Killing Prop Hate: What Republicans Fear

prop hateCalifornia’s Proposition 8 Overturned

I first wrote about Proposition Hate when it was first proposed. When bigots put it on the ballot with no motive other than their own desire for financial gain.

Since then we have suffered election campaigns, heartbreak for loving couples who only wanted to get married, and millions of tax dollars spent for election processes and then for Court time and expenses. What has been the result?

A conservative Republican judge, appointed by George H.W. Bush has done what the Tea Party activists have been demanding – he restored the Constitution. Judge Vaughn Walker held that the U.S. Constitution, and its provisions requiring equal protection of the laws, required that Proposition Hate be stricken down.

In reaching his decision, Judge Walker followed a specific process. First, he let the parties before him define the issues to be tried. Then he allowed the parties to present their best evidence on the issues and make their best arguments about the law. As a judge is required to do, his decision reviews the evidence and applies it to the law that he is bound by.

Tea Partiers are constantly haranguing us to “restore” the Constitution. They rarely point to any specific provision that they want “restored” or tell us what they mean by “restore”. But their cries remind us that the Constitution is the fundamental law of our nation. When any state tries to evade the requirements of the Constitution, the Federal Courts are supposed to rein it in and enforce the law of the Constitution.

Applying the Constitution, Federal Courts have ruled that states cannot have laws that discriminate between people based on genetically determined characteristics. Thus, school systems cannot discriminate on the basis of race. Federal Courts have held that States may not prohibit marriage between people who have genetically determined different skin colors. A Federal Judge does not have any legal authority to ignore the requirements of the Constitution.

A Federal Judge may not put his moral or religious beliefs above the requirements of the Constitution. We were reminded of this legal requirement during debate over the nomination of Sonya Sotomayor to the Supreme Court, and again this week as Republican Senators pretended to use doubt about Elena Kagan’s devotion to this principle as an excuse for opposing her confirmation to the Court.

Thus, when Judge Walker ruled on the facts in the Proposition Hate case, he was bound by the requirements of Constitutional Law. Another principle of our Constitutional system is that each litigant gets to choose their own legal representative and to have that representative decide what arguments to make, what evidence to present and how to present their evidence. Judge Walker could not force either party to put in any evidence.

The Court system has rules for how a judge has to treat evidence and for what evidence can be admitted in a trial. These rules apply equally to all parties and they control some of the ways that a judge has to rule on objections to evidence.

One of the fascinating things about Judge Walker’s decision is how it follows the rules which govern trial practice. In his decision, Judge Walker identifies who the parties are. He identifies the issues to be tried. He tells us what evidence each of the parties presented during the trial. While laying out the evidence, Judge Walker explains how he applied the rules of evidence to make rulings about the evidence each party offered. Judge Walker identified the law that controlled his decision. In this case, that law was the U.S. Constitution. And finally, Judge Walker made a determination about the issues, by applying the governing law to the facts established by the evidence offered by each of the parties.

Republicans have been largely uniform in their condemnation of Judge Walker’s decision. Immediately after the decision was released, leaders of some of the for-profit corporate tele-churches also shouted out their condemnation. And the businessmen who rake in profits by running political campaigns threw their voices into the mix, and into fundraising letters and email appeals.

Since Judge Walker was so thorough in laying out the issues, the facts, the law and the way the law applied to the facts, one might think that the Republican, tele-church, fundraising opposition to the opinion would make fascinating reading. We could look for analysis, deconstruction, or explanation of where Judge Walker went wrong.

But no. The condemnation of Judge Walker’s decision has been limited to three claims:

  1. Walker is gay;
  2. Walker is destroying our Constitutional form of government;
  3. Walker is driving America away from morality and decency.

The first claim is part of a historic pattern. Through U.S. history, many groups have been disqualified from public office and from such things as serving as jurors or witnesses in Court. For centuries, it was the law in most states that black people could not testify against white people and could not sit on juries. The same rule has been applied to women, Asians, Native Americans and other groups. The theory was that these people, like gays, could not fairly participate in trials involving “normal” (i.e.: white, male) people.

We seem to have largely overcome those other prejudices. But now the official Republican position is that gay people should not be allowed to be judges in cases where gay rights are at issue. Does this mean that Republicans want us to stop letting straight judges sit in cases were the rights of straight litigants are at issue?

The second claim causes more concern. No Republican or church leader has yet articulated how enforcing the requirements of the 14th Amendment can possible hurt our

Constitutional form of government. It’s disappointing that none of the “liberal media” have asked Ron Paul, Sharon Angle or Michelle Bachmann what, specifically, is so horrible about the 14th Amendment, or even asked questions of the more mainstream (but increasingly less relevant) Republican “leaders”.

