I spent all morning reading the decision, which has incited all sorts of furor from social conservatives.

I will have more on the decision and its implications later, but wanted to take the opportunity to highlight Matthew Franck’s take-down of the ruling at Public Discourse.  This part is especially good:

Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

The most stunning part of the decision is this particular “finding of fact”:  “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” (Bold is, of course, mine).

Contrary to David Sessions, I think that the line was delivered from the court as a finding of “fact” is sufficient to call the upon an “attack on religious beliefs.”  It’s hard to interpret it any other way.

But that’s not the most damning or relevant aspect of that “fact.”  The reasons that the court gives for it are (a) expert testimony, and (b) a list of statements from conservatives and religious organizations saying that they think that homosexuality is sinful.

David Blankenhorn, the lead expert witness for the traditional marriage side was excoriated in the ruling for not sufficiently establishing according to accepted social science standards that gay marriage either harms the state, children, or anyone else.  But the expert testimony in this case cites 0 studies to establish that religious beliefs harm gay people.  There seem to be two standards at work for what counts as “fact” and what doesn’t.

There’s a lot more ink to be spilled, especially about the social conservatives’ misguided reaction.  Check back on Monday if you’re interested in more, and feel free to have a respectful conversation here about the ruling.

Addendum: John Yoo is also worth reading on this.

Print Friendly, PDF & Email

Posted by Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.


  1. I’m pretty sure the reason that it can “harm gays and lesbians” has nothing to do with studies or facts. It has to do with the simple fact that they would not have the same rights as a heterosexual couple.

    It honestly depends on how you define harm. If you mean physical harm, then sure, it is likely that it won’t harm anyone. But if you mean taking away of rights, then yes, it would be harmful.

    But this all goes back to religion and state. I personally am opposed to religion being a bases for law because it would be far too easy to start looking at the old covenant for our laws.


  2. “It honestly depends on how you define harm. If you mean physical harm, then sure, it is likely that it won’t harm anyone. But if you mean taking away of rights, then yes, it would be harmful.”

    Adam, I agree that it depends upon the definition. My point is that the judge wasn’t consistent in his usage of it, and how we know whether harm has actually occurred.


  3. […] This post was mentioned on Twitter by Matthew Anderson, Scott Maze. Scott Maze said: RT @mattleeanderson The Double standard of the Proposition 8 Ruling http://bit.ly/9YNQvt […]


  4. I completely agree. As I wrote on my blog today, this justice (and many gay marriage advocates) seem to exhibit the precise bigotry and intolerance toward religious persons that they claim to be fighting.

    Also, if their argument is truly one about “harm” in the nonphysical “take-away-my-rights” sort of harm, I think there are two responses to that.

    (1) I’m not sure how anyone — gays or heterosexuals — can claim “marriage” is a right. If you do, I think you are on a pretty slippery slope when it comes to rights.

    (2) If we determine that marriage is not a “right,” I’m not sure it’s the government’s job to make people feel warm, cozy, and “accepted.” Cultures have a way of marginalizing *behaviors* (not races/peoples) they don’t like, and I don’t think some government ruling is going to change the way Christians, Muslims, and whomever else think about gays.

    By the way, if the role of the government is to make me feel accepted, where were they at my liberal university? ;)


    1. See the problem steams from the way that Christians view gays vs the way gays view themselves. They think it is a “behavior” whereas gays think that it is “who they are”


  5. The judge’s statement about religious belief harming homosexuals lines up perfectly with progressive countries like Canada and the UK, where comments similar to “homosexuality is sinful” are being classified, and prosecuted, as hate speech. And, with numerous cases in the academy, most recently Dr. Kenneth Howell at the Univ of Illinois, who was fired for committing hate speech by teaching Catholic doctrine on homosexuality in a religion course about Catholicism.

    Increasingly, it seems that we are only free to be religious if we keep our religious thoughts private and if religion has no influence on public policy.


  6. Another note. This was predicted by Justice Scalia in his dissent from Lawrence v Texas, striking down Texas’ sodomy laws. Scalia wrote:

    If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”?

