More on Perry v. Schwarzenegger

August 4, 2010

As my colleague Ron Lindsay notes in his blog entry today, Judge Vaughan Walker of the U.S. District Court for the Northern District of California today ruled that California's Proposition 8, which withdrew same-sex couples' legal right to marry, violates the Due Process and Equal Protection clauses of the federal constitution.  Judge Walker wrote that Proposition 8 "both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."

Whether this decision will survive the highly likely appeals to the Ninth Circuit and the Supreme Court remains to be seen.  Likewise, some may debate whether the decision's publication just prior to midterm elections and California's gubernatorial race will unify social conservatives and skew the results of the upcoming elections.

Far less open to debate is Judge Walker's reasoning that the state constitutional amendment imposes a private moral viewpoint without a legitimate governmental interest to support it, and that the amendment violates the equal rights of gay and lesbian couples. 

Marriage equality opponents have yet to articulate a single plausible and convincing rationale for denying equal rights to their gay and lesbian friends, neighbors and relatives.  The arguments presented at trial were a disappointing rehash of the usual specious and unfounded charges that, contrary to well-established science, same sex marriages harm children, or the vague notion that same-sex marriages somehow undermine heterosexual marriages or the very foundations of society.  If we are to believe these arguments, the Commonwealth of Massachusetts has become a cesspool of broken families and general immorality since it legalized same sex marriages in 2004.  Perhaps marriage equality opponents have been too busy avoiding the state to notice that the sky above Boston has yet to fall.

Judge Walker's opinion is refreshing in its acknowledgment of the motives underlying opposition to marriage equality.  Proposition 8 passed narrowly in a contentious referendum battle dominated by political front groups representing conservative and fundamentalist religious interests, including Catholic bishops, the Mormon church and fundamentalist Protestant churches.  Perry v. Schwarzenegger is among the few court cases to openly acknowledge the conservative and fundamentalist religious impetus behind the anti-equality movement. 

Judge Walker correctly observed that civil marriage, as opposed to the marriage sacrament, is a secular affair that cannot be subject to religious doctrine:

Marriage in the United States has always been a civil matter.  Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law. 

In his discussion of the evidence surrounding harmful stereotypes of gays and lesbians, Judge Walker quoted extensively from the testimony of expert witnesses in the case, including political scientist Gary Segura, who testified as follows:

"[R]eligion is the chief obstacle for gay and lesbian political progress, and it's the chief obstacle for a couple of reasons. * * * [I]t's difficult to think of a more powerful social entity in American society than the church. * * * [I]t's a very powerful organization, and in large measure they are arrayed against the interests of gays and lesbians. * * * [B]iblical condemnation of homosexuality and the teaching that gays are morally inferior on a regular basis to a huge percentage of the public makes the * * * political opportunity structure very hostile to gay interests. It's very difficult to overcome that." 

Judge Walker also quoted marriage equality opponents, including Ron Prentice, CEO of the California Family Council, who had this to say about same sex civil marriages:

Prentice explains that "God has led the way" for the Protect Marriage campaign . . . [and] that "we do mind" when same-sex couples want to take the name "marriage" and apply it to their relationships, because "that's not what God wanted. * * * It's real basic. * * * It starts at Genesis 2."

The Right Wing is already gearing up a smear campaign against Judge Walker, fulminating against a supposedly "activist" judge for striking down a blatantly discriminatory law that plainly lacks a legitimate government interest.   Today Gerard Bradley of the University of Notre Dame Law School offered the absurd argument in a editorial that Judge Walker's impartiality is open to question because the judge reportedly is gay himself -- as if allowing a heterosexual judge decide the fates of same sex couples would somehow yield a less biased result.  It is unclear whether Bradley would have urged Supreme Court Justice Thurgood Marshall to recuse himself from civil rights cases because he was African American.

Judge Walker's decision faces a difficult battle on appeal.  If the case eventually makes its way to the Supreme Court, several Justices are all but certain to vote against the rights of gay and lesbian Americans, as they have done consistently in the past.  For the moment, however, proponents of marriage equality may savor a legal victory grounded in sound and cogent legal reasoning.


#1 asanta on Thursday August 05, 2010 at 2:33am

Hooray, rationality prevails. I can only hope that dogma stays out of any decisions made by the 9th circuit and SCOTUS.

