Monday, August 30, 2010

What I got out of reading the Prop. 8 ruling, part 7 of 7

Last time I covered the Due Process half of the "Conclusions of Law" section. Now I will cover the Equal Protection half. It's a long one, but it's the finale. Aside from some re-wording and reorganizing, I lifted so much of it from the judge's actual words I didn't bother to put any of it in quotes. (If you need to review some of the legal terms, see my introduction to Part 6.)

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The Equal Protection Clause of the Fourteenth Amendment says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This guarantee of equality co-exists with the reality that most laws do treat people unequally because of some reason or other. Now, if a law neither targets a suspect class nor interferes with a fundamental right, it is considered valid as long as it is rationally related to a legitimate government purpose. The court is very lenient on this point and will even accept rational reasons that are considered debatable, which is why most laws easily survive rational basis review. However, a law has to do more than simply disadvantage or harm a particular group.

Plaintiffs challenge Prop. 8 on the grounds that it discriminates both on the basis of sex and sexual orientation. It prohibits Perry from marrying Stier, a woman, because Perry is also a woman. Perry would not be prohibited if she were a man, therefore Prop. 8 restricts Perry's choice because she is a woman, yet it also restricts her because of her sexual orientation. Her desire to marry another woman arises only because she is a lesbian.

Gays and lesbians have historically been targeted for discrimination because of their sexual orientation. Sex and sexual orientation discrimination are interrelated because the sex of one's chosen partner is a large part of what defines sexual orientation. Proponents argue the Prop. 8 does not target gays and lesbians because its language does not refer to them, but in so arguing they seek to mask their own initiative. Those who choose to marry opposite-sex partners--heterosexuals-- are not restricted by Prop. 8, while those who choose to marry same-sex partners--homosexuals--are restricted. Prop. 8 eliminates a right only a gay man or a lesbian would exercise.

As will soon be demonstrated in detail, the Equal Protection Clause renders Prop. 8 unconstitutional under any standard of review. Therefore, the court does not need to address whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review. (In other words, the court was ready to address whether sexual orientation qualifies as a suspect class, and thus whether Prop. 8 should be subject to strict scrutiny, but now it's not necessary).

The evidence shows that gays and lesbians are the type of minority that strict scrutiny was designed to protect, since they have experienced a history of unequal treatment and have been disadvantaged by stereotypes that misrepresent them. The trial record shows that strict scrutiny is the appropriate standard of review to apply to classifications based on sexual orientation, since California would rarely, if ever, have a reason to categorize individuals because of their sexual orientation. Here, however, strict scrutiny is unnecessary. Prop. 8 fails to survive even rational basis review.

Proponents have put forward six purported interests. The court will examine each one in turn:

Purported interest #1: Reserving marriage as a union between a man and a woman and excluding any other relationship. 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; 3) The traditional meaning of marriage as it has always been defined in the English language.

Court examination: Tradition alone cannot form the rational basis for a law. The evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles, and California has since eliminated all legally mandated gender roles except that marriage consist of one man and one woman. Prop. 8 enshrines a gender restriction that is an artifact of a past notion that men and women fulfill different roles in civic life. Prop. 8 harms the state's interest in equality by mandating that men and women be treated differently on the basis of discredited notions of gender.

Tradition alone cannot legitimate preferring opposite-sex couples to same-sex couples. The state has no interest in such preference, nor in disadvantaging an unpopular minority group simply because they are unpopular. Proponents' asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Prop. 8.

Purported interest #2: Proceeding with caution when implementing social changes. Proposition 8 is related to state interests in: 1) acting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution; 2) decreasing the probability of weakening the institution of marriage; 3) decreasing the probability of adverse consequences that could result from weakening the institution of marriage; 4) decreasing the probability of the potential adverse consequences of same-sex marriage.

Court examination: Plaintiffs presented evidence at trial that sufficiently rebutted any claim that same-sex marriage amounts to a sweeping social change. Rather, evidence shows that same-sex marriage would have a neutral, if not positive, effect on the institution of marriage, and that the rights of those who oppose homosexuality or same-sex couples will remain unaffected.

