I am generally displeased with the quality of most journalism surrounding constitutional law and the cases interpreting and affecting it. Most of this kind of journalism tends to focus purely on the political (the motivation of the judges, which party will benefit, etc.), and even those few journalists who attempt sincerely and valiantly to explain the decisions (Linda Greenhouse, Dahlia Lithwick) generally write for those who have some degree of training in law or political science. What remains for consumption of the general public are a few choice and key quotes from the judge or panel’s opinion. While these quotes may convey the essence of the decision, without any background or further exposition, they give readers the impression that these ideas were pulled out of thin air. This tends to decrease confidence in the integrity and wisdom of the judicial branch, and is deleterious to democracy in itself.
What I want to attempt to do here is describe and explain Judge Vaughn Walker’s decision in Perry v. Schwarzenegger (the “Prop 8 case”), which struck down California’s anti-same-sex marriage referendum on Wednesday, in a way that is comprehensible to someone who has never gone to law school (or for that matter, to college). I have made every effort to refrain from editorializing on the opinion’s merits or on same-sex marriage in general.
Since many of you will not want to read all of what will be a quite long post, I have moved the key analysis and conclusions section to the beginning. If you wish to read the entirety of this piece, please skip to the horizontal line then return here when you reach the end.
I will not rehearse the facts of the Prop 8 saga, since I assume that they will be well-known to any who have an interest in reading what is to follow. What I will say is that in May 2008, the California Supreme Court held that California counties were required to issue marriage licenses to same-sex couples. In November of that same year, Proposition 8 revised the California Constitution to provide that marriage was between one man and one woman. In the intervening period, approximately 18,000 same-sex couples took advantage of the availability of marriage licenses. Those marriages were unaffected by Prop 8.
Grounds for Challenge
The plaintiffs, who are same-sex couples who had been denied marriage licenses following the passage of Prop 8, challenged the law under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution. The proponents of Prop 8, who intervened in the case in lieu of the various state governmental officials who were named defendants (who had refused to defend the law), defended the law on the grounds that same-sex marriage would effect certain negative consequences that California had an interest in preventing by prohibiting the marriage of same-sex couples.
Review of Evidence
The court reviewed the testimony that had been provided at trial. [In the American federal court system, the trial court (or district court) hears the evidence and makes certain findings of fact. Appellate courts, such as the U.S. Supreme Court, may review the evidence produced at trial, but do not repeat the trial itself. Generally, such courts are confined to determining whether the trial court correct interpreted and applied the law to the facts as it found them.] Plaintiffs and proponents put on both lay (non-expert) and expert witnesses. The lay witnesses were primarily composed of the plaintiff couples, who testified as to why they wanted to be married, and persons who had been involved in the “Yes on 8” campaign (or ProtectMarriage), who testified regarding their efforts and motivations in opposing same-sex marriage. The trial judge had earlier explained at trial that he wished to have a full review of the status of gay and lesbians in society and the effects that same-sex marriage could potentially have on homosexual and heterosexual marriages. Thus, the expert witnesses ran the gamut from history, psychology, human development, economics, social epidemiology, and political science. The range and amount of testimony provided cannot even be effectively summarized in a space such as this (the opinion was 136 pages long), though I will provide some highlights below. However, the judge found that plaintiff’s witnesses were generally credible in their testimony, and that proponents’ experts lacked credibility. The judge stated his belief that the proponents had generally failed to provide any credible evidence that supported their bare assertions of negative consequences that would result from allowing same-sex marriage.
Plaintiffs’ Expert Testimony
The plaintiffs’ evidence consisted in part of the following ten points. Due to the fact that the judge adopted many of the expert’s conclusions in his findings of fact, I have identified those findings by number. Plaintiffs’ experts argued that:
(1) marriage in the US has always been a secular (or civic) institution and has undergone a number of changes and transformations over the course of American history (Finding #19);
(2) gays and lesbians are subject to widespread private and public discrimination and stigma, based on negative stereotypes of homosexuals that are without basis in fact (Findings #58, 67, 74-76, 78);
(3) same-sex couples and the state of California (and its cities and counties) have been subject to serious economic harm as a result of Prop 8 (Findings #64-66);
(4) same-sex couples are in all important respects similar to opposite-sex couples (Finding #48);
(5) allowing same-sex marriage would not have adverse effects on opposite-sex marriage (Finding #55);
(6) marriage has important benefits for the couple and any children raised in that marriage (Findings #50, 56);
(7) the stigma on gays and lesbians has negative effects on their mental health;
(8) homosexuality is a personality trait that is not chosen and is not amenable to change through therapy;
(9) children raised by same-sex couples are just as likely to be well-adjusted as children raised by heterosexual couples (Finding #69); and
(10) gays and lesbians do not possess a meaningful degree of political power.
