More on Perry v. Schwarzenegger

August 4, 2010

As my colleague Ron Lindsay notes in his blog entry today, Judge Vaughan Walker of the U.S. District Court for the Northern District of California today ruled that California’s Proposition 8, which withdrew same-sex couples’ legal right to marry, violates the Due Process and Equal Protection clauses of the federal constitution.  Judge Walker wrote that Proposition 8 “both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Whether this decision will survive the highly likely appeals to the Ninth Circuit and the Supreme Court remains to be seen.  Likewise, some may debate whether the decision’s publication just prior to midterm elections and California’s gubernatorial race will unify social conservatives and skew the results of the upcoming elections.

Far less open to debate is Judge Walker’s reasoning that the state constitutional amendment imposes a private moral viewpoint without a legitimate governmental interest to support it, and that the amendment violates the equal rights of gay and lesbian couples. 

Marriage equality opponents have yet to articulate a single plausible and convincing rationale for denying equal rights to their gay and lesbian friends, neighbors and relatives.  The arguments presented at trial were a disappointing rehash of the usual specious and unfounded charges that, contrary to well-established science, same sex marriages harm children, or the vague notion that same-sex marriages somehow undermine heterosexual marriages or the very foundations of society.  If we are to believe these arguments, the Commonwealth of Massachusetts has become a cesspool of broken families and general immorality since it legalized same sex marriages in 2004.  Perhaps marriage equality opponents have been too busy avoiding the state to notice that the sky above Boston has yet to fall.

Judge Walker’s opinion is refreshing in its acknowledgment of the motives underlying opposition to marriage equality.  Proposition 8 passed narrowly in a contentious referendum battle dominated by political front groups representing conservative and fundamentalist religious interests, including Catholic bishops, the Mormon church and fundamentalist Protestant churches.  Perry v. Schwarzenegger is among the few court cases to openly acknowledge the conservative and fundamentalist religious impetus behind the anti-equality movement. 

Judge Walker correctly observed that civil marriage, as opposed to the marriage sacrament, is a secular affair that cannot be subject to religious doctrine:

Marriage in the United States has always been a civil matter.  Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law. 

In his discussion of the evidence surrounding harmful stereotypes of gays and lesbians, Judge Walker quoted extensively from the testimony of expert witnesses in the case, including political scientist Gary Segura, who testified as follows:

“[R]eligion is the chief obstacle for gay and lesbian political progress, and it’s the chief obstacle for a couple of reasons. * * * [I]t’s difficult to think of a more powerful social entity in American society than the church. * * * [I]t’s a very powerful organization, and in large measure they are arrayed against the interests of gays and lesbians. * * * [B]iblical condemnation of homosexuality and the teaching that gays are morally inferior on a regular basis to a huge percentage of the public makes the * * * political opportunity structure very hostile to gay interests. It’s very difficult to overcome that.” 

Judge Walker also quoted marriage equality opponents, including Ron Prentice, CEO of the California Family Council, who had this to say about same sex civil marriages:

Prentice explains that “God has led the way” for the Protect Marriage campaign . . . [and] that “we do mind” when same-sex couples want to take the name “marriage” and apply it to their relationships, because “that’s not what God wanted. * * * It’s real basic. * * * It starts at Genesis 2.”

The Right Wing is already gearing up a smear campaign against Judge Walker, fulminating against a supposedly “activist” judge for striking down a blatantly discriminatory law that plainly lacks a legitimate government interest.   Today Gerard Bradley of the University of Notre Dame Law School offered the absurd argument in a editorial that Judge Walker’s impartiality is open to question because the judge reportedly is gay himself — as if allowing a heterosexual judge decide the fates of same sex couples would somehow yield a less biased result.  It is unclear whether Bradley would have urged Supreme Court Justice Thurgood Marshall to recuse himself from civil rights cases because he was African American.

Judge Walker’s decision faces a difficult battle on appeal.  If the case eventually makes its way to the Supreme Court, several Justices are all but certain to vote against the rights of gay and lesbian Americans, as they have done consistently in the past.  For the moment, however, proponents of marriage equality may savor a legal victory grounded in sound and cogent legal reasoning.