This arti­cle also appears here.

This is an analy­sis of the court­room pro­ceed­ings in Perry v. Schwarzeneg­ger and the August 4, 2010 deci­sion by Judge Vaughn Walker uphold­ing the right of same-sex cou­ples to marry and not an analy­sis of the moral rea­son­ing behind either position.


In short, Judge Walker ruled based on the evi­dence pre­sented, as any trial judge should, and regard­less of his own per­sonal sex­ual ori­en­ta­tion or biases, Prop 8 sup­port­ers sim­ply did not make a viable case for them­selves. Slo­ga­neer­ing may have won the elec­tion but did not win a trial where real evi­dence was required. Prop 8 sup­port­ers may later look at the rul­ing and claim it was wrongly decided but as this essay points out, the real­ity is that they did a poor job pre­sent­ing their evi­dence and only put two wit­nesses on the stand, both of whom had pre­vi­ously writ­ten state­ments that con­tra­dicted their tes­ti­mony in favor of Prop 8. When both of these wit­nesses were neu­tral­ized, Prop 8 advo­cates had noth­ing left with which to prove their case and any effort by any judge to add in facts to uphold Prop 8 would have been the very def­i­n­i­tion of judi­cial activism.

How Prop 8 Became Law

In May 2008, the Cal­i­for­nia Supreme Court held that same-sex mar­riage was per­mis­si­ble under the state con­sti­tu­tion and thou­sands of same-sex cou­ples were mar­ried. In Novem­ber 2008, by a vote of 52% to 48% Cal­i­for­nia vot­ers passed Propo­si­tion 8 ( “Prop 8″ ) a con­sti­tu­tional amend­ment out­law­ing same-sex marriage.

This con­sti­tu­tional amend­ment was argued before the Cal­i­for­nia Supreme Court. At oral argu­ment in March 2009, the court asked Ken Starr, lead coun­sel in favor of Prop 8, whether there was any lim­i­ta­tion to what the peo­ple could do.

Speak­ing of the state con­sti­tu­tion, Starr replied, “The right of the peo­ple is inalien­able to change their con­sti­tu­tion through the amend­ment process. The peo­ple are sov­er­eign and they can do very unwise things, and things that tug at the equal­ity principle.”

Despite the vast impli­ca­tions of Starr’s state­ment, the court found itself pow­er­less to over­turn Prop 8.

The Ques­tion Before the Court

When David Boies and Theodore Olson brought suit against Prop 8 in Fed­eral Court alleg­ing that the equal­ity prin­ci­ple of the Fed­eral Con­sti­tu­tion was vio­lated when the peo­ple of Cal­i­for­nia took away the exist­ing right to marry, the argu­ment focused on a sim­ple ques­tion, “Is there a com­pelling state rea­son, or even a ratio­nal basis, for Cal­i­for­nia to pro­hibit same-sex marriage?”

Dur­ing the run-up to the Novem­ber 2008, Prop 8 sup­port­ers were free to say any­thing to get votes. They took full advan­tage of this by por­tray­ing a parade of hor­rors that same-sex mar­riage would bring and played to gut-level anti-homosexual feel­ings. They argued that churches would be forced to per­form gay mar­riages. They argued that it would lead to increases in child molesta­tion. They argued that the Bible said homo­sex­u­al­ity was wrong and that the state law should mir­ror the Bible.

But in Fed­eral court, Prop 8 sup­port­ers needed to present legal, sec­u­lar empir­i­cal evi­dence to sup­port the idea that same-sex mar­riage was such a threat that the gov­ern­ment was com­pelled to put a stop to it. This argu­ment was made more dif­fi­cult by the fact that a hand­ful of states already approved same-sex marriage.

In this con­text, per­sonal or reli­gious con­vic­tions and moral argu­ments needed to be backed up with objec­tive facts. Unlike the Cal­i­for­nia Supreme Court, Judge Walker was not beholden to the sim­ple fact that the Cal­i­for­nia con­sti­tu­tion had been amended. He was charged with exam­in­ing the evi­dence for and against Prop 8 in light of the U.S. Constitution.

