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

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.

Interview with Attorney and Pastor Mitch Tyner

 

On August 22, 2008, members of the ClubAdventist.com community interviewed Mitch Tyner, who served as associate general counsel of the General Conference of Seventh-day Adventists from 1993-2006.  Special thanks to site moderator Stan Jensen for making this available to RLTV.  

 

Here are some questions and answers from the online interview:

Is there any move at all to change the adversarial nature of our legal system in which winning the case becomes the all-consuming goal often with the real truth becoming incidental and justice sacrificed? 

If only someone could come up with a nice, neat way to do that….

People don’t usually go to court unless they have very strong motivation to win. It’s expensive, it’s time consuming, etc. So the motivation, by the time you get to that point, is to get what’s coming to you and teach the other guy a lesson for causing you all this cost and difficulty.

However, there is a movement called alternative dispute resolution, that seeks to use mediation and/or arbitration as substitutes. Mediation is especially appropriate when what is sought is not just money, but rather a reconciliation and accounting. Sadly, these methods are not used to the degree they might be.

Should Adventists encourage their children to become lawyers? Is it a noble profession?

I know of no area of the law that a Christian cannot practice in good conscience. Usually that question envisions criminal defense work, which requires holding the government’s feet to the fire, forcing it to meet all its obligations as to necessary proof before incarcerating an individual. To do that is to protect all our rights, not merely getting a bad guy out of a jam.

Are there circumstances when it is acceptable for believers to sue other believers? When is it better to suffer a wrong done than sue another believer?

There are times when legal rights can only be established by a court. Property boundries are just one example. There are instances when one becomes a plaintiff involuntarily because your insurance company brings suit on your behalf. In other instances where the decision is yours alone, you must weigh the importance of what can be achieved against the harm the suit may cause. Obviously, that’s easier to say than to do, and it is inherently subjective.

What are the upcoming challenges when it comes to religious liberty and what can the average person do about them?

The big challenge I see facing us is the growing mistrust of religion. After 9/11, people are much, much more prone to argue that people who take religon very seriously fly airplanes into tall buildins: you can’t trust very reigious people. It has cast a pall over all efforts to gain more protection for the free exercise of religion. The idea of religious neutrality, a bed-rock assumption of true religious liberty, is being questioned. Religious people have a huge challenge: to constantly demonstrate that religious freedom is both necessary and in the best interest of all.

Probably a very simple and obvious question, but I’m sure you’re much more up on the policy platforms of the candidates in this area than any of us. Do you believe Obama or McCain would be the President most likely to expand religious liberty (or the reverse)?

The protection of individual rights, the rights of minorities against majorities, has historically been a liberal project, not one favored by conservatives.

Voltaire’s famous quote about disagreeing with what someone says but defending to the death their right to say it has become a commonplace in some ways in our society. But what do we do with it as a church? I know that in the US, for example, the ACLU is widely reviled for its perceived support of NAMBLA. That’s a pretty extreme example, but do SDAs support the right of people with whom we disagree (I know you’ve written on the issue of homosexuality, for example)? Or do we apply our limited resources to supporting causes that we can fully get behind?

You ask an interesting question: Do SDAs support those rights. As a matter of fact, the churh organization usually does. I fear that a lot of members do not. We have too many members, especially in the US, who think Christians – and they usually mean Protestants – should be in a superior position. Sort of ‘all are equal but we are more equal than others’. It doesn’t work that way.

John Stevens responds to Prof. Daniel Crane’s article on privatizing marriage

Editor

---

Thank you for sharing this item. As you know, I am personally opposed to same sex unions. But I am also opposed to a lot of other things, such as honoring the pagan day of the sun in the name of Christianity and rejecting the day God blessed and sanctified for our worship and fellowship.

But my God has given everyone the power to choose and if I am going to have His image restored in me, and that is my goal, then I will have to accept that part of Him, and honor the freedom to make choices of people with whom I disagree. I cannot in good conscience deny others the right that I wish to claim as my own. Consequently I oppose all constitutional amendments to codify religion or any aspect of it into law.

Bringing the recognition of the marriage union to the church and to private institutions with the submission of a simple form informing the government that the marriage has taken place is fine with me.  That provision would make the marriage legal in case of divorce, etc.  But the government could not under this plan require a license, hence no one needs the government’s permission to get married.

These people who oppose same sex marriage and want the government to enforce their personal religious views are the identical people that want the government to conduct worship services in the public schools for their minor children, and force non believers’ children to attend such services.  I find that repulsive and unacceptable and yes, even unAmerican.

We are witnessing a replay of the time when Christ was tried and sentenced to curcifixion. Remember the religious leaders’ testimony?  “We have no king but Caesar.”  Whenever the church resorts to the state asking them to do for them what God has not seen fit to do, they testify anew that the state is mightier and more capable than God, whom they profess to worship and serve.  So we hear in these demands by religiously conservative political forces, “We have no king but Caesar.” Wonder how God must feel about that and them, for whom He paid an infinite price?

