Wednesday, August 4, 2010

PROP 8 UNCONSTITUTIONAL (updated, with quotes)

Judge Walker's decision find Prop8 unconstitutional on both equal protection and due process grounds. Huge victory for us (the plaintiffs) and loss for them (the proponents/defendants)

Some choice quotes from the decision:
Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.
The judge took apart both witnesses for the ProProp8 side, and also scolded them for withdrawing their other witnesses even after the trial was made secret. He also noted that the other witnesses for the defense basically agreed with the plaintiffs, so it's pretty clear they were withdrawn not over fears of personal safety but because they couldn't make the case.
The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.
The Judge also noted that the Prop-Prop8 campaign really played on fears and animus. As for the voters,
An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. 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.
The judge also noted the slippery arguments in court were different than those made to the voters:
Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court.
And as for religious freedom,
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.
Okay, on to the big issues: Equal protection, Due Process, and whether GLBT people are subject to "strict scrutiny" as an historically disadvantaged class.
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. ... Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.
The judge takes apart the rational basis argument, and then makes this shot:
Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.
As for the endless children argument,
Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. FF 57. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. FF 49.
And as for the motivation:
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. See FF 48, 76-80. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.
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.....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.
So, it fails on both due process and equal protection, it's not even rational, but if it were, GLBT still deserve strict scrutiny.
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
Judge Walker hits it out of the park.

What next? Nothing changes: the decision has been stayed, pending motions for appeal. The right wing is exploding over "activist judges" as this Bush-appointed conservative libertarian is clearly a disguised liberal activist.

One chip at a time....

Expert commentary at Poliglot, and Prop8trialTracker. Opinion at the NY Times , LA Times and San Diego Union-Trib.

Reminder: more commentary at Gay Married Californian.


James said...

Te Deum laudamus!!!!!

Anonymous said...

Thank you, thank you, thank´s part of the ¨no more¨ lies and nonsense campaign...purging the dishonesty of it all! Leonardo Ricardo

it's margaret said...

OMG!!!!!! OMG!!!!!!

annski said...

Just a lurker here, but when I heard this news on my car radio, my thoughts turned to IT and her BP. Praise be and let's keep working!

IT said...

Thanks, annski.

For the newcomers here, we're coming up on our 2nd wedding anniversary this fall, BP and I..... and are starting the process to have our marriage blessed in church. We long for all our GLBT brothers and sisters to have the opportunity to experience the joy of marriage.

Karen said...


Have been thinking about you and BP and other friends who were married in CA all day. This is indeed good. The work is not over, but this is good. I look forward to hearing that your marriage has been blessed in church.

Elizabeth Kaeton said...


If you see someone dancing in front of your house, that would be me.

Paul said...

Interesting analysis about the Supreme Court prospects in the New York Times.

JCF said...

BP and I..... and are starting the process to have our marriage blessed in church

Awww. They'll be dancing in the aisles of SD's (St Paul's, IIRC?) Cathedral, huh? :-)

I particularly love this:

Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples

The homophobic "notion" spewed by bigoted @sshats. Period! >:-(

3 more bits:

1) Rachel Maddow "Download the decision: it's better than any novel you could be reading"

Legal analysis (forget by who. Dahlia Lithwick?)

2) The decision is filled w/ many findings-of-fact---which are, traditionally, much greater deferred to, on appeal, than mere legal decisions.

3) The decision "reads like a love-letter to Anthony Kennedy": frequently quoting him from Romer v Evans and Lawrence v Texas (overturning Colorado's antigay discriminatory law, and Texas's {et al} sodomy law, respectively). Nuthin' like buttering up the Supreme Court's swing vote! ;-D

Now, if we can just get the damn STAY lifted . . . and let the marrying begin again!!! Woo hoo! :-D

[wv, "rumses": reminds me of Ramses. "Tell Ol Pharaoh to Let My People Go" . . . Get Hitched!!! ;-)]

motheramelia said...


Ann said...

IT - we want to know more on the blessing!! Can we all be your presenters?

Counterlight said...

Thanks for this excellent digest and summation of the judge's decision. As I recall, the local gay community in San Francisco protested his appointment.
The world is full of surprises. I agree, he hit this one out of the ballpark. The Prop 8 supporters are going to have a tough time in the appellate court.
The Supreme Court is anyone's guess. That will depend on one or two Justices swinging the vote.

James said...

It was a wonderful day, indeed, and it certainly brightened my very depressing birthday.

We must all start our perpetual novenas now.

Jim Pratt said...


If this holds up on appeal, then every other state anti-SSM law is gone. In other words, this affects not only California, but all 50 states. If I were on the legal team of the losing side, I'd seriously consider licking my wounds, not appealing, and try to come up with a better strategy for the next trial, rather than risk a decision by the Supremes on this record (and trying to convince my client not to fire me).

