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→‎Evaluation of expert witnesses: Walkers evaluation takes up 27 pages of the ruling; it is excessive to reproduce them all here. Replaced with relevant summary.
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=== Evaluation of expert witnesses ===
=== Evaluation of expert witnesses ===
{{expand section | the Court's evaluation of other expert witnesses}}


The court found that all nine of the witnesses presented by the plaintiffs as experts "were amply qualified to offer opinion testimony on the subjects identified" and "offered credible opinion testimony on the subjects identified."<ref name=opinion>[https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf Opinion]</ref> The defense proffered two witnesses as experts. David Blankenhorn, who had been allowed to testify, was ultimately judged as lacking "the qualifications to offer opinion testimony".<ref name=opinion /> The court found that Kenneth P. Miller's "opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence."<ref name=opinion />
From the court opinion:<ref name=opinion>[https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf Opinion]</ref>

<blockquote>
<p>Plaintiffs presented eight lay witnesses, including the
four plaintiffs, and nine expert witnesses. Proponents’
evidentiary presentation was dwarfed by that of plaintiffs.
Proponents presented two expert witnesses and conducted lengthy and
thorough cross-examinations of plaintiffs’ expert witnesses but
failed to build a credible factual record to support their claim
that Proposition 8 served a legitimate government interest.</p>
<p>As the education and experience of each expert show, plaintiffs’ experts were amply qualified to offer opinion testimony on the subjects identified. Moreover, the experts’ demeanor and responsiveness showed their comfort with the subjects of their expertise. For those reasons, the court finds that each of plaintiffs’ proffered experts offered credible opinion testimony on the subjects identified.</p>
<p>Nancy Cott, a historian, testified as an expert in the history of marriage in the Untied States. Cott testified that marriage has always been a secular institution in the United States, that regulation of marriage eased the state’s burden to govern an amorphous populace and that marriage in the United States has undergone a series of transformations since the country was founded.</p>
<p>[[George Chauncey]], a historian, was qualified to offer testimony
on social history, especially as it relates to gays and
lesbians. Chauncey testified about the widespread private and
public discrimination faced by gays and lesbians in the
twentieth century and the ways in which the Proposition 8
campaign echoed that discrimination and relied on stereotypes
against gays and lesbians that had developed in the twentieth
century.
Chauncey testified about a direct
relationship between the Proposition 8 campaign and initiative
campaigns from the 1970s targeting gays and lesbians; like earlier
campaigns, the Proposition 8 campaign emphasized the importance of
protecting children and relied on stereotypical images of gays and
lesbians, despite the lack of any evidence showing that gays and
lesbians pose a danger to children. Chauncey concluded that the
Proposition 8 campaign did not need to explain what children were
to be protected from; the advertisements relied on a cultural
understanding that gays and lesbians are dangerous to children.
This understanding, Chauncey observed, is an artifact of
the discrimination gays and lesbians faced in the United States in
the twentieth century. Chauncey testified that because homosexual
conduct was criminalized, gays and lesbians were seen as criminals;
the stereotype of gay people as criminals therefore became
pervasive. Chauncey noted that stereotypes of gays and lesbians as
predators or child molesters were reinforced in the mid-twentieth
century and remain part of current public discourse. Lamb
explained that this stereotype is not at all credible, as gays and
lesbians are no more likely than heterosexuals to pose a threat to
children.</p>
* Chauncey is a professor of history and American studies at Yale University; from 1991-2006, Chauncey was a professor of history at the University of Chicago;
* Chauncey received a PhD in history from Yale University in 1989;
* Chauncey has authored or edited books on the subject of gay and lesbian history, including Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994) and Hidden from History: Reclaiming the Gay and Lesbian Past (1989, ed);
* Chauncey relies on government records, interviews, diaries, films and advertisements along with studies by other historians and scholars in conducting his research;
* Chauncey teaches courses in twentieth century United States history, including courses on lesbian and gay history.
<p>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.
Badgett testified that same-sex and opposite-sex
couples are very similar in most economic and demographic respects.</p>
* Badgett is a professor of economics at UMass Amherst and the director of the Williams Institute at UCLA School of Law;
* Badgett received her PhD in economics from UC Berkeley in 1990;
* Badgett has written two books on gay and lesbian relationships and same-sex marriage: Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001) and When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009); Badgett has also published several articles on the same subjects;
* Badgett co-authored two reports (Brad Sears and M V Lee Badgett, The Impact of Extending Marriage to Same-Sex Couples on the California Budget, The Williams Institute (June 2008) and M V Lee Badgett and R Bradley Sears, Putting a Price on Equality? The Impact of Same-Sex Marriage on California’s Budget, 16 Stan L & Pol Rev 197 (2005)) analyzing the fiscal impact of allowing same-sex couples to marry in California;
* Badgett has been invited to speak at many universities and at the American Psychological Association convention on the economics of same-sex relationships;
* Badgett has testified before federal and state government bodies about domestic partner benefits and antidiscrimination laws.
<p>Edmund A Egan, the chief economist in the San Francisco
Controller’s Office, testified for CCSF as an expert in urban
and regional economic policy. Egan conducted an economic
study of the prohibition of same-sex marriage on San
Francisco’s economy and concluded that the prohibition
negatively affects San Francisco’s economy in many ways.</p>
* As the chief economist for CCSF, Egan directs the Office of Economic Analysis and prepares economic impact analysis reports for pending legislation;
* In preparing economic impact reports, Egan relies on government data and reports, private reports and independent research to determine whether legislation has “real regulatory power” and the effects of the legislation on private behavior;
* Egan received a PhD in city and regional planning from UC Berkeley in 1997;
* Egan is an adjunct faculty member at UC Berkeley and teaches graduate students on regional and urban economics and regional and city planning.
<p>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.
Peplau pointed to research showing that, despite
stereotypes suggesting gays and lesbians are unable to form stable
relationships, same-sex couples are in fact indistinguishable from
opposite-sex couples in terms of relationship quality and stability.
Peplau testified that the ability of same-sex couples to marry will
have no bearing on whether opposite-sex couples choose to marry or
divorce.</p>
* Peplau is a professor of psychology and vice chair of graduate studies in psychology at UCLA;
