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Proposition 8 ruling excerpts from U.S. District Chief Judge Vaughn Walker [updated]

August 4, 2010 |  2:32 pm

Excerpts from the federal court ruling striking down Proposition 8, the voter-approved initiative that banned gay marriage in California.

Related story: Judge strikes down Prop. 8, but temporary stay prevents resumption of gay marriage

Judge Vaughn R. Walker's conclusion, page 135:

"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 opposite sex 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.

On the overturning of Proposition 8, page 136:

"Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same sex couples and has not suffered any demonstrated harm as a result ...

"Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently ... prohibiting the official defendants [state of California] from applying or enforcing Proposition 8..."

On why voters are not able to ban gay marriage in California, page 24: [Updated, 2:51 p.m.]

"Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives."

On dismissing the argument by witness David Blankenhorn that children raised by their married, biological parents "do better on average" than children raised by single parents, unmarried mothers, step families, and cohabiting parents, pages 44-45: [Updated, 3:06 p.m.]

"... The evidence does not, and does not claim to, compare biological to non-biological parents. Blankenhorn did not in his testimony consider any study comparing children raised by their married biological parents to children raised by their married adoptive
parents. ...

"The studies do not ... support a conclusion that the biological connection between a parent and his or her child is a significant variable for child outcomes...

"Blankenhorn’s reliance on biology is unsupported by evidence, and the court therefore rejects his conclusion that a biological link between parents and children influences children’s outcomes."

On the lack of persuasiveness of Blankenhorn, a witness called to testify by opponents of gay marriage, pages 48-49 [updated, 3:19 p.m.]

"...Much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents.

"Blankenhorn also testified he wrote and agrees with the statement  'I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted samesex marriage than we were the day before.'”

"...Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and
entitled to essentially no weight."

On the judge's findings on  why the state has an interest in fostering marriage, pages 67-71: [updated 3:52 p.m.]

34. 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. ...

35. 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. Legitimizing children ...

e. Assigning individuals to care for one another and thus limiting the public's liability to care for the vulnerable ...

f. Facilitating property ownership...

36. States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs. ...

37. Marriage creates economic support obligations between consenting adults and for their dependents. ...

38. Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals....

39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses....

40. The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity....

41 . The tangible and intangible benefits of marriage flow to a married couple’s children....

On the judge's findings that "individuals do not generally choose their sexual orientation" and that "California has no interest in asking gays and lesbians to change their sexual orientation," pages 71-84: [updated 3:52 p.m.]

42. Same-sex love and intimacy are well-documented in human history....

43. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives...

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....

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals....

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.

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....

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. ...

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children. ...

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

51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals. ...

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...

53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government....

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....

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....

56. The children of same-sex couples benefit when their parents can marry....

On the judge's view that Proposition 8 enacted a private moral view while not advancing a "legitimate government interest," pages 85-94, [updated 4:03 p.m.]

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....

61. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage....

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. ...

66. Proposition 8 increases costs and decreases wealth for samesex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs....

67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are
not good parents.
..

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....

On the judge's view that a parent's sexual orientation "does not determine whether that individual can be a good parent," page 95, [updated 4:05 p.m.]

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....

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....

On the judge's view that the campaign in favor of Proposition 8 relied on false stereotypes of gays and lesbians, pages 98-108: [Updated 4:11 p.m.]

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. ...

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

78. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians....

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 lesbian child.

80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.

On why the judge ruled  that Proposition 8 violates the U.S. Constitution, pages 109-114: [updated 4:31 p.m.]

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” ... Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. ... When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny.

The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. ...

The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.

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.” ... 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.

Marriage has retained certain characteristics throughout the history of the United States. ... Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.... The spouses must consent to support each other and any dependents.... The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. ... The state respects an individual’s choice to build a family with another and protects the
relationship because it is so central a part of an individual’s life. ...

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. .... The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship....

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. .... 

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. ... 

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. ... Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. ... 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 at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, ... social disapproval of same-sex relationships, and the reality that ... the vast majority of people are heterosexual and have had no reason to challenge the restriction ...

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.

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.

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.

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.

Gender no longer forms an essential part of marriage; marriage under law is a union of equals. .... 

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of
marriage in the United States. Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage .... Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” ...  Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different
from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

On why the judge concluded that domestic partnerships do not satisfy California's obligation to allow gay couples to wed, pages 114-116: [updated 4:40 p.m.]

The evidence shows that domestic partnerships were created as an alternative to marriage that distinguish same-sex from opposite-sex couples....

California has created two separate and parallel institutions to provide couples with essentially the same rights and obligations. ... 

The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. ...

Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples....

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages.... A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights andresponsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. ...

The record reflects that marriage is a culturally superior status compared to a domestic
partnership. .... 

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.

On the judge's view that Proposition 8 "is unconstitutional because it denies plaintiffs a fundamental right without a legitimate ... reason," pages 116-117: [updated 4:45 p.m.]

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. ...

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” ...

Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest....

Because the government defendants declined to advance such arguments, proponents seized the role of asserting the existence of a compelling California interest in Proposition 8.

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by
plaintiffs’ due process claim.

The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny.

Moreover, proponents do not assert that the availability of domestic partnerships
satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” .... Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

On the judge's view on why Proposition 8 violates the equal protection clause of the 14th amendment to the U.S. Constitution, pages 117-126: [updated, 4:56 p.m.]

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” ... Equal protection is “a pledge of the protection of equal laws.”

... Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner. ... Yet, to survive rational basis review, a law must do more than disadvantage or otherwise harm a particular group. ...

... The evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. ...

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. ...

The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender....

Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest.

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. ... Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. ...

The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. ... 

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. .... 

On the judge's view that "a private moral view that same-sex couples are inferior to opposite-sex couples is not proper basis for legislation," pages 132-135: [updated 5:02 p.m.]

... 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....

Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is
not a proper basis on which to legislate....

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

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. ...

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. ...

The campaign relied heavily on negative stereotypes about gays and lesbians and
focused on protecting children from inchoate threats vaguely associated with gays and lesbians. ...

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. ...

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

-- Rong-Gong Lin II

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