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.
8 backer] Hak-Shing William Tam testified that he is the secretary of
the America Return to God Prayer Movement, which operates the website
"1man1woman.net." 1man1woman.net 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 1man1woman.net as part of the Protect Marriage Asian/Pacific
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.
[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.
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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