Perry v. Schwarzenegger: California becomes the latest battleground for Gay Marriage Rights | Eastern North Carolina Now

Ripped from the headlines…

    On August 4, a federal court in California struck down the gay marriage ban, popularly known as Proposition 8, and handed a victory to thousands of gays and lesbians who demanded they be entitled to “marry” their partners. Civil unions weren’t good enough, for in their eyes they are a “separate-but-equal” classification that made them feel like second class citizens. True equality was their desire. From plaintiffs’ standpoint, the title of marriage is an intangible right and California had no legitimate reason to deny it to them. It was an Equal Rights lollapalooza out in California. Round one went to Kristen Perry and her partner Sandra Stier and to Paul Katami and his partner Jeffrey Zarrillo, all plaintiffs in this litigation, Perry v. Schwarzenegger. And of course, to their esteemed attorneys, Theordore Olson and David Boies (both regular litigators in front of the Supreme Court). Oh, and did I mention that the judge is openly gay.

    Judge Vaughn R. Walker, who was appointed to the federal bench by Ronald Reagan in 1987 and then promoted by George H.W. Bush to sit on the U.S. District Court, had no problem declaring that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

    Proposition 8 is the California state constitutional amendment voted upon by the majority of the people in the state to preserve the traditional definition of marriage. The constitutional amendment represented the will of the people themselves after the state legislature removed the words “between a man and a woman” from the definition of marriage in the California Family Code (which itself had also been a popular initiative). As Douglas Napier, an attorney with the Alliance Defense Fund who defended Proposition 8, commented: "The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters." He scolded the judge for making the case more about gay rights than about voters’ rights. Brian Brown, president of the National Organization for Marriage, said: "With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman."

    Although the judge in Perry found in favor of the gay and lesbian plaintiffs, he didn’t authorize state officials to begin issuing marriage licenses to homosexual couples. Rather, he delayed same-sex marriage until August 18, 2010 in order to permit an appeal to be filed, which it did on Aug. 14. But on Aug. 16, the US Court of Appeals for the Ninth Circuit (in San Francisco), put same-sex weddings in California on hold indefinitely while it reviews Walker’s decision and considers the constitutionality of the state's gay marriage ban. The US Court of Appeals for the Ninth Circuit is one of the more progressive of federal appeals court. At the federal appellate level, a 3-member judicial panel is selected, and those members are randomly selected (from a group of 27 appellate judges), as is the practice. So everything will depend upon which 3 judges will be randomly picked to sit on the panel. Legal experts believe that if the ruling is affirmed on appeal, the U.S. Supreme Court would almost certainly take up the case and establish law for the rest of the country. If the appeals court reverses the decision and restores the ban, it is most likely that the Supreme Court may leave the case alone.

    This case will likely make it to the Supreme Court where the decision of our nine Justices, like Greek Gods on Mount Olympus, could set societal policy that might potentially forever affect us mortals. A decision by the Supreme Court could establish new legal analysis which eventually will be binding on all states. It could potentially change the landscape of our society and bring about fundamental change that will shock our traditional notions of family, child-rearing, and disciplined living, and bring about the destruction of the religious principles that for over 220 years have guided the order of our society and guided human conduct. Perhaps in order that our social conscience be purged of any guilt, all boundaries in society need to be blurred and erased. Maybe that is our destiny. Perhaps our very freedoms are the downfall of our moral and ordered society.

    We have all read the news and picked up on the major talking points of this decision out in California. We all sense that this issue of gay marriage is destined for a show down in the Supreme Court. Those opposed to gay marriage and the elevation of same-sex unions to equality with opposite-sex unions don’t know if they should be glad or they should be nervous. For who truly knows how the Gods will decide. Are we indeed witnessing a cultural shift in the country? Is this issue of gay marriage finally “ripe” for the Supreme Court to hear it? We know the court has declined to take up the issue in the past, but who knows. How many states need to find equal rights violations in their constitutions with respect to their rights and respects of marriage before the Court feels it needs to weigh in on the issue? How long will the Court tolerate piecemeal solutions all around the country? Will it finally decide to take the opportunity, as it did in Brown v. Board of Education, to end discrimination and establish forcibly establish a remedy for homosexuals?