Proponents have presented no reliable evidence that same-sex marriage will have any negative effects on society or the institution of marriage. California does not need to restructure any institution to allow same-sex couples to marry, nor does it need any lead time to integrate same-sex couples into marriage. Allowing same-sex couples to marry is simple for California to implement because it has already done so. Prop. 8 is therefore not rationally related to proponents' purported interests in proceeding with caution when implementing social change.

Purported interest #3: Promoting opposite-sex parenting over same-sex parenting. 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; 7) increases the probability that each child will have a legally recognized father and mother.

Court examination: The trial evidence supports two points: 1) Same-sex parents and opposite-sex parents are of equal quality; 2) Prop. 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.

Evidence shows that children's developmental outcomes have nothing to do with their parents' genders. Moreover Prop. 8 has nothing to do with children; it only prevents same-sex couples from marrying. Prop. 8 does not affect who can or should become a parent under California law.

If proponents are seeking to encourage sexual activity within marriage so that reproduction will occur within stable households, Prop. 8 actually discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside of marriage. Because of Prop. 8, same-sex couples are not permitted to engage in sexual activity within marriage. Domestic partnerships are separate from marriage and thus codify California's encouragement of non-marital sexual activity.

Far from advancing a state interest in encouraging the formation of stable households, Prop. 8 makes it less likely that California children will be raised in stable households. The inability to marry denies same-sex couples the benefits, including stability, attendant to marriage. There is no credible evidence that Prop. 8 will make opposite-sex households more stable. None of the interests put forth by proponents relating to parents and children is advanced by Prop. 8; rather Prop. 8 disadvantages families and their children.

Purported interest #4: Protecting the freedom of those who oppose marriage for same-sex couples. Proposition 8 1) preserves the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children; 2) accommodates the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.

Court examination: These purported interests fail as a matter of law, for Prop. 8 does not affect any First Amendment right or responsibility of parents to educate their children. The California anti-discrimination law requires identical treatment for same-sex unions and opposite-sex marriages. Prop. 8 does nothing more than eliminate the right of same-sex couples to marry in California, and does not affect the rights of those opposed to homosexuality or to same-sex marriage. As for saying that one of the rights of those opposed to same-sex unions is the right to prevent same-sex couples from marrying, the private moral views of individuals are not a sufficient basis upon which to single out a group of people for unequal treatment.

Purported interest #5: Treating same-sex couples differently from opposite-sex couples. Proposition 8 advances state interest by: 1) using different names for different things; 2) maintaining the flexibility to separately address the needs of different types of relationships; 3) ensuring that California marriages are recognized in other jurisdictions; 4) conforming California's definition of marriage to federal law.

Court examination: Here, proponents assume a premise that the evidence thoroughly rebutted: rather than being different, same-sex and opposite-sex couples are, for all purposes relevant to California law, exactly the same. Only moral and religious views form the basis for the belief that same-sex couples are different from opposite-sex couples. The evidence undermines any purported state interest in treating couple differently.

Proponents appear to claim that Prop. 8 eases administrative burdens associated with issuing and recognizing marriage licenses, but in fact Prop. 8 creates an administrative burden because California must maintain the parallel institution of domestic partnerships for same-sex couples to provide the equivalent rights and benefits afforded to married couples. Prop. 8 thus hinders rather than advances administrative convenience.

Purported interest #6: The catchall interest. Proposition 8 advances any other conceivable legitimate interests identified by the parties, amici, or the court at any stage of the proceedings.

Court examination: Proponents, amici and the court, despite ample opportunity and a full trial, have failed to identify any rational basis Prop. 8 could conceivably advance. Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. None of the legitimate interests are related to the classification drawn by Prop. 8. The evidence shows that, by every available metric, opposite-sex couples are not better than same-sex couples. As partners, parents, and citizens opposite-sex couples and same-sex couples are equal. Prop. 8 violates the Equal Protection Clause because it does not treat them equally.

Since the proponents could present no rational basis for Prop. 8, what's left is the inference that Prop. 8 was premised on the belief that same-sex couples are simply not as good as opposite-sex couples. Whether that belief is based upon of moral disapproval of homosexuality, animus toward gays and lesbians, or the superiority of opposite-sex couples, it is not a proper basis upon which to legislate. The campaign to pass Prop. 8 relied heavily on negative stereotypes about gays and lesbians and on the idea that children need to be protected from them. It played on the fear that exposure to homosexuality would turn children into homosexuals, and implied that parents should dread having children who are not heterosexual.

