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Prop 8 Based on Lies, Fears and Propaganda

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This post first appeared on Open Left.

When you argue based on fear, you can win at the ballot box, but you will lose in court.  That's the bottom line of the district court decision overturning Proposition 8--and of a comprehensive new report on the Propositon 8 election campaign, which focused specific attention on the role of fear generated by false charges that school children would be impacted.  (More on the report below.)

From the end of the decision:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment. CONCLUSION 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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Proposition 8 was overturned because of the facts--including the facts surrounding the resort to unfounded fears, which do not provide a rational basis for discriminatory state action under our Constitution (about which, the right as a whole understands virtually nothing). This is how the federal court system works: The district courts--trial courts--are finders of facts.  This is the only place where Justice Roberts' claim to be an "umpire calling balling and strikes" makes any sense.  Above and beyond this level, arguments overwhelmingly address matters of law and questions of proper application.  The trial court's findings of fact enjoy a heavy presumption that is rarely questioned, which is a strong reason to believe that the ruling will stand on appeal.  It also doesn't hurt that the ruling relies on citations to previous rulings by Justice Kennedy.  Presuming Kennedy feels that he has been correctly cited, it seems unlikely that he would join his more conservative colleagues in overturning this finding of fact by arguing that the judge got the law wrong.

As Andrew Koppelman explained in the NY Times:

[I]f the Supreme Court reverses the district court's decision that same-sex couples have a right to marry, it will have to do it in the teeth of Judge Walker's factual findings that same-sex marriage is good for gay people and the children they raise (one out of five same-sex couples in California are raising children), that there are no discernible differences between same-sex and opposite-sex couples, that "domestic partnerships" offer fewer benefits than marriage and irrationally stigmatize same-sex relationships as inferior, that recognition of same-sex couples' right to marry does no detectable harm to heterosexual marriages, and that the campaign for Proposition 8, which outlawed same-sex marriage in California, relied on prejudice and vicious anti-gay stereotypes, such as the idea that gay people are dangerous to children. Judge Walker carefully avoided resting his holding on any controversial proposition of law, such as the idea that gay people should be regarded as a specially protected minority under the Fourteenth Amendment. Instead, he relied on law already laid down by the Supreme Court. He held that Proposition 8 lacked a rational basis, because the "facts" that were invoked in its defense were manifestly false.

It's been noted by many others as well as Koppelman that there was a long list of factual findings by judge in his ruling.  But I'd like to focus on some key parts of the ruling that bring forth what seem to be the most crucial of them--the overwhelming preponderance of evidence from the plaintiffs, and the basic agreement of the proponent's key witness that gay marriage would be good for those whe were married, plus the implausibility that any harm to the state would result.

I'm quoting here from a key part of the ruling, where Judge Walker describes the imbalance and insufficiency of evidence and highlights the key questions that matters of fact must answer:

Plaintiffs presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses. Proponents' evidentiary presentation was dwarfed by that of plaintiffs. Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs' expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.Although the evidence covered a range of issues, the direct and cross-examinations focused on the following broad questions:

WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA'S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX;

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS; and

WHETHER THE EVIDENCE SHOWS PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST.

Framed by these three questions and before detailing the court's credibility determinations and findings of fact, the court abridges the testimony at trial: ....

Of that abridged testimony, what stands out as key was simply that plaintiffs established the realworld significance of what was at stake in terms of the broad sweep of history (personal significance was dealt with elsewhere).  In contrast, Prop 8 proponents not only failed to undermine this factual record, their own expert witness, David Blankenhorn (whose credentials were pitilessly scrutinized elsewhere in the decision), actually ended up agreeing that allowing same-sex marriage would have beneficial effects, with only speculative harms.

First the differences in testimony are laid out:

Plaintiffs and proponents presented expert testimony on the meaning of marriage. Historian Nancy Cott testified about the public institution of marriage and the state's interest in recognizing and regulating marriages. Tr 185:9-13. She explained that marriage is "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 their agreement to join in an economic partnership and support one another in terms of the material needs of life." Tr 201:9-14. The state's primary purpose in regulating marriage is to create stable households. Tr 222:13-17.Think tank founder David Blankenhorn testified that marriage is "a socially-approved sexual relationship between a man and a woman" with a primary purpose to "regulate filiation." Tr 2742:9-10, 18. Blankenhorn testified that others hold to an alternative and, to Blankenhorn, conflicting definition of marriage: "a private adult commitment" that focuses on "the tender feelings that the spouses have for one another." Tr 2755:25-2756:1; 2756:10-2757:17; 2761:5-6. To Blankenhorn, marriage is either a socially approved sexual relationship between a man and a woman for the purpose of bearing and raising children who are biologically related to both spouses or a private relationship between two consenting adults.
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Cott explained that marriage as a social institution encompasses a socially approved sexual union and an affective relationship and, for the state, forms the basis of stable households and private support obligations.

But then the focus begins shifting toward bringing out similarities:

Both Cott and Blankenhorn addressed marriage as a historical institution. Cott pointed to consistent historical features of marriage, including that civil law, as opposed to religious custom, has always been supreme in regulating and defining marriage in the United States, Tr 195:9-15, and that one's ability to consent to marriage is a basic civil right, Tr 202:2-5.Blankenhorn identified three rules of marriage (discussed further in the credibility determinations, section I below), which he testified have been consistent across cultures and times: (1) the rule of opposites (the "man/woman" rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25. Cott identified historical changes in the institution of marriage, including the removal of race restrictions through court decisions and the elimination of coverture and other gender-based distinctions. Blankenhorn identified changes that to him signify the deinstitutionalization of marriage, including an increase in births outside of marriage and an increasing divorce rate.

