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'''''Kristin M. Perry v. Arnold Schwarzenegger''''' is a federal [[lawsuit]] filed in the [[United States District Court for the Northern District of California]] challenging the federal [[United States constitution|constitutionality]] of [[California Proposition 8 (2008)|Proposition 8]], a 2008 [[initiative|ballot initiative]] that amended the [[California Constitution]] to prohibit the recognition of [[same-sex marriages]] performed on or after November 5, 2008. The suit sought to strike down Proposition 8 as unconstitutional.
'''''Kristin M. Perry v. Arnold Schwarzenegger''''' is a federal [[lawsuit]] filed in the [[United States District Court for the Northern District of California]] challenging the federal [[United States constitution|constitutionality]] of [[California Proposition 8 (2008)|Proposition 8]], a 2008 [[initiative|ballot initiative]] that amended the [[California Constitution]] to prohibit the recognition of [[same-sex marriages]] performed on or after November 5, 2008. The suit sought to strike down Proposition 8 as unconstitutional.


On August 4, 2010, Chief Judge [[Vaughn R. Walker|Vaughn Walker]] ruled that Proposition 8 violated the [[Due Process Clause|Due Process]] and [[Equal Protection Clause|Equal Protection]] Clauses of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] to the [[United States Constitution]]. On August 16, 2010, the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit Court of Appeals]] ordered the judgment [[Stay of execution|stayed]] pending appeal.<ref name="stayorder">{{cite news | newspaper=[[Bloomberg Businessweek]] | date=August 16, 2010 |accessdate=August 16, 2010 | title=California Gay Marriage Remains Banned During Appeal | author=Joel Rosenblatt and Edvard Pettersson | url=http://www.businessweek.com/news/2010-08-16/california-gay-marriage-remains-banned-during-appeal.html}}</ref>
On August 4, 2010, Chief Judge [[Vaughn R. Walker|Vaughn Walker]], himself a homosexual, ruled that Proposition 8 violated the [[Due Process Clause|Due Process]] and [[Equal Protection Clause|Equal Protection]] Clauses of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] to the [[United States Constitution]]. On August 16, 2010, the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit Court of Appeals]] ordered the judgment [[Stay of execution|stayed]] pending appeal.<ref name="stayorder">{{cite news | newspaper=[[Bloomberg Businessweek]] | date=August 16, 2010 |accessdate=August 16, 2010 | title=California Gay Marriage Remains Banned During Appeal | author=Joel Rosenblatt and Edvard Pettersson | url=http://www.businessweek.com/news/2010-08-16/california-gay-marriage-remains-banned-during-appeal.html}}</ref>


The case is widely regarded as a [[landmark case]] that will likely reach the [[Supreme Court of the United States|Supreme Court]] on appeal.<ref name="nyt26Jun2010">{{cite news
The case is widely regarded as a [[landmark case]] that will likely reach the [[Supreme Court of the United States|Supreme Court]] on appeal.<ref name="nyt26Jun2010">{{cite news

Revision as of 19:32, 19 October 2010

Perry v. Schwarzenegger
CourtUnited States District Court for the Northern District of California
Full case name Kristin M. Perry et al., Plaintiffs,
City and County of San Francisco,
Intervenor-Plaintiffs,
v.
Arnold Schwarzenegger et al., Governor of California, etc., Defendants;
Dennis Hollingsworth
et al., Intervenor-Defendants.
DecidedAugust 4, 2010
Citations704 F. Supp. 2d 921 (N.D. Cal. 2010)
2010 Westlaw 3025614
2010 U.S. Dist. LEXIS 78817
TranscriptTrial transcripts
Case history
Subsequent actionsCase No. 10-16696 (9th Circuit appeal by defendants-intervenors)
Case No. 10-16751 (9th Circuit appeal by Imperial County)
Holding
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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.
Court membership
Judge sittingVaughn R. Walker
Keywords
Proposition 8, Marriage, Equal Protection, Same-sex marriage, Sexual Orientation

Kristin M. Perry v. Arnold Schwarzenegger is a federal lawsuit filed in the United States District Court for the Northern District of California challenging the federal constitutionality of Proposition 8, a 2008 ballot initiative that amended the California Constitution to prohibit the recognition of same-sex marriages performed on or after November 5, 2008. The suit sought to strike down Proposition 8 as unconstitutional.

