Prop 8 Overturned: The Facts, Not the Law, Matter

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Here's what you need to know about Judge Vaughn Walker's decision invalidating California's Proposition 8, a referendum passed by voters that banned same-sex marriage. The decision itself will be appealed, and Walker's reasoning could serve as the basis for argument at the appellate level -- or, the appeals court could decide to argue the case a completely different way.

What matters are the facts that Walker finds. Why? As Chris Geidner notes, "[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker's findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous."

Walker, in his decision, writes that "Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license." He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values:

Blankenhorn's testimony constitutes inadmissible opinion testimony that should be given essentially no weight," Walker writes. "Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.

Here are the relevant facts Walker finds:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.
 
2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy "are well-documented in human history."

6. Sexual orientation is a fundamental characteristic of a human being.

7. Prop 8 proponents' "assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."

8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

9. California has no interest in reducing the number of gays and lesbians in its population.

10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."

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

12. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
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."

13. "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."

Remember, these are the FACTS that Walker has determined from the testimony and evidence. These facts will serve as the grounding for the legal arguments yet to come.


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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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