    I have read the entire 144-page decision and I wanted to share all the arguments and considerations that were made by the court so that we can all know what the issues are that courts are reviewing and discussing. So to this end, I apologize for the detail and for the in-depth legal analysis, which may put many to sleep. Our society may soon change, thanks to more progressive thinking in the courts these days, and I think it is important for us to know why that change may take place and how it may happen. As I discuss the evidence in the case, the testimony of experts, reports, studies, arguments, and issues, please take special note of the weight the judge (again, an openly-gay judge) consistenly gives, to those which advance his own personal cause while discrediting and even downright dismissing those which touch on those which support traditional marriage. At the end, I will attempt to make a few arguments that were not brought up in the case but which seem important, at least to me.

    First let’s look at how Proposition 8 came into being, for this is an example of the process of how state citizens can attempt to make their voices known on policy matters other than through the election of candidates they “hope” will honor their voices in government. In the 1970s, several gay and lesbian couples sought marriage licenses in California, relying on the amended language in Calif. Civil Code § 4101 (which had taken out language specifying marriage between “a man and a woman”). In response, in 1977, the legislature amended the marriage statute, former Calif. Civil Code § 4100, to read “Marriage is a personal relationship arising out of a civil contract between a man and a woman….” That provision became Calif. Family Code § 300. The legislative history of the enactment supports a conclusion that legislators wanted to honor the unique roles of a man and a woman in marriage. In November 2000, the voters of California adopted Proposition 22 through the state’s initiative process. Officially entitled the “California Defense of Marriage Act,” Proposition 22 amended the state’s Family Code by adding the following language: “Only marriage between a man and a woman is valid or recognized in California.” [Calif. Family Code § 308.5]. This amendment further codified the existing definition of marriage as “a relationship between a man and a woman.

    At the end of 2003-beginning of 2004, at the direction of Mayor Gavin Newsom, the Office of the County Clerk of San Francisco designed revised forms for its marriage license application, license, and marriage certificate, and on February 12, 2004, the City and County of San Francisco began issuing marriage licenses to same-sex couples. On February 13, two organizations, the Proposition 22 Legal Defense and Education Fund, and the Campaign for California Families, filed actions in San Francisco Superior Court, a state court, seeking an immediate stay to prohibit the City from issuing marriage licenses to same-sex couples. [The term “stay” is a legal term meaning to block impending legal action]. The Superior court refused to grant the groups' request for an immediate stay, and the City and County continued to issue marriage licenses to same-sex couples. The California Attorney General and a number of taxpayers then filed two separate petitions seeking to have the California Supreme Court issue an original writ of mandate, asserting that the City's actions were unlawful and warranted the court’s immediate intervention. On March 11, 2004, the California Supreme Court indeed ordered San Francisco officials to acknowledge and enforce the existing marriage statutes and to refrain from issuing the licenses. An action was then brought in federal court (the same US District court that decided Perry), in which the court officially declared that the conduct of the San Francisco officials was unconstitutional. That case was Lockyer v. City and County of San Francisco. That court refused to address the underlying issue, whether the statutes, Family Code § 300 and Proposition 22, were unconstitutional, but advised those who supported same-sex marriages that they should feel free to bring an action challenging the constitutionality of the marriage laws. [I think that might have been an open invitation.. “If you come to me with that question, I promise I’ll strike the law down.”] Accepting the invitation from the openly-gay judge (duh !!), the City and County of San Francisco then filed a Petition for writ of mandate in Superior Court, seeking a declaration that "all California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution." Six actions were consolidated into a single proceeding called In re Marriage Cases.