The evidence shows that Prop. 8 was a hard fought campaign and that the majority of California voters supported the initiative. The arguments surrounding Prop. 8 raise a question similar to that addressed in Lawrence v Texas, when the Court asked whether a majority of citizens could use the power of the state to enforce "profound and deep convictions accepted as ethical and moral principles" through the criminal code. The question here is whether California voters can enforce those same principles through the regulation of marriage licenses. They cannot.

The proponents' purported rationales amount to nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Prop. 8, they are irrational.

Moral disapproval alone is an improper basis for denying rights to gay men and lesbians. The evidence shows that Prop. 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. Prop. 8 disadvantages gays and lesbians without rational justification and violates the Equal Protection Clause of the Fourteenth Amendment.

In conclusion, Prop. 8 fails to advance any rational basis in singling out gay men and lesbians for denial of marriage licenses. Prop. 8 does nothing more than enshrine in the California Constitution the idea that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Prop. 8 prevents California from fulfilling its obligation to provide marriages on an equal basis, the court concludes that Prop. 8 is unconstitutional.

Friday, August 27, 2010

Another Republican ally

To me the most significant part of this story is not just that Ken Mehlman is the most powerful Republican in history to come out as gay, but he is doing so because he wants to become an advocate for gay marriage. It's a good sign that his family, friends and colleagues have been supportive. A well-positioned Republican can do a lot of good for the cause of gay rights, as Ted Olson has already shown. More power to him.

What I got out of reading the Prop. 8 ruling, part 6 of 7

We're through with the "Findings of Fact" and now we move to the final section, the "Conclusions of Law." I've decided to break my coverage of this section into two posts. Today I'll spend some time prepping you by reviewing the legal terms once again, which are critical to understanding the judge's conclusion, and then I will summarize the "Due Process" half of this conclusion. In my final post I will summarize the "Equal Protection" half.

So let's do some review. The plaintiffs' case against Proposition 8 is that it violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. If you read Section 1 of the Fourteenth Amendment, it says:
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.

That part I italicized contains the Due Process and Equal Protection Clauses. Due process protects individuals against arbitrary government intrusion into life, liberty or property. In other words it has to do with interfering with a fundamental right. Equal protection has to do with treating all citizens equally under the law, since we believe that "all men are created equal."

Of course, more often than not, laws have to treat citizens unequally (for instance, allowing 18 year-olds to drive but not 12 year-olds). But when a law does classify one group to be treated differently than another, that classification must be subject to what's called rational basis review. This means showing that the law's unequal treatment a certain classification of people is rationally related to a legitimate government interest. And by the way, even a hypothetical government interest will do. Usually, showing that a law can pass the standard of rational basis review is a piece of cake.

Now here's the critical point. If you can demonstrate that a law interferes with a fundamental right (Due Process), or that a law denies the Equal Protection of a suspect class (more on that in a minute), then it has to do more than just pass rational basis review. You can't come up with any old government interest to justify such a law, but you have to show that it survives what's called strict scrutiny. Strict scrutiny means demonstrating that this law serves a "compelling government interest" (national security at stake; multiple lives in danger; doesn't violate constitutional protections). And not only that, but it must be "narrowly tailored" to achieve that government interest using the "least restrictive means." So if the law isn't directly on target to achieve this compelling interest, if it either does too much or too little, then it won't pass strict scrutiny. It gets the eject button.

Strict scrutiny, then, is applied in two cases: 1) when a law interferes with a fundamental right, or 2) when a law denies equal protection to a suspect class. Now a suspect class is not just any old group of people but a specially protected classification of person. Currently the U.S. Supreme Court recognizes race, national origin and alienage (that is, being a foreigner) as suspect classifications, meaning that any law that targets a group of people because of their race, national origin or alien status to be treated unequally must pass the highest standard of scrutiny (strict scrutiny). Currently, sexual orientation is not on the list of suspect classifications.

