Why the Prop 8 Decision Really Matters...

Let me begin by saying that the decision by United States District Chief Judge Vaughn Walker in California was a rousing victory. For same-sex marriage advocates, the victory is that the fundamental right to marry has been acknowledged to include same-sex couples. I am very happy for them, but that is the very last reason that I am excited about this ruling. Indeed, and this can be addressed in another blog--and has been addressed widely and coherently by the Beyond Marriage Coalition--the same-sex marriage movement (please note I said the movement and not the goal) is, in many ways, harmful to the overall fight for queer liberation, supports and injects assimilationist values in the queer movement, and has diverted an overwhelming amount of resources into a narrow issue that, while relevant to all same-sex couples, is not a priority for many queer folks particularly many queer people of color, gender queer, polyamorous and non-monogamous queers, people living with HIV/AIDS and so many other segments of the movement and community.

The true victory of the ruling in Prop 8 is what was contained in the judgment and the facts found by the court. These particular findings, particularly if upheld by the 9th Circuit Court, which is where this fight moves next, have the potential to radically and permanently alter the social landscape of the United States in much the same way that Brown v Board of Education and Loving v Virginia did for people of color.

I am not a lawyer, but, as I mentioned recently, reading rulings gives me a woody.

To begin with, Judge Walker establishes the basis for judgment. The plaintiffs assert that Prop 8 denies them both Due Process, which is protected by the 14th Amendment to the Constitution, and equal protection under the law, which is also included in the 14th amendment. On page 109, Judge Vauhn makes his first judgment that is critical: he applies the requirement of strict scrutiny.

In the legal system, when making a challenge to a law, there are different levels of examination that a judge can choose to apply to the case. The most stringent of those is strict scrutiny which demands that the government must show a fundamental and compelling argument for why it is enacting laws that restrict a fundamental right. If the Judge had decided that the government must only show rational basis when denying a group of citizens a fundamental right, he would basically be saying, "Come up with a logical argument, you don't really have to have any interest besides your argument, and if the argument sounds good, well, heck...it's good enough for me too." When strict scrutiny is applied the judge is saying, "Not only better this argument be good and rational, you have to prove to me how the state itself would be harmed by allowing this right to be practiced...and when I say harmed...you better give me dollars and cents, floods, famines, plagues, and the spontaneous cloning of Sarah Palin every time a gay gets married..." Amen.

By establishing the requirement of strict scrutiny, Judge Walker sets a precedent for examination of the case that the 9th Circuit is unlikely to overturn, which means that the appeal will also be held to a higher standard and the burden of proof lies with the defendants and not the plaintiffs. This is key.

Then Judge Walker does something that makes me want to lay a wet sloppy one on him. On page 113 of the ruling, he states:

The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.That time has passed.

Translation: "Get it together....men no longer own women, and women are no longer required to be barefoot and pregnant at home."

But wait, it gets even better when Judge Walker establishes in his ruling the direct connection between heterosexism and sexism! Now, progressive folks have been screaming for years that the root of homophobia and heterosexism is straight up sexism...now...it is part of the judicial record. Why is this important you ask? There is a huge body of case law, and it is clearly established in all 50 states and the federal government that discrimination based on sex is illegal and can not be justified in any way under the Constitution. Judge Walker states, "Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination."

And then Judge Walker offers up a coup de grace when he writes:

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their
relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the
relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

This is critical. The judge has now created a ruling that requires that lower courts, when receiving cases challenging based on sexual orientation MUST also recognize them as sex discrimination. While the jurisprudence around sexual orientation is limited in many polities, the body of judicial rulings around sex discrimination are not. The judge has just opened a huge door and expanded the ways in which queer folks should be protected not only based on sexual orientation but on sex.

Next Judge Walker does something that makes me want to go from making out with him to being his number one butt boy...he states that:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

This statement is extremely critical in two respects. The first is that this statement says flat out that any and all future legislation that attempts to legislate based on restricting the rights of queer folks MUST adhere to the standard of strict scrutiny, thereby excising the possibility of rational basis review, and then he smacks the Prop 8 advocates in the face by saying that even if he hadn't chosen to apply strict scrutiny to his ruling that the law was so laughable and so ass backwards that it would not have stood up even against the lowest standard of judicial review. WORK! WORK! WORK!

The judge also tosses out the argument that just because an idea, practice, or legal tradition has an "ancient lineage," meaning that "things have always been this way," is irrelevant to a discussion of a fundamental right, and, in fact, has no place in a legal discussion.

And finally, and I believe this is, in my non-lawyer opinion, the most significant of all:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may
not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319.

The good judge says that if a right has been deemed fundamental then no body politic, whether it be a state legislation, a city council, a county legislature, a referendum of the voters or the U.S. Congress can vote to alienate those rights.

To summarize, the good judge ruled that strict scrutiny must be applied to questions of sexual orientation; discrimination based on sexual orientation is equivalent to sex discrimination; old prejudices and attitudes, no matter how long they have been held, are not legitimate reasons to deny a group of people their fundamental rights; and moral tyranny by a legislature or the voting public can not be tolerated, and, in fact the public does not have the right to take a way a groups fundamental human rights through an electoral process.

The ruling was 138 pages long, and there was a tremendous amount of thought, examination, and introspection that went into it. The judge backed up his fact finding and rulings with both judicial precedence and peer reviewed research. He systematically ripped apart the arguments of the defendants, and in one ruling wiped out the age old attacks on queers by the Right that says we are not good enough to marry, raise families, or have sex. He uses conservative jurisprudence to bolster his ruling even quoting Bowers v Hardwick, a case that went the wrong way for queer folks, to establish the reasoning behind why Prop 8 is wrong. These are the true reasons why the ruling on Prop 8 is a victory for the queer community. And through a smart, strategic, and nuanced reading of this ruling, the queer movement has a new collection of tools in the fight for our liberation. Marriage was the vehicle....but it isn't and should never be the focal point or the end point. Liberation is the end point, and we need to continue to define what that looks like and create a strategic way for ALL of us to get there without sacrificing or setting aside our history of sexual liberation, gender expression, kink, joy and all around queerness.