Friday, September 21, 2012

An Examination of the Court Case That Overturned Proposition 8 in California: Part 1

A few years back, California passed Proposition 8, which defined marriage in California law as being only between a man and a woman.  In 2010, Proposition 8 was overturned by the United States District Court for the Northern District of California.  The court case was called Perry v. Schwarzenegger.  You can read all about the case, its history, and its future (more has happened since 2010, and the case might possibly go to the Supreme Court) here.

I have found this court ruling fascinating as a wonderful example of the modern secular political paradigm.  It illustrates the assumptions behind secular law very clearly, and that those assumptions are not neutral assumptions but Agnostic ones, in opposition to biblical assumptions.  It also very clearly points out problems in secular (that is, Agnostic) arguments against legal recognition of same-sex marriage.  From my reading, I think the proponents of Proposition 8 deserved to lose that case, and the main reason is that their arguments were simply not good enough because they were attempting to build on an Agnostic/secular foundation.  But I'll say more in the course of my analysis.

I am going to quote here, piece by piece, the conclusion section of the court case, which can be found here.  In red ink, I will provide comments on portions of the document.  I will take the text from here.  I did a bit of research, and it looks like I am legally able to do this under the provisions of California law, and also under the provisions of Wikisource, from whom I have taken the text, in accordance with their copyright license pertaining to the document.

OK, so here we go.



Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.


The Due Process Clause provides that no "State [shall] deprive any person of life, liberty, or property, without due process of law." US Const Amend XIV, § 1. Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. See Washington v Glucksberg, 521 US 702, 719-720 (1997). When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the [p. 110] intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US 374, 388 (1978).

The basic principle here is that we should default to freedom and equality.  Whenever there is not a good reason to restrict someone's freedom, we should not restrict it.  This makes sense on Agnostic grounds.  The Agnostic worldview is Naturalistic--that is, it does not positively recognize the existence of anything beyond the natural world.  In a Naturalistic worldview, there can be no objective moral law, meaning a moral law that transcends our own desires.  To the extent that morality can be said to exist, it will be understood as simply a set of instructions it would be wise for each of us to follow in order to attain the satisfaction of our desires.  (There is obviously much more that needs to be said on this point.  I have done more of an analysis of the implications of Naturalism for ethics in a book I have written which will hopefully shortly be published, titled Return of the Puritans: Outline of a Christian Social Order.  So I will make my comments on this here brief.)  Since this is the case, in a Naturalistic worldview there is no such thing as any intrinsic or inherent authority.  In short, I am my own ultimate boss, and you are yours.  Therefore, if I wish to create a society that will reflect respect for my own individual autonomy as well as the autonomy of others, I will want law in that society to be built on the consent of all the governed.  This is, of course, the social contract model of civil government, where "we the people" (as opposed to God or someone else) are the foundation of the authority of the civil government and its laws.  On this model, since consent is the foundation of civil authority, the civil government cannot take away any freedoms that the people as a whole do not consent to have taken away.  But no one wants to give up any more freedoms than are necessary to preserve his life, liberty, property, etc., or so the story goes, and so the practical result of all of this is that there will be a default towards liberty in the law.  The burden of proof will thus be on those who wish to limit freedoms, not on those who wish to expand them.  And, likewise, as no one wants to be treated as less important than others, and as everyone is equal in terms of being his own ultimate boss, civil government must default to equality as well--that is, it must avoid limiting the equality of any person or group unless necessary to prevent harms recognized as such by the general consent of the people.

Interestingly, I think the same idea of defaulting to freedom and equality flows from a Christian worldview as well.  As God is the owner of all things, and all persons, we ought not to interfere in the affairs of others unless God gives us permission to do so.  And as civil authority is granted by God, it is not unlimited, and it must not transgress the bounds of the authority God has delegated to it.  Therefore, it will default to freedom and equality, not limiting either unless it can be proved that it has an obligation to do so from God.

Of course, the practical importance of this is that it places the burden of proof in the right place.  The burden is not on those who would argue for allowing same-sex couples what they want or treating them equally to others, but on those who would argue that freedom and/or equality ought to be limited for some reason(s) in this case.


The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v Safely, 482 US 78, 95 (1987) ("[T]he decision to marry is a fundamental right" and marriage is an "expression[ ] of emotional support and public commitment."); Zablocki, 434 US at 384 (1978) ("The right to marry is of fundamental importance for all individuals."); Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) ("This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."); Loving v Virginia, 388 US 1, 12 (1967) (The "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."); Griswold v Connecticut, 381 US 479, 486 (1965) ("Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.").