Both Cott and Blankenhorn testified that California stands to benefit if it were to resume issuing marriage licenses to same-sex couples. 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." Tr 2850:12-13. 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. Blankenhorn reasoned that the benefits of same-sex marriage are not valuable enough because same-sex marriage could conceivably weaken marriage as an institution. Cott testified that the state would benefit from recognizing same-sex marriage because such marriages would provide "another resource for stability and social order." Tr 252:19-23.

The decision continues by expanding to include other expert testimony, and to indicate differences in credibility:

Psychologist Letitia Anne Peplau testified that couples benefit both physically and economically when they are married. Peplau testified that those benefits would accrue to same-sex as well as opposite-sex married couples. To Peplau, the desire of same-sex couples to marry illustrates the health of the institution of marriage and not, as Blankenhorn testified, the weakening of marriage. Economist Lee Badgett provided evidence that same-sex couples would benefit economically if they were able to marry and that same-sex marriage would have no adverse effect on the institution of marriage or on opposite-sex couples.As explained in the credibility determinations, section I below, the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable. The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.

Toward the end of the decision--and running into the passage I quoted earlier, Judge Walker addresses the irrational foundations of the fear-based Prop 8 campaign:

Proponents' purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something "wrong" with same-sex couples. See FF 78-80.The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. FF 79-80. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. FF 79-80; See PX0016 Video, Have You Thought About It? (video of a young girl asking whether the viewer has considered the consequences to her of Proposition 8 but not explaining what those consequences might be).

At trial, proponents' counsel attempted through crossexamination to show that the campaign wanted to protect children from learning about same-sex marriage in school. See PX0390A Video, Ron Prentice Addressing Supporters of Proposition 8, Excerpt; Tr 132:25-133:3 (proponents' counsel to Katami: "But the fact is that what the Yes on 8 campaign was pointing at, is that kids would be taught about same-sex relationships in first and second grade; isn't that a fact, that that's what they were referring to?"). The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual. FF 79; PX0099 Video, It's Already Happened (mother's expression of horror upon realizing her daughter now knows she can marry a princess).

The testimony of George Chauncey places the Protect Marriage campaign advertisements in historical context as echoing messages from previous campaigns to enact legal measures to disadvantage gays and lesbians. FF 74, 77-80. The Protect Marriage campaign advertisements ensured California voters had these previous fear-inducing messages in mind. FF 80. The evidence at trial shows those fears to be completely unfounded. FF 47-49, 68-73, 76-80.

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.


This brings us to the report I mentioned in the introduction.

Here is an excerpt from the report's abstract:

This report also puts Prop 8 in context, and notes its remarkable similarity to other same-sex marriage campaigns. Prop 8 illustrates three patterns-two dysfunctional, one functional--that define much of the LGBT struggle with ballot measures since they first cropped up in the 1970s. The first pattern is that anti-gay forces know how to exploit and stimulate anti-gay prejudice, and the LGBT community has difficulty facing and responding to the attack. Recycling a lie as old as Anita Bryant's "Save Our Children" campaign in 1977, the anti-gay Yes on 8 campaign whipped up fears about kids to move voters to its side. In the final six weeks of the campaign, a minimum of 687,000 voters moved towards favoring the ban the on same-sex marriage. The voters who most dramatically moved toward the ban were not African-Americans or Republicans. Those who moved were largely part of the pro-LGBT base that got peeled away, particularly parents and voters of parenting age. In the closing weeks, almost three-quarters of the net movement toward the ban-approximately 500,000 voters-were parents with children under eighteen living at home. Other voters who also moved away in big numbers were white Democrats, Independents, and voters in the greater San Francisco Bay area. Yes on 8's fear-mongering about children was particularly effective because No on 8 waited sixteen of the thirty days remaining until the election was over to directly respond. Once No on 8 responded directly in its TV ads, it made up some of the ground lost earlier.

Think Progress notes:

Interestingly, the argument is so effective because it's so familiar. Societies have long used children to deny rights to minority groups. Medieval anti-Semitism portrayed Jews as animals bent on destroying the children of the majority and accused them of murdering Christian babies in ritual sacrifices. In the late 1970s anti-gay crusader Antia Bryant organized a "Save Our Children" against a nondiscrimination ordinance in Florida, warning that "a particularly deviant-minded [gay] teacher could sexually molest children."It's always been about the children and history suggests that as gay people become more prominent in society and this argument loses currency, it will be transfered to a different minority group.

Indeed, the same pattern was seen with respect to racial segregation.  The NAACP legal strategy to overturn Plessy took account of this, and began by challenging segregation at the graduate school level, knowing that it was a sure loser to try to begin with grade-school classrooms. It's always about the children.  They are the ones who must be "protected", who must be "carefully taught":

You've got to be taught to hate and fear
You've got to be taught from year to year
It's got to be drummed in your dear little ear
You've got to be carefully taught

You've got to be taught to be afraid
Of people whose eyes are oddly made
And people whose skin is a different shade
You've got to be carefully taught

You've got to be taught before it's too late
Before you are six or seven or eight
To hate all the people your relatives hate
You've got to be carefully taught
You've got to be carefully taught

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