This week, in the nation’s first federal trial on same-sex marriage, Judge Vaughn R. Walker ruled that California’s Proposition 8 that banned same-sex marriage violates the U.S. Constitution’s 14th Amendment guarantees of due process and equal protection (Judge Strikes California’s Ban on Same-Sex Marriage, Proposition 8).
Judge Walker’s ruling is very important for further study. I found his legal brief to be extremely cogent. Whether you are “for” or “against” gay marriage, it is worth the read to gain deeper understanding in what the state’s interest is in marriage – and how that interest has changed over time.
If you are involved in faith-based political organizing, I would also highly recommend reading the brief. There were more than 1700 religious organizations allied in support of Proposition 8 and the judge makes very clear that their arguments were insufficient when it came to the law. There is much in the case that’s instructive on what is the proper role of religion in society and what is not. It explores the narrow area where church meets state.
If you want to know why gay people want to get “married,” rather than just getting “domestic partnerships” or “civil unions,” the testimonies of the witnesses are very compelling.
If you think that “loving the sinner and hating sin” has no negative repercussions, then read the section on how religion is a leading indicator in hate crimes against gays and suicide by gays.
Below I’m including a series of excerpts that I found worthy of further study. As many continue to weigh, test, study, and form our consciences on this issue, reading this ruling will aid in what deeper clarification of thought. (You can read the original ruling here or scroll to the very bottom.) Let me know what you think.
Religious Beliefs and the State
“The state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” – U.S. District Chief Judge Vaughn Walker, on unconstitutionality of California’s Proposition 8 (4 August 2010)
State’s Interest in Marriage
“The court posed to proponent’s counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. [Doc. 228 at 21.] Counsel replied that the inquiry was “not the legally relevant question,” [ID]but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.” [ID at 23.]
Judge Walker’s Summation of Pro Proposition 8 Argument
“Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. [Tr 3050:17-3051:10.] The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. [Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity.”
Marriage, Language, Social Fabric
“[Plaintiff] Perry testified that marriage would provide her what she wants most in life: a stable relationship with Stier, the woman she loves and with whom she has built a life and a family. To Perry, marriage would provide access to the language to describe her relationship with Stier: ‘I’m a 45-year-old woman. I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.’ Tr 154:20-23. Stier explained that marrying Perry would make them feel included ‘in the social fabric.’ Tr175:22. Marriage would be a way to tell ‘our friends, our family, our society, our community, our parents and each other that this is a lifetime commitment. We are not girlfriends. We are not partners. We are married.’ [Tr 172:8-12.]”
Marriage and Raising Children
“Psychologist Michael Lamb testified that 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. When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on child-rearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples. Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes.”
Democracy or ‘Majority Rules’?
“For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.”
Influence of Church-going and Union Membership on Voting for or against Prop 8
“Plaintiffs questioned [proponent expert witness] Miller on data showing 84 percent of those who attend church weekly voted yes on Proposition 8, 54 percent of those who attend church occasionally voted no on Proposition 8 and 83 percent of those who never attend church voted no on Proposition 8. [Tr 2590:10-2591:7; PX2853 at 9] (Proposition 8 Local Exit Polls – Election Center 2008 , CNN). Plaintiffs also asked about polling data showing 56 percent of those with a union member in the household voted yes on Proposition 8. [Tr 2591:25-2592:6; PX2853 at 13.]”
Overview of Marriage in California History
Pages 60-70 give a very interesting overview of marriage laws in California since 1850 when California became a state.
Civil Unions or Marriage
Pages 70-84 deal with whether any evidence shows California has an interest in differentiating between same-sex and opposite-sex unions and on the social status of marriage as opposed to civil unions or domestic partnerships.
“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.”
Prop 8 as Private Moral View or Legitimate Government Interest
Pages 84-95 detail whether the evidence shows that Prop 8 enacted a private moral view without advancing a legitimate government interest. This section is a critical read for those involved in faith-based political organizing because examines in detail the nexus of church-state relations.
“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. In re Marriage Cases, 189 P3d at 451-452 (“[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization,official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”) (CitingCal Const Art I, § 4)”
Religion and Gay-Bashing
“Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” “PX2547 (Nathanson Nov 12, 2009 Dep Tr 102:3-8: Religions teach that homosexual relations are a sin and that contributes to gay bashing)” “Tr 1566:18-22 (Segura: “[Proponents’ expert] Dr Young freely admits that religious hostility to homosexuals [plays] an important role in creating a social climate that’s conducive to hateful acts, to opposition to the interest in the public sphere and to prejudice and discrimination.”)
“The evidence shows that 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 evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, 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.
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage, FF 52. Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition. Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy—namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”
Sexual Orientation and Sex Discrimination
“Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage.”
The Right to Be Morally Opposed
“To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification. …
The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence , when the Court asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. 539 US at 571. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.” Id (citing Planned Parenthood of Southeastern Pa v Casey , 505 US 833, 850, (1992)). “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation. Lawrence , 539 US at 582 (O’Connor, J, concurring). Tradition alone cannot support legislation. See Williams , 399 US at 239; Romer , 517 US at 635; Lawrence, 539 US at 579. Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples. See FF 78-80. The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. …
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer , 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”).