Prop. 8 Ruled Unconstitutional

Now what?   U.S. District Judge Vaughn Walker ruled that Prop. 8 was unconstitutional.  For a full account of the Proceedings click here.

It seems…It was proven to His Honor, Judge Walker that there is no Rational Basis for Proposition 8.  That Prop. 8 in no way upholds or furthers the State’s Interest.  While the Plaintiffs Kristin M Perry, Sandra B Stier, Paul T Katami and Jeffrey J Zarrillo, along with the City and County of San Francisco demonstrated that Prop. 8 violated the 14th Amendment, specifically the Equal Protection Clause, due process.  While showing that the only basis for Prop. 8 were Private Morals and Religious Beliefs.

The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947)[p. 8].

The Defendants (which include the Governator, Schwarzenegger) were not assisted by their Counsel with the following:

At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know.I don’t know.” Id at 23 [p. 9]

What further flustered (I know, I am being kind) the Defense was the glaring lack of witnesses:

Proponents informed the court on the first day of trial, January 11, 2010, that they were withdrawing Loren Marks, Paul Nathanson, Daniel N Robinson and Katherine Young as witnesses. Doc #398 at 3. Proponents’ counsel stated in court on Friday, January 15, 2010, that their witnesses because they “were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever [p 35-36].

Their reason for not showing is a very feasible one.  As Bishop Soto states:

Many people are going to, how should I say, simply lie about what their true thinking is on [marriage] because they don’t want to be labeled as a bigot or intolerant (Life Site News).

He’s absolutely right!  One cannot speak out against Same-Sex Marriage because Society does not simply Frown upon you, it is Aggressive against you.  What follows, however, sort of nullifies their qualms:

The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated The Supreme Court issued a temporary stay of transmission on January 11, 2010 and a permanent stay on January 13, 2010 [p. 36].

To say that the Proponents Failed MISERABLY at presenting any sort of case that Demonstrated how Prop. 8 Upheld or Furthered the State’s Interest is like saying that the Dodgers barely beat the Giants on June 30th (I realize that I could have also used Yesterday’s Game against the Padres, but unfortunately the sweep went the other way :p).

They presented a total of 2 expert witnesses whom the Plaintiffs felt lacked qualifications and/or expertise.

David Blankenhorn, founder and president of the Institute for American Values, testified on marriage, fatherhood and family structure. Plaintiffs objected to Blankenhorn’s qualification as an expert. For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions [p.37]

Kenneth P Miller, a professor of government at Claremont McKenna College, testified as an expert in American and California politics. Plaintiffs objected that Miller lacked sufficient expertise specific to gays and lesbians. Miller’s testimony sought to rebut only a limited aspect of plaintiffs’ equal protection claim relating to political power[p. 38].

It didn’t help matters any that Mr. Blankenhorn made a fool of himself with his contradictions:

Blankenhorn’s first opinion is that marriage is “a socially-approved sexual relationship between a man and a woman.” Tr 2742:9-10. According to Blankenhorn, the primary purpose of marriage is to “regulate filiation.” Tr 2742:18. Blankenhorn testified that the alternative and contradictory definition of marriage is that “marriage is fundamentally a private adult commitment.” Tr 2755:25-2756:1; Tr 2756:4-2757:17 (DIX0093Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001)). He described this definition as focused on “the tender feelings that spouses have for one another,” Tr 2761:5-6. Blankenhorn agrees this “affective dimension” of marriage exists but asserts that marriage developed independently of affection. Tr 2761:9-2762:3.

Blankenhorn thus sets up a dichotomy for the definition of marriage: either marriage is defined as a socially approved sexual relationship between a man and a woman for the purpose of bearing and raising children biologically related to both spouses, or marriage is a private relationship between two consenting adults. Blankenhorn did not address the definition of marriage proposed by plaintiffs’ expert Cott, which subsumes Blankenhorn’s dichotomy. Cott testified that marriage is “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.” Tr 201:9-14. There is nothing in Cott’s definition that limits marriage to its “affective dimension” as defined by Blankenhorn, and yet Cott’s definition does not emphasize the biological relationship linking dependents to both spouses.

Now, if you don’t want to read the previous Paragraphs, they are succinctly summed up here:

The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn’s opinions. Tr 2741:24-2742:3. The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight [p. 39].

Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable [p. 41].

In case you still don’t get Blankenhorn’s contradictory testimony:

Both Cott and Blankenhorn testified that California stands to benefit if it were to resume issuing marriage licenses to same-sex couples. Blankenhorn noted that marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be “a victory for the worthy ideas of tolerance and inclusion.” Tr 2850:12-13. Despite the multitude of benefits identified by Blankenhorn that would flow to the state, to gays and lesbians and to American ideals were California to recognize same-sex marriage, Blankenhorn testified that the state should not recognize same-sex marriage. Blankenhorn reasoned that the benefits of same-sex marriage are not valuable enough because same-sex marriage could conceivably weaken marriage as an institution.  Cott testified that the state would benefit from recognizing same-sex marriage because such marriages would
provide “another resource for stability and social order” [p. 14-15].

