Wednesday, August 4, 2010

This is war

I'm sharing here, without extensive comments for the moment, some of the more outrageous passages in the Finding of Fact section of Judge Walker's decision. A .PDF of that decision may be found here at a sidebar on the left side of the page.


34. Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents. Tr 187:11-16; 188:16- 189:2; 201:9-14 (Cott). [...]

48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same- sex or opposite-sex. [...]

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children. [...]

56. The children of same-sex couples benefit when their parents can marry. [...]

58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society. [...]

67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents. [...]

68. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships. [...]

70. The gender of a child’s parent is not a factor in a child’s
adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. [...]

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted. Tr 1014:25-1015:19; 1038:23-1040:17 (Lamb). [...]

72. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes. Tr 1040:22-1042:10 (Lamb). [...]

73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. Tr 1187:13-1189:6 (Lamb). [...]

74. Gays and lesbians have been victims of a long history of discrimination. [...]

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. [Emphasis added--E.M.]
I'm stopping there for now. But make no mistake: this is a war against the definition of marriage, against opposite-sex biological parenthood, and against religious beliefs. Catholics should especially take note of point 77 which I have put in bold print--Judge Walker has, in a legal document, declared Catholicism (and those faiths which agree with the Catholic Church's teaching about the sinfulness of homosexual acts) to be harmful to homosexuals.

I repeat: this is war. Don't be fooled into thinking otherwise. The judge has drawn the battle lines, and future generations will be shaped by what happens next.


Kim said...

The thing is...good thing we already know the outcome of this war!! :)

"Behold, I make all things new." ~ Revelation Ch. 21

Rebecca in CA said...

This whole thing is just making me ill. On so many levels. And so hearkens back to the "ruling class" article. It's quite official now: we are in a dictatorship of elites. We have been excused from self-rule.

Anonymous said...

This begs the question as to how Catholics will address same-sex couples if this law remains in effect. "His husband" and "her wife" seem to be out of the question, right? What'll we say, without sounding kind of rude?

I don't see this ending well.

David said...

What is most bothersome about fact #77? How it is phrased?

Or is there some double-standard where you get to say your axiomatic "truth" (gay sex is immoral, evil, sinful) to every gay you meet, your gay relatives; expect them to smile and kiss your hand while hearing this haughty assertion, but you can be indignant--angry in fact!--when other harms are pointed out as a result of that same message?

Right or not, whether you like it or not, there are harms that have been a result of the strident tone taken by some religious people and their moral compulsions regarding homosexuality. It has been a history of baseless prejudice and discrimination without even touching the word marriage.

Those were findings of fact from the testimonies...not opinion, as runs so rampant here. If you can't back up your assertions about what it means to be a father, a mother, and so forth (as I've challenged you before), don't be surprised when those arguments fail in a courtroom where things can't be taken as is-ought hopes. If you have trouble with those facts...dispute their evidence, which Walker amply provided with the testimonies and their studies. That is, after all, the whole point.

Anonymous said...

Whatever, David. It's like you can't read and won't think.

Are you so naive to think that there's such a thing as raw "facts" and that the judge in this case was *really* just listing "facts"? Can you not see why #77 might make us nervous?

I find most gay activists I encounter -- on the net or in person -- are so (1) narcissistic and (2) irrational that one simply can't interact with them.

Be careful. You want a cultural war, you're going to get one. And the backlash is gonna bite you in the ass hard, I fear.

Rebecca in CA said...

David, it seems to me that you have two points: First point, it's inconsistent to say that homosexual behavior is harmful and then be angry when someone says to us that it is harmful to say such things. If we can call someone harmful, why can't they call us harmful? That kind of thing. Then it seems like your second point is that the judge has facts to back him up, whereas those who disagree with his ruling have only opinion. I would just like to say something about your first point: The whole thing about the homosexual movement is that it began with words about Tolerance. Live and let live, and so on. Christians have never been or claimed to be "tolerant" in that sense; there were always certain behaviors which ought not to be tolerated in society because they harm society at its root level. But this *was* the claim of homosexuals; that we should let people live as they will and believe as they will. But now, the judge has made it clear by his language that he aims for society not to tolerate religions which claim that homosexual behavior is harmful or even lesser than heterosexual. Really, it boils down to this: Someone is right, and someone is wrong, and it is in fact important. This judge has admitted this, and has indicated that opposition to what he believes is the truth, ought not to be tolerated in this society any longer.

