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 vote...it 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 given...so 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 it...to 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 say....to 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...