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Efforts to overturn Prop. 8 in California -- the citizen
initiative that terminated same-sex marriages in the state.

2010-AUG: Negative reactions to
the Perry v. Schwarzenegger decision

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Quotations, showing two very different beliefs re: public initiatives:

  • "California’s citizen-driven initiative process is one of the jewels of direct democracy." Jennifer Roback Morse, Ruth Institute. 13

  • "... the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections'." District Judge V.R. Walker. 13,14

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Protect Marriage:

Protect Marriage is a coalition of Roman Catholic, Mormon, and evangelical Christian groups who defended Prop. 8 during the Perry v. Schwarzenegger trial. After the closing arguments in mid-2010-JUN, Andrew Pugno, their general counsel, issued a statement saying:

"What is ultimately at stake in this case is the notion that legislative decisions on policy such as government’s recognition of marriage belong to the people and their elected representatives; it is not for the courts to legislate from the bench."

This seems to be a misunderstanding of the nature of the trial. It was not a battle of jurisdiction between the public and courts. Rather, it was a conflict between the wording of Prop. 8 and the wording of the Fourteenth Amendment of the U.S. Constitution. It was on the latter basis that Judge Walker ruled that Prop. 8 violated the Fourteenth Amendment due process and equal protection clauses and was thus unconstitutional.

They continued:

"Very simply put, the public has a strong interest in channeling natural procreation into stable and enduring relationships between men and women and increase the likelihood that those children will be raised by both a mother and a father, and those interests justify the unique and special status of traditional marriage."

"For our opponents to say, as they have repeatedly, that there is no rational reason for limiting marriage to a man and a woman except for animus and bigotry is to spurn 7 million Californian voters, 70 of 108 judges, the vast majority of state legislatures and electorate after electorate who support marriage between a man and woman." 11

In their response to Judge Walker's ruling, they again returned to the denigration of the loving committed relationships of same-sex couples, opposite-sex couples who are infertile, and opposite sex couples who decide to not have children. Charles J. Cooper, lead counsel, wrote in a statement:

"The historical record reveals that the traditional definition of marriage is grounded in society’s interest in channeling potentially procreative sexual relationships between men and women into enduring, stable family units to increase the likelihood that children will be raised by the man and woman whose union brought them into the world."

"Judge Walker’s ruling sweeps aside this historical understanding of marriage. In its place, he has announced that 'Marriage is the state recognition of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependants.' His opinion thus treats children as a mere afterthought when it comes to marriage. The Court’s disregard for the historical purposes of marriage would require California to embark on a novel experiment with the fundamental institution of marriage.  In doing so, it threatens to harm the vital interests historically served by marriage.  The United States Constitution provides no warrant for this result, as demonstrated by the all-but-unanimous judgment of other federal courts that have addressed the issue." 12

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New York Daily News reporter comments on Judge Walker's sexual orientation:

Aliyuah Shadid, a reporter for the New York Daily News, wrote an article about Judge Vaughn Walker's sexual orientation. He is widely believed to be gay. Some supporters of Prop. 8 are asking the question whether he was biased in his ruling in favor of same-sex marriage. Professor Larry Levine, of the McGeorge School of Law in Sacramento said:

"I think it's profoundly offensive to suggest that a judge who is not of the sexual orientation of the majority or the race of the majority or the religion of the majority is unfit to hear the case. Are they saying that an African American judge can never rule on an affirmative action case and a Muslim can never rule on a case dealing with religious expression?" 2

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American Family Association recommends impeachment:

On AUG-05, the American Family Association (AFA) stated:

"U.S. District Chief Judge Vaughn Walker single-handedly overturned California's Prop. 8, which elevated protection for one-man, one-woman marriage to its state constitution."

"In doing so, he frustrated the express [sic] will of seven million Californians who went to the polls to shape their state's public policy on marriage." 3

The "single-handedly" reference sounds a little ominous. However, that is how the courts work. Plaintiffs and defendants come before a single Federal District Court judge and make their arguments.

Judge Walker did not frustrate the expressed will of seven million California voters. In fact, 11.6 million voters expressed their will on Prop 8: 6,068,393 or 52.25% voted in favor and 5,544,962 or 47.75% were opposed. The margin of victory was 4.5%. 4 If about one in 45 voters who supported the initiative had changed their mind, same-sex marriage would have continued in California.

They state that: "Judge Walker is an open homosexual, and should have recused himself from this case due to his obvious conflict of interest." Judge Walker is a male, and thus his sexual orientation is probably either gay or heterosexual -- unless of course he is bisexual. No matter what his orientation happened to be, either one side or the other could accuse him of being biased. Judges are expected to be fair and to not be influenced by personal wishes.

