Finally, some logic on same-sex marriage


Same-sex marriage does no conceivable harm to anyone

EDITORIAL Judge Vaughn Walker's historic decision overturning Proposition 8 was remarkable not so much for its conclusion, but because it has taken so long for a federal court to conclude that same-sex marriage does no conceivable harm to anyone.

The legal scholars can debate whether this particular civil rights issue deserves strict scrutiny or must meet only a rational-basis test. And everyone knows the case will eventually wind up in the U.S. Supreme Court, where nine justices will decide whether official discrimination can be legal in the United States of America.

But what Walker did was crucial — he devoted the vast majority of his 138-page decision to discussing the facts of the case. As Bob Egelko notes in a nice San Francisco Chronicle piece Aug. 8, Walker provided a forum for the public debate that should have happened around the ballot measure but never did. Prop. 8 was decided after political consultants used carefully honed messages designed to play on people's emotions; the real facts of the matter were hardly ever discussed on a statewide level.

The facts of the matter, as the record clearly shows and Walker eloquently related, are simple: there's nothing wrong with same-sex marriage. The ability of same-sex couples to marry has no impact on the rights of opposite-sex couples. There is also no legal reason to believe that something rooted in an old tradition — from a time when gender roles were rigidly prescribed — has, in and of itself, any validity. "Tradition alone," Walker noted, citing a 1970 U.S. Supreme Court case, "cannot form a rational basis for a law." Furthermore, studies show that children brought up by same-sex couples fare just as well (and in some studies, better) than children raised in traditional households.

In fact, the judge concluded, the only real reason Prop. 8 supporters put the measure on the ballot is that they don't like gay and lesbian people: "Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward 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."

That record of factual evidence will make it harder for the Ninth Circuit Court of Appeals or Supreme Court to overturn Walker's ruling. And the very essence of his decision — that no harm comes to anyone in society when same-sex couples are allowed to wed — is ample reason for him to deny any stay while the case is on appeal. A stay, which would leave Prop. 8 in effect for several more years while the case works its way through the system, would make sense only if some irreparable harm would come to some party. There's no such harm — real or potential or imaginable — to anyone or anything except institutional and personal bigotry.

The decision demonstrates another crucial factor, one that politicians of both parties should pay attention to this fall. Courts tend to (slowly) reflect changing attitudes in society. And while the polls are still inconclusive, the demographics are not: Almost nobody under 30 opposes same-sex marriage, and every year that passes, California and the country come closer to the day when Prop. 8 will seem as silly as anti-miscegenation laws.

Both Attorney General Jerry Brown and Gov. Arnold Schwarzenegger have asked Walker not to stay his ruling. Sen. Barbara Boxer has hailed the decision. But Republican gubernatorial candidate Meg Whitman and Senate contender Carly Fiorina remain adamantly opposed to same-sex marriage. Brown and Boxer shouldn't be afraid to make this part of their campaigns. There's not a whole lot to bring young people to the ballot this fall, and making Prop. 8 an issue can only help the Democrats.

It's also worth remembering that nearly every Democratic leader in the nation blanched when San Francisco, under Mayor Gavin Newsom did the right thing and legalized same-sex marriage in 2004. We warned then that Sens. Boxer and Dianne Feinstein, Speaker Nancy Pelosi, and the rest of the Washington crew would wind up on the wrong side of history. And now that a judge who has never been known as a leftist (or even a liberal) has made the case that marriage is a civil right and discrimination is never legally acceptable, they ought to admit they were wrong.


The factual discussion by Judge Walker would have been more interesting had he not devoted 20 pages to undermining the credibility of the witnesses called by the Prop 8 proponents. White-washing a factual discussion is no way to base an opinion.

While no "harm" may come from the marriage of same-sex couples if the stay is lifted, certainly there is harm to the system since the citizens will realize even more that expressing their opinion fails to mean anything to the government. When the government ignores "we the people" it rarely turns out well for the government.

Posted by Guest on Aug. 10, 2010 @ 2:58 pm

When one witness relies for his opinion on "something he found on the Internet" and the other utilizes a "group thought experiment" plus the extremely dubious scholarship of Dr. George "Rentboy" Rekers, just how seriously should a reasonable person be expected to take the pro-Prop. 8 witnesses' testimony?

Posted by Peter on Aug. 10, 2010 @ 3:15 pm

then maybe "we the people" will also begin to realize that the US is a representative democracy that's bound by a constitutional commitment to judicial review. People are free to express their opinion as much as they want, and government entities react to that opinion in the form of campaign promises and making and enforcing laws. But those laws are also subject to constitutional scrutiny. "We the people" includes all people, not just a simple majority -- and that simple majority cannot impose undue burdens on a particular minority. That's, in fact, the system we live under as Americans. We do not live in an unfettered democracy that permits the tyranny of the majority. And so far it's worked out pretty well. Or did you write the above as you harvested farina and whey for His Lordship on your rented field?

Posted by marke on Aug. 10, 2010 @ 3:32 pm

Well stated, Good. "Just the Facts", please re-read the U.S. Constitution

Posted by Guest: Jimbo on Aug. 10, 2010 @ 6:00 pm

Actually, the judge is required to state his reasons for believing that a witness is credible or not. That's what trial judges do.

Posted by pdquick on Aug. 11, 2010 @ 9:21 pm

As Ted Olson pointed out on Fox last Sunday, putting people's rights to a vote is even more dangerous than the idea that "the majority should always rule". The rights of Muslims and gays today, blacks and Latinos and Japanese and Jews before--were all legislated against and the 14th Amendment was written specifically in the wake of the Civil War to try and prevent this kind of codified discrimination.

