Wednesday, August 04, 2010

"A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION"

That seems to be a major reason why US District Court Chief Judge Vaughn Walker ruled today that Proposition 8, the initiative approved by voters in November 2008 to outlaw same-sex marriages in California, is unconstitutional.   I'm not an attorney and I haven't yet read all of the decision carefully, but that seems to be the underlying theme.

Most people only know about major court rulings from bumper sticker-like headlines and soundbites.  The people with the loudest opinions are often people who haven’t read the court decisions.  And it’s not always easy to do that.  But the internet today makes finding them a cinch.  Reading through them is a little harder.

So, I’m going to post some excerpts from the conclusions of law from today's ruling.  
[Other sites have posted the conclusion.]  Specifically where the judge goes through the Prop 8 proponents’ arguments for why the State of California had a compelling interest to ban same-sex marriage.  In each case he says something like “the evidence shows beyond debate” or “These purported interests fail as a matter of law”. 

There's little doubt this case will be appealed to the 9th Circuit Court of Appeals (which includes Alaska) and then to the US Supreme Court. 

[Note:  People daily hear terms they recognize, but have no real grasp of what they mean, like, an acre.  I've made links to two terms above - US District Court and 9th Circuit Court of Appeals.  If you can't write down a description of, or orally explain, how they relate to each other and to the State and Federal Constitutions, you probably should stop reading this and go look them up so you understand the whole context of this.]

First, here’s the table of contents of the ruling:

TABLE OF CONTENTS

BACKGROUND TO PROPOSITION 8.............…………………...1

PROCEDURAL HISTORY OF THIS ACTION..........……………. 3

PLAINTIFFS’ CASE AGAINST PROPOSITION 8........…………. 5

PROPONENTS’ DEFENSE OF PROPOSITION 8.........………...... 6

TRIAL PROCEEDINGS AND SUMMARY OF TESTIMONY...…10

CREDIBILITY DETERMINATIONS...............…………………….25

PLAINTIFFS’ WITNESSES...............……………………………....25

PROPONENTS’ WITNESSES...............…………………………....35

FINDINGS OF FACT....................…………………………………..54

THE PARTIES....................……………………………………….....54

WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S
REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO
PEOPLE BECAUSE OF THEIR SEX……………………………....60

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS
AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX
AND OPPOSITE-SEX UNIONS…………………………………....71

WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8
ENACTEDA PRIVATE MORAL VIEW WITHOUT ADVANCING
A LEGITIMATE GOVERNMENT INTEREST................………….85

CONCLUSIONS OF LAW...................………………………….... 109
    DUE PROCESS....................………………………………….....109
    EQUAL PROTECTION..................... ………………………..…117
CONCLUSION.......................… ………………………………...,. 135
REMEDIES........................... ……………………………………....136

The excerpts  (the . . . indicate that the text continues on) are from pages 123 - 131 of the ruling.  This comes after the finding of facts and at the end of the conclusions of law, just before the conclusions.

Again, this is the section where the judge analyzes each argument made by the proponents of Prop 8 for why the State of California has a compelling reason to outlaw same-sex marriage: 

PURPORTED INTEREST #1: RESERVING MARRIAGE AS A UNION BETWEEN A MAN AND A WOMAN AND EXCLUDING ANY OTHER RELATIONSHIP 
Proponents first argue that Proposition 8 is rational because it preserves: (1) “the traditional institution of marriage as the union of a man and a woman”; (2) “the traditional social and legal purposes, functions, and structure of marriage”; and (3) “the traditional meaning of marriage as it has always been defined in the English language.” Doc #605 at 12-13. These interests relate to maintaining the definition of marriage as the union of a man and a woman for its own sake.

Tradition alone, however, cannot form a rational basis for a law. Williams v Illinois, 399 US 235, 239 (1970). The “ancient lineage” of a classification does not make it rational. Heller, 509 US at 327. Rather, the state must have an interest apart from the fact of the tradition itself.

The evidence shows that . . .