The AFA article states that the lawsuit should not have been heard in a federal court, because marriage eligibility is reserved for the states. They may not be aware that the fourteenth amendment to the U.S. Constitution contains a due process and an equal protection clause, both of which are binding on the states. The plaintiffs brought the case to the federal district court because they wanted to challenge Prop. 8 on the basis that it violates the fourteenth amendment.

The AFA concludes that "Judge Walker's ruling is not "good Behavior." He has exceeded his constitutional authority and engaged in judicial tyranny." In reality, Judge Walker compared Prop. 8 with the 14th amendment and concluded that the initiative violated both of the latter's due process and equal protection clauses. It is highly likely that most -- perhaps all -- judges faced with the same evidence would have reached the same conclusion.

The AFA is asking their followers to email their Congressional representative today and urge him [sic] to launch impeachment proceedings.

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Comments by the Baptist Press:

The Baptist Press (BP) was established by the Southern Baptist Convention and so reflects fundamentalist Christian thinking on religious and social topics. They posted a Q&A article online concerning Judge Walker's ruling. They asked and answered five questions: 9

  1. What did the judge rule? BP reports that Judge Walker found that Prop. 8 violates the due process and equal protection clauses of the U.S. Constitution. "This is the first time that a federal judge has found a constitutional right to "gay marriage'." Actually, they are misquoting Judge Walker. He suggests that "gay marriage" and "same-sex marriage" are misnomers, as there is only one kind of marriage. He simply found that same-sex couples and opposite-sex couples must be treated equally by the law and that the Constitution requires that both must have access to marriage.

  2. What is next? ProtectMarriage.com, who sponsored Prop. 8 is appealing the decision to the U.S. Ninth Circuit Court of Appeals. A randomly selected panel of three judges will hear it. From there, it could be appealed to the U.S. Supreme Court. BP didn't mention that there there is a possibility that the entire Court of Appeals will hear the case.

  3. Why is this case more significant that previous lawsuits? BP notes that previous cases went through state courts and thus could only impact people in a single state. This case -- if it is appealed to the U.S. Supreme Court, and if the court accepts it and if the court confirms Judge Walker's ruling -- could allow same-sex couples to marry in all 50 states and the territories -- just as the Loving v. Virginia case of 1967 allowed interracial couples to marry everywhere in the U.S. Of course, that is a lot of "if's'.

  4. Why are some people saying the ruling could mark a cultural shift? BP noted that Judge Walker made "sweeping arguments" about the nature of homosexuality, marriage, the raising of children. BP didn't mention that these sweeping arguments were based on the evidence supplied during the trial. Many long-term studies of same-sex couples and their children have recently become available. They indicate that same-sex married couples and opposite-sex married couples have few differences and that both raise equally well adjusted children. He also traced the laws regarding marriage and show that they have changed the institution of marriage from one that was once very oppressive to women to one that is a union of equals.

  5. What legal arguments will Prop 8 supporters make during their appeal? According to BP, they argued that "children need [both] mothers and fathers," that religious freedom will be adversely affected if same-sex couples are allowed to marry, and that children will be taught that "traditional faith communities' views on marriage are based on hatred and bigotry." They cited a case in New Jersey where "a Methodist-owned beachfront property lost part of its tax-exempt status because its leaders denied use of the property to a lesbian couple for a commitment ceremony."

    BP did not mention that the proponents of Prop. 8 made the same mistake as was made in 2004 in a same-sex marriage case in Massachusetts: they quoted studies that compared children in families raised by two parents with children raised by single parents. Needless to say, the former children had better outcomes on average. But the proponents attempted to use these studies to show that parenting by opposite-sex couples was superior to that by same-sex couples. They were challenged on this conclusion and their case largely collapsed. Also, the proponents of Prop. 8 promoted an unusual philosophy that children's DNA needs to contain components from both their mother's DNA and father's DNA. This denigrates lesbian couples whose children generally have DNA from only one of their parents. It denigrates gay couples who use a surrogate parent. Above all it denigrates lesbian couples, gay couples, and heterosexual couples who adopt children whose DNA is related to neither parent.

    It is unlikely that schools will teach that religious conservatives are bigoted on matters related to homosexuality. It is more likely that children in school will simply be taught that all loving, committed couples have access to marriage whether they are of the same gender or opposite gender.

    Religious freedom, in the original meaning of the term, will not be affected by the marriages of same-sex couples. Christians will still be able to believe what they wish and their clergy, churches, and denominations will be free to marry or not marry couples according to whatever criteria they wish. But the term "religious freedom" seems to be evolving away from freedom of belief, and is becoming the freedom to denigrate minorities outside of their group. If this trend continues, then religious conservatives can expect increasing opposition.

