Sitting in on the Prop 8 trial
The federal lawsuit challenging Proposition 8 began last week in San Francisco. I have a direct and obvious interest in the outcome; I like being married.
I have one of the 18,000 California same-sex marriages that remained in effect after the proposition passed in 2008. But it’s a piecemeal situation: the State of California considers me married, but Illinois doesn’t. Iowa does; Idaho doesn’t.
And as far as the U.S. government, I’m a single man.
This lawsuit challenges Proposition 8 on grounds that it violates the equal protection and due process protections of the U.S. Constitution. And if it turns out right, it could be a game changer like Loving v. Virginia, which struck down state laws on interracial marriage.
When the U.S. Supreme Court decided last week to block video from the trial, I lost my chance to see what was happening in the courtroom. Sure, I could follow the updates on Twitter, but the fortune cookie-length summaries didn’t feel like enough connection to a landmark case.
So I flew up to San Francisco to watch the trial.
The proceedings are open to the public. All that’s required is a civic interest and a photo ID.
There’s already ample online coverage about what’s happening, and what’s being said. But none of them put me in the room. With that goal, I want to provide a sketch of what it feels like to be there, since most Americans will never sit inside a federal district court.
Setting
The 17th-floor courtroom is impressive, both in appointment and scale; you could fit a basketball court snuggly in its footprint. Grooved planks of cappuccino-colored wood stretch up to a barrel-vaulted ceiling. At the front of the room, a massive wall of pale polished stone backs the judge’s bench. A single, undersized judicial seal hangs above. To the right of the judge, an American flag drapes around its pole, making it seem like the cloth is simply tacked to the wall by the brass eagle on top.
The court clerk and reporter sit on an elevated platform directly in front of the judge, a tangle of cables dripping over the edge.1 The witness sits to the judge’s left. A single podium faces the judge, and it’s from this spot that attorneys must direct their questions to the bench or the witness. There’s no pacing around. There’s also no way to physically approach the judge for a sidebar conversation.
Every courtroom drama you’ve seen has long tables for the prosecution and defense teams. Take those tables and rotate them 90 degrees. Place twelve chairs around each and you have room for a lot more lawyers, each working off a laptop or a black flat-panel monitor. The plaintiffs’ team fills every seat at their table, while the defense has between five and seven staffers at work, with additional support staff at side chairs or tables. Wire shelves hold rows of binders. It’s all very tightly packed. Any attempt to approach the podium means stepping around others.
There is no jury in this trial. The space where a jury box would be has consumer-grade videocameras on tripods2 and two sketch artists. One of them, a man who looks like actor Richard Jenkins, keeps raising binoculars to get a closer look at his subject.
Roughly a third of the floor space is devoted to six divided rows of benches for observers at the back of the courtroom. They’re pews, really, which adds to the churchy feel of the chamber. The first two rows are devoted to counsel and badge-wearing media. The back rows are open to the public. Altogether, maybe 100 observers can watch.
Unlike a conventional trial, the plaintiffs (a gay couple and a lesbian couple) sit with the crowd. There is really no other place to put them.
The chamber has no windows. Occasionally, you can hear thunder from the storms, but the room otherwise seems detached from the outside world.
Characters
Everyone springs to their feet when Judge Vaughn Walker enters. Now in his mid-60s, his Cronkite-ish voice would make him a good narrator for a History Channel documentary. Beyond an opening conversation with the opposing attorneys about newly-filed motions, he says little during the day. Based on recaps of previous days’ events, I expect him to be asking more questions directly of witnesses and counsel, but he mostly seems content to listen. 3
You see little visible difference between the two legal teams. They are both predominately white, predominately men, and invariably dressed in dark suits. 4 Crossing paths at the bathroom, you are never sure who is on which side. But everyone is polite, holding doors and squeezing tight in the elevator.
For each witness on the stand, one member of each legal team is empowered to speak. Everyone else keeps to leaning-in whispers or silently mouthed words as binders are passed. Post-It notes are passed back and forth, with additional staffers squeezing in through a side door that’s partially blocked by a large monitor.
