Perry v Schwarzenegger in less than 136 pages

Citing an earlier precedent, Judge Vaughn R Walker said that just because a witness claims to be an expert does not mean that a court should accept his opinion testimony on his say-so and little else. He was referring to David Blankenhorn (pic below) who testified for the side wanting to ban same-sex marriage in a recently concluded trial in California.

Walker noted that this so-called expert provided to the court nothing “other than bald assurance” and that Blankenhorn’s investigation into marriage had not been conducted to the “same level of intellectual rigor characterizing the practice of anthropologists, sociologists or psychologists.”

Blankenhorn’s background was as a “community organizer in low income communities” with special concern for “how children were living without their fathers.” He had published two books and edited others, but none were peer-reviewed.

The judge also found that “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.”

For example, on the witness box, “Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Blankenhorn also testified he wrote and agrees with the statement ‘I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before’,” noted Judge Walker in his written judgement.

After eleven exhaustive pages recounting this witness’ testimony and discussing the value of it, the judge found that “Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.”

With that, the judge discounted one of only two expert witnesses offered by the Proponents of Proposition 8. The Proponents were defending why California should ban same-sex couples from marrying.

The case in a nutshell and who’s who

As many readers may know, in the 2008 election, Proposition 8 was on the California ballot and was passed by 52:48 percent of votes cast, de-legalising same-sex marriage, through the insertion into the California constitution of these words: “Only marriage between a man and a woman is valid or recognized in California”.

Two high-powered lawyers, Ted Olsen and David Boies organised a challenge under the United States (federal) constitution, on two counts:

Due process — meaning that the method by which this right to marry was removed was improper and unfair;

Equality under the law — the denial of the right to marry was discriminatory.

To laymen, the distinction between due process and equality may be hard to grasp, but I hope it gets clearer further on.

The parties to the case were:

Plaintiffs — two same-sex couples denied marriage licences, Zarrillo-Katami and Perry-Stier;

Plaintiff-Intervenor — the City and County of San Francisco, supporting the plaintiffs’ case;

Defendants — California Governor Arnold Schwarzenegger, Attorney-General Jerry Brown and other public officials of the state who were responsible for denying the plaintiffs marriage licences;

Defendant-Intervenors (also called Proponents) — the ProtectMarriage organisation and its five founders Dennis Hollingsworth, Gail J Knight, Marin F Guttierrez, Hak-Shing William Tam and Mark A Jansson.

The trial took place over three weeks in January and February this year with closing arguments heard in June.

Shrinking defence

The trial made for a gripping story, with a number of twists and turns. The first was the decision of the Californian government not to defend Proposition 8 and its ban on same-sex marriage. Thus, although Schwarzenegger et al were listed as defendants in court documents, they made no appearance in court.

It was thus left to ProtectMarriage to defend what they sponsored and pushed through in the 2008 ballot. Even then, there was hide-and-seek from them.

William Hak-Shing Tam (pic at right), one of those behind the ProtectMarriage campaign, wanted to be excused, giving the judge these ludicrous reasons: “I fear that I will get more publicity, be more recognizable and that the risk of harm to me and my family will increase.” This after he had spent much of 2008 giving interviews, appearing on videos and debates and generally fanning  hate against gay people. He also said, “I do not like the burden of complying with discovery requests. I do not like people questioning my private personal beliefs.” In other words, it was inconvenient to be called to account for what he did.

Unsurprisingly, the judge refused to let him withdraw.

Then the Proponents’ list of expert witnesses they intended to call shrank from a long list, then to six, and then to two. The reason offered for the last four pulling out was that they disliked the publicity from a televised trial. But even after it was ordered that the proceedings should not be televised, the dropped witnesses were not reinstated. It soon became clear what the real reasons were for their withdrawal, courtesy of plaintiffs’ lawyers Olsen and Boies.

The duo introduced into evidence video depositions (I think they got them via sub-poenas) made by three of these withdrawn witnesses from the Proponents’ original list. Two were from professors at McGill University.

