So there you have it: That’s the best case that can be made against gay marriage. An appeals court dissent that rests on the premise that states needn't act rationally, or offer evidence of rationality, or even be rational in creating classifications, so long as someone publishes a study and someone else believes it. That's the best they've got, it seems.Now, I agree completely that the arguments are weak. As I've said before, it was the realization that there is no rational argument against gay marriage (there is only prejudice) that changed my mind and made me favor marriage equality. So I'm with Lithwick and everyone on that.
That is not legal argument or empirical evidence. It is the death rattle of a movement that has no legal argument or empirical evidence. Nobody disputes the fact that Americans opposed to gay marriage believe passionately in their ideas and arguments. But that doesn’t necessarily mean those arguments should win in a court. The best thing that could have happened in the Prop 8 case just happened. The dissent has no clothes.
But. The dissent has no clothes, but Judge N. Randy Smith, a distinguished judge of long experience, argued that it does. Think about that for a minute. Why would he do that?
As Liz Newcomb points out, "Smith's reasoning seems incredibly weak." And that's the problem. She goes on to say:
The very weakness of his justification worries me. Now, the Supreme Court has done some good civil rights decisions, but they've also done some terrible ones -- Korematsu (Japanese internment, for instance) and Bowers (upholding sodomy statutes). So Smith's dissent illustrates a danger. It just goes to show you that some judges will grasp at straws to justify doing the wrong thing. And in this polarized, ideological climate, that worries me if this goes to the Supremes.Smith's dissent reminded me of the trial in the book To Kill a Mockingbird, set in 1930s Alabama. As defense lawyer Atticus Finch clearly demonstrates, Tom Robinson, the black defendant, is obviously not guilty of raping Mayella Ewell, the young white woman who accuses him. After the case goes to the jury, Atticus's 12-year-old son, Jem, is discussing it with Reverend Sykes, minister of the local black church:
"...but don't fret, we've won it," he said wisely. "Don't see how any jury could convict on what we heard -- "Much to Jem's shock, the all-white jury, of course, finds Robinson guilty, not because the evidence rationally points in that direction, but because of the dictates of their prejudice: the word of white people must always be taken over the word of black people.
"Now don't you be so confident, Mr. Jem, I ain't ever seen any jury decide in favor of a colored man over a white man...." But Jem took exception to Reverend Sykes, and we were subjected to a lengthy review of the evidence with Jem's ideas on the law regarding rape....
I call this the "To Kill a Mockingbird effect": the willingness of people to ignore rational evidence and render a verdict based on prejudice.
Because that's exactly what Judge Smith did. He dissented not because the evidence rationally pointed in that direction, but because of the dictates of his prejudice: marriage is a heterosexual institution. (And he probably did so while being completely incapable of understanding that that's what he did.)
The To Kill a Mockingbird effect is why I have to offer the same warning as Reverend Sykes if the case proceeds to the Supreme Court: "Don't you be so confident." It won't matter how weak the case is if the prejudices of five justices dictate another verdict. And I'm afraid they certainly seem likely to in the case of at least four of them.
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