    Judge Walker apparently agrees with Justice Scalia.


  7. Matt: Thanks for bringing Matthew Franck’s incisive analysis to our attention. Your comments raise some questions for me.

    • What counts as “expert testimony”?

    • Why do we privilege the “expert”?

    • How will the U.S. Supreme Court adjudicate the tension between freedom of speech, where religious persons call homosexuality a sin, and equal protection of the law, where gay activists demand same-sex marriage?

    • Put differently, how will the U.S. Supreme Court adjudicate the harm against religious persons, if same-sex marriage is legalized, and the harm against gay persons, if same-sex marriage is proscribed?

    • Is marriage a “right”? If so, what kind––legal, natural, or divine?

    • Should government be involved in marriage?

    • Can this cultural war be diffused by granting civil unions to heterosexual and homosexual couples, leaving marriages to churches and synagogues?

    • Is compromise possible or desirable in the same-sex marriage debate, or is the outcome inevitably “win-lose”?

    I’m eager to hear your thoughts on “the social conservatives’ misguided action.”


  8. Joseph,

    “By the way, if the role of the government is to make me feel accepted, where were they at my liberal university?”

    Heh. Yah, I actually think that’s part of what’s going on in the ruling. There’s a sense there that the government’s role is being expanded to protect us from language that make us feel unwelcome, which is a pretty remarkable development.


    “See the problem steams from the way that Christians view gays vs the way gays view themselves. They think it is a “behavior” whereas gays think that it is “who they are””

    That’s actually immaterial to the problem. Even if gay people are right about that, they still have to demonstrate that religious language harms them in some way. The judge has to have the same standard for both sides, and in this case he didn’t.


    All good questions, but I don’t have time to answer them all now. I’d encourage you to search the archives for more of my thoughts on this issue.



  9. Christian Lawyer August 8, 2010 at 9:23 pm

    Respectfully, it’s just not correct to say that there are “0 studies’ cited to establish that “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” The support for the findings of fact #77 is discussed throughout the order.

    See Plaintiffs’ Exhibit 2547, cited at #77, an excerpt of the deposition testimony of Paul Nathanson, Ph.D., a researcher at McGill University’s Faculty for Religious Studies originally put forward by the Prop 8 Proponents, but NOT called by them at trial. Plaintiffs put in his deposition testimony by video at trial:

    14. PAGE 82:09 TO 82:23 (RUNNING 00:00:49.767)
    Q-Are you aware of any studies or analyses as to how societies’ hostility to homosexuals and homosexuality affected the psychology of homosexuals?
    Objection, this is outside the scope of his report.
    A- I’m aware that there have been, in fact, studies.
    And have those studies reached uniform conclusions?
    A- Yes.
    Q-And what are the uniform conclusions that those studies have reached?
    A- That being the target of hatred or hostility is a bad thing, it has bad effects on people.

    19. PAGE 102:03 TO 102:08 (RUNNING 00:00:30.041)
    Q-Let me ask you a question about hostility to gay people, and I’ll refer to it as gay bashing; do you believe that the teaching of certain religions that homosexual relations are a sin and an abomination contributes to gay bashing?
    A- Yes.

    The Court also cited testimony by Dr. Segura, poli sci professor at Stanford who co-directs Stanford’s Center for American Politics, which now runs the American National Elections Study, which every four years questions the American public about its political views. He’s had 42 peer-reviewed published pieces. The Prop 8 Proponents did not challenge his credentials to serve as an “expert on the subject of the political power or powerlessness of minority groups in the United States, and of gays and lesbians in particular.” See Trial Transcript at p. 1524 (Day 7).

    The Order also discusses that “[s]everal experts testified that the State of California and California’s gay and lesbian population suffer because domestic partnerships are not equivalent to marriage.” Order at p. 18.

    Further, “Social epidemiologist Ilan Meyer testified about the harm gays and lesbians have experienced because of Proposition 8. Meyer explained that Proposition 8 stigmatizes gays and lesbians because it informs gays and lesbians that the State of California rejects their relationships as less valuable than opposite-sex relationships. Proposition 8 also provides state endorsement of private discrimination. According to Meyer, Proposition 8 increases the likelihood of negative mental and physical health outcomes for gays and lesbians.” Order at p. 17. See also Dr. Meyer’s trial testimony on the effect of social and structural stigma on gays and lesbians, starting at p. 806 (Day 4).

