The biggest news of the week was, without a doubt, the verdict in Perry v Schwarzenegger.
Proposition 8, a state constitutional amendment statute marriage for gay and lesbian couples, passed in November of 2008, effectively overturning the California Supreme Court's May 2008 invalidation of Proposition 22, a similarly worded statute invalidated by the decision of In re Marriage Cases, 189 P3d 384 (Cal 2008). Between the time of the California Supreme Court's decision and the November election, approximately 18,000 couples were married.
Opponents of Prop 8 immediately challenged the initiative in the California Supreme Court, arguing that it violated the rules for amending the California Constitution. Those challenges failed, and the Supreme Court upheld Prop 8 in Strauss v. Horton, 207 P3d 48 (Cal 2009). The Court did not invalidate the remaining 18,000 marriages that had taken place in the interim period, and also stated, in dicta, that the only effect of the decision was to prevent the state from recognizing same-sex unions as "marriages."
Plaintiffs challenged the constitutionality of Prop 8 under the Fourteenth Amendment and filed their complaint on May 22, 2009, naming the Governor, Attorney General and other defendants in their official capacities as defendants. The Attorney General conceded that Prop 8 was unconstitutional in his answer to the complaint, and the remaining government defendants refused to take a position on the merits of the claims, declining to defend Prop 8. The "official proponents" of Proposition 8 were granted leave to intervene in July of 2009, and they were the ones who put on the defense of Prop 8.
EVIDENCE THAT DEMANDS A VERDICT
After the court denied a motion by the Plaintiffs for a preliminary injunction, and because the parties disputed several factual premises, the case was set for trial, and tried before the court from January 11, 2010 through January 27, 2010. Eight lay witnesses, including the Plaintiffs themselves, testified for the Plaintiffs, as well as nine expert witnesses. By contrast, Prop 8's proponents put on only two expert witnesses. While the court found the Plaintiff witnesses credible, the court determined that one of the Proponents’ experts, David Blankenhorn, offered an opinion "not supported by reliable evidence or methodology" that was "entitled to essentially no weight." Another expert, Kenneth Miller, a professor of government at Claremont McKenna College, were "entitled to little weight...to the extent they are amply supported by reliable evidence."
Finally, the Court made sixty-one findings of fact related to the substantive legal conclusions it would later reach. Several were quite important, including those related to marriage’s changing definition. The court found that "[s]exual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group," and no credible evidence existed to support an argument that it could be changed through "therapeutic intervention" or other methods. Additionally, the court found that same-sex couples are similar to opposite-sex couples in all relevant respects, and California additionally encouraged them to foster, adopt or have children through assistive reproductive technology. The court also found that domestic partnerships were not equal to marriage, and did not provide gays and lesbians with a status "equivalent to marriage" given that the cultural meaning of marriage, and its associated benefits, were deliberately withheld from same-sex couples in domestic partnerships.
Factual finding 63 was a real blow to the Proponents. While Prop 8 eliminated the right to marry, it did not affect any other substantive rights under the California constitution, based on language contained within Strauss, the case that upheld Prop 8 from a state constitutional challenge in May of 2009. Additionally, the court found that the Prop 8 campaign was imbued with a reliance on stereotypes to show that same-sex relationships were inferior to opposite-sex relationships, and that gays and lesbians were a vague "threat" to children, notwithstanding all evidence to the contrary.
In sum, the court found no evidence to support the state's refusal to recognize marriages between two people because of their sex, no state interest in differentiating between same-sex and opposite-sex couples, and substantial evidence supporting the argument that Prop 8 was a result of moral animus, without advancing a legitimate government interest.
The trial has occurred. The witnesses have been questioned. The arguments have been made. The findings of fact have been laid out. And now, it is time for...
The Conclusions of Law
(As explained by AUBoy2007)
Let me say from the start, that I am going to try to lay this out as if you (the reader) is reading a judicial opinion for the first time. To that end, I do not mean to imply anyone is stupid or simple-minded, but I am going to try to simplify this as best I can. I’m also going to try to have a bit of fun with this, as it’s an amazing opinion. Ok, now on to the show...
(For those of you following along at home, we’re at page 109 of the decision.)
There are two main parts to this section of Judge Walker’s opinion. There is his discussion of due process and his discussion of equal protection. But first some background...
Background
The way a decision works, legally speaking, is that once presented with the facts, the judge then applies the law to those facts. Case law helps illuminate how certain facts and certain laws and concepts fit together. This is, in a nutshell, what it’s all about (and you thought that the hokey-pokey was what it was all about!).
So before we discuss this marriage between facts and law, let me briefly give you some of the key cases Judge Walker used in his discussion.