Witness testimony is often accompanied by demonstratives, PowerPoint slides that show a graph or related text excerpt. Both teams have staffers assigned to getting these on-screen, along with other pieces of evidence such as video clips. The defendants had brief trouble getting video to play with a clip from the Yes on 8 campaign, but the day was otherwise free of technical issues.
Structure
For each witness, there’s a direct questioning, a cross-examination, and a redirect. During each phase, everything is more or less locked down. Attorneys and observers can (quietly) enter or exit the room, but everyone is expected to sit down and shut up. Judge Walker permits laptops and cell phones for email and tweeting, but beyond the light tapping of fingers on keyboards, it’s library-quiet in the room.5
That all changes the moment it moves from direct to cross, or cross to redirect. Suddenly, it’s a flurry of pent-up action and re-setting. It reminds me most of film production, with crews swarming the set the moment the director yells cut. Staffers bring new binders and huddle for quick conversations.
The judge calls a ten-minute break in the morning, and another one later in the afternoon. At lunch, everyone heads downstairs to the commissary on the second floor. I have lunch with the plaintiffs. It’s a small world; Jeffrey Zarrillo manages the same movie theaters in Burbank my husband used to run, and we know some of the same people.
While there is a lot of trial coverage online, I don’t see any traditional media all day. No cameras, no tape recorders, nothing.
The day’s work ends at 4 p.m., after the plaintiff’s redirect of Professor Lee Badgett.
Dialogue
In a trial without a jury, attorneys are not trying to elicit sympathy. That’s not say there are not emotional moments; several witnesses have teared up on the stand. But feelings are not as important as facts. Both sides are trying to get things on the record, which means getting witnesses on the stand to say what they need to say.
For direct testimony, this is pretty straightforward. The attorney asks a structured series of questions that allows the witness to make the required points.
During the cross-examination, the opposing attorney tries to make his case, either by presenting contrary evidence or drilling into a something the witness said. As an observer, this often feels like hearing the setup to a joke, trying to anticipate the punchline. The attorney asks a series of questions, and you wonder, “Where is he going with this?”
A few years ago, I had to give a deposition in a civil trial. I started the day giving very detailed answers, treating it like an EPK interview for a movie I’d written. Then I realized that every new thing I said introduced four more questions. By the fifth hour, I’d figured out the advice generally given to witnesses: listen, evaluate, formulate, talk. And then shut up.
We have a natural instinct to move things along and fill awkward silences, but the best witnesses take their time, unhurried and unflappable. When asked, “Would you also agree..,” they don’t. They restate their points in simple terms.
It’s nothing like movie or TV courtrooms with their zippy rhetorical boxing. Rather, it’s slow and calculated, like a chess match. During one particularly soporific stretch, the defense asked Professor Badgett to work through a lot of hypothetical math. Written figures are dry; spoken figures are numbing. To her credit as a witness, she cooperated without ever indulging his conclusions. But the audience thinned noticeably as the cross-examination reached its third hour.
The verdict
The trial is expected to wrap up as early as next week, so anyone hoping to see it in person should plan on getting there soon.
Depending on the testimony, it can be riveting or dull. Like church, you may find yourself squirming, trying to find new ways to sit on the benches without your tailbones breaking through your flesh.
But no matter how strongly you feel on the issue of same-sex marriage, it’s a fascinating opportunity to see a part of government that otherwise functions off-screen. I’d recommend a day in court to any interested citizen.
For a broader overview of the issues in this case, I’d point you to an excellent piece in the New Yorker.
- The court reporter’s transcript shows up in real-time on attorney’s laptops. I found myself reading it at times, amazed at her ability to keep up. ↩
- The video is carried via closed circuit to a spillover courtroom for the public. ↩
- Except this: Judge Walker admonishes San Francisco City Attorney Dennis Herrera for an underling’s poorly-executed deposition, saying that the aide needed a “woodshedding.” It’s a really uncomfortable moment, like a professor announcing a student’s failing grade while passing back exams. ↩
- After a careful census, I decided the men on the plaintiff’s team had slightly longer, shaggier hair. ↩
- I had forgotten my iPhone charging cable, so I kept my phone switched off to save the battery. This e-chastity ended up being a good thing, as it forced me to pay attention and take notes on paper, which became this sketch. A kind-hearted woman let me borrow her cable to charge up before my flight home. ↩
41 Responses to “Sitting in on the Prop 8 trial”
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January 20th, 2010 at 10:48 pm
Thanks for the overview – after reading twitter updates, and hurriedly written articles all day it’s nice to get the opportunity for a fully framed picture. Here’s to hoping you can soon be married in all 50 states.
