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Religious Tolerance logo

Efforts to overturn Prop. 8

Trial in Federal District Court
of Perry v. Schwarzenegger
: Part 4

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Why Prop. 8 violates the equal protection clause of the U.S. Constitution:

"The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws." This is not an absolute requirement that every person be given equal protection. After all, much legislation is focused on a single subsection of the population. As long as a law is "rationally related to some legitimate government interest" and does not target a suspect class, and does not infringe upon a fundamental right, then the law is generally regarded as valid. In American law, the term "suspect class" refers to any group who is likely to be the victim of discrimination. This might include women, persons with minority sexual orientation, racial minorities, transgender persons, transsexuals, followers of minority religions, etc.

Trial evidence shows that gays and lesbians have historically experienced discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. This discrimination continues to the present time.

During the trial:

  • The plaintiffs maintain that Prop. 8 violates the Equal Protection Clause because it discriminates on the basis of sex and on the basis of sexual orientation.

  • Proponents argue that Prop. 8 does not target gays or lesbians because neither gays nor lesbians nor homosexual orientation are referred to in the language of the initiative.

Judge Walker wrote:

"Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex. [Emphasis ours]

Like many other judges and commentators, Judge Walker is clearly wrong in the highlighted section above. Persons with a bisexual orientation are also discriminated against by Prop. 8 if they develop a loving, committed relationship with a persons of the same sex.

During the trial, Judge Walker asked the parties to identify a difference between heterosexuals and homosexuals that the government might consider when creating legislation. The only difference that the proponents could find was that:

  • Opposite-sex couples, if they were fertile, might choose to produce a child through sexual intercourse that has elements of its DNA derived from both the mother and father, while

  • Male same-sex couples, if one is fertile, can choose to produce a child via surrogate motherhood who has elements of its DNA from only one parent. Alternately, they could adopt a child who is not genetically related at all.

  • Lesbian couples, if one is fertile, can choose to produce a child via artificial insemination or in-vitro fertilization who has elements of its DNA from only one parent. Alternately, they could adopt.

However, the proponents did not offer any reason why the government should care about these differences.

Judge Walker concluded:

"Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest."

However, the proponents did suggestsome rationales that they feel justify Prop. 8:

  • 1. Reserving marriage as a union between a man and a woman and excluding any other relationship from marriage:
    Prop 8 preserves:
    • "The traditional institution of marriage as the union of a man and a woman,"
    • "The traditional social and legal purposes, functions, and structure of marriage," and
    • "The traditional meaning of marriage as it has always been defined in the English language."

This is an argument from tradition and is based on earlier legal requirements that spouses must adhere to specific gender roles. All of these requirements have since been abandoned, except for the requirement that marriage consist only of one man and one woman. Prop. 8 thus: "enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women [must] fulfill different roles in civic life. ... The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8."

  • 2. Proceeding with caution when implementing social changes: Proponents argued that the state should proceed carefully with such a fundamental change to such an important social institution. Adverse consequences could surface at some time in the future. However, the plaintiffs presented evidence that allowing SSM has either a neutral or positive effect on the institution of marriage, and that SSMs would benefit the state. Also, the rights of opponents to SSM and to homosexuality would not be impacted by SSM. Judge Walker concludes: "Proposition 8 is thus not rationally related to proponents’ purported interests in
    proceeding with caution when implementing social change."

  • 3. Promoting opposite-sex parenting over same-sex parenting: Proponents suggest a number of reasons why the state should favor opposite-sex parenting.
    Most are related to the genetic connection between the two parents and their children. That is, their children will have elements of their DNA from both their father and mother. Such favoritism:
    • Promotes “stability and responsibility in naturally procreative relationships;"
    • Promotes “enduring and stable family structures for the responsible raising and care of children by their biological parents;"
    • Increases “the probability that natural procreation will occur within stable, enduring, and supporting family structures;"
    • Promotes “the natural and mutually beneficial bond between parents and their biological children;"
    • Increases “the probability that each child will be raised by both of his or her biological parents." (Emphasis ours)

There is a logical fallacy involved in these DNA-based arguments. Banning SSM does not increase the number of opposite-sex couples who will marry, and conceive biologically related children. So the number of children genetically related to both of their parents will not be increased as the result of Prop. 8. A second reason why these arguments are lacking in validity is that long-range studies show that the parent's genders, and thus the genetic relationship between children and parents, are irrelevant to the developmental outcomes of the children.

The suggestion that favoritism promotes stable family structures is of doubtful validity because Prop. 8 undermines the stability of same-sex households. By being denied the right to marry, same-sex couples are also denied benefits, rights, and protections -- including those that contribute to stability -- that are associated with marriage.

