06/15/2011 09:41 am ET | Updated Aug 15, 2011

Lawyers Defending Prop 8's Ban on Same-Sex Marriage Continue to Self-Destruct

On June 14, 2011, Emma Ruby-Sachs posted an article entitled "Prop 8 Lawyers Seek to Destroy America's Judiciary."

Her article argued that the lawyers seeking to uphold the constitutionality of Prop 8 (banning same sex marriage in California) sought to destroy America's judiciary when they moved to vacate the trial court's opinion striking down Prop 8 as unconstitutional on the basis that the judge issuing the opinion was gay. The movants argued that Judge Walker stood in the same position as the plaintiffs in the lawsuit he decided because he was gay and in a long-term relationship. The movants argued that Judge Walker might wish to marry his partner, and could not do so in California unless Prop 8 was overturned. Ruby-Sachs argued that recusal would be mandatory for any gay judge under the movants' logic and that the removal of minority judges from any case involving the rights of that minority would have terrible consequences. Judge Ware denied the movants' motion on June 14 and movants have announced that they will appeal his denial.

Ruby-Sachs is correct to be concerned, but she understates the nature of the problems with the movants' logic, for no judge could decide the challenge to the Prop 8 case under the movants' logic. Recusal would be required for any gay judge because any gay judge could benefit from the overturn of Prop 8. Even if they were not currently in a long-term relationship, or were already married, circumstances could easily change and if they desired to marry (or remarry) Prop 8 would prevent them from marrying in California.

What Ruby-Sachs missed is that under the logic presented by the legal teams supporting Prop 8 any heterosexual judge must recuse because s(he) stands in the same position as the Defendant State of California. Any heterosexual judge is either married or may wish to marry -- and the legal argument of the team defending Prop 8 is that if it were overturned existing heterosexual marriages would suffer and the opportunity to enter into a heterosexual marriage would fall. If the proponents of Prop 8 are correct, then every straight judge would be personally exposed to the grave injuries that California would suffer (under the proponents' logic) should Prop 8 be overturned.

The counsel defending Prop 8 promised in their trial brief (pp. 9-11) to prove that overturning it would "very likely harm" twenty-three important interests of the State of California. Those harms would, under their logic, cause personal injury to any heterosexual judge that might decide the case. Married, straight judges, for example, would "very likely" find that in the apocalypse sure to follow the loss of Prop 8 "same-sex marriage would or could":

  • "Entail the further, and in some respects full, deinstitutionalization of marriage"
  • Cause "higher rates of divorce"
  • Even the rights of parentage would be at risk because of: "a significant expansion of the power of the state to determine who is entitled to parental rights"
  • Heterosexual judges who are mothers (and their children) would be put at special risk if Prop 8 were struck down because it would "result[] in fewer men believing that it is important for them to be active, hands-on parents of their children."

Unmarried straight judges would face these problems if they ever got married, but they would also find it harder to get married because "same-sex marriage would or could":

  • Cause "lower marriage rates"
  • Lead to "polyamory and polygamy" and "group marriages" (in order to satisfy all the desires of those with a "bisexual orientation")
  • "Either end altogether, or significantly dilute, the public socialization of heterosexual young people into a marriage culture" [thereby destroying the sundry magazines for prospective brides, reducing the sale of bridesmaid dresses that add so much color to our daughters' closets, and slowing our recovery from the recession -- sorry, I teach economics as well as law and I was swept up by the spirit of the Prop 8 proponents' "parade of horribles"]

Any heterosexual judge from a faith group that held that wearing fiber blends, eating bacon or shrimp, or being a homosexual (respectively, Leviticus 19, 11, and 18) should lead to execution or banishment and eternal damnation would face special demands for recusal under the logic of the proponents of Prop 8 for they claim that overturning it would deny the traditional faith community its freedom of religious belief. Their trial brief asserts that overturning Prop 8 would:

  • "Force some religious organizations now receiving public support to cease providing charitable services to the poor...." [My personal rule is that if you don't want to eat trayf, don't eat the bacon and the shrimp. Don't pass a civil law telling me I can't eat bacon and shrimp. If you don't want to marry someone of the same sex or your religious tradition forbids you do so and you have decided to follow that tradition, don't marry them. Don't tell homosexuals they can't marry. But it is beyond the pale for anyone to claim that they were "force[d]" to "cease providing charitable services to the poor" because some of those poor are married to a same-sex partner. Here's some free legal advice to the attorneys defending Prop 8 -- when you tell a court that you are going to demonstrate that the purported Christians (as an example) whose rights you are purportedly defending would rather let poor heterosexuals die rather than take the chance that they might also aid a poor homosexual you are implicitly telling the court that Prop 8's leading proponents do despise homosexuals. I get confused by your claims of compassion. Exactly what aspect of "love the sinner" leads you to threaten to deny charity to poor straights lest you inadvertently aid a poor gay couple? And how dare you seek to deny your moral accountability for your threat to desert one of the central obligations of your faith by claiming you were "forced" to do so when what is really happening is that you have decided to hold the poor hostage to your political agenda?]

I'll conclude by quoting what the Prop 8 proponents promised to demonstrate through evidence at the trial would occur absent Prop 8 -- the end of the nation. Same-sex marriage would:

"Seriously threaten the functions and symbolism of marriage, thereby posing a risk to children and the demographic continuity of society."

When televangelists claim that gays caused Hurricane Katrina to devastate New Orleans, we are faced with the theological question of why they characterize their deity as a mass murderer of the innocent, but we don't have high expectations for televangelists. I'm quoting lawyers, and not some extemporaneous remarks they made under pressure. I'm quoting from their trial brief, which they submitted after months of work honing their arguments. They promised the court that they would present evidence proving that permitting same-sex marriages risked causing the extinction of humans. This represents a bizarrely irrational effort to provide a rational basis for Prop 8. The lawyers defending Prop 8 are zanier than the most homophobic televangelists.