January 20th, 2010 at 10:51 pm
Wow, thank you for taking me there. Fascinating indeed and were it not for fact that I live on opposite end of hemisphere, would surely have been there. Court reporters are amazing. And nothing beats taking notes down on paper.
January 20th, 2010 at 11:08 pm
Screenwriter, novelist, and now…journalist? As the kids say, “booya.”
Great stuff, John. Keep up the beat from the front lines.
January 21st, 2010 at 12:27 am
Very cool first-hand view… in many ways. Stunning to me that this kind of thing is still being battled in 2010, and more than a little disappointing. But I’m ever hopeful that your marriage will one day truly have the same support, recognition and legal protections as mine. I am certain that there are many things that could “threaten” my marriage… your happiness is not among them.
January 21st, 2010 at 12:51 am
Wow, thanks for the insight…
Hope you soon can say “we’re married” without looking on google maps first to see where you are right now…
January 21st, 2010 at 2:16 am
as society goes, I worry about changes like this not being rapid. 18.000 people married in California should be the final nail. only psychotic assholes don
t like gay people marry. Maybe the bible will take our world down because society thinks its ok now to be a sinner. I hope so. haha (don`t tell ryan i said it)but seriously, if matters like this is so hard to decide upon. what kind of humanity do we have?January 21st, 2010 at 4:37 am
As writers we should strive to have some understanding of every mindset, from Gandhi to Hitler. But I find it very, very difficult to understand what goes on in the head of somebody who would try to deny the right of two adults who love each other to formalize that union in marriage.
January 21st, 2010 at 5:22 am
I think it’s the same mindset that goes into any kind of oppression: a dehumanization of your victim, and relinquished responsibility to a higher authority:
“It’s not ME who says gay people can’t get married/blacks should be enslaved/women shouldn’t be able to vote, it’s religion/the government/just the way it is.”
The fact that this trial is happening at all is a great sign that we’re starting to really see each other as people, and take responsibility for that fact.
January 21st, 2010 at 6:42 am
Don’t suppose Denny Crane was there?
January 21st, 2010 at 7:23 am
Thanks for the lay of the land, John. And good luck.
January 21st, 2010 at 7:27 am
I`m just tired of nature being so slow. name one reason for having a trial, when all sane human beings should agree to the best solution right away.
there is this Oliver Stone issue with Hitler. And I think Oliver is a danger to society as this point. Some very high-status people should learn to shut thery`re mouths. They are guiding less understanding people (no offence)-to open up to dangerous thinking because some hero stated it.
listen always to the real message, never look up to people. Some chinese guy said it.
what society lacks is a good rule book. we can`t have conversation based on opinions any more. There is in fact right or wrong and people need to get that if humans ever is going to survive as a race.
January 21st, 2010 at 7:38 am
i guess the writing of this piece wasn’t that big a deal for you compared to the experience at large. and still you took me there right to the court room. i can see it before my eyes and i can picture everyone involved. this is great writing!!
i am so going to analyze this piece to improve my own writing. thank you!
and good look of course!!
January 21st, 2010 at 8:51 am
My favorite analysis of the anti gay marriage argument–
http://www.youtube.com/watch?v=yPvVnrV1tow
January 21st, 2010 at 9:35 am
It should go without saying that a person should be allowed to marry whomever they choose. Until the right-wing, religious fanatics in this country stop trying to control everybody else and force their “morals” down the throat of the country, there can be no real freedom in the United States. Civil rights cannot simply be “voted away,” that is the purpose of the Bill of Rights. Religious activists should be left out of these decisions completely. I invite you to my web pages devoted to raising awareness on this puritan attack on our freedom: http://freethegods.blogspot.com/2009/06/san-franciscos-gay-pride-parade.html
January 21st, 2010 at 10:13 am
I find it funny that this is “an issue” with our society and government today. For thousands of years, marriage was a religious/social interaction between two people. Since our government decided that married people now have more rights than single people, they are by definition discriminating our citizens.