Kudos to the plaintiffs' legal team, as they did an excellent job putting together such a strong case. I consider myself conservative, especially in legal/constitutional matters, but I see nothing "activist" about this decision.

Paul (A.) said...

It's really a run-of-the-mill equal-protection analysis, here by a competent judge on a good record.

I disagree with Jim Pratt on a couple of points.

First of all, Judge Walker's decision affects nothing outside California, although it could certainly serve as persuasive (although not binding) precedent for cases brought in other states or federally over similar laws.

Secondly, I don't see that opponents of same-sex marriage would do any better in creating a factual record on any other trial. I wouldn't be surprised if many subsequent cases were to be decided on a summary judgment motion (one side's lawyers move for judgment in their favor without a trial claiming that the law is in their favor and there are no disputed material facts that would require a trial; in opposing such a motion, the other side has to make a sufficient showing that there are indeed facts that justify their position). Calling the Paul Camerons and George Rekerses of the world won't make it any more.

dr.primrose said...

This is obviously a very good decision. It affirms the judge's wisdom to have a trial so as to develop the factual bases for each side's position. In many ways, Judge Walker's factual findings are the most important part of the decision.

Usually, the factual findings are binding on the appellate courts. Whether that will be true here is not clear. The proponents' presentation at trial was terrible, if not downright incompetent. I would have thought they would have done a better job in coming up with some experts that were both more qualified and more supportive of the proponents' positions. Particularly at the Supreme Court level, the justices have more leeway to independently go out and find expert writings that support their position. I would expect the "conservative" justices to do precisely that.

There are a couple of ways that the appellate courts could uphold the result here but narrow the decision so that it applies only or largely to California.

First, Prop. 8 is the only situation where a voters' initiative removed an already legally recognized fundamental right from a "suspect class." That seems highly problematic under the federal constitution. But a decision on that basis would be limited only to California.

Second, in California, the fight is almost entirely about the name of the relationship for gay and lesbian couples. The California domestic partnership statute gives domestic partners all the rights of married spouses. There are some limitations due to federal tax laws and some other federal laws. There's also a difference about how couples get the piece of paper from the state that recognizes the relationship. That's one of the things that bothered the California Supreme Court -- it's truly and "separate but equal" situation, which is never in fact "equal." A decision finding that separate but equal doesn't fly constitutionally would apply to California and a few other states that have similar kinds of domestic partner or civil union relationships for gay and lesbisn people. But it wouldn't apply to states that give gay and lesbian relationships little or no legal recognition.

My fervent hope is that Prop. 8 gets repealed before this case hits the Supreme Court so that it becomes moot. I'm very concerned that a 5-4 majority the Supreme Court will overturn it, regardless of the excellent factual findings that Judge Walker made.

Elizabeth said...

I'm traveling and so couldn't get on my computer until now. When I heard the decision, I first thought of IT and BP and the friends here. What a great joy! All during the trial, I was very impressed with the Judge's meticulous approach. He encouraged a complete discussion of the issue. It sounds like his decision is also that way. Lets hope it stands as a good precedence. Kegan was confirmed today.

David |Dah • veed| said...

Can we celebrate as well?

Mexico court upholds gay marriage law
Thu, Aug 5 2010
MEXICO CITY (Reuters) - Mexico's supreme court on Thursday upheld a landmark law that allows gay marriage in the capital city, bucking a challenge raised by the conservative government of President Felipe Calderon.
This year, Mexico City became the first capital in mainly Catholic Latin America to pass a law allowing gay couples the same marriage and adoption rights as heterosexuals.
But Calderon's government and his right-wing National Action Party, or PAN, argued the law was unconstitutional on grounds it would be destructive to families. The powerful Catholic hierarchy in Mexico calls gay marriage immoral.
While the supreme court decided gay marriage was constitutional, it will review the adoption clause on Monday.
"Those of us who are in favor of this (law) are in favor of diversity and tolerance," Supreme Court Justice Arturo Zaldivar said during the court's deliberations.
"Our constitution does not establish a concept of marriage," he said.
Since the law was passed, more than 300 same-sex couples have tied the knot, the majority of them men.
Activists see the law as part of a sea change in attitudes on homosexuality in much of traditionally macho Latin America.
Argentina this year passed a law allowing gay marriage nationwide, the first such measure in the region. Neighboring Uruguay allows same-sex couples to adopt under civil unions, but not to marry.
Mexico City's bill was pushed through by leftist Mayor Marcelo Ebrard, who has backed other liberal measures like the legalization of abortion, which remains illegal in most cases across the rest of the country.
With some 20 million residents, the Mexico City metropolitan area is one of the world's largest cities.
(Reporting by Miguel Angel Guitierrez; writing by Mica Rosenberg; editing by Missy Ryan and Jerry Norton)

IT said...

yippee, Dahveed!

Göran Koch-Swahne said...

So happy for you, IT and BP! And all others, of course ;=)

I think it will take some time before the importance of this really sinks in. And I wonder if it will even reach the Supreme Court.

it's margaret said...