* Peplau’s research focuses on social psychology, which is a branch of psychology that focuses on human relationships and social influence; specifically, Peplau studies close personal relationships, sexual orientation and gender;
* Peplau began studying same-sex relationships in the 1970s;
* Peplau has published or edited about ten books, authored about 120 peer-reviewed articles and published literature reviews on psychology, relationships and sexuality.
<p>Ilan Meyer, a social epidemiologist, testified as an expert in
public health with a focus on social psychology and
psychiatric epidemiology. Meyer offered three opinions: (1)
gays and lesbians experience stigma, and Proposition 8 is an
example of stigma; (2) social stressors affect gays and
lesbians; and (3) social stressors negatively affect the
mental health of gays and lesbians.
Meyer testified about the harm
gays and lesbians have experienced because of Proposition 8. Meyer
explained that Proposition 8 stigmatizes gays and lesbians because
it informs gays and lesbians that the State of California rejects
their relationships as less valuable than opposite-sex
relationships. Proposition 8 also provides state endorsement of
private discrimination. According to Meyer, Proposition 8
increases the likelihood of negative mental and physical health
outcomes for gays and lesbians.</p>
* Meyer is an associate professor of sociomedical sciences at Columbia University’s Mailman School of Public Health;
* Meyer received a PhD in sociomedical sciences from Columbia University in 1993;
* Meyer studies the relationship between social issues and structures and patterns of mental health outcomes with a specific focus on lesbian, gay and bisexual populations;
* Meyer has published about forty peer-reviewed articles, teaches a course on gay and lesbian issues in public health, has received numerous awards for his professional work and has edited and reviewed journals and books.
<p>[[Gregory M. Herek|Gregory Herek]], a psychologist, testified as an expert in
social psychology with a focus on sexual orientation and
stigma. Herek offered opinions concerning: (1) the nature of
sexual orientation and how sexual orientation is understood in
the fields of psychology and psychiatry; (2) the amenability
of sexual orientation to change through intervention; and (3)
the nature of stigma and prejudice as they relate to sexual
orientation and Proposition 8. Herek
explained that homosexuality is a normal expression of human
sexuality; the vast majority of gays and lesbians have little or no
choice in their sexual orientation; and therapeutic efforts to
change an individual’s sexual orientation have not been shown to be
effective and instead pose a risk of harm to the individual.
Proponents did not present testimony to contradict Herek but
instead questioned him on data showing that some individuals report
fluidity in their sexual orientation. Herek responded that the
data proponents presented does nothing to contradict his conclusion
that the vast majority of people are consistent in their sexual
orientation.</p>
* Herek is a professor of psychology at UC Davis;
* Herek received a PhD in personality and social psychology from UC Davis in 1983;
* Social psychology is the intersection of psychology and sociology in that it focuses on human behavior within a social context; Herek’s dissertation focused on heterosexuals’ attitudes towards lesbians and gay men;
* Herek regularly teaches a course on sexual orientation and prejudice;
* Herek serves on editorial boards of peer-reviewed journals and has published over 100 articles and chapters on sexual
orientation, stigma and prejudice.
<p>[[Michael Lamb]], a psychologist, testified as an expert on the
developmental psychology of children, including the
developmental psychology of children raised by gay and lesbian
parents. Lamb offered two opinions: (1) children raised by
gays and lesbians are just as likely to be well-adjusted as
children raised by heterosexual parents; and (2) children of
gay and lesbian parents would benefit if their parents were
able to marry.
Lamb testified that all available
evidence shows that children raised by gay or lesbian parents are
just as likely to be well-adjusted as children raised by
heterosexual parents and that the gender of a parent is immaterial
to whether an adult is a good parent. When proponents challenged
Lamb with studies purporting to show that married parents provide
the ideal child-rearing environment, Lamb countered that studies on
child-rearing typically compare married opposite-sex parents to
single parents or step-families and have no bearing on families
headed by same-sex couples. Lamb testified that the relevant
comparison is between families headed by same-sex couples and
families headed by opposite-sex couples and that studies comparing
these two family types show conclusively that having parents of
different genders is irrelevant to child outcomes.</p>
* Lamb is a professor and head of the Department of Social and Developmental Psychology at the University of Cambridge in England;
* Lamb was the head of the section on social and emotional development of the National Institute of Child Health and Human Development in Washington DC for seventeen years;
* Lamb has published approximately 500 articles, many about child adjustment, has edited 40 books in developmental psychology, reviews about 100 articles a year and serves on editorial boards on several academic journals;
* Lamb received a PhD from Yale University in 1976.
<p>Gary Segura, a political scientist, testified as an expert on
the political power or powerlessness of minority groups in the
United States, and of gays and lesbians in particular. Segura
offered three opinions: (1) gays and lesbians do not possess a
meaningful degree of political power; (2) gays and lesbians
possess less power than groups granted judicial protection;
and (3) the conclusions drawn by proponents’ expert Miller are
troubling and unpersuasive.
Segura provided many examples of
ways in which private discrimination against gays and lesbians is
manifested in laws and policies. Segura testified that negative
stereotypes about gays and lesbians inhibit political compromise
with other groups: “It’s very difficult to engage in the give-andtake
of the legislative process when I think you are an inherently
bad person. That’s just not the basis for compromise and
negotiation in the political process.” Segura
identified religion as the chief obstacle to gay and lesbian
political advances.</p>
* Segura is a professor of political science at Stanford University and received a PhD in political science from the University of Illinois in 1992;
* Segura and a colleague, through the Stanford Center for Democracy, operate the American National Elections Studies, which provides political scientists with data about the American electorate’s views about politics;
* Segura serves on the editorial boards of major political science journals;
* Segura’s work focuses on political representation and whether elected officials respond to the voting public; within the field of political representation, Segura focuses on minorities;
* Segura has published about twenty-five peer-reviewed articles, authored about fifteen chapters in edited volumes and has presented at between twenty and forty conferences in the past ten years;
* Segura has published three pieces specific to gay and lesbian politics and political issues;
* Segura identified the methods he used and materials he relied on to form his opinions in this case. Relying on his background as a political scientist, Segura read literature on gay and lesbian politics, examined the statutory status of gays and lesbians and public attitudes about gays and lesbians, determined the presence or absence of gays and lesbians in political office and considered ballot initiatives about gay and lesbian issues.
</blockquote>


