Ponderings on a Faith Journey: A Legal Analysis of the Recent Prop 8 Decision

Ponderings on a Faith Journey: A Legal Analysis of the Recent Prop 8 Decision August 18, 2010

Bob Cornwall, a consistently thoughtful, progressive voice, has a guest post from an attorney in his congregation regarding the recent Prop 8 ruling, now being considered by the 9th Circuit Court of Appeals.  I highly recommend that you read it, especially if you’re so caught up in the religious/moral aspects of same sex marriage that you haven’t really considered the legal aspects.  Here’s a taste:

In its Equal Protection analysis, the court determined that Proposition 8 was discriminatory based on gender and sexual orientation. Based on its factual findings, the court ruled that the state had no lawful basis to enforce such discrimination. The court ruled that the state had no compelling interest, and in fact no rational basis, for allowing opposite sex couples to marry the person of their choice, while denying members of same-sex couples that same right. The court also ruled that the California provision for parallel (echos of “separate but equal” institution of “domestic partnerships” was not an adequate legal substitute for the right to marry because “marriages” and “domestic partnerships” carried very different social and economic consequences.

via Ponderings on a Faith Journey: A Legal Analysis of Prop 8 Decision (John McCauslin, Guest Post).

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  • EricG

    The linked post is a good analysis of the decision. What many people don’t realize is that Judge Walker is one of the most highly respected federal judges in the U.S. And this decision isn’t some rogue Judge getting creative with the law. From a purely legal perspective, Walker’s decision is very well grounded. Given the very significant weaknesses of the two witnesses the supporters of Prop 8 relied on, the decision is not at all surprising.

  • “The court ruled that the state had no compelling interest, and in fact no rational basis, for allowing opposite sex couples to marry the person of their choice, while denying members of same-sex couples that same right.”

    This is legal fiction. I don’t have the right to marry the person of my choice. I have to marry someone who is of the opposite gender as myself, just like everyone else. Equal rights. This is such a red herring, it’s unbelievable that intelligent people like yourself, Tony, can have the audacity to repeat it.

    It IS informative that so-called progressives are so tyrannical toward and intolerant of the views of the majority of Americans. So they use the courts to force their views on everyone else. Yeah, that sounds tolerant.

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  • Darius, just to be clear, are you really suggesting that gay and lesbian people should enter into marriage relationships with people towards whom they have no attractional orientation?

  • Tim, no, I’m suggesting that they have equal rights to me. What is being discussed is a SPECIAL right.

    As a side note, homosexuals can marry whomever they want right now in the privacy of their home, church, or community. They just can’t expect that the State recognize and sanction their marriage, just as polygamists cannot expect it. The State is only in the marriage business in the first place to affirm healthy relationships which help the nation as a whole to grow and improve society. Hetero relationships produce children and health(ier) adults. Homo relationships produce no children and physically and emotionally unhealthy adults (study after study have shown this to be generally the case). What government would want to affirm the latter? Only one wanting to self-destruct.

  • The “study after study” that you assert might have been useful evidence to present in court. Unfortunately for them, the Prop 8 proponents failed to do that.

    I hope you’re aware that your arguments sound remarkably similar to those of the anti-miscegenationists. “They have the same rights we all have—to marry someone of their same race. They’re not arguing for equal rights; they want special rights.”

  • Jim

    Thought experiment:

    Suppose I self-identify as part of a group of people called “Forrners.” Our identity is that we desire a non-U.S. citizen as president of the United States. However, this is against the law. Isn’t this a violation of equal rights? You “Citizeners” can vote for who you want, but we Forrners aren’t allowed to vote for who we want. Clearly unequal.

    The major difference I can see between this and the marriage issue is that “homosexual” is an accepted “identity” while Forrner is not. The argument for equal protection presupposes such a valid identity, and as such cannot and will not be persuasive for those who view homosexuality not as an identity but as a sin.

    Disclaimer: I’m as against Prop 8 as I am again this ruling. I don’t think the state should be used as a bludgeon by either side on an essentially religious matter. If you want to argue about marriage talk to those who know what it is actually about (i.e. obviously not politicians).

  • Tony,

    Thank you for posting this analysis.

    To Darius, marriage is a legally defined union that carries with it certain rights and benefits provided by the government — generally tax benefits. It also is a recognized union that creates a family relationship, which has a number of benefits, not the least being the right to be at the bedside of a loved one.

    It bears repeating that it was the Courts that overturned laws approved by the citizen majority that outlawed interracial marriage, desegregated schools, rest rooms, and lunch counters. How does this relate to the question at hand — it relates the question of what was called “separate but equal.” Of course, what was separate was never equal!

