Final Thoughts on Proposition 8

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

There isn't anything new for us in Judge Walker's Conclusion and Remedies sections, but I found it gratifying to read. My own thoughts on Proposition 8 are below.

CONCLUSION

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.

[PAGE 135]

REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings. Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.

[PAGE 136]

To pass Prop 8, its proponents spent millions fueling homophobia in California. They alluded to threats against many groups. Businessmen were threatened by gay marriage because with its legalization they would not be able to discriminate against gay clients. What they didn't tell you is that regardless of Prop 8, discrimination against gays is as illegal as a business discriminating against any other minority. Churches were threatened, because if Prop 8 wasn't passed then they would be forced to hold services for gay weddings. This was a straight up lie, no church or clergy are required to recognize or officiate any marriage, religion is not a prerequisite for the civil institution of marriage.

The worst was the vague threats that gay marriage supposedly made against children. The implications were that children would turn gay if they were told about gay people in school. Or that it is religious discrimination for schools to have zero tolerance policies about gay bashing. Or that it infringes on a parents rights to have to acknowledge to their children that there are people that they disagree with in the world. But Proposition 8 didn't address any of these so called problems anyway. With the passing of Prop 8, there were still gay individuals in California, still gay couples, still gay parents, still gay teens in the schools. They do not suddenly disappear because you take away their rights.

Proponents tried to argue that Prop 8 was not about homophobia, that it was about defending traditional marriage. That is a lie of course, allowing someone else to marry can never impede your own right to marry. Proposition 8 was really about the notion that homosexuals are inferior. Go onto YouTube and listen to their commercials. These people consider it to be an infringement on their rights when they have to acknowledge the existence of gays and lesbians. Proponents of Prop 8 feel it does them harm to treat homosexuals as equals in public life. That's it.

As far as the wild accusations that Judge Walker should have decided to recuse himself, I have two quick points to make:

1. It is not a "well known fact" that Judge Walker is openly gay. He has never publicly stated his sexual orientation. And don't you think if this were true the Religious Right would have been shouting from the rooftops from the moment he was selected from the case? No, the accusation came out the day that he ruled Prop 8 unconstitutional.
2. It shouldn't matter what his sexual orientation is. To paraphrase another commentator of the decision, to say that a gay judge is unqualified to rule on a case concerning gay rights is like saying a black judge is unqualified to rule on a case concerning civil rights, or a female judge is unqualified to rule on a case concerning women's issues. To say that only someone from the majority is impartial enough to rule on a discrimination case against a minority group is ridiculous.

So there it is, a breakdown of the 136 page decision. I hope you found this valuable. As always, I welcome any thoughts or questions pertaining to the subject.

Fighting for equality,

Mike

Equal Protection and Proposition 8

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

The Equal Protection Clause of the Fourteenth Amendment is designed to help progress the American promise of equality through expansion of federal powers. The Federal government has both the power and the responsibility to overturn any State or local laws that infringe on the equal protections of our citizens. Laws that discriminate against certain classes of citizens must only do so in a way that promotes a legitimate and rational interest of the state. Judge Walker reviews each of the arguments of rational basis that proponents of Prop 8 presented, and found that none of them were credible.

CONCLUSIONS OF LAW

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

[PAGE 109]

Due Process and Proposition 8

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

Two more posts and then we will get to the verdict (not that you don't already know) and my concluding thoughts on the matter of same-sex marriage and the campaign for Proposition 8.

The Plaintiffs challenged Prop 8 on the grounds that it violated both the Due Process Clause and the Equal Protections Clause. Either charge, being true, is enough to force a responsible judge to rule that Prop 8 is unconstitutional. Judge Walker found both charges to be true, and examined each in detail in his Conclusions of Law section. I'll look at Due Process in this post, and Equal Protections in the next one.

CONCLUSIONS OF LAW

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

[PAGE 109]

DUE PROCESS

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. Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. See Washington v Glucksberg, 521 US 702, 719-720 (1997). When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US 374, 388 (1978).

[PAGES 109-110]

What Do We Do With Crazy Ideas? The Anti-Vax Movement

The Anti-Vax movement.

