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Efforts to overturn Prop. 8

Trial in Federal District Court
of Perry v. Schwarzenegger
: Part 3

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"Conclusions of law:"

Based on the evidence presented during the trial, United States District Chief Judge Vaughn R. Walker found that Proposition 8, the initiative that was narrowly passed by the voters on election day in 2008-NOV, and which terminated same-sex marriages (SSMs) in California violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. 1,2 Thus it is unconstitutional and cannot be enforced.

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Why Prop. 8 violates the due process clause of the U.S. Constitution:

"The Due Process Clause provides that no 'State [shall] deprive any person of life, liberty, or property, without due process of law'." This prevents governments from arbitrarily intruding into their life, liberty or property. Whenever a law restricts a fundamental human right, the government must show that their intrusion is justified with a compelling reason.

Judge Walker quoted numerous court rulings that have established that the right to marry is a fundamental right protected by the due process clause:

  • Turner v Safely (1987): "The decision to marry is a fundamental right. ... [marriage is an] expression of emotional support and public commitment."

  • Zablocki (1978): "The right to marry is of fundamental importance for all individuals."

  • Cleveland DoE v. LaFleur (1974): "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."

  • Loving v. Virginia (the U.S. Supreme Court decision that redefined marriage to include interracial couples) (1967): "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [sic]."

  • Griswold v Connecticut (1965): "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

He discussed various elements of and reasons for marriage as it exists today: equality, choice, freedom, stability, procreation, sex...

  • During the history of the U.S. marriage has always involved two persons giving their free consent to form a relationship which forms the foundation of a household. They promise to support each other and any dependents.

  • The state regulates marriage because it helps create stable households which contribute to the stability of the culture.

  • Procreation is not the purpose of marriage, because states have never required couples to prove their ability and/or intent to have children before issuing a marriage license.

  • Sex is not the purpose either: The ruling by the U.S. Supreme Court in Lawrence v. Texas stated that: "It would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse." In Griswold v. Connecticut, the court recognized that choice and privacy play a major role in marriages.

  • In Loving v. Virginia, the U.S. Supreme Court ruled that restrictions on access to marriage based on race violated the concepts of liberty and choice inherent in the right to marry.

  • Marriage once required a woman's legal and economic identity being taken over by her husband at marriage. This concept has been abandoned in favor of marriage being a union of equals.

Trial evidence indicates that marriage has traditionally been unavailable to same-sex couples. Reasons for this exclusion include:

  • Fixed gender roles in marriage including a loss of legal and economic identity by women.

  • Social disapproval of same-sex relationships.

  • The vast majority of adults are heterosexual and thus have no reason to challenge the status quo.

Judge Walker wrote:

"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. ... Gender no longer forms an essential part of marriage; marriage under law is a union of equals."

This statement seems to contradict the deeply held sincere beliefs by most social and religious conservatives on the important role of gender in parenting and marriage. They generally expect men and women to have different levels of authority and play well defined and different roles in marriage. They regard children of same-sex couples to be very severely disadvantaged, because the children's DNA does not contain elements of both of their parents DNA and because they lack either a mother or a father.

He continued:

"Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition. 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. ..."

"California allows almost all opposite-sex couples only one option -- marriage -- and all same-sex couples only one option -- domestic partnership. ... 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. ... the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. ... The record reflects that marriage is a culturally superior status compared to a domestic partnership. ..."

"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 same-sex couples."

It is a matter of record that Prop. 9 was narrowly passed by the voters. However, according to a 1943 ruling by the U.S. Supreme Court in West Virginia Board of Education v. Barnette:"... fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections." This is another statement that contradicts the deeply held beliefs by most social and religious conservatives about the role of voter initiatives. Many feel that a 50% response plus one vote of the electorate is sufficient to identify any minority and terminate even basic fundamental or rights of that group. Some conservatives reject the concept that one of the functions of a Constitution is to prevent the tyranny of the majority in oppressing a minority. To them, the essence of democracy is that the majority rules.

Judge Walker concludes his discussion of due process:

"The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly
tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that '[t]here is a significant symbolic disparity
between domestic partnership and marriage.' ..."

"Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment."

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Text of Perry v Schwarzenegger, United States District Court for the Northern District of California, at: http://msnbcmedia.msn.com This is a PDF file.
  2. Evidence submitted at the trial is available at: https://ecf.cand.uscourts.gov/

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Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

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Copyright © 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-AUG-06
Latest update: 2010-AUG-06
Author: B.A. Robinson

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