Thursday, August 05, 2010

Peering into Perry on Marriage Equality

Wowzers, boys and girls, Perry was Clark Kent's editor and a different one is a pop star, but let us revel in Perry v. Schwarzenegger that found CA's anti-gay/anti-SSM amendment unconstitutional.

Led on the plaintiff's against the effects of Proposition 8 by the American Foundation for Equal Rights and on the institutionalize-discrimination side by the Alliance Defense Fund, this Perry goes beyond entertainment.

Let's take a look into the lengthy decision U.S. District Court Chief Judge Vaughn R. Walker (left) issued yesterday.

Pagination note: For the decision, numbers in parentheses refer to the document pagination. Those are two short of the PDF file's, as (15) would be on the file's page 17, because of the numbering of the cover and ToC.

What's Next?

My favorite legal commentator, NYU Law Prof. Arthur Leonard, was quick on his overview. For the short term, he predicts, ""(F)from the tone of his opinion it seemed unlikely that he would be inclined to stay his ruling. On the other hand, the defendants could seek a stay from the 9th Circuit Court of Appeals, based in San Francisco, where defendant-intervenors promptly announced they would bring the case on appeal."

More important, he was impressed with the detail, specificity and extra-state citations. He thinks Walker set up a solid basis to uphold the ruling on appeal at both levels. As Leonard put it, Walker " indicated several times during the proceedings his concern to compile a detailed record, realizing that the case would be appealed no matter which side won, and by pinning down a wide range of potentially relevant factual findings, he would be providing a strong basis for the winning party to defend his ruling on appeal. Appellate courts rarely reject factual findings that are documented by extensive references to a detailed trial record, and factual findings can be the most significant part of a case involving significant disputes about public policy."

He added that "Walker’s conclusions were not novel. As indicated above, they followed the path now well-worn blazed by several state supreme courts. But they are stated with such clarity and directness that they take on enhanced effectiveness and authority, especially since many the state court decisions were not based on extensive trial records but instead were decided on motions for summary judgment based on affidavits and legal arguments."

For commentary from the Dark side, a roundup of pro-Prop 8 reaction appears at Salon. Their lawyers have their own we-shall-return drama here.

Rip 'em Up

Subtlety is wasted on anti-gay folk, and on bigots of any variety really. Walker ended up coming hard, heavy and plain in his discussion and conclusions, and particularly his findings of fact.

Before pasting some of his ruling, I'll note:
  • The defendants, the pro-Prop 8 crew, were truly incompetent in presentation. They basically had nothing, presented minimal testimony and argument. They came largely with because-I-said-so and it's-common-sense arguments. Those do work sometimes in court or the legislature, particularly were folk fear change. Walker would have none of it.
  • The plaintiffs came with their A+ game, with experts, legal facts and arguments, and actual proof of their positions. The contrast was astounding.
  • The ballot initiative/referendum process was surprisingly minor in the sense of its claimed primacy over legislation and representative democracy.
  • While clearly a CA state issue, this case could well end up in the U.S. Supreme Court because of Walker's basis of conclusion. He found the one-man/one woman amendment violated the federal constitution (specifically the 14th Amendment) in due-process and equal-protection clauses. That, as the expression goes, makes it a federal case. That is, if the Ninth upholds Walker as seems likely, this affects Western states beyond California, setting precedence really for the nation and requiring clarification about whether those dozens of DOMA-style laws and amendments remain legal.
Walker left no doubt that he found no basis or justification in the defendants' arguments. I suspect this is the future, regardless of the eventually outcome of Perry. Sweeping and insubstantial claims that homosexuals are all bad, that government has the power to limit marriage even at the state level, that people (only opposite-sex coupled people) who choose to reproduce deserve different laws, and the like are illogical and passe.

According to the ruling's conclusions (137):
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.
There is the short-term present and the long-term future regardless of any setback for Perry. This socially conservative nation is at the point of transcending even this form of discrimination. Whether Walker's ruling pushes us through the door remains to be seen. Surely if the best the anti-SSM folk have is what they showed in this trial, we have new precedent.

Why Plaintiffs Prevailed

Another long citation from the decision is in order. Walker's finding and order don't mess around:
Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result...; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.
That's the nub. Despite years of argument in courts and legislatures. Despite lawyer-decades and millions of dollars devoted to winger thought and preparation, there's nothing behind the curtain.

