Yesterday I wrote that the trial against California's Proposition 8 was "kind of a sham." I stand by that--despite a lot of criticism--but whose fault is it that the trial was so lopsided? ---Why did supporters of the ban against gay marriage--like the Church of Jesus Christ of Latter Day Saints--not involve themselves more in defending the law they so vigorously fought to pass?
A lot of people want to celebrate the ruling in Perry v. Schwarzenegger, and maybe they should, but it should also be noted that 52 percent of Californians voted in favor of the law that banned gay marriage, and our system of justice somehow failed to produce a robust defense of it. Regardless of whether Prop. 8 is discriminatory, this, to me, seems unfair. The quality of defense experts was low--one's testimony was ruled unreliable because he doesn't even have a bachelor's degree relevant to the subject of marriage or homosexuality--and the quantity was also low: a mere two experts (one a suspected quack) compared to the pro-gay rights sides' nine bona fide experts. On top of that, two more Prop. 8 defenders' testimony was withdrawn by defendants after the gay rights side argued that their deposition statements actually helped prove the plaintiff's claims that Prop. 8 is discriminatory. Stupid.
Like I wrote yesterday, imagine the tables were turned, 52 percent of Californians had voted against Prop. 8 and during a federal challenge of the results, only a meager and ridiculous defense was put up to defend the clear preference of the voting majority. Say what you will about mob rule, but even a mob deserves good representation in court, don't they? This is a democracy.
So why was the defense of Prop. 8 so paltry? Was it the fault of an "activist judge"? I don't think so. Are there simply no credible experts who support Prop. 8? Yeah, right. Is there really no credible way to defend the ban on gay marriage? Maybe. But I suspect the real answer lies in Temple Square or in the office of "The Father of Proposition 8."
Why didn't, for example, the LDS Church have one of their in-house experts like LDS Family Services clinical director Jerry Harris testify in defense of Prop. 8? Say what you will about Harris's beliefs--he supports therapy that helps people repress their "same sex attraction," which may be unhealthy--but at least he's a bona fide expert under the analysis applied by the court. Suffice it to say, Harris and other educated colleagues who share the LDS and Catholic church's party line of being against gay marriage did not testify to defend it. In the end, almost no one of any real intelligence defended Prop. 8. That's curious, isn't it?
I called the LDS Newsroom this morning about this issue. I was told I'd receive a call back. When/if I do, I'll update this post.
Cynics will say the LDS Church is trying to avoid bad PR by not appearing to beat up on the gays again; church defenders might be more inclined to believe that the real battle is in the appeals anyway, so why waste time on the trial level? The church is still licking its wounds after paying a fine for violations of California's election laws related to its campaign for Prop. 8, so maybe that has something to do with it. Whatever the case, I want to hear from the church itself on why it didn't assist the defense more robustly, or indeed, whether it assisted at all. Don't you?
Why does this matter if you wanted the gays to win anyway? The 9th Circuit Court of Appeals or the U.S. Supreme Court must defer to Walker's findings of fact unless those higher courts undermine the whole package and say that he abused his discretion by taking factual evidence in the first place. The Prop. 8 defenders, you see, argued that whether or not Prop. 8 is Constitutional is simply a matter of law--an academic question of theory--and that facts about homophobia in the real world are irrelevant to that discussion. Something tells me Justice Antonin Scalia, et al, agrees with them.
Because Walker's findings of fact are so lopsided in favor of the gays (they are universally gay friendly), the conservative Supremes have even more political incentive--and political cover--to strike them from the record when/if the case reaches them. In fact, that's my best guess as to what's going to happen. But what do I know? What do you think?