05 August 2010

A trial court ruling

Yesterday, both the governor and attorney general of California filled briefs with the trial court. The briefs asked that the court deny the application for a stay of effect pending appeal and permit lesbian / gay couples to marry immediately. The briefs made several points in common:

  • The court ruled correctly.
  • The petitioner expects that the ruling will be upheld.
  • The costs of returning to status quo ante were the appeal to succeed are not a major burden.

The prospects for "prop 8" are increasingly dim. It is my opinion, remember I am an analyst not a lawyer, that if the decision holds up, DOMA must fall. I cannot conceive of a logical basis for continuing DOMA or for that matter "Don't Ask - Don't Tell" if the decision stands. 

Constitutional legal opinions do not just happen. They are built on several defined sections. First and foremost is a finding of fact. That is, the court has to determine what the facts are. Then it decides how those facts and the relevant constitutional rules interact. While an appellate court either at the circuit or supreme level may conclude that the reasoning of the second section is flawed, that the constitution has not been correctly applied, it is almost unheard of for a court to dismiss the finding of fact.

After all the judge or jury making the finding is in the room hearing the testimony. Unless the trial court erred by not allowing testimony or evidence into the record, findings of fact tend to be accepted on appeal. Only if over time new information arises is it likely that a finding will be overturned.

Which matters because Judge Walker, like any constitutional scholar, included in his decision a finding of fact. And that section is devastating to the arguments against marriage equality. The summary from his decision is:
1. "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."

2. "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."

3. "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."

4. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

5. "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."

6. "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."

7. "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."

8. "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."

9. "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."

10. "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."

So, what do we have here? We have nearly complete dismissal of the alleged rational basis for denying marriage equality. Almost certainly, given the testimony from which they arose, these findings will stand as the factual record. What supporters of inequality are left with is, "the Bible told me so."

There are of course some real problems with that argument. First the Bible is not a constitutional document. In fact the fifth amendment explicitly denies Congress the power to make it so. And the fourteenth makes that denial effective for States and local governments. Second the Biblical case is a lot weaker than its proponents will admit. In fact, many believers in the Bible and either Judaism or Christianity come to very different conclusions.

Judge Walker demolished the secular basis claimed by proponents of Prop 8 and in doing so laid the factual record for the eventual dismantling of similar laws across the country. His finding in fact clearly leaves only three lines of attack. First successfully argue on appeal that the decision does not flow from the facts and the constitution. Second the production of new data which invalidates his first, sixth and tenth points. Third the development of a rationale for discrimination based on the finding and additional facts.

In the first case the carefully argued decision is going to be hard to overturn. Only if the court finds that there is no human right to marry which is going to be a stretch does this seem reasonable. For the second, the trial record which shows the court almost begging for data and the failure to produce it by the defense is going to be a major problem, In the third case, I think such a case almost must stand on alleged biblical views and therefore fail in a secular court. So, my hunch is that this finding of facts is going to stand. If it does then the case will likely be the landmark in the move to marriage equality.

My guess is the exclusion minded will never concede the argument. In a sense I think that is OK. After all, nothing should compel the Roman Catholic or LDS clergy to perform same gender marriages.
But the secular law should not reflect religious teaching.



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JimB said...

Your English is not a problem. You would likely be disappointed to hear what passes for English conversation here where we claim we are native speakers.

Drop by and post an opinion any time.


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