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.
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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).