    In In re Marriage Cases, the court finally addressed the constitutionality of the Family Code statutes. In that case, the issue before the court was not whether it is constitutionally permissible under the California Constitution for the state to limit marriage only to a man and a woman, but rather whether the state constitution prohibits the state from establishing a statutory scheme to distinguish between the types of unions permitted between heterosexual couples and between homosexual couples. In the state of California, as it is with several states, the legal union between a man and a woman is designated a “marriage” while the legal union between a male and another male, or a female and another female, is designated as a “domestic partnership.” Note that a domestic partnerships under California law grants same-sex couples all of the legal rights and responsibilities assigned to ”married” couples. So basically, the court was only asked to determine whether the difference in the official names of the relationships violates the California Constitution. (Domestic partners under California law mirror those for “civil unions” in the states of Connecticut, New Hampshire, New Jersey, and Vermont. They are equally as comprehensive in the nature and extent of the rights afforded).

    The court, in In re Marriage Cases held: “In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling under the strict scrutiny equal protection standard and does not justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of § 300 and § 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.” The court concluded that the bans on same-sex marriage create an impermissible classifications of persons based on sexual orientation which violates the Equal Protection clause. Hence the court struck down both Family Code statues - § 300 and § 308.5. According to the court, allowing opposite-sex couples to be joined in marriage while allowing same-sex couples to be joined only in domestic partnerships denied the latter equal dignity in the recognition of their relationships. (As we will see, this will become the plaintiffs’ central argument in the present case, the Perry case).

    In 2008, in response to the court’s decision in In re Marriage Cases, the language “between a man and a woman” was stricken from § 300. The California’ Defense of Marriage Act (§ 308.5 or Proposition 22) was stricken in its entirety. In 2008, California eliminated its statutory scheme to reserve marriage for heterosexual couples. It ended its statutory scheme which made determinations as to who can “marry” based on the gender of the spouse. The people of the state of California were not happy about this. They felt they had no say in the matter. Persons who value the traditional notions of marriage particularly felt their concerns were minimized. Consequently, Proposition 8, which created an amendment to the state constitution which defines marriage as between “a man and a woman,” was then put on the election ballot for the people of California to decide and to make their voice democratically known. In November of 2008, it was adopted. Proposition 8 added a new provision, Section § 7.5 of the Declaration of Rights, to the California Constitution, which provides that "only marriage between a man and a woman is valid or recognized in California.” (Proposition 8 essentially copied the same language as Proposition 22, except that now the people had spoken to add that language directly to their state Constitution). From June 17, 2008 until the passage of Proposition 8, San Francisco and other California counties issued approximately 18,000 marriage licenses to same-sex couples.

    Proponents of the constitutional amendment, Proposition 8, argued that marriage reserved only for a man and a woman was "an essential institution of society" and that leaving the constitution unchanged (ie, allowing homosexuals to marry) would "result in public schools teaching our kids that gay marriage is okay." Furthermore, they argued that "gays do not have the right to redefine marriage for everyone else." Opponents, on the other hand, argued that "the freedom to marry is fundamental to our society," and that the California constitution "should guarantee the same freedom and rights to everyone." (Of course, disregarding the fact that the same rights and privileges are indeed granted by domestic partnerships). Opponents were not happy that the state constitution "mandates one set of rules for gay and lesbian couples and another set for everyone else" and so they cried “Equal Protection violation !!” Thus the scene was set for Perry v. Schwarzenegger.


    So just to be clear, these lawsuits are NOT simply about getting equal rights and equal social and financial benefits as a legally- recognized couple; they are about full equality.


    It is with this introduction that we now look closely at Perry, as all eyes are now watching what the courts decide. The persons who brought the case (plaintiffs) are two homosexual couples: Kristin Perry and her girlfriend Sandra Stier, and Jeffrey Zarrillo and his boyfriend Paul Katami. Both couples are in committed relationships (but only the lesbian couple involve children) and both couples have been denied marriage licenses on the basis of Proposition 8. The couples challenged Proposition 8 [now Calif. Constitution Article I, § 7.5], claiming it deprives them of their Due Process and Equal Protection rights under Section 1 of the Fourteenth Amendment. Judge Walker agreed and on August 4, struck Proposition 8 down as unconstitutional, and consequently, as unenforceable.

