Plaintiffs' Case Against Proposition 8

Judge Vaughn R. Walker

Judge Walker's Opinion is a whopping 136 pages long, and I know there won't be many people that want to take the time to read such a long legal document. So for this series of posts I will try to condense the most important aspects of the ruling, and where I feel particularly strong, voice my own thoughts on the issues. For the most part I will only be explaining the context of each section, Judge Walker's opinion in totality does an excellent job of revealing how Prop 8 has no justification other than religious bigotry.

This post and the next will be summaries of the cases and witness testimony for the plaintiffs and proponents of Proposition 8. Following that will be the meat of the opinion, the huge list of Findings of Fact outlined by Judge Walker, divided into three categories. Finally I'll summarize the Conclusions of Law that explain on what legal grounds Proposition 8 is unconstitutional.

The plaintiffs for this case were two same-sex couples, denied the right to marry because of Prop 8. Domestic partnerships are legal in California, but they are not federally recognized, nor do they carry the same cultural significance.

Emphasis added in all following sections.

PLAINTIFFS’ CASE AGAINST PROPOSITION 8

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” US Const Amend XIV, § 1. Plaintiffs contend that the freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:

1. It prevents each plaintiff from marrying the person of his or her choice;
2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice; and
3. California’s provision of a domestic partnership —— a status giving same-sex couples the rights and responsibilities of marriage without providing 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.

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1. According to plaintiffs, Proposition 8 violates the Equal Protection Clause because it:

1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and
2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

[PAGE 5]

It's a very simple argument, the citizens of California do not have the ability to vote for discrimination of a minority. The Fourteenth Amendment asserts that states shall not deny any federally recognized rights on the grounds of "states rights." Californians can no more vote to ban gay marriage than they can vote to reinstitute slavery.

Following are short pieces of testimony from the plaintiffs themselves. They explain what their relationships mean to them, and why they want to be able to share in the institution of marriage.

CREDIBILITY DETERMINATIONS
PLAINTIFFS’ WITNESSES

[Plaintiffs]

1. Zarrillo described his nine-year relationship with Katami. (Tr 79:20-21: “He’s the love of my life. I love him probably more than I love myself.”)

2. Paul Katami, a plaintiff, testified about his reasons for wanting to marry Zarrillo. (Tr 89:1-3: “Being able to call him my husband is so definitive, it changes our relationship.” Tr 90:24-91:2: “I can safely say that if I were married to Jeff, that I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.”)

3. Kristin Perry, a plaintiff, testified about her relationship with Stier. (Tr 139:16-17; 140:13-14: Stier is “maybe the sparkliest person I ever met. * * * [T]he happiest I feel is in my relationship with [Stier.]”) Perry described why she wishes to marry. (Tr 141:22-142:1: “I want to have a stable and secure relationship with her that then we can include our children in. And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to * * * begin.”)

4. Sandra Stier, a plaintiff, testified about her relationship with Perry, with whom she raises their four children. (Tr 167:3-5: “I have fallen in love one time and it’s with [Perry].”). Stier explained why she wants to marry Perry despite their domestic partnership. (Tr 171:8-13: “[T]here is certainly nothing about domestic partnership as an institution —— not even as an institution, but as a legal agreement that indicates the love and commitment that are inherent in marriage, and [domestic partnership] doesn’t have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be.”)

[PAGES 25 - 27]

Four lay witnesses were called as well, but there was nothing that really jumped out at me from their testimony. Instead I'll give more space to the nine expert witnesses called by the plaintiffs. Credentials for each witness are listed in the full text, pages 28-35.

[Expert Witnesses]

1. Nancy Cott, a historian, testified as an expert in the history of marriage in the Untied States. Cott testified that marriage has always been a secular institution in the United States, that regulation of marriage eased the state’s burden to govern an amorphous populace and that marriage in the United States has undergone a series of transformations since the country was founded.

2. George Chauncey, a historian, was qualified to offer testimony on social history, especially as it relates to gays and lesbians. Chauncey testified about the widespread private and public discrimination faced by gays and lesbians in the twentieth century and the ways in which the Proposition 8 campaign echoed that discrimination and relied on stereotypes against gays and lesbians that had developed in the twentieth century.

