Proponents' Defense of Proposition 8

The LDS Church spent tens of
millions of dollars campaigning
for Proposition 8, and organized
the majority of volunteers.

1. PLAINTIFFS’ CASE AGAINST PROPOSITION 8
2. PROPONENTS’ DEFENSE OF PROPOSITION 8

Today I continue with the second part of Judge Walker's Opinion, with the case and witness testimony of the proponents of Proposition 8. Judge Walker takes note of the fact that the ballot proposal and campaign to pass Proposition 8 was justified on very different grounds than the case that proponents of Prop 8 used in court. This is significant because, as the expert witnesses for the plaintiffs note, much of the support for Prop 8 was built around discrimination and inaccurate stereotypes of gay and lesbian couples. Some sections made bold for emphasis, all-caps emphasis is from original.

PROPONENTS’ DEFENSE OF PROPOSITION 8

The ballot argument submitted to the voters summarizes proponents’ arguments in favor of Proposition 8 during the 2008 campaign. The argument states:

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. * * * [W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.

The key premises on which Proposition 8 was presented to the voters thus appear to be the following:

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.

[PAGES 6-7]

Pay particular attention to numbers 2 and 3.

2. Proponents would "allow gays and lesbians to live privately" so long as no one is "required" to "recognize or acknowledge [their] existence." What right does a person have to prevent another human being from doing something on the sole basis that they don't want to have to acknowledge their existence? It is your right as a parent to teach your children that homosexual marriages are wrong, that non-Catholic weddings are not real, that arranged marriages are immoral, or that divorce should be forbidden. But you do not have a right to force others to believe as you do, to force others to refrain from actions that cause you no harm just because you don't like them, or to take away their rights as a way to express your "free speech."

3. Protect children from what exactly? In what way does allowing gay couples to marry endanger children? See what plaintiff Paul Katami had to say to this during his testimony.

Katami described how the Proposition 8 campaign messages affected him. (Tr 97:1-11: “[P]rotect the children is a big part of the [Proposition 8] campaign. And when I think of protecting your children, you protect them from people who will perpetrate crimes against them, people who might get them hooked on a drug, a pedophile, or some person that you need protecting from. You don’t protect yourself from an amicable person or a good person. You protect yourself from things that can harm you physically, emotionally. And so insulting, even the insinuation that I would be part of that category.”)

[Page 26]

In order to get people to vote for it Proposition 8 was vaguely worded to appeal to emotion and private moralities. When Prop 8 went to court, proponents changed their arguments to claim that the the State had an interest in banning same-sex marriages. Here is how Judge Walker explained it.

A 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. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947). 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. Instead, in this litigation, proponents asserted that Proposition 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.

[PAGE 8]

Most of the witnesses that were supposed to be called by the proponents to back these assertions and the constitutionality of the "will of the citizens" to choose to exclude a group from a right, did not actually testify. The testimony presented and the cross examinations didn't go well for the proponents either.

CREDIBILITY DETERMINATIONS
PROPONENTS’ WITNESSES

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.

...they “were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever.” Tr 1094:21-23.

...proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.

[Proponent Witness Testimony Used By The Plaintiffs]

Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims.

[Katherine] Young has been a professor of religious studies at McGill University since 1978. PX2335 Young CV... Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples. PX2545 (dep tr); PX2544 (video of same). Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples. Id.

Nathanson has a PhD in religious studies from McGill University and is a researcher at McGill’s Faculty for Religious Studies. PX2334 Nathanson CV... Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples. PX2547 (dep tr); PX2546 (video of same).

[Expert Witnesses]

1. David Blankenhorn, founder and president of the Institute for American Values, testified on marriage, fatherhood and family structure. Plaintiffs objected to Blankenhorn’s qualification as an expert. For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions.

2. Kenneth P Miller, a professor of government at Claremont McKenna College, testified as an expert in American and California politics. Plaintiffs objected that Miller lacked sufficient expertise specific to gays and lesbians. Miller’s testimony sought to rebut only a limited aspect of plaintiffs’ equal protection claim relating to political power.

[PAGES 35-38]

The evaluation of the weight that Blankenhorn and Miller's opinions should have on the decision (PAGES 38-54) is very enlightening. Blankenhorn is completely disqualified as an expert. He showed no sign of applying proper academic rigor before coming to his conclusions, and in his testimony he referred to George "Rent Boy" Rekkers as the source to his belief that homosexuality can be "cured."

Miller, though a credible expert of American politics and the process of initiative like Prop 8, had no qualifications "as an expert in the areas of discrimination against gays and lesbians and gay and lesbian political power. (PAGE 49)" He admits he has not studied any of the literature on that subject. Miller also agreed in previous writings and during cross examination to arguments of the plaintiffs.

Plaintiffs questioned Miller on his earlier scholarship criticizing the California initiative process because initiatives eschew compromise and foster polarization, undermine the authority and flexibility of representative government and violate norms of openness, accountability, competence and fairness. Tr 2544:10-2547:7. In 2001 Miller wrote that he was especially concerned that initiative constitutional amendments undermine representative democracy. Tr 2546:14-2548:15.

Miller agreed that a principle of political science holds that it is undesirable for a religious majority to impose its religious views on a minority. Tr 2692:16-2693:7.

[PAGES 51-52]

So the defense for Proposition 8 failed to call most of their witnesses, did not have anyone involved in passing it take the stand, and two of their expert witness testimonies from deposition ended up being used against them. One "expert" proponents did have was ruled to be completely unreliable, and the other both admitted ignorance to gay and lesbian issues and conceded to plaintiff arguments.

The next post will have the first section of Findings of Fact, those which answer the question "Whether any evidence supports California's refusal to recognize marriage between two people because of their sex."

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