The Prop 8 Decision: The Findings of Fact (Everything We Should Learn From This Trial)

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I want to begin my coverage of the Prop 8 decision (Read it on Scribd) with the Findings of Fact. This is the series of 80 points Judge Walker used to organize the multitudes of information in the case. Note that these are not all the ideas that were presented in the case; these are the facts used in the decision.

These concise points address the information presented in trial amazingly. They are straight-forward and compelling. Here is, essentially, what everyone should learn from this trial. The facts stack up nicely, but get particularly interesting—I think—starting down at #38.

All emphasis in green is my own and I have omitted citations for ease of reading,  but page numbers are provided. I have included the whole list, but I think people ought to pay particular attention to the following: 38, 39, 41, 43, 44, 46, 48, 50, 54, 55, 56, 58, 62, 66, 67, 70, 71, 72, 76, and 77; I have highlighted those numbers as facts I think are particularly compelling and noteworthy.

Let’s dig in (p. 54).

The Players

The first 13 or so facts simply outline the players in the case (many of whom are players in name only). Scroll over each for a description: Kristin Perry and Sandra Stier, Paul Katami and Jeffrey Zarrillo, San Francisco, Arnold Schwarzenegger, Edmund G Brown, Jr, Mark B Horton, Linette Scott, Patrick O’Connell, Dean C Logan, and the Defendant-Intervenors.

Now we learn a little bit more about who these folks are who promoted Proposition 8:

14. Proponents dedicated substantial time, effort, reputation and personal resources in campaigning for Proposition 8. (p. 57)

15. Proponents established ProtectMarriage.com —— Yes on 8, a Project of California Renewal (“Protect Marriage”) as a “primarily formed ballot measure committee” under California law. (p. 57)

16. The Protect Marriage Executive Committee includes Ron Prentice, Edward Dolejsi, Mark A Jansson and Doug Swardstrom. Andrew Pugno acts as General Counsel. David Bauer is the Treasurer and officer of record for Protect Marriage. (p. 57)

17. Protect Marriage was responsible for all aspects of the campaign to qualify Proposition 8 for the ballot and enact it into law. (p. 58)

18. Protect Marriage is a “broad coalition” of individuals and organizations, including the Church of Jesus Christ of Latter-Day Saints (the “LDS Church”), the California Catholic Conference and a large number of evangelical churches. (p. 59)

This description of Protect Marriage is important. It recognizes who was involved, what they tried to do, and how they were financially supported.

Should California Refuse to Recognize A Couple’s Marriage Because Of Their Sex?

19. 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. (p. 60)

20. A person may not marry unless he or she has the legal capacity to consent to marriage. (p. 60)

21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate. (p. 60)

Given that the entire case is about the right to marry, Walker walks us through the way that marriage is defined and has been defined throughout history.

22. When California became a state in 1850, marriage was understood to require a husband and a wife. (p. 61)

23. The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained. (p. 61)

24. Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other. (p. 61)

25. Racial restrictions on an individual’s choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967. An individual’s exercise of his or her right to marry no longer depends on his or her race nor on the race of his or her chosen partner. (p. 62)

26. Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain. (p. 62)

27. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family. (p. 63)

28. The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage. (p. 64)

We can see how other forms of identity were used in defining marriage in the past.

29. In 1971, California amended Cal Civ Code § 4101, which had previously set the age of consent to marriage at twenty-one years for males and eighteen years for females, to read “[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage.” (p. 65)

30. In the 1970s, several same-sex couples sought marriage licenses in California, relying on the amended language in Cal
Civ Code § 4101. In response, the legislature in 1977 amended the marriage statute, former Cal Civ Code § 4100, to read “[m]arriage is a personal relation arising out of a civil contract between a man and a woman * * *.”  That provision became Cal Fam Code § 300. The legislative history of the enactment supports a conclusion that unique roles of a man and a woman in marriage motivated legislators to enact the amendment. (p. 65)

The “tradition” of one-man/one-woman marriages is very much founded upon not just gender roles, but gender inequality.

31. In 2008, the California Supreme Court held that certain provisions of the Family Code violated the California Constitution to the extent the statutes reserve the designation of marriage to opposite-sex couples.  The language “between a man and a woman” was stricken from section 300, and section 308.5 (Proposition 22) was stricken in its entirety. (p. 66)

32. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman. (p. 66)

This is an important question. If all the other changes to marriage have removed gender imbalances, why does California still require a man and a woman?

33. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality. (p. 66)

34. Marriage is the state recognition and approval 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 dependents. (p. 67)

35. The state has many purposes in licensing and fostering marriage. Some of the state’s purposes benefit the persons married while some benefit the state: (p. 67-68)

Here Judge Walker offers six benefits: a) cohesive family units, b) liberty, intimacy, and free decision-making for spouses, c) stable households, d) legitimating children, e) assigning care-providers, and f) facilitating property ownership.

