The following are excerpts from United States District Chief Judge Vaughn Walker’s ruling issued today, declaring Proposition 8 — the California Defense of Marriage Act — to be unconstitutional:
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; and2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.
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; and6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages.
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.
At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.”
Lamb and Blankenhorn disagreed on the importance of a biological link between parents and children. Blankenhorn emphasized the importance of biological parents, relying on studies comparing children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002)); Tr 2771:1-13 (referring to DIX0124 Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)). As explained in the credibility determinations, Section I below, none of the studies Blankenhorn relied on isolates the genetic relationship between a parent and a child as a variable to be tested. Lamb testified about studies showing that adopted children or children conceived using sperm or egg donors are just as likely to be well-adjusted as children raised by their biological parents. Tr 1041:8-17. Blankenhorn agreed with Lamb that adoptive parents “actually on some outcomes outstrip biological parents in terms of providing protective care for their children.”
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. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.
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.
In the absence of a rational basis, what remains of proponents’ case is 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. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
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.
Well, the illegal wiretapping the government “found a way around” and the systemic “gay bashing” the military has been engaged in for years is also unconstitutional, but that hasn’t stopped them. The bailouts of the big banks are fishy (since it’s at public expense, backing up their bad Wall Street bets), the Christian-only prayer czar in Congress wouldn’t have happened in the early days of the Founding Fathers and the corruption goes on and on throughout the entire government and all the way down through state and local politics, unimpeded by the so-called rule of Law (based on the now “quaint” Constitution). The fact that corporations even have a “say” as “persons” is completely bogus, but money seems to trump just about everything – including the Constitution.
As I understand it, Constitutional law does not recognize the will of the people except in the voting process, redress of greivances by petition, the quartering of troops, the right to trial by jury and un-enumerated rights retained by the people per the 10th Amendment; and one other way that has never been exercised. The founders, I believe rightly, deliberately designed a system that channelled the will of the people into the structure the republic to prevent the will of the majority from prevailing when it contradicted our first principles as defined by the Constitution. The mosque at ground zero and the unconstitutionality of CA Prop 8 are perhaps but recent examples of a majority will, overridden by proper legal authority provided for by our system of government.
The Declaration of Independence, while holding no legal weight has from time to time inspired portions of the American body politic. My conern is that the current political environment may create the situation where the “long train of abuses and usuerpation” clause is used to inspire portions of that politic to take advantage of a perceived radical left wing swing, and in swinging the pendulum back to the right, make the case that the Constitution needs to be amended.
If the state legislatures and governors races are decided in the favor of tea party and conservative activists, which poles are beginning to show, then the substance of Constitutional law could change from relevance to articles and judicial decisions to a new interpretation based on light and transient causes. If this scenario holds any water, then this Prop 8 decision and a handful of other decisions could be used to form the basis of a new push to exercise the ‘will of the people.’ A push to a new constitutional convention, called by the states, apart from the Federal government, with the express intent to ‘fix’ the federal government. You can bet it would be an effort to kill the left as a political instrument.
Other thoughts: The subversion of AS SB1070 is not being received well by conservative voters here in AZ. The boycotts against AZ are pissing them off. Where is the outrage against VA, RI, and other states that enforce similar laws. In MO, the vote against health care as it was framed in that referendum is only adding fuel to the fire. Telling old people who attend tea party meetings, like my parents, that they are not grass roots only further pushes them to the right. I’m still in the reserves, and many of my colleagues feel that service personnel are being dis-enfranchised. Jobs. Recovery summer. I make no apollogies for being a center right conservative but the ability to have rational conversation between opposing camps is becomming increasingly difficult.
Again, my concern is that this sentiment will be used to move our direction and political discourse in a way that is radically different from where we have been as a nation. Whatever it is, we must be careful not to assign blame but rather look for answers.
The reasons people vote for or against a change in their state constitution cannot be determined by a judge or a court. The law should be examined for what it does or does not say, and its constitutionality.
His point number 2 is false, since gay men and lesbians are not prevented from marrying someone of the opposite sex, which is the prevailing definition of marriage, should they ever want to. I don’t think that we discriminate against motorcycles by refusing to recognize them as cars in our legal definitions, and likewise I don’t think we discriminate against same-sex unions by not including them in the definition of marriage.
If I think that same-sex unions (sic) are superior to marriage, that could be another reason why I wouldn’t want to call both types of unions by the same name – so as not to dilute or lower same-sex unions down to the same level as marriage.
What is really at stake in Proposition 8 is a definition of a term, and the citizens of the state should be able to define the term as they see fit for their own state constitution. There need be no moral judgment involved in choosing to define the word marriage as a union of two people of the opposite sex; it has a secular purpose of clarifying the meaning of the term as used in legal and official documents within the state. Big deal. If the people in that state who speak the language can’t say what their language means by majority vote, then who can? Certainly not a federal judge. The state’s interest with Proposition 8 is in nomenclature, not in what types of unions they can have, or which types are better or worse for society.
Civil rights did not try to change call blacks “white”. The Jehovah’s Witnesses did not fight to call their silence a “Pledge of Allegiance”. Proponents of same-sex unions should be trying to call their unions “marriages” against the will and understanding of the people in that state.
Is moral disapproval of murder a proper basis to deny rights to certain people and put them in prison? There is at least a right to due process which cannot be denied, but being free and at large is not a Constitutional right, just as marriage is not a Constitutional right. Judge Walker speaks of a right to marriage where no such right has been granted. Where rights are granted or curtailed, it is all based on moral approval or moral disapproval. If we take everything out of the law and the Constitution which is based on moral judgment, we are left with no rights and no law enforcement – it is basically anarchy.
If the state would decide not to recognize any marriage starting tomorrow, there would be no rights taken away from anybody. If we can show that recognition of marriage is based on moral judgment, would that strike out all legislation regarding marriage? This would certainly level the playing field between state involvement in same-sex and opposite-sex unions.
So, if people have voted for Proposition 8 based on morality, this is no reason to strike down Proposition 8. And it cannot even be proven that the votes cast for Proposition 8 were based on moral judgment, as opposed to the mere defining of a term for official use. You can’t strike down Proposition 8 for the homophobes without also striking it down for those who are trying to keep a traditional definition of a word in the English language.
It’s time there be a fight for same-sex unions which does not involve the term “marriage”, just as we don’t keep motorcycles off the highways just because we don’t define them as “cars”.
Either that, or there should be a movement to eliminate all references to marriage from the law books. If we can’t all have these same “benefits” in the eyes of the law, then perhaps nobody should. Marriage can be preserved as a societal and religious institution, without being given any legal status. Where we don’t let cars on the highways while road works are taking place, we don’t let motorcycles go there either, even though they probably could find a way through in most places. We have found it easier to just say no to all vehicles.