PURPORTED INTEREST #2: PROCEEDING WITH CAUTION WHEN IMPLEMENTING SOCIAL CHANGES

Proponents next argue that Proposition 8 is related to state interests in: (1) “[a]cting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution”; (2) “[d]ecreasing the probability of weakening the institution of marriage”; (3) “[d]ecreasing the probability of adverse consequences that could result from weakening the institution of marriage”; and (4) “[d]ecreasing the probability of the potential adverse consequences of same-sex
marriage.” Doc #605 at 13-14.

Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change. See FF 55. Instead, 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. . .



PURPORTED INTEREST #3: PROMOTING OPPOSITE-SEX PARENTING OVER SAME-SEX PARENTING

Proponents’ largest group of purported state interests relates to opposite-sex parents. Proponents argue Proposition 8:  1) promotes “stability and responsibility in naturally procreative relationships”; (2) promotes “enduring and stable family structures
 for the responsible raising and care of children by their biological parents”; (3) increases “the probability that natural procreation will occur within stable, enduring, and supporting 
family structures”; (4) promotes “the natural and mutually beneficial bond between parents and their biological children”; (5) increases “the probability that each child will be raised by both of his or her biological parents”; (6) increases “the probability that each child will be raised by both a father and a mother”; and (7) increases “the probability that each child will have a legally recognized father and mother.” Doc #605 at 13-14.

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, FF 69-73, and (2) Proposition 8 does not make it more likely that 
opposite-sex couples will marry and raise offspring biologically related to both parents, FF 43, 46, 51. . .


PURPORTED INTEREST #4: PROTECTING THE FREEDOM OF THOSE WHO OPPOSE MARRIAGE FOR SAME-SEX COUPLES

Proponents next argue that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. Proponents argue that Proposition 8: (1) preserves “the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children”; and (2) accommodates “the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.” Doc #605 at 14.

These purported interests fail as a matter of law. Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children. See In re
Marriage Cases, 183 P3d at 451-452. Californians are prevented from distinguishing between same-sex partners and opposite-sex spouses in public accommodations, as California antidiscrimination law requires identical treatment for same-sex unions and opposite-sex marriages. . .


PURPORTED INTEREST #5: TREATING SAME-SEX COUPLES DIFFERENTLY FROM OPPOSITE-SEX COUPLES

Proponents argue that Proposition 8 advances a state interest in treating same-sex couples differently from opposite-sex couples by: (1) “[u]sing different names for different things”; (2) “[m]aintaining the flexibility to separately address the needs of
different types of relationships”; (3) “[e]nsuring that California marriages are recognized in other jurisdictions”; and (4) “[c]onforming California’s definition of marriage to federal law.” Doc #605 at 14.

Here, proponents assume a premise that the evidence thoroughly rebutted: rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same. FF 47-50. The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.



PURPORTED INTEREST #6: THE CATCHALL INTEREST

Finally, proponents assert that Proposition 8 advances “[a]ny other conceivable legitimate interests identified by the parties, amici, or the court at any stage of the proceedings.” Doc #605 at 15. But proponents, amici and the court, despite ample
opportunity and a full trial, have failed to identify any rational basis Proposition 8 could conceivably advance. Proponents, represented by able and energetic counsel, developed a full trial record in support of Proposition 8. The resulting evidence shows
that Proposition 8 simply conflicts with the guarantees of the Fourteenth Amendment.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by
every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. . .

Finally, before going on to the conclusion, which you can read here at Henkimaa, the judge seems to make the point that you can't use personal opinions as the basis of legislation that discriminates against a class of people.

A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION

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. See Romer, 517 US at 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).