36. States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs. (p. 68)

37. Marriage creates economic support obligations between consenting adults and for their dependents. (p. 68)

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. (p. 69)

Number 38 is important, because it’s the first (of many to come) that establishes psychological and sociological research as facts in the case. Here are a few more:

39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses. (p. 70)

40. The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity. (p. 70)

41. The tangible and intangible benefits of marriage flow to a married couple’s children. (p. 71)

I think it’s pivotal that the decision recognizes the intangible benefits of marriage.

Should California Differentiate Between Same-Sex and Opposite-Sex Unions?

This section outlines a lot of important history about the gay community as well as information about same-sex couples. Important definitions are entered into the record as fact regarding the nature of sexual orientation.

42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century. (p. 71)

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. (p. 71-72)

YES! Sexual orientation refers to which sex a person is attracted to, not which sex a person is attracted to in reference to their own.

44. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence. (p. 72)

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals. (p. 73)

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. (p. 74)

I think there is incredible power in the stipulation of these qualities as facts. This essentially puts the legal kibosh (for the sake of at least this particular ruling) on any debate about whether sexual orientation is a choice.

47. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California. (p. 76)

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. (p. 77)

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children. (p. 78)

50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive. (p. 79)

51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals. (p. 79)

This kind of makes me laugh, but also makes me sad for all the sham marriages out there motivated by internalized homophobia.

Domestic Partnerships

One could easily insert “civil union” for DP in each of these statements and the same would be true. But, California has never had civil unions.

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. (p. 80)

53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government. (p. 81)

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. (p. 82)

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. (p.83)

56. The children of same-sex couples benefit when their parents can marry. (p. 84)

Did Prop 8 Enact a Private Moral View Without Advancing a Legitimate Government Interest?

57. Under Proposition 8, whether a couple can obtain a marriage license and enter into marriage depends on the genders of the two parties relative to one another. A man is permitted to marry a woman but not another man. A woman is permitted to marry a man but not another woman. Proposition 8 bars state and county officials from issuing marriage licenses to same-sex couples. It has no other legal effect. (p. 85)

58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society. (p. 85)

59. Proposition 8 requires California to treat same-sex couples differently from opposite-sex couples. (p. 86)

60. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples. (p. 86)

61. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage. (p. 87)

62. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples. (p. 89)

63.  Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. (p. 90)

64. Proposition 8 has had a negative fiscal impact on California and local governments. (p. 90)

65. [The City and County of San Francisco] would benefit economically if Proposition 8 were not in effect. (p. 91)

66. Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs. (p. 91)

67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents. (p. 93)

68. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships. (p. 94)

Yes, the stigma against same-sex couples is now part of court record.

Same-Sex Couples as Parents

69. The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) the availability of economic and social resources. (p. 94-95)

70. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. (p. 95)

Seriously, read that one again. Not only does the evidence show that same-sex couples make good parents, but the question is not even up for debate.

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted. (p. 95)

72. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes. (p. 96)

73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. (p. 96)

Discrimination Against Gays and Lesbians

74. Gays and lesbians have been victims of a long history of discrimination. (p. 96)

75. Public and private discrimination against gays and lesbians occurs in California and in the United States. (p. 97)

76. Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes. (p. 98)

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. (p. 101)

78. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians. (p. 103)

Can you feel the validation, folks?

79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that  parents should dread having a gay or lesbian child. (p. 105)

80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships. (p. 108)

So there you have it! THOSE ARE THE FACTS. If you have any question as to why this decision is what it is, it should be answerable by those facts. If you don’t like those facts, tough. You cannot disagree with them; they are facts.

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There are 15 Comments to "The Prop 8 Decision: The Findings of Fact (Everything We Should Learn From This Trial)"

  • Buffy says:

    I’m enjoying the explosions of bigot heads across the country. Oh, how persecuted they are because their lies and fearmongering didn’t stand up in court. Where’s my tiny violin…?

  • Thanks for taking the time to break down the ruling this way — makes me actually proud of the judge and the U.S legal system. It’s been a long painful road but in a way, this ruling makes me (almost) glad Prop. 8 passed…just so it could get such a hard legal and factual smackdown.

  • Julian Chang says:

    Thanks Zack for a brilliant and clear explanation of the relevant Findings of Fact. If we win on appeal at the 9th Circuit and/or the Supreme Court it will be because of the tight, kevlar-like recitation of FACTS by Judge Walker. You have helped our understanding of a complex case immensely with your cogent annotations.

