FRI’s Analysis of Federal Judge Vaughn Walker’s Decision on Proposition 8

September 2010

Introduction and Summary

Much of what we ‘know’ cannot be scientifically proven: man-woman marriage ‘worked’ to get us here, but we can’t re-run the world to see if something else would have done it. Since it ‘brought us here,’ ‘common sense’ (and the law until recently) considered man-woman marriage presumptively ‘necessary.’

But what if ‘everything’ was put to ‘rigorous scientific test’ — we had to ‘prove it’? That strategy works in the hard sciences, why not the soft? The mental health professional associations (arguably led by the American Psychological Association [APA]) have been pushing the notion that truth is equivalent to peer-reviewed social science or, better yet, to what either the professional associations or the ‘consensus of scientists’ say that social science proves.

Many studies can ‘prove’ that two things are different. By definition, of course, men are different from women. But men and women also generally differ in affective response, spatial abilities, mathematical abilities, etc., qualities that may not be obvious from their physical differences alone. In this fashion, social science research ‘proved’ that segregation harmed black students in Brown v. Board of Education of Topeka (1954). In a similar manner, we can distinguish between homosexual and conventional marriage by definition — one is same-sex, the other opposite-sex. But research also suggests these two entities appear to differ in average length of union, frequency of infidelity, length of fidelity, how well they raise kids, etc.

On the other hand, no set of social science studies can prove that two things are definitionally different but ‘the same’ in every other respect. In other words, that there is no difference other than name between them, a la Shakespeare (“a rose by any other name would smell as sweet”). This would include claims that “children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents” or that ‘men are functionally equivalent to women, so gender doesn’t count in parenting.’ Such claims have to be taken with a grain of salt because they are beyond our ability to prove them.

Many are deceived by the intellectual deception practiced by the professional associations, believing that ‘since they are made up of really sophisticated, smart people, they must be right.’ Yes, Judge Vaughn Walker declared “same-sex parents and opposite-sex parents are of equal quality” (p. 127), but he and the witnesses for the Plaintiffs (i.e., those who wanted Proposition 8 overturned) were participating in intellectual deception. After all, the ‘quality’ of parents is a function both of how children perform while they are being raised as well as how they ‘turn out.’ As such, the results could be measured thousands of different ways for each of thousands of different outcomes (e.g., grades, aptitude or achievement test scores, lack of conflict with peers and authorities, avoidance of illegal drugs, career success, raising successful children, etc.).

There is no ‘definitive list’ of items to check and no definitive test for each possible negative or positive outcome. Thus, homosexuals’ children might more frequently become homosexual, debut sexually at an earlier age, or more frequently experience sex with a parent or a parent’s associate, but at the same time be as popular as other kids, love their parents as much, feel as loved, etc. Which results should be counted as ‘proving’ equality, and how would one know whether all the ‘right’ variables had been measured? And how could the two groups of children score the same on every index of ‘quality?’

While a specific measure such as the statement that ‘children of same-sex parents and opposite-sex parents got the same grades in school’ might be tested, how could any study or set of studies presume to test the whole of the superordinate concept of ‘parental quality?’ The same would be true of the concept of ‘adjustment.’ Walker ruled that the “gender of a child’s parent is not a factor in a child’s adjustment.” But the term ‘adjustment’ subsumes a host of dimensions, including things like ‘getting along with others,’ ‘being happy,’ ‘having few emotional problems,’ ‘not being mentally disturbed,’ etc. — things not obvious in the testimonies of homosexual parents’ children.¹ Again, how could any set of studies presume to show a conclusive equality between parents of different genders regarding such a complex concept?

Judge Walker made the Prop 8 trial a ‘social-science-evidence-based case,’ in which a ‘scientifically proven sameness’ — in reality, a deception by the professional associations in support of gay rights — was legally recorded as “fact.” This strategy mimicked the professional associations in making the issues of gay rights and marriage political, rather than empirical — willing to dissemble to advance ‘the noble cause.’ He put every assertion by the defenders of Proposition 8 to what might be considered ‘rigorous scientific test’ (including disregarding an expert witness because he had not published in peer-reviewed journals).

To be sure, homosexual activists have been building a ‘scientific case’ that homosexuality is irrelevant to marriage or successful child rearing — and also unrelated to child molestation, etc. — by publishing quasi-bogus conclusions appended to empirical studies in the journals of the major psychiatric professions, or by getting these associations to make exculpatory pronouncements. Consistent with Judge Walker’s legal argument, most of these studies purport to ‘prove’ that the outcomes and consequences of homosexuality are no different than the outcomes and consequences of heterosexuality.