=== Legal analysis of the decision ===
=== Legal analysis of the decision ===

Revision as of 22:10, 5 August 2010

Perry v. Schwarzenegger
CourtUnited States District Court for the Northern District of California
Full case nameKristin M. Perry et al., Plaintiffs,
City And County Of San Francisco,
Intervenor-Plaintiffs,
v.
Arnold Schwarzenegger et al., Governor of California, etc., Defendants;
Dennis Hollingsworth
et al., Intervenor-Defendants.
DecidedAugust 4, 2010
Transcript(s)Trial transcripts
Holding
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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.
Court membership
Judge(s) sittingVaughn R. Walker
Keywords
Proposition 8, Marriage, Equal Protection, Same-sex marriage, Sexual Orientation

Kristin M. Perry v. Arnold Schwarzenegger is a federal lawsuit decided by the U.S. District Court for the Northern District of California that challenged the federal constitutional validity of California's Proposition 8. The court decided in favor of the plaintiffs on August 4, 2010.

Proposition 8 is an amendment to the California State Constitution that prohibits the state from recognizing same-sex marriages performed on or after November 5, 2008. It does not affect same-sex marriages entered into before that date. It was adopted as a ballot initiative in 2008. The plaintiffs in Perry sought to have the federal courts strike down Proposition 8 as contrary to the 14th Amendment's guarantee to equal protection. The case is widely regarded as a landmark case that will most likely reach the Supreme Court.[1][2][3]

In 2010, the head litigators for the plaintiffs, Theodore Olson and David Boies, were placed on the Time 100 among the greatest thinkers for their nonpartisan and strong legal approach to challenging Proposition 8.[4]

Background

In May 2008, the California Supreme Court held in the case In re Marriage Cases that state statutes limiting marriage to opposite-sex applicants violated the California Constitution. The following month, same-sex couples were able to marry in California. In November 2008, California's electorate adopted Proposition 8, a constitutional amendment that restored the opposite-sex limitation on marriage.[5] Following the adoption of Proposition 8, several lawsuits were filed that challenged the validity of the amendment under various state constitutional provisions. On May 26, 2009, the California Supreme Court held, in Strauss v. Horton, that Proposition 8 was a lawful enactment, but that same-sex marriages contracted before its passage remained valid.[6]

