California same sex marriage ban held unconstitutional
The much awaited decision in Perry v Schwarzenegger was issued today. The full decision may be found here. I just finished reading it (which at 138 pages took me a while). Here’s how the judge’s reasoning went with a couple of excerpts mixed in.
The judge spent some time discussing the parties. The plaintiffs were same sex couples who desired to marry. While the named defendants were various elected officials in their capacity as heads of the state of California, they all declined to defend the case and left it to a cast of gay marriage opponents. The judge then went on to discuss the evidence by issuing numerous “findings of fact.” The evidence presented by the plaintiffs was their own testimony plus the testimony of a number of experts in the fields of history, political science, sociology, psychology and others. The defense presented a single expert witness. An “expert” in this context is someone who because of education, training or experience is qualified to give an opinion rather than just statements of fact in testimony. While the judge allowed the defense expert to testify, he ultimately ruled that the gentleman lacked the type of qualifications to warrant “expert” status and gave his testimony no weight.
Based on the evidence, here are some of the factual findings of the judge:
Marriage is the state recognition and approval of 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 to join in an economic partnership and support one another and any dependents. . . . . . Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.
The judge offered an interesting interpretation of the institution of marriage. He wrote that because of the historic division of labor based on gender (the man worked while the woman cared for the children and the household), the law viewed the two individuals in a marriage as merging into a single entity (with the man holding all the power). The judge went on to say that this past historical status has been washed away in modern times – both partners in a marriage have equal rights (to property, work, housekeeping, everything). Here’s how the judge put it:
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. 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.
The judge ultimately ruled that based on the evidence presented at trial, there was no “rational basis” for banning same sex marriage. Here’s how he put it:
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. . . . Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
As for the argument that the people voted for this, the judge said “an initiative measure adopted by the voters deserves great respect” but “conjecture, speculation and fears are not enough to uphold a referendum” nor “will the moral disapprobation of a group of citizens suffice.” In other words, just because a majority of California voters aren’t comfortable with the idea of gay marriage, that’s not a Constitutionally sufficient reason to discriminate.