According to this source, “[Paul] Nathanson and [Katherine] Young both state that equal marriage would increase family stability, improve the lives of children, and that gay men and lesbians have faced a long history of discrimination including violence. They also acknowledge broad scientific and professional consensus in favor of equal marriage.” In other words, their views contradicted the testimony they were expected to give to support ProtectMarriage’s case.

Another video deposition was from Loren Marks from Louisiana State University. He had apparently prepared a report for the court (on which he was expected to testify) that reportedly showed that the ideal family structure is for children to be raised by two married “biological” parents, which Marks said meant genetic parents. In the video, when challenged, Marks admitted that he only read parts of the studies he relied upon in making his conclusion. It was then pointed out that those studies actually defined “biological” parents in a way that included adoptive parents — not just genetic parents — and together with his admission that he had not considered any research on gay and lesbian parents, effectively rendered his research and report as fatally flawed.

In the end, the Proponents only called two expert witnesses. One was David Blankenhorn, whom the judge said was not a credible witness, as mentioned above.

The other was Kenneth Miller (pic at left), a professor of government, who was called to testify to the political power of gays and lesbians. Ultimately, Judge Walker ruled: “Having considered Miller’s background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.”

More specifically, the judge wrote in his decision his finding that Miller “has not focused on lesbian and gay issues in his research or study [and] has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians”.

The plaintiffs’ expert witnesses and the court’s findings of fact

Ted Olson and David Boies, lawyers for the plaintiffs, called nine expert witnesses. They were:

  • Nancy Cott – an expert on the history of marriage;
  • George Chauncey – on social history with special expertise on gays and lesbians;
  • Lee Badgett – on demographics and economic impact of marriage on gays, lesbians and their children;
  • Edmund Egan – on impact of prohibition on urban and regional economic policy;
  • Letitia Anne Peplau – a psychologist, on couple relationships;
  • Ilan Meyer – a social epidemiologist, on stigma and social stress affecting gays and lesbians;
  • Gregory Herek — a psychologist, on the nature of sexual orientation;
  • Michael Lamb — a psychologist, on developmental psychology of children;
  • Gary Segura — a political scientist, on the powerlessness of minority groups and gays and lesbians in particular.

The judge had no adverse comment on the qualifications, expertise and credibility of these witnesses, noting in his written decision, the highlights of the testimony they provided the court.

Plaintiffs also subpoenaed William Hak-Shing Tam as an adverse witness. They questioned him on the key messages in ProtectMarriage’s 2008 campaign, including one that implied that permitting same-sex marriage would result in turning children gay — a scare tactic. The aim of eliciting such evidence was to highlight the huge difference between what the campaign said to Californians were the reasons for banning same-sex marriage and what they were now saying to the court in their defence, as reasons why the ban should be upheld.

Bringing together the voluminous testimony of the plaintiffs’ witnesses and what little there was from the Proponents’ side, the judge made 80 findings of fact. These included:

#36. States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.

#44. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.

#46. 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.

#54. 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.

#56. The children of same-sex couples benefit when their parents can marry.

#58. 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.

#60. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples.

#66. 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. Domestic partnership reduces but does not eliminate these costs.

#67. Proposition 8 singles out gays and lesbians and legitimises 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.

#68. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships.

#70. 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. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

#71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.

#73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships.

#78. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians.

#80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.

I would highlight these particular findings of fact:

#26. Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain.

#27. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.

#28. The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage.

The conclusion that Judge Walker drew from #26 to #28 was that whereas marriage in the past depended on clear gender differentiation, it is no longer true today. In opposite-sex marriages, the woman can be the breadwinner, for example. The State now recognises marriage as a union of two equals. Since the State no longer insists on gender roles within marriage, it has no legitimate reason to insist on a particular gender pairing.

Meanwhile the entire body of evidence used in the trial can be found here.

