The passion and ‘ideology of the family’ was on trial today.
The pro-marriage folks made a strong case that gay parents have and will do just fine. On the expert evidence today, I suspect that a court could NOT reasonably exclude gays from parenting.
However, the defense may not be worried.
After all, if there are Justices on the highest court willing to hold themselves to the lowest standard, exclusion is not the question. All they need is a good enough reason (or excuse?) to include people, and the rest be damned. That’s how they could roll, how they could yet bankroll constitutional anti-gay prejudice on something as arguably fundamental as marriage to the lives and social life of couples and their families.
However, to the extent that inclusions look less and less rational, flimsy, then ... suspicions are raised; and well, even Justice Kennedy threw one law out, in Romer, I believe - maybe there is a way for them to rule narrowly on Prop 8, without answering whether there is a fundamental right in their view, quite yet?
There are more quivers for the defense to yet cast aspersions on gay parents, e.g. ‘the reproductive industry’, which has yet to come up at trial. Neither have the pro-marriage people attempted to put any ‘harms’ from gay parenting into context, e.g. more unwanted children are probably destroyed every year in the U.S. than sought by the entire ‘reproductive industry’ related to gays … (this is another reason why Blankenhorn’s circling of the wagons inside a ‘rival goods’ argument, which used to have some intuitive currency with me - never any scriptural currency, no longer does, as a matter of what we might call 'practical ethics').
I detected a strange tension between today’s testimony, that kids of unmarried gay couples, by evidence, can end up as well adjusted as their nongay parented peers. Yesterday’s testimony, by evidence, was that gays as a group face social stress, due to stigma, that has a differential impact on them.
In a way, today’s testimony questions whether marriage as a legal contract can really be used by the State to promote anything. The State cannot promote good marriages, good parents, by exclusion of anything but bad parents, etc. One is drawn back to the view that marriage contracts are primarily a private affair, and the State merely facilitates these affairs and should do so in the most equitable way. (A recent libertarian amplification, here, by head of CATO).
At the end of the day’s work, Helen Zia, raised and educated in New Jersey, gripped the courtroom with her life’s story. The defense dismissed her as” not probative” and then sought to cast doubts on her decision to marry, bringing up the theme that the gay marriage advocates are part of a “left wing agenda”, which one assumes will be the counter to aspersions on what they will represent as Prop 8’s true motives, those apart from the hate and lies that were encouraged in order to win passage.
(In response to questions on cross, Mrs. Zia never said that Prop 8 was invalid because people cannot vote on ‘what is from God’. Sadly, had she done so, she might have countered having "ACLU" flung in her face by counsel.)
Ref #1: CCampaign Summary
Saturday, January 16, 2010
Prop 8 Trial, Day 5 - My Stylized Summary
