In August 2010, Federal District Judge Vaughn Walker ruled that the language in California’s constitution which restricts marriage to a man and a woman was in violation of the U.S. Constitution. His decision was immediately appealed to the 9th District Court of Appeals and a 3-judge panel heard arguments regarding both the merits of Walker’s decision and the standing of Prop 8 proponents to bring the appeal in the first place.
On Tuesday, February 7th, by 10 a.m. Pacific Standard Time, the 9th District panel will release its opinion on these matters and on another matter, that of whether Walker’s long-term same-sex relationship should make his opinion invalid. The decision will likely be appealed, most likely to the U.S. Supreme Court (an appeal to the full 9th District is also possible), and if the court upholds Walker’s decision, Prop 8 supporters will likely file for a stay of execution which, if granted, would prevent same-sex marriages from taking place until the stay is lifted.
Here’s a review of some of the Findings of Facts and of Walker’s Conclusions of Law, taken from our original post, here. The findings were based on evidence presented at trial. They are not statements about what the judge believes or does not believe, any more than a fact in a murder trial could be something like, “A bloody knife was found next to the victim’s body. A stab wound matching the knife was found on the victim.” Walker’s opinion was based on the facts created by the evidence presented at this specific trial by the witnesses who testified in his courtroom. The Conclusions of Law are the opinion of the judge, based on and supported by the evidence - the Findings of Fact - presented at trial. While there may have been other evidence for or against the constitutionality of same-sex marriage in California, the judge’s opinion was, of course, limited to the evidence presented at this trial.
Finding of Fact 19 (p. 60):
“Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.”
Finding of Fact 34
A definition of marriage: “Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”
The state has many purposes in licensing and fostering marriage. Some of the state’s purposes benefit the persons married while some benefit the state:
a. Facilitating governance and public order by organizing individuals into cohesive family units. …;
b. Developing a realm of liberty, intimacy and free decision-making by spouses, …;
c. Creating stable households. …;
d. Legitimating children. …;
e. Assigning individuals to care for one another and thus limiting the public’s liability to care for the
f. Facilitating property ownership.
Finding of Fact No. 44:
Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.
Finding of Fact No. 46
Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.
Finding of Fact No. 47
California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.
Finding of Fact No. 48
Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.
Finding of Fact No. 54:
The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.
Finding of Fact No. 55:
Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
Finding of Fact No. 58:
Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
Finding of Fact No. 62:
Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
Finding of Fact No. 70:
The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of
Finding of Fact No. 76:
Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.
Finding of Fact No. 77:
Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
Finding of Fact No. 79:
The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from samesex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or
From the Conclusions of Law portion:
(References to FF [number] are to Findings of Fact for the number cited.)
The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a
union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and
women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.
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. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in
order to marry. FF 21. Rather, the exclusion 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. The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an
essential part of marriage; marriage under law is a union of equals.
The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. FF 53-54. A domestic partnership is not a marriage; while 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. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. 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 samesex couples.
Proponents argue that Proposition 8 does not target gays and lesbians because its language does not refer to them. In so arguing, proponents seek to mask their own initiative. FF 57. Those who choose to marry someone of the opposite sex —— heterosexuals —— do not have their choice of marital partner
restricted by Proposition 8. Those who would choose to marry someone of the same sex —— homosexuals —— have had their right to marry eliminated by an amendment to the state constitution. Homosexual conduct and identity together define what it means to be gay or lesbian. See FF 42-43. Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian.
Tradition alone, however, cannot form a rational basis for a law. Williams v Illinois, 399 US 235, 239 (1970). The “ancient lineage” of a classification does not make it rational. Heller, 509 US at 327. Rather, the state must have an interest apart from the fact of the tradition itself. The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. See FF 26-27. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. FF 32. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.
Proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage. The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage.
The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. FF 70. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying.
Proponents argue Proposition 8 advances a state interest in encouraging the formation of stable households. Instead, the evidence shows that Proposition 8 undermines that state interest, because same-sex households have become less stable by the passage of Proposition 8. The inability to marry denies same-sex couples the benefits, including stability, attendant to marriage.
These purported interests fail as a matter of law. Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children. See In re Marriage Cases, 183 P3d at 451-452. Californians are prevented from distinguishing between same-sex partners and opposite-sex spouses in public accommodations, as California antidiscrimination law requires identical treatment for same-sex unions and opposite-sex marriages.
Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex. FF 62. To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to
enact a legislative classification.
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.” Id (citing Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992)). “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation. Lawrence, 539 US at 582 (O’Connor, J, concurring). Tradition alone cannot support legislation. See Williams, 399 US at 239; Romer, 517 US at 635;
Lawrence, 539 US at 579.
Proponents’ purported rationales are 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 Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples. See FF 78-80.
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