    Finally, you speak of special rights accorded to gays, that is untrue, it simply extends rights to gay couples that have already been accorded to heterosexual couples. If the purpose of marriage is theprovision of children, then by all means couples should be legally obligated to have children, unless physically unable to do so.

  • Jim

    To say that marriage is legally defined is to assume as a premise what is trying to be established. Christian thinking presumes that marriage is divinely defined, and that no judge or majority has a right to change it. There can be no agreement, therefore, between Christians and non-Christians on what marriage is. In a pluralistic society, therefore, can there be any truly “equal” decision by the government? Only one: wash their hands of the matter completely and get out of the marriage business entirely. No tax breaks, no special protection, nothing. Any other decision is already partial between Christians and non-Christians, either a usurpation of divine authority or an imposition of Christian morality. Neither, in our current society, is particularly healthy.

  • Marriage in America is a legally defined and blessed union of two people. If certain benefits are provided to persons who marry — because this union is deemed beneficial to society — that is a decision to be made by the state.

    I tend to agree that the church ought to separate itself from state sanctioned marriage business. It would solve a lot of problems — but perhaps create others.

    However, since we live in the world that we do, churches have the right to decide who they will marry, which means that churches don’t have to recognize gay marriages if they don’t wish to do so. But, the state, is in a different position. If it provides benefits to one group of people, but not to others — based largely on tradition and religious mores — that’s another issue. That is essentially created a separate but unequal state of affairs. The judges that overturned the previous ban noted that the state of California already provided for civil partnerships, which gave some of the rights but not all of them found in marriage — that was deemed separate and unequal and thus unconstitutional. And thats where we find ourselves.

  • Marusha

    Marriage is an institution created by God. The man plays the role of Jesus and the woman plays the role of the church. In this we can see that God created it as a metaphor, so to speak, to show the gospel. The Bible tells the man how he is to love his wife: sacrificially and protectively and it tells the wife how she is to love her husband: submissively and adoringly (see Ephesians). It is set up this way so that when non-believers see marriage as it is supposed to be, they can see a wonderful picture of the gospel. As a Christian wife I want to submit to what the Bible tells me is true and right. Can you see why we find the question of marriage as so important? The church has let go of this fundamental practice of performing marriage and have simply let the state take it over. If you have eyes to see, please take a look at history and see how western society seems to be disintegrating before our eyes as we move farther away from the christian principles it was founded on.

  • Marusha, the Bible doesn’t tell you anything, I’m afraid. You interpret what is written.

  • John

    While marriage may have been instituted by God, it has been taken over by the state. Once it became a state sponsored and state controlled institution, the state’s management of it became subject to Constitutional limitations, such as Equal Protection and Due Process.

    And just so people don’t try to infuse the state controlled institution of marriage with hold-over religious components, remember even Hindus, Buddhists and atheists are covered by the marriage laws.

    Also the suggestion that same sex couples can avail themselves of all of the civil rights and benefits of the civil institution of marriage by participating in private in-home marriage ceremony without the knowledge or consent of the state is inherently ridiculous.


  • John

    You said: “Homo relationships produce [unhealthy] children and physically and emotionally unhealthy adults….”

    In it’s factual findings the court noted that studies introduced into evidence proved just the opposite, and in fact the proponent’s own witness acknowledged that allowing same sex couples to marry would improve the physical and mental health and economic fortunes of the couples and their children.

    Having found this to be true as a matter of fact the Appeals Court is compelled to accept this finding as true.


  • Jim

    I’d like to point out that none of the liberals here actually believe that marriage is legally defined. The State of California attempted to define marriage in a particular way, but the liberals claimed said definition was wrong. Hence, the must have some superior, super-legal definition serving as the standard for this judgment. So if it isn’t the state’s definition that matters, what is it?

    (And before you say the federal government, imagine for a moment that congress were to amend the constitution and forbid homosexual marriage. You would, of course, wish to say such a definition was wrong, so the question remains, who makes the standard?)

  • Marusha

    Alex, are you trying to have a semantic discussion with me? The Bible has written in it (by God) the answer to this debate. It is up to us to properly and responsibly with the aid of the Holy Spirit to find out what God is telling us. It is not some cosmic puzzle that we try and figure out in our own ways.

    John I am wondering if you are aware of the studies that show that 1. homosexual relationships are much more likely to dissolve than heterosexual marriages (divorce is extremely bad for the children involved 2.homosexuals are more likely to use illegal substances in the home where there are children 3. homosexuals have much higher health risks 4.homosexuals are more likely to sexually abuse children in their care and 5.homosexual couples are more likely to be violently abusive with each other.

  • EricG

    For those critical of Judge Walker’s decision: Have any of you read it? Based on the comments I suspect not. If you want to criticize the basis for the ruling, you should at least understand what it says, IMO.