Two other reasons are that state favoritism of opposite-sex parents:

    • Increases “the probability that each child will be raised by both a father and a mother;" and
    • Increases “the probability that each child will have a legally recognized father and mother."

They are of doubtful validity because long range studies show that the gender of the parents are irrelevant to the development outcomes of their children.

Judge Walker concludes: "None of the interests put forth by proponents relating to parents and children is advanced by Proposition 8; instead, the
evidence shows Proposition 8 disadvantages families and their children.

  • 4. Protecting the freedom of those who oppose marriage for same-sex couples: Proponents assert that Prop. 8 preserves "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children."

    This arguments does not appear to be valid. Prop. 8 does not impact what parents teach their children. What the proponents may mean is that if Prop. 8 is repealed then schools may teach the fact that California law allows all committed, loving couples to marry, whether they be of opposite sex or the same sex. This is essentially identical to the situation faced by Americans when the U.S. Supreme Court in 1967 upheld the plaintiffs in Loving v. Virginia and interracial marriage became available across the country. At that time, some parents would probably have been inconvenience by a conflict between the facts taught in schools that interracial couples could marry, and the racial bias that the parents wanted to teach their children including their belief that people should only marry others of the same race.

    The proponents also assert that Prop. 8 supports "the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious and moral grounds." This also seems to be a weak argument. Californians are already prevented from discriminating against same-sex partners in public accommodations. That would not change if the couple were married instead of merely registered. Americans have total freedom of speech guaranteed by the First Amendment to the U.S. Constitution. Churches and individuals enjoy freedom of religion, which includes the denigration of groups that different individuals and faith groups reject, whether they be women, lesbians, gays, persons of other faiths, etc.

    Their arguments might be influenced by the type of thinking that went into a fear-based TV ad sponsored by the National Organization for Marriage in 2009 which implied that Christians would experience major persecution if SSM became a reality.

    The only right that religious and social conservatives would lose if Prop. 8 were repealed or nullified would be the right to prevent same-sex couples from marrying. The U.S. Supreme Court's decision in Lawrence v. Texas established the rule that moral views are insufficient grounds to legislate discrimination against a group.

  • 5. Treating same-sex couples differently from opposite-sex couples: Proponents suggested that treating couples differently would be beneficial to the state by:

    • "Using different names for different things."
    • Maintaining the flexibility for the state to address the needs of same-sex and opposite-sex couples differently.
    • "Ensuring that California marriages are recognized in other jurisdictions." and
    • "Conforming California's definition of marriage to federal law"

The evidence provided at trial conclusively demonstrates that same-sex and opposite-sex unions are identical, at least for all purposes relevant to California law. The evidence shows that it is only religious and moral views that differentiate between the two types of relationships. Under the principle of separation of church and state, governments are forbidden to enforce religious views on citizens. Judge Walker wrote: "The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8."

We have not been able to detect any case where the marriage of an opposite-sex couple was not recognized in another jurisdiction that was in any way related to the legalization of SSM in California.

There is no federal definition of marriage. The definition of marriage is left up to individual states and the District of Columbia.

  • 6. Other interests:
    • Proponents seem to claim that allowing SSM increases administrative burdens associated with issuing marriage licenses and recording marriages. Yet the reverse seems to be true. Without SSM, state employees are required to administer two parallel systems -- one to recognize opposite-sex marriages and one to recognize domestic partnerships. With SSM the state has the option of streamlining the systems by combining the two systems.

    • Finally, proponents suggest that Prop. 8 advances "any other conceivable legitimate interests identified by the parties, amici, or the court at any stage of the proceedings." No such interests surfaced during the trial.

Judge Walker summarized:

"Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. ... Proposition 8 violates the Equal Protection Clause because it does not treat them equally."

"In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that 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 towards 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. ..."

"... the purported state interests fit so poorly with Proposition 8 that they are irrational. ... What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples.

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. ... The campaign relied heavily on negative stereotypes about gays and lesbians and
focused on protecting children from inchoate threats vaguely associated with gays and lesbians. ..."

Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

Since Judge Walker found Proposition 8 to be unconstitutional under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution, he ordered that it not be enforced. He prohibited the official defendants, and state employees, from applying or enforcing Prop. 8.

The immediate fate of same-sex couples who want to marry is in doubt. Judge Walker asked both sides to submit arguments by 2010-AUG-06 on whether his ruling should be suspended pending an appeal.

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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. Text of Perry v Schwarzenegger, United States District Court for the Northern District of California, at: This is a PDF file.
  2. Evidence submitted at the trial is available at:
  3. "Federal judge Vaughn Walker overturns California's Prop 8 in win for same-sex marriage," New York Daily News, 2010-AUG-04, at:

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

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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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