The historic Prop 8 trial, despite the way it is portrayed in the media, is less about marriage equality than it is about the tragically endless conflict between fact and fear, between science and religion and between men of reason and men of superstition.
It is both fascinating and disturbing to see the two sides facing off on the issue of bigotry. Some of us are aghast that bigotry is an issue that any judge or elected official in a free society would consider a valid debate.
With democracy itself on trial, we have the pro-equality, pro-democracy, pro-Constitution side piling on compelling and in some cases gut-wrenching facts highlighting the suffering inflicted by bigotry and religious persecution while Prop 8 supporters insist that facts are irrelevant in the forum of religious freedom.
How is it even possible that in 21st Century America, facts are once again in the hot seat under siege by cave dwellers who believe that thunderbolts are the work of Thor?
It's Galileo and John Scopes yet again: science forced to defend itself against religion.
And possibly the worst outcome should religion prevail in this case: the concept of universal human rights would be profoundly undermined.
The 17th Century Catholic Church placed science under house arrest after Galileo made the audacious fact-based observation that the earth is not the center of the universe and, in fact, revolves around the sun.
In 1920's America, William Bell Riley, head of the World's Christian Fundamentals Association lobbied state legislatures to pass anti-evolution laws, succeeding in Tennessee when the Butler Act was passed. In response, the American Civil Liberties Union financed a test case where John Scopes, a Tennessee high school teacher, intentionally violated the Act. Scopes was charged on May 5, 1925 with teaching evolution from a chapter in a textbook that showed ideas developed from Darwin's On the Origin of Species. The trial involved two celebrity lawyers, William Jennings Bryan for the prosecution and Clarence Darrow for the defense, and was broadcast throughout America. Scopes was found guilty and fined $100, but on appeal the Tennessee Supreme Court set aside the guilty verdict due to a legal technicality.
And here we are again with two celebrity lawyers, this time both fighting for science. Sadly, this time the trial is not being broadcast nationally thanks to a Supreme Court that would likely have thrown both Galileo and John Scopes in prison for the rest of their lives, thanks to the corruption and perversion of American Christianity, a religion that hides it's bigotry under white hoods, behind burning crosses and in courtrooms shielded from television cameras.
The Prop 8 trial will determine if the United States Constitution exempts religion from law, allowing discrimination, segregation and inequality for groups of American citizens deemed wicked and unworthy of the full rights of American citizenship under the rule of "religious freedom."
In fact, the most stunning and compelling story emerging from this trial is the argument from the nation's largest Christian group, the Southern Baptist Convention, that Bible-based bigotry is not bigotry but rather an expression of religion freedom.
Pardon the expression, but god help America if such an argument were to prevail in a court of law--and welcome to a Christian version of Iran.
The pro-Prop 8 forces are united behind an alleged belief that "homophobia is not bigotry but rather an honorable and critical expression of religious freedom."
According to court documents submitted by officials of the Southern Baptist Convention, "Christian opposition to "same-sex marriage" is not based on hostility toward homosexuals and should not be considered bigotry."
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) brief expresses special concern with the religious liberty implications in the case. It says the court's acceptance of arguments by foes of Prop 8 that support of the measure is based on enmity toward homosexuals could endanger freedom of religious expression.
A faithful Christian will cast votes based on his or her beliefs on all issues, "and a just society will never seek to force a religious believer to vote or participate in the political process without reference to his or her faith," the brief says.
The argument made is that Christian voters have a divine right to make decisions on civil and human rights for fellow non-Christian Americans. As a Jew and as a gay man, I find the marriage equality issue trivial compared to this. I can go on with my life without marriage equality, I cannot live in an America that place the reigns of government in the exclusive hands of a fundamentalist Christian voter majority.
Democracy is based on the rights of individuals and minorities. No alternative to that is acceptable. If our courts start to rule otherwise, America will cease to stand among free nations.
The Baptists argue that "When...faith is treated as bigotry, however, the participation of Christians in public life is threatened," it says. The brief also says, "To portray religious support for marriage (and, by extension, support for California's Proposition 8) as rooted in anti-homosexual animus is grossly inaccurate and deeply offensive."
ERLC President Richard Land commented on the case's potential impact on religious freedom. "The support for traditional marriage is not motivated by animus toward homosexuals but by deeply held religious convictions by many faiths, including tens of millions of people over several millennia," Land said.
"If the court were to rule that opposition to same-sex marriage is de facto animus toward homosexuals, it would in effect seek to negate and nullify the First Amendment, free-exercise religious rights of all Americans of faith guaranteed under the U.S. Constitution.
"This is now not just a case just about same-sex marriage but whether or not Americans are free to bring their deeply held religious convictions to discussions of public policy in the public square," he said.
"All Americans of religious faith and those of no religious faith should have a profound interest in this case's outcome, which will undoubtedly end up in front of the nine justices of the U.S. Supreme Court whichever way it is decided in California.
"The ERLC's brief, Land said, "states clearly why Americans have the right to defend traditional, heterosexual marriage as the only relationship defined as marriage and why it is wise and prudent of them to do so."
"Southern Baptists and most other "mainstream faith traditions" have long understood marriage between a man and a woman "as a sacred institution designed by God," the ERLC says in its brief.
One of the reasons religious adherents attempt to defend marriage is because of its promotion of "important social interests," including childbearing and childrearing, the brief argues. "A desire to protect the sacred institution of marriage and the social goods it promotes is the source of religious opposition to redefining marriage as the union of any two people," the ERLC brief says.