Okay, now for the conclusion of the ruling. Before we dive into the details, I'll give you a one paragraph summary of the whole thing. The plaintiffs challenged Prop. 8 on two grounds: 1) it interferes with their fundamental right to marry (contra Due Process), 2) it discriminates against gays and lesbians, targeting them because of their sexual orientation (contra Equal Protection). Because Prop. 8 interfered with a fundamental right (the right to marry the person of one's choice), strict scrutiny was applied. On that count Prop. 8 failed. As for Equal Protection the judge said the plaintiffs presented enough evidence to show that sexual orientation ought to be treated as a suspect class, and therefore strict scrutiny should also be applied here. However, because the proponents failed to show how Prop. 8 met even the standard of rational basis review (the "piece of cake" standard,) it wasn't necessary to make the case for sexual orientation as a suspect classification. In other words, this was a slam dunk for the plaintiffs.

(As a side note, even if the judge did overreach in his conclusions under heading #3 of the "Findings of Fact" (see my criticisms in the last post), the overall case was so overwhelming in the plaintiffs' favor, the question of whether the judge did overreach has become ultimately irrelevant, it seems to me.)

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Now, my summary of the Due Process half of the "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."

The Due Process Clause recognizes the freedom to marry as a fundamental right. The parties don't question whether the right to marry is fundamental; the question presented is whether the plaintiffs are seeking the right to marry or, because they are of the same sex, whether they seek recognition of a new right.

Throughout history marriage has retained certain characteristics: two parties freely consent to form a relationship; this relationship becomes the foundation of a household; the spouses consent to support each other and any dependents. The State regulates marriage because marriage creates stable households which in turn create a stable and governable populace. The State recognizes the individual's choice to build a family and that this is a central part of that individual's life. The State has never inquired into the procreative capacity or intent of the couple before granting a marriage license, recognizing that marriage is more than a license for procreative sexual intercourse.

At one time there were race restrictions on marital partners, as well as the requirement that a woman's legal identity be subsumed by her husband's under the doctrine of coverture. The lifting of such restrictions and requirements did not change the definition of the right to marry. Race restrictions are now recognized has having stood in stark contrast to the ideas of liberty and choice inherent in the right to marry. The movement of marriage away from state-mandated gender roles "reflects an evolution in the understanding of gender rather than a change in marriage."

In the State's eyes, gender no longer forms an essential part of marriage, since it sees marriage as a union of equals. Same-sex couples are equally capable of performing their marriage obligations as opposite-sex couples. The right to marry is the right to choose a spouse and join together to form a household with mutual consent. The plaintiffs are not seeking recognition of a new right. To characterize their objective as "the right to same-sex marriage" suggests that they are seeking something different than what opposite-sex couples enjoy. "Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

The availability of domestic partnerships does not fulfill California's due process obligation to same-sex couples. California maintains two separate and parallel institutions that provide essentially the same rights and obligations: the historic, highly respected institution of marriage; and the new, unfamiliar and less socially meaningful institution of domestic partnership. Domestic partnerships are only available to opposite-sex couples if one partner is at least sixty-two years old (for the benefit of those eligible for benefits under the Social Security Act). But other than this exception, "California allows almost all opposite-sex couples only one option--marriage--and all same-sex couples only one option--domestic partnership."

Domestic partnerships do not fulfill California's due process obligation to plaintiffs because 1) domestic partnerships are distinct from marriage and don't have the same social meaning, and 2) they were created specifically so California could offer to same-sex couples the rights and benefits of marriage while withholding marriage from them. "California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples."

Because plaintiffs seek to exercise the fundamental right to marry, their claim is subject to strict scrutiny. However, as will be shown later in the Equal Protection analysis, Proposition 8 cannot even withstand rational basis review. "The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest." Moreover, the fact that the majority of California voters supported Prop. 8 is irrelevant since "fundamental rights may not be submitted to [a] vote; they depend on the outcomes of no elections" (West Virginia State Board of Education v Barnette).

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Next up: my summary of the Equal Protection half of the "Conclusions of Law."

Sunday, August 22, 2010

What I got out of reading the Prop. 8 ruling, part 5 of 7

Sorry that getting "part 5" to you has taken so long. It's just that I've had an agonizingly troublesome time connecting the dots of the argument, and in the end I've had to conclude that some of it doesn't quite hold together. That's just my amateur, honest opinion. I'll leave you to come to your own conclusion.

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."

