Thursday, August 5, 2010

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,'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 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 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 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.


  1. FANTASTIC post! I'm giddy with joy after reading this and understanding more- thanks so much for sharing your insights in another eloquently written expose!

  2. Thanks Ryan for your sweetness and for reading!


  4. Thanks Brandon, I haven't had a chance to read the full document yet and am know that much more excited to do so. Lawrence V. Texas which overturned sodomy laws was a similiar good read. I believe it was the first U.S. Supreme Court judgement to reference, quote and apply queer theory causing similiar excitement about it's broader implications going forward.

  5. Wow Mr. Campos! You must have stayed up all night long writing this! Great post!!! :) On a side note, I was at the Celebration in West Hollywood. It was incredible being there and listening LIVE to the attorneys responsible for this historic ruling! What a moment!! :)

  6. That must have been so much fun, Jason. And, you give me too much credit. I wrote this in about an hour this morning while drinking my morning tea.

  7. That's even more impressive. Only an hour? You type very fast. lol Hugs! And yes, it was a lot of fun. There was a hilarious moment that still makes me crack up laughing. As the celebration was coming to an end, CNN was reporting from the sidelines. As the reporter was being taped, behind him appears this 6'1" monster-sized guy dressed in a skin tight Wonder Woman outfit with a blonde bob-cut wig. He held a sign above his head that said "I Do!!" OMG, everyone around laughed histerically! The CNN reporter could barely keep it together. The image is forever engraved in my head! lmao

  8. SO hilarious! I wish that I'd seen that CNN moment!

  9. Brandon - yes, this is an excellent point, and I caught it immediately once I started reading through the decision... this decision is not about marriage, it is about EQUALITY, at every level, for queer people and their families.

  10. Answer me this: (confirming what a friend said yesterday) The ruling yesterday is headed to the US Supreme Court and when it does, no other arguments or documentation can be added to the case? I was told that everything is locked into place and set into stone, thereby any court appeals or future rulings have to strictly go the evidence and findings that was submitted in the original case. True? If so, this is awesome news since the defense had nearly no supporting evidence to prove their side!

  11. Finally the truth of it all surfaces! I've been debating the fact for so long that it wasn't all about marriage but about everyone's equal rights as it is exactly what our forefathers have written into the American Constitution, and how the great late President Lincoln re-affirmed the definition of equality!

  12. So, Jason, I am not a lawyer. What I have heard/read is this: in the course of deciding whether or not to accept an appeal, the appellate court, in this case the 9th Circuit Court (which is where this would go, not directly to the SCOTUS), would have to judge, based on the evidence presented in the case before the district court and the judgment rendered by the presiding judge if there is cause for an appeal. This can mean many things. For example, the 9th Circuit could decide that the judge used the wrong type of review to determine the case (for example, the judge required strict scrutiny, and the 9th Circuit could determine that intermediate or rational basis were required). The 9th Circuit could flat out question the ruling or the Circuit could accept the appeal on a procedural claim (aka the losing side claims that a mistake was made and that mistake was egregious enough to warrant further review). I am not sure of all the different basis for appeal, but there has to be something more than just...I lost and I don't like the fact that I lost. So the first move would be for the 9th Circuit to determine if there is, in fact, a basis for an appeal. If there isn't a basis, if I understand this correct, the court can affirm the decision of the lower court or narrow the scope of the decision (right now the way that the decision is worded it is very broad...they 9th circuit could decide to uphold the decision but limit its scope to just California instead of the entire 9th circuit). From what I understand, and I could be wrong, is that if the court accepts the appeal, then more or less new testimony could be introduced based on the challenges provided in the ruling by the lower court. So, my best educated guess is that, in fact, no what you were told is either only partially correct or not correct at all.

    Of course I could be absolutely wrong. So, I would talk directly to a practicing attorney to get a definitive answer to this question.

  13. thank you, brandon. because you wrote this, i could read it while peering around the chip on my shoulder about gay marriage. this was GOOD.

  14. Thanks Susan Raffo! Happppppppppy Birthday plus one day!


Thank you for sharing your thoughts, feelings, and insights. And thank you for reading!