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Posted by pocochina on August 10, 2010

I kept thinking I was going to have a Real Post, with a coherent theme and shit, on the Prop 8 decision.  But I don’t.  Fuck it.  This is just awesome.  Scattered thoughts and lots of links below – please feel free to leave the same in comments.

This opinion is good news on a lot of levels.  For those curious, the opinion is available here; this other copy is neat because it has hyperlinks to all relevant sources (thanks @sesmithwrites on ou’s twitter feed) but it loads weirdly if at all, so, fair warning.

Even if all it dealt with was the equal parts basic and terrible dehumanization of CA LGBTQ people caused by Prop 8, this would still be a really exciting decision.  The amazing jaebi-lit has written extensively on her activism against Prop 8, and has beautifully crystallized the human rights issue:

This decision was a ruling on our humanity, on our dignity and our worth as equal human beings, and it affirmed that we are indeed people, who have the right to live and love in public. For once, we weren’t told that we had to wait a little longer–the importance of our demands was acknowledged and they were treated as a serious question of law.

I know when I’m beat, and I can’t top that.  So check that shit out.

But there is more.  This is so exciting.

Something that’s really striking to me – nnaylime and girfromjersey, I would love to hear your thoughts on this – is just how ridiculously careful a decision this is.  I mean, this is a short novel of an opinion.  Walker cautiously details his reasoning for each of his (dozens and dozens of pages of) findings of fact (to which an appeals court is bound – in lay terms, no court reviewing this decision can say that gay parents are bad for children, because of Judge Walker’s factual finding that gay parents are just as good as straight parents; common fucking sense now has to prevail in court) with detailed citations to procedural rules and case law.

Take the beautiful smackdown – gleefully highlighted by no less than Our Lady of MSNBC, Maddow Herself – of one of the two witnesses the State bothered to produce in favor of Prop 8.  Walker doesn’t just ignore Blankenship (which he might have reasonably suspected would be found to be an abuse of his discretion), he eviscerates the homophobe.  Even if you’re not a law nerd, I really recommend taking a look through the opinion if only for the sheer joy of watching bigots be stripped of all the unearned social deference they usually get when they cloak their hatred with claims of religious mandates.

It’s really telling that the state of CA didn’t really bother to put on a decent case.  Remember, though pro-bigotry groups intervened, this was basically the state being forced to defend something contrary to the judgment of the state legislature, judiciary, and attorney general.  I’m well aware that there’s no argument against equal marriage rights that could actually withstand a logical interrogation, but I also really don’t feel like defense counsel exactly worked themselves to the bone on this one.  And, I mean, if it was you worked for the state of CA and it was your job to defend Prop 8?  Would you do the same?  Or would you peace out and maybe leave a true believer to actually try, and verbally trash gay Californians in the process?  Punting a case, especially one this high-profile, isn’t something any lawyer is ever going to admit to (not least on pain of professional sanction), but it’s also…not completely philosophically indefensible here.

The walk through the legal history of marriage in CA is thorough and well-written.  There’s fairly little to say about interracial marriage bans – while I’m respectful of the thorniness of making comparisons between the social experience of being black and being gay (though in the interests of non-erasure, I’ve spoken to and read gay black folks who have been quite open about having felt commonalities between different oppressive systems), it’s really quite striking to read Loving v. VA and consider the similarities between the wild ravings of anti-equality assholes then and now.

I’m very impressed with and excited by the fact that Judge Walker is very clear on the sexist roots of traditional marriage as well as their lack of place in modern society.  (In fact, “California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman.”  (at p 124)).  I don’t think anyone actually doubts that the freak-out over gay marriage – as far as gender essentialists are concerned, a true marriage of equals – is related to the raging misogyny of the sexphobic modern right wing.

It’s worth saying that the wonderful sentence from the ruling that’s been quoted all over town, that “[a]nimus 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…is not a proper basis on which to legislate,” isn’t even the logical outgrowth of gay rights cases which have made it up to the high court, but is barely even a paraphrase of the two crucial gay rights SCOTUS cases, Romer vs Evans and Lawrence v Texas.

