Judge Walker’s Prop 8 ruling: Evidence shows that a gender restriction on marriage is “nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life”

This is the first (of six) of Walker’s dismissals of Prop 8 supporters’ claims. The first claim was that “tradition” is enough to maintain marriage as between a man and woman. Walker states that previous court rulings indicate that an “ancient lineage of a classification” does not make a classification timelessly rational. “The state must have an interest apart from the fact of the tradition itself”; the tradition of opposite-gender marriage is rooted in a history of mandated gender roles, which are no longer legal.

#2: Same-sex marriage does not weaken the institution of marriage; no ‘lead time’ is lawfully necessary in this case to implement social change. Here Walker points to racial integration of schools in which courts recognized that schools needed time to adjust, and the courts gave them such time, but this did not speak to the lawfulness of racial integration itself. California has already performed same-sex marriages, so the state does not require any “lead time.”

#3: Same-sex parenting and opposite-sex parenting are proven to be of equal quality AND Prop 8 does not make it more likely that children would be raised by biological parents. Here Walker states, somewhat humorously, that Prop 8 isn’t even about children, it’s about marriage. In other words, Walker is carefully untying what he finds to be irrational and rhetorical knots, e.g., that marriage should be between a man and a woman because only a man and a woman can produce offspring (irrational, because the state has never required that married couples make babies). He states that if Prop 8 were really about “California’s interest in mandating sexual activity to occur within marriage, and parenting to occur within marriage” (as many Prop 8 supporters claim), the proposition does not help this one iota because it requires some sexual activity and parenting to occur outside of marriage. Walker is speaking to the fact that California allows same-sex parenting and adoption and certainly same-sex intimacy (the whole country does after Lawrence v Texas), thus he is only acknowledging those families that are already lawfully existent in California. Because we’re talking about rights that come with marriage, Prop 8 destabilizes these California families.

#4: Whether or not same-sex marriage would affect the first amendment rights of those against same-sex marriage, Prop 8 is not rationally related to this interest.

#5: Private moral and religious views seem to provide the only reason to call same-sex and opposite-sex marriage by different names, which cannot be the basis of law. Parallel institutions (marriage and domestic partnerships) have provided an undue burden on the state.

#6: “Catch-all” rationalizations against same-sex marriage are born from either a dislike of same-sex couples, or a belief that same-sex coupledoms are “lesser than” opposite-sex ones. Again, private moral views cannot form the basis of legislation. Moreover, this “lesser than” sensibility is harmful to gays and lesbians.

In sum, this ruling does seem to rest upon specifics in California, such as lawful same-sex parenting, adoption and nondiscrimination laws on the basis of sexual orientation. Walker points to reasons for federal allowance of same-sex marriage by foregrounding history, sociology and psychology on the matter, but his interpretations–and even, unfortunately, statements of fact–are less likely to hold in the US Supreme Court. Walker offers good reasons for the Supreme Court to dismiss Prop 8, though, not because of “discrimination against gays” (which would require a concrete definition of the nature of sexual orientation), but because of “sex discrimination.” This logic harks back to era of the ERA, and it will be interesting to see what appeals courts make of it.

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10 Responses

  1. j-dog says:

    I think this just illustrates that human reason and decency will always win over religious ‘ethics’ in the long run. Many people growing up presently are much more accepting than older generations, and I am surprised by how many students even here at BYU are accepting of taboo topics within the church. I think the world will be a better place in 20 years.

  2. Alan says:

    Some more notes on “sexual orientation discrimination” versus “sex discrimination.” The courts have routinely held that “sex” does not encompass “sexual orientation,” but Walker is essentially arguing that because of how gays are in relationship to one another on this particular issue, discrimination based on biological sex does come into play. From what I’ve read, this is new logic for the courts, and it will be interesting if and how it can be dismissed. I’m too tired at the moment to conceive of possible conservative spins.

  3. Badger says:

    I don’t think your point #4 is correctly stated. Walker’s point #62 on p. 89 is a finding that “Proposition 8 does not affect the first amendment rights of those opposed to marriage for same-sex couples….”

    My reactions to the decision are, first, that I’m perplexed at the weak showing from the supporters of Prop. 8. They failed to call most of their witness list, had equivocal testimony from those they did call, and deposition testimony from two of their witnesses was so harmful to their case that it was actually introduced as evidence by the opposing side. Of the two expert witnesses they did call, one had conspicuously weak credentials, and the other was not an expert in the area they needed him to cover. I wonder what the behind the scenes story is on that side of the case.

