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Is Prop 8 popular or not?

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The closing arguments in Perry v. Schwarzenegger (the trial to decide whether to overturn Prop 8) have been tentatively scheduled for June 16.

The latest kerfuffle over the case involves whether to allow those arguments to be televised.

The supporters of Prop 8 (the defendants in the case) are arguing—apparently with a straight face, because obviously they wouldn't approve of a non-straight face, not that they're prejudiced—that the closing arguments should not be televised, on these grounds:

In a letter to Chief U.S. District Judge Vaughn Walker in San Francisco, a lawyer for the Prop. 8 campaign committee said federal court officials have found that “public broadcast has negative effects on some judges and attorneys, including distraction, grandstanding and avoidance of unpopular decisions or positions.”

So, let me get this (um) straight: the Prop 8 people want to ensure that the judge does not avoid making an unpopular decision. That is, they want him to make an unpopular decision. So they're saying that supporting Prop 8 would be an unpopular decision?

I thought their whole case revolved around the idea that, since Prop 8 received a majority of the popular vote, it's the popular choice.

They've been pulling this kind of thing all along, mind you. They built their case around stuff like saying that queer people are widely accepted and supported in society, not discriminated against (and therefore that it's okay to discriminate against them); and they previously requested that the trial not be broadcast on the web because their witnesses would feel persecuted by the vast queer-positive majority.

I don't really see how they can reconcile the two sides of this argument. Either the people of California support the Prop 8 folks in opposing same-sex marriage, or the Prop 8 folks are taking a principled stand in opposition to widespread societal support for gay rights; they can't have it both ways.

2 Comments

they can't have it both ways.

Life is like Cosmic Encounter. "Have it both ways" is the alien power of Conservatives.


Well, and surely what they are saying is that the decision would be unpopular amongst the effete intellectual elite, such as U.S. District Court Judges. The real Californians who supported Prop 8 don't hang out in Nob Hill Cocktail Parties and federal courthouses, trying to intimidate judges with their lah de dah public broadcasting.

More seriously, one if the problems with governing by referendum (I think it is #137 on my list, although it has moved up a notch or two) is the tyranny of a temporary majority—it was obvious to everybody that support for marriages with penes=!1 was increasing over time, and the trick was to time things for support being on the right side of 50% (for differing definitions of right, of course). While this is true for any government (laws are always made in the past, curse it), with a referendum there is the claim of public support, taken as a snapshot of one political moment. I mean, from a legal point of view, it is plausible that there was wide support for Proposition 8, but that now it is so unpopular that the court must be closed, but the current popularity is not germane to the constitutionality of the proposition, which was duly approved at the time. Which is nonsense in terms of good government, but the court isn't charged with making the government good, is it?

Thanks,
-V.


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