Judge Vaughn Walker's sweeping decision in the California gay marriage case sets up, by all accounts, a coming showdown at the Supreme Court. And we don't know, of course, how that will play out, though it seems likely that the case will ultimately be settled by Justice Kennedy, assuming the current Supreme Court lineup is still in place when the California case reaches the high court.
Kennedy wrote the majority opinion in the 2003 Lawrence case which ruled unconstitutional a Texas sodomy law and led a dissenting Justice Scalia, (in an angry and prescient moment) to make the following foreboding prediction about what the Lawrence case would ultimately mean for marriage equality: "At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter'....Do not believe it." (Let's hope his evident dread will have been warranted).
Regardless of the final disposition of the gay marriage case, what the California trial and the ruling of Judge Walker most immediately called to mind for me was Tammy Kitzmiller, et al. v. Dover Area School District, et al, litigated and decided in 2005 (and chronicled in stirring detail by Margaret Talbot in the New Yorker). Of course, the constitutional and substantive issues in the two cases were not the same.
But there are some striking similarities between the California and Dover cases and these are instructive for appreciating the nature of the contemporary right in America and of contemporary political discourse. In each case, a Republican-appointed federal judge presided. Walker was originally nominated by President Reagan, though his confirmation was blocked until the elder Bush took office and re-nominated him and the Senate confirmed him. Judge John E. Jones, III, the presiding judge In the Dover trial, was nominated by the younger President Bush and confirmed in 2002.
In each case, the judge wrote a long opinion - 136 pages in Walker's case, 139 pages in Jones' case, grounded in detailed findings of fact. And most significantly in each case, when a favored position of the right-wing was subject to thorough-going, fact-based scrutiny, that position wasn't merely found wanting, but was utterly demolished. In each case, there was simply no there there.
After listening to expert scientific testimony for six weeks, including from the leading "scholars" in the field of intelligent design, Judge Jones ruled that ID was not a science at all. In fact, he found, it was nothing more than a cover for creationism, an attempt to impose religious teachings in a secular school system without providing any compelling rationale as to what secular interest would be advanced by such an imposition (Jones also noted that the religious nature of intelligent design would be readily apparent to an adult or child).
Likewise, in the California case, the presiding Judge, after hearing copious expert testimony as to the "facts" of gay marriage and its effects children specifically and society generally, found that the proponents of Proposition 8 (those opposed to gay marriage) simply had no factual case whatsoever to support their claim that gay marriage does specific and clear harm to society. Consequently, the court ruled, there was no rational, secular state interest to be advanced by the ban on gay marriage, only the perpetuation of prejudice (or, more charitably, of a religious "principle" not reasonably related to any compelling secular purpose).
Ron Suskind's extraordinary 2004 article on the nature of the Bush administration introduced the term "reality-based community" to our political parlance. In it, Suskind quoted an unnamed administration official who mocked the idea that facts, or "reality" were relevant to political combat, a naive delusion that was the preserve of the left and that was costing it dearly in political terms.
Here's Suskind's account of the famous exchange:
The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''
The focus of that quote and the article was Bush's foreign policy, including his made-up rationale for invading Iraq. But that thinking is, more broadly, pervasive on the right and typically, given the he-said, she-said nature of American journalism and the weaknesses of the Democratic Party, is not adequately countered.
The gay marriage case, seen in a vacuum, is of fundamental significance for the future of civil rights in America. In broader perspective, it also sheds further light on the extraordinary nature of political conflict in 21st century America. That conflict features a political party and attendant supporting movements that have been utterly indifferent to facts and, indeed, to rational argument. That indifference, and the underlying political goals that indifference has been deployed to achieve, have done lasting harm to most Americans and to society as a whole.
So, it's especially to be savored when, once in a while, in a venue in which facts cannot be cynically twisted or eschewed altogether and reason cannot be cavalierly dismissed, we get to witness an outcome based in facts, reason and reality. The right-wing has begun, of course, to scream bloody murder over yet another judicial usurpation (though they don't seem to feel that way when it comes to trying to get courts to over-turn the new health care law, for instance). But cutting through the noise, just remember the underlying reality of the California case (as in the Dover case) - when put to the factual test, the right-wing simply has no case. And it's not a close call.
Jonathan Weiler's most recent book, Authoritarianism and Polarization in American Politics, co-authored with Marc Hetherington, was published last year by Cambridge University Press.
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