Monday, September 24, 2012

Further Thoughts Connected to the Cameronian Controversy

In an earlier post, I critiqued the Presbyterian position on civil authority known as Cameronianism.  In this post, I would like to add some further thoughts and clarifications that are relevant to that controversy and to the nature of civil authority in general.  I hope that these thoughts may aid dialogue between Cameronian and non-Cameronian Presbyterians.

It seems to me, as I continue to think about it, that there are really two distinct issues/questions involved in the Cameronian controversy.  The conversation can proceed much more clearly if these two issues are kept properly distinct.

1. Can only magistrates who meet the full biblical requirements indicating how civil magistrates should behave be considered legitimate, duly constituted, de jure civil magistrates?

My answer to that questions is no.  As we saw in the previous post on Cameronianism, the Scriptures indicate that anyone who, by providence, is actually filling the role of civil authority, regardless of how he came to fill that role, should be obeyed and honored as having civil authority.  I am going to make some more nuanced comments on this in a moment, but for now we can note from this fact that God holds the role of civil magistrate so important to human welfare that he wants us to recognize and support whomever is actually filling that role at any given time.  We are not to go without civil authority.

The importance with which God holds the role of civil magistrate is also seen in the fact that he commands his people to appoint civil rulers.  This is not an optional thing, but a commanded thing.  Again, we are not to go without civil authority.

If civil authority is so important to God, and if God commands his people to support even pagan rulers when he in his providence has put such over them,  then it is clear that whomever has the best claim to civil authority over a body of people should be considered to have de jure authority, even if he be pagan.  If a pagan government claims authority over a people, and there is no better claimant challenging that claim, then, as the people are to have civil rulers, this government should be considered to have legitimate, duly constituted, de jure civil authority over that people.

We can also see the answer to this question by looking at the essential nature of civil government.  It is of the essence of church government that it be Christian.  It is not necessarily of the essence of church government that it fully fulfill all the ideal requirements of God.  It can be imperfect in various ways and still be overall legitimate.  But it must be Christian, because the entire point of church government is to teach the Christian religion and to shepherd the members of Christ's church in that religion in doctrine and life.  A non-Christian church of Christ would obviously be a contradiction in terms.

On the other hand, it is not of the essence of parental government that it be Christian.  Parents are indeed commanded to raise up their children "in the nurture and admonition of the Lord," to teach them the law of God, etc.  It is one of the main roles of parents to raise up godly children, trained in Christian thinking and virtues.  However, the parental role can still exist and function to some degree even when parents are non-Christian.  Children are commanded to obey their parents in general, not just those that are Christians.  Just as husbands and wives still have duties relative to one another even when one or both are not Christians, so parents and children have duties relative to one another when one or more are not Christian.  Parents have a right and a responsibility, de jure, to care for and raise up the children who are under their care, whether the parents be Christian or not.  If they are not Christian, they will do this very badly in some very important ways, but it is still their rightful responsibility to do it, and in some aspects they may do well at it.  Children cannot withhold obedience to their parents on the grounds that their parents are not Christians, but are to submit to them in obedience to their lawful commands simply because they are their proper parents.

Civil government, in its nature, is more like parental government in this respect than it is like church government.  Though it is true that a civil government will rule wrongly in a number of crucial ways if it be not Christian, yet civil authority can still exist and function and have purpose even where civil governors are not Christian.  They can still restrain wrongs such as murder, theft, etc., and if they are duly and legitimately constituted they have a right and a responsibility to do so, and the people under them have a duty to obey and honor them.

Therefore, the Westminster Confession is quite right when it says that "infidelity, or difference in religion, doth not make void the magistrates' just and legal authority, nor free the people from their due obedience to them" (WCF 23:4).

2. Are all actually functioning civil governments, allowed to exercise authority by the providence of God, legitimate, duly constituted, de jure civil governments?

It seems to me that the answer to this question is no as well.  This is a distinct question from the former question.  I think that many of those opposed to Cameronian imbalances (including myself) have often not adequately articulated a clear answer to this question.

