Perry V. Schwarzenegger
In August 2010 when "Perry V. Schwarzenegger" was released I skimmed the court decision, got engrossed, and read the whole thing. It is a fascinating and remarkably sensible analysis of pros and cons. I started writing about it, got most of the way through, but never quite finished it up. I don't have time to get through the last few pages but I'm going to post what I've got in its unfinished form.
I strongly believe that you can't disagree with someone until you fully understand the position that you're disagreeing with, so I've been reading through the Perry v. Schwarzenegger decision from cover to cover to see what the judge thought of the arguments in favor of Prop 8. I'd like to understand why proponents thought Prop 8 was a good idea, and why the judge didn't agree with their decision.
Arguments
It's not fair to say the Prop 8 proponents had no argument against same sex marriage. During the campaign leading up to the vote they made several arguments to voters. They also had a completely different set of arguments that they made in court. The argument which resonated with voters was one based on religion, stereotypes, and speculation which doesn't fly under the standards of evidence in a fair trial based on secular civil law. "Perhaps recognizing that Proposition 8 must advance a secular purpose to be constitutional, proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples." Here's how the court summarized "the ballot argument submitted to the voters":
1. Denial of marriage to same-sex couples preserves marriage;
2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples;
3. Denial of marriage to same-sex couples protects children;
4. The ideal child-rearing environment requires one male parent and one female parent;
5. Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; and
6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages.
And here's how the court summarized the legal argument as presented in Perry v. Schwarzenegger; an argument which "abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples". Prop 8:
1. Maintains California’s definition of marriage as excluding same-sex couples;
2. Affirms the will of California citizens to exclude same- sex couples from marriage;
3. Promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children; and
4. Promotes “statistically optimal” child-rearing households; that is, households in which children are raised by a man and a woman married to each other.
And said (p127) that promoting same-sex parenting over opposite-sex parenting:
(1) promotes “stability and responsibility in naturally procreative relationships”;
(2) promotes “enduring and stable family structures for the responsible raising and care of children by their biological parents”;
(3) increases “the probability that natural procreation will occur within stable, enduring, and supporting family structures”;
(4) promotes “the natural and mutually beneficial bond between parents and their biological children”;
(5) increases “the probability that each child will be raised by both of his or her biological parents”;
(6) increases “the probability that each child will be raised by both a father and a mother”; and
(7) increases “the probability that each child will have a legally recognized father and mother.”
But contrary to these claims, the evidence presented in court showed that:
1. same-sex parents and opposite-sex parents are of equal quality, FF 69-73, and
2. Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents
Furthermore, Prop 8 "has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying."
Evidence and Witnesses
Argument #3 was argued at some length. Marriage must be regulated because “responsible procreation is really at the heart of society’s interest”. Sexual activity between people of the opposite sex may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households, and the most stable households are married households. Therefore the state should encourage the norm that opposite-sex sexual activity should occur within marriage, so that procreation will occur within marriage. (p10) How legal recognition of married same sex couples result in less children for married opposite sex couples, or more children from unmarried couples? The proponents' counsel helpfully explained "Your honor, my answer is: I don’t know. I don’t know." (p9)
As evidence for their claims, "Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court." Probably a good move, since "Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims." Their star witness, David Blankenhorn, was found to "lack the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions." For this reason his testimony "constitutes inadmissible opinion testimony that should be given essentially no weight." For his definitions of marriage, Blankerhorn "relied on the quotations of others to define marriage and provided no explanation of the meaning of the passages he cited or their sources. Blankenhorn’s mere recitation of text in evidence does not assist the court in understanding the evidence because reading, as much as hearing, 'is within the ability and experience of the trier of fact'." His attempt to argue a universal "rule of two" in marriage included polygamy, since polygamists marry themselves to individual wives in individual ceremonies. For the assertion "that children raised by their married, biological parents do better on average than children raised in other environments" included "single parents, unmarried mothers, step families and cohabiting parents" but not cohabitating same-sex couples, nor did the studies emphasize biology. “There is simply too great an analytical gap between the data and the opinion proffered.” For the assertion that "recognizing same-sex marriage will lead to the deinstitutionalization of marriage", the court observed that saying "same-sex marriage is both a cause and a symptom of deinstitutionalization" makes the opinion "tautological", and "no credible evidence supports Blankenhorn’s conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization." The experimental evidence he presented "arose from a group thought experiment in which an idea was written down if someone suggested it." He "gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered." Under cross-examination "Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry" and agreed that "insofar as we are a nation founded on [the principle of equal human dignity], we would be more American on the day we permitted same- sex marriage than we were the day before."
