A federal judge in San Francisco will hear closing arguments tomorrow in a lawsuit challenging Prop. 8, which banned gay marriage in California. But don’t expect this to be a simple back and forth between “gays have a right to marry” and “marriage is between a man and a woman.” Lawyers for both sides have a total of 39 questions Judge Vaughn R. Walker issued last week. Here’s a round up for the lay person and those who don’t have time to read eleven pages:
The predictable questions: Where’s the data that gay marriage reduces discrimination against gays and lesbians? Where’s the data that gay marriage is bad for the rest of us?
The historical questions: How can gays and lesbians have a fundamental right to constitutional protection when they only got legal protection recently?
The bizarre questions: How are same-sex couples different from hetero couples where one partner is infertile? If men can’t choose to be gay but women can choose to be lesbians, are they to be treated the same under the Equal Protection Clause?
The doctoral-thesis questions: What does it mean to have a “choice” in one’s sexual orientation? (His quotes). What does it say about Prop. 8’s constitutionally if sexual orientation is socially constructed?
You can get the full questions at the San Francisco Chronicle: links.sfgate.com/ZJUV.
His questions are noteworthy though not just for what they say about the state of gay rights today but what they suggest about racism and how we challenge it.
Take the judge’s first question: what if voters weren’t trying to discriminate? What if they thought Prop. 8 would just encourage biological parents to raise their kids? This would fly in the face of the anti-Prop. 8 lawyer team that’s argued the measure was based in bias against gays and lesbians.
Sound familiar? A common argument about racism is: I didn’t mean to do it. In other words, the law didn’t intend to discriminate against people of color. From prison sentencing to privatizing water, we’ve learned in painful ways that it doesn’t matter what anyone intended to do. It’s the impact on a community that determines whether discrimination has taken place.
Therese Stewart, San Francisco’s chief deputy city attorney, reminded the San Francisco Chronicle that when the U.S. Supreme Court struck down a 1996 Colorado ballot measure that would have prohibited cities from protecting gays and lesbians against discrimination, the court didn’t speculate about voters’ motives. Why? Because really, at the end of the day, who can see into the inner workings of anyone’s mind?
This means that the power team chosen to argue against Prop. 8 made a misstep, however small, by relying on voter intent to prove discrimination.
Another of Judge Walker’s questions that should give us pause is about the fluidity of sexual orientation.
During testimony, the judge heard about a survey reporting that 88 percent of gay men said they didn’t have a choice about their sexual orientation while only 68 percent of lesbians felt that way. Court watchers speculate that this is what prompted Walker’s question about whether lesbians and gay men are entitled to equal protection if they have different experiences of sexual orientation.
This is like saying: all Christians are protected by the Constitution but pagans and santeros—not so much. As Lambda Legal Defense and Education Fund attorney Jenny Pizer told the LGBT media outlet Keen New Service:
“People who are raised in an orthodox faith may be less likely to change their religious views or affiliations than people raised in faiths that accept greater diversity of belief. But do the orthodox get more constitutional protection for their exercise of religion than those whose beliefs are broader or more flexible in their expression? No. Equal protection means equal.”
Again, the anti-Prop. 8 team walked into this one and countless other people before them have, too. To be fair, it’s understandable why someone might think saying “I was born gay” is like saying “I was born black” or “I was born Muslim.” But we seem to forget that “I was born black” didn’t win legal battles in the sixties or today. What wins is “this law violates the equal protections of Black people or Muslims or santeros.”
Judge Walker listens to one day of closing arguments tomorrow and then he’ll head back to his desk to render his decision. All the attorneys are expecting the decision to be appealed to the Supreme Court.
Photo: Creative Commons/ProtestProp8