In my opinion we should do one of two things. Either allow gay marriage across the board or remove the privileges of what a marriage means in this country’s tax and legal system.
January 21st, 2010 at 10:51 am
I still cannot believe how much time, energy and money has been wasted by people who for some reason care about what other people do. I may hate gay people. I may love them. But wtf do I care if they want to get married? Why stop 2 people from doing something they both want and makes them happy? Life is too short for all of this nonsense. It irks me like you wouldn’t believe.
January 21st, 2010 at 1:16 pm
John,
Thanks for sharing this. A week before this case was filed, I had a conversation with a friend in my book club. We’re both ivy league educated lawyers. She practices, I don’t (I’m a writer now), but I was clearly paying better attention in constitutional law class than she was. I argued Equal Protection and I also invoked Loving v. Virginia (though what I really hung my hat on was Brown v. Board of Education, which applied the Equal Protection Clause of the 14th Amendment, which was established in 1868, essentially invalidating Plessy v. Ferguson, which in 1857 had declared that African-Americans, whether slave or free, were not citizens entitled to the protections of the Constitution. It is manifestly obvious that the Equal Protection Clause, though passed in response to Plessy, the Civil War and the ending of slavery, applies to all citizens and was not crafted so as to only remedy the injustices that relate to race. In fact, the text specifically reads, “no state shall … deny to ANY PERSON within its jurisdiction the equal protection of the laws” (emphasis mine). What this must mean is that gay men and lesbian women must be granted equal protection under the marriage laws of every state within the United States. That this matter must be argued as if it were not self-evident on the face of it what the Constitutional text requires frustrates me no end. And yet, this too is part of our Constitutional history. Plessy denied African-Americans rights even in the face of the Declaration of Independence, which declared so boldly for its time that all men are created equal (which ought to have least extended Constitutional protections to black men, if we want to be literal-minded about the use of the word ‘men.’ The Fourteenth Amendment made it clear that rights belonged to all of us, whatever our gender, when it used the word “person.’
I suppose what amazes me, understanding our Constitutional history as I do, is that there’s actually an opposing argument that is sound enough, I presume, to sustain itself through a case. My friend certainly attempted such an argument — talking about the definition of marriage (which made me wonder if she’d gone to law school at all, since the U.S. Constitution has been understood to supercede the laws of the states ever since the supremacy clause was written into the Constitution at its inception. Of course, so much of what determines when we conform our laws to our Constitution is the social and political climate and the level of political will. Had we waited for the public to be ready for Civil Rights, I might still be sitting at the back of the bus. The Supreme Court of the United States granted my parents generation (and their progeny) the full Constitutional Rights to which we were always entitled (by dent of our common humanity) in 1954, with Brown v. Board of Education in 1954. This was well before the public was “ready”.
I was infuriated by the very idea of Prop 8, which shed light, once again, on why I oppose the Proposition system, a position a law school classmate and friend felt was undemocratic of me, which couldn’t have been further from the truth. In the United States (where we have a Republic, not a direct Democracy, but why split hairs), democracy has long been structured to ensure the protection of minority rights. Our founders understood that the tyranny of the majority was to be protected against, for the majority is not always right for being so numerous. It is, in fact, irrelevant whether people “like” gay marriage or gay people or homosexuality or homosexual sex. They are entitled to their opinions, which they may freely express thanks to the 1st Amendment. What they may not do (also thanks to the 1st Amendment and its Establishment Clause) is to impose their beliefs (to the degree that their beliefs are rooted in religious conviction, at least) onto others.
