"Prop 8" was an cultural barometer - influenced not by facts or intellect but by emotion - some would say "cultural hysteria" - and "religion".
Judge Vaughn Walker's decision was based on the facts and the law.
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, as reported by Marc Ambinder in The Atlantic :
1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.The battle is far from over, but these are the important facts of the case which form the groundwork for what I believe will be the eventual triumph of justice.
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."
Indeed, I think the whole of Walker's points could be preceded by the words, "We hold these truths to be self-evident."
Once this matter is settled in California, it will also provide the groundwork for marriage equality to be the law of the land in every state - state by state.
As MLK, Jr., famously said, "The arc of history is long, but it always bends toward justice."
Oh, yes. I know. Judge Walker is gay. Some are calling for him to 'recuse' himself on this basis. As if Thurgood Marshall needed to recuse himself on any Civil Rights matter concerning Race because he was Black.
I know, I know. It is being said that Judge Walker's colleagues on the California Supreme Court will dismantle these "facts" because the Judges know that this is a career-defining case. The same "cultural mood" that brought us Prop 8 in the first place is bound to "infect" - or at least affect - them. The "facts" behind the arguments sometimes loose their authority in the midst of cultural politics.
I find it fascinating that some of those who purport to be in favor of marriage equality are raising their voices with the cry, "States rights!"
We've heard folks say, "Oh, homosexuality doesn't bother me. Some of my co-workers and friends are homosexual. My wife's hairdresser is a homosexual. Our church organist is a homosexual. I don't have a problem with that. I just don't want them to be 'in my face'."
See? All their asking for is no 'PDAs' - Public Displays of Affection.
It's the "Ick Factor" writ large.
The "States Rights" argument sounds to my ears as the heterosexist version of "NIMBY" - Not In My Back Yard.
The "States Rights!" lament is purported to be an unemotional argument is based on the law. Unfortunately, it's a very narrow focus of the law. It's very Republican. Right up there with "no big government." Nosireebob. No "big" anything.
The only "big" some Republicans want is their wallets.
You'll excuse me if my "hermeneutic of suspicion" is in overdrive. Ultimately all the "States Rights!" position does is to delay justice.
MLK also said, "Justice delayed is justice denied."
Marriage is a human right. It's also a civil right.
A friend of mine said to me years ago - more years ago than I care to remember - that the issue of marriage equality would ultimately be decided on the federal level - and, de facto, to each and every one of the states - by none other than the IRS.
It will come down to the bottom line, which, you may have noticed, is often preceded by a dollar sign.
We've come a long way and these early days of victory are worth savoring and enjoying.
Then, it will be time to dry our tears, wipe our noses, pull up our socks, and get on with the rest of the struggle for justice.
We've taking an important first step, but the road is long and there are dozens of detours and many, many more obstacles.
Let's arm ourselves with the facts, and the truth of the goodness of our creation, and keep on moving' forward.
And, as we go, let us sing our own version of Pat Humphries' song, which she wrote in 1984 and was the song that opened and began the theme of the 4th United Nations World Conference on Women in Beijing in 1995.