The Playful Walrus: A Thorough Look at Prop 8 Decision

I read through the entire document issued by United States District Chief Judge Vaughn R. Walker.

In a nutshell, the backers of Proposition 8 contend that men and women are different and thus mothers and fathers are different, and that the pairing of men and women is the only kind of pairing that can naturally produce children and provide them with both a mother and a father. As such, the state has an interest in licensing marriage (bride+groom) that it doesn’t have with other voluntary person relationships. The bride+groom requirement in state marriage licensing provides equal access to both sexes, regardless of sexual orientation, even if someone doesn’t want to exercise that access; it is Constitutional to treat different kinds of voluntary associations differently, and thus Prop 8 is Constitutional.

The opponents of Prop 8 (including the judge) assume that Prop 8 violates Constitutional rights, and thus is only allowable if they can be convinced that there's a really, really good reason for it.

Despite Walker's assertions, the question shouldn't have been "What is the state’s interest in denying marriage license to same-sex couples?" It should have been "What is the state's interest in licensing marriage at all?"

Walker uses a lot of hyperbole throughout, and it is clear he put the burden on the defense to conclusively convince him of things to which he simply didn't want to give serious consideration. He doesn't value motherhood or fatherhood, only (maybe) parenthood, and doesn't value masculinity or femininity.

He also appears to use slight-of-word by employing the word "marriage" in decidedly different ways in the same line of thought in order to reach his conclusions that would not otherwise follow from the premises. Marriage strictly as a religious sacrament is not identical to what is licensed as marriage by a state, marriage as a bride+groom union is not the same thing as marriage as the union of any two people, and the social aspects of marriage are not synonymous with getting a state marriage license. He assumes what he is trying to prove and chose to believe the plaintiffs assertions, including things like what they had to say about their subjective feelings, without giving the same consideration to the defense. He apparently has remarkable mind reading powers as he knows the motivation of the voters.

Through his repeated statements, it is clear that Walker is bothered that, according to what he perceives, Prop 8 says (even though it doesn't) that bride+groom couples are better than same-sex couples. The implication is that he wants to use the force of federal government to prevent anyone from having such a view – and that's the whole point of the challenge, isn't it? The fact is, they are different – demonstrably so – and bride+groom couples are better at naturally making new citizens. But Walker's ruling, while it can have legal weight, can't change certain objective realities. And how would he know that bride+groom pairings aren't better, anyway?

Can a homosexual person be a fair judge in a case like this? Sure – as much as Roy Moore could have been a fair judge in a case over whether the Ten Commandments belong in a courthouse display. But Walker was not fair.

Finally, before I get to addressing specific text, I noticed how much Walker relied on domestic partnerships and other laws meant to provide accommodations, solutions, and general kindness to homosexual people and same-sex couples as Trojan Horses. This lets everyone who wants the bride+groom requirement know that agreeing to those other concessions was a foolish thing to do. The hand extended in cooperation has been met with a rabid bite. If people in Hawaii are paying attention, they will never approve civil unions – not that marriage neutering advocates will want them if Walker's ruling becomes the law of the land. If we didn't have domestic partnerships in California or other "homosexual agenda" laws, then Walker would have had much less to say in his ruling.

Lesson learned - again! Homosexuality advocates will always use one court decision as a stepping stone. If you think a SCOTUS decision upholding Walker's ruling will be the end of it, you are naïve. The decision will be used like a sledgehammer to attack anyone that refuses to agree that there is no difference between natural-historical-inclusive-reproductive marriage and brideless or groomless unions. Choices and freedoms we have now will go away. It isn't enough to treat people equally, kindly, with "live and let live" - fascists want to control your thoughts and what you teach your children. They don't want there to be a word that distinguishes the kind of relationships that bring together both sexes and naturally procreate.

[It's a long haul after the jump.]

Plaintiffs seek to marry their partners and have been denied marriage licenses by their respective county authorities on the basis of Proposition 8.

