Prop 8 Update

Proposition 8, allowing marriages only "between a man and a woman" in California, was enacted by popular referendum in the November 2008 election.  The first referendum in California on the topic of same sex marriage, Proposition 22, was passed in 2000.  Declared unconstitutional by the California Supreme Court in June 2008 (In re Marriage Cases 43 Cal. 4th 757), the end of Prop. 22 opened the door for the formation of same sex marriages.  Between June of 2008 and the passage of Prop. 8 in November, 18,000 marriage licenses were issued to same sex couples.  Upon passage of Prop. 8, state representatives could no longer solemnize same sex marriages.  However, those 18,000 marriages already formed were allowed to stand. 

Soon after Prop. 8 was passed it was challenged at the state and federal level.  The instant case, Perry v. Schwarzenegger (2010 U.S. Dist. LEXIS 78817) was filed in federal court in May 2009, and argued Prop. 8 violated the 14th amendment. The four plaintiffs who brought suit to challenge Prop. 8 sought the state's recognition of their relationships as marriages for economic purposes and social acknowledgment of their love.  The court summarized plaintiff Kristin Perry's statement of why she sought the right to marry her partner: "Marriage would be a way to tell our friends, our family, our society, our community, our parents --and each other that this is a lifetime commitment--we are not girlfriends.  We are not partners. We are married."  Neither Governor Schwarzenegger nor any California state officials were willing to defend Proposition 8 in court.  In their place, two organizations that were proponents of Prop. 8 sought and were granted the court's permission to intervene on behalf of California to defend the controversial proposition.  The decision was divided in two sections, first analyzing the sociological factors involved in Prop. 8, in the Findings of Fact section, and second, analyzing the issues under the controlling law in the Conclusions of Law section.

FINDINGS OF FACT

Early in his decision, Judge Walker identified the witnesses, their involvement in the case, and the credentials of the experts.  He summarized the testimony and principal arguments of both the plaintiffs challenging and defenders of Prop. 8.  The plaintiffs presented eight lay witnesses (including the plaintiffs themselves) and nine experts, compared to the two experts presented by the proponents of Prop. 8.  Judge Walker organized a majority of his opinion, and his analysis of the voluminous testimony, centered around three questions:

"Whether any evidence supports California's refusal to recognize marriage between two people because of their sex."

To resolve this issue, Judge Walker analyzed the legal concept of marriage noting that the institution is a civil matter entered into by persons who have the legal capacity to marry. The intention or ability to procreate is not a prerequisite to marriage.  The institution itself has undergone great changes throughout the twentieth century.  Specifically, the relationship between the genders has evolved to the current condition where men and women are treated as equals with no distinctions.  Likewise, racial restrictions which existed in the past have been declared unconstitutional.  Today, and historically, one fact is consistent: "States and the federal government channel benefits, rights and responsibilities through marital status."  Additionally, economic, physical and psychological benefits are bestowed on married couples and their children.  The evidence and testimony presented failed to establish any reason for the denial of marriage and its attendant benefits to same sex couples.

"Whether any evidence shows California has an interest in differentiating between same sex and opposite sex unions."

Here, the judge looked to the concept of sexual orientation and concluded that same sex couples, like opposite sex couples, simply desire to form committed and happy relationships.  California has no policy of discouraging gay and lesbian relationships--in fact, same sex couples are permitted to adopt or have children through assisted reproduction.  Allowing same sex couples to marry would in no way affect heterosexual marriages, but would benefit the children of same sex couples.  Based on all of the evidence, Judge Walker concluded the state possessed no apparent reason to treat opposite sex and same sex couples differently.

"Whether the evidence shows that Proposition 8 enacted a private moral view without advancing a legitimate government interest."

The evidence surrounding Prop. 8 showed it was passed based on a stigma against homosexuals, a group enduring discrimination for decades.  Various negative stereotypes were put forth by proponents of Prop. 8.  The argument was made that permitting same sex couples to marry would encourage their children to become gays and lesbians or adversely affect them in other ways.  In fact, the evidence showed that the children of same sex couples were perfectly well-adjusted and suffered no psychological effects.  Clearly, the evidence showed Prop. 8 was grounded in blatant disapproval of gays and lesbians.

CONCLUSIONS OF LAW

Judge Walker reached a number of conclusions by analyzing Prop. 8 under various legal concepts. 

Marriage is a Fundamental Right

In his due process analysis, Judge Walker observed and the parties conceded that marriage is a fundamental right.  Quoting the famous case of Loving v. Virginia (388 U.S. 1 (1967)) as authority, the judge concluded "freedom of choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." The question, however, was whether the fundamental right for couples of the same sex to marry represented a new right.  The judge concluded the fundamental right to marry applies to same sex couples as well since gender relationships in marriage have evolved to the point where "[g]ender no longer forms an essential part of marriage."  The plaintiffs sought merely state recognition of "their committed relationships."