Monday, August 16, 2010

What I got out of reading the Prop. 8 ruling, part 4 of 7

Last time I summarized the evidence of the first heading under the "Findings of Fact." Under heading #2 I will also try to summarize the evidence in a way that connects it with the judge's rationale in the "Conclusions of Law" section:

II. Whether any evidence shows California has an interest in differentiating between same-sex and opposite-sex unions.

The evidence first establishes some pretty basic things: the existence of same-sex love and intimacy, the definition of sexual orientation, and the fact that the vast majority of people are consistent in their sexual orientation, attraction and behavior. Sexual orientation is fundamental to a person's identity and therefore becomes a distinguishing characteristic that defines gays and lesbians as a discrete group. The proponents argue that sexual orientation cannot be defined, but that claim seems disingenuous considering the Prop. 8 campaign was built upon the assumption that voters understood that homosexuals existed as a distinct group from heterosexuals.

Could gays and lesbians change their sexual orientation? (Here the presentation of evidence seems to be addressing the question of whether gays and lesbians, as a group, need to exist in the first place. Couldn't they just become heterosexuals?) There is no credible evidence that an individual can change, whether through conscious decision, therapy or other methods, even though social stigma has motivated many people to desire change. For the most part gay men and lesbians say they had little choice in the matter of their sexual orientation.

What's more, even if change were possible, the State has no interest in asking gays and lesbians to change. According to all the major professional mental health organizations, homosexuality is not a pathology but a normal expression of human sexuality. Same-sex orientation doesn't impair a person's judgment, social skills, vocational skills or parenting skills, and is not related to a person's ability to perform or contribute to society. In other words, the State has no interest in wanting to reduce the number of gays and lesbians in California.

As far as marriage is concerned, all the evidence shows that same-sex couples are identical to opposite-sex couples in their ability to form lasting, committed, caring relationships. "Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex." California law already encourages gay couples to become parents through adoption, foster parenting or assistive reproductive technology (18% of same-sex couples in California are raising children under the age of 18, a total of 37,300 children). When you consider that married same-sex couples in Massachusetts report that they receive many of the same benefits that opposite-sex couple receive from marriage--greater sense of commitment in the relationship, more acceptance from extended family, less anxiety over legal problem, greater access to health benefits for themselves and their children--the marriage of same-sex couples would appear to serve rather than conflict with the State's interest.

Now the evidence shifts to considering whether there are alternatives to legalizing same-sex marriage. Couldn't gays and lesbians avail themselves of opposite-sex marriage? What about domestic partnerships, which grants them all the legal benefits of marriage except for the name "marriage"? In other words, at this point the evidence appears to be addressing whether it is necessary for the State to legalize same-sex marriage given that there are legal alternatives already available to gays and lesbians.

First, marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals because such a union would require them to negate their sexual orientation and identity. Gays and lesbians report that they have no attraction or desire to be with a member of the opposite sex, and many opposite-sex marriages they enter into dissolve. Opposite-sex marriage is not a meaningful alternative for them "because sexual orientation is about the relationships people form--it defines the universe of people with whom one is able to form the sort of intimate, committed relationship that would be the basis for marriage."

Second, even though gay men and lesbians are given the option of entering into domestic partnerships, this arrangement lacks the social meaning associated with marriage. In the United States marriage is widely regarded as the definitive expression of love and commitment. It is understood as "the principal happy ending in all our romantic tales" and "a destination to be gained by any couple who love one another." When you are married you believe that "you are part of the first class kind of relationship in this country, that you are . . . in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships." Many same-sex couples do not register as domestic partners because they view domestic partnerships as second class status.

The category of "domestic partnership" presents legal difficulties because other states may not recognize them and the federal government does not recognize them. As an aside, I struggled with this section a bit, but I believe the evidence here is saying that because domestic partnerships are sort of a made-up category of relationship, in many states there is often no legal recognition of that relationship, and so the law doesn't address what rights or benefits belong to someone who is a "domestic partner." The implication is that since marriage is the relationship that is widely known and universally recognized, granting same-sex couples that status would just legally simplify things for everyone.

Finally, domestic partnerships do not provide gays and lesbians with an equivalent status to marriage because the whole purpose of creating a separate category called "domestic partnerships" is to withhold the cultural significance of marriage and all its associated benefits from same-sex couples. The Attorney General "admits that establishing a separate legal institution for state recognition and support of lesbian and gay families, even if well-intentioned, marginalizes and stigmatizes gay families." Marriage is honored and respected by family, friends, and acquaintances as symbolizing a lifetime commitment, the most important decision you make in your life. A domestic partnership is viewed as just a legal document. In the "Conclusions of Law" the judge writes, "the evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages . . . [W]hile domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation "marriage" significantly disadvantages plaintiffs. . . California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples."