#2 asanta on Thursday August 05, 2010 at 2:39am

It looks like he gave it a lot of thought and penned an incredibly reasoned response. If the majority ruled, I would still be enslaved, and have no civil rights. Women would still be owned by her husband, and would not be allowed to vote. Renters would not be able to vote. African Americans would not be able to vote, nor would we be citizens. Civil RIGHTS should NEVER be up for vote, it should always be decided by the courts.

#3 aristetelis (Guest) on Friday August 06, 2010 at 10:04am

I am very sorry to hear this decision. It takes away the right out of the majority of the people. I try to be skeptic and open minded. I don’t see a need to allow legitimization to this clearly abnormal behavior. It is simple wrong and they know it. That’s why they spend so much money in Psychiatrist. I do believe in people freedom as long as it doesn’t interfere with my own. I don’t want to go to a public place or a nice hotel and see this people interacting openly. Specially if I am with children. It’s ok with me whatever people do in private. Stay in the closet. This is not something I want to see in public. They have plenty of Hollywood money. They can buy their own city and do like anything they want there.I know bottom line the issue is money. They can make their own special legal contract with ceremony. No need for wedding. Beside I don’t need a piece of paper from government or Church to sanctify or state my relation with someone. This people are supposed to be creative and “avanti”. Well; show it. It’s like smokers or drug users. I don’t care if they kill themselves doing it as long as it is in private. This is the beginning. After this this they are going to feel free of trying to date straight people they like freely. Actually demand for a “chance”. I don’t want me or my children exposed to this. Right know they don’t dare because they can rightfully get their head smashed. If any straight want to be curious let them go to them. They will make millions suing people that will still not accept them. How come they also don’t ask for the legalization of polygamy, polyandry,communal living (hippies) and even those who want to marry animals. Should be all or nothing. Let democracy work. It’s the government of the MAYORITY. We can be wrong but we are plenty. I am tired of minorities imposing to majority. I celebrate Xmas. Not Hanukkah, Ramadan or Kwanzaa. I celebrate the 4th of July not the cinco de Mayo. I don’t like to say happy holidays; I love merry Xmas. What’s next; Chinese new year, Sharia law etc…? I like to see people enjoy their freedom as long as they don’t hurt me. Majority also have sensibilities. They should be respected too. America is a democracy so let democracy decide.

#4 Dick Springer on Friday August 06, 2010 at 1:53pm


“I am tired of minorities imposing to majority. I celebrate Xmas. Not Hanukkah, Ramadan or Kwanzaa. I celebrate the 4th of July not the cinco de Mayo. I don’t like to say happy holidays; I love merry Xmas.”

Aristetelis is free to celebrate whatever religious holidays he wishes, and he is free to greet people in any way that he pleases, even if he is rude to some people in doing so.  No minority is imposing on him, unless he thinks that restricting his ability to impose his views on minorities is an imposition of him.

The Bill of Rights definitely limits the power of the majority in order to protect minority rights, as here.  It must not be any other way.

#5 asanta on Friday August 06, 2010 at 8:53pm

Had the majority had its way:
I would still be a slave

Were I not a slave, it would be legal to deny me a job, schooling, a place to live based only on my skin color

Two of my aunts/uncles marriages would still be illegal (it was illegal in much of the US when they married in the 50s)

I would not be a citizen of this country despite the fact that my ENTIRE lineage can be traced back to BEFORE 1776

As a woman, I could not own anything not under the guardianship of a male relative.

As a woman I would not be able to vote.

Many of the same arguments given in the Prop 8 trial, are the same arguments given to deny women and blacks their civil rights. Civil rights are to important to allow the whims of voters to decide.

#6 Max (Guest) on Saturday August 07, 2010 at 12:49pm

If marriage is a fundamental right, why does it require a license?

All adults have an equal right to marry an adult of the opposite sex.

Do polygamists have an equal right to practice polygamy?

#7 asanta on Sunday August 08, 2010 at 3:33am

Max, because it enables transfer of wealth and goods, and Identifies family units. Which is why marriage was created in the first place!!! It started out as a business arrangement. As far as polygamy is concerned, I don’t care as long as it is between freely consenting adults.

#8 asanta on Sunday August 08, 2010 at 10:20pm

Marriage was conceived as a political and business contract. Nothing else.

#9 asanta on Sunday August 08, 2010 at 10:24pm

(I am not gay)but I AM excited to see that Jerry Brown (D) and Arnold Schwarzenegger(R) have called for the lifting of the stay, so marriages can procede posthaste!

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