Three days before the Strauss decision, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California to challenge the validity of Proposition 8 on behalf of two same-sex couples.[7][8][9] The couples' attorneys include former U.S. Solicitor General Theodore Olson, David Boies, and Theodore Boutrous, the former two having worked on opposite sides in the Bush v. Gore case. Olson said that he planned for this case to appear before the Supreme Court within the next two years.[10]

Lambda Legal, the ACLU, and the National Center for Lesbian Rights, who originally won same-sex marriage in California in In re Marriage Cases and defended it in Strauss v. Horton, opposed the move because they felt that a federal challenge could potentially do more harm than good at the present time.[8] Olson and AFER rebuffed this claim, and defended the timing of the lawsuit.[11]

Following a pre-trial hearing on July 2, 2009, the three legal groups moved to intervene in the lawsuit, as did the City of San Francisco in a separate filing. The plaintiffs opposed allowing the groups or the City to intervene.[3] On August 19, Judge Vaughn R. Walker denied the legal groups' motion to intervene but granted the City's, albeit in a limited capacity.[12] Following the failed attempt by the other groups to intervene in the lawsuit, those groups have offered support to the legal team litigating the case, with James Esseks of the ACLU saying: "[w]e are interested in doing whatever we can to make sure their case is as successful as possible".[7]

Parties

Plaintiffs

It was still emotional to be denied [a marriage license]. But in all fairness [to the clerk], she handled it really well. [Her words] reiterated that we were denied equal rights. It made us feel that we made the right decision to be a part of this case.[3]

Jeffrey Zarrillo, co-plaintiff

In May 2009, the Alameda County Clerk-Registrar, Patrick O'Connell, denied Kristin Perry and Sandra Steir a marriage license because they are a same-sex couple. For the same reason, Dean Logan, the Los Angeles County Clerk, denied Paul Katami and Jeffrey Zarrillo a marriage license.[9] The couples sued the two county clerks and several state officials: Governor Arnold Schwarzenegger, Attorney General Jerry Brown, and two officials in the Department of Public Health.[9][13]

Several groups sought to intervene as plaintiffs, including the groups who had prosecuted the In re Marriage Cases and Strauss v. Horton actions.[14] San Francisco also filed a motion to intervene in the case. The city cited its work in the earlier cases that had provided "extensive evidence and proposed findings on strict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination". City Attorney Dennis Herrera said that his office is "singularly well-prepared" to help "put anti-gay discrimination on trial based on the facts".[15] Walker permitted only San Francisco to intervene, as it could speak to the impact of Proposition 8 on local governments.[16] He also ordered the attorney general to assist San Francisco in analyzing Proposition 8's impact. Judge Walker stated that necessary speed and swiftness "on an issue of this magnitude and importance" were required and that the intervention of additional groups would only complicate and stall the case.[17]

Defendants

What's at stake in the Perry case is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman, but whether marriage will be redefined in every state in the nation.[18]

ProtectMarriage.com, Defendant-intervenor

Attorney General Brown chose not to defend the lawsuit, saying that Proposition 8 violates the 14th Amendment and should be struck down.[7][19] Governor Schwarzenegger took a more neutral path,[17] saying that he supported the lawsuit because the Proposition 8 conflict asks "important constitutional questions that require and warrant judicial determination". None of the state officials named in the suit sought to defend the law in court.

Two groups, the official proponents of Proposition 8 led by Dennis Hollingsworth, and a rival group, the Campaign for California Families, sought to intervene as defendants. The court allowed the official proponents to intervene, filling the void left by the state officials' acquiescence. The judge denied the request from the Campaign for California Families.[13][16]

On December 15, Imperial County filed a motion to intervene as defendants despite the fact that the intervenor deadline had passed.[20] They argued that the civil agencies named in the suit, the counties of Alameda and Los Angeles and the state government, were not actively defending the Proposition. They continued to argue that the case needed a proper governmental defendant.[21] The plaintiffs replied by saying that Imperial County's motion was "pure speculation" and that it "itself lacks the standing to appeal".[22]

Pretrial motions

The AFER filed a preliminary injunction that would have immediately restored same-sex marriage in California until the federal suit is decided.[23] Judge Walker tentatively denied the injunction, and said he would instead proceed with a speedy trial.[24]