The Constitution
Specifically speaking, this case revolves around Amendment 14 of the Constitution. As you all know, this Amendment was passed as part of the post-civil war amendments (and is currently under attack, but that is a discussion for another time). This Amendment has been used to extend the protections found within the Constitution to state governments. Section 1 of Amendment 14 reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The key portions are the due process clause:
nor shall any state deprive any person of life, liberty, or property, without due process of law
and the equal protection clause:
nor deny to any person within its jurisdiction the equal protection of the laws.
It is these two sections that Prop 8 was said to have violated.
There are also plenty of citations to California’s laws, but those aren’t essential for you to understand Judge Walker’s point.
The Case Law
- Loving v. Virginia (1967): Not going to get into too much detail about this one. Loving was the case where the Supreme Court ultimately struck down Virginia, and the nation’s, anti-miscegenation laws.
- Zablocki v. Redhail (1978): This one is not as familiar. In this case the Supreme Court struck down a Wisconsin statute that required non-custodial parents of children to get a court order before they could get married. It is key here because it affirmed that marriage is a fundamental right. (And basically, the statute infringed upon this right.)
- Romer v. Evans (1996): This case is what I like to call the big enchilada. Romer centered around Colorado’s Amendment 2 which was passed to counter anti-discrimination ordinances which were popping up around Colorado. The amendment precluded actions designed to protect people based on homosexuality. This amendment was challenged and went up to the Supreme Court. It was here where Justice Kennedy first made his mark, and it is a good part of why some believe that he may be susceptible to ruling in our favor again. Kennedy struck down the by noting that it was not preventing the granting of special rights, merely preventing gays from receiving the protections others enjoyed. The decision went on to note that this amendment could not even pass a type of rational basis test:
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
- Lawrence v. Texas (2003): The other big one. In Lawrence, Justice Kennedy spoke again, this time striking down Texas’ sodomy laws. What is interesting here is the route by which Kennedy chose to do so. Justice Kennedy’s approach was to strike down the sodomy law under due process, claiming that Texas has infringed upon the liberties of two consenting adults. This set up a contrast with Justice O’Connor. O’Connor’s concurrence is both broader and narrower than Kennedy’s majority opinion. She provided that the state could regulate these practices, but that in this case it was unconstitutional because it violated equal protection. More broadly, however, O’Connor was presenting gays as a group and not merely people who do gay things.
- Christian Legal Society v. Martinez (2010): This is the most recent Supreme Court case involving gay issues. The key to this case lies not with the overall opinion, but by a comment Justice Ginsberg made within the majority opinion:
Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].
Why is this important? Because it breaks down the difference saying someone does gay things and saying someone is gay. If you just "do gay things" then there’s nothing to protect. If you "are gay," then that is something we have to look closer at. Remember Lawrence? Perhaps the bridge between O’Connor’s concurrence and Kennedy’s majority opinion has narrowed some.
Ok. Now that you have the background, onto the opinion!
Due Process
The Due Process clause once again:
nor shall any state deprive any person of life, liberty, or property, without due process of law
Governments have to have some reason to deprive persons of life, liberty, or property. It cannot be wilily-nilly. Now, not everything fits within those three categories. But marriage does. See Loving and Zablocki above. Judge Walker had to determine if what the plaintiffs’ wanted was this fundamental right of marriage, or something different. To do this, Judge Walker explored marriage.
Using the findings of fact he already listed out, Judge Walker explored the consistent aspects of marriage:
Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. The spouses must consent to support each other and any dependents. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.
He also explored the changes marriage has undergone, from the days of miscegenation and women as property to now. He also explored why same-sex marriage has been denied.
From this discussion he came up with a few conclusions. One of them is pretty extraordinary:
Rather, the exclusion [of same-sex couples] exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
Some of the right have taken issue with this statement. (Not linking.) But it really is not that radical. In today’s world there are no real gender roles within a marriage. The man can work, or the woman can, or both. The man can care for the house, or the woman can, or both (if they’re fortunate enough not to have to work!). Of course there are some gender differences, no one is arguing otherwise, but Judge Walker is saying that they are no longer relevant to how we have constructed marriage. Or as he put it:
Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Ultimately, the Judge notes that the plaintiffs are not seeking anything new. They merely want the state to recognize their relationships as marriages, the same marriages all straight couples can enjoy.
After finding this, he then turned to see whether the state had fulfilled its obligation to provide marriage to same-sex couples. To check this, he reviewed California’s domestic partnerships. Tellingly,
Proponents do not dispute the "significant symbolic disparity between domestic partnership and marriage."
(Note to current and future lawyers: when you are conceding key things like this, your case is in trouble.) Judge Walker dismantled "separate but equal" by showing how they were not equal, that there was something more to marriage that just wasn’t present in domestic partnerships.