The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they [p. 111] are couples of the same sex, whether they seek recognition of a new right.

An important definitional issue is raised here.  What are these same-sex couples seeking?  Are they seeking to exercise the right to marry, which the law already counts as a fundamental right?  Or are they seeking recognition of a new right not previously recognized?  Obviously, the case will be easier for them if they are doing the former rather than the latter.  So this raises the question, What exactly is "marriage"?

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted "in our Nation's history, legal traditions, and practices." Glucksberg, 521 US at 710. Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right. Id.

Marriage has retained certain characteristics throughout the history of the United States. See FF 19, 34-35. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. FF 20, 34. The spouses must consent to support each other and any dependents. FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. FF 35-37. The state respects an individual's choice to build a family with another and protects the relationship because it is so central a part of an individual's life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse." Lawrence, 539 US at 567. The Supreme Court [p. 112] recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486.

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. FF 23-25. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. 388 US at 12. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. Id.

The marital bargain in California (along with other states) traditionally required that a woman's legal and economic identity be subsumed by her husband's upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse's role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, FF 26-27, social disapproval of same-sex relationships, FF 74, and the reality that [p. 113] the vast majority of people are heterosexual and have had no reason to challenge the restriction, FF 43. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses' obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs' relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses; [p. 114] they seek the mutual obligation and honor that attend marriage, FF 52. Zarrillo and Katami seek recognition from the state that their union is "a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Griswold, 381 US at 486. Plaintiffs' unions encompass the historical purpose and form of marriage. Only the plaintiffs' genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as "the right to same-sex marriage" would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

In order to determine what "marriage" really is, Judge Walker looks back through the history of the United States, and particularly California, and he notices some interesting things:

First, he notices that an ability and willingness to procreate has never been required for marriage licenses to be granted in the state.  This means that as "marriage" has been understood by California law, it has not been taken to include in its essence procreation.  Obviously, this removes an objection to same-sex marriage--the objection that same-sex couples cannot procreate.  That is obviously true, but, says Judge Walker, it is irrelevant, as a willingness and ability to procreate is not essential to marriage in California civil law.

Coming from a biblical worldview, I would agree, to an extent, that marriage need not essentially involve procreation.  I see no biblical reason to refuse marriage to elderly couples, or to infertile couples.  However, I would argue that the Bible teaches that children are a blessing to be sought by those who are capable of producing them in their marriages.  Also, one of the main purposes of marriage, according to God, is the production and raising of children.  So while infertile and elderly couples can, I think, get married, children should be sought in marriage whenever reasonably possible.  Infertility is not considered simply an alternate lifestyle choice, but as a detrimental, non-ideal state of affairs, like losing a limb.  A person can live without one of his limbs, but we would not say that therefore his limb is not important or that a person without one of his limbs is not missing something.  Therefore, same-sex marriage, as it is in its essence entirely removed from the very idea of having children (unlike infertile or elderly couples, whose unions are only incidentally removed from having children), does not fit God's ideal standard for marriage, and for that reason (among many others, of course) should not be recognized as a legitimate form of marriage.

However, Judge Walker is not approaching things from a biblical perspective, but from an Agnostic one, as Agnosticism (secularism) is the official religion/worldview of the government according to most of the modern US courts.  Is there any reason from an Agnostic point of view to include in the essential general idea of "marriage" the goal of having children?  I can't think of any.  In a Naturalistic worldview, "marriage" is just a human cultural creation, and we can make it to be whatever we like.  If California law does not tend to look at marriage as being necessarily related to children, but as only providing stable, fulfilling relationships between two people, then so be it.  There is no reason not to recognize same-sex marriages on the basis that children (or at least biological children of both parents) are essentially excluded from it.

Judge Walker goes on to note a couple of changes in the idea of marriage that have been seen in US and California history.  First, he notes that in many US states earlier in the twentieth century, race restrictions were very common in marriage law.  Many states had certain kinds of bans on "miscegenation," or mixing of races in marriage.  In the Supreme Court case Loving v. Virginia, bans on interracial marriages were declared unconstitutional and made illegal.  Why the change?  The people of the United States grew to understand that there were no good reasons to ban interracial marriages, and that all the reasons previously offered were really based not on reason but on prejudice.  So many US states altered their legal definitions of marriage to allow for general mixing of the races.  The core idea of marriage, Judge Walker says, remained the same--two people joining into a relationships for mutual benefit, stability, the raising of a household, etc.--but the institution was adjusted to conform to more progressive views of racial equality.