If you wonder how that might be, dig into the ruling's analysis of what both sides presented. The Prop 8 people had next to nothing and what they did present was risible.

For one, in contrast to the fully fleshed out plaintiffs' presentation and the phalanx of personal, legal and expert witnesses (4 plaintiffs, 4 lay and 9 expert witnesses [24]), the defendants mumbled and stumbled. They ended up bringing only two witnesses, David Blankenhorn, founder and president of the Institute for American Values, and Kenneth P Miller, a professor of government at Claremont McKenna College. The former is a total BS artist who seems to make up everything he says and simply wants his assertions to be accepted on their face. The latter admitted to no LGBT expertise and spoke lightly of CA and U.S. politics. He admitted to reading only some background and that provided by the defense team.

Among Walker's comments on the defense presentation are:
  • Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. (35-40)
  • The defense pretended that possible video in court scared away their experts, although Walker noted, "...proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated."
  • Blankenhorn, Walker wrote, "failed to provide cogent testimony in support of proponents' factual assertions."
  • He likewise found that Blakenhorn seemed an autodidact (my term) on marriage, family and fatherhood. Walker added that "...nothing in the record other than the 'bald assurance' of Blakenhorn...suggests that (his) investigation into marriage has been conducted to the 'same level of intellectual rigor' characterizing the practice of anthropologists, sociologists or psychologists." (43-44)
  • The Chief Judge seemed unnecessarily kind in calling BS on the only real witness. He wrote, "The court concludes that Blankenhorn’s proposed definition of marriage is “connected to existing data only by the ipse dixit” of Blankenhorn and accordingly rejects it."
  • Walker found no support for Blankenhorn's statements. For one, "Blankenhorn’s conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents." (45-46)
  • For another, "Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered. " (48)
Walker went into great detail in findings of fact and his conclusions about the plaintiffs' assertions. He held that the defense arguments failed the lowest-level test of rational basis for the overt discrimination in Prop 8. He saw real damages to homosexual couples and their children with no justification. He found that due process and equal protection were clearly violated.

Moreover, he came heavy on underlying assumptions (that ipse dixit again) of the defense. That includes:
  • CA has no interest in forbidding SSM. "None of the interests put forth by proponents relating to parents and children is advanced by Proposition 8; instead, the evidence shows Proposition 8 disadvantages families and their children." (129)
  • Defendants were not harmed, even in their alleged First Amendment interests. "Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex...To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification." (130)
  • That CA's domestic partnership is inherently different and inferior to marriage, thus discriminating by both gender and sexual orientation. (116)
  • He dismissed the spurious (my term) claim that SSM would be an administrative burden on the state. In fact, he found that keeping a domestic-partnership track with opposite-sex marriage was the burden. (131)
  • Walker wrote that "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 evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8. " (130-131)
  • Instead, he concluded most strongly, "The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal...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." (132)

Ready for Change?

Forecasts are that this case will perk along for 18 to 24 months before final resolution. We don't even know yet whether CA same-sex couples will be able to marry again while appeals proceed.

Meanwhile, we should note that one flare of irony here is the parallel of the lameness of the defense arguments and the asthenic no-on-8 campaign. All sides should draw the clear lessons about preparation and not assuming anything. Of course, the defense was not only unprepared, but perhaps it would have been impossible to prepare when there is no underlying evidence or legal argument of substance.

On marriage equality, the BS side has gotten pretty much a free ride on their positions. The key question with this ruling is whether that's over above state levels. Despite facts and experience, the anti-gay/anti-SSM forces have found a sympathetic pubic, legislature and judges in many venues. We Americans are slow to spread freedom and equality around.

The discriminators and bigots who claim not to be are running their course. When they have to justify the harm they would visit on other Americans, the increasingly fail.

As a marriage-equality advocate, I'd like to get this done now.

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John Hosty-Grinnell said...

This review of the decision is as solid as it gets. I was going to write up my own version but since you've already done all the work I will post a small blurb with a link here. Excellent work Mike, as always!

massmarrier said...

Thank you for the kind word. Note though that I did not feel qualified to discuss the allusions to SCOTUS Justice Kennedy that several legal analysts did. They claim Walker wrote this with repeated nods to the swing vote on rights issues.

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