Thursday, August 5th, 2010
Yesterday Federal Judge Vaughn Walker ruled California’s Proposition 8 which bans gay marriage as unconstitutional and discriminatory, a major victory for gay and lesbian marriage advocates. The decision has already been appealed and will have to go through the 9th Circuit and, eventually, the US Supreme Court.
Over the last 12 hours I took the time to read through Judge Walker’s 138 page ruling, and what I was most pleased about was how he framed his decision, not in morals or emotional appeals, but in rational fact, which legal experts say will make it much harder for higher courts to overturn.
Walker’s focus on hard evidence and fact thrills me, and reading through his ruling as he methodically and without emotional appeal refutes the claimes of the Prop 8 proponents based on the fantastic legwork of the pro gay marriage legal team.
The anti gay-marriage proponents brought the “gay boogyman” to the trial, claiming that homosexual marriage would errode heterosexual marriage and damage children, and instead of moralizing, the plaintiffs’ lawyers said came back with piles of evidence, facts, precident and expert witness testimony from psychologists to social epidemiologists, methodically rebutting each of their claims. At one point when pressed by Judge Vaughn Walker to provide even one solid, fact-based harm that might come from permitting gay men and women to marry, Mr. Cooper had nothing but “Your honor, my answer is: I don’t know. I don’t know.” Aside from the boogyman that appeals to homophobic sentiment and discrimination, the anti-gay side has seemingly no evidence to back up their position.
A long list of factual evidence — most of which the Proposition 8 proponents conceeded to during the trial (my understanding based on reading through the ruling) — has been pulled out and is available for quick reading on the Yes Means Yes blog.
Over at Slate, Dahlia Lithwick has written an outstanding article highlighting the factual, well-reasoned Prop 8 ruling:
“But for all the lofty language about freedom and morality, nobody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice.
It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn’t much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would “effect some twenty-three harmful consequences” and then putting on almost no case.”
Read the full article on Slate.
And my favourite quote from Lithwick’s article comes at the very end, one with which I heartily agree:
“The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact.”
Anti-gay marriage supporters are already calling out Judge Walker and trying to refocus the story, calling his ruling a conflict of interest because he’s gay. This implies heterosexual people by default aren’t biased about this issue, which cleary is not the case: the fact that this is such a fought over, controversial topic tells us both heterosexuals and homosexuals have potential and very real biases and conflicts here. And after reading through the ruling, I have to say I think Judge Walker did an fantastic job of concentrating as much as possible on the evidence of the case — perhaps because he was concerned about being seen as biased, perhaps just because he’s generally awesome like that. In any event and for whatever reason, his ruling is founded on evidence rather than sentiment.
I encourage everyone to read the ruling themselves, but here are a few choice snippets (references to other court cases removed):
In response to the purported arguement that reserving marriage as a union between a man and woman excluding any other relationship on “it’s tradition” grounds:
“Tradition alone, however, cannot form a rational basis for a law. The “ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the traditon itself.”
“Because it’s always been this way” isn’t a good enough argument to form the basis of a law.
“Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest. Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular.
The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8.”
In response to the purported argument that social change should be implemented with caution:
“Proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage. The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage. … The evidence shows that allowing same-sex couples to marry will be simple for California to implement because it has already done so; no change need be phased in.
Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.”
Basically, in order to justify “proceeding with caution”, there needs to be a better and more factual reason other than “because people won’t like it”. Nothing but policy has to change to make same-sex marriage a reality: there is no cost or time needed to make it happen, and no limited number of marriage licenses available to the population of California. A same-sex couple getting a marriage license does not prevent or delay an opposite-sex couple from getting one.
In response to the purported argument of opposite-sex parenting over same-sex parenting:
“The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. Even if California had an interest in preferring opposite-sex parents to same-sex parents — and the evidence plainly shows that California does not — Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under Californai law.”
So Propositon 8 doesn’t have anything to say about children or who is qualified to raise children, which makes the “think of the children” argument irrelevant to Prop 8 specifically. Also:
“Proponents argue Proposition 8 advances a state interest in encouraging the formation of stable households. Instead, the evidence shows that Proposition 8 undermines that state interest, because same-sex households have become less stable by the passage of Proposition 8. The inability to marry denies same-sex couples the benefits, including stability, attendant to marriage.
Proponents failed to put forth any credible evidence that married opposite-sex households are made more stable through Proposition 8. The only rational conclusion in light of the evidence is that Proposition 8 makes it less likely that California children will be raised in stable households. None of the interests put forth by proponents relating to parents and children is advanced by Proposition 8; instead, the evidence shows Proposition 8 disadvantages families and their children.”
I’m beyond pleased Judge Walker pointed out this inherent contradiction in this frequently used anti same-sex marriage argument. By not allowing gay and lesibian couples to wed, their families suffer social and psychologial strain that disadvantages them in our society and prevents them from creating a “stable household” which Prop 8 proponents claim to desire over everything else.
In response to the purported argument of protecting the freedom of those who oppose marriage for same-sex couples:
“Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.
To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.”
You have every right not to like it, but not liking something or someone doesn’t give anyone the right to supress the rights of others when no actual, evidential, factual harm is being done.
I absolutely encourage everyone to read through the 80 facts called out in Judge Walker’s ruling on Prop 8 and to read through at least pages 109 – 138 of the ruling itself.