This is like saying that someone seeks to flap his arms and fly, and that the FAA is what is preventing it, because he gets airsickness when he flies in the approved airliners.

No party contended, and no evidence at trial suggested, that the county authorities had any ground to deny marriage licenses to plaintiffs other than Proposition 8.

Well, that’s pretty much where we were left after previous erroneous rulings.

Having considered the trial evidence and the arguments of counsel, the court pursuant to FRCP 52(a) finds that Proposition 8 is unconstitutional and that its enforcement must be enjoined.

Yes, it is very obvious he considered the arguments of the plaintiffs' counsel. He might as well have copied and pasted their arguments to be his entire ruling. Funny that the California Supreme Court, which found the "right" for same-sex couples to marry in the first place, didn’t find Proposition 8 unconstitutional. Are they all just morons?

Moving along to the PLAINTIFFS’ CASE AGAINST PROPOSITION 8...

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” US Const Amend XIV, § 1.

That due process of law was provided by placing the proposed constitutional amendment on the ballot and the voters approving it.

Plaintiffs contend that the freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:

1. It prevents each plaintiff from marrying the person of his or her choice;

What if the person’s choice does not want to enter into the marriage? What if the person is already married? What if someone chooses to marry more than one person at a time? What if a brother and sister want to marry? There not need be any incestuous sex – maybe they just want their relationship to have that special marital recognition? Also, brothers and sisters can engage in the same sorts of behaviors same-sex couples do and never produce children. Where is the compelling reason to deny two brothers a marriage license? I challenge marriage neutering advocates to answer instead of simply scoffing at this – answer without using any argument that has been disqualified in this ruling.

Clearly, there is no right to marry the person of one's choice. There is the freedom to marry one eligible person who consents.

2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice;

It's warranted when it comes to state marriage licenses. If this argument stands, then a state can't have any restrictions on gun ownership, per the Second and Fourteenth Amendment.

3. California’s provision of a domestic partnership - a status giving same-sex couples the rights and responsibilities of marriage without providing marriage - does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

How is this possible? It is state law that domestic partnerships provide equal protection. The state doesn't provide marriage – marriage existed long before the State of California. It licenses marriage. If the state provides marriage, then it needs to find all people who want to get married a spouse. Maybe that's next?

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1. According to plaintiffs,

Proposition 8 violates the Equal Protection Clause because it:

1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and,

This denies that any heterosexual person would want to marry someone of the same sex. Can a court know the wants of every heterosexual person? The ruling states that whether or not two people have a marriage license makes a huge social difference - so why is it out of the question that two heterosexual people would ever want the social benefits of having a marriage together? Only a bigot would make the assumption. And there are many, many things in life and law where someone has access to something they want and someone else doesn't have access to something they want.

2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

Blatantly false. Many gay men and lesbians have married.

Plaintiffs argue that Proposition 8 should be subjected to heightened scrutiny under the Equal Protection Clause because gays and lesbians constitute a suspect class.

So do Arab Muslim and African Muslim men - a religious AND racial minority. By this reasoning, we have to grant that everyone can have four licensed marriages at the same time.

Plaintiffs further contend that Proposition 8 is irrational because it singles out gays and lesbians for unequal treatment, as they and they alone may not marry the person of their choice.

Blatantly false. Show me that wording in Proposition 8.

Walker puts forth some strawmen arguments under PROPONENTS’ DEFENSE OF PROPOSITION 8, meaning he either didn't understand or is deliberately misrepresenting them...

The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.

I must have missed those.

Proposition 8 was presented to the voters thus appear to be the following:

1. Denial of marriage to same-sex couples preserves marriage;

2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples;

Strawman.

3. Denial of marriage to same-sex couples protects children;

4. The ideal child-rearing environment requires one male parent and one female parent;

5. Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; and

I don't remember seeing that.

