Joyous emails began flooding my in-box within seconds of today's announcement about the overturning Proposition 8, the 2008 California ballot initiative that deprived gays and lesbians of the right to marry. Even if today's decision is reversed, this is a moment to celebrate the Court's expression of America's highest, inclusive ideals.
One of the emails in my Inbox was from a colleague who urged me to read Judge Vaughn Walker's decision closely: "Walker swung for the fences," she said. "It is very very powerful." She's right. Judge Walker did swing for the fences, and he hit a grand slam.
From my perspective, the most compelling and awe-inspiring aspect of Judge Walker's decision is the wholesale rejection of the politics of paranoia, which was defined by Professor Richard Hofstadter in his classic, 1964 book, The Paranoid Style in American Politics. According to Hofstadter, the paranoid tradition has been a prominent feature of American politics since our earliest days, and involves the use of divide-and-conquer tactics to blame some outcast group for the nation's problems.
Hofstadter shows that the paranoid style always involves a distortion of facts: "What distinguishes the paranoid style is not, then, the absence of verifiable facts, but rather the curious leap in imagination that is always made at some critical point in the recital of events." In today's decision, Judge Walker saw the defense of Prop 8 for exactly what it is: the use of phony facts and arguments to conceal a private, moral judgment.
Listen to what he says on page 132 of his decision: "Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate."
What is striking about the Prop 8 defense as well as Judge Walker's dismantling of it is that rather than simply admitting that they're not comfortable with marriage equality, proponents tried to conceal their private, moral judgment with no fewer than twenty-three phony arguments as to why allowing gay people to marry would cause actual, tangible harms to the people of California!
Judge Walker, however, found that there was no evidence in the record of any potential for harm:
"They provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that 'responsible procreation is really at the heart of society's interest in regulating marriage.' When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, 'you don't have to have evidence of this point.'" (pp. 9-10)
And there it is right there. "You don't have to have evidence." When Americans complain about the supposed harms caused by immigrants, people of color, gays and transgendered people, often they make arguments as if these minority groups are responsible for significant, actual harm. But when pushed to defend their claims, they don't have evidence. That's the politics of paranoia in action. And it's a dangerous politics which corrodes the integrity of the deliberative process. And that's part of what Judge Walker recognized today.
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