    You have just as much right to your religious beliefs (including the right to feel they are under attack) as gays and lesbians have to feel that their personhood is being attacked and demeaned by those religious beliefs. The problem is that Prop 8 enshrines your religious views into law. What the Court said was that such an enshrinement violates both Due Process and Equal Protection. Nothing in the Order would require you to change your views, or require preachers to stop preaching theirs.

    Would you be as “stunned” at a finding that religious beliefs that blacks are inferior to whites is harmful to blacks? The stigma of racial segregation, wholeheartedly supported by much of the religious establishment in the South, was at the heart of Brown v. Board, 347 U.S. 483, 494:

    “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system… We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”


  10. CL,

    It’s fun having you come out of the woodwork, especially when you bring out the big guns like you did here. : )

    Thanks for reading. I’m glad to know you’ve stuck around since our conversations regarding health care.

    Here’s part of the problem to me: you and I both know that the sociological studies that demonstrate “psychological harm” are notoriously, notoriously contentious. Most of them were done in reference to political campaigns, when the rhetoric is at its highest and the stakes seem the greatest. I can report that I felt like I had been kicked in the gut the day Barack Obama stopped the Mexico City policy. Did he cause me psychological harm?

    It’s a trivial example, but it highlights the sort of difficulties that the judge got into. Besides, we could play the entire testimony out the other direction: “Let me ask you a question about hostility to [social conservatives], and I’ll refer to it [socon bashing]; do you believe that the teaching of certain [philosophies] that [thinking homosexual relations are a sin is inherently bigoted] contributes to [socon bashing]?” “[Reversing] Proposition 8 increases the likelihood of negative mental and physical health outcomes for [social conservatives].”

    Which is simply to say that the “facts” that the judge “found” are hardly facts at all, and that it’s one-sided to accuse socons of trying to inscribe their “religious” [read: moral] beliefs into law, when everyone is trying to do that.

    My point in the above was that there was no equivalent scrutiny by the judge of the “studies” that were cited, as there was of Blankenhorn’s. I know that part of that is that his credentials were questioned by the opposing side…but still. The section on 18-19 that you mention about other experts testifying that gays and lesbians “suffer” because they can’t get married simply boils down to…they don’t have the rights that come along with marriage. But that’s what the whole debate is about, and there’s a sweeping assertion in the paragraph that they “suffer” without examining precisely what that means, or how that plays out.

    “You have just as much right to your religious beliefs (including the right to feel they are under attack) as gays and lesbians have to feel that their personhood is being attacked and demeaned by those religious beliefs. The problem is that Prop 8 enshrines your religious views into law. What the Court said was that such an enshrinement violates both Due Process and Equal Protection. Nothing in the Order would require you to change your views, or require preachers to stop preaching theirs.”

    Had the court said only said that it violated Due Process and Equal Protection, I would have been less concerned. My worry has to do with the “fact finding” in the case.

    Additionally, I’m not sure about this, but it’s not totally clear to me that even if the belief was rooted in religious reasons, that it would be necessarily unconstitutional, or even wrong. It’s a truism these days that the only laws that America can put on the books are purely secular laws, but that’s not obviously the case for me.

    “Would you be as “stunned” at a finding that religious beliefs that blacks are inferior to whites is harmful to blacks?”

    This is a non-sequiter. My point isn’t that religious beliefs CAN’T harm people, but rather that the evidence deployed in this case that they have, in fact, harmed people is currently tenuous at best and shouldn’t have been counted as “facts” by the court.




    1. After hearing Mr. Anderson’s excellent rejoinder to Mr. Lawyer, I’m beginning to think he should enroll in a joint degree program. Armed with a J.D. and Ph.D. in Political Theory, Mr. Anderson would be unstoppable.


