Friday, August 06, 2010

Proposition 8 overturned

By now I assume that you've already heard that a Federal judge ruled that Proposition 8, the California ballot measure outlawing same-sex marriage, is unconstitutional. I think this is good news, of course, although there are several appeals still to come. (I'm not a lawyer, but my understanding is that it will probably go to a three-judge panel of the 9th Circuit Court of Appeals, then to a larger panel or full panel of the same court, then to the US Supreme Court.)

Here's the conclusion first:

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.

There are a couple of striking things about the case. The first is how poorly the pro - Prop 8 side argued it. The anti - gay marriage arguments are weak and easily rebutted to start with, but their presentation of their side, such as it is, was pathetic. They ended up with only two "expert" witnesses in the trial, neither of whom was a qualified expert and both of whom left the judge singularly unimpressed. He said of one:

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. (p. 49)

Of the other, he said:

...the court finds that Miller's opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence. (p. 54)

As for their deposition witnesses, two of them were so damaging to the case that their testimony was entered into evidence by the other side! (p.36)

But was it possible for them to have done better? That's not entirely clear to me. Their case is simply very weak. How much would better witnesses have helped it? Not enough to win the case, surely.

The other striking thing was the judge's "findings of fact." There were 80 of these, and they included the following (pp. 74 - 109):

46. Individuals do not generally choose their 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. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.

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

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.

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.

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.

67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment.

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

After the findings of fact, the judge's decision moves on to "findings of law." The most important ones are that "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" and thus violates the Equal Protection Clause of the 14th Amendment.

This was actually what caused me to change my opinion on gay rights a few years ago: I couldn't find any rational reason for opposing them. (And yes, I looked.)

The other important finding was that "My religion says it's bad" and "Ick!" are not sound bases for legislation.

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. ... 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. (p. 132)

Follow me on Twitter
Friend me on Facebook

No comments:

Post a Comment

What do you think?