As a conservative Republican representing the next generation of attitudes towards gays and lesbians, I encouraged the readers of FoxNews.com last January to take a careful look at the arguments and evidence in the Prop 8 trial, Perry v. Schwarzenegger.
The case was presented by a constitutional conservative, Ted Olson, who helped found the Federalist Society, successfully argued Bush v. Gore to the Supreme Court (among fifty-five other cases), and was George W. Bush’s Solicitor General. Working with his Democratic legal partner David Boies, Olson sought to prove that marriage equality is a constitutional question, not a partisan issue.
The trial assembled a thorough record of evidence that Prop 8 unreasonably discriminates against gays and lesbians, relegating them to second-class citizenship. Their plaintiffs, Kristen Perry and Sandy Steir, Paul Katami and Jeff Zarrullo, are the face of the marriage equality movement. They wish to share in the myriad societal, economic and psychological benefits of marriage, which the Supreme Court has ruled is a fundamental right owed to all Americans. By denying them the right to marry because of their sexual orientation and gender, Olson and Boies argued that Prop 8 violates the Due Process and Equal Protection clauses of the 14th Amendment, and is unconstitutional.
Among the seventeen witnesses Olson and Boies called to the stand were experts in areas of psychology, political science, economics, socio medical sciences and history.
Economists testified to the economic harm caused to same-sex couples and their children; political scientists to their political vulnerability; sociologists and psychologists to the societal stigma associated with homosexuality; historians to the history of marriage shedding its discriminatory restrictions over time.
Other testimony included Ryan Kendal, a young gay man who failed a “conversion therapy” attempt to alter his sexuality from gay to straight and the Republican Mayor of San Diego, a former police chief, who testified that “if government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing.”
Surprisingly, the defense’s two lone witnesses also offered compelling reasons to favor of marriage equality. They testified that allowing homosexuals to marry would increase family stability and improve the lives of their children; that sexual orientation is unchangeable; that gays and lesbians have faced a long history of discrimination, including Prop 8.
Another defense witness’ testimony had to be withdrawn as it proved the discriminatory nature of the Prop 8 campaign, which the Plaintiff’s lawyers then submitted as evidence to embolden their case.
The trial testimony is available for the world to review at American Foundation for Equal Rights and demonstrates that the defense could muster no sound line of reasoning for the laws to discriminate against gays and lesbians.
Now, with a decision handed down that social conservatives despise, a judge whose sterling reputation as a conservative for twenty years on the federal bench is under attack.
On this page the day of the verdict, an article by a law professor from Notre Dame posited through conjecture that Judge Vaughn Walker’s rumored homosexuality caused him to decide the trial before hearing it.
Other conservatives howl that one judge is unjustly invalidating the will of seven million Californians and that gay rights should come to the populace through the ballot box, not the courts.
We conservatives have a well-founded narrative about judges and the courts. It is true that the federal bench is populated with liberals who view their role not as interpreting the law as it is written, but as policy makers empowered to sculpt social outcomes with which they agree.
The irony of this case is that Judge Walker is not a liberal activist judge but one whose career has proven him to be a tempered judge, true to the Reagan-Bush conservative jurisprudence that he was nominated to represent on the bench.
Conservatives cannot deny that our Founders intended the judiciary as an equal and independent branch of government purposed to ensure the protection of every citizen’s rights.
The Supreme Court has previously ruled that the right to marry is a fundamental constitutional right.
When an unpopular minority is denied the right to marry, it is indeed the role of the courts to protect the rights of that minority, especially when a majority would deny them. This is why Judge Walker’s opinion reads, “That the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.”
Not to mention that conservatives have a flawed history with civil rights, a trend that began when Barry Goldwater opposed the Civil Rights Act as unconstitutional. While Goldwater was no racist there is clearly a conservative precedent for a breakdown at the intersection of ideology and reality.
The aforementioned arguments against Judge Walker’s Perry v. Schwarzenegger decision risk undermining legitimate conservative gripes about the judiciary and putting conservatism once again, on the wrong side of the latest chapter in American civil rights.
The potential consequence that conservatives land on the wrong side of civil rights history again is the alienation of an entire generation of voters. With polling definitively indicating that Americans under age 30 overwhelmingly favor gay rights, with a majority supporting gay marriage according to the Pew Millennial Attitudes report published in February this year, there are multiple reasons for conservatives to think carefully before digging in their heels against gay marriage.
Margaret Hoover is a writer, conservative commentator and Fox News contributor.
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