  11. Christof Meyer August 9, 2010 at 9:08 am

    Messrs. Anderson and Benson,

    In the interest of encouraging the types of discourse manifested above, I feel the need to say something, and will not remain silent. However, since I also have to hurry along (to do WORK(!)… what the frick is that all about?), I will limit my comments to the following:



  12. Christian Lawyer August 9, 2010 at 11:20 pm

    Matt, thanks for the welcome and apologies for running on.

    As a lawyer, I have to look at what was in the record to support the Judge’s order. There were in fact studies cited to support the point about psychological harm to gays and lesbians as a result of religious or moral stigma. Moreover, the studies were acknowledged to be valid by the expert put forward by the PROPONENTS of Prop 8, not by the Plaintiffs, so when the Judge accepted the testimony about those studies, he was NOT uncritically accepting the Plaintiff’s witnesses, he was actually accepting what was essentially a concession by the Prop 8 Proponents’ own expert. A judge has no obligation to scrutinize facts that are accepted by both sides. Here, again, the Judge was accepting the testimony about studies on harm put forward BY THE PROP 8 PROPONENTS. (Sorry, but if I knew how to make this bold I would. I’m really not shouting.) He wasn’t uncritically accepting the Plaintiff’s expert testimony.

    You assert the “facts” found by the Judge were not really “facts” at all, but if the Prop 8 Proponents had a basis for refuting the “facts” established by Plaintiffs, then they should have put on competing facts. They failed to do so. That you might be able to marshall an argument outside of what was in the record does not undermine what the Judge found based on what he was given to look at. Thus, the problem, to the extent it exists, is either no such evidence exists, or the Proponents just failed to present it. Either way, they Judge could not do his own research to fill in the blanks left by the Proponents.

    The evidence of the psychological “harm” was not “tenuous” at all. Experts from both sides testified to studies documenting the harm. The Judge didn’t apply a “double standard,” he accepted that the Prop 8 Proponents’ experts conceded that Plaintiff’s experts were correct on this point.

    Your Mexico City Policy example is different in kind from the type of psychological hit suffered by gays and lesbians. On the Mexico City Policy, your side lost a policy argument. You personally are not treated any differently depending on the status of the Mexico City Policy. Gays and lesbians ARE treated differently when religious belief in the sinfulness of gays and lesbians is written into law, and when that belief operates as the predominant cultural norm, gays and lesbians suffer (to greater or lesser extents) psychological harm from that stigma (even if, as I assume, most Christians who hold those views do not do so from any place of personal animosity). I think the fact that this sort of harm is suffered by all groups that are marginalized, stigmatized, harrassed, etc. (even, again, if Christian beliefs are not meant to do so) is widely acknowledged to be true, just as it was true for black children in the Brown v. Board case. This is essentially what the Nathanson, the Prop 8 Proponent’s expert conceded in the testimony I quoted.

    Re your question about whether it would be unconstitutional merely because it’s religious, I think the Order (which I believes follows applicable precedent) says no. It’s not the fact that the ban on gay marriage is based in part on religious beliefs. The constitutional problem arises when religious belief is the ONLY basis to support a law. THus, laws prohibiting murder, while supported by religious belief, are permissible, but laws requiring the wearing of a burqa, supported ONLY by religious belief, would not be permissible.

    The Prop 8 Proponents could not come up with non-religious reasons to support the ban on gay marriage. For years we have heard there is all this scientific support for all the bad things that will happen if gay marriage is legalized, but when they had the chance, the Prop 8 Proponents could not muster any substantial evidence to support their position. For example, even Nathanson, the Prop 8 Proponent’s expert (originally) conceded “[s]ociological and psychological peer-reviewed studies [have] conclude[d] that permitting gay and lesbian individuals to marry does not cause any problems for children.” Order at p. 95. With a concession like that from the Prop 8 Proponents’ own expert, how could the Judge rule any differently than how he did?


  13. Wenzel J. Cummings August 19, 2010 at 12:18 am

    Hi, all. I apologize for a late reply on this post, but I only just learned of your blog recently through a friend. Had I known of it before, I would have tried my hand at a response to some of your comments earlier.