 What happened to Kenneth P. Miller, well his testimony had a little bit of weight:

The credibility of Miller’s opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report, see PX0794A. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group’s political power.

Miller’s credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, see PX1869 (Kenneth Miller, Constraining Populism: The Real Challenge of Initiative Reform, 41 Santa Clara L Rev 1037 (2001) ), contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process. Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment.  Tr 2606:11-2608:18.

For the foregoing reasons, the court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence [p. 53-54].

Now, based on how little or no weight the Proponents “Expert” Witnesses had, I do not feel that this statement is fair:

Plaintiffs and proponents presented expert testimony on the meaning of marriage [p. 13].

What do you think?

The Plaintiffs Expert Witnessed fared quite well though:
As explained in the credibility determinations, section I below, the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable. The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex [p. 15].
There is one witness for the Proponents that I just HAVE TO mention.  Tam.  Now this witness was I believe actually called by the Plaintiff’s (I have read and reread this document and am tired, but if I am wrong I apologize, either way, Tam definitely abetted the Plaintiffs) he  you will see why:
Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tr 1900:13-18. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website “” Tr 1916:3-24. encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, Tr 1919:3-1922:21, and because Proposition 8 will cause states one-by-one to fall into Satan’s hands, Tr 1928:6-13. Tam identified NARTH (the National Association for Research and Therapy of Homosexuality) as the source of information about homosexuality, because he “believe[s] in what they say.” Tr 1939:1-9. Tam identified “the internet” as the source of information connecting same-sex marriage to polygamy and incest. Tr 1957:2-12. Protect Marriage relied on Tam and, through Tam, used the website as part of the Protect Marriage Asian/Pacific
Islander outreach [p. 22].
Thus, it is not a wonder that Judge Walker stated that:
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.”) [p. 132]
Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians
are the type of minority strict scrutiny was designed to protect [p. 121].
With that sentence, I am quite certain that the Supreme Court will have their work cut out for them, no matter how Conservative they tend to be.  Even more so:
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 [p. 130].
Now here, Judge Walker fails to state PRIVATE Morals.  Aren’t Morals the BASIS for Many of the Laws.  Is it not Morally Wrong to Kill?  Is it not immoral, not to mention Heinous to Rape?  Isn’t it immoral to Steal? 
Let’s look at the Definition of Moral. 
1. of, pertaining to, or concerned with the principles or rules of right conduct or the distinction between right and wrong; ethical: moral attitudes.
2. expressing or conveying truths or counsel as to right conduct, as a speaker or a literary work; moralizing: a moral novel.
3. founded on the fundamental principles of right conduct rather than on legalities, enactment, or custom: moral obligations.
4. capable of conforming to the rules of right conduct: a moral being.
5. conforming to the rules of right conduct ( opposed to immoral): a moral man.
6. virtuous in sexual matters; chaste.
7.of, pertaining to, or acting on the mind, feelings, will, or character: moral support.
8. resting upon convincing grounds of probability; virtual: a moral certainty.
9.the moral teaching or practical lesson contained in a fable, tale, experience, etc.
10.the embodiment or type of something.
11. morals, principles or habits with respect to right or wrong conduct.
1 a : of or relating to principles of right and wrong in behavior : ethical <moral judgments> b : expressing or teaching a conception of right behavior c : conforming to a standard of right behavior d : sanctioned by or operative on one’s conscience or ethical judgment <a moral obligation> e : capable of right and wrong action <a moral agent>
2 : probable though not proved : virtual <a moral certainty>
3 : perceptual or psychological rather than tangible or practical in nature or effect
I may be wrong, but doesn’t it seem that way.
I know that this has been a long, long Post.  But would you rather go and read the Entire Document on the Ruling of Prop 8?  Please be my guest.  That way you can tell me what you think.
In the meantime, here is the Final Ruling…For Now:
The evidence shows that Proposition 8 was a hard-fought campaign and that the majority of California voters supported the initiative. See Background to Proposition 8 above, FF 17-18, 79-80. The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. 539 US at 571. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.” Id (citing Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992)). “[M]oral disapproval, without any other asserted state interest,” has never
been a rational basis for legislation. Lawrence, 539 US at 582 (O’Connor, J, concurring).Tradition alone cannot support legislation [p.133].
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 [p. 135].
So there you have it. 
If you’re interested in a Short and Sweet kind of read, go to my Post on Bishop Soto and the Catholic Church’s View of Marriage. 

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