And what really makes me just want to throw my arms around this decision and squeeze it tight is that it completely breaks this ridiculous charade we keep upholding, which is that “marriage” is somehow a magic word that exempts an entire legal institution from logic, reason, and constitutionality.  Decisions in favor of gay rights, which draw a fair and compelling picture of the second-class status suffered by LGB individuals (trans* folks, unfortunately, have a different and widely-ignored set of legal issues), have an unfortunate tendency to separate marriage from other basic constitutional rights.

This, though, is not supported by reason.  In fact, gay marriage bans are, in all salient respects, precisely the same as the type of law struck down in Romer, but more abhorrent.  It is a broad-based imposition on many of the ways the law touches individual lives (marriage affects visitation, inheritance, taxation, child custody) but narrowly targeted towards LGBTQ folk out of bigotry.  It’s worse because – check out p. 109 – marriage is actually a fundamental constitutional right in the US, and there’s no reason for that not to include same-sex couples.  As Boies said in this interview where he buried the FUCK out of Perkins from the FRC, you can’t just say these things any more, you have to actually support them with facts under rational and searching cross-examination – and you fucking can’t.

Another interesting thing – and this is not necessary to the holding, and I’d be shocked if it stood up on review, but it’d be PHENOM if it did, is Walker’s assertion that “gays and lesbians are the type of minority strict scrutiny was designed to protect” – this is HUGE.  This strict scrutiny EPC analysis is what lets courts strike down with swift and mighty prejudice laws targeting people based on race or ethnicity.  As he reinforces throughout the decision, there’s no need for this particular finding, as anti-gay laws are based in plain old meanness and therefore don’t even pass rational basis review (this is a really low burden for the government), but it’s an important recognition nonetheless that LGBTQ  people face social and legal discrimination, and fingers crossed, a useful tool against it somewhere down the line.

Another issue that’s really interesting is the combination of this ruling with the pair of decisions from a few weeks back which found DOMA unconstitutional.  A federal judge in MA found that because marriage is a state issue, DOMA is an overreach of federal power because it forces states to discriminate against their own citizens.  Rather than impeding marriage equality, as naysayers claimed they would, these decisions and the recent Prop 8 decision actually highlight the injustice of both marriage bans and in particular DOMA.  The reading of gay marriage bans as unconstitutional, combined with DOMA, means that the federal government is not only forcing states to act irrationally in discriminating between citizens, but forcing states (and federal agencies, like the INS) to violate fundamental constitutional rights.

There’s also a lot of talk about if or how gay marriage would harm straight couples.  Now, it’s perfectly reasonable for marriage equality advocates to do so – there’s an embarrassingly pervasive attitude of “I got mine, and you can’t have it” among what passes for “moderate” political thinkers in the US, and they’re the people who are going to have to be convinced in order to ensure that gay rights are socially, culturally, and legally respected across the board – but I find it really disappointing.  Because sometimes, equality does hurt privileged people, in that they have slightly less privilege.  To use a slightly more accessible analogy* wage equality and affordable child care, for example, do mean that somewhere, someone is making slightly less profit, but that doesn’t mean those things are wrong.  Even if it did hurt straight couples’ relationships in a few cases that gay and lesbian couples have a constitutional right (and make no mistake, this ruling is absolutely sound, and if it is overturned it will be based in bigotry and not in the US Constitution) to marry, that would absolutely not be an acceptable reason to continue the marriage bans.

This decision isn’t the end of the legal and political fight for LGBTQ equality.  Not by far.  But it’s a damned fine start.


Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Links of general interest:

  • A Lawyer’s Look at the Prop 8 Decision – explains a bit of the procedural stuff in lay terms
  • Dahlia Lithwick on the decision Ted Olsen:  “Would you like Fox’s First Amendment rights put up for a vote?”
  • Greenwald on Douthat’s fool-ass response to the decision
  • Lambda Legal explains what’s next
  • Linda Hirshman weighs in
  • The ABA calls on state legislatures to legalize gay marriage.  Unfortunately, this strikes me as a chickenshit dodging of the constitutional issue, but it’s still a strong pro-gay stance.
  • International news:  progress in Costa Rica and Mexico
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