Having lobbied government on all levels for over 45 years I have yet to find anything in which the government really excels, and that I apply to all governments in the world.  They are made up of faulty people, for there are no other kinds, including ourselves, and what then can we expect? And I certainly honor the far sighted wisdom of our Founders in making this new nation a secular one, where religion is not controlled by the government and where the government is not controlled by religion, the latter being one that is taking place and expanding.

Such thinking and acting is bringing us daily closer to the fulfillment of Revelation 13:11-18. It is so sad that we are headed that direction, especially when our beginning, and during much of our history, we have reflected the lamb, Christ.

Even so come Lord Jesus. Amen.

John V. Stevens, Sr.

Marriage Amendment: In California, your state constitutional rights are in the hands of your neighbors

There has been much discussion about the California ballot initiative that would ban same-sex marriages from a moral / social / religious perspective, but not much about the concept of overturning court decisions by majority vote. 

Vikram David Amar at Findlaw writes in a post entitled, “The California Supreme Court’s Gay Marriage Opinion: The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend?” and argues that the majority should have the abiltiy to change the California Constitution.

By definition, whatever the California people want the California constitution to be, it will be. In this regard, I might disagree a bit with Professor Dorf’s assertion that “California constitutional law [does not] embrace the view that minority rights turn on the majority’s willingness to recognize those rights.” In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view. As my brother and (sometimes)FindLaw colleague, Akhil Amar, has put the point: “In the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes.” 

 

Columbia University School of Law Professor Michael Dorf, on his blog, MichaelDorf.com, writes a post entitled “California’s Majoritarian Difficulty“ and argues that this may cede too much power to the whim of the majority:

 

. . . the ease of amendment of the California Constitution should dramatically reduce the fear of judicial activism in California. If the Justices are terribly out of step with popular opinion as to the meaning of the state Constitution, the voters of the state can readily “overrule” the Justices. Thus, there is no real “counter-majoritarian difficulty” in California.

There does, however, appear to be a “majoritarian difficulty” in California. One of the purposes of having a constitution is to limit majoritarian decisions. Where a high court ruling is too difficult to change via constitutional amendment, the counter-majoritarian difficulty arises. But where the constitution can be amended as easily as a statute can be enacted, it effectively does not limit the majority, and thus we have the majoritarian difficulty.

Where, exactly, is the sweet spot between a Constitution that is too difficult to amend and one that is too easy to amend? That’s a hard question to answer in the abstract, although prima facie, a constitution that is impossible to amend (as the German Constitution purports to be on certain particulars) seems too difficult, whereas a constitution that can be amended by the ordinary legislative process (as the Israeli Basic laws can be) seems too easy. But much depends on context. A simple majority vote in the national or provincial legislatures is all that’s required to supersede a constitutional decision of the Supreme Court of Canada under the Notwithstanding Clause, but a strong customary norm has made that power very difficult to invoke in practice.

http://www.michaeldorf.org/2008/05/californias-majoritarian-difficulty.html

The California Secretary of State has posted a study, including titles and results, about the history of California initiatives from 1912 to 2001 at http://www.sos.ca.gov/elections/init_history.pdf

Among the proposed initiatives that made the ballot which would have amended the California Constitution,  some have relevance to the issues we discuss on ReligiousLiberty.TV.

One Day Rest in Seven (1914) (Rejected)
Requiring Bible in Schools (1926) (Rejected)
Sunday Closing Law (1930) (Rejected)
Taxing of School Property of Religious and Other Non-Profit Organizations (1958) (Rejected)
Subversive Activities (1962) (Rejected)
Terminal Illness – Assistance with Dying (1991) (Rejected)

Names of proposed amendments, including frequent initiatives on Bible reading in school, Sunday closing laws, and School Prayer,  and racial issues that arose earlier in the 1900s that did not make the ballot are not included in this list, and it is in no way comprehensive.  But they do illustrate some of the types of issues, aside from the routine tax, budget-type issues that Californians can decide. 

Some may argue that voters have a basic sense of fairness and goodwill and understanding of fundamental human rights, as traditionally expressed in the Declaration of Independence and the United States Constitution, and would only sparingly use their votes to curtail the attempts by other to maintain or gain rights, and then only under the most dire of circumstances.

But in times of fear and uncertainty, when an advantage at the poll might lead to an advantage in the pocketbook or increase a sense of security or a desperately needed return to spiritual orthodoxy, all bets are off.

The power that Californians have to change the constitution must be applied with fear and trembling.  This process can be easily abused, and a quid pro quo among competing interests could even now be in the development stage. If the marriage amendment passes, will advocates then seek to undermine the property interests of churches or the rights of religious workers?  We know what is on the November 2008 ballot, but can only vaguely predict what we will see in 2009, 2010, and beyond.

For Californians and residents of other states that have a similar initiative process, your rights under your state’s constitution are in the hands of your neighbors. Treat them well.