Domestic Partnerships are not enough

Since same sex couples in California were permitted to form domestic partnerships, the question the judge had to resolve was whether that satisfies the state's obligation to same sex couples.  Of significance to Judge Walker was the social meaning of domestic partnerships as opposed to marriage.  Clearly, domestic partnerships did not equal marriages in perception and stature.  In fact, they were created for that very purpose; "domestic partnerships exist solely to differentiate same sex unions from marriages."

California does not have a legitimate reason to deny marriage to same sex couples

Under long accepted constitutional doctrine, when a state or the federal government denies a fundamental right, they must have a compelling reason to do so.  The judge quoted a well-known principal of constitutional law from West Virginia State Board of Education v. Barnette (319 US 624 (1943)) to promulgate this concept: "fundamental rights may not be submitted to [a] vote."

Once Judge Walker established that same sex couples had a fundamental right to marry, and that domestic partnerships did not equal marriage and satisfy that right, the next logical question for analysis would be whether the state had a legitimate or compelling interest to deny that right.  First, the judge analyzed Prop. 8 under the 14th amendment equal protection clause.  The 14th Amendment protects people against discriminatory state actions.  Judge Walker concluded that Prop. 8 targeted gays and lesbians specifically because of their sexual orientation, and fit squarely within the historic discrimination against those individuals.  What followed was his unprecedented conclusion; "the evidence shows that gays and lesbians are the type of minority strict scrutiny was designed to protect."  In the past, only racial and ethnic minorities, labeled suspect classes under the law, qualified for the protection of strict scrutiny.  Similar to laws that affect fundamental rights, strict scrutiny analysis requires states to have compelling interests to enact laws that impact suspect classes.  No federal judge before Judge Walker has proclaimed gays and lesbians are entitled to constitutional protection as a suspect class. 

Proposition 8 does not survive rational basis

After establishing that marriage is a fundamental right for same sex couples as well as heterosexuals, and that gays and lesbians were entitled to strict scrutiny, Judge Walker concluded that it was unnecessary to apply strict scrutiny to Prop. 8; "Proposition 8 fails to survive even rational basis review."

Any time a state or the federal government enacts a law that does not affect a fundamental right or a suspect class, it still must be "rationally related to a legitimate state interest."  The judge used the example of "a scarcity of marriage licenses or county officials" as a potentially legitimate state interest or justification to deny marriage to same sex couples.  However, in light of the 18,000 married same sex couples living in California, there was no rational reason to deny same sex couples the right to marry. 

The state and supporters of Prop. 8 raised various "purported interests" in defense of its enactment.  Justifications included "reserving marriage as a union between a man and a woman;" "acting incrementally" in bringing about change; "promoting opposite-sex parenting"; and treating same sex couples differently for administrative convenience.  The court dismissed each justification summarily.  The court held justifying the denial based on tradition (in this case, the tradition of opposite sex marriage) can never be rational.  Incremental action was held illogical since 18,000 same sex couples were currently married in California.  Promoting opposite sex parenting was equally illogical since same sex couples were allowed through adoption and assisted reproductive techniques to form families.  Finally, administrative convenience was also counter-intuitive since a duel system allowing heterosexual marriage and same sex partnerships actually created an "administrative burden."

After dismissing the proponents' attempts to establish a rational basis, the court concluded morality was the sole reason for Prop. 8; "the most likely explanation for its passage [was] a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples."  Prior decisions clearly established that "moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians."

Judge Walker reached the inescapable conclusion that Proposition 8 failed to have a rational basis for enactment. Discrimination was the clear and simple explanation and justification for the passage and continuation of Prop. 8. Thereby, the court enjoined state officials from the continued enforcement of Proposition 8.

FUTURE OF THE DECISION

On August 8, 2010, the day after the decision was handed down, the defendant-interveners appealed the decision to the Court of Appeals, Ninth Circuit. The Court of Appeals issued an injunction, so that no same sex marriage can be solemnized while the appeal is pending.  One issue that must be decided initially is whether the defendant-interveners acting on behalf of the state of California have standing to appeal the decision, considering they are not the actual defendants.  Oral arguments are scheduled to begin the week of December 6, 2010.  Arguably, the Ninth Circuit is the most liberal appellate court in the federal system which increases the likelihood that the Distract Court decision will be upheld.  Ultimately, one must conclude the decision is headed inevitably towards U.S. Supreme Court review.  Finally, America will hear that high tribunal's opinion on whether the Defense of Marriage Act is constitutional.