It's one of those crazy, unfounded, ideas that makes me very angry, even more than normal, because I was taken in by it for a while. I heard it in passing, and the idea of "Oh yeah, we really do pump our kids full of so much stuff so early" stuck. Over time it evolved to "Huh, maybe there's some credibility to this, so many injections so young can't be healthy for them. I don't have kids yet, but I'll look carefully into which vaccines I'll allow." It might have progressed further, but Mike brought it up at one point, I voiced my opinion, and he (nicely) ridiculed me out of it. Since then I've done my research, and I'm much more hesitant to accept an idea just because it sounds plausible.

Here's Penn and Teller's take on it (NSFW language):



The Anti-Vax movement brings up a difficult question for which I can see two answers:

1. We combat the crazy idea early, with the outcome of debunking it or giving it credibility where it would otherwise have none.

2. We ignore the crazy idea, and allow it to fall off the radar unnoticed or, in the case of the Anti-Vax movement, gain a large foothold.

Which do you think works better? Is there a third option that I've missed?

Never stop questioning,

Valerie

Findings of Fact for Proposition 8 Part III

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

The final section discussing the facts of the case. In this section of the Proposition 8 decision, Judge Walker is exploring whether or not there is any legitimate secular or government interests that are addressed by Prop 8. Why is this important? Because we are a constitutional republic, not a theocracy. Laws that are passed solely to enforce private moral or religious views, and in doing so infringe upon the rights of other citizens, are unconstitutional.

WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8
ENACTED A PRIVATE MORAL VIEW WITHOUT
ADVANCING A LEGITIMATE GOVERNMENT INTEREST

57. Under Proposition 8, whether a couple can obtain a marriage license and enter into marriage depends on the genders of the two parties relative to one another. A man is permitted to marry a woman but not another man. A woman is permitted to marry a man but not another woman. Proposition 8 bars state and county officials from issuing marriage licenses to same-sex couples. It has no other legal effect.

58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

[PAGE 85]

59. Proposition 8 requires California to treat same-sex couples differently from opposite-sex couples.

60. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples.

[PAGE 86]

61. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.*
[*Previously in the decision we saw how the facts show that these "distinct and unique" gender roles are outdated, and have no other legal recognition or enforcement outside of the Prop 8 amendment.]

[PAGE 87]

62. 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.

[PAGE 89]

63. Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. Strauss, 207 P3d at 102 (“Proposition 8 does not eliminate the substantial substantive [constitutional] protections afforded to same-sex couples[.]”) (emphasis in original).

64. Proposition 8 has had a negative fiscal impact on California and local governments.

[PAGE 90]

65. CCSF would benefit economically if Proposition 8 were not in effect.

66. Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs.

[PAGE 91]

67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.

[PAGE 93]

68. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships.

69. The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) the availability of economic and social resources. Tr 1010:13-1011:13 (Lamb).

70. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted. Tr 1014:25-1015:19; 1038:23-1040:17 (Lamb).

[PAGES 94-95]

72. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes. Tr 1040:22-1042:10 (Lamb).

73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. Tr 1187:13-1189:6 (Lamb).

74. Gays and lesbians have been victims of a long history of discrimination.

[PAGE 96]

75. Public and private discrimination against gays and lesbians occurs in California and in the United States.

[PAGE 97]

76. Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.
[The case against these stereotypes takes nearly four pages of facts revealed during the trial.]

[PAGE 98]

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
[The judge takes an additional three pages citing evidence given during the trial to support this.]

[PAGE 101]

78. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians.
[Nearly three pages of evidence supports this fact as well.]

[PAGE 103]

79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.
[Four pages of evidence]

[PAGE 80]

80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.

[PAGE 108]

Proponents of Proposition 8 failed to demonstrate any government interest for denying civil rights to same-sex couples. The amendment did nothing to protect the rights of Christians or the safety of children, because the only thing it would have protected is a Christian's ability to discriminate against gays and lesbians, and possibly forestall explaining homosexuality to their kids. Bigotry and denial are the only religious "rights" that Prop 8 is protecting.

On the other hand, the plaintiffs clearly showed how Prop 8 works against several legitimate government and social interests. It also legitimizes government and public discrimination of gays and lesbians by enshrining false stereotypes as legal justifications. These charges alone would be enough to overturn most laws targeting minorities, and coupled with the lack of legitimate state interest, Prop 8 is clearly in violation of our constitution. In the next post I'll review Judge Walker's explanation for why this is.

