Everyone’s talking about the wrong thing. The Prop 8 trial Perry v. Schwarzenegger recently concluded in a flurry of punditry that had little if anything to do with the case. While most media personalities spent their time aimlessly speculating or just provoking controversy, anyone who wants to understand why and how Prop 8 was overturned should read Judge Vaughan Walker’s decision. Walker writes with such clarity and elegance that anyone seeking the details and conclusions of the trial can easily gain a working understanding of the issues involved. And if our country is going to address this complex legal issue, more people need to do so.
Perry v. Schwarzenegger rests on three plaintiff claims, all of which hinge on the Fourteenth Amendment. The prosecution charged that by amending the state constitution to restrict marriage to opposite sex couples, Proposition 8 violated the due process clause, the equal protection clause, and qualified homosexuals for heightened scrutiny, elevating their status as a persecuted minority and requiring the justice system to intervene. The defense had to address these charges and, as Judge Walker ruled (and I can verify, having been present for part of the trial), did a pathetic job. To be fair, proving that Prop 8 wasn’t religiously motivated is probably impossible.
The three charges rest on each other. First, the prosecution had to prove that homosexuals had been singled out for persecution on non-secular grounds. Thanks to the literature, websites, and mass emails disseminated by groups such as Protect Marriage, NARTH, and 1man1woman, this was easy to prove and impossible for the defense to refute. Most information these groups spread during the 2008 campaign for Proposition 8 linked gays (discreetly at best, overtly at worst) with pedophilia. Never mind that pedophilia, by definition, is adults preying upon children who have yet to develop a sexual identity, and therefore the sexual orientation of the adult is irrelevant to the situation. Ironically for the proponents of Prop 8 who were willing to say whatever it took to convince a slim majority of Californians to vote for the proposition, given the hyperbolic nature of the opposition’s arguments, Walker had no other option than to grant that homosexuals qualify for heightened scrutiny as a group singled out for religious or moral, but not secular reasons, for government-sponsored discrimination.
From heightened scrutiny, the other charges naturally follow. The Fourteenth Amendment of the Constitution of the U.S. states says
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Because the facts of the case allowed the court to consider homosexuals under heightened scrutiny, Walker found that Prop 8 denied same sex couples equal protection under the law. Heterosexuals may marry, but Prop 8 denied homosexual couples the right to choose and marry a spouse. From there, the due process violation logically follows. As Walker writes
Due process protects individuals against arbitrary governmental intrusion into life, liberty, and property… When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. (109-110)
The defense asserted four main points: Prop 8 maintains California’s current definition of marriage as opposite sex only, it affirms the will of the voters to exclude same sex couples from marriage, it promotes stability in relationships because opposite sex relationships usually produce naturally-conceived children, and it promotes “statistically-optimal” child-rearing households. As Judge Walker states on p. 10 of the decision
The state does not have an interest in enforcing private moral or religious beliefs without a secular purpose.
Therefore, the defense had to prove that the state had a secular purpose in enforcing Prop 8. They primarily relied upon the procreative argument, that the state has a vested interest in promoting relationships that naturally produce children. However that claim crumbled quickly, especially when one of only two witnesses the defense produced (neither of whom was admitted as an expert witness) admitted that though it may be ideal for a child to be reared by a male and female parent, recent research supports the theory that two loving parents, regardless of gender, provide a healthy environment for a child. From start to finish, the defense paled in comparison to the prosecution in terms of factual information, expert testimony, and consistent argument.
The most interesting part of Walker’s decision for the larger debate over same sex marriage is his argument about marriage’s identity. Until the early 20th century, most states in the U.S. operated under a legal marital practice known as coverture, which meant that the state viewed a married couple as legally one person, and by default, the husband. The woman’s legal rights such as property ownership, the ability to enter legal contracts, even the right to retain wages she earned outside the home, were all ceded to the man. With the abolition of coverture, as well as the introduction of no-fault divorce, Walker argues, marriage became a union of co-equals whose gender was legally irrelevant. Given that the defense failed to prove the state’s exclusive interest in naturally procreative relationships, Walker concluded that the state need not differentiate between opposite sex and same sex couples when it comes to marriage. Rather, Walker argues, the state’s interest is in legally fostering the establishment of stable households, regardless of how children are produced or whether children are included in those households at all. Unless the state requires couples to be able to procreate, there is no reason why it should deny same sex unions when gender roles in opposite sex marriages are indistinct. Because marriage is a fundamental right (Walker cites cases from Griswold v. Connecticut to Loving v. Virginia to Turner v. Safely), and fundamental rights cannot be subject to a vote, Prop 8’s voter support is not cause enough to maintain it.
This is only just the highlight reel of what is an intensely fascinating case. I highly suggest that you download the pdf and read it for yourself if you’re interested. I don’t have space here to cover even half the legal issues it raises, much less the cultural impact of those decisions. And, as fascinating as this case is, its scope is far too narrow to capture the real constitutional crisis behind same sex marriage. Article IV of the Constitution contains two clauses, known as the full faith & credit clause and the privileges & immunities clause, both of which make it difficult to know where the states’ constitutional right to define legal and social contracts such as marriage ends and the federal government’s duty to ensure that citizens in each state are afforded the same civil rights and liberties as fellow citizens in other states begins. That will take another court case, and another trip through the federal system to see what the nine members of the Supreme Court think.
Regardless, this controversy isn’t over. It really won’t matter what any state or federal judge does until the Supreme Court rules on Article IV. So settle in for the long haul! It will be a fascinating, bumpy, constitutional ride.’