Plaintiffs requested that the campaign produce internal documents that relate to the purpose and intent of the amendment and the development of political messages during the campaign. The Proposition 8 proponents objected to the request because of the potential chilling effect on political speech, among other grounds.[25] On October 1, Judge Walker rejected the contention that the First Amendment shielded all of those communications.[26] The proponents appealed that decision to the U.S. Court of Appeals for the Ninth Circuit and separately moved to stay the proceedings in the district court. Noting that the proponents were unlikely to succeed in this appeal, Judge Walker rejected the stay request on October 23.[27] Regardless, the proponents continued to assert a First Amendment privilege over these documents, a sampling of which Judge Walker reviewed privately.[28] On December 11, 2009, the Ninth Circuit overturned Walker's ruling, saying that the release of the documents "would likely have a chilling effect on political association and the formulation of political expression".[29]

In September, Proposition 8 proponents filed a motion for summary judgment. Running more than 100 pages, the motion asked the court to rule that Proposition 8 did not offend the U.S. Constitution without the need to find facts at a trial. The motion asserted that Baker v. Nelson forecloses any further review by the court. Failing that, the motion argued that all of the couples' claims failed as a matter of law.[30] After a two-hour hearing on October 13, Judge Walker denied the motion. He noted that the Supreme Court doctrine on sexual-orientation and gender discrimination had changed since 1972. Resolving the amendment's validity, Walker noted, required hearing testimony at trial.[31]

Broadcast and online coverage

Perry would have been the first federal trial to be filmed and be shown live at public courthouses in San Francisco, Pasadena, Seattle, Portland, and Brooklyn, through an experimental new system developed by the Ninth Circuit Appeals Court.[32][33] The trial would have also been shown on the video-sharing website YouTube.[32] Judge Walker noted that he had received 138,574 comments on the plans to broadcast the trial, and all but 32 were in favor.[34]

Two days before the trial, the defendant-intervenors filed emergency papers with the Supreme Court to attempt to bar telecasting the trial, with the court ruling 8-1 to temporarily stay live streaming until Wednesday.[35] Although a coalition of media organizations ranging from CNN and Fox News to prominent online sources like the Associated Press and law-oriented Court TV filed an emergency amicus brief in support of live streaming and delayed broadcast,[36] the court ruled 5-4 in Hollingsworth v. Perry along ideological lines to indefinitely block live streams to various federal courthouses, although it refused to rule on plans to delay broadcasts on YouTube.[37][38]

Despite the ruling, the proceedings elicited unprecedented live coverage through social networking site Twitter from gay-interest magazine The Advocate,[39] the National Center for Lesbian Rights,[40] an official feed from the group representing the plaintiffs (AFER),[41] a California-based progressive organization Courage Campaign,[42] and several independent parties such as Chris Geidner, maintainer of the LGBT-oriented Law Dork blog,[43] San Francisco-based attorney Chris Stoll,[44] and others.

Filmmakers John Ireland and John Ainsworth filmed and distributed a re-enactment of the trial.[45] Actors participating in the project include Adrienne Barbeau, Arye Gross and Tess Harper.[46]

Trial

In an unorthodox move that largely surprised both the plaintiffs and defendants,[47] Judge Walker ordered a trial to be set for January 11, 2010.[7][12] The trial was designed to address issues including "how having same-sex parents affects children and if gay unions undermine male-female marriages[2] the "history of discrimination against gay people", and the "effects on gay people of prejudice".[48] Notable trial witnesses include historian George Chauncey, psychologist Gregory M. Herek, and philosopher Daniel N. Robinson.[48]

The trial opened with opening statements being heard by Judge Walker, with Ted Olson and San Francisco Deputy City Attorney Therese Stewart arguing for the plaintiffs,[49] who themselves subsequently took the stand and gave testimony about their personal experiences as gay Americans and explained the reasons why they wished to get married.[50][49] The plaintiffs sought to prove that marriage is a fundamental right; that depriving gays and lesbians the right to marry hurts them and hurts their children; and there was no reason, no societal benefit in not allowing them to get married.[51] Andrew Pugno opened for the defendants,[49] saying that the burden of proof was on the plaintiffs. He plans to argue only that the people have the "right to vote on what is best".[51]

Following the Supreme Court's decision in Christian Legal Society v. Martinez on June 28, 2010, the plaintiffs in Perry cited the decision by Justice Ginsburg as Supreme Court precedent that sexual orientation is "an identifiable class" in opposition to the defense's argument that sexual orientation is "behavioral".[52] Christian Legal Society had asserted that it did not restrict membership based on sexual orientation but based on "conduct and belief that the conduct is not wrong".[53] Ginsburg rejected that distinction, noting that with respect to sexual orientation the court has "declined to distinguish between status and conduct" and offering an analogy from an earlier opinion: "A tax on wearing yarmulkes is a tax on Jews."[54]

History of marriage

The plaintiffs called as the first expert witness Nancy Cott, an American history scholar who argued that "marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage".[49] The next day, she continued her testimony, which revolved around three key points: how marriage has historically been used "punitively" to demean disfavored groups, how the legally enshrined gender roles in marriage had been disestablished during the 20th century and how the changes in the institution of marriage had mainly involved "shedding inequalities", which she argued strengthens marriage.[55] She emphasized the importance of the institution of marriage by noting that "when slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means".[56] Cott was then cross-examined by David Thompson for the defendants, who quoted books and articles she had written and "asked if she agreed with them".[55]