The Evi­dence Presented

As in any trial, the judge would have to make a deci­sion based on the evi­dence pre­sented. He did not have the lux­ury of fill­ing in the gaps in the tes­ti­mony in order to reach a deci­sion in line with his own feel­ings, which is the hall­mark of being an “activist judge.” Rather, he had to rule based on the facts pre­sented, and this is what he did in his lengthy rul­ing which is avail­able online athttp://​www​.scribd​.com/​d​o​c​/​3​5​3​7​4​8​0​1​/​P​r​o​p​-​8​-​R​u​l​ing

To chal­lenge Prop 8, same-sex mar­riage advo­cates brought for­ward eight lay-witnesses, includ­ing two same-sex cou­ples, and nine expert wit­nesses. The lay-witnesses described their feel­ings of being dis­crim­i­nated against and the idea that the law was not fair. Expert wit­nesses tes­ti­fied to var­i­ous facts and sta­tis­tics that they said demon­strated that same-sex mar­riage was not socially harm­ful. These were the stan­dard argu­ments that same-sex mar­riage pro­po­nents have been mak­ing for years and there really was noth­ing new or novel.

Same-sex mar­riage advo­cates even called Hak-Shing William Tam on the stand in order to demon­strate that vot­ers had been given incor­rect infor­ma­tion and voted based on anti-homosexual prej­u­dice. Tam’s name had appeared next to the bal­lot argu­ments in the voter infor­ma­tion pam­phlets in the run-up to the Novem­ber 2008 elec­tion. Tam had helped craft many of the argu­ments for Prop 8 and he tes­ti­fied that, as he stated on his web­site pro­mot­ing Prop 8, he believed that homo­sex­u­als were 12 times more likely to be pedophiles, but could not state where he got this information.

Tam also admit­ted he had stated that incest and polygamy had been legal­ized in the Nether­lands soon after the coun­try legal­ized same-sex mar­riage in 2001. This was fac­tu­ally untrue. The ques­tion­ing went like this:

David Boies: “You are say­ing here that after same-sex mar­riage was legal­ized, the Nether­lands legal­ized same incest and polygamy?”

Tam: “Yeah, look at the date, Polygamy hap­pened afterward.”

Boies: “Who told you that? Where did you get that idea?”

Tam: “It’s the Inter­net. Another per­son in the orga­ni­za­tion found it and he showed it to me.… I looked at the doc­u­ment and I thought it was true.”

Prop 8 Advo­cates Pre­sented Only Two Wit­nesses And Nei­ther Was Con­sis­tent Or Credible

Prop 8 sup­port­ers cross-examined these pro-same-sex mar­riage wit­nesses exten­sively but despite the large num­ber of peo­ple who had pro­moted Prop 8, Prop sup­port­ers only put up two wit­nesses to defend the Propo­si­tion. With so few, Prop 8 defend­ers should have real­ized that they needed to put their best foot for­ward and present over­whelm­ing evi­dence. Instead, Prop 8 sup­port­ers pre­sented weak wit­nesses who had pre­vi­ously con­tra­dicted the pro-Prop 8 position.

David Blanken­horn, the founder and pres­i­dent of the Insti­tute for Amer­i­can Val­ues think tank, was antic­i­pated to be Prop 8’s star wit­ness. Nor­mally expert wit­nesses need to “qual­ify” to tes­tify in that capac­ity, as the court relies on them heav­ily when mak­ing deci­sions. In this case, Judge Walker allowed Blankenhorn’s tes­ti­mony to be heard as an expert despite his lack of aca­d­e­mic cre­den­tials or research and reserved the right to deter­mine later whether he really qual­i­fied as an expert.

Blanken­horn gave con­tra­dic­tory tes­ti­mony that mar­riage is a “socially-approved sex­ual rela­tion­ship between a man and a woman” with a pri­mary pur­pose to “reg­u­late fil­i­a­tion”; but he also said that it was a “pri­vate adult com­mit­ment” between a man and a woman.