    Great thoughts by all are presented here, and a lot of robust debate. But to help you understand the decision as it was written, let me elucidate a few things. (I’m a lawyer, by the way.)

    First, as I commonly mention to all of my non-lawyer friends, you have to remember to distinguish between “policy” and “law.” In today’s discourse surrounding the judiciary we all-too-commonly conflate the two very separate (though, not mutually exclusive) subject matters. We usually say that whatever constitutes good policy must necessarily also be good law. Likewise, whatever we perceive to be bad policy must necessarily be bad law. Not so. In actuality, what is perceived to be bad policy may be on a solid constitutional foundation; likewise, what is perceived to be good policy may in actuality be quite unconstitutional.

    I say all of this because many of your questions that you raised in your discussion revolve around whether or not gay marriage is a good thing as a policy matter. The questions that need to be asked about this decision are whether the decision was good as a legal matter.

    Here is a thumbnail Constitutional Law 101 sketch of how Equal Protection cases work. By knowing this, maybe you will have a better sense of why the judge listed what quite obviously are NOT facts within his Findings of Fact section.

    To a certain extent, most laws discriminate. Here in Colorado, we limit driving age to those over the age of 16. Arguably, this “discriminates” against those who would want to drive, but who are only 15. The word “discriminate” is so commonly used in a negative sense that we forget it really has no inherently positive or negative connotation to it whatsoever. So, the mere fact of discrimination in a law, which may come about on the face of the law or through legislative intent (though, not expressly stated in the statute itself) is not an issue. Discrimination happens.

    The Equal Protection clause of the 14th Amendment applies only to state laws. It requires, in relevant part, that no state may “deny to any person within its jurisdiction the equal protection of the laws” of that state. As I mentioned above, however, many laws discriminate and we do nothing about it. That is because, during the past 100 years or so, the Supreme Court has taken to dividing those against whom a particular law discriminates into three separate categories, or “protected classes.” The protected class into which a particular person is placed determines the “level of scrutiny” that the Court will use in determining whether or not the law shall remain valid under the Constitution’s Equal Protection requirement.

    The first class is called the “suspect class.” If the Court determines that this class is appropriate, they will use “strict scrutiny” to determine whether or not the state law will remain valid. Strict scrutiny looks at the state law and essentially presumes that it is unconstitutional unless the state can show that the law is “necessary to achieve a compelling interest.” This class is used whenever there is racial discrimination involved, and states hardly ever win these cases.

    The second class is called “quasi-suspect,” and the Court will have the state show how the law is somehow “substantially related to an important government interest.” This class is used whenever a law discriminates on the basis of gender or (believe it or not) bastard children. The outcome of these cases depends on how “important” the Court sees reason for the law to be.

    The third class is for all other forms of discrimination. The Court will simply look to see whether the state has any “rational relation to a legitimate government interest.” Essentially, in English, the law is presumptively Constitutional and the state will likely prevail. (This would be the type of law into which a 15-year-old wanna-be driver would be placed. The Court has not given minor children a particular protected class, so therefore the case would fall under “rational-basis” review, and the law would be deemed Constitutional unless there really is no rational reason whatsoever for the law to discriminate. Because states have an interest in protecting other drivers, they can claim a rational basis to the law discriminating against minors under 16.)

    Now, the judge in San Francisco is fully aware the the Supreme Court has consistently refused to place homosexuals into any specially designated protected class, thereby giving them any level of heightened scrutiny that would count against the state’s law. So, what he attempts to do in his decision is to pave the way for Justice Kennedy (because, let’s face it, he’s the only one whose decision we’re waiting to hear on this) to place homosexuals into a protected class. He does this by placing several “facts” in the Findings of Fact section–even though you and I would likely view those “facts” as quite inflammatory opinions instead. But, he does this because he knows that appellate courts, starting with the 9th Circuit and then the Supreme Court, will give much greater deference to the District (i.e., trial) court’s findings of fact. Appellate courts do not get involved in the business of re-trying evidence; they simply assume that whatever the trial court determines to be factual will stand unless there is a legal reason for them to say otherwise. Then they focus all of their attention on whether or not the trial court applied those facts to the law correctly. Getting the legal reasoning of a trial court’s decision overturned is common; but, getting an appellate court to overturn a trial court’s fact-finding is pretty difficult to do. And this judge knows that.