Here's how it's listed:


KRISTIN M PERRY, SANDRA B STIER,
  PAUL T KATAMI and JEFFREY J
ZARRILLO,
Plaintiffs,

CITY AND COUNTY OF SAN FRANCISCO,


Plaintiff-Intervenor,

v

ARNOLD SCHWARZENEGGER, in his
 official capacity as Governor of 
California; EDMUND G BROWN JR, in
 his official capacity as Attorney
General of California;
MARK B
 HORTON, in his official capacity
 as Director of the California 
Department of Public Health and
 State Registrar of Vital
 Statistics;
LINETTE SCOTT, in her 
official capacity as Deputy 
Director of Health Information &
 Strategic Planning for the 
California Department of Public 
Health;
PATRICK O’CONNELL, in his 
official capacity as Clerk-
Recorder of the County of
 Alameda; and
DEAN C LOGAN, in hi s
official capacity as Registrar-
Recorder/County Clerk for the 
County of Los Angeles,

Defendants,


DENNIS HOLLINGSWORTH, GAIL J 
KNIGHT, MARTIN F GUTIERREZ, HAK-
SHING WILLIAM TAM, MARK A 
JANSSON and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
 RENEWAL, as official proponents 
of Proposition 8,
Defendant-Intervenors.

7 comments:

  1. Thank you for this, Steve.

    I was beginning to write a response but as it flew off my fingertips, I realized how much I need to write a piece for the Anchorage Daily News as well.

    Just about two weeks ago, the ADN barred me from further on-line submissions for disregarding posting rules. I had made an admittedly stinging comment on Kevin Clarkson's column as he stated his indignation about racism from any quarter, I contrasted this with his full support for banning marriage equality for gay folk. I borrowed that famous British anti-abolition poster, "Am I not a brother and a man?"

    He had recited elements of the "I have a dream" speech. He was writing about the promise of equality -- the very promise of what to me and millions of others, is an American creed not yet fully realized. He cited Jefferson and the "All men are created equal" wording of the Declaration of Independence.

    When I wrote to ask why I had been blocked and my comment removed, Pat Dougherty emailed to tell me he saw to my removal. I decided to leave the room, so to speak, agreeing that it was past time for me to care any longer about Anchorage, about Alaska or the United States. I was becoming European.

    And then Judge Walker's ruling came down. My emotions betrayed my thought. Reason follows passion, it has been said. I won't discuss that here, but now I must write what I was going to submit here, to the ADN.

    Gene and I are blessed to have found each other; in fact, yesterday -- the day of this ruling -- was the 31st anniversary of our (religious, not legal) marriage in my father's church in Eagle River. Both my parents have passed now but that day is a central reason why we live where we do today.

    America has not lived up to its creed. We will stay in the UK, a country that does uphold our marriage, until that day America does as well. We can't think of anything more American than being true to conviction. Or more human than being true to love.

    With deep respect for the work you do, the flowers you let us look at, the ideas you share and trouble our thoughts with, your friends in London, Jay and Gene Dugan-Brause

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  2. Well, I am not a great supporter of homosexual marriage. Marriage has a very long history (oldest record about it is in Hammurabbi's Code - 18th century BC as far as I remember) and these sources write about male-female relationship. I can only recite only one gay(-like) marriage in history. Nero killed his lover in his anger and he married to a male who looked similar to her, but before .... I rather don't write it down, because I find it disgusting. Emperor Hadrian was also homosexual but he had wife (a lady).

    Until the end of the 19th (Kulturkampf in Germany) century marriage had been a religious act, unlike nowadays it is an administrative thing, however many people (at least in Hungary) have church ceremonies to keep the tradition. For example: my parents had church ceremony but they are not very religious people and I would like to have it if I marry one day, and I attend church only in special occasions. Therefore I think it is important to take into consideration religious laws when we make a secular law. (I know some churches accept it but the majority does not.)

    Finally, I would like to emphasise that I am not against homosexual relationships, but in my opinion same-sex marriage would be a great harassment to one of the oldest traditions in our modern life.

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  3. Dear Ropi and friends in Europe

    We all carry in ourselves national identities and customs learned from our parents, place and time.

    Ropi, when you marry, you comply with a tradition that values your relationship but devalues mine. It’s a result that required me to question what I was taught.