Should the case be appealed, appeal courts will be unlikely to invalidate findings of fact. This is because appeal courts, unlike trial courts, do not have the opportunity to hear directly from witnesses, noting their demeanour, etc, necessary to form judgements about their credibility. The practice of appeal courts being deferential to trial courts’ findings of fact has a long history.

Findings of law

Pages 109 to 136 of the judgement discussed the findings of law. Unlike findings of fact, findings of law are often at the centre of appeal deliberations.

On due process:

“Due process,” wrote the judge, “protects individuals against arbitrary governmental intrusion into life.” The question is thus whether Prop 8 was arbitrary. To answer this, courts enquire,  for any given piece of legislation (or in this case, a constitutional amendment enacted through referendum), what legitimate interest the State has to justify intrusion. In American jurisprudence, but also nowadays applied in other jurisdictions, at least two tests have evolved: Rational Basis Review and Strict Scrutiny.

Rational Basis Review simply asks whether there is a rational basis and legitimate reason for the the legislation.

Strict Scrutiny is applied when it can be shown that the proposed infringement is upon a fundamental right. In such a situation, there must be a compelling State interest before the State can circumscribe the right. “When legislation burdens the exercise of a right deemed to be fundamental, the government must show that intrusion withstands strict scrutiny,” reminded the judge.

Neither side disputed that the right to marry was a fundamental right. The only question that remained was “whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.”

Drawing from the testimony of expert witnesses, the judge found that “The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.  Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.” With regard to gender especially, “The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.”

Ted Olson himself explains it in this video, four days after the judgement:

Other commentators have described Walker’s interpretation of the right to marriage as expansive, and wondered if appeal courts would agree with the way he has framed the meaning of marriage. We shall see.

Nonetheless, Judge Walker ruled that not only did Proponents fail to demonstrate a compelling State interest in banning same-sex marriage (a condition for withstanding strict scrutiny, the usual test for any infringement of a fundamental right), they even failed to surmount the lower bar — rational basis review. Consequently, Proposition 8 was unconstitutional under the due process clause.

On equality under the law:

Many laws classify people, with the law operating on those who meet certain criteria and not others. Generally, courts will uphold them as long as they are “rationally related to some legitimate government interest,” i.e. as long as they withstand the test of rational basis review, bearing in mind that “The classification itself must be related to the purported interest,” as the judge wrote in his decision.

But when the classification inherent in a law targets a group that historically has suffered discrimination (what is known as a suspect classification), then courts apply strict scrutiny. The State must be able to demonstrate what compelling interest it has to classify people in that way for the purposes of that legislation.

“The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present. . .  the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.”

Yet there is a problem, although he didn’t quite say so in his written decision. There has not yet been any Supreme Court precedent that established gays and lesbians as a suspect classification deserving of  strict scrutiny. On the other hand, there was no need to. As the judge pointed out, “Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review,” failing to find any legitimate reason for the State to deprive them, and their children, of social recognition, happiness, and legal and economic benefits.

At some point in the trial, the Proponents argued that the wording of Proposition 8 did not classify along the lines of sexual orientation and therefore the court should not impute this suspect classification scheme to it. Contesting that, plaintiffs’ lawyers demonstrated that during the Prop 8 campaign,  California citizens knew very well from ProtectMarriage’s advertising that they were referring to homosexual persons. This classification was very much implied in the campaign materials, and understood by its intended audience. (See also the bit about William Hak-Shing Tam’s testimony above). The judge appeared to rebuke the proponents for attempting this line of defence when he wrote: “proponents seek to mask their own initiative.”

The Proponents had offered some other arguments in favour of the ban. These included:

  • Procreation — but “States have never required spouses to have an ability or willingness to procreate in order to marry,” wrote the judge, dismissing this defence.
  • Tradition — but the judge ruled that “Tradition alone, however, cannot form a rational basis for a law. . . Rather, the State must have an interest apart from the fact of the tradition itself.”
  • Promoting opposite-sex parenting over same-sex parenting — but based on the findings of fact that same-sex parents do as well in parenting as opposite-sex parenting, the judge said this cannot be a legitimate reason for the State to prefer one over the other.
  • Domestic partnership provision for same-sex couples is sufficient to fulfill equal protection analysis — from findings of fact again, the judge ruled that it was not, there being many advantages — economic, social and cultural — accruing to marriage, not available from domestic partnership.