    So, he essentially has loaded his Findings of Fact with all kinds of “facts” that point toward homosexuals deserving to be placed in some level of a protected class–which, I am assuming, he hopes will be the Suspect Class. By doing this, all Kennedy (if he is so moved) needs to do is say that the trial court finds sufficient factual bases to warrant the classification of homosexuals into a protected class, thereby warranting a heightened level of scrutiny, thereby placing a greater impetus upon the state to show how the law must stand.

    All of this being said (and I’m sure it’s more than you ever thought you’d like to know about Constitutional Law), the legal analysis of this decision is replete with poor reasoning. He completely ignores some extremely important precedents with regard to marriage law in order to conclude the way he wanted. Sounds cynical of me, I know; but he knows that his legal analysis is meaningless the moment the case is appealed. This was merely his chance to make his political statement that marriage ought to be inclusive of homosexuals.

    So, I say all of this only to caution you against trying to wrap your brain around the “facts” that are not facts, and the reasoning that is anything but reasonable. You’ll drive yourself insane.

    There are several very important policy questions that need to be addressed about why marriage exists, why the state is involved, whether or not marriage has any value anymore, etc. But none of these questions should ever be resolved by a judge.

    One final note: If Kennedy goes the way of this judge–and I don’t actually expect that he will; but he has surprised me before–by placing homosexuals into a protected class, there will be several very important First Amendment questions raised with regard to churches conducting marriage. Because churches operate in a civil law capacity when they conduct marriages, they are not free to discriminate in such a way that the law does not allow.

    Enough said by me. If you’ve read this far, congratulations. I hope it was worth your time.


  14. Wenzel,
    You provided a very needed viewpoint on this matter. Thanks for weighing in. I just learned a ton from a lawyer. Who knew that was possible? Just kidding, of course.



  15. I recommend reading @mattleeanderson’s post on Prop. 8 @ Mere Orthodoxy. Great comment by “W.Cummings” at the bottom. http://bit.ly/b6ARmO

    This comment was originally posted on Twitter


  16. I’m a big fan of the Franck article at Public Discourse. I think he nailed it.


  17. “The most stunning part of the decision is this particular “finding of fact”: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” (Bold is, of course, mine).”

    This doesn’t seem very stunning to me. I think you’re making too many assumptions, though. People do a lot of harm to other people, most of it is well beyond the reach of the law. If I exclude you from my circle of friends, mock you, belittle you, etc. it’s not stunning to say you’ve probably been harmed. Almost all of us have experienced this from at least one person and felt hurt by it. The law, though, provides little recourse.

    This even allows for the fact that maybe you should be mocked, excluded, belittled. If, for example, you decide to start dessecrating religious symbols, mocking orthodox doctrines etc. you can’t really be surprised that your conservative Catholic family may shun you. This is little more than your own karma, so to speak. But it’s not ‘stunning’ to say this very well may hurt or harm you. (For some it may be a needed harm as they simply have no other way to break out of childhood into adulthood than through an act of rebellion that burns the bridges).

    Now where this harm is suspect, though, is when the law is involved. If a kid from a Muslim family decides to give up his religion, he may be harmed by his family shunning him. I see no recourse in law that I’d accept. BUT if the law said his family could stone him to death (even be techincally obligated to in some countries)….. Well don’t be silly. You don’t need a ‘study’ to see how he is harmed by religious beliefs. I’m not commenting on the truth of such beliefs here. It very well may be that the family’s belief in Islam is closer to the truth than the kids newfound belief in athiesm. Nonetheless, the reaction is harmful and harmful in a way that’s unacceptable if the legal system backs it up.

    Without seeing more context, I’m not seeing anything in the judge’s quote that would deny the right to ‘harm’ SSM couples by asserting they are sinful, bad, wrong etc. It is proper, though, to recognize that if this harm is to be done in the legal realm thru denial of rights it should be subjected to strict scrutiny.