The third claim is really the key for Republicans, and should be key for progressives. People and businesses that profit from bigotry and divisiveness have used pretenses to “morality” to justify odious policies and conduct since long before Dr. Johnson reminded us, in 1775, that “patriotism is the last refuge of a scoundrel.”

Judge Walker’s decision points out that the evidence the Proposition Hate defenders offered at trial was not the same as the lies with which they fill their fundraising appeals, sermons and campaign speeches. Those lies were thoroughly debunked by expert witnesses, examined and cross-examined during the trial. But even knowing that they are lies, the churchmen, politicians and fundraisers repeat the claims while begging for dollars and votes.

This provides an opportunity for any progressive who want to contribute time and participation, rather than money, to make our democracy work. Progressives should be attending Republican candidates’ campaign meetings and asking the questions that the media will not ask.

During the summer of 2009, the Republican Party organized and underwrote groups of people to go and disrupt “town hall meetings.” The Republican marching orders were to have people shout slogans and disrupt anyone who tried to actually discuss issues.

Progressives should not emulate that. Rather, we should go to meetings, we should talk to our conservative friends, we should ask quiet questions about real substance. We should be quietly insistent when given evasive answers. Our quiet questions should reveal where the real morality lies in any debate over equal rights.

tom_hall_2.jpgWe should test the theory that words have power. We won’t sway the conservative base. But if we cause independent voters to begin to question the logic, sincerity or knowledge of a Republican candidate, that will be real grassroots effort and real grassroots success if such independent voters lose their infatuation with the Republican blowhards trying to “take back” our government.

Tom Hall


  1. MyLeftMind says

    The reason gays and lesbians want marriage instead of civil unions is because civil unions do not and can not confer all the rights that go with marriage. This has nothing to do with the religious component of marriage, and EVERYTHING to do with the marital contract that the state defines and regulates. Gays have the responsibilities of marriage, but not the associated rights. Gay partners can be sued for alimony and child support, but don’t have the rights that come along with those legal responsibilities. Civil Unions are simply a shallow structures that convey SOME of the rights of marriage. To get all the legal rights, especially federal rights, to go along with the RESPONSIBILITIES gays and lesbians are already held to, they need marriage, not a silly state-level, weak imitation of marriage.
    In addition to marriage laws, there are also court case decisions and judgments that affect the legal contract of marriage. Without the word marriage, the legal contract established by a civil union does NOT convey the benefits and rights of the legal contract called marriage.
    Gay marriage does not in any way affect religious marriage. You go to your church for your religious marriage, and you go to the government to apply for and pay for your marriage contract. They are two separate things. If religious people are concerned about the use of the word marriage, perhaps they should start calling their marriage “religious marriage” or “traditional marriage.” If so, perhaps they should also abide by “traditional marriage” rules and structure: For most of this country’s history that would mean blacks can’t marry whites and women can’t divorce their husbands. But most bigots against gay marriage won’t admit that “traditional marriage” really means something they don’t even want.
    The bottom line is that homosexuality is completely natural and is found in all social mammals, and gays and lesbians are American citizens who are protected by the Fourteenth Amendment. They are fighting for equality, and they will eventually achieve that goal because this is a great country with an even greater foundation: The U.S. Constitution. If you don’t want to share the word marriage with gays and lesbians, then start calling your church validated relationship a Religious Marriage.

  2. Marshall says

    Dear Judge Tom;

    Citizens who think a “Separation of Church and State” clause is in the US Constitution are thinking of something else as the word “separation” is not in the US Constitution. The words separation of church and state do appear in a letter written by Thomas Jefferson to a church pastor. It is often taken out of content because who reads all those letters from Jefferson to that pastor? Jefferson is thought to have been non-religious, yet Jefferson held church services in the White House, Congress held services in the capitol, and the Supreme Court held Sunday church services in the court building. Such church services were held for all faiths until enough churches were built. Look at all the religious symbols on the Supreme Court building, we take religious oaths when testifying in court. The founders knew European governments had state religions and did not want state churches in America. Our government should support all religions, 91% of us believe in a God, but not favor one over another, a first amendment right.

    If there were a separation clause, why do proponents consider it a one way clause? Would it not be a two way clause that prohibits each from interfering with the other? Proponents claim the church is trying to influence the state yet do not claim the state is trying to influence the church. If the state were taxing the church, we could see that would lead to state control of the church. Once, the church may have been able to influence the state, as they did during our revolution (the Black Robe Brigade). Now church membership is a lower percent of the population and while that membership is larger than the gay population (2%), a pastor telling members to vote a certain way would not determine an election outcome if everyone voted.