Blanken­horn wilted when Boies brought for­ward evi­dence that Blanken­horn had pre­vi­ously made writ­ten state­ments that Blanken­horn believed that mar­riage was impor­tant and could even ben­e­fit gays and les­bians, their chil­dren, and soci­ety at large. He also admit­ted a pre­vi­ous state­ment that same-sex mar­riage could lead to less sex­ual promis­cu­ity. Then Blak­en­horn shot Prop 8 advo­cates in the foot when he said that he still believed his pre­vi­ous state­ment that, “We would be more Amer­i­can on the day we per­mit same-sex mar­riage than the day before.”

In his deci­sion, Judge Walker found Blakenhorn’s tes­ti­mony was not cred­i­ble due to his incon­sis­tent state­ments. After all, which Blanken­horn was he to believe? Judge Walker spends sev­eral pages defend­ing his deci­sion not to give Blanken­horn expert sta­tus and to dis­miss his tes­ti­mony as not credible.

Prop 8 pro­po­nents’ last best hope was Pro­fes­sor Ken­neth P. Miller, an expert in Amer­i­can and Cal­i­for­nia pol­i­tics at Clare­mont McKenna Col­lege. Miller was expected to tes­tify as an expert that gays and les­bians were not really a down­trod­den minor­ity and were not harmed by Prop 8’s dis­parate treat­ment of opposite-sex and same-sex couples.

Although same-sex mar­riage advo­cates objected to his lack of qual­i­fi­ca­tions in the area of same-sex mar­riage, the court allowed him to testify.

At the trial level, an expert is expected to have a knowl­edge of mate­ri­als listed he or she relies on and lists in an “expert report.” Miller tes­ti­fied that his “exper­tise” in the area was based on mate­ri­als given to him by the Prop 8 attor­neys and that he had only read “most of the mate­ri­als” and had “tried to review all of them.”

When Miller took the stand, like Blanken­horn, he was trapped by his pre­vi­ous writ­ings that ulti­mately under­mined his argu­ment. In 2001, Miller had writ­ten an arti­cle in the Santa Clara Law review enti­tled “Con­strain­ing Pop­ulism: The Real Chal­lenge of Ini­tia­tive Reform” in which he wrote that gays and les­bians, like other minori­ties, are vul­ner­a­ble and pow­er­less in the ini­tia­tive process. He also admit­ted that at least some of those who voted for Prop 8 did so purely out of anti-gay sentiment.

The Deci­sion And Its Aftermath

Given the fact that Judge Walker was dealt this hand, focused same-sex mar­riage advo­cates and two scat­tered Prop 8 wit­nesses this out­come was inevitable. Had they pre­sented a solid case, some ele­ment of bias might be taken into account, but they pre­sented such a sad defense of Prop 8 that a rul­ing in their favor would have required the judge to admit objec­tive facts that they did not bring forward.

Pre­dictably, despite the inex­cus­ably poor show­ing by Prop 8, the reli­gious right is paint­ing Judge Walker as an “activist judge” who “ruled from the bench.” We are even see­ing argu­ments that Prop 8 should have never been brought to trial and that the “will of the vot­ers” should have prevailed.

The Prop 8 defense was fun­da­men­tally inef­fec­tive and was unable to explain why in any way it was nec­es­sary to take away same-sex mar­riage rights in order to pro­tect a com­pelling state inter­est. They even failed to demon­strate that there was a ratio­nal basis for Prop 8.

Despite the deficit in Prop 8 advo­cacy, Judge Walker clearly spent a great deal of time con­sid­er­ing the mat­ter and writ­ing an air­tight deci­sion that will be incred­i­bly dif­fi­cult to refute on appeal.

The ques­tion remains as to whether Prop 8 sup­port­ers will cut their losses now and allow Cal­i­for­nia to join a hand­ful of states where gay mar­riage is legal or whether they will appeal to the Ninth Cir­cuit and ulti­mately to the U.S. Supreme Court which could nation­al­ize same-sex marriage.


For fur­ther read­ing see: