Controversies around Prop 8 and the lawsuit to overturn it continue almost unabated. Anti-equality activists want all film of the trial "put under lock and key," so that no one may view it. The presiding judge in the case had shown a 3 minute clip during a lecture he gave and that got Prop 8 proponents in a tizzy.
You might remember that proponents of Prop 8 were adamantly against allowing the public see and hear their actual case. Prop 8 opponents, in contrast, were happy to make it public.
When it came to the majority voting on whether a minority had the same rights as themselves, Prop 8 proponents were advocates of "let the public decide." When it comes to the trial itself, they don't want the public to have easy access.
So, why the sudden switch from trusting the public to demanding secrecy?
Perhaps the reason is that political campaigns and courtrooms have different sets of rules. A courtroom has procedures aimed at ferreting out truth; political campaigns rely on spin, sometimes deception.
The trial showed that opponents of marriage equality simply didn't have a case. The evidence offered was extremely weak. And they didn't offer as evidence the same claims they made during the campaign. The reason is simple -- their campaign relied heavily on lies and distortions.
For example, during the trial, Prop 8 attorney Charles Cooper said marriage was established for procreative purposes and marriage equality would harm that. Judge Walker asked how that would be and the reply was, "My answer is, I don't know. I don't know."
Cooper tried to argue a version of the precautionary principle, which basically means that if anyone can imagine harm, without concrete evidence, there is sufficient cause to ban the thing in question. He literally said, "There are things we can't know, that's my point." We should ban equality of rights because of what he doesn't know. Interesting logic.
Election campaigns are different. There is no cross examination and no rules of evidence to get in the way. Prop 8 proponents used that to advantage with a series of television ads that knowingly distorted the facts.
They claimed Catholic Charities in Massachusetts was forced to close because it would be required to recognize gay marriage. Catholic Charities had been ordered by the church to discriminate against gay people. But this, in itself, is actually legal for religious groups.
However, Catholic Charities also acted as a state contractor and received state and federal money. It was told that while legally allowed to discriminate, it couldn't do so if it wanted to put its hands in taxpayers' pockets. The charity said it would rather discriminate than take tax funds. But it also said it would close down, because the church didn't want to use its own money for these services. A Mormon charity which did not take tax funds, offering the same sort of discriminatory adoption services, stayed open.
Another Prop 8 commercial claimed a New Jersey church lost tax exemption for not recognizing gay marriage. Odd, since New Jersey didn't allow gay marriage. The case was quite different. A church owned a pavilion on the boardwalk and had applied to get tax exemption for it. It was not a church itself. They argued the property should be tax exempt because it was open to all the public as a service to the community. They were granted tax exemption on that condition. They then denied use of the building to gay people, showing it was not open to the public as previously claimed. They gained the right to discriminate on private property, but because it was now private property, and not a public service, lost the tax exemption.
Another example of dishonesty was a commercial about kids in a San Francisco school being forced to attend a gay marriage. No child actually attended a gay marriage, but some did greet their teacher outside City Hall after she got married. They were not forced to go there; their parents took them. It was not a school project, but a parental request that was approved.
The parents took their children there to surprise the teacher. It was done during lunch hour, using public transit, chaperoned by parents, not by officials from the school. Prop 8 then used photos of these children, without parental permission, for their deceitful television ad. While falsely claiming that parental rights were being denied because of "gay marriage," Prop 8 used the children against the wishes of their parents.
One mother aptly said:
"Prop 8 claims to be about families, but we're here to say you can't be for families by attacking our families. You can't be for families and take these children's innocent images and flash them not only on television statewide, but on your fund raising page."
None of this would fly in court. In court, a bad case is at a disadvantage since it has to use facts, not just dishonest appeals to fearful emotions. The head of an anti-equality campaign in Maine, Marc Mutty, admitted that they used dishonest tactics to win votes. In the video below he said:
"One of the problems that I have: I know what we need to do and what we need to do is slam people over the head, not only with a two-by-four, but a two-by-four with nails sticking out of it. ... Unfortunately, I think it's a lousy approach, but it's the only thing we've got and it's the only way. That's the way campaigns work. And we use a lot of hyperbole, and I think that's always dangerous. You know, we say things like 'Teachers will be forced to...!' Well, that's not a completely accurate statement and we all know it isn't, you know? ... Let's look back at our ads and see what we say. And I think we use hyperbole to a point where, you know, it's like 'Gee-ee-eez!'"
He said it well. "It's the only thing we've got." That just doesn't work in court.