  • Patt Griggs says:

    My 15 years of engagement to my partner is an example of pure discrimination. Sadly, we’l deal with several more years living here in Georgia. Thank you for breaking down the ruling. I had heard that Judge Walkers opinion was a slam dunk and extremely well thought out. Now I know it’s true. This will pass the 9th District Court of Appeals, so we need to prepare ourselves now for a SCOTUS battle that is sure to come

  • David Diel says:

    Point 19 is factually incorrect, and it represents a recent power grab by civil society of what used to be a religious practice. Both heterosexual and homosexual couples should be granted civil unions by the government, and marriages by their preferred minister of whatever group they belong to.

  • ZackFord says:

    You seem caught up on the word, David, but number 19 is still correct. The government does not in anyway sanctify a marriage contract; it is a strictly legal document. While marriage to you might only mean a religious contract, marriage in the United States also refers to the civil contract, and always has.

  • David Diel says:

    The very existence of “common law marriage” is acknowledgement enough that people have not always asked the government to provide the legal document or contract. I’ve known a number of people who never filed the paperwork, in some cases simply to avoid the fee. Ironically, I think you agree that a civil [whatever] should be offered to both heterosexual or homosexual couples, without any distinction under the law.

    However, the statement “Civil law has always been supreme in defining and regulating marriage.” (p.60) is not a historical fact. It only takes one counterexample…

    The point is that there is a civil [whatever] and there are several religious groups that do define and regulate who among them can get the religious marriage. And, at least some of them consider their version of the religious marriage to be supreme.

    In terms of words, I think the most rational assignment for [whatever] is “union”.

  • ZackFord says:

    I think your point makes perfect sense outside the courtroom. But the court has no jurisdiction over religious faith anyway, and so for the sake of Judge Walker’s decision, what he said was true. Any other definition or interpretation of “marriage” beyond the government’s understanding of civil marriage is completely irrelevant.

    Your example of common-law marriages actually confirms Judge Walker’s point that marriage is something defined by the government. Common-law marriages are a perfect example of how the government defines marriage even when its citizens elect not to!

    Your quote is also not what Judge Walker said in the ruling, but an excerpt of what Nancy Cott said in her testimony. You omitted the part that followed about how it is the validity of marriages that is determined by the law, not the marriage itself.

    Marriage/union/etc. equality would probably be easier if the word marriage were nowhere in our laws. But it is and always has been. In discussing civil marriage, Judge Walker’s Fact 19 is true.

  • David Diel says:

    “Any other definition or interpretation of “marriage” beyond the government’s understanding of civil marriage is completely irrelevant.” — Just keep telling yourself that.

  • ZackFord says:

    …[to the court of law].

    You are welcome to continue to ignore the context of what you read, but for the sake of your own education, I would encourage you to not hold so tightly to the beliefs that you hold. Please discontinue trolling this thread with incomplete/inaccurate quotes.

  • David Diel says:

    The context is right there, on your blog, directly above the quote.

    I’m not arguing from a beliefs perspective. I’m actually interested in de-conflicting definitions of a term that you know is defined differently by other people. But, you are so interested in educating everyone about the one true superior definition that you have turned to demonizing your audience. Whatever, dude.

  • Very nice article here. It is very interesting to me to read how law is actually drawn out and argued over there. I have a lot of lawyer/law student friends so I have actually got a bit of understanding of British law. American law is actually a lot more complicated because you have both national and state laws to define. Also David, Zack is right on this – You are doing the exact same thing creationists do when the word Theory is used.

  • Colt says:

    As always, thanks so much for taking it upon yourself to read and analyze this long (and wonderful!) document. At some point I definitely want to read it for myself, but I always look forward to reading your detailed take on these writings!

  • oscar says:

    I’m really excited about the ruling and I think all its findings of “fact” are true and it’s powerful and happy that they made it into the ruling, but on the other hand you seem to be confused exactly about what a “finding of fact” in a ruling means.

    Like, when you say “you can’t disagree [with the facts], because they’re facts.” That’s not technically true–these aren’t facts in the same way an encyclopedia would contain facts that aren’t really open to question. In a legal document like this ruling, the judge may be talking about “questions of law” or “questions of fact”, so any finding the court makes that isn’t a legal finding (an interpretation of an existing law, not its application to a set of facts), is called a “statement of fact.” The court, however, is not declaring all these findings to be facts in the same way an encyclopedia contains facts. It is merely saying that based on the weak case presented by the Prop 8 proponents and the thorough case presented by the opponents, the questions of fact were argued convincingly by the opponents and not -so-convincing by the proponents.

    But anyways, this is just a legal nuance, I share your excitement that this is a really well-written and powerful legal ruling and a cause to celebrate in the United States.

  • oscar says:

    P.S. it is true, however, that these findings of fact WON’T be open to question in an appeal unless they are found to be “clearly erroneous” which is a high standard for prop 8 proponents to meet, so it seems unlikely that the findings will be overturned on appeal.

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