It is obvious where Judge Walker is going with this.  But before commenting on that, let's look at this issue of interracial marriage a bit more.  What should we, who hold a biblical perspective, think about the abolishing of laws forbidding interracial marriages?  Well, the Bible recognizes basic equality between the races, and I see no biblical basis for prohibiting marriage between races.  There are even apparently examples of "interracial marriages" in the Bible (such as Moses and his Cushite wife).  The entire concept of banning the mixing of certain people based on "race" (a very vague category in itself anyway) is not rooted in the Bible, and therefore I hold that the move away from these bans was correct and biblical.  In places where "marriage" in civil law included these bans, it was right to have adjusted the legal definitions to fit in better with true views of racial equality and the unity of the human race.

The same can be said from an Agnostic view.  There are no good Naturalistic reasons that I know of (once we assume a modern western ethical version of Naturalism and the social contract view of government) to limit the freedom of people to choose whom they want to marry based on race.

Judge Walker also notes that the definition of "marriage" has been changed in the United States over the past century with regard to its relationship to views on gender roles.  It used to be that marriage included the idea of "coverture"--that the woman's property and identity were subsumed under the husband's, as he was considered the head of the household.  However, ideas of gender roles have "evolved" since that time, and now the people of the United States in general hold to "gender equality"--meaning that there is no authority structure built into the relationship between husband and wife.  So the law, and the legal definition of "marriage," was adjusted to get rid of the concept that the man has a natural headship in the marriage.

What do we think of this change?  Was it a good change?  Was it justified?  I would argue that it was not justified.  According to God's Word, marriage does inherently include a certain relationship of authority between husband and wife.  Wives are to submit to and obey their husbands, and husbands are to love and care for their wives.  As this is an inherent characteristic of marriage, it makes sense that this should be reflected in civil law.

However, from a modern western Agnostic secular point of view, I think the change was quite justified.  I see no Agnostic reason to lay down a necessary hierarchy between men and women in the marriage relationship.  Remember, in Naturalism, there is no such thing as inherent or intrinsic authority.  Every individual is his/her own boss.  I can see no legal need to to enforce some kind of male-headship sort of structure into the marriage relationship.  Therefore, it was right that the laws and definitions should be adjusted to conform to modern western notions of gender equality and default to the freedom and equality of individuals on this issue.  So here we see a clear worldview preference by Judge Walker.  He has not yet made it entirely clear that he is looking at the issue from an Agnostic point of view, but it is now clear that he is not looking at the issue from the perspective of a fully consistent biblical Christian worldview.

Judge Walker then draws the expected conclusion of this historical analysis in terms of its implications for same-sex marriage.  Some who object to same-sex marriage say that the word "marriage" essentially includes the idea of a union between a man and a woman, and we can't just go around changing the meaning of words.  But Judge Walker has shown that laws in the US have done just that on important occasions.  As our views on gender and racial equality have progressed, we have altered legal definitions and standards of marriage to conform to this progression, while preserving certain core ideas involved in marriage (union between two people for mutual benefit, etc.).  So now we have yet another equality hurdle to jump, and another corresponding change in the legal definition and standards of marriage.  Up until now, we have suffered under the misguided notion of sexual orientation inequality, but now we must progress (and we are progressing) to recognize sexual orientation equality.  And our legal ideas about marriage must be brought to conform to this.  Just as there was no good reason not to recognize mixed-race relationships as true marriages, and just as there was no good reason not to recognize gender-equal relationships as true marriages, so there is no good reason not to recognize same-sex relationships as marriages.  And therefore, as we ought to default to freedom and equality, we ought to remove bans on the legal recognition of same-sex marriages.

From a biblical point of view, the judge's argument is a dismal failure.  "Marriage" is something that God instituted and for which God has appointed certain standards and rules in his revelation.  Men cannot simply alter the idea of marriage to suit their desires.  It is perfectly appropriate for civil governments to adjust their legal definitions of marriage to conform better to God's law (as happened in the case of the legal recognition of interracial marriages), but it is another thing entirely and wholly inappropriate for civil governments (whose authority comes from God) to alter their legal definitions of marriage away from the standards of God's law (as happened with the getting rid of coverture and is now happening with the legal recognition of same-sex marriages).  Homosexuality is a wicked deviation from the standards of God's moral law.  It should certainly not be countenanced by any legal recognition of same-sex relationships, especially by making them equal to the God-appointed institution of marriage!