So in America, who has the right to decide? That is my question. I must say that even if I were a pro-homosexual-marriage activist, I would object to this ruling because it does violence to our form of government, which is (was???) a democratic republic. Big decisions are not meant to be made by the Elite Few, but by the people. Even if I were a pro-homosexual-marriage advocate, I would insist that the decision be made by the people.

Rebecca in CA said...

I should add...the truth is unchanging, regardless of what form of society you have, and an unjust law passed by a majority in a democracy would be just as unjust as an unjust law passed by a dictator, but I'm just really appalled that our form of government, which I actually thought was kind of awesome and unique and historical and stuff, is just being tossed out the window here.

Red Cardigan said...

David, do you not get this? Really?

As a finding of FACT in a legal document this decision asserts that religious beliefs which assert that homosexual sex (e.g., relationships) is sinful cause *harm* to a protected class of people.

What does that do to freedom of religion (note: NOT "freedom to worship," as liberals keep trying to redefine this American freedom)? It creates precedent for the placing of significant burdens on that freedom of religion, in fact--because a legal finding that traditional religious beliefs concerning homosexuality cause harm to homosexuals is the first step toward outlawing the expressions of those beliefs outside of church buildings--as has started to happen in countries which have legalized gay "marriage."

You can either redefine marriage in such a way as to legalize same-sex "marriage," or you can have religious freedom. You can't have both--and Judge Walker has indicated with startling clarity which one he'd prefer to see eradicated.

Jen Ambrose said...

I am just surprised that some of these words are in a legal opinion. I think it should make all Americans nervous that a legal judgement should talk about hurting feelings. That's not Rule of Law at all.

Cammie Novara said...

"Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions." Very well said!

Anonymous said...

David: I think the problem here is more the *finding of legal fact* that religious beliefs harm homosexuals. Whether actual homosexuals have been harmed by insensitive and priggish religious people (and I have no doubt that they have been), is beside the point. That the federal gov't has determined the *legal fact* that religious belief harms homosexuals, though, puts the federal gov't squarely against religious people rather than neutral. (In the same way, the homosexuals would be troubled if the federal gov't found as a *legal fact* that homosexuality was a perversion: that's taking sides, not adjudicating cases.)

Edward said...

In response to anonymous poster #1-- I found out in my last job that in some circles it's already considered sort of backward to use the terms "husband" and "wife," even when referring to traditional marriage. The more acceptable term, according to my former boss (or rather according to her prima-ballerina daughter), is "partner."

Red Cardigan said...

Cammie, it's only possible to think that way if you think that men and women are totally interchangeable and gender doesn't matter at all to anything. The judge thinks so. I don't. Lots of Americans don't. I'll have a post on that later.

Ed--that's straight out of Huxley's "Brave New World," when terms like "mother" and "father" are seen as insulting vulgarisms not to be used by polite people. We are headed that way. That is the new world that homosexuals want.

c matt said...

Those were findings of fact from the testimonies...not opinion, as runs so rampant here

You seem to not understand the nature of legal proceedings very well. Those "facts" found by the judge were based upon opinions offered by the witnesses ("testimony" only means those opinions were sworn to under oath - but they are still opinions). So, to rephrase your statement to correctly reflect the nature of the findings in layman's terms:

Those were findings of fact from the sworn opinions...not opinion, as runs so rampant here

(which sworn opinions can be purchased from "experts" for the right price - usually $500/hr and up depending upon specialty)

Sarah said...

Please keep your thoughts on this matter coming. As a practicing Catholic I am outraged and saddened by this judge's decision. It's comforting to know that there are others out there who feel the same way. I agree with you completely that this decision is going to set a legal precedent for the state to infringe on the freedom of religion, and I'm grimly waiting to see how this plays out. Are churches who refuse to "marry" gays and lesbians going to be shut down now?

c matt said...

And to top it all off, David, the judge's ruling opinion.

c matt said...

Are churches who refuse to "marry" gays and lesbians going to be shut down now?

I doubt it. They will just get sued like that New Mexico photographer. And even if the church wins, the lawsuits will just keep coming.

KC said...

This is really, really scary.

Barbara C. said...

I like in #58: "gays and lesbians do not have intimate relationships similar to heterosexual couples"

As a matter of FACT, it is impossible for the majority of gay and lesbians to have similar intimate relationships without resorting to genital mutilation.

And my understanding is that a lot of these so-called facts are questionable from a scientific, psychological, and sociological viewpoint, particularly point #71.

Charlie said...