Ken Miller was the only other witness called by Prop 8's advocates "as an expert in American and California politics." Miller was attempting to explain that gays were not a powerless minority deserving special advocacy or protection - there are several gay politicians, and gay groups had previously defeated bills for mandatory reporting and quarantine of HIV+ patients. Unfortunately there were questions "whether Miller had sufficient expertise to testify authoritatively on the subject of the political power of gays and lesbians", and Miller did not prove himself to be much of an expert. He "had not investigated the scope of private employment discrimination against gays and lesbians". He "did not investigate the extent of anti-gay harassment in workplaces or schools" and "had not investigated the ways in which anti-gay stereotypes may have influenced Proposition 8 voters." He "he did not know ... the status of antidiscrimination provisions to protect gays and lesbians at the state and local level." He "could only identify Don’t Ask, Don’t Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians". He "did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question." Miller accepted that "84% of those who attend church weekly voted yes on Proposition 8, 54% of those who attend church occasionally voted no on Proposition 8, and 83% of those who never attend church voted no on Proposition 8", but still claimed that "many religious groups are allies of gays and lesbians". " The court eventually determined that "while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power." That made him at least credible when he "agreed that a principle of political science holds that it is undesirable for a religious majority to impose its religious views on a minority." Offering opinions at trial that are "inconsistent with the opinions he expressed before he was retained as an expert" is rarely a good move. Especially when a piece in 2001 noted that "gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process", contradicting the central point he was on the stand to make. The court also noted with some irony that, according to Miller's earlier writing, the California initiative process can "eschew compromise and foster polarization, undermine the authority and flexibility of representative government and violate norms of openness, accountability, competence and fairness" and was "especially concerned that initiative constitutional amendments undermine representative democracy". You don't say, Ken.
The court recognized that the "traditional definition of marriage" has already changed substantially via "removal of race restrictions through court decisions". "The tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles", which have already been eliminated under law via "the elimination of coverture and other gender-based distinctions", making Prop 8's gender restriction "an artifact of a foregone notion that men and women fulfill different roles in civic life."
The court didn't find that the Prop 8 proponents' arguments were baseless, by starting with supporters' statements and following them to the opposite conclusion. If "the state’s primary purpose in regulating marriage is to create stable households", same sex households "accrue to same-sex as well as opposite-sex married couples" which makes same sex marriage "another resource for stability and social order" by their own argument. The "consistent historical features of marriage, including that civil law, as opposed to religious custom", is "that one’s ability to consent to marriage is a basic civil right". Similarly, same sex couples "would benefit economically if they were able to marry and that same-sex marriage would have no adverse effect on the institution of marriage or on opposite-sex couples." Prop 8 reduced these benefits by "providing state endorsement of private discrimination" and "increasing the likelihood of negative mental and physical health outcomes for gays and lesbians".
"...despite stereotypes suggesting gays and lesbians are unable to form stable relationships, same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability. Badgett testified that same-sex and opposite-sex couples are very similar in most economic and demographic respects." "All available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent." What's important is two parent families. "Studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes." If anything "adoptive parents actually on some outcomes outstrip biological parents in terms of providing protective care for their children."
Findings of Fact
The "Findings of Fact" (p54) are where the decision starts getting really interesting, because that's where the judge starts separating baseless accusations from stuff that's actually credible. The early ones are obvious (7. "Arnold Schwarzenegger is the Governor of California") but the later ones are where things start getting interesting.
33. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.
48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. ... Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same- sex or opposite-sex.
49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.
50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.
52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.
54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.
55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the
stability of opposite-sex marriages.
56. The children of same-sex couples benefit when their parents can marry.
58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
62. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
69. The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) theavailability of economic and social resources.
70. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.
71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.
73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships.
Rational Basis
They also explained (p123) that as a result of Prop 8, society had an interest in doing the following things:
(1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage;
(2) proceeding with caution when implementing social changes;
(3) promoting opposite- sex parenting over same-sex parenting;
(4) protecting the freedom of those who oppose marriage for same-sex couples;
(5) treating same-sex couples differently from opposite-sex couples; and
(6) any other conceivable interest.
The Federal guarantee of equal protection is observed "when a law creates a classification but neither targets a suspect class nor burdens a fundamental right", as long as there is a "relation between the classification adopted and the object to be attained." A "rational basis" for the law. For example there might be an interest in preserving marriage licenses for fertile couples, but "marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed." Proponents identified "a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation" they could only point to fertility, but could not explain "why the government may need to take into account fertility when legislating". There is a tradition of society discouraging homosexual conduct, but "tradition alone cannot legitimate this purported interest". Gays are unpopular, but "the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular". Since traditions are rules of society, "state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8."
The "caution" argument was raised. "When considering a radical transformation to the fundamental nature of a bedrock social institution" it is prudent to act "incrementally and with caution" to decrease "the probability of weakening the institution of marriage" and "adverse consequences that could result". But as mentioned above, "allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state" and "the rights of those opposed to homosexuality or same-sex couples will remain unaffected". The state does not even need "any significant lead time to integrate same-sex couples into marriage" as they did under racial integration of schools. "California has no interest in waiting and no practical need to wait."
"To the extent California has an interest in encouraging sexual activity to occur within marriage, the evidence shows Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage." Prop 8 "requires some sexual activity and child-bearing and child-rearing to occur outside marriage." The state has an interest "encouraging the formation of stable households", but "same-sex households have become less stable by the passage of Proposition 8", and "Proponents failed to put forth any credible evidence that married opposite-sex households are made more stable."
Proponents said that "Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex." But because "Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California" ... "Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children" and "does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex."
Because Prop 8 "fails to possess even a rational basis", opponents did not need to show "that gays and lesbians are the type of minority strict scrutiny was designed to protect", although they proved this anyway. Even though Prop 8 proponents agreed that "same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities", gays are still "subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities", which is exactly what equal protection is designed to prevent.
Conclusions of Law
The court found that the freedom to marry is a fundamental right protected by the Due Process Clause. That doesn't mean that you can marry anyone or anything you want, any more than the fundamental right to religion means you can practice human sacrifice, but it does mean that infringement on that right must follow strict Due Process.
The court found that "marriage in the United States traditionally has not been open to same-sex couples", but the reasons for this exclusion weren't very persuasive. "Gender roles mandated through coverture, social disapproval of same-sex relationships, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction ... the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. ... the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed." Because "marriage under law is [now] a union of equals", and genders are now considered equal, "gender no longer forms an essential part of marriage." The right that opposite-sex couples exercise - to marry an equal - is the same right that same-sex couples seek to exercise, not a "new right".
"Prop 8 is unconstitutional because it denies a fundamental right without a legitimate (much less compelling) reason." "Fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections." You can curtail fundamental rights if they are "narrowly tailored to a compelling government interest", but the California government was not interested in making such arguments, and the Prop 8 proponents "[did] not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest."
What's interesting to me is that Judge Walker didn't seem to be writing his decision for the plaintiffs, defendants, or public as much as he was writing it for the appellate court. He's being careful to spell out the issues, facts, legal issues, and decisions so that the next judge knows exactly where he's coming from.
