August 05, 2010

>The Prop 8 Decision: GLSEN Executive Director Eliza Byard Finds Ruling Historic for Treatment of Facts vs. Opinion


GLSEN Executive Director Eliza Byard, who has a PhD in United States History from Columbia University, gave her initial reaction yesterday to Judge Vaughn Walker's decision to overturn California's Proposition 8. Today, Dr. Byard takes a deeper look at the decision and what it means beyond ruling that same-sex couples have a Constitutional right to marry. Check back Monday for Dr. Byard's look at how schools factored into Judge Walker's decision and the Prop 8 proponents' flawed arguments.

Proponents of California's Proposition 8 argued that allowing same-sex couples to marry would lead to public schools teaching that same-sex marriages are equal to heterosexual marriages – an outcome that they saw as disastrous. By failing to offer a single scrap of credible evidence at trial in support of Proposition 8, they have ensured that generations of students will learn just that, in studying Judge Vaughn Walker's landmark decision in Perry v. Schwartzenegger. Above and beyond the decision’s clarity on the equal status of same-sex and heterosexual relationships, however, Judge Walker has made another crucial contribution to a vision of a better America with his opinion in this case. Hopefully this additional lesson will make its way into our schools as well.

At an event in New York City in June, David Boies was quite clear about his goal for the initial trial in this case: establish a factual record of great clarity on the central issues for the rounds of appeal to come. A trial attorney of unparalleled skill and experience, Boies spoke movingly of his love for the American system of justice, and particularly for the practice of cross-examination, which requires the witness on the stand to respond substantively to direct questions posed by their opponents. By taking the key questions on head on, and confronting opponents in the courtroom, far from the media echo chamber, Boies felt that our court system would allow the discussion to cut through the noise to the facts. David Blankenhorn, you're not on Hannity anymore.

Boies was right. Brietbart beware. Tea Partiers take note. Propagandists of all stripes, you are on notice. Amidst Judge Walker's many bold statements and findings of fact is a simple citation of Federal Rule of Evidence 702 that is in its own right no less bold an assertion. Rule 702 holds that in order to be considered an “expert” by the federal courts, and to have your opinions and statements be given legal weight, you must be qualified by “knowledge, skill, experience, training or education,” and your testimony may only be admitted if it “is based upon sufficient facts or data” and “is the product of reliable principles and methods.” In simpler terms, you have to know what you’re talking about. In a society inundated with undifferentiated "content" and opinions often bolstered by nothing more than sheer volume, Judge Walker has reminded us of the standard by which information should be evaluated and categorized.

Whatever the impact of this ruling on the content of the curriculum vis-a-vis same-sex marriage, one can only hope that it will contribute to a fundamental renaissance of knowledge, expertise and respectful debate. If there is one thing that students in this diverse society should learn about in public schools, it is how to articulate and defend their points of view in a respectful, relevant and cogent way in the public square. Should Judge Walker's opinion prevail through many rounds of appeal, he will have left a truly monumental legacy. One element of that legacy will be his reassertion of the difference in standing between opinion and fact in a Constitutional system, and the grounding in reality required to give either credence and meaning in public discourse.


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