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Endangered premises
By William Cooper

Nothing exposes the weakness of flawed premises like the American legal system. Examples of this truth are the premises underpinning two laws currently at the center of much controversy: California's Proposition 8 and Congress's Don't Ask, Don't Tell.

The premise of Prop 8 — a constitutional amendment banning same-sex marriage — was that allowing same-sex marriage would harm opposite-sex marriage.
While acceptance of this premise is widespread, in the recent trial of Perry v. Schwarzenegger, it was eviscerated. In striking down the law, Judge Vaughn Walker explained that the supporters of Prop 8 presented no evidence that same-sex marriage impacts — let alone harms — opposite-sex marriage: “[T]he evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8.” This evidence, he continued, proved "beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage.”

A similarly misguided premise served as the basis for DADT's ban on gays serving openly in the military. The assumption underpinning that statute was that allowing gays to openly serve would harm unit cohesion and thus the military's ability to defend our nation.
Not so. And in the recent trial of Log Cabin Republicans v. United States of America, Judge Virginia A. Phillips rejected this premise. Ruling the law unconstitutional, Judge Phillips explained that “assumptions that homosexuals present security risks and are unfit for military service are not well-supported by evidence.” Moreover, Judge Phillips noted that the evidence not only failed to support DADT’s premise about homosexuals serving in the military, the evidence turned the assumption on its head: “[The military] continue[s] to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct. If the warrior's suspected violation of the Act created a threat to military readiness [or] to unit cohesion . . . it follows that [the military] would not deploy him or her to combat before resolving the investigation.”
The premises of Prop 8 and DADT survived just fine in arenas in which conclusions went unchallenged and majorities dominated minority views. Neither one, however, survived the adversarial truth testing of trial.
The legal system's exposure of flawed premises is nothing new. The premise supporting the public-school segregation laws struck down in Brown v. Board of Education was that whites and blacks could be "separate" yet somehow remain "equal." The facts established during litigation proved the contrary. And the U.S. Supreme Court rejected the notion that segregation was not harmful to black children. The court found that segregation indeed had "a detrimental effect upon the colored children," that it had "a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” The court concluded with these famous words: "… in the field of public education, the doctrine of ‘separate but equal' has no place."
Exposure to the legal process left the premise of “separate but equal” buried underneath the rubble of irrefutable fact. It was thus removed from mainstream discourse, permitting social change to take shape.
The same thing is happening now. Like Judge Phillips, Congress has rejected the premise of DADT and repealed the law.  And after victory at trial, the challenge to Prop 8 is currently on appeal (and likely headed to the Supreme Court).
Indeed, the assumptions supporting these laws are crumbling. Day by day, case by case, argument by argument, these endangered premises are being pushed closer and closer to their inevitable place in history: extinction. Like the flawed premises of the past, they have "no place" in our legal system.

William Cooper lives in the Marina and is a law student at UC Berkeley.

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