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Wednesday, August 4, 2010

Prop. 8 Ruling: Judge Vaughn Walker's Most Scathing Language

Posted By on Wed, Aug 4, 2010 at 4:59 PM

click to enlarge Judge Vaughn Walker's greatest hits... - MLINKSVA
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  • Judge Vaughn Walker's greatest hits...

A collection of Judge Vaughn Walker's most pointed statements from today's ruling:

During closing arguments, proponents again focused on the contention that "responsible procreation is really at the heart of society's interest in regulating marriage." When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, "you don't have to have evidence of this point."

[Think-tank founder David] Blankenhorn noted that marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be "a victory for the worthy ideas of tolerance and inclusion." Despite the multitude of benefits identified by Blankenhorn that would flow to the state, to gays and lesbians and to American ideals were California to recognize same-sex marriage, Blankenhorn testified that the state should not recognize same-sex marriage. ...

click to enlarge David Blankenhorn
  • David Blankenhorn
Blankenhorn lacks the qualifications to offer opinion testimony and, in

any event, failed to provide cogent testimony in support of proponents'

factual assertions. ... His opinion lacks reliability, as there is

simply too great an analytical gap between the data and the opinion

Blankenhorn proffered. ... Blankenhorn was unwilling to answer many

questions directly on cross-examination and was defensive in his

answers. Moreover, much of his testimony contradicted his opinions.


Hak-Shing William Tam
  • Hak-Shing William Tam

8 backer]  Hak-Shing William Tam testified that he is the secretary of

the America Return to God Prayer Movement, which operates the website

"" encouraged voters to support

Proposition 8 on grounds that homosexuals are twelve times more likely

to molest children, and because Proposition 8 will cause states

one-by-one to fall into Satan's hands, Tam identified NARTH (the

National Association for Research and Therapy of Homosexuality) as the

source of information about homosexuality, because he "believe[s] in

what they say." Tam identified "the internet" as the source of

information connecting same-sex marriage to polygamy and incest. Protect Marriage relied on Tam and, through Tam, used the

website as part of the Protect Marriage Asian/Pacific

Islander outreach.


An initiative measure adopted by

the voters deserves great respect. The considered views and opinions of

even the most highly qualified scholars and experts seldom outweigh the

determinations of the voters. When challenged, however, the voters'

determinations must find at least some support in evidence. This is

especially so when those determinations enact into law classifications

of persons. Conjecture, speculation and fears are not enough. Still less

will the moral disapprobation of a group or class of citizens suffice,

no matter how large the majority that shares that view. The evidence

demonstrated beyond serious reckoning that Proposition 8 finds support

only in such disapproval. As such, Proposition 8 is beyond the

constitutional reach of the voters or their representatives.


Proponents' counsel stated in court on Friday, January 15, 2010, that their witnesses because

they "were extremely concerned about their personal safety, and did not

want to appear with any recording of any sort, whatsoever."  The

timeline shows, however, that proponents failed to make any effort to

call their witnesses after the potential for public broadcast in the

case had been eliminated.


Kenneth Miller
  • Kenneth Miller
Plaintiffs questioned

[political scientist Kenneth] Miller on data showing 84 percent of those

who attend church weekly voted yes on Proposition 8, 54 percent of

those who attend church occasionally voted no on Proposition 8 and 83

percent of those who never attend church voted no on Proposition 8.

Plaintiffs also asked about polling data showing 56 percent of those

with a union member in the household voted yes on Proposition 8.  Miller

stated he had no reason to doubt the accuracy of the polling data.

Miller did not explain how the data are consistent with his conclusion

that many religious groups and labor unions are allies of gays and



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.



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.



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.



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.



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.

click to enlarge rainbow.png


challenge Proposition 8 under the Due Process and Equal Protection

Clauses of the Fourteenth Amendment. Each challenge is independently

meritorious, as Proposition 8 both unconstitutionally burdens the

exercise of the fundamental right to marry and creates an irrational

classification on the basis of sexual orientation.



has the state inquired into procreative capacity or intent before

issuing a marriage license; indeed, a marriage license is more than a

license to have procreative sexual intercourse.



do not seek recognition of a new right. To characterize plaintiffs'

objective as "the right to same-sex marriage" would suggest that

plaintiffs seek something different from what opposite-sex couples

across the state enjoy -- namely, marriage. Rather, plaintiffs ask

California to recognize their relationships for what they are:



That 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."



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.

Proponents' argument that tradition prefers opposite-sex couples to

same-sex couples equates to the notion that opposite-sex relationships

are simply better than same-sex relationships.

Tradition alone cannot legitimate this purported interest. Plaintiffs

presented evidence showing conclusively that the state has no interest

in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular.

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.


California's obligation is to treat its citizens equally, not to "mandate [its] own moral code."


"[M]oral disapproval, without any other asserted state interest," has never been a rational basis for legislation.



campaign relied heavily on negative stereotypes about gays and lesbians

and focused on protecting children from inchoate threats vaguely

associated with gays and lesbians.

The evidence at trial shows those fears to be completely unfounded.

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.

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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