On August 4, 2010, Chief Judge Vaughn Walker, himself a homosexual, ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. On August 16, 2010, the Ninth Circuit Court of Appeals ordered the judgment stayed pending appeal.[1]

The case is widely regarded as a landmark case that will likely reach the Supreme Court on appeal.[2][3][4] The plaintiffs' attorneys, Theodore Olson and David Boies, were placed on the 2010 Time 100 for their nonpartisan and strong legal approach to challenging Proposition 8.[5]

Background

In May 2008, the California Supreme Court held in the case In re Marriage Cases that state statutes limiting marriage to opposite-sex applicants violated the California Constitution. The following month, same-sex couples were able to marry in California. In November 2008, California's electorate adopted Proposition 8, a constitutional amendment that restored the opposite-sex limitation on marriage.[6] Following the adoption of Proposition 8, several lawsuits were filed that challenged the validity of the amendment under various state constitutional provisions. On May 26, 2009, the California Supreme Court held, in Strauss v. Horton, that Proposition 8 was a lawful enactment, but that same-sex marriages contracted before its passage remained valid.[7]

Three days before the Strauss decision, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California to challenge the validity of Proposition 8 on behalf of two same-sex couples.[8][9][10] The couples' attorneys included Theodore Boutrous and the two attorneys who opposed each other in the Bush v. Gore case, David Boies and former U.S. Solicitor General Theodore Olson.[11]

Lambda Legal, the ACLU, and the National Center for Lesbian Rights, who originally obtained the right to same-sex marriage in California in In re Marriage Cases and defended it in Strauss v. Horton, opposed the filing because they felt a federal challenge at this time might do more harm than good.[9] Olson and AFER rebuffed this claim and defended the timing of the lawsuit.[12]

Following a pre-trial hearing on July 2, 2009, the three legal groups moved to intervene in the lawsuit, as did the City of San Francisco in a separate filing. The plaintiffs opposed allowing the groups or the City to intervene.[4] On August 19, Judge Vaughn R. Walker denied the legal groups' motions to intervene but granted the City's, albeit in a limited capacity.[13] Despite the other groups' failed attempt to intervene in the lawsuit, they offered support to the legal team litigating the case, with James Esseks of the ACLU saying: "[w]e are interested in doing whatever we can to make sure their case is as successful as possible".[8]

Parties

Plaintiffs

It was still emotional to be denied [a marriage license]. But in all fairness [to the clerk], she handled it really well. [Her words] reiterated that we were denied equal rights. It made us feel that we made the right decision to be a part of this case.[4]

Jeffrey Zarrillo, co-plaintiff

In May 2009, the Alameda County Clerk-Registrar, Patrick O'Connell, denied Kristin Perry and Sandra Steir a marriage license because they are a same-sex couple. For the same reason, Dean Logan, the Los Angeles County Clerk, denied Paul Katami and Jeffrey Zarrillo a marriage license.[10] The couples sued the two county clerks and several state officials: Governor Arnold Schwarzenegger, Attorney General Jerry Brown, and two officials in the Department of Public Health.[10][14]

Several groups sought to intervene as plaintiffs, including the groups who had prosecuted the In re Marriage Cases and Strauss v. Horton actions.[15] San Francisco also filed a motion to intervene in the case. The City cited its work in the earlier cases that had provided "extensive evidence and proposed findings on strict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination". City Attorney Dennis Herrera said that his office is "singularly well-prepared" to help "put anti-gay discrimination on trial based on the facts".[16] Walker permitted only San Francisco to intervene, as it could speak to the impact of Proposition 8 on local governments.[17] He also ordered the attorney general to assist San Francisco in analyzing Proposition 8's impact. Walker stated that necessary speed and swiftness "on an issue of this magnitude and importance" were required and that the intervention of additional groups would only complicate and stall the case.[18]