Since a trove of such studies exist, then if what ‘science’ is is what gets published in peer-reviewed professional journals or declared by professional associations, the homosexuals ‘win.’ After all, homosexual sympathizers have generated more pro-gay conclusions based on social science studies than conclusions in studies that refute their ‘proof.’

The American Psychological Association, for instance, is ‘all in’ for gay rights, declaring that the outcomes of homosexual parenting or gay mental health are ‘the same’ as heterosexual parenting or heterosexuals. Walker was well aware of these studies, and undoubtedly thought it was time to ‘put marriage to the scientific test.’ If a larger number of studies on one side carried the day, homosexuals would win. As it turned out, since the Proponents (i.e., those trying to defend Prop 8 ) presented essentially no studies, the ‘scientific case’ was easily ‘won’ by the homosexuals.

But quantity does not equal quality, as the saying goes. And so it is with research on homosexuality. In fact, even the claim that the quantity of evidence favors gay rights is bogus, for in study after study promoted by homosexual activists, the actual data at the heart of the research often belies the conclusions drawn by the authors. Instead, a careful sifting of the existing research shows that the great bulk of social science evidence — particularly from better-done studies — stacks against homosexuality being just as valuable as heterosexuality. For instance, homosexuals contribute to the West’s current demographic decline, gay unions appear to exacerbate the burden of homosexuals on public health, and homosexuals exhibit poorer parenting outcomes (including higher rates of molesting their charges), etc.

Given this context, the decision of Proponents’ lawyers to downplay the existing empirical findings about homosexuals verges on astounding. Unfortunately, the Proponents of Proposition 8 also made the issue of gay marriage fairly political (and engaged in a bit of dissembling to accomplish this). Why? Because the leaders of the Prop 8 campaign consisted almost exclusively of those:

1. generally for ‘gay rights’ — but against gay marriage; and
2. who believe that homosexuals ‘have’ a ‘psychological condition’ and therefore did not want to criticize homosexuality lest offended homosexuals not seek ‘treatment.’

That Walker would even hear the case — given the failing legal track record of appeals of votes on marriage — should have alerted Proponents that he might make his January, 2010 trial a ‘social-science-evidence-based case.’ Instead, our side appeared ready to fight the usual, precedent-based case, not a ‘social-science-evidence-based case.’ Not only were four of Proponents’ witnesses reluctant to be videotaped (our side should have made sure we had brave experts), but ‘our guys’ also tied themselves in knots trying to be ‘gay accepting.’

‘Gay accepting?’ Our side? You bet.

The campaign strove to celebrate mother-father marriage while not explicitly criticizing those who engage in homosexuality (although it was exposed at trial that a quiet exception was made in materials directed toward Asian-Americans). Judge Walker cited the advertisements of the pro-Proposition 8 groups, to the effect that:

Proposition 8 is simple and straightforward. * * * Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. * * * It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage. * * * While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father. If the gay marriage ruling [of the California Supreme Court] is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage. We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok. * * * [W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else. [Quoting the CA voter information guide]

Notice “not an attack on the gay lifestyle.” And the only protection offered children is from having “our own kids” “taught that gay marriage is ok.”

Proponents carried this ‘we’re not against homosexuality’ strategy into the courtroom, offering essentially no evidence about the harms caused by engaging in homosexuality or by homosexual coupling — both of which would be encouraged by putting society’s stamp of approval on gay marriage. Proponents did not rebut much of the evidence presented by Plaintiffs, including claims homosexuals were no more apt to molest children (another bogus ‘scientifically proven sameness’). Proponents, including their key expert witness, went on record with “We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination” and also allowed that permitting gay marriage would make our society ‘more fair.’

And these statements were made by our side.

That this strategy was no fluke was confirmed in their appeal of Judge Walker’s decision (submitted September 17th), where proponents declared that

the inference of anti-gay hostility drawn by the district court is manifestly false. It defames more than seven million California voters as homophobic, a cruelly ironic charge, as noted earlier, given that California has enacted some of the Nation’s most progressive and sweeping gay-rights protections, including creation of a parallel institution, domestic partnerships, affording same-sex couples all the benefits and obligations of marriage. (p. 105)

Homophobic? This is a propaganda term of the gay rights movement — a ‘name-calling term’ supposed to intimidate one from criticizing homosexuality just as “Islamaphobe” is supposed intimidate one from criticizing Islam. Does it “defame” someone to be called this political name? And is it ‘cruel’ to make such a charge against the 7 million who voted for Prop 8? Ridiculous!

