Let me explain my problem. This body of evidence intends to show that Prop. 8 enacted a "private moral view" and not a "legitimate government interest." If I'm reading this correctly, it's saying that the evidence shows voters voted on the basis of their personal moral disapproval of homosexuality, not on the basis of a broader State interest. Frankly, I think there's a whole lot of truth in that. The problem is, I don't see any evidence presented here that conclusively reveals the inner mind and motivation of California voters who approved of Prop. 8. (For example, the results of a poll asking, "Why did you vote 'yes' on Prop 8? Check the top two reasons in the list below".) The only conclusion I can draw from the evidence here is that the Prop 8 campaign used stereotypes--in a climate and culture that already discriminates against gays and lesbians--to play upon the fears and prejudices of the population, particularly upon religious people, whose moral disapproval of homosexuality made them especially prone to those fears, stereotypes and prejudices. The way the campaign was conducted greatly increased the likelihood that people would vote based on a private moral view--but that's about all you can say for certain. Again, my gut tells me that this suspicion is correct, but to justify that conclusion you need conclusive evidence.
There's one more difficulty I had with this section. One of the key "findings" under this heading is this: "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians"--and some of the evidence listed include simply the doctrinal statements of certain conservative denominations (Evangelical Presbyterian Church, Free Methodist Church, Lutheran Church-Missouri Synod and Orthodox Church of America). This is such a bizarre statement for a judge to affirm. I can agree that religious beliefs combined with harmful political action do harm. But to say that the beliefs themselves do harm to another person goes against the entire basis of the First Amendment. Of course people have the freedom to think and say what they want, and that freedom cuts both ways, but we draw the line where harm is actually being done. My entire purpose in this blog is to be an example of a Christian who does as much good as I can do for the gay and lesbian community even though I privately believe homosexual practice is sinful. Needless to say, I was disappointed with this one part of the Findings.
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III. Whether the evidence shows that Proposition 8 enacted a private moral view without advancing a legitimate government interest.
Proposition 8 has no other legal effect than to bar a man from marrying a man and woman from marrying a woman. Thus it places the force of law behind stigmas that already exist against gays and lesbians in society, such as the belief that gays and lesbians don't have intimate relationships similar to heterosexual couples, that they are not as good as heterosexuals, and that their relationships don't deserve the full recognition of society. Prop. 8 requires California to treat same-sex couples differently from opposite-sex couples, and it reserves the most socially valued form of relationship, namely marriage, for opposite-sex couples.
Prop. 8 has the effect of codifying distinct roles for men and women in marriage (the evidence here is largely the rhetoric of the Protect Marriage campaign, not the history of coverture as I would have expected, so I suppose what is meant is that such roles would be codified in the perception of the public). It does not affect the First Amendment rights of religious groups that don't want to recognize same-sex couples. In other words, religion is no more protected as a result of Prop. 8 than before.
Economically, Prop. 8 has a negative fiscal impact on the state and local governments. It 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 typically afforded to married couples. There are also the costs that can't be measured, the overall impact of discrimination upon a human life. "What we're really talking about . . . [are] the long-term costs of discrimination as a way that weakens people's productivity and integration into the labor force. Whether it's weakening their education because they're discriminated against at school, or leading them to excessive reliance on behavioral and other health services, these are impacts that are hard to quantify . . . . How much healthier you are over your lifetime. How much wealth you generate because you are in a partnership."
By singling out gays and lesbians for unequal treatment, Prop. 8 perpetuates negative stereotypes that gays and lesbians aren't capable of forming long-term relationships and are not good parents. The fact of unequal treatment is a frequent reminder for gays and lesbians in committed, long-term relationships that their relationship aren't as valued as opposite-sex relationships. As for whether same-sex couples make good parents, research shows that whether a child is well-adjusted depends upon the quality of a child's relationship with his or her parents and the availability of economic and social resources. The fact that gender and sexual orientation do not determine whether someone can be a good parent is accepted beyond serious debate in the field of developmental psychology. Studies also show that having both a male and a female parent and having a genetic relationship between a parent and a child do not increase the likelihood a child will be well adjusted.
Gays and lesbians have been victims of a long history of discrimination and still experience discrimination today. "[O]ver the last five years there has actually been an increase in violence directed toward gay men and lesbians." In 2008 hate crimes against gays and lesbians accounted for "71 percent of all hate-motivated murders" and "[f]ifty-five percent of all hate-motivated rapes." "There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian." Well-known stereotypes exist about gay men and lesbians, that they are affluent, self-absorbed, incapable of forming long-term relationships, and are disease vectors or child molesters who recruit young children into homosexuality. "'[I]n some ways, the most dangerous stereotypes for homosexuals really developed between the 1930s and '50s, when there were a series of press and police campaigns that identified homosexuals as child molesters.' These press campaigns . . . focused on sex perverts or sex deviants. Through these campaigns, the homosexual emerged as a sex deviant."
Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. "Religions teach that homosexual relations are a sin and that contributes to gay bashing." A CNN exit poll showed that "84 percent of people who attended church weekly voted in favor of Proposition 8." Quoting Catholics for the Common Good: "[a]llowing children to be adopted by persons living in [same-sex] unions would actually mean doing violence to these children" and "legal recognition of homosexual unions . . . would mean . . . the approval of deviant behavior." The Lutheran Church-Missouri Synod teaches that "homosexuality is a sinful distortion of [the Lord's] desire that one man and one woman live together in marriage as husband and wife." The Orthodox Church of America teaches that "homosexuality is to be approached as the result of humanity's rebellion against God."
Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians. The "Save Our Children" campaign led by Baptist singer Anita Bryant revived stereotypes of homosexuals as child molesters. The term "gay agenda" was mobilized in the late '80s and early '90s to pick up on long-standing stereotypes and create the idea of a unitary agenda. "[I]f a group is envisioned as being somehow . . . morally inferior, a threat to children, a threat to freedom, if there's these deeply-seated beliefs, then the range of compromise is dramatically limited. It's very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person."
The Prop. 8 campaign tapped into fears created by these stereotypes, suggesting that children exposed to same-sex marriage might become gay or lesbian, and that parents should dread having a gay or lesbian child. "One of the enduring . . . tropes of anti-gay argumentation has been that gays are a threat to children . . . [I]n the Prop 8 campaign [there] was a campaign advertisement saying, . . . 'At school today, I was told that I could marry a princess too.' And the underlying message of that is that . . . if Prop 8 failed, the public schools are going to turn my daughter into a lesbian." Parents in Massachusetts claim that in their schools "homosexuality and gay marriage will soon be taught and promoted in every subject, including math, reading, social studies and spelling." Frank Schubert and Jeff Flint wrote in the article, "Passing Prop 8" in Politics magazine:
[P]assing Proposition 8 would depend on our ability to convince voters that same-sex marriage had broader implications for Californians and was not only about the two individuals involved in a committed gay relationship . . . . We probed long and hard in countless focus groups and surveys to explore reactions to a variety of consequences our issue experts identified . . . . [One area we focused on was] how this new 'fundamental right' would be inculcated in young children through public schools . . . . [Californians] would entertain allowing gay marriage, but not if doing so had significant implications for the rest of society . . . . The Prop 8 victory proves something that readers of Politics magazine know very well: campaigns matter."