    There is currently a problem for that two percent of our population. Gays seem to have a preference for the term gay marriage over civil unions. My gay child’s partner is a different ethnicity and that is a real problem. They would be happy to have a civil union with all the legal rights of a marriage but gay activists only want a gay marriage even though a civil union would be more attainable. If civil rights were the gay goal, they would accept civil unions and structure them to be used by anyone not wanting a religious marriage, not just gays. Minorities are good for balance but a country composed only of gays will have a population problem and a country composed only of Amish will have a defense problem. Every country needs both genders.

    If the federal government finds or creates a “Gay Marriage” clause in some section of the Constitution, then the state will have altered the laws of the church, a first amendment right. The word marriage appears in the Bible numerous times and appears in the Constitution zero times. It seems there is no federal Constitutional right to marriage for anyone as that is a religious right managed in the states, a tenth amendment right. If any state or the federal government supports gay marriages outside of the church, then they will have crossed over the first amendment line and would be changing what are now religious law and will be creating a civil marriage when the state should really create a civil union.

    I feel this is a tenth amendment and states rights issue. Gay marriages are a thumb in the eye to all religions as none of them support it. The state can support the civil rights of the few gay citizens by creating a civil union to be used by anyone, those with or without religious affiliations, which would have the same rights as married couples. Why would gays want the term gay marriage over civil unions if the rights were the same anyway; if not only to put a thumb in an eye?

    The US should remain a secular country and pass a federal secular civil union law, which would be used by all states to grant the same legal rights of church marriages to gay or non gay civil unions without using the words marriage or gay. I assume non religious civil unions would be structured as to not allow concurrent multiple unions and allow for divorce.

    respectfully yours,


    • Tom says


      It’s interesting to see which essays you post the Party’s talking points on. First the effort to denigrate the writer with the intentional mischaracterization “Judge Tom”. Is that from the Freedomworks training or the Tea Party classes?

      I particularly like the cute, if entirely disingenuous reference to “My gay child’s partner is a different ethnicity and that is a real problem.” Anyone familiar with your writing (or more accurately, your compiling of Party talking points) would have a hard time imagining you with either a gay child or a child with a problematicly ethnic partner.

      But those canards are irrelevant in light of the intentional misstatements of fact. You say “If civil rights were the gay goal, they would accept civil unions.” But, of course, you and the Party you work for have worked against any bill that would make civil unions equal to marriage. You block tax equality, health care equality, and a host of other freedoms that come with marriage (inheritance, rights to share medical decisions,…) You intend discrimination and no pretense that civil unions are equal can disguise that.

      You go on to say “Gay marriages are a thumb in the eye to all religions as none of them support it.” The sentence includes two intentionally false statements. First that any person seeking equality is a thumb in the eye of all religions. Second that no religions support gay marriages.

      The hypocrisy of your Party’s position is only made clearer by you refusal to offer evidence in support of bigotry, preferring, rather, to repeat things that you know are untrue.

      I suppose it should be a matter of pride to the LAprogressive, that the Party takes such note of the essays that it has assigned one of its loyalists to monitor and respond to so many articles. I am certainly proud that the Party told you to respond to my essay. Thanks!

      I only wish that you were able to respond with honesty and substantive argument, rather than merely repeated the untrue talking points that the Party circulates.

      • Marshall says

        Post your email and I will have my white/black civil union send you a note. I also was arrested in 1960 for transpoting a black into the state of texas. Seems they did not like that. The three of us, 2 whites, 1 black, were unarrested only when texas state cop discoverd all three of us were in the military. We stayed the night at a Quaker family, my uncle, and started our trip the next morning. I agree the black man was troubled, some whites arresting him while others made him a meal and tucked him in for the night. hey it takes all kinds, even yours.

      • Marshall says

        I sent an email to your blog address. You are about to discover that I am not the shrill of anyone but myself and my wife. we have lived all over the world. I have lived in places that no longer are the same country as when I live there. I really do have a white child with a black partner. In 1960 I was really arrested for transporting a black into the state of texas, got out of that one. I graduated from a black university.

        I have exchanged emails with the LA progressive owners and they tell me I say within the rules and my rights. You may not like what I say any more than I like what you say, but in a coast to coast vote, who would come out the winner?

        Most of us (80%+)claim to believe in a God and I am one of those. I have done my best to advance the civil union goal, but have been rebuffed at all levels, to include yoy and gay web sites, they wanted the word marriage more than they wanted civil unions. I thought the unions could become a fact in a year if we all pushed in the same direction, but we have not.

        I have not posted on some Helen blogs, my aunt’s name was Helen and she was a nice sweet person and loved everyone and I did not see that in the questions Helen asked at briefings and some questions made me feel now she was perhaps was out of her element.

        viel gluck to all

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