Although Walker was widely known to be involved in homosexuality, no attempt was made to get him to recuse himself (of course, it is very difficult to get a Federal judge to recuse himself without making a public fuss, and even then there are no explicit rules involving recusal). So although Walker’s ‘tilt’ was known going in, apparently no effort to change venue was made by Prop 8 Proponents. Proponents may have mistakenly believed that by ‘accepting him’ he would behave as so many other federal judges had when considering the issue of gay marriage — by following precedent. But to a homosexual, loyalty to family, or country, or professional standards seldom comes before advancing gay acceptance. St. Paul’s notion that homosexual activity leads to a ‘reprobate mind’ doesn’t seem to miss the mark with Judge Walker.

We at Family Research Institute (FRI), of course, have ‘skin in this game.’ As researchers, we have published more extensively on homosexuality in peer-reviewed scientific journals than any one else on ‘our side.’ Long ago, we recognized that the move to base public policy on social science research would catapult gay rights to the ‘cat bird seat’ unless quality counter-evidence was assembled.

As a consequence, FRI’s Chairman and founder, Dr. Paul Cameron, has been an expert witness on homosexual issues for a number of states and two federal governments. However, our beliefs that

1. that homosexuality ought to be made illegal so that ‘gay parades,’ ‘gay curricula’, and the subsidization of the homosexual movement through ‘AIDS education’ can be stopped;
2. that ‘reparative therapy’ is of rather limited value in changing those addicted to homosexuality; and
3. that granting ‘gay domestic partnerships’ is a long step in the wrong direction,

have put FRI at odds with first, the homosexual movement, and secondly with many in the ‘Evangelical establishment.’

By scouring FRI and our research from their defense of Prop 8, its Proponents have almost assured that our side cannot win on the ‘social science’ battleground. Why? Alvin McEwen, of Holy Bullies and Headless Monsters: Exposing the Lies of the Anti-Gay Industry fame, put it correctly when he opined²

Sheldon, Dobson, etc., may be leaders and the spokespeople of the anti-gay industry, but it is Cameron who has provided the framework for almost every study, statistic, and claim that the anti-gay industry uses against the gay and lesbian community. All forms of anti-gay propaganda they use are rooted in some form or another in his work. (Pp. 41-42)

This, coupled with the fact that a great deal of our work is anchored in peer-reviewed scientific articles, is why Martha Nussbaum, whom the San Francisco Chronicle calls “America’s most prominent, and most prolific, philosopher of public life” recently singled out Dr. Paul Cameron — not James Dobson, Tony Perkins, Jay Sekulow, Maggie Gallagher, etc. — for attack.

The left has ever believed that the need for ‘social justice’ excuses ‘fudging the truth’ when necessary, so it should not surprise that the APA has repeatedly lied to U.S. courts regarding evidence on homosexuality.³ Nor is it surprising that Judge Walker wrote in his decision that:

The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual 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. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

a. Tr 1025:4-23 (Lamb: Studies have demonstrated “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.” These results are “completely consistent with our broader understanding of the factors that affect children’s adjustment.”);

b. PX2565 American Psychological Association, Answers to Your Questions: For a Better Understanding of Sexual Orientation and Homosexuality at 5 (2008): “[S]ocial science has shown that the concerns often raised about children of lesbian and gay parents — concerns that are generally grounded in prejudice against and stereotypes about gay people — are unfounded.”;

c. PX2547 (Nathanson Nov 12, 2009 Dep Tr 49:05-49:19: Sociological and psychological peer-reviewed studies conclude that permitting gay and lesbian individuals to marry does not cause any problems for children); PX2546 at 2:20-3:10 (video of same). P. 95

All of the above statements should have been, and could have been, refuted in court. Walker’s “as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted;” Lamb’s “conclusively… just as likely”; the APA’s “concerns… raised about children of lesbian and gay parents… are unfounded”; and Nathanson’s “not cause any problems for children” are all instances of either lying about the literature (APA, Nathanson) or engaging in the intellectual deception of ‘scientifically proven sameness’ (Walker, Lamb).

But Proponents did not seem to grasp that a ‘social science trial’ was going on. Their recent appeal contended:

The district court’s assertion that “same-sex parents and opposite-sex parents are of equal quality,” like its caricature of the State’s interest in responsible procreation as “promoting opposite-sex parenting over same-sex parenting,” see ER162, is simply beside the point. Indeed, these assertions fail even to come to grips with the critical fact underlying society’s interest in responsible procreation — the unique potential for relationships between men and women to produce children “by accident.” Pp. 85-6

