Friday, March 26, 2010

Analysis: Why the Prop 8 Trial Matters

The Prop 8 trial drawing to a close in federal court in California is the most important legal case put forward on behalf of gays and lesbians, ever. It may sound incredible, but in a sense, we are fighting over whether or not gay people exist in the eyes of the federal government, and whether or not there is such a thing as discrimination against us.

Not everyone wants to read all 2,951 pages of the court transcripts, but since I did, I want to offer a very short overview of this case as I see it.

The Olsen/Boies team has offered clear and comprehensive evidence that California's constitutional marriage ban:

1. Harms gay citizens and our families.
2. Violates federal constitutional gauranties of due process and equal protection.
3. Was passed in a manner consistent with historical patterns of anti-gay prejudice.
4. Is indicative of the fact that gays and lesbians do not possess a meaningful amount of political power in the American Legal system. In fact, LGBT's are more statutorily disadvantaged than African Americans and women were when they were granted suspect and quasi-suspect classification.

On the other side of the case, the proponents of Prop 8 have left enormous gaps in their "argument."

1. They have no evidence to support their claim that marriage equality harms society.
2. They agree with our experts that the marriage ban harms gay couples and our families.
3. They agree with our experts that marriage equality would benefit gay families and help reduce anti-gay prejudice.
4. They did not provide a meaningful rebuttal to our side's argument that gays and lesbians do not possess a meaningful amount of political power.
5. They agree that prop 8 stripped a disfavored minority of a fundamental, constitutional right.

The shortest and best overview of our side's case is the Plaintiff's Proposed Findings of Fact and Conclusions of Law, which you can find in .pdf form here. It is a tour de force of legal scholarship with a clear, logical flow and will go down in history as a masterpiece.

The Proponents summary however, is an irritating, 223 point bullet list replete with innuendo, homophobic smears and woolly thinking. It lacks logical flow and does not construct or follow a coherent line of reasoning.

We are still waiting for the judge to schedule closing arguments and I will keep you posted as soon as I hear anything. Also, stay tuned to Firedoglake's trial tracker and AFER's trial tracker and the Trial reenactment on youtube. If you can, consider donating to these groups so they can keep their excellent coverage coming.

Any law-types out there who want to chime in with your expertise, please do so.

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