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Wednesday, June 26, 2013

Prop. 8: Revisiting Judge Vaughn Walker's Masterpiece

Posted By on Wed, Jun 26, 2013 at 10:33 AM

click to enlarge Judge Vaughn Walker's "masterpiece" will be read for years to come
  • Judge Vaughn Walker's "masterpiece" will be read for years to come

When Judge Vaughn Walker in 2010 delivered his legal masterpiece, meticulously putting foes of same-sex marriage into clown suits, many smart folks predicted its 15 citations of Justice Anthony Kennedy's own rulings would make it difficult for the Supreme Court's swing vote to disagree with himself.

In a manner, that turned out to be so. But when Chief Justice John Roberts wrote the majority opinion overturning Proposition 8 and clearing the path for same-sex marriage in this state, he instead relied on one of his favorite legal maneuvers: ruling the plaintiffs lacked standing to bring the suit.

In any event, the future of same-sex marriage is complicated -- though extremely bright. In this state, wedding bells may ring in less than a month's time. Perhaps it's worth another look at the ruling that made this so.

See Also: Supreme Court Paves Way for California Same-Sex Marriage

If you're a supporter of same-sex marriage and haven't actually read Walker's ruling, you probably should. For one thing, it's actually a riveting read. And, until you do so, you won't realize how thorough a razing it was of the forces aligned to oppose same-sex marriage -- and how many of their post-facto lamentations about the ruling revealed they never seemed to get their heads around the fact that these arguments had been roundly rejected in a court of law.

Again -- read the ruling. But, because it's the Internet, here are a few of the most hard-hitting of Walker's points:


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."


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.


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.


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:




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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