In a thorough and devastatingly clear opinion, Judge Vaughn Walker dismantles the "case" made by proponents of California's Proposition 8. After summarizing the testimony witness by witness, Judge Walker made 80 findings of fact, establishing that gay marriages are exactly the same as heterosexual marriages, and that the only reason for prohibiting them was to legislate the "private moral view that same-sex couples are inferior to opposite-sex couples." Finding that "excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest," Judge Walker found Prop. 8 couldn't withstand any level of constitutional scrutiny and struck it down under both a Due Process and Equal Protection analysis.

Reading his opinion -- which ties each of the findings of fact to the trial record and then lets the legal logic flow easily from there -- the issue doesn't seem to be a close call. Although Prop. 8 proponents will appeal, it will be interesting to see what reasoning could result in a reversal. I'm not saying Judge Walker won't be reversed: Who knows what appellate courts will do?

But his logic, given the record he so carefully lays out, is deeply compelling. Moreover, U.S. Supreme Court Justice Scalia predicted precisely this result when he dissented from a decision that struck down a Texas law prohibiting sodomy. If moral disapproval of private, consensual gay sex couldn't justify a state ban, Scalia argued, then approval of gay marriage was logically inevitable. Not surprisingly, Judge Walker cites that case, Lawrence v. Texas, nine times, including pointers to Justice Scalia's logic.

A Lack of
Meaningful Evidence

One of the interesting features of the case is who defended Prop. 8. Normally, the state would defend its own law, and indeed the case is titled "Perry v. Schwarzenegger." But California Attorney General Jerry Brown (a former governor who is now running for that job again) conceded at the outset that Prop. 8 is unconstitutional, while Gov. Schwarzenegger and other named officials declined to take a position or defend the law. So the people behind the movement to pass Prop. 8 stepped up to defend it. Defend it, sort of -- Judge Walker notes early in his opinion that most of the scheduled witnesses for the Prop. 8 proponent side withdrew without testifying.

To win, the Prop. 8 supporters would have had to prove that banning same-sex marriage furthered a legitimate state interest at the appropriate level of scrutiny. Prop. 8 supporters wanted that scrutiny to be: Is Prop. 8 rationally related to a legitimate state interest in marriage? To get that lowest, very permissive, level of scrutiny under the Equal Protection challenge, Prop. 8 supporters had to show that sexual orientation was not a "suspect class" like race, and for the Due Process challenge, Prop. 8 supporters had to show that gay marriage represented a new right, rather than an exercise of the fundamental right of marriage that all citizens are entitled to enjoy. That question of whether gay marriage is a fundamental right underlies all the public debate about the "definition" of marriage.

To make their case, Prop 8 proponents offered only two witnesses, both "experts": David Blankenhorn tried to define the legitimate state interest involved. Kenneth Miller tried to show that gays had too much political power to be a suspect class under the Equal Protection clause. Yet after laying out the standard for expert witnesses, Judge Walker concluded that Blankenhorn was not an expert and that his testimony was unreliable. Miller was ruled an expert in politics generally, but not on the political power of gay people.

Dismantling Blankenhorn's testimony, Walker explained that Blankenhorn's opinions supporting the claim that banning gay marriage involved a legitimate state interest were unsubstantiated. Specifically, Walker declared that Blankenhorn's arguments were not connected to the data he cited to support them -- a withering conclusion. Walker had kinder words for Miller's expertise, but laid out myriad ways in which the witness had demonstrated a lack of knowledge about the political power of gay people -- so much so that he was not an expert on that issue, meaning his opinion didn't count for much.

A Definition of Marriage

In contrast, Prop. 8 opponents offered 17 witnesses, including nine experts, each of whom the proponents conceded was an expert. Prop. 8 opponents tried to show that the state had no legitimate interest aided by banning gay marriage, and to the extent it had one, the ban was insufficiently tailored to furthering it. Finding the opponents' evidence reliable, Judge Walker made those 80 findings of fact, including this definition of marriage:
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.
Walker found the state had many interests in licensing and supporting marriage, including the practical (creating stable households, legitimating children and facilitating property ownership) and the romantic (like "developing a realm of liberty, intimacy, and free decision-making by spouses') Crucially, Walker also found that:
Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.
Walker's findings emphasized that sexual orientation was irrelevant when it comes to parenting skill, and that having a gay parent was not intrinsically bad (or good) for a child. Walker further explained why domestic partnership was an insufficient substitute for marriage, and noted that allowing gay parents to marry would benefit their children. He then rejected the idea that allowing gay people to marry somehow affects heterosexual marriages:
Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
Walker also detailed several ways that Prop. 8 "singles out gays and lesbians and legitimates their unequal treatment."