One of the main objections Cameronians have against a non-Cameronian position is that it seems absurd to say that any government which has actually become able to exercise power, no matter how villainous their methods of obtaining and maintaining that power, are to be regarded as having de jure, legitimately constituted, civil authority, and the right to rule.  Under this reasoning, if I conquer a country by means of unjust violence, and I end up actually winning, and I subjugate the people, as soon as I have succeeded I can quote Romans 13 and say that I am the rightful, legitimate ruler over the people, no matter what the conquered people may want, as if there has been nothing wrong with my method of attaining power.  Does God put his mark of sanction in this way on wicked and violent actions?  Surely a person who attains power in this way is not a rightful ruler, but a usurper and a tyrant!  This is especially the case if the previous ruling party has not been entirely destroyed, but has perhaps been banished or imprisoned, so that it would be possible to return the realm to their authority.  Does not the conqueror have a moral obligation to return the realm to its previous rulers if possible, or can he quote Romans 13 and refuse to do so on the grounds that he is now the rightful, duly constituted civil authority?  The Cameronians hold that it would be absurd to say that such a conqueror has fully legitimate authority.

I think the Cameronians are right about this.  If I have attained power illegally, and the previous legal power still exists and could have rule returned to it, surely my rule is illegitimate.  I am a thief, and I have a moral obligation to return power to its rightful owner.  And even if I have utterly wiped out the previous ruling powers, still I have attained my power illegally and unjustly, and so I ought to arrange for fair elections to be held so that new civil powers can be legally chosen (per Deuteronomy 1:9-18, etc.).  If I do not do so, I continue to hold my power illegally, just as I attained it illegally.  If, on the other hand, the people are given the chance but do not want to create a new government, but have come to accept my authority willingly (or at least they do not think it worth opposing and proposing an alternative), then while I attained power illegally and ought to repent of that, yet probably I can now continue to hold power legally.  The acquiescence of the people and--if any remain--the previous authorities would make my rule henceforth legitimate.

It seems evident that if power is attained and maintained illegally, that power should not be considered legitimate and de jure.  If a person kidnaps a child, he cannot declare himself the new "power that be" in the child's life and on that ground consider himself the rightful parent and refuse to return the child to his actual parents.  If a church officer attains office through fraudulent means, surely he cannot claim that his exercise of authority is still legitimate and de jure simply because he has been successful in his fraudulent dealings.  Surely this applies to civil magistrates as well.  If they attain authority illegally (like Absalom, or like Athaliah), and their authority is not by some legal act made legitimate, it remains illegitimate and illegal.

Passages like Romans 13:1-7, 1 Peter 2:13-17, etc., which teach that de jure authority belongs to whomever God in his providence places over a people, do not imply that there is no such thing as illegitimate rule.  If a conqueror conquers a nation, and the people and/or the original rulers do not agree to it (as is implied in the very idea of "conquest"), we should say that the providence of God has not in fact placed the conqueror over the people in a position of authority.  It is not simply the ability of someone to use power to make people do what they want that gives de jure authority, and I see no reason to think that passages like Romans 13, etc., are saying that it is.  If this were the case, then thugs in a dark alley mugging someone could be said to have de jure authority to take people's money, or a gang in an inner city with enough power to beat the lawful police could be said to have de jure authority to rule and be obeyed.  But instances in Scripture such as Absalom and Athaliah indicate that this is not the Scriptural view.  Rather, a ruler can be said to have legitimate de jure authority to rule if providence has placed him in a situation where he has the best claim to a legitimate right to rule.  The Roman government in the days of the early church had attained their rule by illegal conquest, and yet by the time of the New Testament there were no real, legal contenders to their position, and so their authority could be considered de jure.  And that is why Christ, and Paul and Peter and the whole New Testament, treat them as having de jure authority.

