David Boies on Prop 8 ruling: We proved that same-sex marriage won’t hurt society

Note well: He’s emphasizing the factual findings in the case here, not the ostensibly more important legal conclusions about due process and equal protection. That’s smart as a legal strategy insofar as the facts, not the law, are binding on the appellate courts that’ll hear this case, and it’s smart as a political strategy insofar as the average joe will likely be interested in the sociological testimony from the trial but not so much the tedium of due process analysis. If you’re going to use your limited time on camera to push gay marriage to the public, this is precisely the sort of thing you’d want to emphasize.

That said, while it’s no secret that I support gay marriage too, I think they’ve made a needless mistake in pushing this in the courts instead of doing it legislatively state-by-state. The optics are uniquely bad — a federal judge imperiously tossing out a public referendum enacted by citizens of one of the bluest states in America on the shoulders of a multi-racial coalition. If the goal of gay-rights activists is to make same-sex marriage palatable to the public, then embittering opponents by torpedoing a hard-fought democratic victory seems like … an odd way to go about it. The response to that will be that equality can’t wait, just as it couldn’t wait vis-a-vis school desegregation in the 1950s. Except that (a) no one, including gay-marriage supporters, seriously believes that the harm here is as egregious as the harm to blacks under Jim Crow, and (b) there was no assurance of a legislative solution to racial injustice in the 1950s the way there currently is for gay marriage. A strong majority already favors civil unions; as I noted earlier, opposition to same-sex marriage is in decline and down to 53 percent. When polled, young adults are invariably heavily in favor, guaranteeing that the legal posture on this issue will shift further over the next decade. The real effect of this decision, assuming it’s upheld on appeal, will be to let gay-marriage opponents claim that they were cheated in a debate that they were losing and bound to lose anyway. That’s what’s called a pyrrhic victory. Too bad.

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