    When I become an EU citizen, you and I will share a 20th century vision of hope entrusted to the European Union. It is my hope that soon, we will protect the right to marry the one we love, not custom, in all its member states.

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  4. Jay, I will protect traditional values until my last moment on this World.

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  5. Jay, if this court decision is not accepted by most people in the US it will be a hollow victory. Talking to the uncomfortable in ways that make them more comfortable is critical.

    Unfortunately, social 'outsiders' - whether religious, racial, gender, sexual - do not have the luxury of expressing themselves fully and sometimes provocatively the way the insiders do. One term that describes this is "white privilege'. Thanks for regular visits and comments here.

    Ropi, Traditional values include a lot of things we no longer accept:

    1. The bible is full of stories of polygamy, stoning, and many rules on what to eat, how to grow crops, etc.
    2. Women were seen as inferior to men, had few rights in marriage, were possessions of their husbands
    3. Minorities did not have equal rights - blacks were legally slaves in the US; Jews were killed regularly in pogroms in Russia and elsewhere; and many Poles, Hungarians, Germans, Austrians, French, Dutch, Serbs, etc. approved of and even cooperated with the Nazi attempt to exterminate all the Jews.
    4. In the US, some states prohibited marriage of of people of different races
    5. Catholics and Protestants have fought since the Reformation and it continued in Northern Ireland until recently
    6. Homosexuality has existed - as you show from historical records - from as early as human records exist. Just as our understanding of health and medicine - both physical and mental - have changed greatly, our understanding of homosexuality has also changed and folk wisdom and old wives' tales are being replaced by more objective research on homosexuality.

    All I'm saying is that tradition has often been about discrimination based on a variety of motivations - probably fear and power being the most important. People in power don't want to make any adjustments to their lives, even if it means that others are oppressed.

    That said, there are aspects to our modern scientific world that also have serious problems. Blind faith in science is dangerous. We have found out over and over again that the 'tricks' scientists have learned to 'fix' problems with nature, often cause more problems. Sort of like the sorcerer's apprentice. A little knowledge can be dangerous.

    When our rational and emotional selves are not balanced and working together, we get into trouble. We need to create societies that allow people to feel safe to be themselves and respect others. Some cultures have done this more successfully than others.

    I admire your willingness to state your opinions strongly and to engage those who don't agree with you in a respectful way. Thanks to you as well for being a regular reader and commenter here.

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  6. Steve, my words here are my conversation with America now. Your blog is of particular value to me when commentary is difficult as it today.

    Eastern and Central Europeans are dealing with the demands of rediscovered nationalism. Social cohesion, tradition and identity is of importance to any people. American-style patriotism comes to mind.

    The EU is very much caught in a struggle comprising many of the same centrifugal forces operating in the United States. In this short reply, I won't venture into what this means, just that it exists.

    I have been stunned again and again by comments made by people from new democracies of Europe here in London. The EU governs uneasily as does the United States on many social and economic issues.

    I learning of the work that must be done here. I will fight to keep what I have fought so hard to gain. Ropi may do the same. You may mediate as you wish.

    My meaning is not as harsh as these words may sound. I simply won't consent to be denied dignity and equality any longer. I so wish your blog could and would accommodate a truly international discussion on things at times. We all need to make this effort. It's started here in one small exchange.

    Thank you.

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  7. Steve, the number 1 point still exist in conservative Muslim countries.

    You are right that there are some "old things" that we had to abolish but racism or anti-semitism are neither traditional, nor values. I also agree with the fact that some traditional values cannot be maintained in the 21st century, but it doesn't mean you have to throw out everything we have got accustomed to. If you break a glass, you don't throw the entire set out.

    In Hungary we have conservative government so it is not likely that homosexuals can marry here in the near future. I won't hang myself if one day they can marry, but I think it is not the same when 2 males or 2 females marry or a female and a male marry.

    About politeness: my philosophy is that I can achieve more by expressing myself in an adequate way than using cursing words to my debate partner, but I can promise one thing: I do not surrender easily.

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