There is one more thing that ought to be added here briefly:  In some situations, a legitimate governing body may be overpowered by an illegitimate one.  This does not make the conquering party legitimate per se, as we've just been saying, but it may require the people, temporarily, to act in some ways as if the conquerors are legitimate.  For example, if a gang gets control of part of a city to such a degree that the true law enforcement cannot practically exercise jurisdiction, in this case, as a (hopefully) temporary and non-ideal expedient, the people may, practically in some ways, need to treat the gang leaders as if they are the true governors, simply because given the situation they are actually functioning as such and the only ones who are.  So if the gang offers some semblance of law and order, it would be appropriate for the people to take advantage of this in cases of necessity; and the gang, while holding its illegitimate rule, would have a moral obligation to provide such services.  (They would have a higher moral obligation to give up their rule, but we can sometimes talk about lower moral obligations in cases where higher moral obligations are not being met.)  We could compare this to a situation where the only skilled doctor in an area is an illegally-practicing surgeon.  Ordinarily, this "doctor" should not be practicing medicine, but if a need arises which only he can fulfill, it would be appropriate for him to use his skills to meet that need, and it would be appropriate for those in need to make use of his skills (while not condoning his illegality).

In closing, I think the above observations show that the Cameronian position does have more merit in some aspects than it is perhaps often given credit for.  And those who have opposed Cameronianism have sometimes fallen into an opposite imbalance (by acting as if there is no such thing as illegitimate rule).  However, even taking these things into account, the Cameronian position itself still shows itself to be imbalanced in some areas.  Hopefully, the addition of further clarity here will aid in dialogue between the differing positions.

Saturday, September 22, 2012

An Examination of the Court Case That Overturned Proposition 8 in California: Part 2


Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed. See Background to Proposition 8 above.

Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting opposite-sex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest.


Proponents first argue that Proposition 8 is rational because it preserves: (1) "the traditional institution of marriage as the union of a man and a woman"; (2) "the traditional social and legal purposes, functions, and structure of marriage"; and (3) "the traditional meaning of marriage as it has always been defined in [p. 124] the English language.” Doc #605 at 12-13. These interests relate to maintaining the definition of marriage as the union of a man and a woman for its own sake.

Tradition alone, however, cannot form a rational basis for a law. Williams v Illinois, [399 U.S. 235|399 US 235]], 239 (1970). The "ancient lineage" of a classification does not make it rational. Heller, 509 US at 327. Rather, the state must have an interest apart from the fact of the tradition itself.

The evidence shows that the tradition of restricting an individual's choice of spouse based on gender does not rationally further a state interest despite its "ancient lineage." Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. See FF 26-27. California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman. FF 32. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state's interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender. See FF 32, 57.

Proponents' argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex [p. 125] 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. See FF 48-50. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. Moreno, 413 US at 534.

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.

Now Judge Walker turns to examining the reasons presented by proponents of Prop 8 as to why it ought to be allowed to stand.  This is a fascinating section.  The proponents of Prop 8 well knew that religious reasons would not be deemed acceptable in court, because the US civil government is not Christian but secular (that is, Agnostic).  I imagine it is likely that that is why they chose to limit themselves to arguments that would make sense within the circle of Agnosticism.  But in choosing to approach their case this way, they made a dreadful mistake.  It turns out there is really no good reason not to allow same-sex marriages on Agnostic grounds, and the arguments the proponents offer are terrible.  The judge knocks them down with great skill and effectiveness, as we will see.  One often gets the impression that a proponent's argument made sense in some other worldview, but when translated into Agnosticism it lost its substance.

This first argument is a wonderful example of this.  Basically, the proponents' argument goes like this:  "We should only use the term 'marriage' to refer to a relationship between a man and a woman, because that is how the word has always been used in the past.  So we shouldn't change it."

Of course, the judge has already effectively dealt with this wimpy argument.  Actually, we have changed the legal definition of marriage a number of times in the past.  We have a tradition of doing so in order to bring it more in line with more progressive notions of freedom and equality.

The judge could, of course, add much more here.  There have been all kinds of marriages in human history, and not all forms of marriage ever practiced have looked like Christian traditional marriage.

Why can't we change the definition of marriage if we want to?  After all, who invented marriage?  "God did!" you say.  Hey, stop violating the separation of church and state by bringing God into this!  God is not allowed in our secular (Agnostic) courtrooms.  From an Agnostic point of view, so far as we know, humans are the inventors of marriage.  So humans can change it!  Of course we can alter our own institutions in order to make them better!  Why in the world would that not include marriage?

