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.

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