3. Lee Badgett, an economist, testified as an expert on demographic information concerning gays and lesbians, same-sex couples and children raised by gays and lesbians, the effects of the exclusion of same-sex couples from the institution of marriage and the effect of permitting same-sex couples to marry on heterosexual society and the institution of marriage. Badgett offered four opinions: (1) Proposition 8 has inflicted substantial economic harm on same-sex couples and their children; (2) allowing same-sex couples to marry would not have any adverse effect on the institution of marriage or on opposite-sex couples; (3) same-sex couples are very similar to opposite-sex couples in most economic and demographic respects; and (4) Proposition 8 has imposed economic losses on the State of California and on California counties and municipalities. Tr 1330:9-1331:5.

4. Edmund A Egan, the chief economist in the San Francisco Controller’s Office, testified for CCSF as an expert in urban and regional economic policy. Egan conducted an economic study of the prohibition of same-sex marriage on San Francisco’s economy and concluded that the prohibition negatively affects San Francisco’s economy in many ways.* Tr 683:19-684:19.

[* The benefits of marriage give couples and families greater economic stability and safety. Denial of marriage to any demographic hurts them economically, which lowers the economic health of the community as a whole.]

5. Letitia Anne Peplau, a psychologist, was qualified as an expert on couple relationships within the field of psychology. Peplau offered four opinions: (1) for adults who choose to enter marriage, that marriage is often associated with many important benefits; (2) research has shown remarkable similarities between same-sex and opposite-sex couples; (3) if same-sex couples are permitted to marry, they will likely experience the same benefits from marriage as opposite-sex couples; and (4) permitting same-sex marriage will not harm opposite-sex marriage. Tr 574:6-19.

6. Ilan Meyer, a social epidemiologist, testified as an expert in public health with a focus on social psychology and psychiatric epidemiology. Meyer offered three opinions: (1) gays and lesbians experience stigma, and Proposition 8 is an example of stigma; (2) social stressors affect gays and lesbians; and (3) social stressors negatively affect the mental health of gays and lesbians. Tr 817:10-19.

7. Gregory Herek, a psychologist, testified as an expert in social psychology with a focus on sexual orientation and stigma. Herek offered opinions concerning: (1) the nature of sexual orientation and how sexual orientation is understood in the fields of psychology and psychiatry;* (2) the amenability of sexual orientation to change through intervention;* and (3) the nature of stigma and prejudice as they relate to sexual orientation and Proposition 8. Tr 2023:8-14.

[* Sexual orientation in a part of identity, not a choice; attempts to "correct" it cause more psychological harm than good.]

8. Michael Lamb, a psychologist, testified as an expert on the developmental psychology of children, including the developmental psychology of children raised by gay and lesbian parents. Lamb offered two opinions: (1) children raised by gays and lesbians are just as likely to be well-adjusted as children raised by heterosexual parents; and (2) children of gay and lesbian parents would benefit if their parents were able to marry. Tr 1009:23-1010:4.

9. Gary Segura, a political scientist, testified as an expert on the political power or powerlessness of minority groups in the United States, and of gays and lesbians in particular. Segura offered three opinions: (1) gays and lesbians do not possess a meaningful degree of political power; (2) gays and lesbians possess less power than groups granted judicial protection; and (3) the conclusions drawn by proponents’ expert Miller are troubling and unpersuasive.* Tr 1535:3-18.

[*Miller is one of two expert witnesses for proponents of Prop 8. His conclusions will be explained in the following post.]

[PAGES 28-35]

All expert witnesses for the plaintiffs were found to be credible, and their testimony makes up large portions of the Findings of Fact (I'll explain the importance of Findings of Fact in a later post).

More is coming, and I will make sure to properly link posts to one another as they come up on the site.

1. PLAINTIFFS’ CASE AGAINST PROPOSITION 8
2. PROPONENTS’ DEFENSE OF PROPOSITION 8
3.WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX
4. WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS
5. WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST
6. CONCLUSIONS OF LAW: DUE PROCESS
7. CONCLUSIONS OF LAW: EQUAL PROTECTION
8. CONCLUSIONS AND REMEDIES

Fighting for equality,

Mike