It should be obvious that "we've always done it that way before" is no good reason not to do things differently in the future.  Why should we be condemned to always do everything just as we have done it in the past, no matter how much our ideas have improved over the years?  Of course there is no reason to hold such a ridiculous attitude.  Tradition alone is no basis to warrant preserving irrational laws and policies.

One gets the impression that the proponents have not exactly said what they were thinking in putting forward this argument.  I have a feeling they might actually have been thinking something like this, at least subconsciously:  "We can't change the meaning of marriage, because it's always been between a man and a woman, because that's how God designed it to be!"  Now that would be a wonderful, absolutely conclusive argument, if it were true!  If God, the Creator and Ultimate Moral Authority of the entire universe, who owns everything and everyone, has said that marriage is between a man and a woman and that everyone should view it in that way, then that's the way everyone (including the US government) ought to view it!  But this is a Christian idea, and so not one that Judge Walker or the US government would be interested in.  It is not a secular (Agnostic) argument.  Perhaps that is why proponents didn't bring it up.  What they brought up instead is a lousy, wimpy alternative that the judge very nicely knocked down flat.


Proponents next argue that Proposition 8 is related to state interests in: (1) "[a]cting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution"; (2) "[d]ecreasing the probability of weakening the institution of marriage"; (3) "[d]ecreasing the probability of adverse consequences that could result from weakening the institution of marriage"; and (4) "[d]ecreasing the probability of the potential adverse consequences of same-sex marriage." Doc #605 at 13-14.

Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change. See FF 55. Instead, the evidence shows beyond debate that allowing same-sex couples to marry has at least [p. 126] a neutral, if not a positive, effect on the institution of marriage and that same-sex couples' marriages would benefit the state. Id. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8. FF 55, 62.

The contrary evidence proponents presented is not credible. Indeed, 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. See Background to Proposition 8 above. Consider, by contrast, Cooper v Aaron, 358 US 1, 7 (1958) (recognizing that a school district needed time to implement racial integration but nevertheless finding a delay unconstitutional because the school board's plan did not provide for "the earliest practicable completion of desegregation"). 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. California need not restructure any institution to allow same-sex couples to marry. See FF 55.

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.

If you want to pass a law limiting someone's freedom or equality, you'd better have a better reason than, "I'm afraid that undefined, vague, bad things will happen if we don't!"  But that is what this second argument of proponents gives us.  What bad things will happen, and how do we know they will happen, if same-sex marriages are recognized?

Proponents suggest that recognizing same-sex marriages will result in "weakening the institution of marriage"?  How will it do that?  I can't see how.  Presumably we are talking about the civil institution of marriage as defined in California law.  Of course, legalizing same-sex marriages would have a negative effect on the institution of marriage as defined by the Christian point of view, because it would destroy its very meaning.  But an Agnostic state doesn't care about that.  I don't see how recognizing same-sex marriage would at all be detrimental to the institution of marriage as viewed by California law.  How is an institution weakened simply by allowing more people to be involved in it?  Did allowing interracial couples of marry weaken the institution of marriage?  No. Did getting rid of coverture weaken the institution of marriage?  Not from an Agnostic point of view, though yes from a Christian point of view.  Same-sex couples are quite capable of filling all the roles and responsibilities of marriage as defined by California law.  So why not let them do it?  One wouldn't have to change the idea of marriage at all, except for getting rid of an arbitrary restriction limiting it to one man and one woman.  The core idea--two people making commitments to support a stable household, for mutual comfort and benefit--would remain entirely intact.  What bad things will happen if we let same-sex couples in?  I can't think of any, from an Agnostic point of view.  Proponents must do better than simply to throw out vague, undefined fears.  Such fears are always thrown out every time there is social change.  If we always listen to such fears without making them prove their point, we will never progress at all.


Proponents' largest group of purported state interests relates to opposite-sex parents. Proponents argue Proposition 8: (1) promotes "stability and responsibility in naturally procreative relationships"; (2) promotes "enduring and stable family structures for the responsible raising and care of children by their biological parents"; (3) increases "the probability that natural procreation will occur within stable, enduring, and supporting family structures"; (4) promotes "the natural and mutually beneficial bond between parents and their biological children"; (5) increases "the probability that each child will be raised by both of his or her biological parents"; (6) increases "the probability that each child will be raised by both a father and a mother"; and (7) increases "the probability that each child will have a legally recognized father and mother." Doc #605 at 13-14.

The evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality, FF 69-73, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents, FF 43, 46, 51.

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. FF 70. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. FF [p. 128] 57. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. FF 49. 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 California law. FF 49, 57.
To the extent California has an interest in encouraging sexual activity to occur within marriage (a debatable proposition in light of Lawrence, 539 US at 571) the evidence shows Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage. FF 53. Domestic partnerships, in which sexual activity is apparently expected, are separate from marriage and thus codify California's encouragement of non-marital sexual activity. Cal Fam Code §§ 297-299.6. To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.

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. FF 50. [p. 129] Proponents failed to put forth any credible evidence that married opposite-sex households are made more stable through Proposition 8. FF 55. 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. See FF 50, 56.

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.

Won't legally recognizing same-sex marriages harm children and cause more unstable households?

How, exactly, will it do so?  "Studies have shown that children do better when raised by both a father and a mother."  Have they?  Which ones?  Are you sure?  I think it is widely acknowledged that studies have shown that children do better in two-parent homes than in single-parent homes.  But that is not the issue here.  Have there been studies which have shown that children do better (that is, "better" in an Agnosticly-recognized way) in two-gender households than in one-gender households?  I am not aware of any clear studies that have shown that.  Neither, apparently, were the proponents of Prop 8, as they didn't present any.  Without evidence, this claim is not a valid basis to withhold a fundamental right from a group of people.

The issue is not relevant anyway, as Prop 8 only prevents same-sex couples from marrying.  It does not prevent them from adopting children.  Therefore, all Prop 8 would be likely to do is to cause more children to be raised in unmarried rather than married same-sex-couple homes.

Is the argument that same-sex married households would tend to be less stable than heterosexual married households?  Well, where's the evidence for this?  Can you prove that homosexual households must, inherently, be less stable than heterosexual ones?  I can think of no reasons why that must be the case.  I find it somewhat dubious actually, especially considering the current level of stability often exhibited in heterosexual married households in America today!  Homosexual households would have to work pretty hard to be in a worse state overall!

I think one could make a pretty good argument, even on Agnostic grounds, that the cavalier attitude towards marriage held by many today, the frequency of divorce, the casual attitude towards sex, and the general selfishness of people entering into relationships, and other things, are causing harm to children in America today.  But Prop 8 didn't go after any of these things.  It went after same-sex marriages, which seem to me to be as inherently prone to doing these other things just as rightly or wrongly as heterosexual unions.  There is good evidence that these other things I've mentioned cause stability issues.  I know of no good evidence to suggest that homosexuality per se or homosexual unions per se cause stability issues.

So this argument too lacks merit.  It is probably based mostly on revulsion at the idea of children being raised by homosexuals, on the grounds that homosexuality is bad.  But that homosexuality is bad must be proved, not merely assumed.  Why is it bad?  Is it bad?  On biblical grounds, it surely is!  And surely being raised by homosexuals--that is, by ungodly rebels living in rebellion against God's moral law--would be very bad for children from a Christian point of view.  But the judge doesn't care about the Christian point of view.  This is not a Christian nation, but a secular one--that is, an Agnostic one.


Proponents next argue that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. Proponents argue that Proposition 8: (1) preserves "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children"; and (2) accommodates "the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds." Doc #605 at 14.

These purported interests fail as a matter of law. Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children. See In re Marriage Cases, 183 P3d at 451-452. Californians are prevented from distinguishing between same-sex partners and opposite-sex spouses in public accommodations, as California antidiscrimination law requires identical treatment for same-sex unions and opposite-sex marriages. Koebke v Bernardo Heights Country Club, 115 P3d 1212, 1217-1218 (Cal 2005). The evidence shows that Proposition 8 [p. 130] does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. 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. FF 62.

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.

The concern expressed by proponents of Prop 8 here is that their rights will be infringed if same-sex marriages are legalized.  What rights are they concerned about, specifically?  There are a few things they probably have in mind.  Here are some of them:

1. They are concerned that those who are opposed to same-sex marriage might have to countenance it by, say, being required to perform same-sex wedding ceremonies if they are ministers.