  18. Wenzel J. Cummings August 20, 2010 at 11:42 am

    One quick thought. In the legal context, marriage is not a right. This fact is too commonly muddled in the public debate. Marriage is the DEFINITION of a relationship recognized by the law between two individuals in order to advance a public policy determined by the individual states. The core question with regard to same-sex marriage is about whether or not same-sex marriage effectively advances that public policy.

    The law is not there to preserve people’s feelings, maintain their self-esteem, make them feel included, or build up their self-confidence. The law is there to advance public policy. That public policy is necessarily influenced by a culture’s moral code, which in the West is Judeo-Christian. Therefore, the law also has a necessary moral/religious influence.


  19. Actually J marriage is a contract and the Constitution recognizes that individuals have a right to enter into contract, in fact that predates even the Bill of Rights.

    That’s not to say there’s no right of the states to regulate how marriage is recognized but I think it’s incorrect to give the impression that marriage is simply some state created goodie that the state can retract or deny on any whim.


  20. Wenzel J. Cummings August 20, 2010 at 12:26 pm

    I won’t quibble with you, but marriage is not a contract. It is a relationship that entails contract rights, but is not exclusively contractual.

    You are right that marriage as a religious institution does pre-date the existence of the states, but the state does have a role in the precise definition of marriage as it fits within the state’s public policy goal. In order to participate in the legal protections that are offered by the states, one must marry within the definition that the state provides.

    Differentiate between marriage as a legal institution and marriage as a religious institution. They overlap, but are not the same thing.


  21. There I don’t disagree. For example the Catholic Church does not recognize the marriages of people who are divorced. In its eyes these marriages don’t exist but legally they are married in the eyes of the law.

    The state, though, cannot just have any old goal it wants as public policy. It has to be able to justify its acts as part of legitimate interests it has and in some cases that justification has to pass strict scrutiny.


  22. Wenzel J. Cummings August 20, 2010 at 1:31 pm

    This will be my final word on this because it’s not worth arguing about these details unless we’re on a legal blog. For those who are not lawyers, however, it’s important to be clear on how the law operates so that the debate can be more informed.

    Strict scrutiny only applies when the state discriminates based on race, or when the state denies someone a “fundamental right.” A policy that excludes same-sex marriage does neither. Therefore, when a court considers the ban on same-sex marriage, it need only look at whether the ban is rationally related to a legitimate state interest (a much lower bar).

    You are also mostly wrong that a state cannot advance “any old goal it wants” as a public policy. It can, so long as it does so within the boundaries established by both the federal and the state’s constitution.

    I am only licensed in Colorado, so I can only speak to Colorado’s underlying public policy, which tracks the Uniform Marriage Act. Many other states have replicated the UMA as well, but I don’t know for sure how many. That public policy is stated at 14-2-102:

    “(2) Its underlying purposes are:

    (a) To strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships;

    (b) To provide adequate procedures for the solemnization and registration of marriage.”

    Now, we can debate whether or not gay marriage advances that public policy goal, but the goal itself, as it is stated, does not on its face breach any constitutional restrictions. It is certainly legitimate.


  23. Wenzel J. Cummings August 20, 2010 at 1:45 pm

    I lied. This is my last comment. I forgot to say that the determination of the same-sex marriage ban’s “rational relationship” to the state’s legitimate public policy goal does not look at the ban’s efficacy. The ban could very well be effectual at strengthening and preserving marriage’s integrity; or it may not. But the ban is definitely rationally related to the state’s attempt at achieving its goal.


  24. Wenzel,

    It should be noted that gender based laws are subject to intermediate scrutiny where the state must show that its policies are substantially related to a legitimate interest. This is why, for example, its perfectly legal for the courthouse to have male and female bathrooms but not white and black bathrooms.

    The standard you describe sounds like rational basis.


  25. Wenzel J. Cummings August 20, 2010 at 2:45 pm

    Yep, you’re exactly right. It is Rational Basis. And there is a gender-based quasi-suspect class. But the Court has specifically declined to place homosexuals in either Suspect or Quasi-suspect classes. Therefore, Rational Basis review is correct.


