Prop. 8: Shame in Perpetuity.

Today's decision striking down Proposition 8 in the federal court challenge to California's gay-marriage ban is a morale boost for same-sex-marriage supporters who've seen stinging defeats in Maine and New York over the past year. But the celebration will be short-lived. Prop. 8 supporters already have an appeal ready, so the fate of marriage equality in the Golden State will ultimately be decided by the appeals courts. Still, the trial court's 136-page order is remarkable for its legal breadth and its stunning rebuke to the reasoning and motives of same-sex-marriage opponents.

I suggested earlier today that Judge Vaughn Walker would take the easy road and choose a relatively noncontroversial justification for striking down Prop. 8. I was wrong. Instead, he invalidated it on the broadest grounds possible. He found that 1) gays qualify as a protected minority; 2) there is no legitimate state interest in restricting marriage to heterosexual couples; and 3) marriage is a fundamental right. Given these determinations, the judge ruled that Prop. 8 violated the Equal Protection and Due Process clauses of the U.S. Constitution:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

But more important than the judge's findings on the right to same-sex marriage are the findings of fact that he based his ruling on. Walker intended to establish an extensive factual record from the start, and as Pema and I have noted, it's important because higher courts can overrule a lower court on matters of law but generally cannot challenge the trial court's findings of fact. Over 50 pages in the order are dedicated these "findings of fact." The following are some of the court's noteworthy conclusions:

  • Sexual orientation, the judge, found, is a stable characteristic – one gays and lesbians do not choose and cannot change through therapy – and defines them as a discrete group. This is important because Prop. 8's supporters argued that sexual orientation could be changed and because one's sexuality was hard to pin down, gays could not possibly qualify as a protected minority.
  • Civil marriage is "the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents." What's crucial here is that the judge left out procreation or the intent to procreate. This is something that Prop. 8 defenders argued throughout the trial.
  • There is no credible evidence that same-sex marriage harms society or the institution of marriage in any tangible way. Harm to society was supposedly one of the reasons the state had an interest in restricting marriage to heterosexual couples.
  • Proposition 8 singles out gays and lesbians and "places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society." This point speaks to the fact that the Prop. 8 campaign was motivated by anti-gay animus and religious disapproval, which are insufficient reasons for upholding the constitutionality of a law.
  • Chlidren raised by gay or lesbian couples are as likely as the children of heterosexual couples to be "healthy, successful, and well-adjusted." Concern for children was one of the stated reasons for restricting marriage to heterosexual couples.

What's most striking about the ruling is this: Whether or not the judge's legal arguments hold up, the 136-page document lays bare the irrational prejudice behind Prop. 8. It is telling that the court did not agree with a single legal or factual point made by same-sex-marriage opponents. Prop. 8 defenders might say this is because Walker was biased -- even though he was a conservative nominee opposed by Democrats -- or say the defense did a shoddy job. But in reality, the emotional appeals of Prop. 8 supporters did not withstand legal scrutiny: Piece by piece, Walker deconstructs the arguments against same-sex marriage and shows that they are, at root, motivated either by fear or a desire to stigmatize gays and lesbians. 

There is no shortage of examples: At one point the judge said David Blankenhorn, one of their star witnesses, did not have sufficient expertise to testify. He excoriated another witness, William Tam, for saying he got his information about gays being 12 times more likely to molest children from "the Internet." The Supreme Court -- where the case is ultimately headed -- can't strike that down. It's on the record in perpetuity for future generations of Americans to read and be ashamed of. 
 -- Gabriel Arana

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