California Prop 8 Trial

Right now in California a trial to determine the constitutionality of Prop 8 is just underway. Prop 8 is the proposition that overturned a court ruling in California allowing same sex marriage by defining marriage as being between a man and a woman. One of the interesting notes of the trial is that the team that wants to overturn Prop 8 has two high profile lawyers, David Boies and Ted Olson. Ted Olson, Bush’s former Solicitor General and David Boies were adversaries in the Bush v. Gore case. Now they’re working together. Ted Olson wrote an essay in the most recent Newsweek called “The Conservative Case for Gay Marriage.”

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation’s commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.

This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike. The dream that became America began with the revolutionary concept expressed in the Declaration of Independence in words that are among the most noble and elegant ever written: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

That’s exactly right. If you argue that marriage is fundamental to our society how do you argue that some people should be denied its benefits? Same sex marriage opponents have several arguments:
1) marriage is for procreation and same sex couples can’t procreate
2) tradition
3) allowing same sex couples to marry destabilizes traditional marriage

From the first day of the trial, it sounds like #2 is going to be very difficult for the Prop 8 defenders. [In this short transcript Walker is the trial judge, Cooper is the lawyer defending Prop 8]:

Walker: If the Prez’s parents had been in Virginia when he was born, their marriage would have been unlawful. Doesn’t that show a TREMENDOUS change in the institution of marriage? doesn’t that show evolution? Isn’t that correct?

Cooper: Racial restrictions were never a feature of the institution of marriage. (laughter in our courtrtoomm)

Cooper: These restrictions were loathesome, and a detail. “Man and woman” has been universal, across time and all societies.

walker: Is the evidence going to show these racial restrictions are different than the restrictions imposed by Prop 8?

(like a bug pinned to a piece of wood)

Cooper: Naturally procreative instincts….

Walker: Only purpose?

Cooper: Basis of marriage is procreation. It is a pro-child societal institution.

Walker: Many things attend marriage, will your evidence show that those are all secondary to procreation?

Cooper: This is about deinstitutionalizing marriage…

Walker: Yes, you say that. But will your evidence show that?

The trial is being recorded and it may be placed on YouTube (right now the SCOTUS has issued a stay on releasing trial video). This is really a case to watch, but no matter the outcome it will be appealed probably all the way to SCOTUS.

Nate Silver demolishes #3 in a statistical analysis yesterday. He found that states that allow same sex marriage have lowered their divorce rates since 2003 while states that prohibit same sex marriage constitutionally have seen a rise in their divorce rates.

The differences are highly statistically significant. Nevertheless, they do not necessarily imply causation. The decision to ban same-sex marriage does not occur randomly throughout the states, but instead is strongly correlated with other factors, such as religiosity and political ideology, which we have made no attempt to account for. Nor do we know in which way the causal arrow might point. It could be that voters who have more marital problems of their own are more inclined to deny the right of marriage to same-sex couples.