Defendants

What's at stake in the Perry case is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman, but whether marriage will be redefined in every state in the nation.[19]

ProtectMarriage.com, Defendant-intervenor

Attorney General Brown chose not to defend the lawsuit, saying that Proposition 8 violates the 14th Amendment and should be struck down.[8][20] Governor Schwarzenegger took a more neutral path,[18] saying that he supported the lawsuit because the Proposition 8 conflict asks "important constitutional questions that require and warrant judicial determination". None of the state officials named in the suit sought to defend the law in court.

Two groups, the official proponents of Proposition 8 led by Dennis Hollingsworth, and a rival group, the Campaign for California Families, sought to intervene as defendants. The court allowed the official proponents to intervene, filling the void left by the state officials' acquiescence. The judge denied the request from the Campaign for California Families.[14][17]

On December 15, Imperial County filed a motion to intervene as a defendant despite the fact that the intervenor deadline had passed.[21] They argued that the civil agencies named in the suit, the counties of Alameda and Los Angeles and the state government, were not actively defending the Proposition. They continued to argue that the case needed a proper governmental defendant.[22] On August 4, along with the ruling, Judge Walker denied Imperial County intervenor status.[23]

Pre-trial motions

Plaintiffs filed a motion for a preliminary injunction that would have immediately restored same-sex marriage in California until the lawsuit was decided.[24] Judge Walker deferred a ruling on the motion and said he would instead "proceed directly and expeditiously to the merits".[25]

Plaintiffs requested that the campaign produce internal documents that relate to the purpose and intent of the amendment and the development of political messages during the campaign. The Proposition 8 proponents objected to the request because of the potential chilling effect on political speech, among other grounds.[26] On October 1, Walker rejected the contention that the First Amendment shielded all of those communications.[27] The proponents appealed that decision to the U.S. Court of Appeals for the Ninth Circuit and separately moved to stay the proceedings in the district court. Noting that the proponents were unlikely to succeed in this appeal, Walker rejected the stay request on October 23.[28] Regardless, the proponents continued to assert a First Amendment privilege over these documents, a sampling of which Walker reviewed privately.[29] On December 11, 2009, the Ninth Circuit overturned Walker's ruling, saying that the release of the documents "would likely have a chilling effect on political association and the formulation of political expression."[30]

In September, Proposition 8 proponents filed a motion for summary judgment. Running more than 100 pages, the motion asked the court to rule that Proposition 8 did not offend the U.S. Constitution without the need to find facts at a trial. The motion asserted that Baker v. Nelson foreclosed any further review by the court. Failing that, the motion argued that all of the couples' claims failed as a matter of law.[31] After a two-hour hearing on October 13, Walker denied the motion. He noted that the Supreme Court doctrine on sexual orientation and gender discrimination had changed since 1972. Resolving the amendment's validity, Walker noted, required hearing testimony at trial.[32]

Broadcast and online coverage

Perry would have been the first federal trial to be filmed and be shown live at public courthouses in San Francisco, Pasadena, Seattle, Portland, and Brooklyn, through an experimental new system developed by the Ninth Circuit Appeals Court.[33][34] The trial would have also been shown on the video-sharing website YouTube.[33] Judge Walker noted that he had received 138,574 comments on the plans to broadcast the trial, and all but 32 were in favor.[35]

Two days before the trial, the defendant-intervenors filed emergency papers with the Supreme Court to bar telecasting the trial, with the court ruling 8-1 to temporarily stay live streaming until Wednesday.[36] Although a coalition of media organizations, including CNN, Fox News, the Associated Press, and Court TV, filed an emergency amicus brief in support of live streaming and delayed broadcast,[37] the court ruled 5-4 along ideological lines in Hollingsworth v. Perry to indefinitely block live streams to various federal courthouses, although it refused to rule on plans to delay broadcasts on YouTube.[38][39]

Despite the ruling, the proceedings elicited unprecedented live coverage through social networking site Twitter from gay-interest magazine The Advocate,[40] the National Center for Lesbian Rights,[41] an official feed from the group representing the plaintiffs (AFER),[42] a California-based progressive organization Courage Campaign,[43] and several independent parties such as Chris Geidner, maintainer of the LGBT-oriented Law Dork blog,[44] San Francisco-based attorney Chris Stoll,[45] and others.

