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Prop 8 Ruling One Year Later: Pulling Back the Curtain on the Right's Dirty Tricks

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A year ago today, U.S. District Court Judge Vaughn R. Walker overturned "Prop 8," ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution.

I thought the war had finally been won. The forces of prejudice and fear had been vanquished by a federal judge after an exhaustive nearly three-week trial in which both sides were afforded ample opportunity to put forth a case.

We were elated. Many of us celebrated across California and the nation, because this ruling would have national impact, even as it allowed the hundreds of thousands of California's gays and lesbians to marry. I was among the crowd at a rally cheering the legal team of Ted Olson and David Boies, who willingly accepted Judge Walker's invitation to prove their case. The Prop 8 case was theirs under the leadership of the American Foundation for Equal Rights.

It was truly justice done. But as with so much else, it was also justice unfinished.

The proponents of Prop. 8 promptly appealed the ruling. Judge Walker issued a "stay" until the 9th Circuit Court of Appeals sat, which even on an expedited basis meant three more months of waiting. And even then, the 9th Circuit punted a technical question to the California Supreme Court, essentially saying: "Do the proponents of a ballot measure have standing when the government refuses to appeal?"

Arguments will be heard next month, then after that, the case goes back to the 9th Circuit, and likely to the U.S. Supreme Court, which could add a year or more to the process.

The wheels of justice indeed turn slowly.

But let's look at what this trial has already accomplished.

1. For the first time in history, the entire legal and political establishment joined the effort to create marriage equality. Olson and Boies argued the infamous Bush v. Gore case before the U.S. Supreme Court. They are from opposite ends of the political spectrum and are among the most sought after litigators in the nation. The Prop 8 case was theirs, not that of a specific interest group. When asked by Chris Wallace on Fox News what's wrong with people voting on each other's rights, Mr. Olson silenced him with a question of his own: How would Mr. Wallace feel about people voting on whether Fox News should be on the air? Remember, this was Ted Olson, the former Solicitor General for President George W. Bush.

2. Every argument that has ever been used to vilify gay and lesbian people was exposed and debunked during the trial. Remember Anita Bryant, the Florida orange juice beauty queen, who first proved that attacking gay people at the polls was good for turnout? Her invectives, which have been the basis of every ballot measure, legislative fight and right wing organizing effort, were put on trial during Prop 8. The judge found that gay and lesbian people, in fact, do not undermine society, do not hurt children and do not choose their sexuality. Indeed, our opponent's own witness said allowing gays and lesbians to marry would be better for children of gays and lesbians, better for gays and lesbians and better for America. That was their witness. Bye bye, Anita.

3. The proponents did not put on a case. Seriously. Judge Walker almost begged the lawyer for the proponents, Mr. Charles Cooper, to put on a case for why allowing gays and lesbians to marry would harm the nation or the institution of marriage. They did not follow through because they had no case. Messrs. Boies and Olson put on 17 witnesses; the proponents only two, one of whom was ruled by Judge Walker to be "unreliable."

4. Public opinion has shifted radically and quickly in favor of same sex marriage, as much as eight points in the past two years. In May of this year, 53% of the American people favored same-sex marriage. The trial and verdict were not the only reasons for the change, but they accelerated it. A federal court ruling is great validation.

5. At last month's first-ever Senate hearing on repealing the Defense of Marriage Act (DOMA) that denies legally married gay and lesbian couples the same federal rights as their straight counterparts, Focus on the Family's Tom Minnery testified that should DOMA be repealed, heterosexual parents would be faced with the "problems of coping with marriages of which they overwhelmingly disapprove." Never mind how individual rights might come into play on this, but he asked how would these same parents "protect" their young children against other views?

6. California may face a referendum that says that teaching about LGBT people in history will harm children. They're using the same arguments -- again. Only this time, we have them all laid out and debunked in federal court.

7. The trial testimony was widely disseminated. I live-blogged the entire trial for the Courage Campaign's Prop. 8 Trial Tracker, which generated more than four million views and 120,000 comments. The essence of the Prop. 8 trial is now at the disposal of hundreds of thousands of people around the nation and the world.

Walker's ruling and the court's 80 statements of fact were airtight. According to Walker, our opponents offered a "rather limited factual presentation."

During the trial, Mr. Cooper argued that the state had a role in "promoting naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation." When asked by the judge how permitting same-sex marriage impairs or adversely affects the state's interest in the purpose of marriage being procreative, Mr. Cooper replied that the inquiry was "not the legally relevant question."

When pressed for an answer, Mr. Cooper replied, "Your honor, my answer is I don't know. I don't know."

But the nail in the anti-love coffin came during closing arguments. Our opponents again focused on the contention that "responsible procreation is really at the heart of society's interest in regulating marriage."

When asked by Judge Walker to identify the evidence at trial that supported Mr. Cooper's contention that marriage is for the sole purpose of procreation, Cooper replied, "you don't have to have evidence of this point."

And that right there says it all.


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