Same-Sex Marriage Ban OVERTURNED: An Examination of the Ruling

Posted in General by TBartine on August 5, 2010 No Comments yet

Rarely are legal arguments as interesting as they are in civil rights cases, and yesterday’s ruling by Chief U.S. District Judge Vaughn Walker is no exception.  This ruling considers the constitutionality of California’s Proposition 8, which was voted into effect by a slim majority of California voters.  Proposition 8 bans marriage between same-sex individuals.

The story behind the case is as intriguing as the arguments themselves.  A strange alliance had formed:  Ted Olsen and David Boies were the attorneys on either side of the infamous Bush v. Gore case, in which the Supreme Court issued a bizarre “one-time, non-precedent-setting” decision that halted the Florida recount of the 2000 election, and effectively handed the election to George W. Bush.  Ted Olsen had argued for Bush’s side of the case, and he would go on to become Attorney Solicitor General during Bush’s presidency.  There is no mistaking Olsen’s politics: He’s a conservative.  So one might expect that Gore’s counsel in Bush v. Gore, David Boies, would be a man of liberal leanings….but this is not the case.  In fact, Boies had been the president of his school’s Young Republicans…and his legal interests seemed to lie in the areas of anti-trust and intellectual properties issues, more than in anything distinctly partisan, political, or liberal.

But there’s no debating that the men had argued as bitter rivals during the Bush v. Gore case, so it might come as a surprise that they now, as a matter of personal choice and initiative, decided to take up the fight to legalize same-sex marriage, working together on the same side of the courtroom aisle.  As I said, it may surprise you…but it shouldn’t.  Whatever the politics of these two men may be, they both are experts in Constitutional law…and to read Olsen’s recent essay for Newsweek, it becomes apparent to even the most casual reader that the body of American law clearly supports only one side of the argument.  I STRONGLY urge everyone to read Olsen’s essay here, or watch this clip where he explains his motives.  For the purposes of continuing this essay, I will summarize:

Olsen…had an issue he couldn’t quite reconcile. As a conservative, he had long been against the idea of gay marriage…and as a lawyer, he had never really inspected the issue.  Eventually, this represented an ideological “imbalance” that could not be maintained.  He examined the issue himself, in terms of both the history of our nation and the law…and he simply could not find a legal argument against the legalization of gay marriage, and he found several supporting it.  So he talked to conservative friends, particularly friends who were also attorneys and legal experts, and he put before them a simple proposition:  Provide me with a legal argument why same-sex couples should be denied the right to marry.  They couldn’t.  Many of them admitted it.  They were able to provide religious arguments, and some “it just seems wrong” arguments…but nothing legal, nothing constitutional.  Upon further reflection of the social and economic benefits of marriage within a society such as ours…Olsen realized something else:  He not only found that denying gay citizens the right to marry was clearly unconstitutional, but he also found considerable societal merits to allowing same-sex marriages.  He even found social benefits that appealed to him as a conservative.

With these personal discoveries in hand, Olsen allied with Boies, and they challenged Proposition 8.

Nobody had much of an inkling as to the legal “chances for success.“  But they should have.  They won.

The decision, once read, makes it very clear just how obvious, from a legal and constitutional perspective, this issue really is.  Again, I suggest reading it here, but seeing as it is a 138-page ruling, I will provide a summary of its contents:


After a brief description of the contents of Proposition 8, and the legal history surrounding it, the ruling begins describing the case against Proposition 8 on page 5.  It couldn’t be simpler, and it is PURELY legal.  In fact, not only is it a purely legal argument in nature…it is purely constitutional in nature (that is to say, it is based on constitutional arguments and not merely based on statutes and/or case precedent).

First, Proposition 8 violates the Due Process clause of the Fourteenth Amendment of the Constitution., because the State is denying individuals the freedom to choose who they will marry.  Period.

Secondly, Proposition 8 violates the Equal Protection clause of the Fourteenth Amendment of the Constitution, because the State is denying a right to one group (gays and lesbians) that it provides to another (heterosexuals).  Period.