Filmmakers John Ireland and John Ainsworth filmed and distributed a re-enactment of the trial.[46] Actors participating in the project include Adrienne Barbeau, Arye Gross and Tess Harper.[47]

Trial

In scheduling a trial for January 11, 2010, to gather facts about the case, Judge Walker largely surprised both the plaintiffs and defendants.[48][8][13] The trial was intended to address issues such as how having same-sex parents affects children, whether same-sex marriages undermine opposite-sex marriages,[3] the history of discrimination against gays, and the effects of prejudice against gays.[49] Notable trial witnesses included historian George Chauncey, psychologist Gregory M. Herek, and philosopher Daniel N. Robinson.[49]

The trial began with opening statements by Ted Olson and San Francisco Deputy City Attorney Therese Stewart for the plaintiffs.[50] The plaintiffs sought to show that marriage is a fundamental right; that depriving gays and lesbians of the right to marry hurt them and their children; and that there was no reason or societal benefit in prohibiting them from getting married.[51] Charles Cooper made an opening statement for the defendants, saying that marriage had been universally limited to opposite-sex couples.[50] The plaintiffs then testified about their personal experiences as gay Americans and the reasons why they wished to get married.[52][50]

Following the Supreme Court's decision in Christian Legal Society v. Martinez on June 28, 2010, the plaintiffs in Perry cited the decision by Justice Ginsburg as Supreme Court precedent that sexual orientation is "an identifiable class" in opposition to the defense's argument that sexual orientation is "behavioral".[53] Christian Legal Society had asserted that it did not restrict membership based on sexual orientation but based on "conduct and belief that the conduct is not wrong".[54] Ginsburg rejected that distinction, noting that with respect to sexual orientation the court has "declined to distinguish between status and conduct" and offering an analogy from an earlier opinion: "A tax on wearing yarmulkes is a tax on Jews."[55]

History of marriage

The plaintiffs called expert witness Nancy Cott, an American history scholar, who testified that "marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage".[50] The next day, she continued her testimony, which revolved around three key points: how marriage has historically been used "punitively" to demean disfavored groups, how the legally enshrined gender roles in marriage had been disestablished during the 20th century and how the changes in the institution of marriage had mainly involved "shedding inequalities", which she said strengthens marriage.[56] She emphasized the importance of the institution of marriage by noting that "when slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means".[57] Cott was then cross-examined by David Thompson, who took supposedly out-of-context statements from her deposition testimony and publications and asked if she agreed with them.[56]

Defense counsel argued that marriage has traditionally been between a man and a woman because it provided a stable unit for procreation and child rearing.[58][59]

According to an amicus brief filed by numerous psychology organizations, "There is no evidence or logic that supports a conclusion that denying marriage to same-sex couples would encourage heterosexual couples to marry and procreate ... [P]erhaps the primary purpose of Proposition 8 is revealed: to discourage same-sex couples from forming lasting relationships and procreating, in order to protect the privilege, benefits, and status of marriage reserved for the heterosexual majority. This kind of naked discrimination through the political power and will of the majority is, of course, exactly what the Due Process and Equal Protection Clauses of the Fourteenth Amendment prohibit." The groups who filed the brief are the American Association for Marriage & Family Therapy, California Division; the California Association of Marriage and Family Therapists ("CAMFT"); CAMFT-East Bay Chapter; CAMFT-Los Angeles Chapter; CAMFT-Marin County Chapter; CAMFT-San Francisco Chapter; Gaylesta, Inc.; the American Family Therapy Academy; the Lesbian and Gay Psychotherapy Association of Southern California, Inc.; the Women's Therapy Center; California Therapists for Marriage Equality; and The Gottman Institute.[60]