The response would be that this is unrelated to the issue at hand.  All that Prop 8 does is prevent the legal recognition of same-sex marriages.  There is nothing in the idea of same-sex marriages being legally recognized that inherently requires that all ministers be required to perform same-sex wedding ceremonies.  If this is the real concern, proponents should not be trying to stop legal recognition of same-sex marriages but should rather be focusing their attention on protecting the legal rights of ministers to not perform such ceremonies.  Imagine a parallel case where a group of people try to make interracial marriage illegal on the grounds that if it becomes legal, ministers who are against it might end up being required to perform interracial ceremonies.  Is this a good reason to stop a whole group of people from being able to exercise their fundamental right to marry?  Is it right to interfere with someone else's rights to protect your own, even when it is not necessary?  It might be argued in that case that it would be good not to require ministers to perform interracial wedding ceremonies.  A good case might be made for this on Agnostic grounds.  But surely there is no good case at all for dealing with this other problem by trying to take away a right that is not necessary to take away in order to deal with it!  Likewise with regard to same-sex marriage.  If there is no good reason not to allow same-sex couples to get married like everyone else, then it would be absurd to stop them from being able to do so for a concern that is not directly related.

2. They are concerned that same-sex marriage will further along the mainstreaming of homosexuality, leading to more anti-discrimination laws, such as laws that require an owner of an apartment complex to rent to same-sex couples.

But, again, if this is the real concern, this is an absurd way to go about dealing with it.  Again, imagine the parallel:  Frank is opposed to interracial marriage.  It is against his religion, and he doesn't want to have anything to do with it.  Frank owns an apartment complex.  Frank leads a campaign to legally ban recognition of interracial marriages on the grounds that permitting them might make interracial relationships more popular and thus possibly lead to him being required to rent out his apartments to interracial couples.  But is this not an absurd reason to stop an entire group of people from marrying?  Are we going to take away the fundamental rights of an entire group of people merely on the grounds that giving them those rights might possibly lead to a situation where my rights are infringed in some other area?  Instead, Frank should leave interracial marriage rights alone and focus his attention on the actual issue of concern--preserving a right for himself to refuse to rent out his apartments to interracial couples.  Likewise in the case of same-sex marriage.

3. Perhaps proponents are concerned that the legal recognition of same-sex marriages will lead to the public school system teaching children that homosexual marriages are OK, and thus parents will be forced to have their children educated against their own values.

Well, you know the routine.  Imagine a group of parents trying to get interracial marriage to be banned on the grounds that if it is recognized, this is likely to lead to public schools teaching children that it is OK, while these parents are opposed to it.  But, again, is this a good reason to try to ban marriages for an entire group of people?  Doesn't it make more sense to focus on the actual issue of concern and try to work for parental rights over children in the public schools?

I think that the concerns of proponents of Prop 8 regarding the protection of their own freedoms are something that would be worth taking seriously in an Agnostic social contract society.  Perhaps proponents could make a good case for legal barriers of various sorts protecting those rights.  These would be issues worth further consideration.  But they are really unrelated to the question of whether same-sex couples ought to be allowed to marry.  It surely makes no sense to deal with these concerns by preventing the exercise of some other right by others instead of by focusing directly on the points of concern themselves.  And that is what the judge basically concludes.


Proponents argue that Proposition 8 advances a state interest in treating same-sex couples differently from opposite-sex couples by: (1) "[u]sing different names for different things"; (2) "[m]aintaining the flexibility to separately address the needs of different types of relationships"; (3) "[e]nsuring that California marriages are recognized in other jurisdictions"; and (4) "[c]onforming California's definition of marriage to federal law." Doc #605 at 14.

Here, proponents assume a premise that the evidence thoroughly rebutted: rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same. FF 47-50. The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state [p. 131] interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.