The district court rejected this instinctive, commonsense belief, uncritically accepting Professor Lamb’s testimony regarding studies purporting to compare adjustment outcomes for children raised by gay and lesbian couples with those raised by heterosexuals. Yet these studies do not come close to establishing that the widely shared and deeply instinctive belief that children do best when raised by both their biological mother and their biological father is irrational. Indeed, Professor Lamb could not identify at trial even a single study comparing children raised by same-sex couples with children raised by their married, biological parents. See ER263-287. Furthermore, as many scholars have noted, there are “significant flaws in the[se] studies’ methodologies and conclusions, such as the use of small, self-selected samples; reliance on self-report instruments; politically driven hypotheses; and the use of unrepresentative study populations consisting of disproportionately affluent, educated parents.” P. 89

The district court’s confident assertions to the contrary notwithstanding, the voters of California, in the words of the Eleventh Circuit, could rationally conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm. P. 90

From a ‘traditional, precedent-based’ proceeding, it could be and was argued by Proponents that Walker’s use of ‘scientifically proven sameness’ was “simply beside the point.” But it was Walker who was the judge, not the Proponents. Walker decided the grounds of the trial, not the Proponent’s lawyers. And instead of being ready for what came, they were ready for ‘what should have come.’

This was a serious mistake, because the lawyers were not prepared for what happened. And they appear not to understand the deceptiveness of ‘scientifically proven sameness.’ When they argue above that “these studies do not come close to establishing that the widely shared and deeply instinctive belief that children do best when raised by both their biological mother and their biological father is irrational” or that there are “significant flaws in the[se] studies’ methodologies and conclusions, such as the use of small, self-selected samples; reliance on self-report instruments; politically driven hypotheses; and the use of unrepresentative study populations consisting of disproportionately affluent, educated parents,” they appear to be trying to match ‘study for study’ instead of recognizing that Judge Walker’s statements about ‘scientifically proven sameness’ are impossible to prove on their face.

The record of the Prop 8 trial that we examined is so bad you might wonder if the defenders of Proposition 8 wanted to win. Supporters of the National Organization for Marriage, Focus on the Family, Family Research Council, the California Catholic Conference, the Mormon Church, and the Alliance Defense Fund generated such an incredibly incompetent defense that a month and a half later Proponents “asked the 9th Circuit to ignore the trial testimony” as “unreliable and ultimately irrelevant.”⁴

Perhaps in the appeal the lawyers for ‘our side’ will succeed; certainly Walker’s ruling verged on being nuts. But his ruling has already been cited in other cases (e.g., the September ruling in Florida granting homosexuals full access to adoption of children). The social science-based trial is off and running. Whether it can be contained is an open question.

Background

Judge Walker followed in the footsteps of the major mental health professional associations regarding homosexuality. At one time, engaging in homosexuality was clear evidence that an individual was ‘mentally ill.’

But mental illness is a very ambiguous term. Unlike physical illness, nothing physically may be or seem ‘wrong’ with those diagnosed as mentally disturbed. So being ‘mentally ill’ is largely (arguably entirely) a function of being in conformity with one’s society and its goals. If someone gets drunk too often in the wrong place (e.g., driving), they will be considered ‘mentally ill’ in most of the West.

How about homosexuality? If you participate in same-sex sex, does that make you ‘mentally ill?’ Well, the ‘official mental illness keeper’ — the American Psychiatric Association — declared participation in homosexuality an illness until 1973. Then, under name-calling and threats from gay activists, it changed its mind (and the same activities that made a person mentally ill moments before, were ‘OK’ after the vote).

But most people’s concerns were not about whether homosexuals were ‘mentally ill,’ but rather about their social disruption. Consider the following statements from Walker’s decision under “Gays and lesbians have been victims of a long history of discrimination:”

PX2566 Letter from John W Macy, Chairman, Civil Service Commission, to the Mattachine Society of Washington (Feb 25, 1966) at 2-4: The Commission rejected the Mattachine Society’s request to rescind the policy banning active homosexuals from federal employment.

“Pertinent considerations here are the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities, the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.” P. 96

PX2581 Letter from E D Coleman, Exempt Organizations Branch, IRS, to the Pride Foundation at 1, 4-5 (Oct 8, 1974): The Pride Foundation is not entitled to an exemption under Internal Revenue Code § 501(c)(3) because the organization’s goal of “advanc[ing] the welfare of the homosexual community” was “perverted or deviate behavior” “contrary to public policy and [is] therefore, not ‘charitable.’” P. 97

PX2337 Employment of Homosexuals and Other Sex Perverts in Government, S Rep No 81-241, 81st Congress, 2d Sess (1950) at 4: “Most of the authorities agree and our investigation has shown that the presence of a sex pervert in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. It is particularly important that the thousands of young men and women who are brought into Federal jobs not be subjected to that type of influence while in the service of the Government. One homosexual can pollute a Government office.” Pp. 99-100