6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages

Strawman. Changing marriage means that it no longer distinguishes bride+groom unions and can no longer, as an institution, be about children

A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.

I and others have made secular cases for the bride+groom requirement. But Walker tries to have his (beef)cake and eat it too, because later on he writes an awful lot about what various religious sources have to say on this matter.

Instead, in this litigation, proponents asserted that Proposition 8:

1. Maintains California’s definition of marriage as excluding same-sex couples;

It maintains the bride+groom requirement. This also excludes bigamists, but Walker doesn't note that. Is he a bigot?

While proponents vigorously defended the constitutionality of Proposition 8, they did so based on legal conclusions and cross-examinations of some of plaintiffs’ witnesses, eschewing all but a rather limited factual presentation.

Even though the burden was on the plaintiffs, perhaps it was a mistake to assume that Walker would already retain what is readily apparent to most about the nature of the sexes, sex, parenting, etc.

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.

Because it says that marriage is not about procreation.

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.

Sorry, we shouldn’t overturn constitutional amendments on the basis that someone doesn't convince someone else that doing so would be harmful. Again, the burden is on those who want change. You can't even prove that dropping laws against murder would be harmful. Just because the law isn't there doesn’t make someone murder. How can the future be proven?

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.

Development of a social norm? No, that used to be a norm and an assumption that informed many laws. He gets the argument wrong, though. The argument is that because sexual intercourse is naturally procreative, the state has an interest in the bride+groom pairing that it doesn't have with other relationships. Under the Constitution, especially the 9th and 10th Amendments, federal courts should only intervene when there is a compelling reason; it isn't the other way around, in that federal courts should intervene unless it can be shown that they shouldn't.

Under FINDINGS OF FACT, you will see that Walker relies on denying that men and women are generally different or suited to different roles, no-fault divorce, out-of-wedlock births, and other cultural and legal changes over the years that conservatives have resisted.

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.

So homosexual people are different, but then they aren't. Which is it?

48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.

Except for the core characteristic – the uniting the sexes.

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology.

Yes, and we allow people to bicycle on the roads, too, but that doesn't mean a bicycle is a car and that someone who only rides a bicycle is entitled to a driver's license. People get jobs in which it is ideal if they had a college degree, but that doesn't necessitate that we award them a UC degree.

50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.

Some of the greatest benefits of marriage come from the fact that it joins the sexes. Milk provides calcium, yet water bottlers aren't allowed to call their product milk.

52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.

Friendships lack the social meaning associated with marriage, too. So what? Cal State degrees aren’t as prestigious as UC degrees. So what?

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.

How does he know this? If marriage is not about children, why should a man who knocks up his girlfriend feel any obligation to marry her?

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;

The relationships are demonstrably and significantly different.

gays and lesbians are not as good as heterosexuals;

No it does not. We can't legislate based on what some people claim about how a law makes them feel.

and gay and lesbian relationships do not deserve the full recognition of society.

What makes a personal relationship deserving of society's recognition?

64. Proposition 8 has had a negative fiscal impact on California and local governments.

This is absurd. There has never been anything stopping anyone from having ceremonies and parties and buying gifts.

68. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships.

People are allowed to have their opinions, aren't they? Or are you setting the stage to take away that liberty?

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 developmental psychology.

This skirts around the issue (or, if you are a female, it pants around the issue). But he gets to it…

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.

Can people turn out okay being raised without their mother or without their father? Of course they can. But generally, all other things being equal, it is best for a child to have a mother and father who are married to each other, because men and women are different. Isn't diversity important? If men and women weren't different, then "homosexual" could hardly be a class, now could it?

74. Gays and lesbians have been victims of a long history of discrimination.

I find it laughably ironic that this is being written by a gay man who is a federal judge who is exercising his power to overturn a state constitutional amendment supported by millions of people. And notice that homosexual people had no fear of testifying, demonstrating, or publicly celebrating. Also, how much of the mainstream news coverage even mentioned his sexual orientation until after he issued his ruling?