That’s it.  That’s the entirety of the plaintiffs’ argument.  That’s why I have long wondered why this battle has taken so long to be decided…the law, the CONSTITUTION, seems so very clear on this point.


The case in support of Proposition 8 is, well, let’s just say it doesn’t appear to be legal in nature.  Which is, of course, interesting….because this is a legal proceeding to determine whether or not a LAW is CONSTITUTIONAL or not.  One would assume that the LEGAL defenders of the measure would bring some LEGAL arguments to court…if they existed.  Their argument was as follows:

First, since the stated purpose of Proposition 8 is to protect heterosexual marriage and not to “attack the gay lifestyle“…it does no harm to gay citizens.

Secondly, it’s really about protecting the children, because legalized gay marriage would mean that teachers might teach children that gay marriage exists, and that it is equal to heterosexual marriage…and children should not have to hear such things: “We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok.

Third, a primary goal of the State is to encourage procreative sexual relationships (in marriage, or out of wedlock…intentional pregnancies, and accidental ones)…and to encourage people procreating to enter into heterosexual marriage, which they deem to be the “statistically optimal” environment for procreative sex and for childrearing.

Fourth, since California does allow domestic partnerships, even though these partnerships are not equal in legal rights and privileges, they have given gay citizens a “choice,” so the Fourteenth Amendment is not violated.


When the supporters of Proposition 8 asked for summary judgment, the judge asked them a simple question:  Even IF it were true that the State’s only interest in marriage were procreative, how would allowing gay people to marry harm procreation?

Their response:  That’s not the “legally relevant question,” and then when pushed further…”Your honor, my answer is: I don’t know.

The motion was denied, but not before proponents promised to provide TWENTY-THREE reasons that same-sex marriage is harmful to heterosexual marriage.  The judge notes in his ruling that later…they would only produce one witness and that “he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.”


Without going into detail on each witnesses’ testimonial, the plaintiff’s in this case brought forward EIGHT lay witnesses, as well as NINE expert witnesses.  The proponents…called only one.

The judge indicates that the questioning focused on the following points:







The four plaintiffs in the case testified about their personal wishes to be married, and how they felt they had been harmed by the Proposition 8 campaign, and by the practice of banning same-sex marriage.

The nine experts talked about the social, economic, and psychological benefits of marriage, both to the individuals forming the union, and to society at large.  They also discussed historical limitations to marriage, such as those based on race or other prejudices, and drew comparisons.  They established that no meaningful differences exist between heterosexual and homosexual couples, except in terms of procreational sexual activity.  They testified that, statistically, same-sex couples are every bit as stable and lasting, and every bit as capable of raising well-adjusted children.  They testified that they can see no reason why same-sex couples ability to marry would in any way hinder or discourage heterosexual couples from marrying.  Their experts showed that parents with no “biological link” to their children, as is the case with adoptive parents, actually outperform biological parents in some situations.  They clearly showed that “domestic partnerships” are not equal to marriages in any social or legal way, nor do they enjoy the same cultural esteem.

And…perhaps most importantly…the experts told the court the obvious truth:  the true motive behind the Proposition 8 measure, and historically all measures like it…is FEAR.  They discussed the pervasive attempts over the years to brand homosexuality as “immoral” and homosexuals as a “danger to children.“  The experts even used some of Proposition 8′s proponents’ arguments against them; During the public campaign to gain support for the measure, Proposition 8 advocates told the public that homosexuals were “more likely to molest children” and that failure to pass the measure would cause the states “one-by-one to fall into Satan’s hands.

The proponent’s sole witness, David Blankenhorn, well, he held to the idea that the primary purpose of marriage is to “regulate filiation” (ie. control sex so that it is used for making babies in an optimal environment), and then…

…he conceded that legalized same-sex marriage would be beneficial to California, and to gay citizens, and a “victory for the worthy ideas of tolerance and inclusion“…

…he conceded that, while he thinks same-sex marriage could somehow “weaken” heterosexual marriage, he could not say how or why it would do so…

…he conceded that, while he holds that parents with a biological link to their children are preferred, studies suggest that adoptive parents can actually outperform biological parents in “providing protective care.


