crossposted on Holy Bullies and Headless Monsters

By now, you all have heard the latest from the Proposition 8 proponents. They have filed a suit asking the courts to vacate the decision against Proposition 8 because the judge, Vaughn Walker, is gay.

These folks assert that since Walker was gay, he had a interest in the case and should have recused himself.

Let me just say that if that is the case, then I think the case in which the Supreme Court ruled that gays shouldn't be allowed in the Boy Scouts should be overturned because all of the justices ruling were heterosexual. But that is ridiculous.

And that is the point.

While legal experts agree that this gambit is desperate and will not prevail, it has succeeded in obscuring the fact that Proposition 8 proponents lost because their case was poor.

I mean really, really poor.

In the 13 day trial, lawyers fighting Proposition 8 brought out the experts, academics, and same-sex couples who were affected by the law.

In contrast, proponents only brought two witnesses.

Where was Maggie Gallagher of the National Organization for Marriage or all of those pastors who rallied their congregations against marriage equality, such as Miles McPherson of the Rock Church of San Diego?

All of these “brave defenders of marriage” conveniently didn't not to testify.

It is not known why Gallagher didn't testify but others, like McPherson, claimed that they were fearful of violent reaction by those who supported marriage equality.

Some, like myself, felt that McPherson was worried less about violence and more worried about being questioned on bogus positions he took, such as using discredited research to make a link between pedophilia and homosexuality.

In the words of legal analyst Andrew Cohen, the trial was an “uneven matchup” which led to the foregone conclusion that Walker would rule against Proposition 8:

Judge Walker will so rule, in large part, because he has been left with virtually no other choice as result of the odd tactics and weak case presented to him by opponents of same-sex marriage.

Take, for example, the bizarre courtroom display Wednesday by Charles Cooper, the lead attorney for defenders of Prop 8. His side presented only two witnesses during the long course of the trial, neither of whom was particularly compelling. In fact, one of the defense witnesses, David Blankenhorn, was so hapless during his testimony a while back that Judge Walker on Wednesday questioned his credentials as an expert on marriage. When you have bad facts, you argue the law. When you've presented little evidence, or the evidence you've presented is not so hot, you say that evidence doesn't matter. That's partly why Cooper told Judge Walker during closing arguments, “Your honor, you don't have to have evidence for this.”

But you do need evidence. And commercials telling lies about how children will suddenly become gay if  marriage equality becomes law or leaflets featuring phony horror stories about states which did pass gay marriage laws or pastors thundering about morality from the pulpit just ain't going to cut it.

It's easy to persuade voters that way, but in a court, you need logic, you need evidence, and you need witnesses.

Those who defended Proposition 8 had neither of the first two and very little of the last.

And that's why they lost.

Their pathetic maneuver of “gaming the referee” after the fact is just a matter of sour grapes by people who unfortunately have enough money to turn those sour grapes into wine.

But I don't think any court is going to swallow it.