Judge Overturns Prop 8

The ruling in Perry v. Schwarzenegger just came down. The judge overturned California's Prop 8, the state constitutional amendment defining marriage as between a man and a woman.

It's 186 pages, so it'll take some time to unpack, but here's the conclusion:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that oppositesex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

A copy of the decision can be found here (the Court's own webpage has, predictably, crashed).

I haven't had a chance to dig into the details yet, but as I expected, Judge Walker made extensive factual findings that will insulate his decision on review.

As I noted in the run-up to the case, this isn't just an equal protection challenge, but also a due process case. The judge found for the plaintiffs on both claims. In other words, he's saying that there is a constitutional right to gay marriage and also a constitutional right for gays not to be discriminated against in a state marriage regime.

More to come.

Crap. Double Post: Ace got to this first, but I'm gonna keep adding here as I read the decision and as things further develop. Be sure to check Ace below, as he has additional thoughts on this.

One thing unmentioned so far -- last night the proponents, expecting this outcome, filed a motion to stay the injunction (PDF) before it was issued. That motion has not been ruled on yet and was not addressed by Judge Walker in the decision.

Evidence. On the argument that "marriage is for procreation and child-raising", the proponents struggled to provide evidence. And that's where things went off the rails:

Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the “central purpose of marriage, in California and everywhere else, * * * to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producingand raising the next generation.” Doc #172-1 at 21. Proponents asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. See generally Doc #172-1. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate parallel institution under its domestic partnership statutes. Doc #172-1 at 75 et seq.

At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.” Id at 23.

Despite this response, proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that “responsible procreation is really at the heart of society’s interest in regulating marriage.” Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.” Tr 3037:25-3040:4.

Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because samesex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in oppositesexsexual activity.

I went and saw a day of the trial in January and the thing the judge is getting at above kept being hammered by the plaintiffs. Proponents kept suggesting that gay marriage would be bad, but they couldn't cough up any expert or documentary evidence that this was the case. On the day I visited, proponents own expert even went so far as to agree that gay marriage would be a good thing for the children and family of gays. Oops.

Proponent's expert on marriage, David Blankenhorn (author of The Future of Marriage and founder of the Institute for American Values):

Blankenhorn testified that California stands to benefit if it were to resume issuing marriage licenses to same-sex couples. Blankenhorn noted that marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be “a victory for the worthy ideas of tolerance and inclusion.” Tr 2850:12-13. Despite the multitude of benefits identified by Blankenhorn that would flow to the state, to gays and lesbians and to American ideals were California to recognize same-sex marriage, Blankenhorn testified that the state should not recognize same-sex marriage. Blankenhorn reasoned that the benefits of same-sex marriage are not valuable enough because same-sex marriage could conceivably weaken marriage as an institution.

The plaintiffs case was then made by showing that there was no evidence for the arguments that gay marriage will weaken marriage as an institution.

posted by Gabriel Malor at 04:55 PM

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