Wrapping it up, the last bit of evidence shows that allowing same-sex couples to marry will not affect the stability of opposite-sex marriages, or the marriage or divorce rates of opposite-sex couples. In Massachusetts the marriage and divorce rates during the four years prior to legalizing same-sex marriage and the four years after proved to be no different. Race, socioeconomic status, education, age at marriage and other similar factors are what affect marriage and divorce rates. Showing that marriage would benefit the children of same-sex couples is also covered, but a lot of that is a repeat of what was said earlier.

Next up: heading #3.

Thursday, August 12, 2010

What I got out of reading the Prop. 8 ruling, part 3 of 7

The witnesses gave their testimonies and now we encounter the "Findings of Fact" section that lists the evidence presented to the court, but not just randomly. The evidence is organized under three main headings:

1. Whether any evidence supports California's refusal to recognize marriage between two people because of their sex.

2. Whether any evidence shows California has an interest in differentiating between same-sex and opposite-sex unions.

3. Whether the evidence shows that Proposition 8 enacted a private moral view without advancing a legitimate government interest.

These three headings encompass sixty-two separate findings, quite a lot. Instead of throwing a list of facts at you, I will attempt to synthesize the most significant findings under each heading into a coherent train of thought, connect the dots if you will. To do this I will be jumping ahead and consulting the "Conclusions of Law" section to help me understand the judge's rationale.

* * * *

I. Whether any evidence supports California's refusal to recognize marriage between two people because of their sex.

This section starts out acknowledging basic facts about civil marriage in the United States: religious leaders don't dictate who may enter or leave a civil marriage; only those who have the legal capacity to consent can marry; and you don't have to be able or willing to procreate to enter into marriage. When California became a state in 1850, marriage laws originally required a husband and a wife. At that time whites and non-whites weren't allowed to marry each other, but later racial restrictions were deemed unconstitutional in California in 1948 (and nationwide in 1967).

In 1850 when California first defined marriage as requiring a husband and a wife, the doctrine of coverture was part of the legal marital bargain. Coverture meant that women, once they were married, "lost their independent legal identity and became the property of their husbands. [This was] once viewed as a central component of the civil institution of marriage." In other words, the woman became absorbed into her husband's legal identity. "She lost her independent legal and economic individuality." The reason for this mutual bargain, into which both parties entered by consent, was that the husband took on the legal responsibility of supporting and providing for his wife, and the wife's part was to serve and obey her husband. She gave him charge of all her earnings and property so he could represent her in court or in any other legal transactions. The basis for this understanding of civil marriage was the assumption of a division of labor along gender lines. The men were seen as suited for being the providers and the women for being the dependents and raising children.

Notice that we're not talking about simply a cultural understanding of marriage, but about State law dictating and enforcing the roles of the spouses along gender lines. To fail in your responsibility as a husband or as a wife would be to violate the legal agreement you made before the State. "In nineteenth century America, marriage was permanent, spousal roles were non-negotiable and divorce 'punished the guilty for criminal conduct' and 'provided a form of public punishment for a spouse who had knowingly and criminally violated his or her public vows of marriage.'"

Starting around the late 19th century, states began to evolve toward recognizing the equality of the sexes, and laws and practices such as coverture were eliminated over time. The shift from the State defining marriage as a male-dominated institution to being an institution that recognizes men and women as equals culminated in the 1970's with no-fault divorce. No-fault divorce epitomized the transformation of the institution of civil marriage because it meant that couples were allowed to define their own roles in the marriage relationship. It meant the State had relinquished its former practice of assigning roles to the spouses and would now allow the couple to divide the marriage responsibilities between themselves as they saw fit.