What's also interesting to me is how incompetent and poorly prepared the pro- side was. I'm not surprised if random laypeople can't reason their way through thorny issues, but when the lead counsel is unable to answer simple obvious questions with months to prepare, or their hand-picked expert witnesses testimony ends up serving the other side, that's a pretty big sign how completely irrational and baseless the proposition was.
I strongly believe that you can't disagree with someone until you fully understand the position that you're disagreeing with, so I've been reading through the Perry v. Schwarzenegger decision from cover to cover to see what the judge thought of the arguments in favor of Prop 8. I'd like to understand why proponents thought Prop 8 was a good idea, and why the judge didn't agree with their decision.
Arguments
It's not fair to say the Prop 8 proponents had no argument against same sex marriage. During the campaign leading up to the vote they made several arguments to voters. They also had a completely different set of arguments that they made in court. The argument which resonated with voters was one based on religion, stereotypes, and speculation which doesn't fly under the standards of evidence in a fair trial based on secular civil law. "Perhaps recognizing that Proposition 8 must advance a secular purpose to be constitutional, proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples." Here's how the court summarized "the ballot argument submitted to the voters":
1. Denial of marriage to same-sex couples preserves marriage;
2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples;
3. Denial of marriage to same-sex couples protects children;
4. The ideal child-rearing environment requires one male parent and one female parent;
5. Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; and
6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages.
And here's how the court summarized the legal argument as presented in Perry v. Schwarzenegger; an argument which "abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples". Prop 8:
1. Maintains California’s definition of marriage as excluding same-sex couples;
2. Affirms the will of California citizens to exclude same- sex couples from marriage;
3. Promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children; and
4. Promotes “statistically optimal” child-rearing households; that is, households in which children are raised by a man and a woman married to each other.
And said (p127) that promoting same-sex parenting over opposite-sex parenting:
(1) promotes “stability and responsibility in naturally procreative relationships”;
(2) promotes “enduring and stable family structures for the responsible raising and care of children by their biological parents”;
(3) increases “the probability that natural procreation will occur within stable, enduring, and supporting family structures”;
(4) promotes “the natural and mutually beneficial bond between parents and their biological children”;
(5) increases “the probability that each child will be raised by both of his or her biological parents”;
(6) increases “the probability that each child will be raised by both a father and a mother”; and
(7) increases “the probability that each child will have a legally recognized father and mother.”
But contrary to these claims, the evidence presented in court showed that:
1. same-sex parents and opposite-sex parents are of equal quality, FF 69-73, and
2. Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents
Furthermore, Prop 8 "has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying."
Evidence and Witnesses
Argument #3 was argued at some length. Marriage must be regulated because “responsible procreation is really at the heart of society’s interest”. Sexual activity between people of the opposite sex may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households, and the most stable households are married households. Therefore the state should encourage the norm that opposite-sex sexual activity should occur within marriage, so that procreation will occur within marriage. (p10) How legal recognition of married same sex couples result in less children for married opposite sex couples, or more children from unmarried couples? The proponents' counsel helpfully explained "Your honor, my answer is: I don’t know. I don’t know." (p9)
As evidence for their claims, "Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court." Probably a good move, since "Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims." Their star witness, David Blankenhorn, was found to "lack the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions." For this reason his testimony "constitutes inadmissible opinion testimony that should be given essentially no weight." For his definitions of marriage, Blankerhorn "relied on the quotations of others to define marriage and provided no explanation of the meaning of the passages he cited or their sources. Blankenhorn’s mere recitation of text in evidence does not assist the court in understanding the evidence because reading, as much as hearing, 'is within the ability and experience of the trier of fact'." His attempt to argue a universal "rule of two" in marriage included polygamy, since polygamists marry themselves to individual wives in individual ceremonies. For the assertion "that children raised by their married, biological parents do better on average than children raised in other environments" included "single parents, unmarried mothers, step families and cohabiting parents" but not cohabitating same-sex couples, nor did the studies emphasize biology. “There is simply too great an analytical gap between the data and the opinion proffered.” For the assertion that "recognizing same-sex marriage will lead to the deinstitutionalization of marriage", the court observed that saying "same-sex marriage is both a cause and a symptom of deinstitutionalization" makes the opinion "tautological", and "no credible evidence supports Blankenhorn’s conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization." The experimental evidence he presented "arose from a group thought experiment in which an idea was written down if someone suggested it." He "gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered." Under cross-examination "Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry" and agreed that "insofar as we are a nation founded on [the principle of equal human dignity], we would be more American on the day we permitted same- sex marriage than we were the day before."