The defendants argued that marriage has traditionally been between a man and a woman because it provided a stable unit for procreation and child rearing.[57][58]

According to numerous psychology organizations, "there is no evidence or logic that supports a conclusion that denying marriage to same-sex couples would encourage heterosexual couples to marry and procreate. To discourage same-sex couples from forming lasting relationships and procreating, in order to protect the privilege, benefits, and status of marriage reserved for the heterosexual majority is kind of naked discrimination through the political power and will of the majority is, of course, exactly what the Due Process and Equal Protection Clauses of the Fourteenth Amendment prohibit." The groups supporting this statement are the American Association for Marriage & Family Therapy, California Division; the California Association of Marriage and Family Therapists ("CAMFT"); CAMFT-East Bay Chapter; CAMFT-Los Angeles Chapter; CAMFT-Marin County Chapter; CAMFT-San Francisco Chapter; Gaylesta, Inc.; the American Family Therapy Academy; the Lesbian and Gay Psychotherapy Association of Southern California, Inc.; the Women's Therapy Center; California Therapists for Marriage Equality; and The Gottman Institute.[59]

Discrimination

Professor George Chauncey of Yale University, a social historian who specializes in LGBT history,[55] described how previous government campaigns had attempted "to demonize gay people as dangerous sexual deviants and child molesters".[55] He then analyzed campaign material from the Yes on 8 campaign to show how they played upon the same message.[55] He analyzed the words of Dr. Hak-Shing William ("Bill") Tam,[60] which included assertions that, were California to fail to pass Proposition 8, other states would follow and "fall into Satan's hands", and that following legalization of same-sex marriage, the advocates of the "gay agenda" would attempt to "legalize having sex with children".[60] Chauncey connected these messages to the earlier history of government demonizing gays and lesbians which he had previously discussed.[60] Helen Zia, a scholar on Asian American social and political movements who was also asked to analyze those words, explained how her encounters with similar Asian community organizers encouraged her to "[step] into the closet and [slam] the door."[61] David Thompson for the defense cross-examined Prof. Chauncey by focusing on the progress that had been made for mainstream acceptance of gays and lesbians in the last twenty years.[60] Thompson noted anti-discrimination laws, support for domestic partnerships, and the proliferation of media like the sitcom Will & Grace and 2005 film Brokeback Mountain.[60] Thompson's line of questioning was intended to establish "whether systemic bias against lesbians and gay men prevents them from being treated by others as equal citizens in the political process".[60]

Professor Gary Segura, a political scientist at Stanford University, said that no other minority groups in America — including undocumented aliens — have been the target of more restrictive ballot initiatives than gay men and lesbians.[62] He accused Proposition 8 of being the type of social stigma that makes "gay and lesbian social progress seem like it comes at expense of other people and organizations and it makes the hill steeper".[63] Under cross-examination, defendant witness David Blankenhorn revealed that he believed the principle of equal human dignity applied to gay and lesbian Americans, and that "we would be more American on the day we permitted same-sex marriage than we were on the day before".[50]

Gregory Herek, a professor from UC Davis contended that "structural stigma" in the form of laws like Proposition 8 directly encourages social stigma, harassment, and violence against LGBT people. He also testified that there is no evidence "conversion therapy" is effective in changing a person's sexuality, and that it "sends a harmful and false message to young people that homosexuality is a disorder", directly leading to more discrimination. During cross-examination, he asserted that "sexual orientation is a combination of attraction, identity, and behavior, and that the complexities researchers face in defining sexual orientation are no different than those they face in defining other characteristics such as race".[64]

San Diego Republican mayor Jerry Sanders testified how he transitioned from believing that domestic partnership was an ideal compromise to believing that same-sex marriage was fundamental. "What hit me was that I had been prejudiced", he explained.[65] During cross-examination, he agreed with the defendants that not all people who voted for Proposition 8 were "bigots", but that he believed their vote was "grounded in prejudice".[66]

Psychological effects

Relationship psychologist Anne Peplau took the stand and argued that individuals gain physical, psychological, and social benefits from being married.[60] Edmund A. Egan, the chief economist for San Francisco, agreed and said that the citizen's improved health would save city emergency health funds.[60] Anne Peplau also argued that the quality and stability of same-sex relationships are similar to those of heterosexual relationships and that permitting same-sex couples to marry will not harm the institution of marriage in any way.[60] Peplau was cross-examined by Nicole Moss, who asked Peplau about the differences between same-sex and opposite-sex relationships, but Peplau reiterated there are no significant differences.[60] The plaintiffs also called forward Doctor Ilan H. Meyer to testify on the mental and psychological harms of being denied the right to marry. "Young children do not aspire to be domestic partners, marriage is a common, socially approved goal." He continued to say that gays and lesbians suffered from "minority stress".[67]