Now I'm going to do some dot-connecting. Here's my take on what the judge drew from these facts. Because the State no longer assigns gender roles according to the sex of the parties entering into marriage, from the standpoint of the law it no longer matters whether it is the man or the woman who acts as the provider or the dependent (or a little of both) in the marriage relationship, since the law no longer has the job of regulating those roles through threat of punishment. So when a couple comes before the civil authorities to marry or to obtain a divorce, the State no longer "sees" a man or a woman, because it no longer has the obligation to say, "You over here, you're the man and it's your role to do this. And you over here, you're the woman and it's your role to do that." Instead the State only recognizes that these are two people who have defined their marriage roles for themselves and have decided for themselves whether the agreement has been kept or broken. And if the State no longer holds an interest in whether it is the man or the woman who fulfills this or that marital duty, neither should it matter to the State whether it is two men or two women dividing the marital responsibilities between themselves. Judge Walker writes in his Conclusions of Law:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage . . . [T]he exclusion [of same-sex couples from civil marriage] 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.

Wrapping things up under this heading, the rest of the evidence shows how eliminating gender restrictions doesn't diminish the vitality of the marriage as an institution, and outlines the social, psychological, financial and legal benefits of marriage that ultimately serves the State's interest.

Next up, heading number two (and three if I can fit it in).

Tuesday, August 10, 2010

What I got out of reading the Prop. 8 ruling, part 2 of 7

Last time I explained how the proponents (pro-Prop. 8) only produced two expert witnesses to present evidence for their case. One witness's testimony was found to be "unreliable" and the testimony of the other was given "little weight" by the court. You can read my earlier post for further explanation on why this happened.

By the way, why do I keep referring to the pro-Prop. 8 side as "proponents" instead of "defendants"? Well, because that's how the judge referred to them in the ruling. And why, you ask, does he use that term? Originally the lawsuit was brought against the governor of California, the Attorney General, the Director and Deputy Director of Public Health, and the clerk recorders of Alameda County and Los Angeles County--the defendants. But they all declined to defend Prop. 8 in court, and actually the Attorney General even conceded that Prop. 8 was unconstitutional. Therefore, the people who organized the actual pro-Prop. 8 campaign stepped forward to take up the cause in place of the defendants as "defendant-intervenors." I believe that's why they are referred to as "proponents" and not "defendants."

Getting on with the plaintiffs' case: the plaintiffs argued that Prop. 8 violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. I'll do my best to unpack that statement. Due process means the government can't arbitrarily interfere with your right to life, liberty or property. If they do interfere with a right so fundamental--and the right to marry does fall within that definition--there are only a handful of acceptable reasons the government can give to justify that interference (such as national security or some dire situation like that). So the plaintiffs are claiming that the right to marry the person of their choice is protected by the Due Process Clause and Prop. 8 violates that right.

Now the Equal Protection Clause says that no person can be denied equal protection of the laws. Basically, this has to do with discrimination, that everyone must be treated equally under the law. The plaintiffs argued that Prop. 8 interferes with their right to marry (contra Due Process) because it discriminates against them as gay men and lesbians (contra Equal Protection). They claimed that Prop. 8 discriminates on two counts: it denies them a right to marry the person of their choice (sex discrimination), and disadvantages them as a suspect class because they are gay and lesbian (sexual orientation discrimination).

Okay, now what is a suspect class? Suspect class refers to distinctions made by the government on the basis of race, national origin or alienage that cannot be used as a basis for discrimination except for maybe a few special, narrowly defined cases (which, in practice, amounts to almost never). My (somewhat shaky) understanding is that sexual orientation isn't officially on the suspect class list, but the plaintiffs were arguing it should be and in the ruling the judge seemed to agree it should be treated as such. Yet as we'll see later, it wasn't necessary for the judge to decide whether sexual orientation should be considered a suspect class in order for him to rule in favor of the plaintiffs--but now we're getting ahead of ourselves.

Well, I was going to write more but my brain has been thoroughly exercised by all this legalese. I had to read way too many Wikipedia articles just to get this far. (Law students, feel free to correct whatever errors I'm sure I have made.) Next up, the "Findings of Fact."

Monday, August 09, 2010

What I got out of reading the Prop. 8 ruling, part 1 of 7

I finally finished reading the Prop. 8 ruling this past weekend, all one hundred and thirty-six pages of it. I'm not a legal expert or anything so I'll do my best to explain in layman's terms what I got out of it. Except for some tedious parts in the "Findings of Facts" section, I found it to be a pretty smooth read.

