County Fair

Prop 8 Supporters: We Didn’t Really Mean What We Said About Same-Sex Marriage

May 27, 2011 4:27 pm ET by Carlos Maza

Over the past few months, several anti-gay right-wingers have been pushing the ridiculous argument that federal Judge Vaughn Walker’s decision to overturn Prop 8 should be vacated because he is gay and thus a “direct beneficiary” of his ruling.

As Equality Matters pointed out in April, however, this argument would also disqualify heterosexual judges, since defenders of Prop 8 claim that same-sex marriage would undermine opposite-sex, “traditional” marriages.

As the San Francisco Chronicle reported this week, that observation is becoming a growing problem for the pro-Prop 8 crowd:

Campaigners for California's ban on same-sex marriage in 2008 told traditional families they had much at stake: the future of marriage itself and the need to "protect our children," as one ad put it, from the impact of legalized gay and lesbian unions.

Now, as the sponsors of Proposition 8 try to convince the courts that the judge who overturned the measure had a built-in bias as a gay man with a longtime partner, their opponents are invoking that same campaign message: If Prop. 8 was meant to preserve opposite-sex marriages, they argue, then any judge, gay or straight, would have the similar conflict of interest.

The campaign to get Prop 8 passed in California made quite clear that same-sex marriage posed a direct threat to heterosexuals. Perhaps most notably was the National Organization for Marriage’s now infamous “Gathering Storm” television ad, in which paid actors told wildly inaccurate horror stories about the impact marriage equality would have on everyday Americans:

Some who advocate for same-sex marriage have not been content with same-sex couples living as they wish.

Those advocates want to change the way I live.

I will have no choice.

The storm is coming.

Charles Cooper, the lead attorney defending Prop 8 in the 2010 Perry v. Schwarzenegger trial, has been scrambling to explain himself:

"Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual's existing marriage will be affected," said Charles Cooper, lawyer for the Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage.

"The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd." [SF Chronicle, 5/25/11]

Cooper’s attempt to nuance his way out of a tight spot is admirable but totally unpersuasive. During the Perry trial, he relied heavily on claims that heterosexuals and society as a whole had a substantial interest in denying gay and lesbian couples the right to marry.

One need look no further than a document Cooper submitted to Judge Walker before the trial, responding to a number of questions from the court.

Same-sex marriage will increase the rate of divorce, cohabitation, and out of wedlock childbirth:

Taken together, the evidence… strongly suggests that redefining marriage to include same-sex unions will change the public meaning of marriage in ways that will weaken the social norms that seek to discourage procreative sexual relationships and childrearing outside of marital bonds… The evidence suggests that as a result, there will be lower marriage rates, higher rates of divorce and cohabitation, more out of wedlock children, and fewer children raised by both of their biological parents. [emphasis added]

Same-sex marriage would “lead directly to poorer outcomes for society”:

Poorer outcomes for children, of course, lead directly to poorer outcomes for society… [M]arriage between men and women benefits “society as a whole because these are the family unites that are most likely to produce good outcomes for children and, thus, be the kind of seedbeds from which good citizens and people who are… positive contributors to society.”


It is thus clear that when marriage weakens in its ability to channel procreation and childbearing into stable and enduring family units, compromising the child and its biological mother and father, society as a whole suffers. [emphasis added]

Same-sex marriage would infringe the “fundamental liberty interests” of supporters of “traditional” marriage:

[S]uch a redefinition will likely infringe, or at least threaten, the First Amendment and other fundamental liberty interests of institutions, parents, and other individuals who support the traditional opposite-sex definition of marriage on religious or moral grounds.

Same-sex marriage could weaken the “foundation of the family and society, without which there would be neither civilization nor progress”:

California’s interest in increasing the likelihood that children will be born to and raised by their biological mothers and fathers in stable and enduring family units is a government interest of the highest order. Not only is this core procreative purpose of marriage “fundamental to our very existence and survival,”… it also encompasses the state’s “duty of the highest order to protect the interests of minor children.”… Indeed, “[i]t is hard to conceive an interest more legitimate and more paramount for the state than promoting an optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society.”… For all of these reasons, the Supreme Court has recognized that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.”… For the same reasons, California has a compelling interest in proceeding with caution when considering changes to the vital institution of marriage that could well weaken that institution and the critically important interests it has traditionally served.

It’s plainly obvious that, if Cooper’s arguments in favor of Prop 8 are to be taken seriously, any heterosexual judge would also be a “direct beneficiary” of a decision in to uphold that law.

Supporters of Prop 8, who were so eager to use scare tactics and gross exaggerations to get voters to the poll in 2008, are now frantically backpedaling in order to be taken seriously in court:

Theodore Boutrous, a lawyer for two same-sex couples and a gay-rights group that challenged Prop. 8, said the measure's sponsors were contradicting their campaign message that heterosexuals needed protection from same-sex marriage.

"It's a stunning admission that all the arguments they were making before are completely baseless," he said. [SF Chronicle, 5/25/11]

Looks like the anti-equality side is getting a little taste of karmic justice.


Proposition 8 Opponents Push To Release Trial Footage

Prop 8 Defenders Accidentally Admit Same-Sex Marriage Has No Negative Consequences

Eastman: Gay People Shouldn’t Be Allowed To Decide Court Cases About Gay People

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