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.

Sum­mary

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.

The Ques­tion Before the Court

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

http://​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.

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:

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.

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

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.

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:

http://​spec​trum​magazine​.org/​b​l​o​g​/​2​0​0​9​/​0​3​/​1​6​/​r​a​w​_​m​a​j​o​r​i​t​y​_​p​o​w​e​r​_​w​h​y​_​c​h​eck…

http://​spec​trum​magazine​.org/​n​o​d​e​/​1​981

 
 

7 Comments

  1. I’m one of the most adamant oppo­nents of the reli­gious right and of mob rule, but why does the fed­eral gov­ern­ment think that it can change state con­sti­tu­tions by judi­cial fiat? To me, that’s the big story that comes out of this ordeal. What hap­pened to fed­er­al­ism? It was bad enough when the fed­eral courts were throw­ing out state laws they didn’t like, as if they have such juris­dic­tion; but, Prop 8 was part of the Cal­i­for­nia con­sti­tu­tion. Why is it just assumed that Prop 8 sup­port­ers have to win a legal argu­ment in the fed­eral courts to demon­strate a com­pelling state inter­est to the fed­eral gov­ern­ment? Every time a state amends its con­sti­tu­tion, it has to run it by the fed­eral judges? I’m not in favor of sim­ple major­ity amend­ments, but the fed­eral con­sti­tu­tion doesn’t gov­ern the state con­sti­tu­tions or the state con­sti­tu­tional amend­ment process. Fur­ther empow­er­ing the fed­eral gov­ern­ment to sup­pos­edly defend lib­erty was a deal with the devil, and is going to come back to bite us. In the long run, the fed­eral gov­ern­ment is far more dan­ger­ous to lib­erty than state and local governments.

  2. I’m one of the most adamant oppo­nents of the reli­gious right and of mob rule, but why does the fed­eral gov­ern­ment think that it can change state con­sti­tu­tions by judi­cial fiat? To me, that’s the big story that comes out of this ordeal. What hap­pened to fed­er­al­ism? It was bad enough when the fed­eral courts were throw­ing out state laws they didn’t like, as if they have such juris­dic­tion; but, Prop 8 was part of the Cal­i­for­nia con­sti­tu­tion. Why is it just assumed that Prop 8 sup­port­ers have to win a legal argu­ment in the fed­eral courts to demon­strate a com­pelling state inter­est to the fed­eral gov­ern­ment? Every time a state amends its con­sti­tu­tion, it has to run it by the fed­eral judges? I’m not in favor of sim­ple major­ity amend­ments, but the fed­eral con­sti­tu­tion doesn’t gov­ern the state con­sti­tu­tions or the state con­sti­tu­tional amend­ment process. Fur­ther empow­er­ing the fed­eral gov­ern­ment to sup­pos­edly defend lib­erty was a deal with the devil, and is going to come back to bite us. In the long run, the fed­eral gov­ern­ment is far more dan­ger­ous to lib­erty than state and local governments.

  3. Shane Linder says:

    I don’t think the 14th Amend­ment has any bear­ing on gay-marriage.

    The Major­ity Opin­ion of the New York Court of Appeals in Her­nan­dez v. Rob­les (2006) rejected any reliance upon the Lov­ing case as con­trol­ling upon the issue of same-sex mar­riage, hold­ing that:

  4. Shane Linder says:

    I don’t think the 14th Amend­ment has any bear­ing on gay-marriage.

    The Major­ity Opin­ion of the New York Court of Appeals in Her­nan­dez v. Rob­les (2006) rejected any reliance upon the Lov­ing case as con­trol­ling upon the issue of same-sex mar­riage, hold­ing that:

  5. Matt says:

    The 14th Amend­ment was added to the Con­sti­tu­tion to over­turn the Dred Scott deci­sion decided by the Supreme Court in 1857. In that deci­sion the SC said that the Con­sti­tu­tion did not define a slave as a cit­i­zen of the United States. Since the slave was not a cit­i­zen he could not have the rights of a cit­i­zen. Fur­ther­more, the SC added, cer­tain peo­ple, among them Africans, were infe­rior to the White race there­fore they could never become cit­i­zens. The 14th Amend­ment cor­rects this defect in the Con­sti­tu­tion. It essen­tially says; race or national ori­gin can­not be a cause for deny­ing cit­i­zen­ship, nor the priv­i­leges of cit­i­zen­ship to peo­ple who come to Amer­ica. It also stated that cit­i­zen­ship is not a state issue. The Fed­eral Gov­ern­ment decides who is a cit­i­zen. States can only decide domicile.

    The upshot of all this is the SC court now uses this method to over­turn a major­ity deci­sion. This method intrudes upon the Demo­c­ra­tic prin­ci­ple that the major­ity decides what is accept­able in the State and Fed­eral Gov­ern­ments. Major­ity deci­sions are decided by vote. Vot­ing cit­i­zens do not have to give a rea­son as to why they voted a cer­tain way. There­fore what is voted as law is not con­fined to ratio­nal rea­sons. The vote is final with­out recourse to courts. The only meth­ods to over­turn a vote is the another vote or the sword. Major­ity deci­sions, in the legit­i­mate domain of State and Fed­eral Gov­ern­ments, should be final unless excep­tions are made, as in the case of race, as was done by amend­ing the United States Constitution.

    In con­clu­sion Cal­i­for­nia should be able to define Mar­riage as between a man and a woman if the major­ity decides they wish to have it that way. There is no excep­tion in the Fed­eral Con­sti­tu­tion defin­ing Mar­riage based on sex­ual ori­en­ta­tion, as there is defin­ing race. There­fore the major­ity deci­sion in Cal­i­for­nia should stand, unless the Amer­i­can peo­ple decide to amend the United States Constitution.

 
 
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