicians. I personally am tired of being a second class citizen in my own country.

    So..I know there is an expression out there somewhere...something about a rose and thorns?? Prop 8 WOKE people up! I am glad the Leffews were woken up! :)

  5. I'm young, but one day I would like to marry the man I'll fall in love with. I'm sick of being a second class citizen, and I'm sick of people legistlating consitutionally protected rights. I hope this will all change soon.

  6. I followed the closing arguments, too. As a married gay Californian Judge Walker will be pronouncing on my life when he rules. I'm pretty darn tired of my boring life being considered controversy or a threat to anything. How do the H8ers keep up their passion? It's my life so I gotta join the fight, but what are the H8ers getting out of it? What joy do they get beating on me and you and others who just want to quietly go about their lives?

  7. Thank you so much for keeping us posted. I am hoping for a very positive outcome, and I hope that it has a very positive ripple effect to other states.

  8. Here's the deal: one of the biggest and most important jobs a judge has is to protect the minority against a hostile majority vote, especially when they enact legislation that violates Constitutional rights. Sometimes they do a great job (Brown vs Board of Education) and other times they drop the ball (Korematsu vs United States), so all we can do is hope everything turns out well!