Will we apologize to Gay, Inc. if the Prop. 8 case is lost?

So now we wait in the case of Perry v. Schwarzenegger. All bets on either side of the case are that Judge Vaughan Walker will eventually find that Proposition 8 is unconstitutional, which will send the case toward its eventual appeal to the United States Supreme Court (SCOTUS).

Prop. 8 supporters are so sure they will lose that they have been communicating via increasingly unhinged letters and blog posts accusing Prop. 8 opponents of all manner of underhandedness, even when the circumstances of the alleged wrongdoing never came to pass. "The price of participating in a trial should not be the willingness to tolerate even a minimum of reasonable threats to one’s livelihood or personal safety. The Supreme Court stepped in to prevent the broadcast of these hearings. But it was too late. Expert witnesses had already dropped out. ...The public record has been impoverished and the information available to reviewing courts permanently reduced all because some witnesses feared retaliation as a result of the publicity," screamed a letter to Judge Vaughn from intellectually impoverished Maggie Gallagher of the National Organization for Marriage (NOM).

Gallagher no doubt watched her side’s "expert" witnesses go down in fiery rhetorical and evidentiary flames at every turn of the short trial. She seems to have realized this loser of a case -- at least at the trial level -- requires nothing less than full frontal assault of obfuscation if she and NOM are to save any face at all after their side’s witnesses either proved they either knew little that was factual about the issues at hand, or were forced to contradict themselves repeatedly when cornered into inescapable boxes with their own words.

So they retreat into visions of marauding bands of LGBT folk bullying the courts and witnesses, which seems laughable until you realize that SCOUTUS appears to have bought into those visions by taking the extraordinary step of intervening so early and quashing televised coverage of the trial.

I remain agnostic on the question of whether this case should have been brought at this time on the federal level. Both sides had good arguments for and against filing the case.

As William Eskridge and Darren Spedale noted in a May 29, 2009, article for Slate: "In the mid-1950’s, when 30 states still had laws barring people of different races from marrying, the liberal Warren Court refused to overturn this blatant race discrimination. The court did not act until 1967, when only 17 states retained such laws. So long as interracial marriage intensely divided the country, the Warren Court was not prepared to insist upon a norm of equality. Would the current moderates on the Roberts Court be any bolder? It’s hard to imagine."

For what they lacked in historical perspective, the pro-Perry side made up for it in empowering simplicity with arguments that can be boiled down essentially to: if not now, when?

There was another importance difference between the two sides that should be noted here: Whereas the LGBT groups and their supporters who opposed Perry> made their arguments in rational, measured tones steeped in legal analysis and precedent, those who favored moving forward often -- very often, in fact -- made their case by demonizing our national LGBT groups as milquetoast fence-sitters who lacked the courage to defend the people who pay their salaries. And that is among the mildest of the accusations leveled against these people, many of whom have devoted their entire lives to moving us forward. And when those same groups decided to attempt to join the Olsen-Boies case -- and give in to the online mobs excoriating them as out-of-touch cowards -- they were ridiculed and their failure applauded when they were turned away from Perry v. Schwarzenegger. It was not a high point in our ability to have a rational intra-community debate.

However, even the pro-Perry forces now seem to be having second thoughts about victory. I won’t ridicule single individuals here, but suffice it to say that some of the very people who most loudly accused so-called "Gay, Inc." (a silly term on its face) of being too timid to win our rights are now demurring, more or less: "So what if we lose? The mere act of trying move us forward has made an important statement."

Call it the March On Washington School of Legal Theory: as long as it feels good, the outcome is irrelevant. But those of us who lived through the fallout from Bowers v. Hardwick know that these things do matter, often for decades to come.

If they do lose, I wouldn’t expect Olsen and Boies and their online pitchfork mob to apologize to Gay, Inc. But one hopes they will have some words of consolation to the countless LGBT persons whose hopes at the federal level could be dashed for a generation or more.

I hope for all our sakes they don’t have to consider the question.

from InterracialGAYKiss.com