Why the Proposition 8 Trial Results Are so Threatening to Christianists

In a prior post I looked at David Boies' analysis of why the Perry v. Schwarzenegger trial was so damaging to and so feared by fundamentalist evangelical Christians, the Mormon Church and Opus Dei style Catholics (who for convenience I refer to as "Christianist"). In a nut shell, the case forced the opponents of gay marriage to back up their lies about and slander of gays and same sex couples with scientific evidence and objective facts. As the trial transcript confirmed and as Judge Walker ruled, they utterly failed to do so. Indeed, the preponderance of the evidence supported the claims and allegations of the plaintiffs, not the Prop. 8 supporters. Absent any scientific or objective factual evidence, the only support shown for Prop 8 was revealed to be religious based discrimination and a general dislike of LGBT individuals by the Christianists. Regardless of the Christianists' disingenous claims - both at trial and apparently in the filing with the 9th Circuit - that they they bear no animus towards gays and lesbians, the facts and evidence entered in the trial demonstrated clearly otherwise. A column in Huffington Post reiterates this reality that religious/moral disapproval of a minority does NOT justify depriving that minority of equal CIVIL rights. Again, despite all their whining and posturing with bogus experts, the supporters of Prop 8 have nothing except their personal opinions and religious beliefs to back up their desire to penalize and punish gays for not living their lives and forming their relationships in accordance with Christianist religious beliefs. Here are some highlights:
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[Notre Dame Law School Professor Gerard]Bradley's attack on Judge Walker as unfit to decide the case if the reports of him being gay were accurate has received considerable attention, but Bradley and Whelan's attack on the trial itself is equally revealing. Bradley explained in his 2003 National Review article "Stand and Fight: Don't Take Gay Marriage Lying Down" why he feared a trial by any judge. The fundamental problem for the anti-gay forces was the Supreme Court decision in Lawrence v. Texas declaring unconstitutional the state law making consensual adult sodomy a crime. The Supreme Court decision confirmed its unwillingness to treat "traditional attitudes towards homosexuality" as legitimate bases for discriminating against gays.
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Bradley recognizes that whether we describe these "traditional attitudes" as revulsion, discrimination, or homophobia, they provide no rational basis for laws that discriminate against homosexuals.
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Indeed, Scalia's dissent proved the point that the majority made in Lawrence -- the majority was discriminating because it despised a minority group, a classic violation of the equal protection clause of the 14th Amendment. Bradley warned his readers that trying to prove to a court that there was a "rational basis" for discriminating against gays was a disastrous legal strategy.
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This is why opponents of homosexual marriage are desperate to avoid any trial in which they would be required to support their claims that such marriages would harm heterosexuals' marriages. Note that the disasters that Bradley fears are not televised hearings or the harassment of experts testifying in opposition to homosexual marriage. The disaster he fears is any fair trial because it will expose the fact the attacks on gays are baseless. He recognizes that this will cause immense harm to those that wish to discriminate against homosexuals by exposing their bias and by demonstrating that gays are normal rather than demonic.
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Bradley's primary strategy is passage of a constitutional amendment removing the protection of the 14th amendment from homosexuals who wish to marry. His secondary strategy, which he believes would fail, is to create a new "natural law" theory that would provide a rational basis for the return of even the most draconian forms of discrimination against gays.
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Bradley and Robert George, a fellow new natural law theorist, have acknowledged in their articles, the "rational basis" for prohibiting homosexual marriage that they claim arise from their theories cannot be demonstrated. . . . This is why those hostile to gay rights feared a trial on Proposition 8 rather than relishing the opportunity to back up their claims in court.
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Regardless of what happens in the short term in respect to Judge Walker's ruling in Perry, in the long term the dam has been broken and a full blown trial with high media coverage has sent the message to many more Americans that there is no legitimate reason - and religious belief is NOT a legitimate reason - to deprive same sex couples of full equality. Ted Olsen and David Boies did a masterful job of documenting the lack of any non-religious justification for Prop 8 - or any other anti-gay laws or state constitutional amendments.