On the Prop 8 case

It took me a few days to get through the 130-something page opinion for Perry v. Schwarzenegger the so-called "Prop 8 case," but now that I had, I wanted to share some thoughts I had about it with you, my ever faithful readers. Several things jumped out at me.

First, Judge Vaughan Walker put over 100 pages worth of findings of fact in the opinion, which are entitled to substantial deference on appeal. Reading those findings, and opinion as a whole, you can tell it is written for Justice Anthony Kennedy, the proverbial 5th vote on the US Supreme Court who has been favorable to gay-rights plaintiffs in the past. But more on that later. The other thing that is striking about the facts, other than their shear volume and construction, is that the proponents of Prop 8 did a very poor job of presenting their case relative to those in favor of gay rights.

Which brings me to my second observation: good lawyers make a big difference. David Boies is particular is a fabulous trial attorney, who was able to really turn the witnesses for the proponents of Prop 8 into his witnesses. Of course, Ted Olsen is hardly a slouch either: his closing argument was as masterful as Boies' cross-examinations. Yet the other side had virtually no lay or expert witnesses to testify as to what purpose California has in enacting this constitutional amendment other than dislike of homosexuality and homosexuals. This case to me was like the Kitzmiller case (the so-called evolution case) all over again. You had a federal judge appointed by a conservative president: Judge Jones in Kitzmiller was recommended by evolution skeptic Sen. Santorum and appointed by George W. Bush during a GOP controlled Senate. Just as Judge Vaughan was appointed by President George HW Bush over the protests of gay-rights members of congress Sen. Kennedy and Rep. Pelosi. But both were confined by the law to observe that the social conservatives had failed to present any credible experts or lay witnesses that there was a legitimate secular purpose behind what they did.

This leads me to ask the question: did the defendants in Kitzmiller and Perry lose because they were outgunned by better attorneys and experts? Or is there simply no evidence out there that would support the case that would need to be made to uphold the Dover School District's decision in Kitzmiller and/or Californian's votes in Perry? Where are the studies showing that gay marriages cause bad things (higher divorce rates, more out-of-wedlock births, lower overall marriage rate, lower adoption rates, economic costs to the government, worse outcomes for children) to happen? Where are the peer-reviewed studies to show that evolution is flawed or that creationism Intelligent Design is science?

Social Conservatives better hurry and find some better experts, better attorneys, and better evidence to bring a companion case to Perry quickly. The evidence is stacked very high in favor of overturning state bans on gay marriage thanks to the legal dream team. Even if Judge Walker was wrong to find that the Prop 8 suporters' experts shouldn't have been tossed out, it is much harder for appellate judges to say that Judge Walker was wrong to view the weight of the evidence was in the plaintiffs' favor and that their experts were more credible than the proponents. Even if Judge Walker sexual orientation caused him to rule the way he did, which there is no proof of, the proponents did not seek to have him recused, so is alleged bias is not reviewable. Judge Walker found that the proponents did not even provide a rational basis for Prop 8, the lowest possible standard for 14th Amendment rights.

Given Lawrence v. Texas (finding sodomy laws unconstitutional) and Romer v. Evans (finding state constitutional amendment prohibiting amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to recognize homosexual citizens as a Protected class unconstitutional), the argument that gays aren't a class of people whose rights should be examined under the 14th Amendment is an argument that won't fly. And the author of those two opinions? Justice Kennedy. Judge Walker's opinion addresses the Justice Scalia's out there who say that there is no right to gay marriage in the text of the constitution, pointing out that the high court has repeatedly held that marriage is a fundamental right, and combined with the finding that domestic partnership laws are second-class quasi-marriages designed just for gay folks in mind, the step to saying gays and lesbians should be able to receive marriage licenses from the state is not a giant leap.

When I was working for a Massachusetts State Representative when Goodridge v. DPH came out on the heals of Lawrence, I too thought "what's the big deal" about gay marriage and wondered by civil unions didn't cut it. But then I began to read the letters from couples who wanted to marry that came pouring into the office (along with the hate mail), a listened to openly gay legislators discuss what it was like when they wanted to visit the child that they were raising with their partner at the hospital, or make medical decisions, or simply fill out forms. There are over a thousand federal benefits that I received when I married my high-school sweetheart. And there were untold social benefits of being able to say that she was "my wife" is much more socially acceptable and understandable public level of commitment than having to say she is "the girl that I knew I wanted to spend the rest of my life with since I was 18."

The world didn't end after the Massachusetts legislature failed to amend the state constitution to overturn Goodridge. In fact, studies presented in Perry showed that gay marriage had no effect on the institution of marriage: the divorce rates were the same the years leading up to Goodridge as they were in the years that followed.

Marriage is a grand enough institution with physical (married people live longer on average), psychological (better mental health), financial (lower taxes and fees, economies of scale, division of labor, average high incomes) and social (better outcome for children in married households on average) benefits that people of all sexual orientations should be able to join.