Ken Miller was the only other witness called by Prop 8's advocates "as an expert in American and California politics." Miller was attempting to explain that gays were not a powerless minority deserving special advocacy or protection - there are several gay politicians, and gay groups had previously defeated bills for mandatory reporting and quarantine of HIV+ patients. Unfortunately there were questions "whether Miller had sufficient expertise to testify authoritatively on the subject of the political power of gays and lesbians", and Miller did not prove himself to be much of an expert. He "had not investigated the scope of private employment discrimination against gays and lesbians". He "did not investigate the extent of anti-gay harassment in workplaces or schools" and "had not investigated the ways in which anti-gay stereotypes may have influenced Proposition 8 voters." He "he did not know ... the status of antidiscrimination provisions to protect gays and lesbians at the state and local level." He "could only identify Don’t Ask, Don’t Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians". He "did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question." Miller accepted that "84% of those who attend church weekly voted yes on Proposition 8, 54% of those who attend church occasionally voted no on Proposition 8, and 83% of those who never attend church voted no on Proposition 8", but still claimed that "many religious groups are allies of gays and lesbians". " The court eventually determined that "while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power." That made him at least credible when he "agreed that a principle of political science holds that it is undesirable for a religious majority to impose its religious views on a minority." Offering opinions at trial that are "inconsistent with the opinions he expressed before he was retained as an expert" is rarely a good move. Especially when a piece in 2001 noted that "gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process", contradicting the central point he was on the stand to make. The court also noted with some irony that, according to Miller's earlier writing, the California initiative process can "eschew compromise and foster polarization, undermine the authority and flexibility of representative government and violate norms of openness, accountability, competence and fairness" and was "especially concerned that initiative constitutional amendments undermine representative democracy". You don't say, Ken.
The court recognized that the "traditional definition of marriage" has already changed substantially via "removal of race restrictions through court decisions". "The tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles", which have already been eliminated under law via "the elimination of coverture and other gender-based distinctions", making Prop 8's gender restriction "an artifact of a foregone notion that men and women fulfill different roles in civic life."
The court didn't find that the Prop 8 proponents' arguments were baseless, by starting with supporters' statements and following them to the opposite conclusion. If "the state’s primary purpose in regulating marriage is to create stable households", same sex households "accrue to same-sex as well as opposite-sex married couples" which makes same sex marriage "another resource for stability and social order" by their own argument. The "consistent historical features of marriage, including that civil law, as opposed to religious custom", is "that one’s ability to consent to marriage is a basic civil right". Similarly, same sex couples "would benefit economically if they were able to marry and that same-sex marriage would have no adverse effect on the institution of marriage or on opposite-sex couples." Prop 8 reduced these benefits by "providing state endorsement of private discrimination" and "increasing the likelihood of negative mental and physical health outcomes for gays and lesbians".
"...despite stereotypes suggesting gays and lesbians are unable to form stable relationships, same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability. Badgett testified that same-sex and opposite-sex couples are very similar in most economic and demographic respects." "All available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent." What's important is two parent families. "Studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes." If anything "adoptive parents actually on some outcomes outstrip biological parents in terms of providing protective care for their children."
Findings of Fact
The "Findings of Fact" (p54) are where the decision starts getting really interesting, because that's where the judge starts separating baseless accusations from stuff that's actually credible. The early ones are obvious (7. "Arnold Schwarzenegger is the Governor of California") but the later ones are where things start getting interesting.
33. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.
48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. ... Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same- sex or opposite-sex.
49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.
50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.
52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.
54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.
