Prop. 8 Ruling Declares a New “Understanding of Gender”

August 4, 2010, ColorLines

A federal judge in San Francisco overturned Prop. 8 today, declaring that gay men and lesbians have a constitutional right to get married and affirming that voters don’t get to determine the fundamental rights of a minority group.

The ruling — with its vocal support for the civil rights of gay men and lesbians — has left some racial justice advocates hopeful that national black and Latino civil rights organizations will now consider publicly supporting gay marriage.

The 136-page opinion (full document at end of story) from Judge Vaughn Walker notes that Prop. 8, which had defined marriage as between a man and a woman, didn’t stand a chance in court, or to quote him directly: “Proposition 8 fails to possess even a rational basis.”

Judge Walker found that Prop. 8 violated both the Due Process and Equal Protection Clauses of the constitution. The amendment singled out gay men and lesbians for different treatment and denied them their fundamental right to marry.

Marriage licenses won’t be issued to same-sex couples today, though. Judge Walker issued a temporary stay on his decision in Perry v. Arnold Schwarzenegger. That means the ruling can’t go into effect until the court hears arguments for why it should or should not let same-sex couples marry while the case is being appealed. It’s expected that the case will be appealed all the way to the Supreme Court.

In his opinion, Judge Walker noted that marriage was once limited to people of the same race and gave more rights to the husband—-two ideas that are now out of vogue. What’s changing with same-sex couples being allowed to marry, Walker wrote, is not the institution of marriage but “the understanding of gender.”

As Chris Geidner at MetroWeekly outlined, what actually matters from today’s court ruling is Walker’s findings of fact versus his conclusions of law.

During appeals the findings are less likely to be disputed because it’s assumed that the judge closest to the trial is the best, no pun intended, judge of the facts. What will be examined closely are his legal conclusions.

Here are some of the judge’s findings of the fact:

-Gay men and lesbians getting married “has not deprived the institution of marriage of its vitality.”

-Domestic partnerships “lack the social meaning associated with marriage”

-Prop. 8 places the force of law behind stigmas against gays and lesbians and suggests that gay relationship are not like hetero ones

-Campaign for Prop. 8 relied on stereotypes of gays and lesbians as inferior to heteros.

Judge Walker’s conclusions of law are what will be scrutinized on appeal:

-Gay men and lesbians aren’t seeking a new right under the Constitution. They just want to exercise their fundamental right to marry.

-They have the right to marry in part because the state’s never required marriage to be based on the ability to procreate.

-People can’t be excluded from marriage because of gender. “That time has passed,” the judge wrote.

-Tradition alone cannot be the a rational basis for a law. So it doesn’t matter that marriage has traditionally been between a man and a woman.

-Domestic partnership isn’t good enough. They don’t carry the same “social meaning as marriage.”

Rallies are taking place across California today and the country. In New York, a rally is expected from 7 to 9 at the New York City Supreme Court at 60 Centre Street.

Racial justice advocates have kept an eye on the Prop. 8 trial because the amendment basically said that a majority of voters can decide the fate of a minority group. Judge Walker’s decision turned that around. “Just because voters pass it doesn’t mean that it’s constitutional,” said Karin Wang at the Asian Pacific American Legal Center

Wang thinks that today’s decision will inspire more conversations about discrimination. “I do think the longer legacy of this decision is pushing the bounds on marriage equality in communities of color where I do think it is a very difficult conversation,” Wang said.

Alexander Robinson, the former executive director of the National Black Justice Coalition, a gay black organization, hopes that today’s court ruling will shift the internal conversations at national civil rights organizations like the NAACP and National Council of La Raza, which he says have shied away from supporting gay marriage because of their religious constituents.

“This will give those inside these organizations further ammunition to push their groups like the California NAACP to take an affirmative stance in support of our rights,” Robinson said.

The case will be appealed and is expected to end up at the Supreme Court, which according to the New York Times is the most conservative court in “living memory.”

“There is a real fear that if you pick the wrong court at the wrong time you might set back the issue,” Wang said. “It’s hard to undo the Supreme Court.”

Still, she added that there’s an equally good argument that “you just don’t know.”

Robinson is optimistic. “This is a train that we’re not going to stop and I’m not interested in slowing it down. In all of the histories of groups struggling to achieve equality there have been setbacks and major victories. We take them as we can.”

More Data on How Prop 8 Passed

Judge Walker’s decision came down a day after a new analysis was released by an LGBT group showing that Prop. 8, which banned gay marriage in California, passed in 2008 —- not because of black voters—-but because of white Democrats with kids at home.

As you may recall, Black voters were blamed for the loss of gay marriage in 2008. It was a misleading story about exit polls started by mainstream news outlets and immediately circulated. But according to David Fleischer, who heads the LGBT mentoring project in Los Angeles and led a team analyzing polling data from Prop 8, the black vote on gay marriage was the same on election day as it had been months before: the majority opposed it.

The people who were convinced by fear ads to oppose gay marriage were white Democrats who had kids at home under the age of 18. They saw those Prop. 8 ads featuring cute white kids saying, “Guess what I learned at school today?” and then revealing that they might grow up to marry someone of the same sex. Fleischer writes:

“In the last six weeks, when both sides saturated the airwaves with television ads, more than 687,000 voters changed their minds and decided to oppose same-sex marriage. More than 500,000 of those, the data suggest, were parents with children under 18 living at home. Because the proposition passed by 600,000 votes, this shift alone more than handed victory to proponents.”

And a slew of other people voted against gay marriage when they meant to vote for it. According to Fleischer’s team, these voters didn’t understand that a “yes” on Prop. 8 meant a “no” on gay marriage.

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