Discrimination

Professor George Chauncey of Yale University, a social historian who specializes in LGBT history,[56] described how previous government campaigns had attempted "to demonize gay people as dangerous sexual deviants and child molesters".[56] He then analyzed campaign material from the Yes on 8 campaign to show how they played upon the same message.[56] He analyzed the words of Dr. Hak-Shing William ("Bill") Tam,[61] which included assertions that, were California to fail to pass Proposition 8, other states would follow and "fall into Satan's hands", and that following legalization of same-sex marriage, the advocates of the "gay agenda" would attempt to "legalize having sex with children".[61] Chauncey connected these messages to the earlier history of government demonizing gays and lesbians which he had previously discussed.[61] Helen Zia, a scholar on Asian American social and political movements who was also asked to analyze those words, explained how her encounters with similar Asian community organizers encouraged her to "[step] into the closet and [slam] the door."[62] David Thompson for the defense cross-examined Prof. Chauncey by focusing on the progress that had been made for mainstream acceptance of gays and lesbians in the last twenty years.[61] Thompson noted anti-discrimination laws, support for domestic partnerships, and the proliferation of media like the sitcom Will & Grace and 2005 film Brokeback Mountain.[61] Thompson's line of questioning was intended to establish "whether systemic bias against lesbians and gay men prevents them from being treated by others as equal citizens in the political process".[61]

Professor Gary Segura, a political scientist at Stanford University, said that no other minority groups in America — including undocumented aliens — have been the target of more restrictive ballot initiatives than gay men and lesbians.[63] He accused Proposition 8 of being the type of social stigma that makes "gay and lesbian social progress seem like it comes at expense of other people and organizations and it makes the hill steeper".[64] Under cross-examination, defendant witness David Blankenhorn revealed that he believed the principle of equal human dignity applied to gay and lesbian Americans, and that "we would be more American on the day we permitted same-sex marriage than we were on the day before".[52]

Gregory Herek, a professor from UC Davis contended that "structural stigma" in the form of laws like Proposition 8 directly encourages social stigma, harassment, and violence against LGBT people. He also testified that there is no evidence "conversion therapy" is effective in changing a person's sexuality, and that it "sends a harmful and false message to young people that homosexuality is a disorder", directly leading to more discrimination. During cross-examination, he asserted that "sexual orientation is a combination of attraction, identity, and behavior, and that the complexities researchers face in defining sexual orientation are no different than those they face in defining other characteristics such as race".[65]

San Diego Republican mayor Jerry Sanders testified how he transitioned from believing that domestic partnership was an ideal compromise to believing that same-sex marriage was fundamental. "What hit me was that I had been prejudiced", he explained.[66] During cross-examination, he agreed with the defendants that not all people who voted for Proposition 8 were "bigots", but that he believed their vote was "grounded in prejudice".[67]

Psychological effects

Relationship psychologist Anne Peplau took the stand and argued that individuals gain physical, psychological, and social benefits from being married.[61] Edmund A. Egan, the chief economist for San Francisco, agreed and said that the citizen's improved health would save city emergency health funds.[61] Anne Peplau also argued that the quality and stability of same-sex relationships are similar to those of heterosexual relationships and that permitting same-sex couples to marry will not harm the institution of marriage in any way.[61] Peplau was cross-examined by Nicole Moss, who asked Peplau about the differences between same-sex and opposite-sex relationships, but Peplau reiterated there are no significant differences.[61] The plaintiffs also called forward Doctor Ilan H. Meyer to testify on the mental and psychological harms of being denied the right to marry. "Young children do not aspire to be domestic partners, marriage is a common, socially approved goal." He continued to say that gays and lesbians suffered from "minority stress".[68]