Well, even while I celebrate, --I have heard that the American Family Foundation (I think that's it), an architect of Prop 8, has decided to appeal to congress to impeach Judge Walker... could this really be true?! hate to be the party pooper....

David |Dah • veed| said...

I am not Statesonian Margaret, but I doubt that they have a snowballs chance in Hell of succeeding!

Impeach him for what, doing his job? It is easy to Google his history. He was originally appointed to the bench by Ronald Reagan and it was nixed because he was considered too conservative. Bush, President #41, nominated him and it was approved and the GLBT community in CA was up in arms. He has no history of being an "activist" judge. He is the chief judge of the circuit.

Not two snowballs chances.

Elizabeth Kaeton said...

Woo Hoo to God in the Highest.

JCF said...

Bush, President #41, nominated him and it was approved and the GLBT community in CA was up in arms.

Was Walker out (as in "out of the closet") then? O_o

IT said...

No, JCF. I don't think he was in or out, just discrete, and it's only recently it's come "out" as it were. His sexuality shouldn't matter, any more than you would ask the Christians on the Court to recuse themselves from the CLS v Martinez case. It's crazy.

The judge in the MA case was a Nixon appointee. Judge Ronald George (Chief justice of the Supreme Court of CA) was a Pete Wilson appointee. The REpublicans, it turns out, hae done a bang-up job nominating judges who find for GLBT rights.

Jim Pratt said...

Right now, as you say, the decision applies only in California, though other courts may follow its reasoning if the judge finds it persuasive. But if it goes up to the Supreme Court, and the SC upholds it, then all federal district courts have to follow its reasoning, and since it is based on the US Constitution, it has nationwide application.

As to the bigots trying elsewhere to assemble a better record, like you I doubt they could do it, but given the way Judge Walker slammed their experts and their whole case, they certainly can't do any worse.

dr.primrose said...

Good editorial in today's L.A. Times - Homosexuality and the law. It begins:


In striking down Proposition 8, U.S. District Chief Judge Vaughn R. Walker penned an opinion that was heavy on findings of fact. In eloquent detail, he described the evidence presented at trial, and the utter lack of evidence for any of the arguments used to deny marriage to gay and lesbian couples. Though higher courts may overturn Walker's conclusions, the facts laid out should remain an important part of any future legal considerations.

But tucked away in the opinion is something else that could carry weight not only in this lawsuit, as it moves through the courts, but in other same-sex marriage cases and debates about the rights of gays and lesbians. It is a brief statement addressing whether homosexuals should be regarded as the kind of minority group that deserves special protection by the courts under the 14th Amendment of the Constitution.

"The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation," Walker wrote. "All classifications based on sexual orientation appear suspect."

What the legalese refers to is that laws affecting certain minority groups are held to a higher standard by the courts — a standard known as strict scrutiny — when they are challenged as discriminatory.

The standard applies to laws affecting minority groups that fall within "suspect classifications," but the courts have not been entirely clear about the criteria for receiving this special protection. They have said, among other things, that such groups must have been historically targeted by discrimination; must be a "discrete" and "insular" community; must be a minority because of an unchangeable characteristic; and must have lacked the power to protect themselves using the political process. Groups don't necessarily have to meet all four, and other factors could be considered. Among the classifications that have qualified for this protection are race and national origin. Could the same apply to sexual orientation?

We think so. There is no doubt that gays and lesbians have historically been singled out for discrimination, to the point that until relatively recently, most were too afraid of the repercussions to reveal information about their sexuality. The vitriol hurled their way during the marriage debate only adds to the evidence. As a result, they have formed a community that is, in many ways, insular and that certainly is seen as a separate, distinctive group.

One of the more divisive arguments about homosexuality is whether it is a mere choice, or inborn. But the American Psychological Assn. states clearly that although the factors determining sexual orientation are complicated, it is not a choice and cannot be changed.

dr.primrose said...

The L.A. Times editorial concludes:

As to whether the homosexual community has been a relatively powerless group in the political arena, the picture is more mixed. It has not lacked a certain economic clout, but homosexuals have also suffered workplace discrimination. There are few openly gay or lesbian politicians.

Walker did not depend on strict scrutiny to strike down Proposition 8; he said that wasn't necessary because the measure is based on so many unfounded claims that there was not even a rational basis for it (which is the lower standard for reviewing a law). Higher courts might or might not bring in the issue of strict scrutiny; if they do, and homosexuality is found to be a suspect classification, that would make it extremely difficult for any restrictions on same-sex marriage to pass legal muster. To meet the strict scrutiny standard, a law must be justified by a "compelling governmental interest" and must be "narrowly tailored" to achieve that interest, among other things.

By our count, the long history of vilification, housing and employment discrimination, and outright physical attacks against gay and lesbian people calls for recognition that this group deserves the utmost protection of the courts.