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Thursday, August 05, 2010

Prop 8 Overturned!

Woo-hoo!  Today is a good day!  For those of you who haven’t read it already, Federal Judge Vaughn R. Walker struck down California’s Proposition 8 as discriminatory in the Perry vs. Schwarzenegger case.  From the New York Times article:

“Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” wrote Judge Walker. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”

This is very exciting!  This is a day when our legal system has functioned correctly, to uphold the civil and human rights of our citizens, and bring the light of reasoned law against bigotry and hatred.  Decisions like this are what the law is for, in my mind: to make sure that all citizens are equal; that they all receive the same rights in front of the government, and that outrage based on lies and falsehoods are struck down.

What’s remarkable about Judge Walker’s decision (based on blogs written by lawyers who know these things better than I do) is that he presents a very, very, very lengthy account of the facts in this case.  Thomas over at the Yes Means Yes blog did a great job of pulling out Judge Walker’s findings of fact (as opposed to law).  This is important for two reasons: first, it’s a lot harder for the Supreme Court to overturn a decision on the facts - while it can make the determination that Walker just completely got all the facts WRONG, it would be hard to do that in this case because his decision is well put together and quite long (136 pages, with citations).  This means that if Perry vs. Schwarzenegger does go to the Supreme Court, they will have the same set of facts to investigate.  They might determine that Walker’s application of the law was wrong, but they’d be hard pressed to do that with the facts he compiled.

The reason this case is so exciting to me, aside from that it takes a grand blow against the idea that the LGBT population is a little less human than everyone else and therefore entitled to less rights, is that Walker heard a lot of testimony from actual experts on issues like child development.  The facts (again, as summarized by Thomas) that he laid out in his decision are not at all “new” or “surprising;” they are what any LGBT person or ally knew already: humans are humans, being gay isn’t being broken, and children aren’t harmed by gays and lesbians.  A selection of the facts that all of us already knew, but are nice to see on paper in a legal decision (these are from the decision itself, minus the many, many supporting paragraphs of citations and expert witness testimony):

46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

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.

62. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

69. The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) the availability of economic and social resources. Tr 1010:13- 1011:13 (Lamb).

70. 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.

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. Tr 1014:25-1015:19; 1038:23-1040:17 (Lamb).

72. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes. Tr 1040:22-1042:10 (Lamb).

76. 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.

80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.  Emphasis mine.

I like Pam Spaulding’s take on why Prop 8 was overturned:

In the courts, you must defend your position. And in the long run, you couldn’t. Or rather many of you wouldn’t. Again, the specters of gay bogeymen were invoked as your leaders spun false images of avenging hordes for their reluctance to be questioned in the courts about the unprovoked lies they said in pulpits, in speeches, and on commercials.

This time, it didn’t work. The court saw through the phony claims and realized something, which I hope that many of you now do - you have no logical reason to either deny us the right to love or to deny us the ability to protect the ones whom we love.

I’m trying to calm down and to look at this from a more nuanced and distanced perspective.  This decision did not grant federal marriage rights to the LGBT world; it may not even stand up to a SCOTUS review.  But it was a strong blow for equality.  Even more than that, though, it was a strong blow for reason, and that’s why I’m writing about it here (aside from that I’m really excited and just want to write about it everywhere).

Judge Walker’s decision was, once again, based on actual facts.  It was based on the objective reality that scientists studied and codified.  I’m not saying that scientists are without their own biases as individuals, or that all science is great at measuring reality (there’s a lot of really bad science out in the world), but in general, this was a legal decision informed by truth.  Gays and lesbians are not child molesters, pedophiles, or any less capable of love and marriage than straights.  The stereotypes of what the LGBT population is like are hard to budge, culturally, but major legal victories like this can help dramatically.  We now have, in a very formal legal document that collects a lot of valuable research, a refutation of pretty much all of those social stereotypes and bigotry that homophobes have tried to use to prevent LGBT people from gaining access to equal rights.  Their bigotry was exposed for what it is - completely unfounded, not based on any objective reality, and full of haterade.

How will this decision send ripples through other anti-oppression work fighting the same sort of bigotry, bigotry that’s been accepted as social truth for so long that even acres of research proving it false won’t make it go away?  For the purposes of BARCC in particular: how many of the cultural messages that we get about rape (and which we have tons of evidence to disprove) might we be able to weaken or destroy if we had something comparable to this decision?  I don’t know, and I’m not even sure what form that would take in the court system, but Walker’s decision gives me a little bit of hope.  Clearly, there are people all over the country who are willing to fight back against stereotypes, falsehood, and policies based on them.  If we can do this with Prop 8, maybe we can start to apply the same sort of thinking to rape culture.  Then, maybe, we can get some support for policies that will actually help prevent rape (because they are based on reality and not crap), and stop hearing stories like this.

Posted by Dave on 08/05 at 10:16 AM


Glad I was helpful. The battle is for the swing vote -- I assume as most do that Roberts is a vote the wrong way and that Kagan is a vote the right way; it is beyond any doubt that the other three of the conservative bloc are going the wrong way, or that the remaining liberals go the right way. That leaves Kennedy.

Kennedy is the author both of Lawrence and of Romer. The latter overturned a state constitution on equal protection grounds. He differs from the four horsemen mostly in that he wants to be viewed as reasonable, particularly on social issues. The best way to get him over the transom on this is to show him that if he goes the wrong way he's on the wrong side of history and law students in twenty years will see him as a coward.

Walker made that a lot easier. Scalia is willing to say that rational basis doesn't mean much and if the polity want to simply assume that LGBT folks are sinful reprobates and should be controlled, the Constitution lets them. That's his view. In Lawrence, he comes close to saying that. But Kennedy won't say that. He won't say that the facts don't matter. He won't disagree with much, if anything, from the FOFs you've quoted. And it's very difficult to get from those facts to the wrong decision, unless like Scalia one simply says that bigotry long and widely held is an adequate reason for law.
Posted by Thomas MacAulay Millar  on  08/05  at  12:08 PM

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