Examining the impact of same-sex marriage on children, the plaintiffs introduced Michael Lamb, a developmental psychologist at the University of Cambridge. He contended that there is a fairly substantial body of literature since the late 1970s that focuses specifically on the adjustment of children parented by gay men and lesbians which provides very good understanding of the factors that affect the adjustment of children being raised by gay and lesbian parents. This substantial body of evidence documents that children raised by gay and lesbian parents are just as likely to be well adjusted as children raised by heterosexual parents. He noted that for significant number of these children, their adjustment would be promoted were their parents able to get married. He added that a field of developmental psychology came to the conclusion that what makes for an effective parent is the same both for a mother or a father, and that children do not need to have a masculine-behaving parent figure, a father, or feminine-behaving parent figure, a mother, in order to be well adjusted.[69] Defendant witness David Blankenhorn, under cross-examination, concurred that the well-being of children raised by same-sex couples would improve should they be allowed to marry.[52]

Economics

In an exploration on the economics of Proposition 8, the plaintiffs called forward Edmund A. Egan, the chief economist for San Francisco. He testified that same-sex marriage would aid the city because "married individuals tend to accumulate more wealth than single individuals" and that "married individuals are healthier on average and behave themselves in healthier ways than single individuals", saving the city from paying emergency room bills and insurance funds.[68] He also testified that San Francisco would make a large sum of instant revenue from same-sex marriage being legalized, citing Mayor Gavin Newsom's decision to legalize same-sex marriage in 2004.[70] He estimated that the city of San Francisco was losing out on $37.2 million in retail and hotel spending and $2.5 million in sales and hotel tax revenue each year.[71]

San Francisco Attorney Therese Stewart noted in the closing arguments that the city itself was uniquely losing out on potential profits because Proposition 8 dissuaded gay tourists and their families from visiting the "cool, gray city of love" (as Walker referred to it) to get married.[58] She also argued, through testimony by Ryan Kendall and Meyer, that the city was burdened with higher incidents of mental health disorders and the subsequent costs to the public health system.[58]

Political strength

The defense called up Professor Kenneth P. Miller from Claremont McKenna College to testify that LGBT people had strong political and social support within California. He argued that all the major newspapers, Hollywood, Silicon Valley, and a majority of state politicians all strongly opposed Proposition 8.[72]

During cross-examination of George Chauncey, the defense claimed that LGBT people have enjoyed increased political and social clout, with increased acceptance by society as exemplified by films such as Brokeback Mountain. Chauncey also admitted that employers in California are required to ban discrimination.[73]

Decision

"Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people."[74]

Governor Arnold Schwarzenegger, Defendant

Judge Walker heard closing arguments on June 16, 2010.[75][76]

On August 4, 2010, Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.[77] Walker concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses. He further noted that Proposition 8 was based on traditional notions of opposite-sex marriage and on moral disapproval of homosexuality, neither of which is a legal basis for discrimination. He noted that gays and lesbians are exactly the type of minority that strict scrutiny was designed to protect.[78]

Findings of Fact

Over 50 pages of the opinion are devoted to Walker's 80 findings of fact[79] and the supporting evidence. These findings of fact are important because appellate courts generally defer to them. Some of those findings include:

  • Marriage is a civil, not religious, matter. (Finding of Fact (FF) #19, p. 60)
  • How the State defines civil marriage (FF #34, p. 67)
  • The benefits of civil marriage (to the State and individuals). (FF #35-41, pp. 67-71)
  • Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. (FF #43, pp. 71-72)
  • Individuals do not generally choose their sexual orientation. An individual does not, through conscious decision, therapeutic intervention or any other method, change sexual orientation. (FF #46, p. 74)
  • The State has no interest in asking gays and lesbians to change their orientation or in reducing the number of gays and lesbians in California. (FF #47, p. 76)
  • Marrying a person of the opposite sex is an unrealistic option for gays and lesbians. (FF #51, p. 79)
  • Domestic partnerships lack the social meaning associated with marriage. (FF #52, p. 80)
  • The costs and harm (to the State and to lesbians and gays) resulting from denial of marriage to same-sex couples. (FF #64-68, 77-78)
  • A parent's gender is not a factor in a child's adjustment. An individual's sexual orientation does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. (FF #70, p. 95)
  • Gays and lesbians have a long history of being victims of discrimination. (FF #74, p. 96)
  • Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. (FF #77, p. 101)