Comment: Between 1950-1974, the U.S. government ‘had it right.’ Investigations it conducted had found homosexuals to be disruptive, and aggressive in influencing others to try homosexuality. Combined with their greater propensity to molest children (Cameron, Cameron, & Landess, 1996),⁵ it is no wonder that homosexuals are so much more apt to molest their pupils if teachers;⁶ their charges if foster parents;⁷ or even their own children.⁸

Frank Kammeny, infamous not only for leading ‘gay storm troopers’ against the American Psychiatric Association, but also for pleading his case to the APA, was a highly active gay apologist in D.C. after he was dismissed from federal service. Partly due to his influence, in 1975, the APA asserted that “homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.” Since there were no or few studies on these issues, empiricism was ignored in favor of ‘protecting’ homosexuals. And this was a red herring, since, as noted above, it was social disruption by homosexuals rather than their ‘mental illness’ that was the main reason society discriminated against them.

The APA sidestepped most of the social disruption reasons cited by the Federal government above (e.g., “revulsion, homosexual advances, solicitations or assaults, subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities”) and categorically rejected other reasons employed to discriminate against homosexuals (e.g., their unreliability, instability).

Nor did the organization give any pretense of scientific ‘neutrality.’ If it had, the statement might have been cast as ‘given the change in diagnosis, the judgment, stability, reliability, or general social or vocational capabilities which were believed to be associated with homosexual desires and activities are now in question.’ But such a statement would have been ‘empirical’ rather than political. And the APA did not leave the question open to research.

Flash forward to the Prop 8 trial. Most of the organizations supporting the defense of Prop 8 were Christian, but their representatives apparently did not take seriously St. Paul’s analysis that homosexual behavior creates a reprobate mind. Proponents’ lawyers argued voters weren’t ‘homophobic.’ Proponents also dissembled. Since when are the actions of a legislature the same as expressing the will of the people — particularly that segment of the electorate who voted for Prop 8? The overwhelming majority of those who voted ‘yes’ on Prop 8 undoubtedly viewed acceptance of homosexuality as antithetical to a viable society.

Over 300 Californians have died from HIV-contaminated blood donated by male homosexuals — most of their relatives are unlikely to see homosexual sex as a benign choice. A significant fraction of California men have been approached for homosexual sex, and a substantial number of these men were homosexually molested or raped when they were young. They and most of their relatives are unlikely to see homosexual sex as a benign choice. In short, not everyone has become as ‘enlightened’ as the clever lawyers defending Prop 8, who appear to regard obsequious groveling before the homosexual movement as ‘progressive.’

Those opposing the march of acceptance of homosexuality appear to have had only one representative in Proposition 8’s campaign leadership — Hak-Shing William Tam. By agreement with those designing the overall campaign strategy, Tam and religiously-inclined supporters alluded to — but did not precisely say in official campaign materials — that homosexual unions could not reproduce, did a poorer job of raising children, constituted a threat to the sexual abuse of children, etc. Unfortunately, Tam’s approach was overshadowed at trial by the ‘soft’ tactics pursued by Proponents’ counsel:

We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination. P. 96

Huh? Discrimination against those who engage in homosexuality has been “long and shameful?” Why was ‘our side’ not only willing to dismiss the long history of Christian, European, and American treatment of those who practice homosexuality, but also to castigate that history as “shameful?” To curry favor with the APA (and other ‘enlightened professionals’)?

Mat Staver, head of Liberty Counsel, has studied the trial transcripts. He said he often had to re-read significant portions of the transcript to convince himself that ‘our side’ wasn’t actually on ‘their side.’ He said he was stunned by all the concessions ‘our side’ made and the paucity of evidence they presented to advance ‘our case.’ That his appraisal is probably correct is underscored by the amicus curiae brief filed by Proponents asking the 9th Circuit Court of Appeals to “ignore the trial testimony” as “unreliable and ultimately irrelevant.”⁹ The decision by Judge Walker also suggests this was the case (although one ADF lawyer we spoke with said the judge was not being honest in his written decision about the evidence he was presented).

Analysis of the Decision

The key portions of Walker’s decision accepted that both the Due Process and Equal Protection clauses of the U.S. Constitution wrongly discriminate against those who practice homosexuality. Briefly the Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”

The homosexual Plaintiffs contended that the freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:

1. It prevents each plaintiff from marrying the person of his or her choice;
2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice; and
3. California’s provision of a domestic partnership — a status giving same-sex couples the rights and responsibilities of marriage without providing marriage — does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

Comment: How could “the freedom to marry the person of one’s choice” be “a fundamental right protected by the Due Process Clause” and our forefathers not know it? How could state laws forbid incestuous marriages if that were the case? If we are talking about a ‘fundamental right,’ why not brothers marrying adult sisters or mothers marrying adult sons? And why should marriage be limited to people? If the right is ‘fundamental,’ why couldn’t it be exercised with one’s favorite pet?