I hadn't heard that Walker was a homosexual. I had heard that he was a Republican, appointed to the bench by President George Herbert Walker Bush, and had a general record as a pro-business conservative. Erin has nailed his many over-reaches very thoroughly. On the other hand, I don't think this is war. I think its an unfortunate confrontation in a tribunal very unsuited to reach useful conclusions.

As a LEGAL matter, this isn't a question of moral values. It is a question of constitutional jurisdiction. Most likely the facile pronouncements about religious condemnation hurting gays and lesbians will be cast aside, because the First Amendment is stronger than one deluded federal judge in California.

Churches remain autonomous regarding their own choices in faith and doctrine. Courts can't even apply Title VII Civil Rights laws to a Roman Catholic Church decision on renewing the contract of a church employee.


How are the courts going to actually intervene in a church's deliberations on matters of doctrine?

It is more than likely that same-sex couples will become increasingly accepted in our culture, socially, legally, economically, but it need not overwhelm any church which teaches otherwise. Hold tight to the constitution and don't rely on moral argument when appearing in federal court.

David said...

C matt:

What more do you expect? I doubt you qualify the testimonies (er, "opinions") of people like George Alan Rekers, paid enormous amounts of money to testify in favor of the gay adoption ban in Florida and other states. That's how it works. You present experts in the field, they have their knowledge buttressed by scientific study, and the other side has the opportunity to provide counter evidence through their own witnesses, experts, and cross-examination. The proponents had ample time and resources to prepare such a defense, and they embarrassingly didn't. There are transcripts to read it. I encourage you to do so. It is appalling, and most of their witnesses ended up supporting the plaintiffs!

Gripe about it being an opinion of a paid expert all you want, that's how the world is... I can have the opinion that a rainbow is made of colored sugar spun by pixies, and I could equally claim that the whole world of science is against me and colluding to present other "facts" and "opinions" that aren't truth as I know it. Handy self-supporting conspiracy theories...that you employ in this case regardless...but it wouldn't change the fact that my opinion can't be raised to approaching a fact unless I have some criteria for determining whether it is true or not. I've given Erin many opportunities to do that, but like my sugar rainbow, she and many like her would have me and others believe that the sugar rainbow should be taken axiomatically...or I must be a Sugar Rainbow Convert to understand. It's a useless criterion.

As I said before, if you dispute his facts, you're more than welcome to challenge them. They're in the PDF that Erin provided a circuitous route to. Yet...I do not see you doing that, rather I see you complaining that it was a paid witness (as if NOM and Protect Marriage, and their witnesses weren't, and somehow they're not biased), and others alarmed about the fact that Walker was gay.

Seriously? Is this what stands for Catholic "reason?" A devolution into ad hominem?

You guys are better than this. I expect more.

David said...

As a finding of FACT in a legal document this decision asserts that religious beliefs which assert that homosexual sex (e.g., relationships) is sinful cause *harm* to a protected class of people.

Erin, as I understood it, the harm was directed toward the aims of gays and their other freedoms within our society. You likely disagree with their aims (social things like marriage, equal opportunity in the work place, housing, and so forth), but my understanding is that the harm referred to the religious recriminations about gays and lesbians and their expressions of intimacy...or sodomy, whathaveyou... impeding their attempts at the things many other heterosexual citizens take for getting an apartment without the fear of being kicked out because you as a woman have sex with a man.

I believe it's a bit circular, if my understanding is correct, but I don't dispute that much of the antagonism toward those movements of gay equality (Lawrence v. Texas, Bowers v. Hardwick, Anita Bryant, the Briggs Initiative, ENDA, DADT, DOMA) are definitely harmed by the religious admonitions toward gays. But, honestly perhaps you wouldn't want it any other way in those examples.

Stering Crews said...

In all honesty, this case was always destined for the Supreme Court. The ruling doesn't matter that much, regardless of your feelings about its (in)correctness. It is the ruling in a couple years that will be the important one. And, as one article put it, that finding of facts is basically made to try to convince Kennedy (who, many would suspect, is the most important one to convince). And, as Orin Kerr put it, the factual findings won't matter much when it gets up to the SC. ( But...since we are on the findings of fact, there are a couple issues that are illuminated by this decision.

First, this case demonstrates the difficulty of arguing a case such as Perry in a court of law. The main appeal for a law such as Prop 8 is religious and emotional. IN GENERAL, these are not things that win court cases of this sort. On the emotional side, many people have a visceral reaction to homosexuals (I am not accusing anyone here of that, as I have no idea of any of your reactions to gay people). That gut reaction aspect gets votes. Some people think of it as just unnatural for gays to want to marry. This is the whole, "parts don't fit together" type of argument (which also brings in the subject of gay sex). On a religious level, the main argument is that gay marriage is a sin (and homosexual acts are disordered, etc.). While there are many ancillary arguments, the sin aspect is the main argument. However, we have come to a point in time where those arguments may get votes, but they aren't going to carry the same weight with a judge. Which brings us to the findings of fact.

