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.