In truth, there is no principled argument to be made against gay marriage, nor have I yet to hear an unprincipled but at least logical argument. All of the arguments I’ve hard have been rooted either in religion (and the Establishment Clause is clear that these cannot stand) or in the “definition of marriage” in the laws of this or that state (which the Supremacy Clause makes clear shall not stand in the face of the Equal Protection guaranteed by the U.S. Constitution, which is the supreme law of our land for good reason).
It is clear that Gay Marriage will become a Constitutional reality, that there is no other Constitutionally supportable outcome. The only question is whether the political will exists for it to happen now. Let’s pray that it does. And if it does not, then let us remember, in the words of Sweet Honey and the Rock, “We Who Believe In Freedom Cannot Rest Until It Comes.”
January 21st, 2010 at 2:23 pm
I’ve been getting the minute-by-minute tweets from American Foundation for Equal Rights, and I’m very impressed (and heartened) by the strength of the case the plaintiffs appear to be making. Like other people have said, it’s amazing that this even needs to be debated (or voted on) in the freest country in the world in 2010, but let’s keep in mind that it wasn’t long ago that “Hey, we’re giving them their OWN water fountains!” was considered a perfectly valid legal argument.
January 21st, 2010 at 3:00 pm
Just read the New Yorker article, and while I’d heard of the opposition from many prominent gay rights groups, I was surprised to hear them argue that this issue should be “won back” in California at the ballot box, especially since so many of these organizations (e.g. Lambda Legal Defense) are legal organizations that should be making minority rights arguments rather than urging us to wait to confer a Constitutionally guaranteed right until the majority of citizens agree. Our Constitution exists so that majority rule will not carry the day when the majority is wrong. In a country where the Constitution is the supreme law of the land, the majority is wrong whenever they vote not to uphold Constitutional guarantees, as we did here in California with Prop 8.
As for the argument that a loss could delay the day when gay marriage does become legal across this land, I am sympathetic to that argument. But the truth is, no one knows if Harding v. Virginia delayed progress on gay rights, or whether that’s just how long it was going to take. In any event, I find it troubling when people argue that we ought delay in pressing for rights lest we lose. The historical record suggests that these efforts, even when they fail, are essential to moving the narrative forward. Plessy v. Ferguson, which upheld segregation, is the classic example. It upheld segregation, but it is also widely believed to have led to the Civil War and the Emancipation Proclamation, which led in turn to the 14th Amendment, which established the right to Equal Protection for all. It was nearly a century after Plessy when this right was used to overturn Plessy in Brown v. Board of Education, but even so, I’m convinced that without Plessy, the Civil War, Emancipation Proclamation, 14th Amendment and Brown v. Board of Education might not have occurred.
January 21st, 2010 at 6:40 pm
I quite enjoyed your article and respect the neutrality in which it was written, quite tactful. Kudos for flying up there, a sincere form of activism.
I hope that your marriage will be recognized on the federal level someday… soon, that is.
January 21st, 2010 at 9:04 pm
Thanks for posting this very informative update! I love your descriptions. Keeping my fingers crossed for a favorable outcome.
January 21st, 2010 at 11:51 pm
Yes, I’m also fascinated why this is still an issue in 2010. You would think society would be a bit more understanding, but oh well, we’re surrounded by intolerance.
January 22nd, 2010 at 12:30 am
Nice!
…well, you know what I think.
Living-room is a double entendre. — And so people should paddle.
Roe baby Roe baby Roe.
January 22nd, 2010 at 1:56 am
Don`t get up the podium and do a speech John. These people killed Jesus and shot mr King in the head.
January 22nd, 2010 at 5:35 am
Have faith, John. The side of good always loses a lot of battles before they win the war.
January 22nd, 2010 at 7:56 am
The only people who should care about gay marriage in this millennium are gays and lesbians, their friends and family, and divorce lawyers.
http://markfranek.wordpress.com/2008/06/16/expanded-marriage-rites-pose-no-threat/
January 22nd, 2010 at 11:54 am
Paula:
I think you are referring to the Dred Scott decision of 1857 rather than Plessy v. Ferguson (seperate but equal), which was decided in 1896.