    The plaintiffs’ case was argued by two of the most famous and well-respected attorneys in the country, David Boies and Theodore B. Olson. They actually faced each other in the 2000 Supreme Court battle between George W. Bush and Al Gore over the Florida recount (the “hanging chads”) and the Presidency. Ted Olson advocated for Bush and won the case. [He also lost his beautiful and brilliant wife, Barbara, a lawyer and conservative TV commentator for Fox News and CNN, on 9/11 when her plane crashed into the Pentagon]. After the decision in Perry was announced, Mr. Olson spoke publicly, calling the decision “a victory for the American people,” and anyone who had been denied rights “because they are unpopular, because they are a minority, because they are viewed differently.” Perhaps Mr. Olson would like to start taking on some cases for Christian groups, because they have been steadily “denied rights” since 1947 and have been the target of hate groups and liberals. Andrew Pugno, a lawyer for ProtectMarriage.com, represented the proponent’s position.

    Plaintiffs gave different reasons why they wish to be married, as opposed to united through a civil union (termed “domestic partnership”). One couple said they wished to avoid the awkwardness that arises say when they go to open a joint bank account. The other couple stated: “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.. That we are not girlfriends. We are not partners. We are married.”

    Plaintiffs claimed that they were denied their due process rights under the Fourteenth Amendment (which provides that “State shall deprive any person of life, liberty, or property, without due process of law”) because their freedom to “marry” the person of their choice was violated by Proposition 8. Plaintiffs claim that the right to marry is a fundamental right, protected by their state constitution. Specifically, plaintiffs alleged a due process violation because: (1) Proposition 8 prevents each plaintiff from marrying the person of his or her choice; (2) One’s choice of a marriage partner is protected by the Fourteenth Amendment from the state’s unwarranted regulation of that choice; and (3) California’s provision of a domestic partnership (a status giving same-sex couples the same rights and responsibilities of marriage without providing the actual ‘title’ of marriage) does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

    Plaintiffs claimed that they were denied their equal protection rights under the Fourteenth Amendment (which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws”) because Proposition 8 classifies them into a suspect classification and singles them (and other gays and lesbians) out for unequal and unfair treatment. They claimed that because Proposition 8 denies gays and lesbians alone as persons who can’t marry the person on their choice, it discriminates unfairly and based upon stereotypes.

    Finally, Plaintiffs concluded that because Proposition 8 is enforced by state officials acting “under color of state law” (meaning in their official capacity) and because its effect is to deny them their Constitutional rights, Proposition 8 is actionable under 42 USC § 1983. The remedy they were demanding was a declaration from the court that Proposition 8 is unconstitutional and therefore unenforceable and an immediate injunction against its enforcement so they could go ahead and get married.

    There were two sets of parties defending the State and Proposition 8: (1) Defendants (the named parties, including Governor Arnold Schwarzenegger, the state attorney general Jerry Brown, and other state officials who all declined to defend the law; and (2) Proponents (other parties that are “interested” and who wished to intervene because they have a vested interest in the case, including ProtectMarriage.com and its founders) who were the actual parties which defended the law. It’s a sad day when the man who once played Conan the Barbarian and the Terminator turns out to be a wuss. Hey Arnold, what good is having all those muscles if you have no cajones? Luckily for the people of California who voted and had a vested interest in Proposition 8, ProtectMarriage.com came to their defense. It was ProtectMarriage.com which organized the official campaign to pass Proposition 8. It was Proponents who submitted the ballot description and argument for Proposition 8. That argument stated: “Proposition 8 is simple and straightforward…. Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle…. It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage.…. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father….. If the gay marriage ruling of the California Supreme Court is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage. We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok… While gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.”

