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.