As many of you have heard, a federal judge has found California's Proposition 8, the voter initiative that took away the right for same-sex couples to marry, to be unconstitutional.
If you remember, the equality side argued that Prop 8 was a violation of the Due Process Clause and Equal Protection Clause of the US Constitution and that Prop 8 should be subjected to heightened scrutiny because it discriminates against the historically-marginalized group of gays and lesbians on the basis of sexual orientation and sex. The "marriage defense" side (quotations around "marriage defense" are mine because I object to the notion that banning same-sex marriage "defends marriage") abandoned its Prop 8 campaign rhetoric regarding (a) the need to protect children from learning about same-sex marriage and (b) the superiority of heterosexual couples over same-sex couples, and instead tried to argue that Prop 8 was a benign and legit expression of the will of California voters, that it promotes stability in heterosexual relationships, and that it promotes the "statistically optimal" child-rearing household.
My summary of Judge Vaugh R. Walker's 138-page opinion (PDF), Perry v. Schwarzenegger, analyzing these claims is as follows. All quotes are from his opinion unless otherwise indicated.
1) Evidence and David Blankenhorn's "Marriage Defense" Testimony
To support their case, the equality side presented the testimony of 8 lay witnesses and 9 expert witnesses. The "marriage defense" side presented 2 expert witnesses but, Walker noted, "failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest." After summarizing the testimony of each witness, Walker determined the credibility of each. The "marriage defense" side did not challenge the credibility of the equality side's witnesses and Walker concluded that the lay witnesses provided credible testimony and that the expert witnesses were "amply qualified to offer their opinions on the subjects on which they testified."
Walker then addressed the "marriage defense" side's withdrawal of most of their witnesses. If you remember attorney Chuck Cooper withdrew the witnesses claiming that they "were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever.” However, as Walker noted, "The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated." Although Walker doesn't say it, the subtext here is that this paranoid removal of witnesses appears disingenuous. At best, presenting only two expert witnesses, both of whom possessed questionable expertise regarding the topics of their testimony, was an extremely poor legal strategy.
The equality side aptly challenged "marriage defender" David Blankenhorn's qualifications to testify. Blankenhorn, who has an MA in comparative social history, is the founder of the Institute for American Values and author of two books on marriage, fatherhood, and family structure (one of which I've reviewed). Whereas the equality side's experts have terminal degrees in the subjects relevant to their testimony and have published peer reviewed articles, none of Blankenhorn's relevant publications have been subject to the peer review process. The equality side argued that his conclusions "are not 'based on objective data or discernible methodology" but rather, as Blankenhorn acknowledged himself, his opinions about same-sex marriage have come from “'read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.'”
In a phrase that may live in infamy in Blankenhorn's "marriage defense" career, Judge Walker found that "Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions" [emphasis added]. Thus, his testimony regarding the definition of marriage and the alleged superiority of heterosexual biological parents "constitutes inadmissible opinion testimony that should be given essentially no weight."
Although I won't post it for the sake of brevity, Walker's smackdown of nearly every point of testimony offered by Blankenhorn is well worth reading in its entirety (it begins on page 38). While professional "marriage defender" voices are given much undeserved weight and authority in the mainstream media because they represent an Other Side, Walker's rejection of Blankenhorn's ideas is a true exercise in demonstrating how, to paraphrase, "because I say so" doesn't pass muster when a debate actually has rules.
2) Due Process
Walker first noted that the Due Process Clause of the US Constitution demands the application of "strict scrutiny" when a law burdens a fundamental right. Supreme Court precedent has determined the right to marry to be a fundamental right. At issue is whether same-sex couples seek to exercise a fundamental right or seek recognition of a new right. In making that determination, Walker looked at the evidence presented at trial to determine "the history, tradition and practice of marriage in the United States" and how same-sex marriage does or does not fit into that.
In US history, Walker notes, legal marriage has been a civil institution, rather than a religious one, that has required two consenting parties. Procreative capacity or intent with one's partner has never been a requirement of marriage. Marriage has also changed across time and on a state-by-state basis. For intance, while racial restrictions on marriage used to be common, they are now seen as "shameful." Whereas marriage law used to require women to subsume their legal and economic identities into that of their husbands', marriage is now seen as "a union of equals."