    Second, it seemed to me that one of the biggest problems the Prop. 8’s defenders encountered with the judge was that whenever they appealed to a traditional aspect of marriage (my words, not theirs) to support their position, their argument was be undermined by changes to the institution made by, and for the benefit of, heterosexuals. It’s hard to give a single example, but the cumulative effect of the elimination of multiple aspects of legal recognition for asymmetric gender roles, the introduction of no-fault divorce, and other changes made without reference to same-sex marriage was to place the Prop. 8 supporters in the position of seemingly having no problem with fundamental changes in the institution unless they were of benefit to same-sex couples. This must have been very frustrating to them.

    Finally, I think Judge Walker’s quotation from Justice Scalia’s dissent in Lawrence v. Texas is probably the best summary of the basis on which I think the case will eventually be decided: If moral disapprobation of homosexual conduct is no legitimate state interest for purposes of proscribing that conduct…what justification could
    there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?…” At least these particular Prop. 8 defenders were, in my opinion and Judge Walker’s, unable to articulate a rational explanation for Prop. 8’s purpose other than to express moral disapprobation. Is that, without any evidence of objective benefits, a legitimate purpose for legislation? Justice Scalia evidently thought so, but he was in the minority in that case. On the other hand, the makeup of the Supreme Court has changed. But, again, I am surprised at how little help the pro-Prop. 8 side in this case has provided for a judge who wants to rule their way without having to say it’s ok to pass laws for the sole purpose of harming people we don’t like.

  4. Alan says:

    Hi, thanks for clarifying point #4.

    What I gather from what you’re saying is that Walker’s logic of “those who are against same-sex marriage are so only for private moral reasons” (upon which law cannot be based) is logic that is already present within Lawrence v Texas. This is good news (assuming one supports gay marriage).

    Chino pointed out this one BYU law professor who warned the Church about precisely this. If the Church–or any other supporters of Prop 8–only offer theological arguments, they will be dismissed because this is a pluralist society. The argument that “freedom of religious speech allows the democracy of the majority to make the rule of law” is ultimately trumped by “the rule of law cannot be made from religious speech alone.”

    I also wonder why the pro-Prop 8 case was so weak, given these circumstances. A lot of it I think has to do with a conservative assumption that their non-religious rhetoric (such as “natural law” arguments against homosexuality) are impenetrable, when really they aren’t (see point #3 about procreation and marriage).

  5. Chino Blanco says:

    Because losing in court on this issue fits so neatly into their oppression narrative, I continue to think that the bigger surprise would’ve been if anti-equality forces had bothered to actually mount a serious defense. For the GOP, the LDS church, the Catholic bishops, and their coalition partners, this court loss is a strategic victory in the campaign against their real shared enemy: apathy. These folks need their voters angry and their tithe-payers fearful.

    By the way, I’ve just read that Schwarzenegger has asked the court to allow gay marriages to resume immediately. I wonder what the chances are that his request will be granted?

  6. Jen says:

    If you get a chance, read the actual decision: http://www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL – For a Federal court decision it’s surprisingly readable, not very long (they tend to run to hundreds of pages, so 139 is actually not bad) and rather entertaining, with a refreshing lack of legalese. The pro-8 crowd clearly did not come across very well at trial, and you gotta wonder from some of the judge’s comments if he let them keep talking just to see what they would say next.

    By the way, this is not getting widely reported, but the judge is a Reagan appointee with 24 years on the bench, is known for being conservative in his rulings, and is now being personally attacked as a “suspected homosexual”. Irony bites–bet the poor guy never saw that coming.

  7. Chino Blanco says:

    Further to my #5, here’s an FDL blogger explaining why she’s betting the stay will be denied.

  8. I personally wonder if they just figured this was a hostile judge (gay and libertarian-leaning) and saved resources for an appeal.

  9. Chino Blanco says:

    But do the folks who defended Prop 8 in court even have the legal standing to mount an appeal?

    Did the Legal Team in Perry Just Win For Good?

    Why Perry v. Schwarzenegger is unlikely to reach the US Supreme Court if we win

    … the governmental defendants – the Governator and the once (and future!) Governor Moonbeam – are not appealing and the Yes on 8 proponents – who were let in at the trial court as intervenors – don’t have standing to appeal.

    … the Proposition 8 Proponents (the Defendant-Intervenors) do not have what is called “Article III” beyond the trial court. Only GOVERNMENT intervenors have the ability to appeal.

  1. February 2, 2013

    […] 2010 Judge Walker ruled that excluding marriage from gays is “nothing more than an artifact of a foregone notion that men and women fulfill different roles in civ….”  That argument, that gay marriage is actually linked to questions of equality between men and […]

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