Dispatches from the Creation Wars

As I’m sure you know by now, Judge Vaughan Walker has struck down California’s Prop 8, the referendum that outlawed same-sex marriage in that state. It will be immediately appealed, of course, and ultimately it will come down to the vote of Anthony Kennedy to decide whether it is upheld or not. But in the meantime, we have a ruling (PDF) and a predictable response to talk about.

First, the ruling. Interestingly, the court concludes that the law violates the due process and equal protection clauses even if one applies the rational basis test rather than strict scrutiny (that silly and historically unjustified two-tiered system of scrutiny the court applies in such cases). Since the rational basis test is a very lax one that nearly always upholds the law under consideration, that’s a very strong conclusion.

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny.

Strict scrutiny is triggered when a right is deemed to be “fundamental” — as opposed to a “mere liberty interest” in the Supreme Court’s tortured language; aren’t all rights fundamental? — and Walker rightly applied several precedents that established that, “The right to marry is of fundamental importance for all individuals.” But as I said above, the ruling says that even if this is not deemed a fundamental right and only the rational basis test is applied, the law still cannot pass such a test.

He bases this conclusion on the testimony and arguments made during the trial by the defendants in defending the validity of the law. As was publicized throughout the oral arguments, defense counsel were utterly unable to advance a coherent rationale for the law and repeatedly stumbled in trying to answer obvious questions.

Proponents of Prop 8, those who wrote it, had originally defined the state’s interest in outlawing same-sex marriage with the following six arguments:

1. Denial of marriage to same-sex couples preserves marriage;

2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples;

3. Denial of marriage to same-sex couples protects children;

4. The ideal child-rearing environment requires one male parent and one female parent;

5. Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; and

6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages.

But in this court case they collapsed down to a smaller set of claims:

1. Maintains California’s definition of marriage as excluding same-sex couples;

2. Affirms the will of California citizens to exclude same- sex couples from marriage;

3. Promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children; and

4. Promotes “statistically optimal” child-rearing households; that is, households in which children are raised by a man and a woman married to each other.

It is the last two that matter, of course, and neither of them was at all defensible during oral argument. The ruling lays out how inadequately they tried to defend the 3rd argument:

Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the “central purpose of marriage, in California and everywhere else, to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.”

At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was “not the legally relevant question,” but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.”

This is an absurd argument, of course. If it’s important for the state to ensure that children are raised in stable, enduring unions than that is an argument in favor of same-sex marriage, not against it. More importantly it is an argument against Prop 8 because that law makes it less likely, not more likely, that children of gays and lesbians will be raised by two people in lifelong relationship.

One other thing about this ruling: It’s aimed directly at Justice Anthony Kennedy. Walker knows the Supreme Court vote depends entirely on Kennedy’s vote and he wrote this ruling specifically with that vote in mind. The structure and tone of the ruling echoes Kennedy’s ruling in Romer v Evans, which also overturned an anti-gay state law using the rational basis standard.

The reaction from the religious right is predictably outraged. My favorite so far is this one from Coral Ridge Ministries:

“The judge’s contempt for the rule of law and a constitutionally guaranteed self-governing republic cannot be overemphasized,” said Robert Knight, Senior Writer and Washington, D.C. Correspondent for Coral Ridge Ministries, who was a draftsman of the federal Defense of Marriage Act. “With courts turning traditional values into a form of ‘hate’ actionable under the law, we are seeing the criminalization of not only Christianity but of the foundational values of civilization itself.”

Well sure. By not allowing Christian fundamentalists to use the government to enforce their bigotry, the government is criminalizing Christianity itself. How perfectly logical — and utterly laughable.