Furthermore, legal marriage in the US has traditionally been closed to same-sex couples because of the idea that men and women have separate gender roles, because of disapproval of same-sex relationships, and because most people are heterosexual "and have had no reason to challege the restriction." With a statement that will resonate with many feminists (especially me), Walker observes that "[t]he 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." Whereas same-sex couples used to be excluded from marriage because men and women were thought of as opposite and complementary beings, with "distinct roles in society and in marriage.... [t]hat time has passed." Walker has renounced gender complementarity for the myth that it is. Thus, the plaintiff same-sex couples are not seeking the right to same-sex marriage, they are asking California "to recognize their relationships for what they are: marriages."
Despite Walker's feminist analysis, it is still unfortunate that he continually uses the term "opposite-sex couples" in his opinion, as the phrase implies that men and women are "opposites."
Walker then found that California's separate "domestic partnership" scheme for same-sex couples do not fulfull the state's due process obligations to same-sex couples as they "exist solely to differentiate same-sex unions from marriages," the "culturally superior status." Striking down Prop 8 using a strict scrutiny analysis, Walker holds that Prop 8 is not "narrowly tailored to a compelling government interest." He does not include his specific analysis as to why, since he also finds in his Equal Protection analysis that Prop 8 fails even the least stringent "rational basis review."
3) Equal Protection
In the Equal Protection analysis, Walker refrained from definitively answering the question of what standard of review applies to laws that discriminate on the basis of sexual orientation (while strongly hinting that gays and lesbians are the type of minority that strict scrutiny was "designed to protect"). Rather, he noted that Prop 8 fails under all standards of review, including the least stringent "rational basis review." That is, Prop 8 is not rationally related to a legitimate government interest.
To reach this conclusion, Walker examined each purported state interest in banning same-sex marriage. First, "marriage defenders" claimed that Prop 8 is rational because it preserves the traditional meaning of marriage as between one man and one woman. Addressing this claim, Walker noted that the "ancient lineage" of heterosexual marriage alone does not justify continuing discrimination against same-sex couples, especially when this "ancient lineage" was predicated on the idea that men and women had to adhere to specific gender roles in society and marriage. Furthermore, a law that defines marriage as between one man and one woman that was enacted to preserve marriage as between one man and one woman is a tautology, a circular argument, and not a rational basis for discrimination.
The "marriage defense" side also argued that the state has an interest in making incremental and cautious social change. However, at trial, the equality side presented sufficient evidence to rebut the claim that legal same-sex marriage would constitute "sweeping social change." Rejecting Blankenhorn's non-expert opinions about the so-called "de-institutionalization of marriage" Walker noted that "[i]nstead, the evidence shows beyond debate that 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."
Third, "marriage defenders" argued that the state had an interest in promoting heterosexual parenting over same-sex parenting. Walker dismissed this claim, observing that "The evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality....and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents." Indeed, "Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying."
Walker also rejected a number of other minor purported state interests, concluding that all that was left was "an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples." And really, the premise that heterosexual couples are better than same-sex couples is not even a debatable proposition among many, if not most, "marriage defenders." Unfortunately for them, that is "not a proper basis on which to legislate."
Prop 8's purported "state interests," Walker continues, "are nothing more than post-hoc justifications" for discrimination against same-sex couples, and that was abundantly evident at trial, where a plethora of fear-mongering Save The Children From Homo Marriage ads were introduced into evidence.
And so there you have it, folks. Same-sex marriage is once again legal in California.
Looking to the future, from what I've read, "marriage defenders" appear somewhat over-confident about their ability to win on appeal (which has already been filed). Yet, an appeal isn't like an automatic do-over where both sides get to present a completely new case. Appellate courts generally only consider evidence that was presented at the original trial to determine whether errors of law were made. That the "marriage defense" side relied almost completely on the inadmissible testimony of David Blankenhorn could really hurt them, especially given the overwhelming evidence the equality side presented.
We'll see what argument they come up with this distract the court of public opinion from the fact that their Best Case against same-sex marriage failed to present expert, qualified, and admissible evidence for any of their main contentions.
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