The Equal Protection Clause provides no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

According to plaintiffs, Proposition 8 violates the Equal Protection Clause because it:
1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and 2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

Plaintiffs argue that Proposition 8 should be subjected to heightened scrutiny under the Equal Protection Clause because gays and lesbians constitute a suspect class. Plaintiffs further contend that Proposition 8 is irrational because it singles out gays and lesbians for unequal treatment, as they and they alone may not marry the person of their choice.

Comment: The ‘two kinds of people’ are not ‘homosexuals’ vs. ‘straights.’ Rather, the key distinction is between ‘those who engage in homosexuality — most of whom also engage in sex with the opposite sex and often can ‘take it or leave it’ when it comes to homosexual sex — and those who only have sex with the opposite sex. What is happening here is that those with a preference — in this case for homosexual sex — claim that they ‘have to have such sex as part of their being’ (i.e., they were ‘born that way’).

Instead of being dominated by what was once, and still could be, considered a bad habit, these Plaintiffs contend that their very nature — ‘being homosexual’ — requires them to have homosexual sex to ‘be themselves’ and to ‘feel good about themselves.’ Surely ‘gamblers’ could contend that they ‘have to gamble,’ and they can’t ‘feel good’ unless they get to gamble, or alcoholics that they ‘have to drink.’ Such arguments could be marshaled with about as much empirical evidence to contend that they too were ‘born that way’ (which most child molesters also claim).

Judge Walker went on to cite the advertisements of the pro-Proposition 8 groups, to the effect that:

Proposition 8 is simple and straightforward. * * * Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. * * * It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage. * * * While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father. If the gay marriage ruling [of the California Supreme Court] is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage. We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok. * * * [W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else. [Quoting the CA voter information guide]

In addition to the ballot arguments, the Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. See FF 79-80 below. The key premises on which Proposition 8 was presented to the voters thus appear to be the following:

1. Denial of marriage to same-sex couples preserves marriage;
2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples;
3. Denial of marriage to same-sex couples protects children;
4. The ideal child-rearing environment requires one male parent and one female parent;
5. Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; and
6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages.

Perhaps recognizing that Proposition 8 must advance a secular purpose to be constitutional, proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples. Instead, in this litigation, proponents asserted that Proposition 8:

1. Maintains California’s definition of marriage as excluding same-sex couples;
2. Affirms the will of California citizens to exclude same-sex couples from marriage;
3. Promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children; and
4. Promotes “statistically optimal” child-rearing households; that is, households in which children are raised by a man and a woman married to each other.

…proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect (sic) some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. (italics added)

Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity.

Comment: Blankenhorn did not address each of the ‘23 harmful consequences.’ And by ignoring the harmful consequences to society of homosexual activity, Proponents allowed Walker to conclude that “the state’s only interest is in opposite-sex sexual activity.” In reality, states across history have taken a keen interest in homosexuality, from Israel to Rome to recent history. In almost every instance, homosexuality has been seen as a threat to society, but you would never know it from the Proponents’ case.

Now Walker moved on to a ‘big question,’ which counsel for our side flubbed given that the judge was making this a ‘social-science-evidence-based’ case:

…the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.” Id at 23.

Walker may not have been asking what — in Proponents’ view — was “legally relevant.” But he was the judge, and the question was certainly reasonable and readily answered given our need for children and the demographic threat to the West. This exchange illustrates how difficult it is to argue FOR something while not arguing AGAINST its opposite. So Walker was able to conclude:

The parties were given a full opportunity to present evidence in support of their positions. … Plaintiffs presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses. Proponents’ evidentiary presentation was dwarfed by that of plaintiffs.

Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.

Although the evidence covered a range of issues, the direct and cross-examinations focused on the following broad questions:

• WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX;
• WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS; and
• WHETHER THE EVIDENCE SHOWS PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST.

Framed by these three questions and before detailing the court’s credibility determinations and findings of fact, the court abridges the testimony at trial:

[Plaintiff’s expert] Peplau pointed to research showing that, despite stereotypes suggesting gays and lesbians are unable to form stable relationships, same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability.

Comment: Almost all the evidence refutes Peplau’s claim and no evidence could possibly prove Walker’s “indistinguishable.” Our side presented no evidence to refute Peplau and certainly failed to ‘teach Walker a lesson in logic.’

Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent. When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on child-rearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples. Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes. (italics added)

Comment: The evidence is scant and cannot show anything conclusively, but what we do have suggests the opposite of what Lamb said. The evidence FRI has published in scientific journals is peer-reviewed and it does not suggest that “children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.” It also easily refutes Lamb’s “all available evidence” — so why wasn’t it used?

…like earlier campaigns, the Proposition 8 campaign emphasized the importance of protecting children and relied on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children.

Comment: A great deal of empirical evidence indicates that gays and lesbians pose a danger to children. ‘Our side’ is not recorded as presenting it at trial.

Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tr 1900:13-18. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website “1man1woman.net.” Tr 1916:3-24. 1man1woman.net encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children. Tr 1919:3-1922:21.

Comment: Tam, a Chinese Christian, was permitted to deviate from ‘the official line.’ He appears to have used some of FRI’s research (e.g., the 12 times figure). But the ‘official line’ was silent on the greater risks of homosexual child molesting, and so was the courtroom defense of Prop 8.

Plaintiffs challenge Blankenhorn’s qualifications as an expert because none of his relevant publications has been subject to a traditional peer-review process, Tr 2733:2-2735:4, he has no degree in sociology, psychology or anthropology despite the importance of those fields to the subjects of marriage, fatherhood and family structure, Tr 2735:15-2736:9, and his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.” Tr 2736:13-2740:3.

Comment: The defense presented one scholarly witness with expertise in family matters, David Blankenhorn. Not only had he published nothing in peer-reviewed journals, but Blankenhorn also testified that he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same sex marriage than we were the day before.” What was ‘our side’ thinking in using Blankenhorn as star witness?

Proponents admit that same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities;

Comment: Why would our side adopt as ‘true’ the 1975 political statement of the American Psychological Association (see above)? Over 300,000 male homosexuals have been killed by other gays via AIDS, over half a million gays are under treatment due to HIV infection, and a fifth of gays are HIV+. Being dead, under treatment, or infected would seem to bear on “impairment in judgment.”

Tam said “As Dr James Dobson notes, ‘More than ten thousand studies have concluded that kids do best when they are raised by mothers and fathers.’”

Comment: FRI is not sure there are even two hundred [empirical] studies on this issue.

The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual 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. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

[Plaintiff’s expert] Lamb: Studies have demonstrated “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.” These results are “completely consistent with our broader understanding of the factors that affect children’s adjustment.”

b. PX2565 American Psychological Association, Answers to Your Questions: For a Better Understanding of Sexual Orientation and Homosexuality at 5 (2008): “[S]ocial science has shown that the concerns often raised about children of lesbian and gay parents — concerns that are generally grounded in prejudice against and stereotypes about gay people — are unfounded.”

c. PX2547 (Nathanson Nov 12, 2009 Dep Tr 49:05-49:19): Sociological and psychological peer-reviewed studies conclude that permitting gay and lesbian individuals to marry does not cause any problems for children. 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. P. 95 (italics added)

Comment: Sheer poppycock! These statements are ‘over the top’ and easily countered with solid empirical evidence, yet ‘our side’ is not recorded as offering a rebuttal. Instead, the Proponents’ counsel stated (as cited earlier) that: “We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination.”

Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes. P. 98

Comment: Again, our side is not recorded as offering any rebuttal to this string of falsehoods.

Peplau: There is no empirical support for the negative stereotypes that gay men and lesbians have trouble forming stable relationships or that those relationships are inferior to heterosexual relationships. P. 99

Comment: Almost all the published evidence is contrary. One study is all it would have taken to falsify the claim of “no empirical support.”

Lamb: Social science studies have disproven the hypothesis that gays and lesbians are more likely to abuse children. p. 100

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child. P. 105

Comment: Of course the electorate knew that children had to be protected from homosexuals. Proposition 8 was run ‘up front’ according to the theme ‘they’re OK, but real marriage is better.’ But Tam and other religious leaders ‘told it like it is’ — and Judge Walker knew that the ‘sophisticates’ heading the campaign were relying on Tam and others to carry their water ‘off camera.’ At trial, no refutation is recorded as being offered by Proponents.

CONCLUSIONS OF LAW
Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation. P. 113
Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette 1943 P. 116

The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Minnesota v Clover Leaf Creamery Co, 449 US 456, 464 (1980). Even under the most deferential standard of review, however, the court must “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 US at 632; Heller, 509 US at 321 (basis for a classification must “find some footing in the realities of the subject addressed by the legislation”). P. 118

The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present.

FF 74-76. As the case of Perry and the other plaintiffs illustrates, sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation. See FF 42-43. Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination. Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) citing Lawrence, 539 US at 583 (O’Connor, J, concurring) P. 119-120 (italics added)

Comment: Notice that homosexual behavior is cast by Judge Walker as being essentially equivalent to homosexual ‘orientation.’

