I’m anxiously awaiting the outcome of the Proposition 8 trial in California (Perry v. Schwarzenegger) to see how the judge rules. By most accounts, the evidence was extremely lopsided, with the plaintiffs challenging Proposition 8 producing masses of evidence to show that there is no rational basis for discriminating against gays in civil marriage rights. The defense, not so much — two witnesses who got picked apart by David Boies, one of the best trial lawyers in the country.
The conduct of this trial, if not yet the result, reminds me strongly of the Kitzmiller case in Dover, PA. There, proponents of so-called “intelligent design” (or, as I like to think of it, creationism in a lab coat) were destroyed by the mountains of evidence produced in support of the science of evolution. Their few, meager witnesses were helpless in the face of withering cross-examination from highly skilled attorneys. And their “science” was clearly revealed for what it was — tattered, ignorant religious dogma trying to dress itself in borrowed respectability. In Perry, the hateful dogma of discrimination against homosexuals was revealed for what it is when the respectable costume it threw on — a concern for the welfare of kids — was ripped asunder by cold, hard facts.
This is what happens when reality meets dogma in a court of law. I mentioned the lawyers in both cases because (1) they are both exceptionally skilled, and (2) they did the job that lawyers do every day — forcing the parties to face the evidence. For all the bum rap lawyers get, the truth is that there is nowhere to hide in a courtroom. The facts, whatever they may be, generally have a way of coming out. (To the point that, when I was litigating, we had a saying when facing a lousy case – “we don’t make the facts.”) And if your dogma conflicts with the facts, if you can’t produce other facts in support of your ideas, your beliefs will be exposed as hollow, without substance. You can’t spin your way out, especially not on cross-examination by a lawyer whose sole purpose in life at that moment is to tear apart your most precious claims.
I know many (including often myself) would prefer a legislative end to discrimination in marriage rights. But courts have a vital role to play in truth-gathering, above the scrum of political manipulation. Perry and Kitzmiller demonstrate just how effectively they can play that role.