However, from an Agnostic Naturalistic point of view, I think that Judge Walker's argument is a total success.  As marriage is a human institution, created by humans and for humans, we humans can make it whatever we want it to be.  We can change the definition and the standards of it however we like.  There is no good Agnostic basis for maintaining the idea of a hierarchy of genders, or the inequality of races, or the inequality of same-sex compared to opposite-sex relationships.  I cannot think of a good reason to be opposed to homosexuality from an Agnostic point of view, or for limiting people's freedoms and equality on the basis of it.  I see no reason not to default to freedom and equality if same-sex couples wish to utilize the institution of marriage.  If same-sex couples wish to do like opposite-sex couples often have done by entering into a union of two people for mutual support, stability, to maintain a household, etc., why not let them do it?  What harm would it cause?  I can't think of any harm that can be proven by evidence.  Same-sex couples are capable of fulfilling the requirements of marriage under California law (particularly now that there are no gender role requirements after the abolition of coverture), so why not let them do it?  This is just one more step in an American tradition of removing prejudices and altering civil institutions such as marriage to conform to our progress.


Having determined that plaintiffs seek to exercise their fundamental right to marry under the Due Process Clause, the court must consider whether the availability of Registered Domestic Partnerships fulfills California's due process obligation to same-sex couples. The evidence shows that domestic partnerships were created as an alternative to marriage that distinguish same-sex from opposite-sex couples. FF 53-54; In re Marriage Cases, 183 P3d 384, 434 (Cal 2008) (One of the "core elements of th[e] fundamental right [to marry] is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships."); id at 402, 434, 445 (By "reserving the [p. 115] historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership," the state communicates the "official view that [same-sex couples'] committed relationships are of lesser stature than the comparable relationships of opposite-sex couples."). Proponents do not dispute the "significant symbolic disparity between domestic partnership and marriage." Doc #159-2 at 6.

California has created two separate and parallel institutions to provide couples with essentially the same rights and obligations. Cal Fam Code § 297.5(a). Domestic partnerships are not open to opposite-sex couples unless one partner is at least sixty-two years old. Cal Fam Code § 297(b)(5)(B). Apart from this limited exception —— created expressly to benefit those eligible for benefits under the Social Security Act —— the sole basis upon which California determines whether a couple receives the designation "married" or the designation "domestic partnership" is the sex of the spouses relative to one another. Compare Cal Fam Code §§ 297-299.6 (domestic partnership) with §§ 300-536 (marriage). No further inquiry into the couple or the couple's relationship is required or permitted. Thus, California allows almost all opposite-sex couples only one option —— marriage —— and all same-sex couples only one option —— domestic partnership. See id, FF 53-54.

The evidence shows that domestic partnerships do not fulfill California's due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. FF 53-54. [p. 116] Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. Id, Cal Fam Code § 297 (Gov Davis 2001 signing statement: "In California, a legal marriage is between a man and a woman.... This [domestic partnership] legislation does nothing to contradict or undermine the definition of a legal marriage.").

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. FF 53-54. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation "marriage" significantly disadvantages plaintiffs. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.

Some people who are sympathetic with the legal difficulties of being same-sex partners in the United States today, but who don't want to give the term "marriage" to same-sex unions, suggest instead that these unions be given legal rights and privileges under another name, such as "civil unions" or "domestic partnerships," as described above.

Judge Walker well points out the problems with this view, looking at things from an Agnostic point of view.  The problem is that "domestic partnership" is an inferior institution to "marriage," for reasons the judge brings out clearly.  "Domestic partnership" simply doesn't have the same social meaning as marriage.  To give essentially the same rights, rolls, and responsibilities to domestic partners that are given to those who are married but to withhold from them the word "marriage" is to suggest that same-sex unions are inferior to opposite-sex unions.  It is a "separate but equal" tactic (and we know how well those tend to work).  Remember, in a social contract scheme of government we are to default to freedom and equality.  We cannot withhold freedoms from a group of people for no reason, and we cannot treat them as unequal for no reason.  But there is no Agnostic reason to think of same-sex unions as inferior.  Same-sex couples can fulfill all the responsibilities and rolls associated with marriage under California law.  California law does not require couples to choose or be able to have children.  It does not require certain gender hierarchies to be recognized; gender is irrelevant to marriage roles.  We have a grand and wholly appropriate American tradition of adjusting our social institutions to conform to more progressive understandings of freedom and equality.  There is nothing that can be proven to be objectively wrong with same-sex unions, and they can fulfill the legal requirements of marriage, so it is mere unjustified prejudice to refuse to grant the term "marriage" to same-sex unions.  There is simply no good reason not to do so.  So we should do so.