January 22nd, 2010 at 2:13 pm
I HAVE A PROBLEM…
I believe that we should give equal rights to all. Marriage is an “Institution”. If a man and a woman want to marry, let them marry. If a man and a man want to marry or a woman and a woman want to marry, let them marry.
MY problem is in the hypocrisy of this argument. I have a childhood friend who happens to be Mormon that I speak to every couple of years whose father is a Polygamist. No joke. My friend has been excited for Prop 8 to get pushed through so that his father’s marriages would be recognized.
HOWEVER, I have another friend (2 friends total) who happens to be gay (Single. He ain’t ready for a commitment.) who is all for Prop 8 but when I asked him about Mike’s situation (Mormon friend) he thought multiple spouses wasn’t right. He LITERALLY said that marriage should just be TWO people.
SOMEONE TELL ME…it was originally said marriage should be a man and a woman, it’s (hopefully) changing to two consenting adults, but we’re not going to continue to adapt it for those wanting multiple spouses? I, personally, find “multiple spouses” odd BUT find it totally hypocritical to not allow them the same rights we are fighting for.
January 22nd, 2010 at 8:15 pm
@Indrid Cold:
If polygamy (and polyandry, because let’s be fair) becomes legal in one or more states, and gay people bankroll a referendum to ban it, then THAT will be hypocrisy. But I feel pretty confident in saying that that will never happen.
I, personally, don’t have any problem with polygamy except to the extent that it’s been used to subjugate women.
January 23rd, 2010 at 2:42 am
In my country gay people can
t give blood.... And people I consider sane in some situations agree to the law as its as it should be. That`s the major problem. Gouverments are rules by so called intellectuals. People who are good at remembering our history. And writing it down at the exam and show they learned it. Childish people, specially when so many old books are wrong.January 23rd, 2010 at 2:51 am
what the hell…. and the bible must be removed. and it
s wrong giving people the rights in the institution of marriage in the first place. so the gay people are fighting for something should not even be there. society is freaking crazy. and we are obeying the rules from this ancient system. its nuts.sorry for the writing mistakes (no breakfast). agree if you will, but in some distant future you will see how right I am. God is the grown up santa. and nobody see that. if humans need the church to go to for spiritual practise. then we are too dumb to survive as a race. then we are crazy. Have a nice day folks. do something special. 30.000 days. tops. it
s life and its very special.January 23rd, 2010 at 3:15 am
ignore the details-see what is going on
the bible is strict by telling us not quoting the text. and quoting that satan does it, is a quote of a statement, not text. also, because it talks about the nature of God. and we are not a part of that. since God is everything, it
s not satan telling it, but God himself. so most people didnt even read the bible.its the creation and stories. very dangerous having people using the stories in real life. the bible does more harm than good and it`s this major bias in men and women all around us. we do sins just praying to God, and not taking the facts in the stories and fixing them. so to us God is not real. even Einstein came to the conclusion. we go to Cern for deeper studdy. and it scares the hell out of me. boom, no more universe.
January 23rd, 2010 at 4:24 pm
Thank you John for doing a job the mainstream media should be doing.
Boring as it may be at times, it sounds like history is being made in front of your eyes.
I too believe that a positive outcome is inevitable. I only hope it will happen next week and not next year or next generation.
January 23rd, 2010 at 6:28 pm
Very interesting, John. I hope everything works out for the best. It’s a shame these sort of things have to go to court. It should be legal for all, no matter what. Best of luck. Kevin
January 23rd, 2010 at 11:25 pm
“In a country where the Constitution is the supreme law of the land, the majority is wrong whenever they vote not to uphold Constitutional guarantees, as we did here in California with Prop 8.”
Incorrect. The power of government flows not from the US Constitution but from the people. If the people decide other than the government decides, the people automatically win not only in principle but in fact.
To illustrate, the Communist Party thought they were righteous and right and the people in need of having that forced upon them from on high and yet with all the power of the Red Army, all they did was keep people from fighting. As the learned know, peace is not an absence of fighting, but of malice in the first place. When the Communists waned, the feelings and ideas of the people had not changed despite many decades of oppression and forced education. The Balkan fighting and the rest was bound to follow.