As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.

Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. Massachusetts Board of Retirement v Murgia, 427 US 307, 313 (1976) (noting that strict scrutiny may be appropriate where a group has experienced a “‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” (quoting San Antonio School District v Rodriguez, 411 US 1, 28 (1973)). See FF 42-43, 46-48, 74-78.

Proponents admit that “same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities.” PX0707 at RFA No 21. P. 121

No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to “real and undeniable differences” that the government might need to take into account in legislating. P. 122

Comment: Walker gave homosexuals ‘the whole enchilada’, quoted the APA assertion as true, and ‘our side’ simply demurred on the social science battlefield.

Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting opposite sex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest. P. 123

The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. See FF 26-27. 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.

The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that 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. P. 124

Comment: Again, ‘our side’ did little to refute this silly reasoning. The entire Western world is in the throes of a serious demographic decline — a decline that threatens its future. Carving out ‘equality’ for those who enjoy a sexual practice that produces medical conditions (e.g., anal cancer, loss of sphincter control) and spreads disease (e.g., the various forms of hepatitis, HIV), while encouraging the seduction of youth, but without providing any social benefit — particularly childbearing — opens the door to other costly claimants, such as prostitutes, transsexuals or polygamists.

But more importantly, when Proponents so cleverly ‘gave’ gays every benefit of marriage but the name (via domestic partnerships), and when Proponents ‘celebrated’ this fact in their appeal (e.g., California [affords] same-sex couples all the benefits and obligations of marriage), why would they expect other than to eventually lose? FRI was in the forefront of warning that giving homosexuals the marriage store without the signage was a foolish step. Indeed, Proponent James Dobson interrupted his radio program to denounce us on this point back in February of 2006.

FRI was correct when we warned that someday, somewhere, a judge is going to say ‘if it’s “the same” but for the name, why not give them the name?’ Walker has fulfilled FRI’s prophecy.

PURPORTED INTEREST #2: PROCEEDING WITH CAUTION WHEN IMPLEMENTING SOCIAL CHANGES
Proponents next argue that Proposition 8 is related to state interests in: (1) “[a]cting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution”; (2) “[d]ecreasing the probability of weakening the institution of marriage”; (3) “[d]ecreasing the probability of adverse consequences that could result from weakening the institution of marriage”; and (4) “[d]ecreasing the probability of the potential adverse consequences of same-sex marriage.” Doc #605 at 13-14.

Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change. See FF 55. Instead, the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id.

Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8. FF 55, 62.

The contrary evidence proponents presented is not credible. Indeed, 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 process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage. Pp. 125-6

Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change. P. 126

PURPORTED INTEREST #3: PROMOTING OPPOSITE-SEX PARENTING OVER SAMESEX PARENTING
Proponents’ largest group of purported state interests relates to opposite-sex parents. Proponents argue Proposition 8:
(1) promotes “stability and responsibility in naturally procreative relationships”; (2) promotes “enduring and stable family structures for the responsible raising and care of children by their biological parents”; (3) increases “the probability that natural procreation will occur within stable, enduring, and supporting family structures”; (4) promotes “the natural and mutually beneficial bond between parents and their biological children”; (5) increases “the probability that each child will be raised by both of his or her biological parents”; (6) increases “the probability that each child will be raised by both a father and a mother”; and (7) increases “the probability that each child will have a legally recognized father and mother.” Doc #605 at 13-14.

The evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality, FF 69-73, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents, FF 43, 46, 51.

The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. FF 70. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. FF p. 127 (italics added)

The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. P. 130

Comment: Judge Walker is ‘feeling his oats.’ He put tradition ‘on trial’ and it could not be ‘proven’ that it was necessary. He has been totally persuaded by the ‘evidence’ (alas, ‘our side’ presented little in rebuttal), so it is obvious to him that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.” Hopefully, even the 9th Circuit Court of Appeals won’t stand for this silliness, but who knows?

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.” (italics added)

Comment: Another use of ‘scientifically proven sameness!’ Proponents need to study their logic.

A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that 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. P. 132

The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. P. 134

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. 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. P. 135

Comment: Notice the ‘wacko’ notion invoked by Judge Walker that all people are equal (not merely ‘created equal’). President Abraham Lincoln did not agree:¹⁰

I think the authors of [the Declaration] intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal — equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’ This they said, and this they meant.

‘Our side’ did a tremendous disservice to all of us who still care about traditional values and upholding what is best for our society and our children. The APA and other professional organizations have successfully run the ‘scientifically proven sameness’ dodge throughout the psychiatric and social service professions for more than 20 years. Let us hope it does not get to run free in the legal domain.