Examining the impact of same-sex marriage on children, the plaintiffs introduced Michael Lamb, a developmental psychologist at the University of Cambridge. He contended that there is a fairly substantial body of literature since the late 1970s that focuses specifically on the adjustment of children parented by gay men and lesbians which provides very good understanding of the factors that affect the adjustment of children being raised by gay and lesbian parents. This substantial body of evidence documents that children raised by gay and lesbian parents are just as likely to be well adjusted as children raised by heterosexual parents. He noted that for significant number of these children, their adjustment would be promoted were their parents able to get married. He added that a field of developmental psychology came to the conclusion that what makes for an effective parent is the same both for a mother or a father, and that children do not need to have a masculine-behaving parent figure, a father, or feminine-behaving parent figure, a mother, in order to be well adjusted.[68] Defendant witness David Blankenhorn, under cross-examination, concurred that the well-being of children raised by same-sex couples would improve should they be allowed to marry.[50]

Economics

In an exploration on the economics of Proposition 8, the plaintiffs called forward Edmund A. Egan, the chief economist for San Francisco. He testified that same-sex marriage would aid the city because "married individuals tend to accumulate more wealth than single individuals" and that "married individuals are healthier on average and behave themselves in healthier ways than single individuals", saving the city from paying emergency room bills and insurance funds.[67] He also testified that San Francisco would make a large sum of instant revenue from same-sex marriage being legalized, citing Mayor Gavin Newsom's decision to legalize same-sex marriage in 2004.[69] He estimated that the city of San Francisco was losing out on $37.2 million in retail and hotel spending and $2.5 million in sales and hotel tax revenue each year.[70]

San Francisco Attorney Therese Stewart noted in the closing arguments that the city itself was uniquely losing out on potential profits because Proposition 8 dissuaded gay tourists and their families from visiting the "cool, gray city of love" (as Walker referred to it) to get married.[57] She also argued, through testimony by Ryan Kendall and Meyer, that the city was burdened with higher incidents of mental health disorders and the subsequent costs to the public health system.[57]

Political strength

The defense called up Professor Kenneth Miller from Claremont McKenna College to testify that LGBT people had strong political and social support within California. He argued that all the major newspapers, Hollywood, Silicon Valley, and a majority of state politicians all strongly opposed Proposition 8.[71]

During cross-examination of George Chauncey, the defense claimed that LGBT people have enjoyed increased political and social clout, with increased acceptance by society as exemplified by films such as Brokeback Mountain. Chauncey also admitted that employers in California are required to ban discrimination.[72]

Decision

"Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people."[73]

Governor Arnold Schwarzenegger, Defendant

Having heard all of the evidence, Chief Judge Vaughn Walker heard closing arguments on June 16, 2010.[74][75]

On August 4, 2010, the Court announced its decision in favor of the plaintiffs, thus overturning Proposition 8 based on the Due Process Clause and the Equal Protection Clause.[76] Judge Walker's decision concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses. He further noted that Proposition 8 was based on tradition and moral disapproval of homosexuality, and that those two things are not legal grounds for discrimination. He also noted that gays and lesbians are exactly the type of minority that strict scrutiny was designed to protect.[77]

Notably, more than half of the opinion is devoted to Judge Walker's 80 findings of fact and the evidence (law) in support. These findings of fact are important because appeals courts and the Supreme Court generally defer to them when crafting their own opinions. Some of those findings include:

  • 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.
  • Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.
  • Domestic partnerships lack the social meaning associated with marriage.
  • Proposition 8 has had a negative fiscal impact on California and local governments.
  • Gays and lesbians have been victims of a long history of discrimination.
  • Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

Due process

Judge Walker characterized the right at issue as simply "the right to marry", which, he opined, "has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", citing Loving v. Virginia and Griswold v. Connecticut. He goes on to say that "[r]ace 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".

Before analyzing Proposition 8 under the applicable level of review (strict scrutiny for fundamental rights), Walker noted that California's domestic partnership laws do not satisfy California's obligation to provide gays and lesbians the right to marry, for two reasons: (1) domestic partnerships do not provide the same social meaning as marriage; and (2) domestic partnerships were created "specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples."

Judge Walker then found Proposition 8 unconstitutional because it does not pass even a rational-basis review (as he explains in the Equal Protection context), much less strict scrutiny.

Equal protection

In a novel ruling, Judge Walker found that Proposition 8's restriction of marriage to opposite-sex couples discriminates on the basis of sexual orientation and sex, because sexual orientation discrimination is sex discrimination. And although Judge Walker declined to hold explicitly that sexual orientation discrimination triggers strict scrutiny, he did comment that "[t]he trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation."

