Reading the Prop. 8 Decision So You Don’t Have To

As Frazgo so helpfully posted, federal district Chief Justice Vaughn Walker ruled on Wednesday that Proposition 8 was unconstitutional — the first time that such a law was struck down on federal (as opposed to state) grounds.  Briefs were submitted yesterday on the issue of whether California gay couples can get out their tuxes and dresses and party like it was pre-Prop. 8 2008, or if we must wait until all appeals have been exhausted (it may be a year from now before the appeal is even heard) (awesomely, both the state Attorney General and the Governator filed briefs requesting that the state be permitted to marry gay couples (to each other)).  Judge Walker’s opinion is lengthy — all 136 pages of it can be read here — but you don’t need to be a lawyer to get through it and understand how he came to is conclusion.  I pulled a few of the choicest quotes that track his thinking, which I hope makes the decision easier to understand.

FYI – to you lawyer nerds, I’ve omitted all citations and am citing to his opinion non-Bluebook style.  Take that, law journal.

The Basics

The state is interested in … “A state’s interest in an enactment must of course be secular in nature.  The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”  (at 8)

ˈmarij: “Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”  (at 67)

Judge Walker’s Findings of Fact (based extensively on the evidence presented at trial)

Why California even cares about ‘marij. “The state has many purposes in licensing and fostering marriage.”  Purposes include: “Facilitating governance and public order by organizing individuals into cohesive family units”; “Developing a realm of liberty, intimacy and free decision-making by spouses”; “Creating stable households”; and “Legitimating children.” (at 67-68).

Why we even care about ‘marij. “States and the federal government channel benefits, rights and responsibilities through marital status.  Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs[.]”  (at 68)

Gay people have been here since the beginning of time, so all of you who say being queer is “unnatural” are a little behind in their World Studies class.  We’re on page 2010.  “Same-sex love and intimacy are well-documented in human history.  The concept of an identity based on object desire;that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.”  (at 71)

… and gays are here to stay. “Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”  (at 74)

Gays are just like straights!  I know, this is why many straight people are scared of the gays.  Fear of the self is very confusing.

Love for random film festivals is just one of the many characteristics that both homosexuals and heterosexuals share.

“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.  Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.  Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.” (at 79)

[^^ I guess that had to be said, officially and judiciously.]

Separate.  Not equal.

“Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.”  (at 85)

The campaign against Prop. 8 failed, but the campaign to support it failed even more. “The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian.  The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements.  Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.”  (at 105)


Judge Walker’s Conclusions of Law

Due Process. “Due process protects individuals against arbitrary governmental intrusion into life, liberty or property.” (at 109)

[Background: Under a long line of Supreme Court cases, the individual freedom to marry is considered a fundamental right protected by the Due Process clause of the U.S. Constitution.  The Due Process issue in the Prop. 8 case was whether gay couples who wished to get married were seeking to exercise their individual (and fundamental) rights to marry (which then would be protected under the Due Process clause), or whether they were seeking to create a new right (which would not necessarily be protected under the clause).]

Anyway you slice it, you’re comparing apples to apples. “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.” (at 114)

“California has created two separate and parallel institutions to provide couples with essentially the same rights and obligations. … domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage.  [D]omestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. …   The record reflects that marriage is a culturally superior [social] status compared to a domestic partnership.  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.”  (at 116) (emphasis added)

Tyranny of the majority sucks.

You also have a right to equal protection of the laws

[Background: Under the Fourteenth Amendment of the U.S. Constitution, no state can deny its citizen equal protection of its laws.  However, laws often do create certain classes of people and treat the classes differently –  for example, for purposes of being able to buy alcohol, the law distinguishes between those under 21 and those 21 and over.  If the law’s classification scheme calls out individuals in a “suspect class” –  a group of people historically discriminated against – the state’s interest in enacting the law must be “compelling.”  The court will take a narrow reading of the law to balance the state’s interest with the constitutional rights of the suspect class members.  The court engages in the same type of “strict scrutiny” analysis if the law affects a “fundamental right” like the right to marry (see above).

On the other hand, if the law does not affect a suspect class or a fundamental right, it will be upheld so long as it is rationally related to some legitimate state interest.  Judge Walker, having determined that the fundamental right to marry was on the line, could have – but did not – analyze Prop. 8 using the strict scrutiny analysis.  Instead, the bulk of his opinion here is that Prop. 8 violates the Equal Protection clause because it does not even survive the considerably more lenient rational basis test.]

On the argument that Prop. 8 is rationally tied to the state’s interest in “reserving” marriage as a union between a man and a woman:  No.  You make reservations at a restaurant, not at the altar. “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. … 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.”  (at 124)

On the argument that Prop. 8 is rationally tied to the state’s interest in promoting opposite-sex parenting over same-sex parenting:  No.  Regardless of whether the parents are gay or straight, their children likely will have issues that will have to be worked out in future therapy sessions. “Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.  Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying.”  (at 127)

“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.”  (at 128)

On the argument that Prop. 8 was rationally tied to the state’s interest in protecting the rights of those who oppose same sex marriage: No. Hey, I don’t approve of straight marriage, but you don’t see me trying to pass  a law against it.    “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, […] those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.”  (at 130)

Fine, hate us, but stop projecting already. “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.  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 Palmore v Sidoti, 466 US 429, 433(1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”)” (at 132)


“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.” (at 135)


(watch the video that this parodies here)

4 thoughts on “Reading the Prop. 8 Decision So You Don’t Have To”

  1. Wow, what a read that is and glad you beat me to it. Quite the undertaking but you broke it down well. Now if the appeals continue to go our way all will be well with the world.

  2. Congrats to the Religious Right. Judge Walker has just given them the decision they have been clamoring for….one based solely upon the evidence presented in open court and upon a strict reading of the Federal Constitution EXACTLY as it was written!

  3. Thanks Queequeg, great job! I too read the decision with interest. I think the most important takeaway for non-lawyers is the screenshot you provided, quoting the 1943 U.S. Supreme Court decision in West Virginia State Board of Ed.: “that the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote.'”

    Rights & protections guaranteed by the Constitution, such as freedom of speech, freedom of religion, and, at issue here, the 14th Amendment rights not to be deprived of liberty without due process, and to be granted equal protection of the laws, can’t be taken away by a majority of voters at any given time. Those constitutional provisions are there to protect minorities of different types from, as your heading indicates, “the tyranny of the majority.” If that were not the case, we would probably have had slavery, racial segregation, and lack of voting rights for women longer than we did in the U.S.

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