One of the questions that opponents of same-sex marriage never satisfactorily answer is why it matters to them if gay couples have the same rights as heterosexual couples. Why do they care? What harm do they suffer? It is not as if marriage is some limited resource that allowing more people access to would reduce the general availability.
As far as I can see, the opposition to same-sex marriage seems to be almost entirely based on ancient religious texts and their associated homophobia but of course few, other than the religious nutters, want to concede that for fear of being seen as religious bigots. (That distancing from religion is a small sign of progress). Instead they dance around the issue with vague rationalizations that somehow marriage has always been between one man and one woman and has thus acquired the force of tradition or that the purpose of marriage is procreation or that changing the definition of marriage would open the door to polygamy, bestiality, or otherwise destroy civilization as we know it. Of course, none of these ‘arguments’ stand up to scrutiny but few people are willing to press opponents on this, usually out of the ‘respect for religion’ trope that assumes that people’s faith-based speech and actions should not be questioned. But the legal case involving Proposition 8 in California may finally force them to put up or shut up.
If you recall, in May 2008 the California Supreme Court ruled that same sex couples have, under the state constitution, a right to marry. Opponents then brought Proposition 8 that banned same-sex marriage as a ballot initiative and, heavily backed by the Catholic and the Mormon churches and using lies that allowing same-sex marriage would lead to gay indoctrination of children in schools, they managed to narrowly pass it in November 2008 by a margin of less than 5%.
The constitutionality of Proposition 8 was challenged under the state constitution and its validity was upheld. But it was also challenged under the US constitution and in August 2010, a US District judge ruled that it violated the due process and equal protection clauses of the 14th Amendment, but allowed the ban to stand while the case was appealed to the US Ninth Circuit Court of Appeals.
Normally the governor and the attorney general of the state are the people who have the obligation to enforce the laws of California and they have the unquestioned right to appeal any verdict nullifying the laws. But opponents of the ruling were stymied because the then-governor of California (Arnold Schwarzenegger) and the then-attorney general (and now governor) Jerry Brown refused to appeal the district court ruling.
Because of this vacuum, various private parties who had sponsored Proposition 8 then appealed the verdict but this raised the question of whether they had standing to do so. In order to prevent an explosion of third-party lawsuits, one has to show that one has standing to bring about a legal case and one of the means by which standing is established by a private party is that the party has to show that they are directly affected by a law or a court ruling and would suffer direct harm if it were carried out.
The US Ninth Circuit Court of Appeals, in an unexpected move, ruled that before it could decide on the constitutionality of the issue, the issue of standing had to be resolved and they sent the case back to the California Supreme Court to rule on whether the challengers had standing. This has put the issue of what harm opponents of same-sex marriage suffer directly to the forefront. Ted Olson, one of the lead counsel opposing Proposition 8, puts the matters succinctly.
Olson will argue that to have legal standing the proponents have to show that they would suffer a direct harm if Prop. 8 is held to be unconstitutional.
“Here, the proponents were asked during the course of the trial, what damage would be done to heterosexual marriage if Proposition 8 was held to be unconstitutional and the lawyer for the Proposition 8 proponents said ‘I don’t know,'” Olson says. “You have to have a direct stake in the matter that’s being litigated.”
Court cases can very useful in clarifying issues because people have to answer specific questions that are narrowly focused and posed to them by people who have all the facts at their fingertips. They cannot make sweeping generalizations or filibuster or snow the listener the way they can in public debates or when answering reporters. This is what doomed so-called intelligent design. Its advocates managed to obfuscate the issue for quite some time but they came a cropper in 2005 in the US district court in Dover, PA because under cross-examination they were forced to admit many things they had tried to conceal, such as that under their definition of science, even astrology would have to be considered to be science.
So the question of standing that is going to be adjudicated by the California Supreme Court could be quite illuminating in pinning down exactly what harm opponents of same-sex marriage experience by allowing it. But unfortunately, unlike in lower courts where the merits of the case can be exhaustively examined, in superior courts the process is very brief and tends to be narrowly focused. At the hearing on Tuesday, the California Supreme Court judges seemed to be more concerned about allowing the governor and attorney general the sole right to decide what laws to defend rather than with the issue of what direct harm the sponsors of Proposition 8 suffer if same-sex marriage is allowed. Since they have ruled before that ballot initiative sponsors have the right to defend them in court, that seems likely to be the verdict here too, that they will be granted standing by virtue of being sponsors of the initiative rather than because they would suffer direct harm if same-sex marriage were allowed. You can see the full video of the hearing here.
It seems likely that both aspects of this case, the issue of standing as well as the constitutionality of same-sex marriage itself, will go all the way to the US Supreme Court.
But even if the opponents of same-sex marriage win this legal battle, they have lost the public relations war. It is only a matter of time, perhaps five years, before gay people win equal rights.
