Proposition 8 (Prop 8) was the ballot initiative in California that took away the rights of gay and lesbian people to marry their same-sex partner. In part 2 of this blog series I look at the arguments made by the plaintiffs and defendants of Prop 8.

In his verdict, Judge Walker indicated that the plaintiffs' case against proposition 8 was that it violated two clauses of the 14th Amendment to the US Constitution.

The first is the Due Process Clause, that no "State [shall] deprive any person of life, liberty, or property, without due process of law." According to the verdict, "Plaintiffs contend that the freedom to marry the person of one's choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:" it prevents individuals from marrying the person of his or her choice, this choice is "sheltered" by the 14th amendment so the state cannot take it away, and because domestic partnerships are not an adequate substitution for marriage (i.e separate but equal is not so equal).

The second was the Equal Protection Clause, which provides that no state shall
"deny to any person within its jurisdiction the equal protection of the laws." The plaintiffs argued that this was violated by Prop 8 because first it "Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely." And second that it puts gay and lesbians at a disadvantage compared to heterosexuals. Plaintiffs also argued that Prop 8 should be subject to "heightened scrutiny" under the equal protections clause because gay and lesbians are a "suspect class."

"Heightened scrutiny" refers to the standards used by judges in an equal protection case, and is the intermediate level between strict and minimum. In cases with this level of scrutiny, the case must be made that a form of discrimination must be "substantially" related to an "important" governmental interest. This level of scrutiny is often applied to cases of sex discrimination.

A "suspect class" is not a group of people who are suspicious. Instead it set of criteria used by the courts when making determinations about discrimination. Some of the criteria that are often applied are that: the group has historically been discriminated against, being a member of the group cannot be easily changed, and that the group does not have significant political power.

Proponents of Prop 8
Because the California Attorney General conceded that Prop 8 was unconstitutional and the government declined to defend it, the proponents of Prop 8 petitioned to defend it and the judge allowed them to do so. The proponents were the organizations that put the proposition in place.

The Judge believed that the Proponents of Prop 8 changed their argument during the trial from the moral arguments put to voters. As the judge stated, a law that denies rights to a particular group cannot be based on religious reasons. "The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose."

Instead during trial the proponents put forth the arguments that Prop 8 had non-religious justifications because it: maintained California's definitions of marriage, allows California citizens to exclude gay and lesbians from the right to marriage, promotes stability in male-female marriages that produce children, and that it promotes "statistically optimal" child rearing households.

When the Judge asked the proponents of Prop 8 how denying gay and lesbian people the right to marry promotes male-female couples having children, the proponent's lawyers responded, "Your honor, my answer is: I don't know. I don't know." (Page 9). The proponents claimed that during trial they would demonstrate 23 specific harmful consequences of allowing gay and lesbian people to marry. About this the Judge said, "At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate." (page 9).

Now that I have summarized the arguments from the plaintiffs and proponents, in the next few blogs I will discuss some of the testimony from expert witnesses that was used to establish the facts of the case.

Dr. Mustanski is the Director of the IMPACT LGBT Health and Development Program at the University of Illinois at Chicago. You can follow the Sexual Continuum blog by becoming a fan on Facebook

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