The Next Campaign Against Prop 8

Ted and david on stage By the end of the West Hollywood rally celebrating Judge Vaughn Walker’s definitive decision overturning Proposition 8, the event took on the feel of a campaign stop. After making emotional and very eloquent speeches, the plaintiff couples, Chad Griffin, Ted Olson and David Boies worked the rope line, where they shook hands, posed for pictures and accepted more than a few thanks.

As much as this trial was all about taking a fundamental right out of the political realm — Walker even called the fact that a majority of Californians voted for Prop 8 “irrelevant” — that does not mean that there hasn’t been an important public campaign to engage the country in the case. It will perhaps take on even greater importance in the weeks and even months ahead, as critics of Walker’s decision are bound to decry what they call “judicial activism” and perhaps as it spills over into the fall midterm campaigns.

Asked whether he thought there would be a backlash to Walker’s decision, Boies quipped to Variety, “I would call it a last gasp.”

Before the hundreds gathered at West Hollywood Park, Boies even predicted what was coming. “They are going to attack the judge. They are going to attack the judicial system. They are going to attack everything they can think they can attack except the court’s opinion. That is something the other side can’t deal with, because they can’t come forward with any evidence.”

IMG00039-20100804-1931 The surprise may not have been in the way that Walker decided, but how he decided it. It reads like a point-by-point takedown of every argument put forth by the proponents of Prop 8, including the fears that it would destabilize marriage, be detrimental to children and infringe on First Amendment rights. Walker finds their only two witnesses unqualified and not credible, and in some parts took on the incisive tone of Frank Rich in drawing connections. (Walker notes that proponents dubiously provided the same 28 websites to two expert witnesses).

He’s also unrelenting in his argument that Prop 8 violates the due process and equal protection clauses of the constitution, going so far to declare that even as he sees gays and lesbians as a suspect class, it doesn’t matter because the proponents “have failed to identify any rational basis Proposition 8 could conceivably advance.” The proposition, he writes, is unconstitutional “under any standard of review.”

Walker also makes what could best be called a pre-emptive strike on any backlash over his decision, as he is casts the Prop 8 campaign as merely an extension of a long history of animus toward gays and lesbians, with the arguments for the ban on marriage no different from Anita Bryant’s crusades in the 1970s. He cited the campaign advertising, which trumped Prop 8 opponents in their ability to tug at raw emotion, usually in spots that warned of unexplained threats to children. “The evidence shows…that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual,” he wrote.

IMG00041-20100804-1947 Olson said at the rally, “They kept on changing their opinion as to what the theory was, and what it boiled down to was none of it made any sense.”

In the coming days, the plaintiffs, Paul Katami and Jeffrey Zarrillo and Sandy Stier and Kristin Perry, will make their case on talk shows and other interviews, to try to personalize the case with their story. At the rally, they were joined on stage by other couples and families sharing their stories — a contrast to the No on 8 campaign itself, which kept the visibility of same-sex couples in ads to a minimum.

That was then. The appearance of Olson, a conservative who it is safe to say has never been the star attraction at a WeHo event, shows how things have changed. His presence may help mute any significant push back from the right, but also signal that the movement can expand beyond traditional organizations and, most importantly, forge a new way forward. It was not too far from the site of this rally that, the night after Prop 8 passed, a whole new group of gay and straight activists took to the streets and marched well past midnight.

The plaintiffs are using all kinds of media to get their point across, calling attention to various aspects of the decision. At the rally, Olson urged everyone to read all 138 pages of the opinion, but also said that the case is also a “battle of education,” with the results already showing promise.

“I am convinced that in the past year and a half, attitudes have changed and minds have changed.”

Of the victory on Wednesday, he said, “We are part of the way to the end, but it is a very important first step.”

Photo by Karen Ocamb: David Boies and Ted Olson in West Hollywood. Photo by Ted Johnson of the rally and Olson afterward.

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