55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the
stability of opposite-sex marriages.
56. The children of same-sex couples benefit when their parents can marry.
58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
62. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
69. The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) theavailability of economic and social resources.
70. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.
71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.
73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships.
Rational Basis
They also explained (p123) that as a result of Prop 8, society had an interest in doing the following things:
(1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage;
(2) proceeding with caution when implementing social changes;
(3) promoting opposite- sex parenting over same-sex parenting;
(4) protecting the freedom of those who oppose marriage for same-sex couples;
(5) treating same-sex couples differently from opposite-sex couples; and
(6) any other conceivable interest.
The Federal guarantee of equal protection is observed "when a law creates a classification but neither targets a suspect class nor burdens a fundamental right", as long as there is a "relation between the classification adopted and the object to be attained." A "rational basis" for the law. For example there might be an interest in preserving marriage licenses for fertile couples, but "marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed." Proponents identified "a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation" they could only point to fertility, but could not explain "why the government may need to take into account fertility when legislating". There is a tradition of society discouraging homosexual conduct, but "tradition alone cannot legitimate this purported interest". Gays are unpopular, but "the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular". Since traditions are rules of society, "state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8."
The "caution" argument was raised. "When considering a radical transformation to the fundamental nature of a bedrock social institution" it is prudent to act "incrementally and with caution" to decrease "the probability of weakening the institution of marriage" and "adverse consequences that could result". But as mentioned above, "allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state" and "the rights of those opposed to homosexuality or same-sex couples will remain unaffected". The state does not even need "any significant lead time to integrate same-sex couples into marriage" as they did under racial integration of schools. "California has no interest in waiting and no practical need to wait."
"To the extent California has an interest in encouraging sexual activity to occur within marriage, the evidence shows Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage." Prop 8 "requires some sexual activity and child-bearing and child-rearing to occur outside marriage." The state has an interest "encouraging the formation of stable households", but "same-sex households have become less stable by the passage of Proposition 8", and "Proponents failed to put forth any credible evidence that married opposite-sex households are made more stable."
Proponents said that "Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex." But because "Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California" ... "Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children" and "does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex."
Because Prop 8 "fails to possess even a rational basis", opponents did not need to show "that gays and lesbians are the type of minority strict scrutiny was designed to protect", although they proved this anyway. Even though Prop 8 proponents agreed that "same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities", gays are still "subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities", which is exactly what equal protection is designed to prevent.
Conclusions of Law
The court found that the freedom to marry is a fundamental right protected by the Due Process Clause. That doesn't mean that you can marry anyone or anything you want, any more than the fundamental right to religion means you can practice human sacrifice, but it does mean that infringement on that right must follow strict Due Process.
The court found that "marriage in the United States traditionally has not been open to same-sex couples", but the reasons for this exclusion weren't very persuasive. "Gender roles mandated through coverture, social disapproval of same-sex relationships, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction ... the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. ... the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed." Because "marriage under law is [now] a union of equals", and genders are now considered equal, "gender no longer forms an essential part of marriage." The right that opposite-sex couples exercise - to marry an equal - is the same right that same-sex couples seek to exercise, not a "new right".
"Prop 8 is unconstitutional because it denies a fundamental right without a legitimate (much less compelling) reason." "Fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections." You can curtail fundamental rights if they are "narrowly tailored to a compelling government interest", but the California government was not interested in making such arguments, and the Prop 8 proponents "[did] not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest."
What's interesting to me is that Judge Walker didn't seem to be writing his decision for the plaintiffs, defendants, or public as much as he was writing it for the appellate court. He's being careful to spell out the issues, facts, legal issues, and decisions so that the next judge knows exactly where he's coming from.
What's also interesting to me is how incompetent and poorly prepared the pro- side was. I'm not surprised if random laypeople can't reason their way through thorny issues, but when the lead counsel is unable to answer simple obvious questions with months to prepare, or their hand-picked expert witnesses testimony ends up serving the other side, that's a pretty big sign how completely irrational and baseless the proposition was.