Of course, this reasoning fails terribly if we assume a biblical rather than an Agnostic worldview.  We Christians would completely agree that we ought to default to freedom and equality, and that we ought not to suggest that any relationship is inferior to any other unless there is good reason to do so.  But there is great reason to do so in this case!  Homosexuality is a terrible sin!  Homosexual relationships are essentially evil, while heterosexual relationships are essentially good.  The former are displeasing to God and invite his wrath, while the latter are pleasing to him (when conformed in other ways to his laws as well) and invite his blessings.  Sounds like a good reason for treating the two different kinds of relationships with "symbolic disparity" to me!  Sure, we should be careful not to treat equal things unequally.  But just as surely, we ought to make sure we treat unequal things unequally!  Thus, the judge once again shows that he is approaching this issue from some other worldview than biblical Christianity.  Is that worldview Agnosticism?  We can't fully tell yet.  But it will become entirely clear before the end.


Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections." West Virginia State Board of Education v Barnette, 319 [p. 117] US 624, Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Carey v Population Services International, 431 US 678, 686 (1977). Because the government defendants declined to advance such arguments, proponents seized the role of asserting the existence of a compelling California interest in Proposition 8.

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs' due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs' fundamental right to marry; proponents stipulated that "[t]here is a significant symbolic disparity between domestic partnership and marriage." Doc #159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

The title of this section says it all.  It is just summing up what has already been said, mostly.  We can't withhold "marriage" from same-sex couples because in doing so we would be treating same-sex unions unequally for no good reason.  (That is, for no good reason if we look at things from some worldview other than biblical Christianity.)

Many people got upset with the part where Judge Walker says that the fact that Proposition 8 was passed by a majority vote is irrelevant.  How undemocratic!  But, actually, the judge's response here is consistent with how the US has traditionally dealt with matters involving fundamental freedoms and rights.  For example, the courts would not allow a state to vote slavery back into law.  Should they?  The social contract system of the United States is built on elaborate and very nuanced theories about how to deal with these sorts of things.  In order to preserve the basic rights and freedoms of people to live how they want as much as possible, the US has traditionally removed basic rights and freedoms from being subject to simple majority-rule processes.

We Christians would agree that basic rights and freedoms should not be subject to simple majoritarian processes.  We would disagree with the Agnostic United States, however, with regard to what the list of basic rights and freedoms contains.  You can be sure that the biblical Christian version of this list does not include a right to same-sex marriage!  But why not include this right in a list based on some other worldview, such as Agnosticism?


The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." US Const Amend XIV, § 1. Equal protection is "a pledge of the protection of equal laws." Yick Wo v Hopkins, 118 US 356, 369 (1886). The guarantee [p. 118] of equal protection coexists, of course, with the reality that most legislation must classify for some purpose or another. See Romer v Evans, 517 US 620, 631 (1996). When a law creates a classification but neither targets a suspect class nor burdens a fundamental right, the court presumes the law is valid and will uphold it as long as it is rationally related to some legitimate government interest. See, for example, Heller v Doe, 509 US 312, 319-320 (1993).
The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Minnesota v Clover Leaf Creamery Co, 449 US 456, 464 (1980). Even under the most deferential standard of review, however, the court must "insist on knowing the relation between the classification adopted and the object to be attained." Romer, 517 US at 632; Heller, 509 US at 321 (basis for a classification must "find some footing in the realities of the subject addressed by the legislation"). The court may look to evidence to determine whether the basis for the underlying debate is rational. Plyler v Doe, 457 US 202, 228 (1982) (finding an asserted interest in preserving state resources by prohibiting undocumented children from attending public school to be irrational because "the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc"). The search for a rational relationship, while quite deferential, "ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law." Romer, 517 US at 633. The classification itself must be related to the purported [p. 119] interest. Plyler, 457 US at 220 ("It is difficult to conceive of a rational basis for penalizing [undocumented children] for their presence within the United States," despite the state's interest in preserving resources.).

Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner. See Romer, 517 US at 633. Yet, to survive rational basis review, a law must do more than disadvantage or otherwise harm a particular group. United States Department of Agriculture v Moreno, 413 US 528, 534 (1973).

Again, the basic idea here is simply that we can't limit anyone's freedom or equality unless we have a good reason.


Plaintiffs challenge Proposition 8 as violating the Equal Protection Clause because Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry's choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry's choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.

The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their [p. 120] sexual orientation; that discrimination continues to the present. FF 74-76. As the case of Perry and the other plaintiffs illustrates, sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual's sexual orientation. See FF 42-43. Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

Proponents argue that Proposition 8 does not target gays and lesbians because its language does not refer to them. In so arguing, proponents seek to mask their own initiative. FF 57. Those who choose to marry someone of the opposite sex —— heterosexuals —— do not have their choice of marital partner restricted by Proposition 8. Those who would choose to marry someone of the same sex —— homosexuals —— have had their right to marry eliminated by an amendment to the state constitution. Homosexual conduct and identity together define what it means to be gay or lesbian. See FF 42-43. Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42-43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 ("Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].") (June 28, 2010) (citing Lawrence, 539 US at 583 (O'Connor, J, concurring)).
Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them [p. 121] specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs' equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

The basic idea here is that Proposition 8 discriminates on the basis of sex and sexual orientation.  The judge assumes that both are wrong.  Proposition 8 discriminates on the basis of sex because it prevents some persons from marrying others based on those persons' genders.  A man could marry Stier, but Perry cannot because she is a woman.  A man is thus allowed to do something a woman is not allowed to do.

Likewise, Proposition 8 discriminates on the basis of sexual orientation.  It limits a freedom based on the sexual orientations of the people involved.  It prevents the sort of marriage homosexuals would want while allowing the sort of marriage heterosexuals would want.

This is one of my favorite parts of this section:   "Proponents argue that Proposition 8 does not target gays and lesbians because its language does not refer to them. In so arguing, proponents seek to mask their own initiative."  The judge does indeed unmask the intentions of the proponents of Prop 8 here.  Of course they were intending to target homosexuals!  The whole point of Prop 8 was to prevent homosexuals from being able to have legally-recognized homosexual marriages.  Sure, those homosexuals would still be free to marry in a heterosexual manner.  But this is not granting them full liberty to live as homosexuals.  To say otherwise is like saying that a law prohibiting mass does not limit the freedom to worship of Roman Catholics because they can always go to a Protestant church instead.  Of course such a law would be discriminating against Roman Catholics!  And of course Prop 8 discriminates against homosexuals in the same sort of way.

From the judge's point of view, it is bad to discriminate against homosexuality and thus homosexuals.  But from a biblical point of view (which is clearly not the one the judge is approaching things from), it is right and just to so discriminate.  It is entirely appropriate for the law to discriminate against bad and harmful things and in favor of good and helpful things, according to God's law.


As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.

Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. Massachusetts Board of Retirement v Murgia, 427 US 307, 313 (1976) (noting that strict scrutiny may be appropriate where a group has experienced a "'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities" (quoting San Antonio School District v Rodriguez, 411 US 1, 28 (1973)). See FF 42-43, 46-48, 74-78. Proponents admit that "same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities." PX0707 at RFA No 21.

The court asked the parties to identify a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation. Doc [p. 122] #677 at 8. Proponents pointed only to a difference between same-sex couples (who are incapable through sexual intercourse of producing offspring biologically related to both parties) and opposite-sex couples (some of whom are capable through sexual intercourse of producing such offspring). Doc #687 at 32-34. Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating. Consider, by contrast, City of Cleburne v Cleburne Living Center, 473 US 432, 444 (1985) (Legislation singling out a class for differential treatment hinges upon a demonstration of "real and undeniable differences" between the class and others); see also United States v Virginia, 518 US 515, 533 (1996) ("Physical differences between men and women...are enduring."). No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to "real and undeniable differences" that the government might need to take into account in legislating.

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

In short, there are different standards of review.  In order to limit freedoms and equality, a law must have some good reason to do so.  But when such limitations are suspicious, such as when they are directed to people who have been historically unjustly discriminated against, they must be examined even more carefully, or strictly, to be sure there is a really good reason for them.  The judge's position is that as homosexuals have such a history of discrimination, this case deserves the stricter sort of review; but it doesn't really matter, because it fails even cursory review as there is no good reason for it at all.

To be continued . . . 

See Part II.

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