Sterling Crews said...


The findings of fact are based upon the judge's impressions. That much is true. However, the judge was using the expert testimony from both sides to form his findings of fact. He was looking for more from Prop 8's proponents than just: 1) it is biologically unnatural or 2) it is wrong or 3) marriage is for procreation. Unfortunately for the proponents, the judge was looking for studies such as ones that show that gay marriage harms children or gay marriage has other deleterious effects on society. To wit (from page 9, 10 of the opinion):

"Despite this response, proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships”would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. 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. During closing arguments, proponents again focused on the contention that “responsible procreation is really at the heart of society’s interest in regulating marriage.” Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.” Tr 3037:25-3040:4. Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that
opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity."

And that is why, at this point in time, it is hard to try a same-sex marriage case in a court. Many (maybe even most) of you would probably take many of those assertions as self evident. Sort of like a: "Duh! Of course that's true!" But secular courts are looking for evidence. For example: bad child outcomes for gay couples, increases in crime in areas that allowed gay marriage, breakdowns in society in states (or other countries) that allowed gay marriage, etc. It is difficult for studies to show those outcomes (or maybe, Prop 8 proponents had trouble finding evidence of adverse outcomes). Prop 8 proponents did not provide enough evidence. They used assertions. Perhaps another, more ideologically judge would have been more sympathetic to blanket statements. However, if, in a case of this magnitude, the proponent's expert basically uses assertions and doesn't back them up with evidence, they can expect to lose. Even if many believe those assertions to be correct.

Siarlys Jenkins said...

David, Sterling, the facts are irrelevant. The question is not whether gay marriage causes harm, the question is whether any "person" has been denied "equal protection of the laws." On any view of the facts presented, no, nobody has been denied equal protection of the laws. Each person is free to marry, as marriage has been defined from the inception of this republic.

(The LDS Church was, formerly, a cultural aberration, but its infatuation with polygamy was never accepted legally, was in fact rejected by the U.S. Supreme Court more than once, and is no longer sustained even by the tenets of the church).

All the facts you present are valid arguments to make to any state legislature, advocating for why the legislature should exercise its discretion to provide for licensing same-sex couples, and bringing such licensed unions within the purview of the marriage laws. They do not add up to any semblance that anyone has been denied the equal protection of the laws.

Unfortunately, it is true that this rather obvious line of attack does not appear to have been argued by anyone trying to defend Proposition 8.

I voted against my state's "Defense of Marriage" amendment. In most circumstances, I would have voted against Prop 8. I might, however, have voted for it, given the over-reaching by the state's Supreme Court. There really is no other recourse within state law for a citizen who objects to a state supreme court ruling.

Tony said...

This really is not a religious argument, but a definitional one.

From time immemorial (up until about ten years ago), a civil marriage has meant the union of a single man to a single woman to support the generation and raising of new citizens, and to protect the interests or the woman and children from abandonment by the male (usually the primary breadwinner).

Love has nothing to do with civil marriage. You can civilly marry someone you hate, and many times people did to cement treaties and make peace among rival clans.

Ask any child up until about ten years ago, what marriage meant, and they would tell you "a mommy and a daddy" or a man and a woman, or something like that. They would have been aghast at a man and a man or a woman and a woman.

Along come activist judges and decide that marriage now means any two people who want to cement a relationship. Well, that wasn't the original definition or the societal intent of marriage.

That having been said...

If a particular state would like to redefine marriage to mean a man and a man, or a man and a dog, or whatever, they can do it legislatively like they're supposed to. Go ahead and change the definition if you think you can, but don't be surprised by pushback from the constituents and the voting of you out of office if you support it.

That's why they need these unelected judges who are almost impossible to remove from office to change the definition by judicial fiat.

A judge told California that a marriage was no longer a man and a woman.

California told them "yes it is" and passed a law stating that.

A judge called the law "unconstitutional".

California amended their constitution.

A gay federal judge calls their constitution "unconstitutional".

What is left for California to do?

1. Ignore the Federal judge and invite armed intervention (if Barack has the will to do it).

2. Secede from the union and become their own country.

If this sort of federal over-reaching continues, I can see #2 happening with a number of states, unless we can elect national politicians who will start to adhere to what the Constitution *says* instead of what they *wished it said*.