California’s Proposition 8 Overturned

I first wrote about Proposition Hate when it was first proposed. When bigots put it on the ballot with no motive other than their own desire for financial gain.

Since then we have suffered election campaigns, heartbreak for loving couples who only wanted to get married, and millions of tax dollars spent for election processes and then for Court time and expenses. What has been the result?

A conservative Republican judge, appointed by George H.W. Bush has done what the Tea Party activists have been demanding – he restored the Constitution. Judge Vaughn Walker held that the U.S. Constitution, and its provisions requiring equal protection of the laws, required that Proposition Hate be stricken down.

In reaching his decision, Judge Walker followed a specific process. First, he let the parties before him define the issues to be tried. Then he allowed the parties to present their best evidence on the issues and make their best arguments about the law. As a judge is required to do, his decision reviews the evidence and applies it to the law that he is bound by.

Tea Partiers are constantly haranguing us to “restore” the Constitution. They rarely point to any specific provision that they want “restored” or tell us what they mean by “restore”. But their cries remind us that the Constitution is the fundamental law of our nation. When any state tries to evade the requirements of the Constitution, the Federal Courts are supposed to rein it in and enforce the law of the Constitution.

Applying the Constitution, Federal Courts have ruled that states cannot have laws that discriminate between people based on genetically determined characteristics. Thus, school systems cannot discriminate on the basis of race. Federal Courts have held that States may not prohibit marriage between people who have genetically determined different skin colors. A Federal Judge does not have any legal authority to ignore the requirements of the Constitution.

A Federal Judge may not put his moral or religious beliefs above the requirements of the Constitution. We were reminded of this legal requirement during debate over the nomination of Sonya Sotomayor to the Supreme Court, and again this week as Republican Senators pretended to use doubt about Elena Kagan’s devotion to this principle as an excuse for opposing her confirmation to the Court.

Thus, when Judge Walker ruled on the facts in the Proposition Hate case, he was bound by the requirements of Constitutional Law. Another principle of our Constitutional system is that each litigant gets to choose their own legal representative and to have that representative decide what arguments to make, what evidence to present and how to present their evidence. Judge Walker could not force either party to put in any evidence.

The Court system has rules for how a judge has to treat evidence and for what evidence can be admitted in a trial. These rules apply equally to all parties and they control some of the ways that a judge has to rule on objections to evidence.

One of the fascinating things about Judge Walker’s decision is how it follows the rules which govern trial practice. In his decision, Judge Walker identifies who the parties are. He identifies the issues to be tried. He tells us what evidence each of the parties presented during the trial. While laying out the evidence, Judge Walker explains how he applied the rules of evidence to make rulings about the evidence each party offered. Judge Walker identified the law that controlled his decision. In this case, that law was the U.S. Constitution. And finally, Judge Walker made a determination about the issues, by applying the governing law to the facts established by the evidence offered by each of the parties.

Republicans have been largely uniform in their condemnation of Judge Walker’s decision. Immediately after the decision was released, leaders of some of the for-profit corporate tele-churches also shouted out their condemnation. And the businessmen who rake in profits by running political campaigns threw their voices into the mix, and into fundraising letters and email appeals.

Since Judge Walker was so thorough in laying out the issues, the facts, the law and the way the law applied to the facts, one might think that the Republican, tele-church, fundraising opposition to the opinion would make fascinating reading. We could look for analysis, deconstruction, or explanation of where Judge Walker went wrong.

But no. The condemnation of Judge Walker’s decision has been limited to three claims:

Walker is gay; Walker is destroying our Constitutional form of government; Walker is driving America away from morality and decency.

The first claim is part of a historic pattern. Through U.S. history, many groups have been disqualified from public office and from such things as serving as jurors or witnesses in Court. For centuries, it was the law in most states that black people could not testify against white people and could not sit on juries. The same rule has been applied to women, Asians, Native Americans and other groups. The theory was that these people, like gays, could not fairly participate in trials involving “normal” (i.e.: white, male) people.

We seem to have largely overcome those other prejudices. But now the official Republican position is that gay people should not be allowed to be judges in cases where gay rights are at issue. Does this mean that Republicans want us to stop letting straight judges sit in cases were the rights of straight litigants are at issue?

The second claim causes more concern. No Republican or church leader has yet articulated how enforcing the requirements of the 14th Amendment can possible hurt our

Constitutional form of government. It’s disappointing that none of the “liberal media” have asked Ron Paul, Sharon Angle or Michelle Bachmann what, specifically, is so horrible about the 14th Amendment, or even asked questions of the more mainstream (but increasingly less relevant) Republican “leaders”.

The third claim is really the key for Republicans, and should be key for progressives. People and businesses that profit from bigotry and divisiveness have used pretenses to “morality” to justify odious policies and conduct since long before Dr. Johnson reminded us, in 1775, that “patriotism is the last refuge of a scoundrel.”

Judge Walker’s decision points out that the evidence the Proposition Hate defenders offered at trial was not the same as the lies with which they fill their fundraising appeals, sermons and campaign speeches. Those lies were thoroughly debunked by expert witnesses, examined and cross-examined during the trial. But even knowing that they are lies, the churchmen, politicians and fundraisers repeat the claims while begging for dollars and votes.

This provides an opportunity for any progressive who want to contribute time and participation, rather than money, to make our democracy work. Progressives should be attending Republican candidates’ campaign meetings and asking the questions that the media will not ask.

During the summer of 2009, the Republican Party organized and underwrote groups of people to go and disrupt “town hall meetings.” The Republican marching orders were to have people shout slogans and disrupt anyone who tried to actually discuss issues.

Progressives should not emulate that. Rather, we should go to meetings, we should talk to our conservative friends, we should ask quiet questions about real substance. We should be quietly insistent when given evasive answers. Our quiet questions should reveal where the real morality lies in any debate over equal rights.

We should test the theory that words have power. We won’t sway the conservative base. But if we cause independent voters to begin to question the logic, sincerity or knowledge of a Republican candidate, that will be real grassroots effort and real grassroots success if such independent voters lose their infatuation with the Republican blowhards trying to “take back” our government.

Tom Hall