"Such a redefinition would send the message that marriage is about nothing more than adult desires. ... Redefining marriage sends a message that men and women are fungible and that children do not need both a mother and a father. Christians deplore this and other threats to the meaning and significance of marriage such as divorce, cohabitation and unwed childbearing." It is love for God and all people that "motivates our opposition to all forms of non-marital sexual union, including between persons of the same sex," the ERLC says in its brief. "We believe that any sexual conduct outside the bond of marriage, the union of one man and one woman, is contrary to the will of God because God has designed marriage as the only appropriate context in which sexual relations should occur."
The brief concludes: "There is no authority in Biblical teachings for hatred of any people including those who identify as gay or lesbian." "Southern Baptists must, and do, pray that all people, including those who experience same-sex attraction, come to know and love Jesus Christ and keep His commandments," the ERLC says in its brief.
Gay rights are only one of the issues at risk as a result of the Prop 8 trial. Imagine an America in which the Supreme Court gives fundamentalist Christian voters the right to determine women's rights, children's rights and the course of science, medicine and education. If the Republic does crumble, a new Dark Age could be the result--and in retrospect this trial may be the tipping point.
At about 5 a.m. on April 19, 1775, 700 British troops, on a mission to capture patriot leaders and seize a patriot arsenal, marched into Concord, Massachusetts to find 77 armed minutemen under Captain John Parker waiting for them on the town's common green.
British Major John Pitcairn ordered the outnumbered Patriots to disperse, and after a moment's hesitation the Americans began to drift off the green. Suddenly, the "shot heard around the world" was fired from an undetermined gun, and a cloud of musket smoke soon covered the green. When the brief Battle of Concord ended, eight Americans lay dead or dying and 10 others were wounded. Only one British soldier was injured, but the American Revolution had begun.
At midnight on May 17, 2004, Massachusetts became the first American state to allow same-sex marriage as a result of the Supreme Judicial Court of Massachusetts ruling in Goodridge v. Department of Public Health that it was unconstitutional under the Massachusetts constitution to allow only heterosexual couples to marry.
Massachusetts became the sixth jurisdiction in the world (after the Netherlands, Belgium, Ontario, British Columbia, and Quebec) to legalize same-sex marriage. It was the first U.S. state to issue same-sex marriage licenses. Because federal law confers marital benefits only upon opposite-sex marriages, more than 1,100 benefits remain unavailable to married same-sex couples in Massachusetts. There was more work to be done and now it appears that it shall remain undone for generations to come.
Shortly after the polls close this evening at 8 p.m. January 19, 2010, several million Massachusetts voters may very well have buried the legacy of the American Revolution begun in that very same state some 235 years earlier.
Furthermore, the first state to legalize gay marriage will become the state that may have marked the beginning of the end of the modern gay rights movement.
Ridiculous? What on earth am I talking about? With all eyes focused on the fact that today's special election in Massachusetts to fill the Senatorial seat vacated by the death of Ted Kennedy may kill health reform, the other white meat has been ignored. That other white meat would be Obama's agenda to deliver equality to gay Americans.
If Republican Scott Brown takes the Massachusetts Senate seat in today’s special election, the Democrats and Obama will lose their critical 60 seat super majority, health care reform will not pass and, more importantly to you and me, Obama’s window of opportunity to make good on his promises to deliver equality to gay Americans will have closed--and likely closed for at least another 10 or even 20 years--unless the Republicans change their mind about gay rights.
Republicans will once again be in control of Congress with enough votes to filibuster just about any “radical” Democratic social agenda legislation into oblivion.
The government won’t shut down, but in order to pass legislation the Senate will need bi-partisan support and bi-partisan support will cost us just about every “progressive” Democratic party platform item.
His health care bill and his ability to govern at all at stake, President Obama took time out from saving Haiti this past weekend to campaign in Massachusetts for endangered Senate Democratic candidate Martha Coakley amid release of all polls showing a quickly growing edge for the Republican Party.
In fact, Obama and the Democrats have so bitterly disappointed Massachusetts voters that a Republican seems likely to take a Senate seat Democrats have held for over a half-century.
"If Scott Brown wins, it'll kill the health bill," Democrat Barney Frank, D-Mass., said, underscoring the stakes of Tuesday's special election.
A Suffolk University survey released late Thursday showed that Brown, a Republican state senator, with 50 percent of the vote in the race to succeed the late Sen. Edward M. Kennedy in this overwhelmingly Democratic state. The so-called Democratic shoe-in Coakley had 46 percent. That amounted to a statistical tie since it was within the poll's 4.4 percentage point margin of error, but it was far different from a 15-point lead that Coakley, the Massachusetts attorney general, enjoyed in a Boston Globe survey released a week earlier.
The Suffolk poll also confirmed a fundamental shift in voter attitudes telegraphed in recent automated polls that Democrats had dismissed as unscientific and the product of GOP-leaning organizations.
And it signaled a possible death knell for the 60-vote Senate supermajority the president has been relying upon to stop Republican filibusters and pass not only his health care overhaul, but the rest of his legislative agenda heading into crucial mid-term elections this fall.
One disturbing irony in this election is that progressive Massachusetts voters are furious with Obama's massive conservative compromises on health care reform and conservative Republican Brown has pledged to vote against the health care bill.
Brown's election would give Senate Republicans the 41st vote they need to sustain a filibuster--and even Democrats manage to push the legislation through before Brown takes his seat in Congress, it would likely be the last piece of Democratic social legislation to pass under Obama.
The last. No ENDA. No repeal of DADT. No repeal of DOMA. No equality. And all because Obama and the Democrats delayed action on their many Party Platform promises to progressives and liberals and gays.
Of course, the Democrats could still win and Massachusetts will have fired yet another "shot heard round the 'gay' world". But will we hear it? Will we have learned? Given a last minute reprieve, will we act? Will we hit the streets in outrage? Will HRC demand action NOW before November 2010, when we will likely see the beginning of the end of the short golden age of Barack Obama?