    Proponents defended Proposition 8 on the grounds that it:

    (1) Maintains California’s definition of marriage as excluding same-sex couples;
    (2) It preserves the traditional meaning of marriage as it has always been defined in the English language;
    (3) It preserves the traditional social and legal purposes, functions, and structure of marriage;
    (4) It affirms the will of California citizens to exclude same-sex couples from marriage;
    (5) It promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children;
    (6) It promotes the optimal environment (that is, in households with a man and wife) for child-rearing; and
    (7) It allows the state to proceed with caution when implementing social changes.

    They argued that Proposition 8 should be evaluated in light of the “central purpose of marriage, in California and everywhere else,…. to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.” As they explained: “responsible procreation is really at the heart of society’s interest in regulating marriage.” Furthermore, they asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate and equal (a parallel) institution under its domestic partnership statutes.

    The judge criticized proponents for weak and bigoted arguments and commented that their case basically hinged on the argument that marriage should be protected because of procreation. The judge went so far as to paraphrase their argument as follows: “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.’ The state therefore, according to their argument, 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. 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.”
    
    It is interesting, in a disturbing way, to note in the Judge’s decision how he referred to and characterized proponents. Basically he viewed them as bigoted, morally righteous, and outwardly discriminatory. He accused them of intentionally perpetuating invidious stereotypes to advance their agenda. As the judge described: “Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. The premises on which Proposition 8 was presented to the voters which gave him cause for concern were the ones as follows:

    (1) Denial of marriage to same-sex couples preserves marriage; (he didn’t buy it. Didn’t think it was a compelling argument)

    (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; (he found this insulting)

    (3). Denial of marriage to same-sex couples protects children; (he claimed this allegation was based on cruel stereotyping)

    (4). The ideal child-rearing environment requires one male parent and one female parent; (he didn’t buy this one either)

    (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; (he found this argument had no merit)

    During the trial, plaintiffs aggressively attacked the “procreation” and the “benefits of a traditional marriage” arguments. They argued that “there has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry… Procreative ability has never been a qualification for marriage.” They offered evidence from experts on marriage, sociology and political science, and emotional testimony from the two couples who had brought the case. The judge was pleased with their evidence and their testimony. He gave great weight to all of it. Proponents of Proposition 8, on the other hand, offered a much more straightforward defense of the measure, as outlined above, saying that same-sex marriage damaged traditional marriage as an institution and that marriage was historically rooted in the need to foster procreation, which same-sex unions cannot, and was thus fundamental to the existence and survival of the human race. The judge found proponents’ arguments to be without merit, as I’ll go into a bit more below.

    Plaintiffs put together a comprehensive case. They called lots of experts, presented lots of data, and showed lots of studies. Plaintiffs introduced several witnesses who argued that the primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples. They went even further. They introduced witnesses who testified that they believed the promotion and advertising of Proposition 8 was based on a moral judgment - a belief that same-sex pairings are immoral and should not be encouraged in California. They were offended that religious values were used to promote Proposition 8 (duh !!) How such witnesses were allowed to offer such testimony is amazing to me.

    Historian George Chauncey, taking the stand for the plaintiffs, testified about a direct relationship he believes exists between the Proposition 8 campaign and initiative campaigns from the 1970s which targeted gays and lesbians. Like the earlier campaigns, according to Chauncey, the Proposition 8 campaign emphasized the importance of protecting children from the effects of gays and lesbians. He claimed that such campaigns were based on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children. He testified that because homosexual conduct was criminalized, gays and lesbians were seen as criminals, as predators or child molesters; the stereotype of gay people as such therefore became pervasive. Proponents challenged this preposterous allegation aggressively and noted that no evidence could be offered to support Chauncey’s position. But as previously noted, the Judge was persuaded by the stereotyping argument.

    Proponents put on two expert witnesses (social scientists Kenneth Miller and David Blankenhorn) who discussed the benefits to society of the traditional marriage relationship and the benefit it provided to child-rearing. As expected, plaintiffs accused them of trying to substitute their moral judgment for everyone else, just as they accused the defendants (including the people of California) and proponents. Furthermore, plaintiffs accused the witnesses of improperly trying to insert religious morals into the matter and forcing. For example, plaintiffs questioned Miller on data he presented which showed that 84 % of those who attend church weekly voted “Yes” on Proposition 8, 54% of those who attend church occasionally voted “No,” and 83% of those who never attend church also voted “No.”

