I was around both the good Attorneys (ones I would refer to has having backbone and heart) and bad Lawyers (leeches of the highest order). It doesn't surprise me that both are present in this case.
But the case itself in terms of the plaintiff's, three gay couples in this case, argument was sound: Prop 8 violated both due process of law and equal protection clauses of the US Constitution. Or, more to the point, the 14th amendment:
US Constitution Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis mine)If you go back and read the language of Prop 8 (as short as it was) it shouldn't take a rocket surgeon to see the argument is a moral rather than legal argument:
Section 2. Article I. Section 7.5 is added to the California Constitution. to read:In such simple language you due process and equal protection on its ear. You no longer care if they love each other, just that the relationship is of "Tab A into Slot B" type (though this doesn't take into account other slots ~_^).
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
- During trail the "... proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences." But once the trial started the court was "...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." This is what we call "McCarthy and his list" gambit. We know how that turned out in the end: McCarthy under a bus, and many lives ruined. See a pattern here?
- The defendants also claimed that "[T]he state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households." Again we turn a legal argument into a moral (and morass) one. The state is not in charge of the family. No study to date, that has any accreditation, shows that a gay or lesbian couple creates a family that is worse off than a hetro or even in single patent scenario. Though it has been studied quite a bit (here's a nice example for one).
- Blankenhorn, later in the document, "...testified that marriage is “a socially-approved sexual relationship between a man and a woman." Yet again we turn from legal to moral standards for an argument.
- It gets better when the court was to argue whether or not there was evidence for Prop 8's enactment that showed it was advancing a moral view rather than a legitimate government interest. If you read above I've given you two, but here's a direct quote from the docket:
The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.
Does any of this sound legal to you? No, the 14th amendment protects everyone whom are US citizens from undue laws. Plain and simple. It would just as much to say every 'Ginger' in the world is completely amoral and should be neutered at birth. Given my Scotch-Irish heritage I have enough red-heads in my family that I wouldn't have a family anymore if they were all sterilized (yes I know this is a straw man argument, but forgive me the basic idea is similar).
To their utmost credit the plaintiffs. Rather than calling a whole one they called up 9 witnesses, and then themselves (totalling 4, or two very much in love couples) to bear against the proposition. Some highlights from those nine:
"Lee Badgett, an economist, testified as an expert on demographic information concerning gays and lesbians, same-sex couples and children raised by gays and lesbians, the effects of the exclusion of same-sex couples from the institution of marriage and the effect of permitting same-sex couples to marry on heterosexual society and the institution of marriage. Badgett offered four opinions: (1) Proposition 8 has inflicted substantial economic harm on same-sex couples and their children; (2) allowing same-sex couples to marry would not have any adverse effect on the institution of marriage or on opposite-sex couples; (3) same-sex couples are very similar to opposite-sex couples in most economic and demographic respects; and (4) Proposition 8 has imposed economic losses on the State of California and on California counties and municipalities."
For a cash strapped state as mine, we need all the revenue we can get. And in this economy doubly so.
"Letitia Anne Peplau, a psychologist, was qualified as an expert on couple relationships within the field of psychology. Peplau offered four opinions: (1) for adults who choose to enter marriage, that marriage is often associated with many important benefits; (2) research has shown remarkable similarities between same-sex and opposite-sex couples; (3) if same-sex couples are permitted to marry, they will likely experience the same benefits from marriage as opposite-sex couples; and (4) permitting same-sex marriage will not harm opposite-sex marriage."
Again, like I've linked before in this post, evidence shows there are no differences between same-sex or different-sex parents in terms of child rearing.
So pushing forward to the actual meat here: What the exact ruling was. Basically, this part of the process is done. Judge Vaughn Walker, on grounds that Prop 8 violated due process and equal protection, has struck down the law as unconstitutional. Siting that the "freedom to marry is recognized as a fundamental right protected by the Due Process Clause," and that "[n]ever has the state inquired into procreative capacity or intent before issuing a marriage license." Importantly he noted "[The] 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."
Moreover the Judge cited that domestic partnerships (open to same-sex relationship or different-sex if one partner is over 62 years old) and marriage created "two separate and parallel institutions to provide couples with essentially the same rights and obligations." This was listed in the defendant's arguments that homosexual couples do have a legal outlet to become married in a way. Walker's conclusion was that "... evidence shows that domestic partnerships do not fulfill California’s due process obligation" because domestic partnerships are distinctly different than marriage and do not "..provide the same social meaning as marriage." This difference, while upholding legal rights, creates a disadvantage as marriage holds "a culturally superior status compared to a domestic partnership."
Something that caught my eye, telling of how far we have come as a country can be pulled right from the conclusion:
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. 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. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals.We're a step closer now to that true idea of equality for all. An appeal has been filed already by the proponents of measure. This will almost assuradly make its way to SCOTUS in a few years. What will happen then only time will tell.
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