Prop 8 speculation: just the thing for a rainy Saturday in January.

Gay Marriage supporters fear Supreme Court ruling was an omen -- LA Times

If every new motion, decision, and media-spectacle of the Prop 8 trials is this fraught with speculation and hopelessness, the outcome of the case will not matter, for we will all have collapsed in a heap of emotionally whiplashed, heart-wrung queer bodies. Which is a real shame, because the actual bodies and lives of queer people are the furthest things from discussion in any of this coverage. Our flesh-heap might merit brief coverage if it's real gory, on Fox News at very least since it'd be easier to spin our story than cover Haiti, which requires compassion and reporting and all that.

Unfortunately, I happen to side with the pessimists on the likelihood that our current Supreme Court will have the conscience or the gonads to overturn the independent decisions of 40 states to discriminate against a minority. For reasons beyond my understanding, SCOTUS has recently displayed a bizarre desire to limit its own power to overrule both state and federal over-reaches of jurisdiction. In a perfect world the Judiciary would be an excellent solution to the gay marriage problem, since the basic point of contention, the majority’s ability to limit minority rights to access government services and protections, has already been decided several times over. But this isn’t a perfect world and the court is stacked against us, and the specifics of the case provide any number of easy outs for Justices who have no internal compulsion to do the right thing.

That being said, the following was perhaps the most jaw-dropping excerpt of the linked article:

In their opinion, [SCOTUS] worried that opponents of gay marriage and their paid witnesses would face “harassment as a result of public disclosure of their support” for the ban. They concluded that the Prop. 8 defenders “have shown that irreparable harm will likely result” if video coverage of the proceedings were made public.

This is one of those free speech debacles that really ties one’s brain in knots. While in the abstract I appreciate SCOTUS’s protection of representatives of an unpopular opinion from disproportionate retaliation, and their understanding that cameras in the courtroom would have a chilling effect on free speech for witnesses for the defense, my gut reaction of anger and disbelief reigns supreme. The most common misunderstanding of “free speech” is, in my opinion, when bigots aver that “freedom of speech” means “freedom from consequences of speech.” Conservatives usually love accountability, except when it applies to wealthy hate-mongers instead of “Welfare Queens.” I’d never advocate violent retribution against the bigots willing to testify against my basic human rights, but I’d sure like to be able to boycott their businesses and thumb my nose at them on the street and such. Which we will still do without live-camera coverage, but I don’t quite see why these people are receiving extraordinary protection from the civil repercussions of their own sworn testimony.

There’s also a certain irony in the claim that the witnesses for the defense will suffer “irreparable harm” from the distribution of their testimony. I think we should all be a little more interested in the “irreparable harm” caused to millions of queer Americans by systemic inequality, lack of access to services, and dearth of protection from the constant threat of emotional and bodily injury. You know, the irreparable harm to a family that can’t legally adopt their kid or the Queer who dies in a hospital bed alone because hir partner has no legal recourse. But hey! Who asked me.

Anyway, the one thing I can’t really get my head around at present (ha! so untrue, but my heart will give out if I write about this for too much longer) is why it matters so much if Judge Walker sets clear rules for proceedings or not. Everyone knows this case is getting appealed up to SCOTUS regardless of the result, and given the high court’s unusual early-intervention with the trial already, they’re clearly not going to abide by the usual rules of the game, wherein appellate courts don’t reexamine evidence, just rule on the legality of decisions, the validity of the applied precedent, etc. Whatever Walker does in that courtroom will be purely incidental to the final decision of the case, as far as I can tell, although it will determine the specifics of appellate strategy.

Anywho. Another great day to be a gay American in the era of Hope and Change.