In addition, proponents appear to claim that Proposition 8 advances a state interest in easing administrative burdens associated with issuing and recognizing marriage licenses. Under precedents such as Craig v Boren, "administrative ease and convenience" are not important government objectives. 429 US 190, 198 (1976). Even assuming the state were to have an interest in administrative convenience, Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples. See FF 53. Domestic partnerships create an institutional scheme that must be regulated separately from marriage. Compare Cal Fam Code §§ 297-299.6 with Cal Fam Code §§ 300-536. California may determine whether to retain domestic partnerships or eliminate them in the absence of Proposition 8; the court presumes, however, that as long as Proposition 8 is in effect, domestic partnerships and the accompanying administrative burden will remain. Proposition 8 thus hinders rather than advances administrative convenience.

It should be evident to the reader that these concerns raised by proponents of Prop 8 are just as weak, or actually even weaker, than their previous arguments.  Let me get this straight:  We should deny the exercise of the fundamental right to marry to an entire group of people on the grounds that it might create a lot of paperwork for administrators?!  Does anything really need to be said here?  I think the judge deals with this quite nicely.

But this is a hugely important section of this entire document.  In this section, the real heart of the matter is reached.  The real issue at the heart of all of this is expressed by the judge in these words:  "The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state [p. 131] interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8."

Having examined the views and arguments of proponents of Prop 8, the judge notes that all of their arguments and claims have been extremely weak, and they have been weak because they have not expressed the real basis for opposition to legal recognition of same-sex marriage.  They have instead been merely side-arguments masking that real basis.  The real basis of the opposition is the "moral and religious views" of the proponents.  In the end, the real reason why most of those who are opposed to same-sex marriage are so opposed is because they think that homosexuality is immoral, and almost always there is a religious basis to that opinion.  Not always, to be sure, but the vast majority of the time.

But, as the judge will say explicitly in our last section in this document, moral and religious views cannot be the basis of civil law.  They do not provide a "rational basis" for civil law.  Why not?  Well, the judge doesn't say.  But the reason is patently obvious.  From the perspective of an Agnostic worldview, religious beliefs have nothing to do (at least so far as we can tell) with objective reality.  They are subjective opinions with no backing by objective fact.  Moral views rooted in them also therefore have no backing in objective reality.  Therefore, such religious and moral views cannot be the basis of civil law, because not all people can reasonably be expected to agree with them.  Would you want people making laws that limit your exercise of fundamental freedoms simply on the grounds of the pronouncements of their ouija boards, or their horoscopes, or tea-leaf readings?  No?  Why not?  Because these things have no rational basis in the objective evidence.  Therefore, they do not provide any good reason to limit people's freedoms.  Remember, we default to freedom and equality unless there is some objectively good reason not to.  Surely the irrational beliefs of some religious people are not at all adequate.  To limit freedoms based on religious and other subjective beliefs and preferences would not only be irrational, but it would be unjust, as it would violate the rights of others to be left to do as they wish so long as they are not causing objectively recognized harms.

Now the judge's own worldview, or at least the worldview from which he is doing his judging, is quite clear.  What is the name of the worldview which holds that religious beliefs are merely subjective, without objective evidence, and therefore have no rational basis?  The name of that worldview is Agnosticism.  We are not at all surprised, because we already knew that the official worldview of the US government is Agnosticism.  The judge is acting entirely in accord with established precedent by looking at the issue from an Agnostic point of view.

Of course, if we look at things rather from a biblical Christian point of view, things look quite different.  From that point of view, is there a rational basis in objective fact to not legally recognize same-sex marriages?  You bet there is!  There is an abundance of good reason!  God, the Creator, Owner, and Ultimate Moral Authority of the universe is opposed to homosexuality and tells us to be as well.  He calls it a wicked sin, says it leads (if unrepented of) to eternal damnation, and commands societies to punish the public practice of it with the death penalty, and he threatens judgment on societies that tolerate it.  If all of this is true and it does not constitute a good reason not to legally recognize same-sex marriages, then nothing possibly could!  But, instead, the judge declares that only religious and private moral reasons are behind opposition to same-sex marriage, and so there is no rational basis for such opposition, and thus no reason not to legally recognize same-sex marriages.  Good, consistent, Agnostic thinking.

The section below is the conclusion of the document.  As you read it, keep in mind what I've just said and watch the judge's non-neutral, anti-Christian, Agnostic worldview clearly on display.


