Losing Their Appeal: The Real Reason the Right is Terrified by the Prop 8 Case

To: Progressive Allies
From: Michael B. Keegan, President, People For the American Way
Re: Losing Their Appeal: The Real Reason the Right is Terrified by the Prop 8 Case
Date: August 24, 2010

In the weeks since Judge Vaughn Walker found California's gay marriage ban unconstitutional, the Right Wing has, unsurprisingly, worked itself into a characteristic bigoted bluster. But this time, something about the bluster is different.

The Right's early reactions to the decision in Perry v. Schwarzenegger ranged from the purely vitriolic:

The American Family Association: "[Judge Walker is] a black-robed tyrant whose own lifestyle choices make it impossible to believe he could be impartial."

... to the conspiracy theorist:

Concerned Women for America: "Homosexual activists use same-sex 'marriage' as a political juggernaut to indoctrinate young children in schools to reject their parent's values and to harass, sue and punish people who disagree."

...to the constitutional revisionist:

The Family Research Council, apparently forgetting that Prop 8 was found unconstitutional under the 14th Amendment, itself an attempt to right one of the Founders' omissions: "To hold that the Founders created a constitutional right that none of them could even have conceived of is, quite simply, wrong."

This parade of apoplectic anger is nothing new--the Right has fought every step toward acceptance of gay people with similar Armageddon-invoking tirades. What is remarkable about the reaction to the Prop 8 decision is that within the anger are the beginnings of admissions of defeat. The Right has won many important battles against gay rights, but they are losing the war...and they know it.

A few days after Judge Walker's decision, the pseudo-historian David Barton, founder and president of the right-wing group WallBuilders, explicitly described the nervousness that has been behind much of the Right's outrage. The case against Proposition 8, Barton argued, could win in the Supreme Court...so opponents of marriage equality should sacrifice California in order to save anti-equality laws in 31 other states.

"Right now the damage is limited to California only," Barton told Tim Wildmon, President of the American Family Association during a radio interview, "but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California...the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision."

For years, the Right has watched its anti-gay agenda lose credibility as public acceptance of gays and lesbians has steadily grown and intolerance has declined. And that trend is going strong, as young people of all political stripes are more likely to know gay people and more willing to grant them equal rights and opportunities, including the right to marriage. A CNN poll this month found that a majority of Americans think gays and lesbians should have the right to marry--the first time gay marriage dissenters had slipped solidly into the minority in a national poll. Even in California, where Proposition 8 passed on the ballot in 2008, a poll earlier this year found a majority now support same sex marriage rights. Indeed, this change is even visible on the Right, where the fight against equality is being waged by an increasingly marginalized movement. Who would have ever thought that Ann Coulter would be booted from a right-wing conference for being "too gay friendly"?

Of course, basic human rights should never be decided by majority vote--they are guaranteed by the Constitution. But, on the issue of gay rights, the Right Wing now finds itself up against both the Constitution and the will of a steadily increasing majority.

Moreover, in addition to a fundamental change in public attitudes, the Right is also facing a monumental transformation on this issue in the judicial arena. Nowhere was this more evident than in the courtroom at the Prop 8 trial, where Ted Olson, the conservative attorney most famous until now for essentially winning the presidency for George W. Bush in Bush v. Gore, invoked case after case of legal precedent to back up constitutional arguments against marriage discrimination, and brought in witness after witness to testify to matters of fact. In response, attorneys for the Right Wing organizations backing Prop 8 could only manage to sputter tired prejudices barely disguised as legal arguments regarding the mythical damage to society caused by legal recognition of gay couples.

It was clear in the opinion of Judge Walker, nominated by both Ronald Reagan and George H.W. Bush, who laid out 136 pages of factual findings and legal reasoning to support the case of equal access to marriage as a fundamental constitutional right, and debunked the myths of its opponents.

And it is clear in the aftermath of Walker's decision, where Republican Governor Arnold Schwarzenegger--by no means a hero to the gay rights movement--has shown no interest in appealing the case that bears his name.

David Barton is correct that the Right's tired anti-gay arguments may not stand a strong chance, even in the current, exceptionally conservative Supreme Court. Dahlia Lithwick has argued that Judge Walker's opinion was formulated specifically to persuade Justice Anthony Kennedy, currently the Court's "swing vote." It's true that Walker backed up his legal arguments with repeated citations of Justice Kennedy's opinions in two anti-gay discrimination cases. But it's important to remember why this appeal to Kennedy is remarkable. Kennedy is hardly a liberal, or even a moderate justice--in fact, a recent study found him to be one of the ten most conservative justices to serve in past 73 years. If even a very conservative Supreme Court justice has shown a fundamental understanding that the Constitution's protections extend to gays and lesbians, the anti-marriage case stands on very shaky legal ground indeed.

The Prop 8 lawsuit was meant from its inception to be a broad constitutional challenge to statewide bans on marriage for gays and lesbians. Whereas previous fights had been fought on smaller geographical or legislative turf, both sides of the Prop 8 case had their sights set from the start on a broad, national Supreme Court ruling on the constitutionality of marriage discrimination. Opponents of marriage equality still boast outwardly of the merits their case will have before the Court. But it seems that they are beginning to see that this case is likely to be both a far-reaching victory of the principles of dignity and personal freedom, and a powerful sign that anti-gay arguments, though loud as ever, are increasingly being shouted from the legal and social fringe.

There is no question that, regardless of the ultimate verdict in the Prop 8 case, the work of equal rights advocates is far from over. The anti-gay fringe movement still makes noise disproportionate to its size, and is determined to fight to retain every anti-gay law currently on the books.

But if the Right does sacrifice California, either by choice or because the Ninth Circuit Court of Appeals finds they lack standing to pursue the case, the groundwork has been laid. Americans of all political stripes believe that their gay friends and family members have the right to equal protection under the law, and there is now a solid legal and factual precedent to back it up, shaped in large part by a conservative lawyer, filed by a conservative judge, and echoed by the traditions of a nation devoted to fairness and respect.

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