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

Findings of Fact for Proposition 8 Part II

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

More on the Findings of Fact from Proposition 8 today, I'll just jump right into it. You might notice that there are very few finding enumerated per page, there is a great number of supporting pieces of evidence for most of the facts in this section. If you want the full text of the decision to see the supporting evidence, click here.

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN
DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS

42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.

43. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.

44. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.

[PAGES 71-72]

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.

[PAGE 73]

46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

[PAGE 74]

47. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.

[PAGE 76]

48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.

[PAGE 77]

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.

[PAGE 78]

50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.

51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.

[PAGE 79]

52. 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.

[PAGE 80]

53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.

[PAGE 81]

54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.

[PAGE 82]

55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

[PAGE 83]

56. The children of same-sex couples benefit when their parents can marry.

[PAGE 84]

California law does not make distinctions between same-sex couples and opposite-sex couples in any area beyond the question of marriage. They can have families and raise children, but they must do so without the same rights and recognitions that opposite couples enjoy. So if you want greater social and family stability, allow them to marry.

Unfortunately there are some that either recognize this weakness in their argument, or are even more bigoted than the Alliance Defense Fund (the proponents of Prop 8). Some Christians are complaining that the anti-gay movement in California being too "soft" by only focusing on marriage.

The YouTube channel iloveJesus420 is compiling a large selection of anti-gay rights activists at work. These people thing homosexuality is by dirty by definition, and should be illegal. Would they advocate removing the children of gay parents from their homes and putting them in the foster system? Would they advocate prosecuting homosexuality with jail time? I hope not, but when confronted on the street with these questions they just say they defer to "god's word" or that they will "pray you see the evil of your ways," and walk away.

That's all they have folks. No arguments, no evidence. Just a moral compass calibrated on an old book's sense of cleanliness, and prayers.

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

Findings of Fact for Proposition 8 Part I

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

From what I understand about the law (granted much of this I've only learned within the past couple of weeks, so please correct me if I am wrong) the most significant part of the Proposition 8 decision was the Findings of Fact section. Judge Walker enumerated 80 facts about the case that led to his ruling. The following section, Judge Walker's Conclusions of Law, will only hold as much weight with the Appeals Court as they want it too. The can essentially start from scratch in their interpretation the law if they wish.

The Findings of Fact will carry a lot of weight however. Unless evidence is given that one of the Facts of the case is incorrect, they must be used to weigh in on the appeals decision. Judge Walker took great care in listing and supporting many facts of the case that help to show the State has neither the interest, nor the authority, to discriminate against same sex couples.

EDIT: "appellate courts are required to review only the evidence in the court record and to give great deference to Judge Vaughn Walker's findings of fact. He was there, after all, presiding over the trial, and the appellate judges weren't." Tip of the hate to Lisa Bloom at CNN for giving a better explanation of why the Findings of Fact are significant.

There are three sections of Findings of Fact that are relevant (the fourth is non essential to discussions of law, like who the plaintiffs and defendants are). Each section is asking a specific question about the evidence, and how it does or doesn't support Proposition 8. I'll deal with "Whether any evidence supports California's refusal to recognize marriage between two people because of their sex" today, and address the other two later in the week.

Nearly all of the facts listed had sub-points to them, so I've included page numbers in case you are unsure what one is, or why the evidence points to that fact. Full text of Judge Walker's decision can be found here. As usual, emphasis is added.

WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO
RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX

19. Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

20. A person may not marry unless he or she has the legal capacity to consent to marriage.

21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.

[PAGE 60]

22. When California became a state in 1850, marriage was understood to require a husband and a wife. See Cal Const, Art XI § 14 (1849); In re Marriage Cases, 183 P3d at 407.

23. The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained. Tr 202:2-203:12 (Cott).

24. Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other.

