Friday, August 6, 2010

Judge rules Californians are irrational

OK, the title's a bit too strong, but Judge Walker did rule that there's no rational state interest served by outlawing same-sex marriages.

For the majority of California voters (who voted for Prop. 8), this seems to leave four possibilities:
  1. They were misinformed about the consequences of gay marriage.
  2. They were trying to impose their personal religious/moral convictions on others (in the absence of a legitimate secular justification).
  3. They were irrational.
  4. They were bigots.
(Of course, for any individual, more than one answer may apply.)

Excerpts from the ruling after the fold:

I think these are probably the most important findings of fact:
48. 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. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.

55. 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.

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.
And in the Conclusions of Law:
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. FF 21. 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.

Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486.
And here's a biggie. Not only did the Prop. 8 proponents fail according to Judge Walker, they failed BIG TIME. Walker tells us that they'd have to pass the "strict scrutiny" test (because a fundamental right is challenged), but they don't even satisfy the far-more-lax standard of "rational basis."
Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. 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.
And again:
Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.
Now here's an interesting argument. Walker looks at the history of different gender roles in marriage, and points out that all laws enforcing or relying on such roles have since been thrown out. And yet Prop. 8 wants to place restrictions on marriage based on (relative) gender:
California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman. FF 32. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.
I imagine that some folks (especially the conservative religious types) aren't going to like hearing that their notions of gender are "antiquated and discredited." I know that my friends who oppose gay marriage do indeed insist on these "antiquated" notions of gender, and they do see these notions as a foundation for restricting marriage to opposite sex couples.
proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.

the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage
Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. 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

“[M]oral disapproval, without any other asserted state interest,” has never
been a rational basis for legislation.
I'm no expert, but it seems to me that this question of whether "moral disapproval" is a legitimate foundation for a law is really the key to this decision. Walker is following the Supreme Court's decision here, so it seems that his argument is sound, but one wonders (a) whether the Supreme Court will be willing to stand by this reasoning and (b) what further consequences reasonably follow from disallowing "morality" as a foundation for law.

Walker pointedly cites Scalia, who saw these consequences in his dissent Lawrence v. Texas, which ruled that anti-sodomy laws violate our constitutional right to privacy.
Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”)
There are deep and interesting philosophical issues here concerning the nature and foundation of morality and of law. More on this anon, perhaps.

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