– Over at Fox News [sic], Ted Olson silenced the states’-rights argument in favor of Prop 8 last weekend by asking Chris Wallace: “Would you like Fox’s right to a free press put up to a vote and say, well, if five states have approved it, let’s wait till the other 45 states do?” (No answer was forthcoming.) –
Much has been said about the triumph of the odd-couple legal team, the former Bush v. Gore adversaries Ted Olson and David Boies, who opposed Prop 8 in court. But of equal significance is the high-powered lawyer on the other side, Charles Cooper. He was named one of the 10 best civil litigators in Washington in the same National Law Journal list that included Olson and, in his pre-Supreme Court incarnation, John Roberts. Yet, as Judge Walker made clear in his 136-page judgment, Cooper, for all his talent and efforts, couldn’t find facts to support his argument that full civil marital rights for same-sex couples would harm the institution of marriage, children or anyone else. Cooper only managed to summon two “expert” witnesses. In the judge’s determination, one undermined his credibility by giving testimony contradicting his own opinions while the other provided “evidence” rendered worthless by its lack of scientific methodology or even fundamental peer-review vetting.
Boies and Olson produced nine expert witnesses with the relevant professional and academic expertise lacking in Cooper’s duo and compiled an encyclopedic record of empirical findings that demolished the arguments for denying gay families equal rights under the law. In the understatement of The Economist, that record “now seems a high hurdle” for the Supreme Court to overturn. That could still happen, of course, and already there are signs of a campaign from the right to besmirch the likely swing justice, Anthony Kennedy. Though Kennedy was a Ronald Reagan appointee who wrote much of the unsigned decision in Bush v. Gore, that did not prevent him from being called “the most dangerous man in America” by the family-values czar James Dobson after Kennedy wrote a majority opinion decriminalizing gay sex in 2003.
There has already been an attempt to discredit Walker, who has never publicly discussed his sexual orientation but has been widely reported to be gay. The notion that a judge’s sexuality, gay or not, might disqualify him from ruling on marriage is as absurd as saying Clarence Thomas can’t rule on cases involving African-Americans. By this standard, the only qualified judge to rule on marital rights would be a eunuch. No less ridiculous has been the attempt to dismiss Walker as a liberal “activist judge.” Walker was another Reagan nominee to the federal bench, recommended by his attorney general, Edwin Meese (an opponent of same-sex marriage and, now, of Walker), in a December 1987 memo residing at the Reagan library. It took nearly two years and a renomination by the first President George Bush for Walker to gain Senate approval over opposition from Teddy Kennedy, the N.A.A.C.P., La Raza, the National Organization for Women and the many gay groups who deemed his record in private practice too conservative.
The attacks on Walker have fizzled fast. With rare exceptions from the hysterical fringe — Michele Bachmann, Newt Gingrich — most political leaders have either remained silent about the Prop 8 decision (the Republican National Committee) or punted (the Obama White House). Over at Fox News, Ted Olson silenced the states’-rights argument in favor of Prop 8 last weekend by asking Chris Wallace: “Would you like Fox’s right to a free press put up to a vote and say, well, if five states have approved it, let’s wait till the other 45 states do?” (No answer was forthcoming.)
Most of those who do argue for denying marriage equality to gay couples are now careful to say that they really, really like gay people. This, like the states’-rights argument, is a replay of the battle over black civil rights. Eric Foner, the pre-eminent historian of Reconstruction, recalled last week via e-mail how Strom Thurmond would argue in the early 1960s “that segregation benefited blacks and whites and had nothing to do with racism” — as if inequality were O.K. as long as segregationists pushing separate-but-equal “compromises” claimed their motives were pure.
Still another recurrent argument from the Thurmond era has it that no judge should overrule the voters, who voted 52 to 48 percent in California for Prop 8 in 2008. But as Olson also told Chris Wallace, “We do not put the Bill of Rights to a vote.” It’s far from certain in any event that a majority of California voters approve of Prop 8 now. A Field poll released two weeks before Walker’s ruling found that Californians approved of same-sex marital rights by 51 to 42 percent. Last week a CNN survey for the first time found that a majority of Americans (52 percent) believed “gays and lesbians should have a constitutional right to get married.”
None of this means that full equality for gay Americans is a done deal. Even if it were, that would be scant consolation to the latest minority groups to enter the pantheon of American scapegoats, Hispanic immigrants and Muslims. We are still a young, imperfect, unfinished country. As a young black man working as a nurse in a 1980s AIDS clinic memorably says in Tony Kushner’s epic drama “Angels in America”: “The white cracker who wrote the national anthem knew what he was doing. He set the word ‘free’ to a note so high nobody can reach it.”