Ok, so? Yes, marriage is a fundamental right. Yes, domestic partnerships aren’t the same thing? Why’s this important?
Well, that goes back to the category we are in: Due Process. The state needs something, some reason to deny this fundamental right to these people. And not just any reason, no. Key legalese here:
Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest.
What does this mean? Well, to restrict access to a fundamental right, not only must the state have a reason, but it must be compelling. This is more than any reason. More than something you made up on the way to the courthouse. Also, the restriction must be narrowly tailored. Meaning, the state cannot make a broad restriction when a narrow one can do.
Did California meet this test? Of course not! In fact, the proponents could not even show a rational reason, let alone a compelling one! Shades of Romer and Lawrence, no?
(But wait! They voted! Isn’t that compelling? Nope.
[F]undamental rights may
not be submitted to [a] vote; they depend on the outcome of no elections.
Did Judge Walker just make that up? Nope. That was from a Supreme Court case in 1943.)
Equal Protection
Ok, so he dispatched the law on due process grounds. That means we’re done, right? No more reading this blather? Sorry. Judge Walker still had to address the equal protection argument, and so do we!
To understand equal protection, you have to understand the classifications system. There are three standards the court uses. Note, these are not ridged, nor are they applied evenly.
- Strict Scrutiny: This is the highest form of review. It is stringently applied, and deals with "suspect classes" like race. This is the standard that Judge Walker referred to when dealing with due process.
- Intermediate Scrutiny: Middle standard, applies to gender. Not essential to deal with in this opinion.
- Rational Basis: This is the lowest standard out there. Here, the law must be rationally related to a legitimate government interest. This is very deferential. Applies when you are not talking about fundamental rights or suspect classes.
Pop quiz time! Which of these applies to gays?
If you answered rational basis, then you are mostly correct. Romer and Lawrence seemed to use a rational basis plus.
But wait?? What about this suspect class thing? Wouldn’t that work?
Well, no. Not yet. But that’s what Judge Walker sought to address. Although he focuses the opinion on rational basis, he actually spends time talking about why gays should be considered a suspect class. He talks about how there’s never a reason why California would have to distinguish between straights and gays when legislating; therefore, any classification made based on this characteristic is suspect. However, we don’t have to dwell on this point, as Judge Walker repeatedly notes Prop 8 does not even survive rational basis. (This, in my opinion, is a good thing, because Judge Walker would have been going out on a huge limb to apply strict scrutiny to a new group?)
So what are these rational bases that support Prop 8? The proponents came up with 6 of them.
- reserving marriage as a union between a man and a woman and excluding any other relationship from marriage
- proceeding with caution when implementing social changes
- promoting opposite sex parenting over same-sex parenting
- protecting the freedom of those who oppose marriage for same-sex couples
- treating same-sex couples differently from opposite-sex couples
- any other conceivable interest
Judge Walker took these six in turn, demolishing them with ease, based on the large factual record he created:
Reserving marriage as a union between a man and a woman and excluding any other relationship from marriage
Tradition is not enough to sustain a law. It is not a rational basis. There is no evidence that the state has an interest in promoting one over the other. So this one fails.
Proceeding with caution when implementing social changes
Not only is this not a sweeping social change, allowing gay marriage is at worst neutral, at best positive on society at large. Also, it would be very easy to implement. So this one fails.
Promoting opposite sex parenting over same-sex parenting
This was the biggest one according to the pro-Prop 8 people.
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, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.
Seems obvious, no? Additionally damning to the proponents, California law allowed gay parents to adopt and treats gay parents exactly the same as straight parents! In fact, promoting sex within marriage, if even allowable as a goal, cannot be the purpose behind a law that prohibits people from getting married. So this one fails.
Protecting the freedom of those who oppose marriage for same-sex couples
Except it has nothing to do with those who oppose marriage. In fact, regardless of marriage, California law contains anti-discrimination protections for same-sex partners and married couples. So even if you are opposed to same-sex marriage, California law already prevents you from treating them differently. Basically, tough shit. Again, as in Romer and Lawrence, moral views are not enough. So... say it with me folks... this one fails!
Treating same-sex couples differently from opposite-sex couples
Back to morality again. No go. Also, administrative convenience, if that’s what is driving this, is also not good enough. So this one fails!
Any other conceivable interest
Well, shockingly, here the court finds... no wait. Oh right, yeah, nothing here.
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples.
So... wait for it... wait for it... wait for it... last time... this one fails!
Conclusion
Well, you can see where all this is heading. I will let the judge speak for himself here:
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.
And so that’s that. The decision is currently stayed (not effective) for the judge to hear arguments on why or why not it should be stayed through the appeal. If I was a betting man, I would bet it is stayed (if not by Judge Walker, then by the 9th Circuit).
Stay tuned for Round 2: The Appeal!