Finally, proponents assert that Proposition 8 advances "[a]ny other conceivable legitimate interests identified by the parties, amici, or the court at any stage of the proceedings." Doc #605 at 15. But proponents, amici and the court, despite ample opportunity and a full trial, have failed to identify any rational basis Proposition 8 could conceivably advance. Proponents, [p. 132] represented by able and energetic counsel, developed a full trial record in support of Proposition 8. The resulting evidence shows that Proposition 8 simply conflicts with the guarantees of the Fourteenth Amendment.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.


In the absence of a rational basis, what remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) ("[T]he Constitution cannot control [private biases] but neither can it tolerate them.").

[p. 133] The evidence shows that Proposition 8 was a hard-fought campaign and that the majority of California voters supported the initiative. See Background to Proposition 8 above, FF 17-18, 79-80. The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce "profound and deep convictions accepted as ethical and moral principles" through the criminal code. 539 US at 571. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California's obligation is to treat its citizens equally, not to "mandate [its] own moral code." Id (citing Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992)). "[M]oral disapproval, without any other asserted state interest," has never been a rational basis for legislation. Lawrence, 539 US at 582 (O'Connor, J, concurring). Tradition alone cannot support legislation. See Williams, 399 US at 239; Romer, 517 US at 635; Lawrence, 539 US at 579.

Proponents' purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something "wrong" with same-sex couples. See FF 78-80.

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: [p. 134] a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. FF 79-80. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. FF 79-80; See PX0016 Video, Have You Thought About It? (video of a young girl asking whether the viewer has considered the consequences to her of Proposition 8 but not explaining what those consequences might be).

At trial, proponents' counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. See PX0390A Video, Ron Prentice Addressing Supporters of Proposition 8, Excerpt; Tr 132:25-133:3 (proponents' counsel to Katami: "But the fact is that what the Yes on 8 campaign was pointing at, is that kids would be taught about same-sex relationships in first and second grade; isn't that a fact, that that's what they were referring to?"). The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual. FF 79; PX0099 Video, It's Already Happened (mother's expression of horror upon realizing her daughter now knows she can marry a princess).

The testimony of George Chauncey places the Protect Marriage campaign advertisements in historical context as echoing messages from previous campaigns to enact legal measures to disadvantage gays and lesbians. FF 74, 77-80. The Protect Marriage campaign advertisements ensured California voters had these previous fear-inducing messages in mind. FF 80. The [p. 135] evidence at trial shows those fears to be completely unfounded. FF 47-49, 68-73, 76-80.
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.


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.

[p. 136] REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.




United States District Chief Judge

I do not have much more to add.  The judge, consistent with general modern American self-understanding, has done a wonderful job analyzing this issue on the basis of assumptions derived from an Agnostic worldview and a social contract theory of civil government, as opposed to a biblical Christian worldview and the theory of civil government advanced in God's Word.  His conclusion makes perfect sense in light of his worldview, and is completely absurd in light of a biblical Christian worldview.  Here we see in full display the fact that the official religion of the United States is Agnosticism and not biblical Christianity.

Notice, too, the incredible naivete routinely expressed by Agnostics in this country (I suspect that such naivete is a general human trait among those whose worldviews are currently dominant and thus tend to go without serious challenge in daily life).  The judge says that "California's obligation is to treat its citizens equally, not to 'mandate [its] own moral code.'"  The law should not mandate a moral code.  If the law were to oppose same-sex marriages on the basis of the moral views flowing from a Christian worldview, it would be "mandating a moral code."  But if the law comes out in favor of same-sex marriages on the basis of moral views flowing from an Agnostic worldview, it is not "mandating a moral code" but merely "treating its citizens equally."  Sure!

Also notice that judge's conclusion regarding the motives of those opposed to same-sex marriage:  "FF 76, 79-80; Romer, 517 US at 634 ('[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.')."  Obviously, since proponents have no rational reason to be opposed to same-sex marriage, but only their silly moral and religious views, they must really be motivated by "animosity."  They must really just hate homosexuals!  I mean, what other reason could they possibly have?  What other reason indeed.  Not much, from an Agnostic point of view--that is, from the universally recognized, so-obvious-that-no-one-could-possibly-really-disagree right point of view.

See Part I.

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.