My wife and I were in Roy-Ashburn-land when we learned about the big decision last week. We had been backpacking in the Eastern Sierra and had come down from the mountains late in the afternoon to look for a room and a shower in Lone Pine, California, in a county where 60% of the voters had supported Prop 8. While my wife discussed room rates with a young motel clerk, I spotted a copy of the LA Times on the counter. The headline announced: “Ban on Gay Marriage Overturned.”
We shrieked with joy. The clerk was unaware of the decision and struggled to comprehend our excitement. It occurred to me that he, like most straight people, probably didn’t think about LGBT issues much. I thought about how indifference leads to ignorance, a condition in which fear and homophobia can take hold and thrive when they remain unexamined. Being in Ashburn’s district led me to reflect on how he nurtured homophobia there by being dishonest about his own sexuality, speaking in favor of Prop 8 and voting against every gay rights bill he encountered.
Contrast Ashburn with Judge Vaughn Walker, who called for a full airing of the fears and assumptions on which the Prop 8 campaign was based. Walker could have decided the case as an abstract matter of law on a motion for summary judgment where no evidence is evaluated. Instead, he called for a full trial and gave proponents of Prop 8 every opportunity to call witnesses and present evidence. During the trial, homophobic fears and assumptions were thoroughly and methodically exposed as unfounded
Only now, after reading Walker’s 136-page opinion, do I appreciate the import of Walker’s approach, and I have become more hopeful about the ultimate outcome. Anti-gay arguments were shown to be so devoid of evidentiary support that it will be a challenge for higher courts to find any kind of factual basis to reverse Walker’s ruling. That doesn’t mean a higher court won’t find a purely legal basis on which to do so, but if it does, it will have to disregard the evidentiary record.
The trial is also important in the court of public opinion. Facts, logic and rational argument may not sway everyone, but they do sway some people, and no open-minded person who followed the trial can credibly argue that the proponents of Prop 8 presented the better case. Oh, desperate conservatives will continue to mouth bogus arguments that such matters should be decided by popular vote, or that pro-Prop 8 witnesses were intimidated from testifying, or that Judge Walker should have disqualified himself because he is gay. But based on the trial and the evidence presented, there isn’t much room to argue that the proponents of Prop 8 were more persuasive and Walker simply got it wrong.
UPDATE: As we know now, Judge Walker lifted the stay, but it remains in effect until August 18, 2010 at 5:00 PM PDT. That gives the Ninth Circuit time to step in, unfortunately. Let’s see what they do. Judge Walker’s order is here.