[ Gary-Wright.com ] [ The Wright Perspective Blog ] [ The Wright Perspective Blog 2010 Archives ] →
The Wright Perspective℠
Social Commentary from the C-Suite to Main Street℠
A Blog by Gary Wright II
Prop 8 decision summarized by Gary Wright II
Wednesday, August 4th, 2010
Today United States District Chief Judge Vaughn Walker declared California Proposition 8 unconstitutional. This important decision is a historical landmark for our great nation and a significant step toward equality for all of our citizens. Although this case is about a law in California, it sets the legal precedent to overturn similar laws in other states, as well as the federal "Defense of Marriage" act. The decision will be appealed to the 9th Circuit Court of Appeals and will most likely work it's way to the US Supreme Court. The Constitution of our nation is pretty clear, and Proposition 8 directly violates the Fourteenth Amendment. For those reasons, I fully expect this ruling to stand and to also be upheld by the Supreme Court.
The court ruling is 138 pages and may be difficult for the average reader to digest. I have taken the liberty of boiling it down to just a few pages:
Proposition 8 deprives gays / lesbians of due process and of equal protection of the laws contrary to the Fourteenth Amendment.
The Due Process Clause provides that no "State [shall] deprive any person of life, liberty, or property, without due process of law." Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. Plaintiffs contend that the freedom to marry the person of one's choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:
1. It prevents each plaintiff from marrying the person of his or her choice;
2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state's unwarranted usurpation of that choice; and
3. California's provision of a domestic partnership - a status giving same-sex couples the rights and responsibilities of marriage without providing marriage - does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.
Equal protection is "a pledge of the protection of equal laws." The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Proposition 8 violates the Equal Protection Clause because it:
1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and
2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.
CONCLUSIONS OF LAW
Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.
THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL'S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER
The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted "in our Nation's history, legal traditions, and practices."
Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse." The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship.
When the Supreme Court invalidated race restrictions the definition of the right to marry did not change. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.
As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse's role within a marriage. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.
The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.
Today, gender is not relevant to the state in determining spouses' obligations to each other and to their dependants. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as "the right to same-sex marriage" would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy - namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
DOMESTIC PARTNERSHIPS DO NOT SATISFY CALIFORNIA'S OBLIGATION TO ALLOW PLAINTIFFS TO MARRY
Having determined that plaintiffs seek to exercise their fundamental right to marry under the Due Process Clause, the court must consider whether the availability of Registered Domestic Partnerships fulfills California's due process obligation to same sex couples. The evidence shows that domestic partnerships were created as an alternative to marriage that distinguish same-sex from opposite-sex couples. One of the "core elements of th[e] fundamental right [to marry] is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships."
The evidence shows that domestic partnerships do not fulfill California's due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to samesex couples.
PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING) REASON
Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. That the majority of California voters supported Proposition 8 is irrelevant, as "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections."
SEXUAL ORIENTATION OR SEX DISCRIMINATION
Plaintiffs challenge Proposition 8 as violating the Equal Protection Clause because Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry's choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry's choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian. The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present.
Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs' equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.
But proponents, amici and the court, despite ample opportunity and a full trial, have failed to identify any rational basis Proposition 8 could conceivably advance. Proponents, represented by able and energetic counsel, developed a full trial record in support of Proposition 8. The resulting evidence shows that Proposition 8 simply conflicts with the guarantees of the Fourteenth Amendment.
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. 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. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION
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. "[T]he Constitution cannot control [private biases] but neither can it tolerate them."
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. 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." "[M]oral disapproval, without any other asserted state interest," has never been a rational basis for legislation. Tradition alone cannot support legislation.
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. [L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
CONCLUSION
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.
REMEDIES
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.
Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.