An Analysis of the Results of the Federal Prop 8 Same-Sex Marriage Trial

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.

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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For further reading see:

http://spectrummagazine.org/blog/2009/03/16/raw_majority_power_why_check…

http://spectrummagazine.org/node/1981

Some Thoughts on the Implications of the Same-Sex Marriage Trial for Religious Minorities

California’s debate regarding same-sex marriage will become a national issue if the United States Supreme Court decides to hear an appeal from either side on the outcome of the recently concluded Perry v. Schwarzenegger case. In Perry, Federal trial judge Vaughn Walker was asked to decide whether Proposition 8, which reversed a prior California Supreme Court decision upholding gay marriage, was constitutional.
Putting the emotional issues aside, this is the cold reality: If the U.S. Supreme Court takes this case and decides to uphold Proposition 8, this outcome could strip away fundamental principles that also protect religious minorities.

In the last 100 years, the Court has overturned popular state laws that prohibited interracial marriage and laws that forced sterilization of children of unwed mothers who were thought by state legislators to be genetically “immoral.” In these cases, states defended their laws on the grounds that they were protecting the safety and morality of the citizens, but the Court reviewed the cases using the higher level of scrutiny found in the case of United States v. Carolene Products (1938). In Footnote Four, Justice Harlan Stone wrote that cases that met three criteria were subject to a higher level of scrutiny.
A law would receive the higher level of scrutiny, or “strict scrutiny,” (see appendix for an outline) if it:

1. On its face violates a provision of the Constitution (facial challenge).
2. Attempts to distort or rig the political process.
3. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.

In other words, the majority does not always win just because it is a majority. This reasoning has been applied to the school prayer cases, civil rights cases, and a number of other discrimination cases where the Court has ruled against an abusive majority. The trend of upholding the individual rights of minorities, and in particular religious minorities, has been the subject of intense criticism by many on the right who view some individual rights that run contrary to their religious beliefs as a threat to Christian America.

Added to the Supreme Court’s opinion in Loving v. Virginia which found that marriage was a fundamental right, unless there is some major shift in the Court’s approach, the Court will likely apply strict scrutiny to Proposition 8.
The California Supreme Court had based its decision upholding Proposition 8, not on a moral or social safety reason, but simply that the majority should win by virtue of its majority status. The California court simply said that it did not have the power to overturn the will of the voters, and in fact held that “Proposition 8 must be understood as creating a limited exception to the state equal protection clause.”

Thus, the Court admitted that Proposition 8 created a carve-out in the overall spectrum of rights. Justice Moreno, in his lone dissent, stated that “[T]he aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning.”

There is no legal distinction between protected classes in California, regardless of one’s religious qualms, and now that sexual orientation has been exempted from marriage rights (recognized as fundamental rights in federal and state jurisprudence), religious minorities, who have struggled in California, are now subject to exemption.

All this goes to the U.S. Supreme Court at a time when minority religious groups have been facing a rollback of rights that reverses the trend of applying strict scrutiny. Since the Employment Division v. Smith case was decided in 1990, the Court has begun to recognize an increasing number of exceptions to individual rights to practice one’s faith without governmental intervention.

If the Supreme Court upholds Proposition 8, it will effectively eviscerate the principles found in Carolene Products and will create a national destabilization of individual rights. This may not matter in states where religious minorities are protected by the good will of the majority, but in other states rights of religious minority groups may start to slowly disappear.

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You can read the trial briefs and trial transcripts at the American Foundation for Equal Rights website.  (We do not necessarily endorse all of their arguments, but AFER provides a valuable storehouse of the case documents in Perry v. Schwarzenegger.)

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BRIEF OUTLINE OF STRICT SCRUTINY
To pass strict scrutiny, the law or policy must satisfy three prongs:
First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Third, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Raw Majority Power: Why Checks and Balances Matter

An epic battle played out on two levels at the California Supreme Court on March 5. On a surface level, attorneys fought over a technical issue of whether the Proposition 8 prohibition on gay marriage represented a revision or an amendment. On the deeper level, the question asked was whether there are any limits on the majority to impact the rights of the minority.

It was a powerful argument – that the people of the State of California have the “raw power” to change the state constitution in any way that they please.

Ken Starr, an esteemed advocate, may have won the battle but lost the war when he asserted that, “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.”

Chief Justice Ronald George stretched Starr’s argument to explore its dimensions. He leaned in and asked a hypothetical – if Proposition 8 said that homosexuals had no right to form a family relationship or raise children, could that still be done by amendment? Starr said it could. Then George took the argument to the constitutional wall – could the voters also remove the right to free speech? Starr said yes, the voters have this right.

(Read the full article)

Calif. gay marriage win emboldens coalition of religious groups (AP)

Some excerpts from the AP article published at http://news.yahoo.com/s/ap/gay_marriage

 

LOS ANGELES – Energized by a comeback win, conservative activists want to apply the same formula they used to outlaw same-sex marriage in California to prevent other states from recognizing gay unions and President-elect Barack Obama from expanding the rights of gays and lesbians.

Leaders of the successful Proposition 8 campaign say an unusual coalition of evangelical Christians, Mormons and Roman Catholics built a majority at the polls Tuesday by harnessing the organizational muscle of churches to a mainstream message about what school children might be taught about gay relationships if the ban failed.

Same-sex marriage bans also won in Arizona and Florida. But in putting together the California victory, the coalition overcame opposition from the state’s political establishment and assumptions about how voters in the famously tolerant state would respond to taking away the rights the state’s highest court granted this spring.

. . . 

The plan is to mobilize the same religious factions that joined forces in California to deter lawmakers from “taking on this divisive social issue while we are in the middle of a huge financial crisis,” Gallagher said.

Campaign operatives attribute their success to the churches, which served as voter registration centers, phone banks and volunteer recruitment hubs.

. . .

Perhaps the most crucial faith-based ingredient of the California campaign was the Church of Jesus Christ of Latter-day Saints. The Mormon church was invited into the coalition by San Francisco’s Roman Catholic Archbishop George Neiderauer, who previously spent 11 years as bishop of the Catholic diocese of Utah.

Mormons make up less than 2 percent of the California population with a religious preference, but it is widely believed that church members around the country were responsible for a major share of the more than $36 million raised to pass the gay marriage ban.

. . .

Gay-marriage opponents say the bipartisan, multiracial alliance that helped Proposition 8 pass could be instrumental in fighting any steps Obama takes as president to expand the rights of gays and lesbians.

“Those can be activated and pressure can be put on senators and congressional leaders who are not as left-leaning as Barack Obama to not follow his agenda,” Staver said.

. . . 

 

Read the full article at http://news.yahoo.com/s/ap/gay_marriage

Tight California Prop. 8 race closely watched (AP)

AP – Five months and thousands of weddings after California’s highest court sanctioned same-sex marriage, anxious eyes around the nation will closely follow voters Tuesday as they decide whether to turn back the clock.

Given the state’s size and influence, the vote on a constitutional amendment banning gay marriage has become a referendum on sexual orientation and civil rights. Both sides call it the Gettysburg of the power struggle between the gay rights movement and the Christian right, with the victors capturing momentum in other states.

The race has tightened over the past six weeks and is expected to be close. A Field Poll released Friday found 49 percent of likely voters oppose the ban and 44 percent favor it. In mid-September, the measure was losing by 17 points.