Substantive due process

Judge Walker characterized the right at issue as simply "the right to marry", which, he opined, "has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", citing Loving v. Virginia and Griswold v. Connecticut. He goes on to say that "[r]ace and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage".

Before analyzing Proposition 8 under the applicable level of review (strict scrutiny for fundamental rights), Walker noted that California's domestic partnership laws do not satisfy California's obligation to provide gays and lesbians the right to marry, for two reasons: (1) domestic partnerships do not provide the same social meaning as marriage; and (2) domestic partnerships were created "specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples."

Judge Walker then found Proposition 8 unconstitutional because it does not pass even a rational-basis review (as he explains in the Equal Protection context), much less strict scrutiny.

Evaluation of expert witnesses

The court found that all nine of the witnesses presented by the plaintiffs as experts "were amply qualified to offer opinion testimony on the subjects identified" and "offered credible opinion testimony on the subjects identified."[80] The defense proffered two witnesses as experts. David Blankenhorn, who had been allowed to testify, was ultimately judged as lacking "the qualifications to offer opinion testimony".[80] The court found that Kenneth P. Miller's "opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence."[80]

Professor Doug NeJaime of Loyola Law School noted that Judge Walker's decision was crafted similarly to the standard used by Justice Anthony M. Kennedy in his decision in Lawrence v. Texas, and suggested that Walker was "speaking" to Kennedy, who is commonly the swing vote on the Supreme Court.[81] John Eastman, a conservative scholar who supported Proposition 8, agreed with Professor NeJaime's assessment. Dahlia Lithwick, a J.D. from Stanford University, wrote on Slate that "[the Perry] decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity" and noted how Walker's writing and logic was eerily similar to Kennedy's in Romer and Lawrence.[82] Barry McDonald, a constitutional law professor at Pepperdine University, believed that Walker's strict handling of the case and meticulous evidence gathering would "make it more difficult for appellate courts to overturn this court's ruling."[83]

"Only a trial court [like Walker's] can make factual findings," lawyer Brian DeVine said in an analysis. He further noted that "a Court of Appeal must give great deference to the factual findings of the trial court", and praised Walker "for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court".[84] Andrew Cohen, CBS's legal analyst, questioned the defense team's decision to "cede so much ground at trial to their opponents" and called "inconceivable" their gamble that the conservative Supreme Court might "save the day". He praised Judge Walker's handling of the case, especially in respect to the defendant-intervenors. "During the trial, Walker practically begged and cajoled the Prop 8 lawyers to do better for their cause. He asked them written questions to draw them out. He scolded them during closing arguments to make more persuasive arguments. They simply didn't or couldn't or wouldn't respond."[85] Lea Brilmayer, a law professor from Yale University, suggested that the perceived slant of the trial evidence and the decision resulted from "[Prop 8] supporters' sorry lawyering".[86] Vikram Amar, a law professor from UC Davis argued that the defendant's decision to not put up a case may help them in the long run by arguing in higher courts that the evidence was irrelevant.[87]

The conservative religious law firm Liberty Counsel, which has litigated opposition to same-sex marriage in California since 2004, criticized Alliance Defense Fund's handling of the case. "ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged Proposition 8. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8."[88]

Ed Whelan, President of the conservative Ethics and Public Policy Center and a former lawyer in the George W. Bush administration, criticized the ruling as being based on the judge's subjective and unsubstantiated views of current societal mores rather than on a neutral interpretation of the law. Whelan criticized in particular Judge Walker's repeated contention that certain facts about society were "beyond any doubt" or "beyond debate," such as Walker's contentions that same-sex parenting has been shown to be equally effective as opposite-sex parenting or that allowing same-sex couples to marry would not in any way negatively affect the rights of opponents of same-sex marriage. Whelan believes those points are in fact hotly contested in our society.[89]