In this way, all sham peaces are merely preludes to the next war.
Right is not decided in theory and forced from without. It is whatever the people find affinity with and willfully choose to believe. If you attempt to act at odds with them, you will lose every time because they are legion and you are tiny before them. They can do anything they want and you cannot control them all. By the most simple passive-aggressive non-cooperation they will always thwart all comers.
If you convinced the people that you were right and they agreed, then all would be well. This court case is doing no such thing. Have no illusions. You may overturn Proposition 8, and you may not see an immediate revolt as the people withdraw their consent to be governed, but they will be no less against you than before and now will be filled with resentment at your presumption. The headlines of your opponents will read “Gays overturn the will of the people” and they will be factually if dramatically correct.
It will be another sham peace, waiting for the power enforcing it temporarily to lose attention and decline. I’d advise convincing the people to pass another proposition rescinding the previous one unless you want this to be anything other than an illusion. Overturning it will not make people agree with you. Making the people agree with you first will assure its overturn.
January 24th, 2010 at 7:49 am
@ Wojciehowicz
Prop 8 was passed because exactly 50% of people are below average. — It passed because the people voting didn’t understand the question. – The question on the ballot was: Do you think your religious views should be made law and imposed on all other people? – But the question they answered was: Do you personally believe in homosexual marriage?
They wrote what they believe, as though someone were taking a tally of their personal beliefs, rather than answering the question of weather or not their beliefs should be mandatory legal doctrine. – The first is a single variable determination. (Which 100% of people can make. – It takes little-to-no understanding to determine what you yourself think.) – The second is a 2 variable equation. – Which means statistically you’ve lost 50% of the population right off the bat. – (“Do I believe, that what I believe, should become what others support, by force?” Is a bit harder to process.) Mozart could process 4 independent variables at a time without a pen in his hand. – And that makes him the record holder. Most people will never use 3.
I’m often stunned at my own party’s inability to simplify a necessary message. – But that said, what is or isn’t constitutional, (the will of the people) is largely flaccid in any argument of right or wrong, so long as government of the uneducated people, by the uneducated people, for the uneducated people, is in unbridled effect.
January 24th, 2010 at 8:02 am
I’m just saying: Its a dangerous place to be, when the public can vote on others lives, without being able to accurately state what they’re voting for… because when the average person, sees someone processing 4 variables… it just looks like “magic” to them. And so you might want to reconsider giving them the launch codes.
January 24th, 2010 at 1:55 pm
@Wojciehowicz
The “will of the people” has been overturned many times throughout history — both for better and for worse. Neither Brown vs. The Board of Education nor the Emancipation Proclamation likely reflected the will of the people at the time, but in retrospect they sure as hell needed to happen.
Conversely, the wars in Iraq and Afghanistan are opposed by a majority of the people, but they nonetheless continue.
We do not have direct democracy in the United States; we have a Democratic Republic. That means we elect representatives that we believe will do a better job of deciding matters than we could on our own. The judges ruling on Prop 8 right now were appointed by leaders that were democratically elected (and the same will be true if the case goes to the federal Supreme Court).
If a majority of Californians decided they wanted murder to be legal, that decision would be quickly overturned by a higher authority. And yes, that would be thwarting the “will of the people” too. But we live under the rule of Constitutions (both state and federal), and that’s the deal we all signed up for.
January 25th, 2010 at 5:08 am
I wish I could be there. I was raised by gay men, but I am really just a legal nerd. Fascinating legislation.
January 25th, 2010 at 2:02 pm
John:
If you are hired to write the screenplay of the events after the victory make certain to refer to the Judge’s decision as a Judgment. Only juries issue verdicts.
January 27th, 2010 at 4:14 pm
@Wojciehowicz
“The power of government flows not from the US Constitution but from the people. If the people decide other than the government decides, the people automatically win not only in principle but in fact.”
This isn’t a question of political philosophy; it is factually untrue. The Supreme Court exists at least in large part as a check against majority rule. And they have said so, repeatedly, and explicitly, in rulings they have made throughout history up to the present day.