75. Public and private discrimination against gays and lesbians occurs in California and in the United States.

Again... so are you going to target private discrimination next?

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

Then aren't we obligated to do something about that? Is that a policeman's knock I hear on the pastor's door?

On to CONCLUSIONS OF LAW...

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.” Glucksberg, 521 US at 710. Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right.

Clearly, this is a new right. He just assumes that the inclusion of both sexes is not a core element of marriage, or that previous court decisions about the fundamental right to marry were not exclusively referring to uniting the sexes. You can't say that the right to marry is rooted in legal traditions while ignoring exactly what made marriage marriage.

Marriage has retained certain characteristics throughout the history of the United States.

Of course, he leaves out the most important one.

Never has the state inquired into procreative capacity or intent before issuing a marriage license;

Of course it didn't. But we know that without a man or without a woman, there won't be natural procreation.

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.

No kidding. But the fact remains that women are still the ones with wombs.

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.

That is also demonstrably false.

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.

"Gender restrictions" were never part of a historical core of marriage? Now you are flat out lying, your honor.

Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents.

Oh really? So if two lesbians get a marriage license, and one has an affair with a man, and gets pregnant, you're going to assign paternity to the other woman and force her to pay child support for 18+ years after she divorces her unfaithful partner?

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.

He's being very tricky in his wording. Since procreation is not an obligation under California law, he excludes that in an effort to claim the couples are identical before the law. But procreation is the greatest reason for the state to be involved in the first place.

Plaintiffs’ unions encompass the historical purpose and form of marriage.

Repeating it doesn’t make it true. He simply came up with a new definition of marriage that excluded the aspect of uniting the sexes, and then - surprise! Same-sex unions meet it.

As the case of Perry and the other plaintiffs illustrates, sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation.

But someone can have a homosexual orientation without choosing a partner, correct? Either homosexual behavior is essential to orientation identity or it isn’t. Pick one.

Homosexual conduct and identity together define what it means to be gay or lesbian.

Which conduct are we talking about, exactly? And by this reasoning, celibate people can't be classified by sexual orientation.

Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating.

Do I need to draw you a picture about what it takes to make a baby?

All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.

Isn't that exactly what you did through this entire document?

The tradition of restricting marriage to opposite-sex couples does not further any state interest

Again, this is backwards. The state has less interest in personal relationships that will not create new citizens that are subjected to the relationship without consent.

Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality.

No they didn't. They denied there was conclusive evidence that that state has such an interest. That isn't the same thing as proving conclusively that such an interest doesn't exist.

He says it again a different way...

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.

And again...

Even if California had an interest in preferring opposite-sex parents to same-sex parents —— and the evidence plainly shows that California does not —— Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.

Get real. You know full well this will make it impossible to prefer both-sexes couples in placing adoptees.

To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.

No, those are choices by adults. Prop 8 doesn't force anyone to make babies out of wedlock, or get it on. However, I think by "sexual activity" they are mainly referring to sexual intercourse, anyway.

Here, proponents assume a premise that the evidence thoroughly rebutted: rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same.

We'll see it if really shakes down that way, should this decision stand.

The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.

False.

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.

Certainly they're better at baby making.

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.

Good at what? Certainly they aren't as good at making babies, or providing them with one parent from both sexes. Prop 8 was premised on the belief that the couples are different, which is demonstrable.

California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.”

So, then, since we can’t bring morality into any of this, you wouldn't claim your decision is right, good, or moral, I take it? Or tell us we should take it seriously?

The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual.

Is this really about Walker and his parents? Most parents want their children to be like them – to find someone of the opposite sex and make them grandparents. That's life.

On to the CONCLUSION...

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.

It doesn't deny individuals of either sex or any sexual orientation 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.

Nothing more?

[Typing errors cleaned up. I think.]