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Prop 8 ruled unconstitutional as lacking rational basis | Hunter of Justice

Prop 8 ruled unconstitutional as lacking rational basis

by on August 4, 2010  •  In Constitutional law, Marriage

Well, round one in the Perry case is almost over. Judge Vaughn Walker issued his decision finding that Prop 8 violates both Due Process and Equal Protection guarantees in the U.S. Constitution. [2010 WL 3025614] The ruling is stayed until Friday, the deadline set by Judge Walker for the parties to submit arguments on whether the injunction he granted against enforcement of Prop 8 will continue to be stayed pending appeal.

The decision finds a Due Process violation in that California denies access to the form of legal recognition considered to be culturally superior – marriage – and offers only an inferior substitute – domestic partnerships. On the Equal Protection claim, Judge Walker finds that Prop 8 discriminates based on sexual orientation, a classification that he would treat as suspect, but he concludes that because Prop 8 lacks a rational basis, there is no reason to reach the question of heightened scrutiny.

These aspects of the 138-page opinion strike me as the most important:

* Judge Walker's ruling applies only to California; it says nothing about the 44 other states with laws prohibiting same-sex marriage. However, the grounds for the decision are not limited to California's unique sequence of state supreme court decision followed by voter initiative. On appeal, the Ninth Circuit may limit the reasoning or not; whether that happens could influence whether the Supreme Court would decide to hear the case, if it gets that far.   

* The opinion stresses the ways in which Prop 8 singles out gays and lesbians and targets them for stigma by withholding access to marriage, based on stereotypes and the effort to enforce a moral code. I read this as the strongest foundation in the decision for linking it to the Supreme Court's opinions in Romer v. Evans (stressing the irrational anti-gay animus behind a Colorado state constitutional amendment) and Lawrence v. Texas (labeling the imposition of a moral code as an illegitimate state interest).

For example, the court finds as fact that Prop 8

places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; [they] are not as good as heterosexuals; and [their] relationships do not deserve the full recognition of society. … [Prop 8] singles out gays and lesbians and legitimates their unequal treatment. [It] perpetuates the stereotype that [they] are incapable of forming long-term loving relationships that [they] are not good parents. …

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 court finds that the state interests argued by Prop 8 proponents are either not served by it or not legitimate.


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.  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.

* The most creative aspect of the decision doctrinally is the way it weaves together sex and sexual orientation discrimination theories.

The evidence did not show any historical purpose for excluding same-sex couples from marriage…Rather the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed…Gender no longer forms an essential part of marriage; marriage under law is a union of equals….

Sexual orientation discrimination can take the form of sex discrimination. …The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation….Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

* Given that it was the judge who forced both sides to introduce extensive evidence, it is no surprise that he analyzed that evidence in great detail. The Perry case is trailblazing in two ways: it is not only the first challenge to a marriage ban in federal court on federal constitutional grounds but also the first case to proceed with a full-scale trial since the Hawaii state court litigation 14 years ago. The bulk of the lengthy decision consists of summaries of the trial record which was lopsided in favoring plaintiffs. Although not binding on any other court, the opinion creates a powerful and persuasive statement of facts rebutting the arguments of those who oppose marriage equality, particularly on issues related to children.

In short, it's a thorough analysis and a comprehensive review of the factual and quasi-factual bases for each side's arguments in the marriage debates. Not surprising, but well done. Is it a watershed, either legally or culturally?  Too soon to know.

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8 Responses to Prop 8 ruled unconstitutional as lacking rational basis

  1. Linda August 4, 2010 at 8:46 PM

    Proposition 8 Unconstitutional? You mean to tell me that Leviticus, was just the original fundamental Republican (emphasis on mental) who had not made it out of the closet (kinda like Ted Haggard)? Lets face it was not in the Ten Commandments or even addressed by Jesus the son of God, so are we surprised with this ruling, its about time.

  2. Ruth August 5, 2010 at 9:39 AM

    Didn’t both the plaintiffs’ and defendants’ teams argue AGAINST developing a factual record in this case?

  3. Nan Hunter August 5, 2010 at 11:11 AM

    That’s right, Ruth – none of the attorneys wanted to produce a factual record; the judge forced them to.

  4. Ruth August 5, 2010 at 12:38 PM

    And another thing – what was Charles Cooper and team thinking? In a previous posts you highlighted the absurdity of their reasons for upholding the statute – mainly based on “tradition” – eviscerated by the judge. Do you think they were unable to present a factual basis to support their case, or that it didn’t matter or what? It was hard to fathom at the time but in retrospect, looks like legal malpractice.

  5. repeal8 August 5, 2010 at 2:09 PM

    Wasn’t Nebraska’s Prop 416 the first marriage ban to be challenged on federal constitutional grounds — winning at the district court and failing at the Eighth Circuit? Citizens for Equal Protection v. Bruning, No. 05-2606 (8th Cir. Jul. 14, 2006).

    It seems to me that this decision makes it more likely that SCOTUS would grant cert if the 9th Cir affirms Walker because there will be a clear circuit split.

  6. Nan Hunter August 5, 2010 at 2:38 PM

    I just re-read Bruning and I think there would not be a circuit split. That case was litigated on the theory that the Nebraska amendment precluded ordinary legislative repeal in the future, thus raising the goalpost in the way that the Colorado amendment struck down in Romer did. The court says that the plaintiffs specifically did not argue for right to marry. So I think it is sufficiently different to avoid a circuit split basis for cert if the 9th Circuit affirms Walker.

  7. Nan Hunter August 5, 2010 at 2:49 PM

    Their desire not to put on any evidence was at least consistent with their theory of the case, which is that any conceivable rational basis would suffice to uphold Prop 8. I imagine they also realized that a battle of the experts would be tough for them to win, but the opinion really rubs the trial record in their face, and I’ll bet they didn’t expect such detail. I think it was a major miscalculation – they look like idiots.

  8. Jay August 9, 2010 at 7:31 PM

    I think the defense was hamstrung by the way they ran the campaign. The way they ran the campaign certainly revealed animus against gay people and relied on private religious views. They could not present that kind of argument in court, so they had to rely on David Blankenhorn as their “expert” since he is almost the only opponent of ssm whose opposition allegedly does not stem from religious reasons or animus.

    Since they couldn’t present their real reasons for opposing ssm, they had to concoct the notion that the purpose of marriage was for procreation and for controlling the irresponsible procreation of heterosexual men. That is preposterous, of course, but it has had some success in some state courts (New York and Maryland, I believe), so it was not totally without possible success.

    The problem, of course, is that Blankenhorn is no “expert” and he was totally outclassed by such real experts as Nancy Cott. Blankenhorn’s big spiel is that somehow, some way ssm would “deinstitutionalize” marriage, but under cross-examination he was reduced to tongue-tied blithering. It turns out that he has never done any original research himself and his practice is merely to read the research of others and decide by intuition what research he likes and what research he dislikes. This lack of adherence any recognizable social science methodology rendered his ideas mere speculation and was rightfully disregarded.

    And some of the other “experts” the defense had listed as possible witnesses turned out not to say what they thought they would say. In their depositions they supported many of the contentions of our side. As David Boies has said, it is easy to lie on television and in campaigns, but when a good Judge imposes standards of evidence, it is much more difficult to invent studies out of thin air or cite junk science.

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