Reaction to the judgment

Rallies in support of the decision were planned in major cities across the country.[90]

California's elected officials generally also responded positively to the ruling. Governor Schwarzenegger, who is named as a defendant in the case, said that "for the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves."[74] He also complimented Walker's conduct during the trial, congratulating his efforts to "respect both sides of the issue equally".[74] Attorney General Brown, also a defendant, lauded the decision, calling it "great news for California". The mayors of San Francisco, Los Angeles, and San Diego — Gavin Newsom, Antonio Villaraigosa, and Jerry Sanders, respectively — also praised the ruling.[91] Both of California's United States Senators, Barbara Boxer and Dianne Feinstein, approved of the ruling as an advancement of equal rights.[92]

Several famous Hollywood stars reacted positively to the decision. Ellen DeGeneres jubilantly tweeted "This just in: Equality won!" Paris Hilton also chimed in by tweeting, "What a huge historical day for equal rights in this country! They finally overturned Prop 8! There shouldn't be a law on true love. :)"[93] Lady Gaga tweeted that the decision inspired her to write songs.[94] Adam Lambert responded to the ruling by saying "I'm glad California has restored the right for all of its citizens to marry whomever they choose."[94] The reaction on social networking sites like Twitter were overwhelmingly positive, with the terms "overturned" and "prop. 8" becoming trending topics immediately following the decision.[95]

The Church of Jesus Christ of Latter-day Saints commented: "this decision represents only the opening of a vigorous debate over the rights of the people to define and protect this most fundamental institution – marriage..." The Roman Catholic bishops of California stated: "...the courts do not have the right to distort the meaning of marriage".[96] National Organization for Marriage (NOM) chairman Maggie Gallagher also disagreed with the ruling. She targeted the judge's sexuality and accused Walker of "substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution". Brian Brown, President of NOM, complained of the "biased way [Walker] conducted the trial."[97] Critics have accused the ruling of being an example of judicial activism.[98] The American Family Association called for Walker's impeachment.[99]

Appeals and stay

On August 4, 2010, the defendants-intervenors filed a notice of appeal to the Ninth Circuit.[100] Imperial County, which was denied the right to intervene as a defendant, appealed that denial and Walker's decision.[101] Walker cast doubt on whether the defendant-intervenors had legal standing to appeal.[102] If they lack standing, only the named defendants could appeal, and the principal named defendants, Governor Schwarzenegger and Attorney General Brown, have both expressed opposition to Proposition 8.[103] On September 8, 2010, the California Supreme Court denied without explanation an emergency request by the Pacific Justice Institute, a conservative legal organization, to force Schwarzenegger and Brown to defend the case on appeal.[104]

On August 12, 2010, the defendant-intervenors filed an "emergency motion" in the Ninth Circuit for a stay pending appeal.[105] The stay motion was heard by a 3-judge panel in the Ninth Circuit made up of Edward Leavy, Michael Daly Hawkins, and Sidney Thomas. On August 16, 2010, the Ninth Circuit granted the motion to stay, ordered expedited briefing on the merits of the appeal, and directed the parties to brief the issue of why the appeal should not be dismissed for lack of standing.[1][106] On August 17, 2010, the same Ninth Circuit panel ordered expedited briefing on the Imperial County appeal.[107] The court also ordered both appeals calendared for oral argument during the week of December 6, 2010, in San Francisco.

The merits will be heard by another 3-judge panel from the Ninth Circuit. After the panel's decision, the appeal may be reheard by an en banc court of 11 active judges, but only if a majority of all of the active judges in the Ninth Circuit vote to rehear it.[108] If the Ninth Circuit upholds Walker's decision, the Supreme Court is likely to take the case, although the process may take years.[109]

See also

References

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