  26. That might be applicable if a state passed a law prohibiting homosexuals from getting married (say something that would apply to former Senator Larry Craig who is married to a woman and claims to not be gay but was caught soliciting male sex in an airport bathroom and has had men step forward to claim they’ve had sex with him) but as you know the challenge is based on gender. A gay or straight woman may marry a man but not a woman.

    Now practically the group most impacted by the gender restrictions in marriage are homosexuals (although there’s probably some straight people impacted, for example states take different approaches to dealing with sex change operations so in Texas two females may technically marry if one of them was born a male) but I think gender is the proper legal question here.

    I’d be curious to know what you’d think of a state that passed a law saying gays couldn’t marry (regardless of the gender of the person they want to marry). I suspect such a law wouldn’t clear the courts.


  27. Also I’m not sure I agree with you on the rational basis test either. I’m not a lawyer so feel free to correct my understanding of scrutiny:

    Basically if something is a legitimate state interest, the state can pass laws regarding it. For example, safe highways are a legit. interest so the state can pass speed limits. Suppose the state lowers the limit on a road from 55 to 45. You collect an immense amount of research and prove that such a change will actually have no impact on safety. If you bring this to court the judge will likely shrug and say petition your state legislature. Yes you have excellent evidence but since speed limits are subject to only a rational basis test the state doesn’t have to prove lowering the limit was a good policy.

    Suppose, though, the state passed a law saying that older people couldn’t drive on the road. This might rise to intermediate scrutiny. At this higher level your mass of evidence proving that age restrictions do nothing to improve safety may come into play. The state has to demonstrate that the age restriction substantially advances their legitimate interest.

    Finally suppose the state passes a law that Tibetans cannot drive on the road. Even if the state demonstrates that Tibetans have a higher accident rate than everyone else they will face a difficult, likely impossible burden to preserve the law. They will need to show that the safety problem is urgently compelling, not merely a ‘nice to have’ improvement. They would have to prove they made the law as narrowly tailored as possible to achieve that compelling interest and the least restrictive means were also used.

    Rational basis, the least level of scrutiny, does not mean anything goes. For example, I don’t think the court has ever found that discrimination against left handed people to merit a high level of scrutiny yet I doubt a law prohibiting marriage between left and right handed people (on the theory that people who use the same hand can better form ‘meaningful family relationships’) would pass muster.

    Simply saying you want to ‘protect family relationships’ and provide for and provide for ‘procedures for the solemnization and registration of marriage’ doesn’t magically make anything pass the rational basis test unless you’re dealing with a racial or gender restriction. Here the findings of fact are important, such as the refusal by supporters of banning SSM to present any evidence that non-SSM will be harmed does come into play IMO.


  28. Wenzel J. Cummings August 20, 2010 at 3:33 pm

    I’m now working on my Blackberry, so if I miss one of your points, I apologize.
    First, a law that would ban homosexuals from marrying anyone would definitely be struck down–and should be. You’re absolutely right about that.

    Per your question about which standard of review applies in a given case, my very first comment on this post deals with how that works. Read that and see if it answers your question. I apologize for how long it is, but I had insomnia that night and wrote too much. In short, left-handers, older people and Tibetans would have to qualify as a protected class in order to warrant any heightened scrutiny. Otherwise, the state has fairly broad authority to discriminate.

    Because the issue of gay marriage is closely tied to gender, here is what I think will happen–for whatever it’s worth. We won’t know for sure for a couple years, probably. Kennedy will most like give homosexuals a quasi-suspect class designation, which warrants slightly heightened review. But, he will determine that the ban is substanially related to the legitimate interest. That way he can give a little to both sides. Kennedy likes coming down the middle on big issues like this. Ultimately, then Prop 8 will prevail, but homosexuals will have a better leg to stand on in discrimination cases down the road.


  29. […] Oh, and that quote isn’t taken from Britain folks.   It’s from the Prop 8 reversal. […]


Leave a reply

Your email address will not be published.