Prop 8 ruled unconstitutional

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The decision on Perry v. Schwarzenegger has come down, and the ruling is that Proposition 8 (declaring that California only recognizes marriages between a man and a woman) is unconstitutional.

Which is hardly going to be the end of this; the case will end up in front of the Supreme Court eventually. But it’s good news for equal rights.

I’ve been following the court case off and on. If you haven’t, you really ought to take a look — because it’s astonishing, how incoherent the Prop 8 defense is. The incoherence starts with the proposition itself, I suppose; California only recognizes marriages between a man and a woman as valid, except for those same-sex marriages performed prior to the enactment of Prop 8. Why do those get exempted? Because the odds of it passing would have dropped precipitously if its supporters had tried to invalidate thousands of existing marriages. Then you get things like the motion the defense filed before this decision, trying to delay enforcement of the decision (which tells you they knew how it would go), wherein they claim in a single document both that “Same-sex relationships […] neither advance nor threaten this interest [of procreation] in the way that opposite-sex relations do,” and that “Not only would redefining marriage to include same-sex couples eliminate California’s ability to provide special recognition and support to those relationships that uniquely further the vital procreative interests marriage has traditionally served, it would indisputably change the public meaning of marriage.” So which is it, guys? Does same-sex marriage threaten the procreative function of marriage, or not? And that’s not even touching the point that we don’t exactly require fertility tests before letting people tie the knot; as the judge overseeing the case pointed out, he recently married a pair of geriatrics long past their procreative days.

To quote the decision, “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.” That’s the coherent thread running through all the defense’s arguments. Every time they were pressed to cite evidence that same-sex marriage would cause material harm to children, the institution of heterosexual marriage, or the fabric of society itself, they failed — and tripped over a mountain of contradiction in doing so. You can cite religious arguments against the idea, and then we can have a theological debate, but when it comes to state and federal law, there is no defensible basis for this discrimination.

0 Responses to “Prop 8 ruled unconstitutional”

  1. ken_schneyer

    We are Legal Monkeys Too

    The rational-basis test, which is the most lenient test in 14th Amendment Equal Protection jurisprudence, doesn’t require much. It merely asks that the legislature have had some evidence (any evidence) that the distinction it was making would have some relationship to the advancement of public health, welfare or morals.

    It’s difficult to make that showing with a plebescite, of course, because of the lack of commitee hearings etc. But one of the astonishing things about anti-gay legislation, going back to Colorado’s Amendment Two, is that the lawmakers don’t even bother to try to show the rational basis.

    • Marie Brennan

      Re: We are Legal Monkeys Too

      “Morals” is the fuzziest part of that, I imagine. Health and welfare are relatively quantifiable things, but “morals” less so, and they blend into religious territory very quickly. If you fundamentally can’t prove detrimental effects on the first two, though, and the only arguments you can muster for the third are religiously-based, it isn’t a very strong case.

    • shadowkindrd

      Re: We are Legal Monkeys Too

      Heh. The judge nailed all three, too, in that ruling. One example: if “common wisdom” morals are best served by married people having sex. By not allowing homosexuals to marry, the government is forcing homosexuals to be immoral, will they, nil they. Definitely not equal protection under the law.

      I LOL’d mightily.

      • Marie Brennan

        Re: We are Legal Monkeys Too

        The quotes I saw from the judge during the trial really impressed me with their commitment to basic common sense: he consistently put stuff in context, looking through the underpinnings and consequences of whatever idea he’d been presented with, and seeing if it still held together.

        Which, in the case of the defense, it generally didn’t.

        • shadowkindrd

          Re: We are Legal Monkeys Too

          Oh, in the judgement, Walker shredded the “expert” defense witnesses. He went to great pains to make sure everyone who read the document understood why he couldn’t accept their testimony. He called the defense’s primary witness, Blankenhorn, “unreliable”. Then there was this priceless statement: “Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions.” Blankenhorn has no peer-reviewed papers published, something else Walker documented. Walker went on to define what made an expert witness, complete with other court cases to back him up. And that’s just the start of it.

          The section where Walker rips Blankenhorn a new one is pdf pages 39-51, document 37-49. The entire section is a riot to read, esp. as an ex- argument instructor.

          Walker was a bit more polite to Miller, but ended up dismissing much of what he had to say, too, on pretty much the same grounds of what an expert witness needs to be. Miller didn’t have direct studies on homosexual issues, just governmental ones.

          All I have to say is that the defense had better bring more qualified experts, or they’re buttered toast with jam. Walker did a bang-up job closing holes in the argument.

          • Marie Brennan

            Re: We are Legal Monkeys Too

            I don’t know what the legal logistics are, but I’ve gotten the impression that Walker’s efforts here are in some important fashion going to be the foundation of all later appeals and decisions — so it’s good to see that the guy dotted all the i’s and crossed all the t’s.

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