Thursday, November 17, 2011

Anti-Marriage Right Bets the Farm and They Can Lose It All

The hateful Prop 8 campaign has placed an all-or-nothing bet on their initiative. If they win, they win nothing more than what they already have. But they also have the potential of losing absolutely everything.

Prop 8 was challenged in the courts. During the trial the Prop 8 campaign had tried to defend their bigoted initiative but failed miserably. They had a couple of problems. One was that the rules of evidence exclude 99% of the claims they were making in public. They couldn’t come into court and make the same claims without having to prove them.
Given that the campaign was engaged in one “big lie” after another, this removed most of their claims. In court, they could be cross-examined if they made the same dishonest assertions.  Their campaign lies wouldn’t stand up to cross-examination. What the court saw, instead of the confident assertions made in TV commercials, was a lot of bumbling replies. When openly asked what harms would come from marriage equality their legal counsel couldn’t answer the question. He didn’t know.  Neither did the Prop 8 proponents, which is why they resorted to lying.
Prop 8 lost that round and the ruling went into great detail as to why they were wrong and why Prop 8 was a discriminatory piece of legislation. At this point the state of California said it did not want to pursue defense of Prop 8. Since it was a state law, under California’s ill-conceived initiative process, it would be their job to defend 8. But they did not want to do so. Neither the governor nor attorney general wanted to be associated with that law. The bigots behind the law demanded the right to step in, in place of the state, to defend their law. Today the California Supreme Court said they have the right to try to defend their legislation in the courts.
If the matter would have ended here marriage rights would be returned to same-sex couples in California. That is all the anti-equality movement could possibly lose in the case. But, if the matter goes further they are in deeper trouble than they can imagine.
Losing at higher levels ups the ante. It means they lose more and more as the move forward while gaining no additional ground. They have let their raw hatred of gay people overwhelm common sense and have literally bet the farm on the measure. If the matter reaches the Supreme Court they have to win. Any loss there will speed the demise of their bigoted movement.
The matter now goes to the 9th U.S. Circuit Court of Appeals.  What happens there depends on the court ruling. The court can hold that trial judge decided correctly and therefore Prop 8 is repealed.  This is already where Prop 8 stands legally at this time—though implementation of that ruling is on hold while the matter works its way through the courts. Or, it could get worse. The court could rule more broadly and note the ways in which Prop 8, and laws similar to it, violates the 14th Amendment. If the court rules that 8 violates fundamental rights the bigots have just managed to put all anti-marriage laws in the 9th Circuit’s jurisdiction under attack. This includes Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington. Instead of losing only California they risk losing a lot more, yet a win gains them nothing; it only reinstates ground they previously won.
At this point it is possible that they unintentionally put anti-marriage laws in jeopardy in the states listed above. Depending on the language of the ruling they could surrender a whole lot of territory to the advocates of marriage equality. In other words, they could lose a lot to gain nothing. If the opponents of 8 lose they merely lose what they already lost. They lose no new territory.

Now, it is possible the court ruling would be written so narrowly as to only apply to Prop 8. The bigoted coalition that ran 8 would get their law back on the books until repealed by the voters, which appears more likely every year. Public sentiments are moving against the Mormon/Catholic/fundamentalist coalition and their law. Their victory was a flimsy one and just a tiny percentage shift would send 8 to defeat. With public opinion trending against them the 8 proponents would, at most, gain the law back for a few years. A victory further up would bring the petitioners out and a ballot initiative to repeal 8 would quickly be back before the voters. I’m not at all sure the bigots could lose a second time.

I think they know this. While the entire trial was videotaped the Prop 8 campaign has been fighting to keep those court records from going public. They know that will face another campaign if they win, and that trial shows them unable to actually substantiate the lies they told previously. If voters see that they had nothing to support their dire claims about marriage equality, it could be the death knell of the anti-marriage movement. So, while they know people won’t read the transcripts, they may watch video. And some documentarian would piece together the trial into a condensed version that thousands and thousands of people would watch. Prop 8 backers can’t afford for the public to see them as they really are. So they are also fighting a battle to keep the videos under lock and key.

If the bigots lose at the 9th Circuit they could appeal to the Supreme Court. But all they would do is up the possible loses without further possible gain. It is unlikely that any higher court is going to rule in way that gains them ground in their fight to keep gay couples from marrying. A court might rule that Prop 8 can stand, until repealed, but they aren’t going to rule that no state has the right to pass marriage equality.

The worst-case scenario for the bigots is that they end up in the Supreme Court and that the Court rules that Judge Walker, the trial judge, ruled correctly. And Walker’s ruling is carefully argued and covers all the bases. He wrote a decision that is unlikely to be overturned. Depending on the court’s ruling it is entirely possible that the Court could rule that Prop 8, and all other laws like it, are unconstitutional. That would kill the anti-marriage completely.
Sure they would rage and rant and bitch about judicial activism. But they are the ones taking the cases to the higher levels. They have chosen to take the chance that they could lose everything. 

And the American Foundation for Equal Rights, with a liberal and libertarian as co-chair, has their eyes set on taking this to the Supreme Court, where they can win everything. They wrote: “
The Ninth Circuit is the largest appeals court in the nation, stretching the entire west coast and as far east as Montana and Arizona. This is an essential and critical step to bring our case before the U.S. Supreme Court and achieve our ultimate goal: full federal marriage equality.”
Their plan, all along, was to push this into the Supreme Court to try and win the entire battle in one swoop. They couldn’t do it without the cooperation of the anti-gay crowd who, as I see it, were lured into a sucker bet, a sort of con game, where they wager a great deal in order to win nothing back.  Con games rely on the emotions of the “mark.” In most cases that emotion is greed. In this case it is hatred. The Prop 8 proponents really do hate gay people, and not just a little bit either. They are obsessed with it. And it is this hatred that compels them to enter into sucker bets. They simply can’t resist an opportunity to try and beat up gay people—no matter how much they stand to lose.


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