Monday, January 11, 2010

I'm Leaving My Heart in San Francisco

Because that's where opening arguments will be held in Proposition H8's trial in federal court this morning in the case of Perry v Schwarzenegger.

At the risk of making a pun, politics, especially the politics of hate, make for strange bedfellows. The lawsuit challenging Prop H8's unconstitutionality is being spearheaded by the very same lawyers who'd represented Bush and Gore in the wake of the stolen 2000 election. Ted Olson and David Boies, who'd advocated for Bush and Gore respectively, will join forces on behalf of two gay couples, Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo. The couples were denied the chance to marry because Prop H8 stole that right from them and tens of thousands of gay couples across California.

While no television cameras will be present, Vaughn R. Walker, the presiding judge, will allow delayed videotapes of the trial to be made available on Youtube so the morning deliberations may be put online as early as the afternoon.

Obviously, this trial potentially has tremendous historic importance and may prove to be the most important litigation in the history of the gay rights movement. As I'm sure we all know, even if Judge Walker rules in favor of the plaintiffs, the decision could be struck down by a higher federal appellate court and late May last year the California Supreme Court voted almost unanimously (6-1) to let this despicable amendment stand as is. And if the battle escalates all the way up to the Supreme Court, I wouldn't put it past the right wing SCOTUS to refuse to hear the case or to adjudicate favorably for the defendants on purely homophobic, ideological grounds.

Perhaps Boies and Olson will be tempted to use the recent poll analysis done by Richard Hayes Phillips, the famed election analyst, that showed the exit poll results were wildly divergent from the actual results that were reported. Phillips sampled 19 precincts from LA County and found that one precinct deviated from the poll results by almost 18% and that all 19 counties deviated by an average of almost 8% (which is well beyond the survey's margin of error).

Is it scientific or mathematical proof that fraud took place? No and that's why Olson and Boies won't be able to introduce Phillips' findings in the Prop H8 trial. There are many reasons why it would be irresponsible to introduce such "evidence" into court because too many factors automatically contaminate the findings. Yet taken from a preponderance of evidence standpoint, which is better suited for a civil trial, it provides more than enough mill grist for someone who's suspected Republican electoral fraud from the beginning.

But perhaps Boies and Olson won't need Phillips' poll data.

The lawsuit alleges that Proposition H8:

* Violates the Due Process Clause by impinging on fundamental liberties.
* Violates the Equal Protection Clause of the Fourteenth Amendment.
* Singles out gays and lesbians for a disfavored legal status, thereby creating a category of "second-class citizens."
* Discriminates on the basis of gender.
* Discriminates on the basis of sexual orientation.

Given those legal points, this would appear to be a slam dunk case. Proposition 8 does, indeed, infringe on constitutional protections and civil liberties. Working gay couples who pay taxes are being told by a fringe group of homophobic ideologues they can't marry within their own gender. By denying marriage rights to consenting adults, any liberal or open-minded layman can see that the victims of such bigotry are automatically reduced to second-class citizens.

Last October 14th, Judge Walker asked the defense attorneys if they could conclusively demonstrate how gay marriage could adversely affect traditional marriage and one of the attorneys candidly admitted, "I don't know."

This does more than bring home the well-worn point that attorneys are merely ignorant shysters who will advocate on behalf of anyone with the money and that they rarely have personal feelings and actual conviction and a sense of justice for whom they represent.

Their ignorance in this unguarded moment proved that, nearly a year after Prop H8 was allowed to overturn existing state law and robbing countless tens of thousands of gay couples of the right to marry, they couldn't come up with a single ideological reason on their own or on behalf of their clients as to how gay marriage threatens opposite sex marriage.

And don't think Judge Walker will forget that today.


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