[PAGE 61]

25. Racial restrictions on an individual’s choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967. An individual’s exercise of his or her right to marry no longer depends on his or her race nor on the race of his or her chosen partner.*

26. Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain.*

[*Both of these are examples of how marriage has been redefined as a legal institution since our nation's founding]

[PAGE 62]

27. Marriage between a man and a woman was 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.

[PAGE 63]

28. The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage.

[PAGE 64]

29. In 1971, California amended Cal Civ Code § 4101, which had previously set the age of consent to marriage at twenty-one years for males and eighteen years for females, to read “[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage.” Cal Civ Code § 4101 (1971); In re Marriage Cases, 183 P3d at 408.

30. In the 1970s, several same-sex couples sought marriage licenses in California, relying on the amended language in Cal Civ Code § 4101. In re Marriage Cases, 183 P3d at 409. In response, the legislature in 1977 amended the marriage statute, former Cal Civ Code § 4100, to read “[m]arriage is a personal relation arising out of a civil contract between a man and a woman * * *.” Id. That provision became Cal Fam Code § 300. The legislative history of the enactment supports a conclusion that unique roles of a man and a woman in marriage motivated legislators to enact the amendment. See In re Marriage Cases, 183 P3d at 409.

[PAGE 65]

31. In 2008, the California Supreme Court held that certain provisions of the Family Code violated the California Constitution to the extent the statutes reserve the designation of marriage to opposite-sex couples. In re Marriage Cases, 183 P3d at 452. The language “between a man and a woman” was stricken from section 300, and section 308.5 (Proposition 22) was stricken in its entirety. Id at 453.

32. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependents. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.

33. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.

[PAGE 66]

34. Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents. Tr 187:11-16; 188:16- 189:2; 201:9-14 (Cott).

35. The state has many purposes in licensing and fostering marriage. Some of the state’s purposes benefit the persons married while some benefit the state:*

[*Judge Walker lists the many benefits, feel free to check Page 67 if you're curious]

[PAGE 67]

36. States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.

37. Marriage creates economic support obligations between consenting adults and for their dependents.

[PAGE 68]

38. Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals.

[PAGE 69]

39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses.

40. The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity.

[PAGE 70]

41. The tangible and intangible benefits of marriage flow to a married couple’s children.

[PAGE 71]

From this I gather that it is beneficial for the state to allow as many consenting adults to marry as possible, because it promotes health and economic stability for both spouses and their children.

Previous definitions of marriage are based on antiquated assumptions that genders are biological (rather than social constructs as anthropologists would argue) and therefore gender roles are in no way malleable. I can only assume that proponents of Prop 8 would be equally opposed to households where the father is the primary caretaker and the mother is the primary provider because of the reversal of traditional gender roles.

More significantly, while proponents want to stress the interest of children in passing Prop 8, by denying marriage to same-sex couples they are actually denying a more stable home life for the children of those couples.

Comments are welcome as always, especially for the next few posts because there is so much here and I can only bring up a small amount for a blog post.

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

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.

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.

Follow Up to A Secular Nation

An interesting story popped up on my radar this week, and relates directly to my stance on the importance of secular government:

A Hispanic Catholic woman in Chicago has found herself under court order to live like a Hasidic Jew on the weekends including restrictive observation of the Sabbath. The full story is here, the short version is that she recently married a man who shares joint custody of his son with his ex-wife, who switched to Orthodox Judaism after their divorce. The mother of the boy is insisting that he be raised Orthodox as well, leading to the divorce court's decision to force the father and Catholic step-mother to provide a complete Hasidic Jewish environment every weekend when they have him.

The article has all of the details about the restrictions the courts have placed on the family, so I'm not going to get into that here. The point is that a father with partial custody of his son should have the same right to share his culture and the culture of his wife as the mother does to raise the child Jewish.

The argument for secularism goes beyond just Separation of Church and State and the issue of establishment of a State religion. The argument for secularism also addresses cases just like this. The main principle of secularism is that religious considerations should not have influence in the concerns of the law and government. This means that the court should have no authority to dictate a family's religious observations.

By ruling that the father has to obey Orthodox Jewish regulations (which include what can be cooked, when, and how, what you can do with your day, whether or not you can drive your car, and so on) they have squashed any possibility of freely enjoying the time he does get with his son. If he doesn't follow those rules, I imagine that he risks losing any visitation rights to his son. The courts should have no authority to issue custody that is contingent on observing a particular religion.

This is why we fight for secularism, for the freedom of and from religion.

In search of reason,

Mike