Nan Hunter

Analysis of Prop 8 Decision

Filed By Nan Hunter | August 05, 2010 9:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: California, gay marriage, marriage equality, Prop. 8, same-sex marriage

Well, round one in the Perry case is almost over. The effect of Judge Vaughn Walker's decision finding that Prop 8 violates both Due Process and Equal Protection guarantees in the U.S. Constitution is stayed until Friday, when he will hear arguments on whether the injunction he granted against enforcement of Prop 8 will continue to be stayed pending appeal.

Walker's opinion is a thorough legal analysis and a comprehensive review of the factual and quasi-factual bases for each side's arguments in the marriage debates. The Due Process violation is that California denies access to a fundamental right and the form of legal recognition considered to be culturally superior - marriage - and offers only an inferior substitute - domestic partnerships. On the Equal Protection claim, Judge Walker finds that Prop 8 discriminates based on sexual orientation, a classification that he would treat as suspect, but he concludes that because Prop 8 lacks a rational basis, there is no reason to reach the question of heightened scrutiny.

Not a surprising analysis, but well done. Is it a watershed, either legally or culturally? Too soon to know.

Following the jump are the aspects of the 138-page opinion strike me as the most important.

* Judge Walker's ruling applies only to California; it says nothing about the 44 other states with laws prohibiting same-sex marriage. However, the grounds for the decision are not limited to California's unique sequence of state supreme court decision followed by voter initiative. On appeal, the Ninth Circuit may limit the reasoning or not; whether that happens could influence whether the Supreme Court would decide to hear the case, if it gets that far.

* The opinion stresses the ways in which Prop 8 singles out gays and lesbians and targets them for stigma by withholding access to marriage, based on stereotypes and the effort to enforce a moral code. I read this as the strongest foundation in the decision for linking it to the Supreme Court's opinions in Romer v. Evans (stressing the irrational anti-gay animus behind a Colorado state constitutional amendment) and Lawrence v. Texas (labeling the imposition of a moral code as an illegitimate state interest).

For example, the court finds as fact that Prop 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; [they] are not as good as heterosexuals; and [their] relationships do not deserve the full recognition of society. ... [Prop 8] singles out gays and lesbians and legitimates their unequal treatment. [It] perpetuates the stereotype that [they] are incapable of forming long-term loving relationships that [they] are not good parents. ...

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...

The court finds that the state interests argued by Prop 8 proponents are either not served by it or not legitimate.

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.

* The most creative aspect of the decision doctrinally is the way it weaves together sex and sexual orientation discrimination theories.

The evidence did not show any historical purpose for excluding same-sex couples from marriage...Rather the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed...Gender no longer forms an essential part of marriage; marriage under law is a union of equals....

Sexual orientation discrimination can take the form of sex discrimination. ...The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation....Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

* Given that it was the judge who forced both sides to introduce extensive evidence, it is no surprise that he analyzed that evidence in great detail. The Perry case is a first on two scores: not only the first to challenge a marriage ban in federal court on federal constitutional grounds but also the first in any court to proceed with a full-scale trial. The bulk of the lengthy decision consists of summaries of the trial record which was lopsided in favoring plaintiffs. Although not binding on any other court, the opinion creates a powerful and persuasive statement of facts rebutting the arguments of those who oppose marriage equality, particularly on issues related to children.

Cross-posted at hunter of justice

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Great analysis, Nan! I enjoyed reading your take on the decision.

I note that I disagree with you on one minor point: your idea (also held by many other well-regarded legal scholars) that Lawrence v. Texas found that the imposition of a moral code is an illegitimate state interest.

Rather, the Court found that moral interests were not rationally related to the sodomy laws. My law review article on the subject (and its relationship to a right of gender autonomy) are found here: Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas

Here are the two portions of the Lawrence opinion that I am referring to:

The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” [quoting from Planned Parenthood v Casey] - 539 US at 571


The statement that Justice Stevens' dissenting opinion in Hardwick was correct, followed by this quote from it:

...the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice;... - 539 US at 578

Yes, but. These quotes simply mean that laws can go too far in mandating moral codes. They do not say that morality can never be used. I hope you're not agreeing with Justice Scalia in his Lawrence dissent, when he said that the majority opinion requires legalization of bigamy, adult incest, prostitution, bestiality, and obscenity?

Another question. If Lawrence found that morality is not a legitimate government interest, which means that sodomy laws fail a rational basis test, then would you agree that the Court did not need to (and did not) rule that homosexuality is a fundamental right?

As to your first question - no, but. I don't agree with Scalia's overblown claim, but I do think that Walker is correct is saying that if moral and religious views form the only basis for a discriminatory classification, that is improper.

As to the second - I think that the Court in Lawrence ruled that there is a weighty liberty interest - similar to what was protected in Griswold as a fundamental right - in private consensual adult sexual relations. Beyond that, the whole world is trying to figure out exactly what the Court meant.

I am having trouble articulating this morning, and have an appointment I have to get ready for, but here's my response. Maybe I can clarify later.

And likewise, I agree with you, but. I think a distinction must be made between "morality" and "animus." The former is a legitimate state interest, as in the case of laws against adult incest, and the latter is not, as in the case of sodomy laws. This is complicated by the fact that animus and bias are sometimes referred to as "moral disapproval." A parent's disapproval of his daughter's miniskirt and her female partner could both be referred to as "moral disapproval," but only the former is based on "morality" as defined in Lawrence. The Lawrence decision painstakingly devoted six pages to a historical analysis designed to demonstrate that the anti-gay sodomy laws were based on Roemer-type animus rather than morality.

While Judge Walker was certainly correct that "moral disapproval," or animus, against homosexuality is not a legitimate reason, he implicitly recognized that "morality" considerations could be a legitimate state interest, but that they were not in this case. He engaged in means-testing, in addition to ends-testing. And I think this could save the decision in the Supreme Court.

"Here, the purported state interests fit so
poorly with Proposition 8 that they are irrational, as explained above." p133

Thanks for a great analysis, Nan. One of the main benefits of running Bilerico is that I get so many varied and useful views of an issue. Between your analysis and Jill's, I feel perfectly competent to discuss the ruling now!

I do like that part about how the institution of marriage has already changed from an institution with specific gender roles to one about equals too. If only more people would see that (rather, if they'd acknowledge that they already see that).