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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/doc/35374801/Prop-8-Ruling
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.
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