    Marusha — the beauty of the trial was that the Prop 8 proponents were given the chance to attempt to submit evidence of the points you are claiming. But they weren’t able to come up with anything that even came close to getting past the “junk science” standard. The evidence you are claiming just isn’t there.

    As for the moral issues, I grew up as a conservative evangelical. But my conscience on this issue weighs heavily, and tells me the conservative position on this is, plainly and simply, morally wrong. This is coming from someone who is heterosexual, so I have no direct stake in it. Just a moral one, and the weight of conscience.

  • Korey

    “But, the state, is in a different position. If it provides benefits to one group of people, but not to others — based largely on tradition and religious mores — that’s another issue.”

    Bob, I’m wary to ask this here as I’m an advocate for same-sex marriage, but I’ll do so anyway. Based on the excerpt from your previous post, would this apply to incestuous marriage or polygamist marriage? If government ought to provide homosexual couples the same rights as heterosexual couples, why shouldn’t this right be extended to these other relationships?

    I ask this because I’m concerned that your dismissal of denying rights “based largely on tradition and religious mores” makes it seem as though you’d be unable to marshal such arguments against incestuous or polygamist marriage. Herein lies my inability to relate to perspectives that seem to devalue any religious foundation for ethics.

    I appreciate your reference to interracial marriage and desegregation and think there is merit to examining the current controversy in light of these historical facts. Yet I still see a significantly complex issue in same-sex marriage (both in secular and religious terms) and I don’t think that is merely because it is a contemporary controversy.

  • EricG

    Korey — I understand your concern, except the legal principles address the examples you give. In particular, they don’t say that the government can never treat different groups differently; they merely require there to be a basis for the distinction. There are different levels of scrutiny of the reasons the government gives (ranging from “strict scrutiny” to rational basis, and levels in between), but under any type of scrutiny the state is allowed to provide reasons for the distinction. No court would strike down laws against incestuous marriage, for example, because of the harm it brings to children.

    Having said that, your bigger question, I think, is an important one: Some of the court decisions suggest that condemnation based on moral or religious principles is not a sufficient basis for a distinction, at least in some contexts (the Supreme Court has even said something along those lines). I think that we as Christians have to be careful advocating for policy decisions based on purely Christian values without translating those values for a secular society. On the other hand, there is a serious legal and philosophical question about matters such as how we can justify rights — particularly rights of minorities vs. majorities, e.g., the Bill of Rights — if there is no religious or morality-based underpinning for them. I think that is a hotly contested issue these days, and I don’t have an answer.

  • Korey,

    In answer to your questions. I’ll tackle polygamy first. Yes, it is possible that bans on polygamy could end. I think it was Time that carried an article about what would happen to Fundamentalist Mormon groups should the ban end.

    On incest, I think that unlike the question of gay marriage, there is sufficient evidence for psychological and physiological dangers for this practice that I don’t think we’ll go down that path.

    John can give a better sense of this than can I, but in the original California Supreme Court case it was pointed out that the state already recognizes gay unions (civil partnerships), which led to the separate but unequal ruling. I believe there was another recent Supreme Court ruling that gave gays equal legal footing, which if I’m not mistaken one of the conservative justices said would lead to gay marriage.

    No you could amend the constitution, but that takes 2/3rds of congress and 3/4 of the states. That’s not easy to manage!

  • Jim

    You’re absolutely right, I really ought to read decision in full before criticizing it. I withdraw my whole thought experiment above. The snippets I have read are obviously insufficient for an informed opinion. My apologies for speaking to quickly. Thanks for keeping me accountable!

  • Jim

    *the decision
    *too quickly.

    Apparently I need to read my own posts in full as well. Ugh.

  • Marusha

    I wasn’t present when all of this went down in court so i don’t know what sort of evidence or arguments were presented but I wonder if I can point out the interesting (to me anyway) facts that the judge who overturned this is a homosexual from sanfrancisco. Is it wrong of me to feel a little suspicious of this? I wonder if this had any bearing on the case.

  • Marusha,

    Judge Walker is a judge of the District Court for the Northern District of California, where he has served since 1989—he was nominated by President Reagan in 1987, but due to opposition from the ACLU and other “liberal” groups, he was not confirmed until he was re-nominated by President Bush (Sr.).

    You can read his “Findings of Fact and Conclusions of Law” document from the case here (pdf). He covers in detail the evidence and testimony presented in court, as well as his determination of the credibility of each of the lay and expert witnesses.

    To be honest, I believe the evidence speaks for himself, and the talk of his alleged sexual orientation seems to me to be a smokescreen to distract from the lack of evidence presented by the Proposition 8 proponents.

  • Soluman

    Re: Same-sex marriage as a “new right”, this paragraph is from Judge Walkers opinion, and I think it encapsulates the idea perfectly:

    “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”