Gay Marriage Is as Fundamental as Hetero Marriage

In Walker's analysis of the Due Process challenge to Prop. 8, he looked carefully at history and previous Supreme Court decisions. Importantly, he noted, "Never has the state inquired into procreative capacity or intent before issuing a marriage license," and explained that the historical exclusion of gays from marriage had no purpose.

Rather, said Judge Walker, it was an artifact of the different roles assigned to men and women in marriage that no longer applied. (Think the era of Ozzie and Harriet and earlier, when women lost their legal identities and right to own property after they married.) He further noted that if gay people were seeking a new right, they would be asking for something different from what opposite-sex couples can have. Instead they were seeking exactly the same thing: marriage.

The result is that after Judge Walker's opinion, gay couples are much closer to getting what they want. But they don't have it yet. Not only will Prop. 8 proponents appeal, but the judge has issued a stay of his own ruling while he decides whether or not to allow gay marriages to resume in California while the appeal is pending.

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I'm so tired of hearing about the defintion of marriage. Since when does this country care about the definition of anything? And why does there even have to be a universal definition? It's such a personal and sanctimonious thing, let it mean what it means to you. Marriage to me just means we're on the road to one of us getting fat and the other one becoming unfaithful. Then we'll become intolerable of one another's quirks prompting us to yell and scream until we're face to face in a court room viciously dividing our assets and deciding who gets the kids on the holidays.

But I don't try to make my defintion of marriage universal.

Nor do I fault others for wanting to get married and enjoying it. Because it makes no difference to me what people do in the privacy of their own lives. The homosexual right to marry won't make my marriage better or worse or less special. And the phrase "sanctity of marriage" lost its right to exist with a 50% and rising nation-wide divorce rate. No H8!


August 05 2010 at 9:21 PM Report abuse rate up rate down Reply
1 reply to roseswinton's comment

so you must be gay by the sounds of it. i like the idea that there should be a state that is just for gays.

August 09 2010 at 2:26 PM Report abuse rate up rate down Reply
cmdrhlamb's called "land of the free".....if it's communism you want, move to cuba.....i promise, noone will stop you.....

August 05 2010 at 12:02 PM Report abuse -3 rate up rate down Reply
1 reply to cmdrhlamb's comment

Tell that to O'Bama!!

August 05 2010 at 4:25 PM Report abuse +1 rate up rate down Reply

The way I see it, if we let men who want to marry men get married, and women who want to marry women get married, and those who want to murder unborn chidren get abortions, in a fews years we won't have any Radical Lftist Democrats to aggrevate us!

August 05 2010 at 9:41 AM Report abuse +3 rate up rate down Reply
2 replies to Randy's comment

How cool of you to bring up abortion. Now give us a real argument as to why you're against gay marriage.

August 05 2010 at 9:30 PM Report abuse -1 rate up rate down Reply

Also, please learn how to spell. Thanks.

August 05 2010 at 9:32 PM Report abuse -1 rate up rate down Reply

if you define marriage as a union of a couple (couple of what, and why not three?), then the reasoning withstands scrutiny, if you define marriage as a union between a man and a woman for the intended purpose of procreation, a purpose which benefits the state, it does not.

August 05 2010 at 9:05 AM Report abuse +1 rate up rate down Reply

(1) Who I marry has no effect whatsoever on your marriage. (2) Gay people do not wnat to marry straight people, they want to marry other gay people. The straight community should worry about divorce, adultry, out of wedlock births, STDs, rape, incest, domestic violence and child abuse within the straight community and let gay people live (and marry) in peace.

August 05 2010 at 4:29 AM Report abuse -1 rate up rate down Reply
2 replies to skipper864's comment

For real. Us straight folk have enough issues to preoccupy our worries with. I'm more offended by a sham-marriage between a man and a woman than I am by two people who love each other and are committed to one another and happen to be the same sex. In fact, I'm not offended by that at all. Rock on, lovers.

August 05 2010 at 9:28 PM Report abuse rate up rate down Reply

(1) you are definetly gay. 2) personally i dont want to have to seee gay people. (3) if you want to be gay go to europe where it is accepted by everyone there. then there will be no arguments about gay marriage so go to europe and join other gays over there.

August 09 2010 at 2:19 PM Report abuse rate up rate down Reply

Those who oppose gay marriage were given a chance to provide evidence in court to back up their position. "Evidence" means facts, as opposed to name calling or opinions. I assume they tried to gather all the facts they could to back up their position against gay marriage and could only muster two witnesses who apparently had few facts but many opinions. The court ruled correctly and indeed could not have ruled any other way.

August 05 2010 at 3:57 AM Report abuse -2 rate up rate down Reply
1 reply to stubit586's comment

Yeah and "evidence" doesn't mean throwing around God's so called opinion, or what you like to pretend his opinion is. Not you, obviously. The universal "you."

August 05 2010 at 9:29 PM Report abuse -1 rate up rate down Reply