    Social and religious conservatives appear to be losing the battle over same-sex marriage. Polls indicate that, with the exception of Utah, public support for same-sex marriage is steadily increasing at about the same rate as public support for inter-racial marriage did back in the last third of the 20th century. Meanwhile, the public in most states now support same-sex civil unions and domestic partnerships. Just as racism is recognized today as a form of bigotry, if current trends continue, it is likely that the desire to discriminate against and denigrate sexual minorities will eventually be seen as another form of bigotry, like sexism, racism, xenophobia, etc. There is a very strong relationship between age and support/opposition to same-sex marriage. By 2011, some polls showed 75% support among adults under 40 years-of-age even as most senior citizens 65 and older still oppose it. This is partly responsible for a mass voluntary exodus of youth and young adults from conservative Christian churches. Religious and social conservatives will have to adapt somehow or lose market share and the negative effects of a gradually aging membership.

    The New Jersey church case is frequently mentioned as an example of state oppression of churches. One example is a 2009 TV ad created by the National Organization for Marriage. However, the details of the case are rarely mentioned. In reality, the Ocean Grove Camp Meeting Association, a Methodist group, own a very attractive beachfront pavilion. The association had signed an agreement with the state and federal governments which benefited them financially, but also required them to rent their facilities to the general public, whether they be opposite sex couples wanting to hold a marriage ceremony or a same-sex couple wanting to hold a commitment ceremony. The church refused to rent their pavilion to a lesbian couple in violation of their government contracts, and the couple complained. The association subsequently lost their tax-exempt status. They decided to avoid future problems by denying all couples -- opposite-sex and same-sex -- access to the pavilion for wedding or civil union ceremonies. They decided to disappoint many opposite-sex couples just so that they would be free to discriminate against the relatively few same-sex couples who wanted to use their facility. This conflict triggered a lawsuit that was settled in 2012-JAN in favor of the same-sex couple.

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This report on negative reactions continues in another essay

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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. "Governor Schwarzenegger Issues Statement on Proposition 8 Ruling ," Office of the Governor, 2010-AUG-04, at: http://gov.ca.gov/
  2. Aliyah Shahid, "Judge Vaughn Walker's sexual orientation sparks ire over fairness on Prop 8, same-sex marriage case," New York Daily News, 2010-AUG-06, at: http://www.nydailynews.com/
  3. "Time to impeach Judge Vaughn Walker. Contact your representative today and urge him to start impeachment proceedings," American Family Association, 2010-AUG-06, at: http://www.afa.net/
  4. James Welch, "California Proposition 8 Vote Analysis By County," Jim 2.5's Blog, 2008-NOV-13, at: http://jamesewelch.wordpress.com/
  5. Text of Perry v Schwarzenegger, United States District Court for the Northern District of California, at: http://msnbcmedia.msn.com This is a PDF file.
  6. Evidence submitted at the trial is available at: https://ecf.cand.uscourts.gov/
  7. "Cardinal Mahony: Judge's rulings based on "Feelings" not Facts," National Organization for Marriage, undated, at: http://nomblog.com
  8. "FRC Criticizes Court Ruling, Warns against the Roe v. Wade of Same-Sex 'Marriage'," Family Research Council, 2010-AUG-04, at: http://www.frc.org/
  9. Michael Foust, "The Prop 8 ruling: 5 questions & answers," Baptist Press, 2010-AUG-05, at: http://www.bpnews.net/
  10. John Horval, "Same-sex Marriage Ruling Unmasks Movement," American TFP, 2010-AUG-05, at: http://www.tfp.org/
  11. Andy Pugno, "ProtectMarriage.com Makes Strong Closing Argument to Protect Constitutionality of Traditional Marriage," Protect Marriage, 2010-JUN-16, at: http://www.protectmarriage.com/
  12. Charles J. Cooper, "Statement ... for the proponents of Proposition 8..." Protect Marriage.com Action Fund, 2010-AUG-05, at: http://www.protectmarriage.com/
  13. Jennifer Roback Morse, "Prop 8 Under Fire (again)," undated, at: http://www.ruthinstitute.org/
  14. Citation from West Virginia State Board of Education v Barnette, 319 US624, 638 (1943). This was a Jehovah's Witness case during World War II concerning compulsory saluting of the flag.
  15. V.R. Walker, Perry v. Schwarzenegger, 2010-AUG-04, at: http://www.scribd.com

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

Copyright © 2010 and 2012 by Ontario Consultants on Religious Tolerance
Original posting: 2010-AUG-06
Latest update: 2012-FEB-10
Author: B.A. Robinson

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