Marriage Issues

I'm a bit behind the times as far as reporting on the Proposition 8 ruling in California. I've been at work, so forgive me. I'd skip it, but I'm queer and so this is sort of a big deal. More than just break down the ruling, which I'll be doing a bit of, I hope to talk about this issue more broadly.

So, yes, Wednesday afternoon Judge Walker in California District Court ruled that Proposition 8 which passed in California on the same night as President Obama's election in 2008 is unconstitutional. He ruled that it violates both the due process and equal protection clauses of the 14th Amendment. Section 1 reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [bolding mine]

The bold section there is the particularly important part. States, like California, cannot make laws that violated that bolded section. By saying that straight couples (and individuals by extension) are able to marry and gay couples cannot it sets up two unequal groups in direct violation of that last section about "equal protection of the laws". Less talked about, but I think no less important is Section 5:

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Seems to me that Congress should be getting along about now to make sure our equality is protected by law. Good luck getting them to do that one.

Now I'm going to dissect the ruling for a bit. It's downloadable online but it's 136 pages so this is by no means a thorough job.

Reading through, the first bit of text that really strikes my fancy is this.

...proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. 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.

Mr. Blankenhorn was, in fact viewed by the judge as pretty much non-important. He has no credentials to suggest that he's an actual expert on relationships, marriage, or the government. All the things he was claiming to be an "expert witness" on. Continuing. In a section entitled "Credibility Determinations" the judge had this to say about Mr. Blankenhorn.

David Blankenhorn, founder and president of the Institute for American Values, testified on marriage, fatherhood and family structure.  Plaintiffs objected to Blankenhorn’s qualification 

as an expert.  For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions.

I think that speaks for itself. But it continues.

The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn’s opinions.  Tr 2741:24-2742:3.  The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight. [bolding mine]

Moving on. Later in the document come what is referred to as "findings of fact". As it has been explained to me, these facts must be considered by any appeals court and the Supreme Court should the case be appealed that far. Among these findings are tidbits such as these.

19. Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage.  Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.  

21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.   

There are quite a few interesting findings of fact included in the ruling so I suggest you download it if you want to read up on a few more of them. I'm going to stretch this out into two posts so look for a broader discussion of the topic sometime soon!