From what I can tell, the ruling went the way it did because the plaintiffs (anti-Prop. 8) were prepared to make their case while the proponents (pro-Prop. 8) were not. The plaintiffs put forward eight lay witnesses, including the plaintiffs themselves (Kristin Perry, Sandra Stier, Jeffrey Zarrillo and Paul Katami). They also put forward nine expert witnesses, all of whom had Ph.D.s and had published peer-reviewed articles in the fields relevant to the case.

The proponents (pro-Prop. 8), on the other hand, only ended up putting forward two expert witnesses. On the first day of trial they announced they were withdrawing four of their expert witnesses because the witnesses were "concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever." So in response to their concern the judge stopped all public broadcasting of the trial. Yet the proponents never called upon these four witnesses even after public broadcasting was banned from the court, and gave no explanation why.

Interestingly, the plaintiffs were able to enter into evidence the deposition testimony of two of the proponents' withdrawn witnesses, "because their testimony supported the plaintiffs' claims." Katherine Young (Ph.D. in history of religions and comparative religions) of the proponents' side stated in her deposition that homosexuality is a normal variant of human sexuality and that same sex couples express the same desire for love and commitment as opposite sex couples. Paul Nathanson (Ph.D. in religious studies), also of the proponents' side, testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians, and that there is no evidence that children who are raised by same-sex couples fare worse than those raised by opposite sex couples.

The two expert witnesses that remained for the proponents were David Blankenhorn and Kenneth P. Miller. I guess Blankenhorn was now going to be their star witness, except that the judge had to throw out his testimony as unreliable. The main problem with Blankenhorn from the start was that he didn't have a degree in psychology, sociology or anthropology (he had a B.A. in social studies and an M.A. in social history), and he didn't have any peer-reviewed articles published in the areas that related to the case. His credentials simply paled in comparison to that of the expert witnesses on the plaintiffs' side.

The judge let him testify anyhow and found several problems with his testimony. Blankenhorn could not explain the methodology he used to arrive at his opinions, would merely quote from others to support his opinions without citing sources, made reference to research that did not support his claims, contradicted himself a lot, and refused to directly answer many questions upon cross examination. Here's a sample of one of the bizarre exchanges that took place: Blankenhorn says there are three universal rules that govern marriage: the rule of opposites (man/woman), the rule of two people, and the rule of sex. Even a polygamous marriage, he says, does not violate the rule of two.

Q: Is it your view that that man who has married one wife, and then another wife, and then another wife, and then another wife, and then another wife, and now has five wives, and they are all his wives at the same time, that that marriage is consistent with your rule of two?

A (Blankenhorn): I concur with Bronislaw Malinowski, and others, who say that that is consistent with the two rule of marriage."

Blankenhorn was also questioned about something he wrote in 2007: "I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before." Blankenhorn testified that he wrote the statement and agreed with it. With all the unsupportable, contradictory and bizarre statements Blankenhorn was making, it's no wonder the judge found his testimony unreliable.

The second expert witness put forward by the proponents, Kenneth P. Miller (Ph.D. in political science), testified on the political power of gays and lesbians. The court found that "while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power." Miller's main argument was to point to political successes for gays and lesbians in California to show how they possessed significant political power. He admitted, however, that he has never focused his research specifically on gay and lesbian issues. He could not comment on anti-discrimination laws, anti-gay harassment at workplaces and schools, gay political power as compared with African-American political power, or explain his claim that religious groups support gays and lesbians when the polling data shows that 84% of regular churchgoers voted yes on Prop. 8. The judge wasn't as harsh with Miller as with Blankenhorn, but still found Miller's opinions to be of "little weight."

So you can see where all this is going. The proponents have utterly failed to make their case, leaving the door wide open for the plaintiffs to make theirs. But not only did they fail to make a case, the judge also noted that the proponents presented a very different set of arguments before the court than the arguments they presented to the voters in the Yes on 8 Campaign. No one on the proponents' side attempted to explain this discrepancy.

Next up, I'll attempt to sum up the evidence the plaintiffs presented in support of their case. To be continued...

Wednesday, August 04, 2010

Prop. 8 ruled unconstitutional

What are you doing here? Go to The Man himself, my good friend Andrew Sullivan, who spearheaded the civil same-sex movement almost single-handedly a couple of decades ago. He'll tell you all you need to know at The Daily Dish.

To get you started, you'll find the ruling here.

A list of facts found by Judge Walker is here.