    As if taking a cue from the plaintiffs, Judge Walker questioned whether the evidence put forward by the proponents showed anything other than a private moral view without any other purpose which could possibly advance a legitimate government (state) interest. As the judge emphasized repeatedly, a state’s interest in a particular enactment of law must be secular (non-religious) in nature. He commented that “the state has no interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” He cited cases Lawrence v Texas (2003) and Everson v. Board of Education (1947). Proponents, and any right-thinking family-minded person, would have thought proponents advanced a strong legitimate state interest in their arguments for keeping marriage true to its traditional form, including the need to encourage procreation, to honor the traditional relationship between a man and a woman which leads to natural conception and procreation, and to promote and respect traditional notions of child-rearing (for all of society’s benefit and not just the benefit of gays and lesbians).

    A big part of plaintiff’s case centered around discrediting the argument for placing emphasis on traditional family values and traditional gender and family roles. They did so by showing how the notions embraced by “traditional” marriage had transformed over the years. They attempted to show that marriage doesn’t necessary reflect traditional values and roles any longer. In other words, plaintiffs were criticizing proponents for wanting to maintain “traditional” marriage and “traditional” roles when these things don’t even exist anymore. The court bought into that line of analysis, hook, line, and sinker. (If you read any of the snippets of the case, as reported in the news, you will note that this argument received much attention and emphasis). As plaintiffs argued and as the court reasoned, marriage between a man and a woman was indeed traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family. But the historical basis for marriage no longer exists. For example, the most important historical feature of marriage, aside from having children and raising a family, was the public assumption of a relationship of rights and duties. Plaintiffs noted several examples of trends which transformed “traditional” marriage in the US: (1) racial restrictions on an individual’s choice of a marital partner were only declared unconstitutional under the US Constitution in 1967 (and unconstitutional under the CA Constitution in 1948); (2) the move from “coverture” (where a woman’s legal and economic identity became dominated by her husband’s upon marriage) to non-coverture (such domination is no longer part of the marital bargain); (3) the advent of “no-fault” divorce, which shows that we are willing to easily destroy the family unit; and (4) there is no longer any requirement that children be “biological” or “conceived.” Marriage has thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Roles can be flipped, shared, substituted,… you name it. Yet, as plaintiffs argued, even with all these changes, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

    Plaintiffs also argued that there is no evidence to show that California has an interest in differentiating between same-sex and opposite-sex unions. As absurd as that sounds, Judge Walker agreed wholeheartedly. Encouraging procreation and respecting that special and biological union that in fact can lead to procreation held no weight in Walker’s mind. Darwin must have been rolling over in his grave. I shudder to think what God was feeling. A psychologist testified for the plaintiffs to explain that homosexuality is a normal expression of human nature. He explained that homosexuality is a normal expression of human sexuality and that the vast majority of gays and lesbians have little or no choice in their sexual orientation. Too bad that proponents didn’t think to challenge this quack on the all-too-common realities of “experimentation” of “fluidity” (whereby individuals change or alter their sexual orientation however the wind blows). Perhaps the psychologist forgot neglected to consider college campuses, bars, and Girls Gone Wild. Furthermore, it’s too bad that proponents didn’t call a student of Charles Darwin as an expert to show what would happen if gays and lesbians were allowed to go off on their own, with their same-sex partners. Maybe that expert could have discussed the term “evolutionary cul-de-sac” and explain what biology says about homosexuality. OK, so that’s my term. I would have gladly testified in the case. But rather than address these very legitimate issues that any normal government and society should embrace, the court focused more on such testimony as the plaintiff’s sociologist who testified about the harm gays and lesbians have experienced because of Proposition 8. The expert explained that Proposition 8 stigmatizes gays and lesbians because it informs gays and lesbians that the State of California rejects their relationships as less valuable than opposite-sex relationships. He accused Proposition 8 of providing state endorsement of private discrimination. (Of course , the harm that homosexuality causes to parents who are trying to raise their children with productive and healthy values receives no attention).