What follows in the ruling, is the judge’s determination for credibility for each of the witnesses.  He found the plaintiffs and the other four lay witnesses for the plaintiffs to be credible, and the plaintiffs’ nine experts to be “amply qualified.”

On the other hand…the judge points out that the proponents withdrew all but one of their witnesses, citing that their experts feared for their “personal safety” if the proceedings were broadcast.  The judge also mentions that once it had been established that the proceedings WOULD NOT be broadcast in any way…proponents still only produced one witness.  And that witness, Blankenhorn…while a self-proclaimed expert in “marriage, family, and child well-being,” he had no degree in sociology, psychology, or anthropology…and even Blankenhorn admitted that his knowledge came from “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.“  In the end, the judge determined that Blankenhorn’s testimony did NOT constitute “expert testimony” and was therefore “inadmissible opinion testimony” since Federal Rule of Evidence 702 dictates that expert testimony must actually contain actual “FACTS OR DATA” that were gathered using “RELIABLE PRINCIPLES AND METHODS.

And then…to drive home the point that Blankenhorn’s testimony was not based on data that had been properly gathered, on pages 41 through 49 the judge points out (and provides research citations) all the places where Blankenhorn was factually WRONG.


The next 55 pages of the ruling concern themselves with the many “Findings of Fact” noted during the course of the trial…and are followed on page 109 by the “Conclusions of Law.“  After a lengthy and thorough examination of each side’s key positions, Judge Walker concludes:

1 - Preserving the “definition of marriage” as being between a man and a woman?  He writes: “Tradition alone, however, cannot form a rational basis for a law…tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest…

2 - The need to “act with caution” when implementing social changes?  He writes: “Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change…the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state.

3 - Opposite-sex parents are superior in parenting, and would be harmed by same-sex couples being allowed to marry?  He writes: “The evidence supports two points which together show Proposition 8 does not advance any of the identified interests…same-sex parents and opposite-sex parents are of equal quality…and Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring…

4 - Allowing same-sex marriage would violate the First Amendment rights of those who oppose gay marriage to disagree with the practice, and who wish to teach their children to reject same-sex marriage?  He writes: “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…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.

5 - The state has an interest in treating same-sex couples as different from opposite-sex couples?  He writes: “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.  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.

6 - Catchall…any other reasons?  He writes: “…proponents, amici and the court, despite ample opportunity and a full trial, have failed to identify any rational basis Proposition 8 could conceivably advance.

He goes on to say, “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.”).

And in his conclusion: “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.


I suppose the issue of gay marriage has always been somewhat of a mystery to me.

It would seem, in a nation of laws (and lawyers!) that there would be enough people knowledgeable enough on the subject of the law, on the Constitution, on Due Process…that such a clear-cut legal issue would have been resolved long ago.  But it hasn’t…

It would seem, in a nation full of people who were at one time discriminated against in the exact same ways, using the exact same arguments…I’m talking to you, Native Americans, women, and African Americans…that there would be a multitude of people able to say, “Hey!  I know what you are doing…we have seen these tricks and faulty arguments before…you did this to us, and we’re not going to let you do it to someone else!“  But that hasn’t happened either…

The fact that it is still yet to be resolved shows the sheet power of prejudice when mixed with tradition and/or religion.  It renders citizens blind to their own hypocrisy, as many of them will completely reject the discrimination of the past, while actively calling for discrimination in the present.  At one point, those opposed to marriage between black and white citizens quoted moral, scientific, and biblical rationales…and if you went up to your average Proposition 8 supporter, they would tell you that that is WRONG…and then they would turn around and use the same “moral arguments,” bogus science, and biblical references to condemn same-sex marriage.

But in the end they will fail.  Because it’s not about their pious, self-proclaimed “moral authority.”  And it’s certainly not about their religion.  And the science and social data is not on their side.

It’s about the law.  We are a nation of laws.  We are all bound by these laws, and sheltered by the protection they provide.  We are fortunate that these laws are applied in a way that is designed to treat us all equal…and that will not allow some among us to be treated as “less equal” for very long.

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