Proponents’ Expert Testimony
The proponents did not call many of their expert witnesses as they had originally planned. Their initial justification for this choice is that the experts feared exposing themselves to risks to their personal safety due to their testimony. However, after publication of the proceedings was prevented by a Supreme Court intervention, the plaintiffs still refused to call their witnesses. Plaintiffs offered the previously recorded testimony of two of proponents’ experts. Those experts concluded that “religion lies at the heart of the hostility” against gays and lesbians and there was no evidence that children raised by same-sex couples fared worse than children raised by opposite-sex couples.
The proponents did offer the testimony of two expert witnesses. One of those witnesses, David Blankenhorn, was the founder and president of the Institute for American Values, a family values think tank. The court dismissed Blankenhorn’s testimony for his lack of qualifications or support for his conclusions. He lacked formal training in the relevant fields, had no peer-reviewed publications, and his conclusions were not produced using reliable methods (i.e. scientific methods). Blankenhorn had testified that the state had a interest in preserving opposite-sex marriage in order to regulate the bearing and raising of children. This was important because children raised by married, biological parents do better than children in other environments. However, the court found that the evidence he used to arrive at this conclusion only compared married, biological parents with other living situations that were not the equivalent of married same-sex parents (e.g. single parents, step families). Blankenhorn also testified that three universal rules that governed marriage: that it was between a man and a woman, that only two spouses were involved, and that sex was involved. Finally, Blankenhorn testified that recognizing same-sex marriage would lead to the “deinstitutionalization” of marriage, which he defined as out-of-wedlock marriage, non-marital cohabitation, rising divorce rates, etc. The court found that he produced no credible evidence to support these conclusions. Besides the general lack of reliability in this opinions, the court found that Blankenhorn’s testimony contradicted his own opinions in several respects. Proponent’s second expert, Kenneth Miller, is a professor of government at Claremont McKenna College. The purpose of Miller’s testimony was to show that gays and lesbians enjoyed significant political power. The court found that, because Miller had failed to consider key evidence and was not familiar with gay and lesbian politics, his testimony should be discounted. The court further found that Miller’s previous writings contradicted his testimony as a witness for the proponents.
Findings of Fact
In addition to those findings of fact listed above under Plaintiff’s Expert Testimony, the court made certain other findings of fact on which it based its legal conclusions. While space does not permit me to do so here, the court identified specific citations to the trial record, including documents and testimony offered by experts for both sides, that supported his findings. These findings include:
(1) CA, like other states, did not require that couples be willing or able to procreate in order to obtain a marriage license (Finding #21);
(2) Marriage requires free consent of the parties (Finding #23);
(3) Marriage has undergone significant changes in the course of American history, including the elimination of racial restrictions, the elimination of status of women as property of her husband, and the equalization of gender roles in marriage. These changes have not weakened marriage. (Findings #24-28, 33);
(4) Under current law, marital partners have equal obligations to one another and their dependents (Finding #32)
(5) Marriage is a state recognition with many purposes, including family stability, legitimating children, and establishing support obligations, and is used to provide benefits to certain couples (Findings #34-37);
(6) Marriage is good for the health and material well-being of those involved, including children (Findings #38-41);
(7) Same-sex behavior has a long history, though a separate identity for homosexuals developed in the late 19th century (Finding #42);
(8) Sexual orientation is an enduring pattern of behavior, stable through adulthood, and is a fundamental and distinguishing characteristic of an individual’s identity. It is not a choice and cannot be change through decision or therapy (Findings #43-44, 46);
(9) CA law already allows gays and lesbians to become parents (Finding #49);
(10) Domestic partnership is not equal to marriage, due to different symbolic meanings and benefits, and is inferior to marriage (Findings #52-54);
(11) Prop 8 requires unequal treatment and inferior treatment of same-sex couples vis a vis opposite-sex couples (Findings #59-60);
(12) Prop 8 codifies distinct traditional gender roles in marriage (Finding #61);
(13) Prop 8 does not affect the First Amendment rights of those opposed to same-sex marriage (Finding #62);
(14) Prop 8 does not affect other constitutional rights (Finding #63);
(15) Gender and sexual orientation of parents, r a child’s genetic relationship to parents, are not factors in a child’s adjustment. Opposite-sex couples are not required to produce well-adjusted children (Findings #69-73);
(16) Religious beliefs in the sinfulness or inferiority of homosexual relationships are harmful to gays and lesbians (Finding #77); and
(17) The campaign to pass Prop 8 was based on never-articulated and vague fears about homosexuals and stereotypes (Findings #79-80).
[If you have read this far, please return to the top and read the “Conclusions of Law” section.]