"Equal protection." You might wanna check that out. Read the Bill of Rights, assuming you're at 2nd grade literacy.

Bleedin' idiot--the end days for these fools can't come fast enough for me.

Posted by Guest Johnny Wendell on Aug. 10, 2010 @ 9:23 pm

Just to be clear, the right at stake here is the right to name a relationship. California already recognizes same-sex committed relationships and grants same-sex couples the same legal rights as a "married" relationship. This is not a "separate but equal" issue either. Whether whites and blacks were granted access to "restrooms" or "bathrooms" in the 60's was not the issue, access to the same premises was.

Also, the 14th amendment provides for equal protection of the laws, not equal protection of personal validation. Same-sex marriage grants no legal rights to homosexuals in California; it simply acts to make them feel accepted--even Judge Walker stated that among his pages of facts. However, acceptance or personal validation is not constitutionally guaranteed.

To me, the most bizarre claim in the opinion was that somehow all the Prop 8 proponents were "duped" or "scared" into voting for it. I'm not afraid that same-sex marriage will ruin my marriage or that my kids may end up gay because of it; and I can't believe that any significant group of voters did. I never heard any of these claims during the campaign. I do have a legitimate concern over its impact on California school curriculum and personal religious liberties, which are areas that have already been shown by courts across the country to be subordinate to sexual preference.

Unfortunately, the issue is not as simple as granting rights because it won't hurt traditional marriage. Granting same-sex marriage essentially guarantees that the stated 1st amendment right of freedom of religion is diminished, as it has trended over the last 100 years despite the fact that it is a named constitutional right, while the "fundamental right" of marriage was judicially written in.

Posted by Guest on Aug. 11, 2010 @ 7:45 am

The first amendment says Congress shall pass no law regarding the establishment of religion. How does same-sex marriage diminish the first amendment? You are free to practice your religion. You are not free to expect that your religion will be taught in schools or be used determine the legal status of other people's relationsips. The first amendment was not at issue in the ruling. The issue was the fourteenth amendment guarantee of due process and equal protection. The judge cited extensive evidence that domestic partnership is not the same as marriage. Obviously, you don't think so either, or you wouldn't have supported Prop. 8.

Posted by pdquick on Aug. 11, 2010 @ 9:28 pm

"or prohibiting the free exercise thereof". Several courts have found that where religion and sexual orientation clash, sexual orientation prevails. A few examples:

A San Diego fertility doctor referred a same-sex couple who had come in to receive fertility treatments to a fellow doctor because she felt it was inconsistent with her religious views. The couple sued and won with the judge stating that if the doctor couldn't serve all people then she should find another job.

An Arizona photography business opted not to take business for a same-sex commitment ceremony because of their religious beliefs. The couple sued and won.

While you may cheer this, it seems inappropriate for a judge to make that call considering the language in the constitution and the stated right to free exercise of religion. Over the past 30-50 years, religious rights have consistently been whittled down due to issues like this one. Marriage may be the issue, but the constitutional concept at play is religious freedom--why do you think so many churches and consistent churchgoers supported Prop 8? It's because they understand that issue. While freedom to exercise religion was not addressed in the opinion, it probably should have been, as it is clearly implicated by the decision and judges' desire to make sexual orientation a suspect classification. If judicial opinions were published anonymously I wonder how different US jurisprudence would be. Currently the system is filled with egomaniacs looking to make themselves immortal with the next groundbreaking opinion.

The judge's "factual" evidence on the differences of domestic partnership and marriage was how the same-sex couples felt impacted because they can't call their relationship a marriage or each other spouse. No facts regarding legal benefits were found.

I chose to support Prop 8 not because I think marriage and domestic partnership are not legally equivalent (because they are), but because 1.the country needs to stop ceding religious liberties in the name of equality, and 2. no state benefits would be withheld from same-sex couples by its defeat. In other words, if the issue were inheritance or insurance premiums, or tax issues, or hospital visitation, or any other state legal benefit for same sex couples, I would support it.

Whether the No on 8 group wants to admit it or not, many, if not most, of the proponents of 8 don't have it out for homosexuals, or hate homosexuals; they just want to protect their right to worship. I laugh at any so-called Christian who calls homosexuals sinners, or tries to damn them to hell; the main reason I'm a Christian is because I'm a sinner. Religion isn't much useful to a non-sinner.

Posted by Guest on Aug. 12, 2010 @ 1:30 pm

It doesn't cut your religious freedom--unless you dare to say that your religious freedom includes the right to discriminate against others.

Posted by Guest on Sep. 21, 2010 @ 2:00 pm

Many who voted for Prop 8's passage are irate that one Judge can overturn a majority vote. Their ire should be directed at the right wing Christian groups who convinced voters that there were "social studies" and "scientific evidence" documenting the harms caused by same sex marriage when, in fact there are none and the proponents were unable to produce even one at their trial.
More importantly, however, they should find solace in the words of James Madison, the Father of our Constitution who insisted upon an independent judiciary to protect against the tyranny of the majority; ".....measures are too often decided,not according to the rules of justice and the rights of the minor party but by the superior force of an interested and overbearing majority".(Federalist Papers No. 10),

Posted by Guest Wayne on Aug. 11, 2010 @ 6:30 am

Also from this author

  • Guardian endorsements

    Campos for Assembly, Yes on Props. B and 42, re-elect Gov. Jerry Brown — our recommendations for the June 2014 primary election

  • The future of Piers 30-32

  • Hold BART accountable for deaths