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Law, Unwrapped: Prop 8 Hearing — A Telling Concession

by John Culhane on December 11, 2011

in John Culhane,Legal Issues,News

Post image for Law, Unwrapped:  Prop 8 Hearing — A Telling Concession

Thursday, there was yet another hearing in the Prop 8 case. To non-lawyers, the Prop 8 litigation must be starting to look like the one-hundred year case from Dickens’s Bleak House (Jarndyce v. Jarndyce):

“This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means.”

Well, we do know what it’s about, of course:  Shorn of all the legal maneuvering, it’s about the simple question whether excluding same-sex couples from marriage violates basic guarantees of equality and citizenship. But it’s easy to lose track of those stakes with multiple oral arguments on procedural issues, the ping-ponging of the appeal between state and federal courts, and one of yesterday’s topics: the sideshow about whether Judge Vaughn Walker was fit to preside over the trial. After all, he is a homo-SECH-chul; worse, he’s in a long-term relationship.

Kate Kendall, Executive Director of the National Center for Lesbian Rights, has a great summary of what went on yesterday over at the Advocate. But she and others seem to have missed one telling concession by the Prop 8 proponents — one that shows, yet again, that they have no good arguments against equality. Consider the following exchange:

In argument punctuated by raised voices and wild arm gestures, the proponents’ lead attorney Charles Cooper insisted Walker “was in the same kind of relationship as the plaintiffs” and had a direct interest in the result of the case.

“The question is, was he in a position to try his own case?” Cooper said.

[Judge] Reinhardt asked Cooper how the case would be different if Walker had said he did not have an interest in marriage. “Would he have to be recused anyway?”

Cooper replied, “This case wouldn’t be here if that had happened.”

[Judge] Smith pressed further. “What if a married heterosexual judge wants to maintain the definition of marriage as it applies to his marriage? What about an unmarried heterosexual judge?”

Cooper tried to distinguish those scenarios from Walker’s relationship. “I don’t see how that judge would have a concrete interest in the ruling on same-sex marriage,” he said.

“I don’t see how that judge would have a concrete interest in the ruling on same-sex marriage.”

Exactly. The judge wouldn’t have a “concrete interest” because that judge’s marriage would not be affected by whether gay and lesbian couples can marry.

This isn’t exactly the same thing as admitting that marriage equality would have no consequences for society, but it’s kissingly close to a concession that it wouldn’t harm society. Of course, identifying damaging concessions from the pro-Prop 8 folks is about as hard as finding FOX News personalities mock-concerned about the War on Christmas. Pam Spaulding has a nice compendium of witness David Blankenhorn‘s greatest hits from the trial here. My favorite:

“We would be more American on the day we permit same-sex marriage than the day before.”

Reader, I must remind you that this was a quote from one of their witnesses. Talk about an “own goal.”

Although embarrassingly ill-qualified to be a witness in this case, Blankenhorn is a pretty smart guy. I assume Charles Cooper is, too. So why can’t they avoid blowing up their own case?

Because they don’t have one. Almost anything they say is pregnant with peril of the self-defeating argument.

Maybe more hearings and appeals aren’t so bad, after all. These Wile E. Coyotes can’t help using Acme Products, no matter how many times they’re reduced to ashes.

 (Image: Prop 8 rally in Montery, California, May 26, 2009, by CarbonNYC.)

Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.

He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.

John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.

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