Instead, Judge Walker held that Proposition 8 failed to pass even rational basis review. The proponents of Proposition 8 put forth a series of purported state interests, as enumerated by Judge Walker: (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. Each of these interests, he held, was not legitimate, with the exception of (4), which he held failed as a matter of law because Proposition 8 does not "affect any First Amendment right of parents to educate their children," and was not rationally related to the stated interest, legitimate or not.

Following Romer v. Evans, Judge Walker found that Proposition 8's only justification is "a private moral view that same-sex couples are inferior to opposite-sex couples," and that the proponent's examples of state interests were "nothing more than post-hoc justifications." In the opinion's final pages, he observes: "The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples." Because moral disapproval alone cannot support rational basis review, he held Proposition 8 violates Equal Protection as well.

Evaluation of expert witnesses

The court found that all nine of the witnesses presented by the plaintiffs as experts "were amply qualified to offer opinion testimony on the subjects identified" and "offered credible opinion testimony on the subjects identified."[78] The defense proffered two witnesses as experts. David Blankenhorn, who had been allowed to testify, was ultimately judged as lacking "the qualifications to offer opinion testimony".[78] The court found that Kenneth P. Miller's "opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence."[78]

Legal analysis of the decision

Professor Doug NeJaime of Loyola Law School noted that Judge Walker's decision was crafted similarly to the standard used by Justice Anthony M. Kennedy in his decision in Lawrence v. Texas, and suggested that Walker was "speaking" to Kennedy, who is commonly the swing vote on the Supreme Court.[79] John Eastman, a conservative scholar who supported Proposition 8, agreed with Professor NeJaime's assessment. Barry McDonald, a constitutional law professor at Pepperdine University believed that Walker's strict handling of the case and tedious evidence gathering would "make it more difficult for appellate courts to overturn this court's ruling."[80]

"Only a trial court [like Walker's] can make factual findings," lawyer Brian DeVine said in an analysis. He further noted that "a Court of Appeal must give great deference to the factual findings of the trial court", and praised Walker "for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court".[81]

The conservative religious law-firm Liberty Counsel, which has litigated the defense of heterosexual marriage in California since 2004, blasted Alliance Defense Fund's handling of the case. "ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged [Proposition 8]. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8."[82]

Reaction to the judgment

Rallies in support of the decision took place in all major California cities, as well as Atlanta, Boston, Chicago, Dallas, Denver, New York City, Salt Lake City, and Washington D.C.[83]

California's elected officials generally also responded positively to the ruling. Governor Arnold Schwarzenegger, who is named as a defendant in the case, said that "for the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves."[73] He also complimented Walker's conduction of the trial, congratulating his efforts to "respect both sides of the issue equally".[73] Attorney General Jerry Brown, also a defendant, lauded the decision, calling it "great news for California". The mayors of San Francisco, Los Angeles, and San Diego — Gavin Newsom , Antonio Villaraigosa, and Jerry Sanders (respectively) — also praised the ruling.[84] Both of California's senators, Barbara Boxer and Dianne Feinstein, also approved of the ruling, calling it a "step forward for equal rights".[85]

Several famous Hollywood stars reacted positively to the decision. Ellen DeGeneres jubilantly tweeted "This just in: Equality won!" Paris Hilton also chimed in by tweeting, "What a huge historical day for equal rights in this country! They finally overturned Prop 8! There shouldn't be a law on true love. :)"[86] Lady Gaga tweeted that the decision inspired her to write songs.[87] Adam Lambert responded to the ruling by saying "I'm glad California has restored the right for all of its citizens to marry whomever they choose."[87] The reaction on social networking sites like Twitter were overwhelmingly positive, with the terms "overturned" and "prop. 8" becoming trending topics immediately following the decision.[88]

The Church of Jesus Christ of Latter-day Saints commented: "this decision represents only the opening of a vigorous debate over the rights of the people to define and protect this most fundamental institution – marriage..." The Roman Catholic bishops of California stated: "...the courts do not have the right to distort the meaning of marriage".[89] National Organization for Marriage (NOM) chairman Maggie Gallagher also disagreed with the ruling. She targeted the judge's sexuality and accused Walker of "substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution". Brian Brown, President of NOM, complained of the "biased way [Walker] conducted the trial."[90] Critics have accused the ruling of being an example of judicial activism.[91] Ed Whelan, President of the conservative Ethics and Public Policy Center and a former lawyer in the George W. Bush administration, criticized the ruling as being based on the judge's subjective and unsubstantiated views of current societal mores rather than on a neutral interpretation of the law. Whelan criticized in particular Judge Walker's repeated contention that certain facts about society were "beyond any doubt" or "beyond debate," such as Walker's contentions that same-sex parenting has been shown to be equally effective as opposite-sex parenting or that allowing same-sex couples to marry would not in any way negatively effect the rights of opponents of same-sex marriage. Whelan believes those points are in fact hotly contested in our society.[92]

See also

References

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