    Once they convinced the court that traditional gender roles and family roles have been transformed, and once they convinced the court that California has no legitimate interest in differentiating between same-sex couples and opposite-sex couples, plaintiffs then went on to argue that the state has a vested interest in fostering marriage, in general, regardless of partners. According to them, those interests include:

    (1) Organizing individuals into cohesive family units

    (2) Recognizing a realm of intimacy and liberty

    (3) Creating stable households

    (4) Legitimizing children (“I have a Mommy and a Mommy”)

    (5) Assigning individuals (legally) to care for one another and thus limit the public’s liability to care for the “vulnerable”

    (6) Facilitating property ownership

    (7) Assigning economic support obligations

    (8) Improving the health, both physical and mental, of its citizens. (married persons live longer and are happier. Happier? Who says? Plaintiffs show studies to show there is less depression and a decreased willingness to engage in health risks, such as smoking and alcohol abuse)

    (9) Having the benefits of marriage (both tangible and intangible) flow to the children of married couples.

    What about civil unions and domestic partnerships as a suitable alternative? There was no dispute from plaintiffs that “domestic partnerships” in fact provide the same legal rights and responsibilities and benefits as a marital union. So why do gays and lesbians still push for equality in marriage? Why do they insist on diluting the religious and moral significance that is and has historically and traditionally been associated with this particular union? Well, plaintiffs suggested that domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning. They presented several experts who claimed that California’s gay and lesbian population suffer emotionally and psychologically because domestic partnerships are not equivalent to marriage. They testified that domestic partnerships actually stigmatize gays and lesbians even when enacted for the purpose of providing rights and benefits to same-sex couples. It was this argument that truly hooked Judge Walker.

    Would you believe that the plaintiffs also tried to push the argument that Proposition 8 needs to be struck down because San Francisco, and California as a whole, is feeling economic ‘harms’ and the state could really use the financial boost that gay weddings would provide. What ?? While they had Judge Walker’s attention, I guess they decided to throw everything they could his way…. everything but the kitchen sink.

    In light of all the arguments and the expert testimony and the counterarguments, and the obvious lack of objectivity the judge was able to show in the case, it came as no surprise when Judge Walker made his Findings of Fact (some of which I’ve already addressed above) and Conclusions of Law to reach his conclusion. Walker concluded that California has no interest in differentiating between same-sex and opposite-sex unions, nor any legitimate interest that it was able to substantiate. Rather, the judge concluded, that “the evidence showed that Proposition 8 was enacted by a private moral view without actually advancing any legitimate government interest. And as such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.” He continued: “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. The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.”

    Judge Walker also concluded that the only purpose of Proposition 8 was to deny gays and lesbians the right to marry and to continue to stigmatize them by:

    (1). Reminding them that society doesn’t value their long-term relationships as they do those between a man and a woman;

    (2). Singling out gays and lesbians and legitimizing their unequal treatment;

    (3). Perpetuating the stereotype that same-sex couples cannot properly raise a child;

    (4). Reserving the most socially-valued form of relationship (marriage) only for couples comprising a man and a woman;

    (5). Requiring California to treat same-sex couples differently from opposite-sex couples;

    (6). Continuing the long history of discrimination against gays and lesbians

    (7). Reinforcing the religious belief that gays and lesbian relationships are sinful (“The Bible clearly teaches that homosexual behavior is an abomination and shameful before God.”


Go Back



Leave a Guest Comment

Your Name or Alias
Your Email Address ( your email address will not be published)
Enter Your Comment ( no code or urls allowed, text only please )




Imagine this: Judge a teacher by how much improvement the students make For Love of God and Country, Op-Ed & Politics County Commissioner and Hosptial Commissioners provides an update on the Hospital

HbAD0

 
Back to Top