What’s next?

Supporters of Proposition 8 have vowed to appeal Walker’s decision. This may yet happen, but observers have already raised an interesting question: Do the Proponents even have standing to appeal? Technically, the defendants in this case were Governor Schwarzenegger, Attorney-General Jerry Brown et al, in their official positions, but both Schwarzenegger and Brown hailed Walker’s decision. They don’t want to appeal.

It will up to the Ninth Circuit Court of Appeal to decide if the Proponents have standing to appeal though the precedents in Arizonans for Official English v Arizona 1997 and Diamond v Charles 1986 may prove hard to overcome. If standing is granted, expect the Proponents to argue that Judge Walker was entirely wrong in his judgement on one simple ground: He ignored a controlling precedent from the case of Baker v Nelson 1972. In that very similar case, the Minnesota Supreme Court had upheld Minnesota’s denial of a marriage licence to a same-sex couple. The US Supreme Court dismissed the appeal “for want of a substantial federal question.” A websearch will provide more details of these precedent cases.

More twists and turns seem likely.



6 Responses to “Perry v Schwarzenegger in less than 136 pages”


  1. 1 Chas Belov 17 August 2010 at 15:16

    A fine summary of what I’ve been reading over the past several days. As you may know, Walker’s decision has been stayed at least until December, and the proponents will have to defend themselves on the issue of standing.

  2. 3 beast686 17 August 2010 at 20:42

    Nonsensical. That’s all there is to it.

    If marriage to lead to babies………why are childless heterosexual couples (either by choice or forced by circumstances) still allowed to be married?

    The argument based on tradition is the worst. I supposed feet-binding for women should be enforced because it is…traditional?

  3. 4 Teck Soon 18 August 2010 at 10:21

    This was quite an insightful and educational article. I like the fact that judges can overrule even the majority of voters who passed the law in the American system, if the voters try to pass an unconstitutional law.

  4. 5 mystykyl 18 August 2010 at 18:04

    Surely a contrast to the local initiative to repeal S377A which died on the basis that society is not yet ready to accept it, nevermind the argument of fundamental rights and constitution

  5. 6 Oscar Fry 18 August 2010 at 20:57

    Thank you for this article. Aside from gay marriage, the case was also important for the way it looked at a large volume of of evidence on the subject of homosexuals and subjected it to the rigors of cross examination. The scare stories, misinformation and lies (in other words propaganda) about gays broadcast by the religious groups behind Prop8 were proved to be just that. William Tam, a leading local evangelist, refused even to say whether he believed his own propaganda, which raises the question of the integrity of such people.

    How about relating this to other countries, where some such groups appear to have a death grip on official policy toward homosexuals – from censoring positive portrayal in the media and in education, in the mistaken belief that to do otherwise will influence people to “become” gay – to criminalizing a whole law-abiding section of the community for who they are.

    It seems groups similar to those behind Prop8 have succeeded in such places to prevent any view other than their own reaching the general public. Any voice raised against them to counter stereotypes and lies is portrayed as someone who wants to promote homosexuality, as if it were a product that you could just choose one day, or as who wants to corrupt their children. Catch 22.

    Another important issue the case addressed was that the Constitution is there to protect minorities from the tyranny of the majority. If a majority has some kind of “moral” disapproval of a minority group they cannot simply pass laws to disadvantage that minority, or criminalize them. These are issues of common decency and fairness, and of treating all citizens equally.

    Where a government sides with a misinformed majority against a disadvantaged minority for whatever reason, they are shirking their responsibility to treat all citizens fairly and equally.


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