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Religious Tolerance logo

Efforts to overturn Prop. 8 in the courts

Trial in Federal District Court
of Perry v. Schwarzenegger
: Part 2

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Concerning question 2: Does the evidence show that the state has an interest in differentiating between same-sex and opposite-sex unions?

Expert witnesses for the plaintiffs testified that no meaningful differences exist between same-sex and opposite-sex couples.

Blankenhord was able to identify one difference: some opposite-sex couples -- presumably those where both spouses are fertile -- are capable of having children if they wish who are genetically related to both parents. With currently available medical knowledge and techniques, same-sex couples can only have children who are genetically related to one parent.

Psychologist Gregory Herek testified that:

  • A homosexual sexual orientation is a normal expression of human sexuality.

  • Almost all gays and lesbians have litle or no choice in their sexual orientation.

  • Therapeutic efforts to change a person's sexual orientation have not been shown to be effective. They pose a risk of harm to the individual.

  • Almost all persons have a consistent sexual orientation throughout their life.

Psychologist Letitia Anne Peplau described research showing that relationships of same-sex couples are indistinguishable from opposite-sex couples in terms of relationship quality and stability. She testified that if SSM was available, it would have no impact on opposite-sex couples' decisions to marry or divorce.

Social epidemiologist Ilan Meyer testified about the emotional harm experienced by gays and lesbians as a result of Prop. 8.

Psychologist Michael Lamb testified that all available studies show that children raised by same-sex parents are just as likely to be well-adjusted as children raised by opposite-sex parents, and that the gender of a parent is immaterial to whether they will make a good parent. Proponents challenged Lamb with studies that they say show that married opposite-sex parents provide the ideal child-rearing environment. Lamb explained that these studies generally compared married opposite-sex parents with single parents or step-families. The studies have no bearing on families headed by same-sex couples. This exchange seems to be very similar to one before the courts in Massachusetts back in early 2004 when those opposed to SSM used the same arguments.

He said that the only relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples. Such studies show conclusively that having parents of different genders is irrelevant to child outcomes. Most religious and social conservatives reject the latter studies, and feel that children need one parent of each gender in order to properly develop.

Economist Edmund Egan testified that states receive more economic benefits from marriages than from domestic partnerships.

Historian Nancy Cott said that domestic partnerships are not the equal of marriage because the former do not have the same social and historical meaning. Much of the value of marriage comes from its social meaning.

Judge Walker concluded that the answer to Question 2 is no: California has no interst in differentiated between same-sex and opposite-sex couples.

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Concerning question 3: Did Prop. 8 enact a private moral view without advancing a legitimate government interest?

Several witnesses testified that a primary purpose of Prop. 8 was to have the state prefer opposite-sex couples over same-sex couples based on the belief that the latter are immoral and should not be encouraged.

Historian George Chauncey testified about a link between Prop. 8 and various initiatives during the 1970s that targeted gays and lesbians. Both emphasized the importance of protecting children from gays and lesbians, and relied on stereotypical images of homosexuals in spite of a lack of evidence that they showed any additional danger to children.

Political scientist Gary Segura identified religion as the chief obstacle to attaining equality of treatment for gays and lesbians.

Political scientist Kenneth Miller noted that some moves towards equality had been achieved on the state and national level. He said that at least some voters supported Prop. 8 because of their personal anti-gay sentiment.

Proponent Hak-Shing William Tam testified about his contribution to the Prop. 8 campaign. He is the secretary of the America return to God Prayer Movement which has a website at It encouraged support for Prop. 8 because they said that homosexuals are twelve times more likely to molest children and that: "Proposition 8 will cause states one-by-one to fall into Satan’s hands." Presumably, he meant that this would happen if Prop. 8 failed.

Economist Edmund Egan testified that the city and county of San Francisco faces direct and indirect economic losses because of Prop. 8. It reduced the funds that couples spent on weddings. It reduced the number of married couples -- who tend to be more wealthy than single people. Proponents did not challenge the existence of these harms, but did question the magnitude of economic loss.

Economist Lee Badgett testified that other municipalities and the state government face simiilar economic disadvantages because of Prop. 8.

Judge Walker stated that:

"... the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8."

"An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view."

"The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives." 5

Judge Walker wrote many pages of conclusions about the credibility of lay witnesses, expert witnesses, and the plaintiffs. He concluded:

"... that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight. ..."

"Blankenhorn’s conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents. Blankenhorn did not in his testimony consider any study comparing children raised by their married biological parents to children raised by their married adoptive parents. Blankenhorn did not testify about a study comparing children raised by their married biological parents to children raised by their married parents who conceived using an egg or sperm donor. The studies Blankenhorn relied on compare various family structures and do not emphasize biology. ..."

"The studies may well support a conclusion that parents’ marital status may affect child outcomes. The studies do not, however, support a conclusion that the biological connection between a parent and his or her child is a significant variable for child outcomes. The court concludes that 'there is simply too great an analytical gap between the data and the opinion proffered'."

"Blankenhorn’s reliance on biology is unsupported by evidence, and the court therefore rejects his conclusion that a biological link between parents and children influences children’s outcomes."

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Findings of Fact:

Based on the testimony given at trial, Judge Walker determined 80 facts. 7 Some of the more interesting are:

  • "38: Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals.

  • "43: Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women, or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.

  • "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."

  • "50: Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive."

  • "52: "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States."

  • "54: The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

  • "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."

  • "56: The children of same-sex couples benefit when their parents can marry."

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Geoff Kors, "Court rules Prop 8 unconstitutional -- Nov. election critical to case!," Email, Equality California, 2010-AUG-04.
  2. -
  3. Text of Perry v Schwarzenegger, United States District Court for the Northern District of California, at: This is a PDF file.
  4. Evidence submitted at the trial is available at:
  5. Text of Perry v Schwarzenegger, Page 26.
  6. Text of Perry v Schwarzenegger, Pages 46 & 47.
  7. Text of Perry v Schwarzenegger, Pages 56 to 109.

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Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

Copyright © 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-AUG-06
Latest update: 2010-AUG-06
Author: B.A. Robinson

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