Thoughts on the Prop 8 Ruling

Some preliminary thoughts, jotted down as I read the decision striking down Prop 8, the California initiative banning same-sex marriage.

Back on PL, I once wrote that several years of students writing about SSM had convinced me that there were no good arguments against it. Apparently Judge Vaughn Walker agrees.

…proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships ” would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.

In some ways this trial seems analogous to the Dover creationism trial, where those defending the indefensible are unable to rise to the task of mounting an effective defense. For example:

At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.” … During closing arguments (at trial), proponents again focused on the contention that “responsible procreation is really at the heart of society’s interest in regulating marriage.” When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.”

Not only did they lack evidence in support of their argument, they lacked witnesses to present their lack of evidence.

Plaintiffs presented eight lay witnesses…and nine expert witnesses. Proponents’ evidentiary presentation was dwarfed by that of plaintiffs. Proponents presented two expert witnesses and…failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.

It seems that in such a crucial case the opponents of same-sex marriage would surely have made their best case. It would be irrational to not put forth the best arguments available for their side. And so I believe they did–I believe they did the absolute best that could be done in arguing against same-sex marriage, and to a federal District Court judge it came out as, “We want to enforce a ‘private moral view’.”

The defendants of Prop 8 further damaged themselves with their own witnesses. They withdrew four of their expert witnesses after depositions, but before trial. But the plaintiffs in the case then placed into evidence the deposed testimony of two of those witnesses because it actually supported their case, rather than the plaintiffs’ case. And their main witness ended up testifying under cross-examination that:

1. Opposite-sex and same-sex marriages were functionally identical (even down to raisin children);

2. Children being raised by homosexuals would be better off if their adoptive parents were married;

3. That he had in fact written, and agrees with, the statement that “the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before.”

This is the defense of a law prohibiting same-sex marriage? The phrase “dog and pony show” irresistibly comes to mind. But this is good news for supporters of same-sex marriage who, like me, arte worried about how this case will play out in the higher courts. Since the Governor–a named defendant–refused to make any defense of the law, and the Attorney General–also a named defendant–stipulated that the law was unconstitutional, any future defense of this case in the 9th Circuit Court of Appeal or before the Supreme Court will presumably have to be by this same collection of folks who apparently got their legal education here. I’m far from ready to declare victory, but it’s good when one’s opponents are bumbling fools.

In fact the defendants themselves provided ample reason to agree with Judge Walker that they were trying to use the state to enforce a “private moral view” (the Judge’s words). One, Hak-Shing William Tam, is the secretary for the “America Return to God Prayer Movement.” As if that’s not a blatant enough demonstration that they are relying on religion, rather than law, the Judge notes that their website, “,” argued that “Proposition 8 will cause states one-by-one to fall into Satan’s hands.” As bad as falling into Satan’s hands would be, it’s indisputably not the government’s job to protect us from it. Justice Scalia might go for their logic, but how many other Supremes will be willing to openly say that enforcing religious morality is the duty of the state?

Judge Walker brings a contemporary phrasing to Madison’s Federalist 10 warnings about tyranny of the majority.

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

One of the interesting aspects of this case is that while conservatives allegedly hate the use of social science evidence (the Brandeis Brief) in legal cases, the entire case of the Prop 8 defendants was based on (pseudo) social science, with not a lick of real legal argument. Maybe they just hate that approach because they don’t do it well.

In reviewing the testimony, Judge Walker quoted two of the plaintiffs, who movingly explain why marriage matters to her.

To Perry, marriage would provide access to the language to describe her relationship with Stier: “I’m a 45-year-old woman. I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.” Stier explained that marrying Perry would make them feel included “in the social fabric.” Marriage would be a way to tell “our friends, our family, our society, our community, our parents * * * and each other that this is a lifetime commitment * * * we are not girlfriends. We are not partners. We are married.”

The decision is clearly written with an eye to the higher courts. Judge Walker attempts to presumptively rebut all legal arguments that a socially conservative justice might find persuasive, including citing Scalia’s dissent in Lawrence v. Texas, where Scalia notes that the state’s interest in marriage is “not the procreation of children, since the sterile and the elderly are allowed to marry.” Walker knows the game he’s playing, and who his real opponents are. Those who don’t think the courts are a political branch aren’t paying close attention.

Some opponents of SSM have already–prior to the ruling–complained that the judge hearing the case is gay. Presumably he should recuse himself because he has a personal interest. By the same token, however, no straight judge who is married or interested in being married could avoid having a personal interest. The ideal judge for this case would have been a completely asexual unmarried person. Perhaps Justice Souter could have been given a special appointment to hear it.

None of the above directly addresses the legal crux of the case–whether the 14th Amendment’s Due Process and Equal Protection clauses secure the right to same-sex marriage, or whether the state has a legitimate interest in denying marriage rights to homosexuals. Obviously Judge Walker said yes and no to those questions. But I’ve written enough here. Perhaps I’ll address that issue more specifically in a future post.


About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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8 Responses to Thoughts on the Prop 8 Ruling

  1. Mark Boggs says:

    I’ve read snippets of Scalia’s dissent in Lawrence v. Texas and he argues that that ruling (Lawrence) would open up not just the possibility but the affirmation of the legality of same-sex marriage. I still don’t understand how people can seem to think that you get to vote on whether some human Americans get to enjoy the same rights that other human Americans get to enjoy. Shall we vote on whether wide swaths of people (let’s say Muslims, for instance) get to enjoy all the rights that Christians enjoy? Sadly, many folks would jump at that ballot.

  2. James K says:

    I still don’t understand how people can seem to think that you get to vote on whether some human Americans get to enjoy the same rights that other human Americans get to enjoy.

    Democracy has been elevated to the modern equivalent of the Divine Right of Kings. Once you’ve internalised the notion that the beliefs of 50% + 1 of the population are ipso facto correct, then it’s only natural that people will feel that it’s appropriate to vote on questions of human rights. After all, that’s the democratic thing to do. Why do you hate democracy Mark?

    That’s not to say that democracy doesn’t have it’s place. It’s a better method of transitioning power than most, it can aggregate people’s values pretty well and it makes tyranny a bit less likely. But one should never make the mistake of thinking that just because democracy has good in it, that it is all good all the time. One can have too much democracy, and I believe many Western countries have too much at the moment.

  3. Mark Boggs says:

    I don’t know that I’d go so far as to say that there might be too much democracy but too much ignorance about the fact that, as you state, just because 50% + 1 think something is right or wrong, or worse yet, offensive, doesn’t mean that they get to legislate it. I miss John Stuart Mill.

  4. James Hanley says:

    it can aggregate people’s values pretty well

    Hmm, that’s pretty hard to measure. What’s your standard for comparision?

  5. AMW says:

    Opposite-sex and same-sex marriages were functionally identical (even down to raisin children)

    Gay couples have raisin children?! If that’s not a legitimate government interest then I don’t know what is.

  6. James Hanley says:

    No, AMW, both same-sex couple and opposite sex couples do, hence they’re functionally identical. I have to admit, the raisin business came as a bit of a surprise to me, although I do think my own kids are pretty grape, although sometimes a bit winey.

  7. James K says:

    Every other political system in existence, I’m grading on a curve here.

    Markets are better preference aggregators, but when everyone has to abide by the same choice, you really need government, and democracy is still the best system we have for that. Even Robin Hanson’s futarchy proposal has democratic elements for aggregating collective values.

  8. AMW says:

    Somebody e-mail Hanley: DAR’s hijacked his account.

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