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Prop 8 Findings Of Fact

August 5, 2010

There is no shortage of discussion of U.S. District Judge Vaughn Walker’s Prop 8 decision in Perry v. Schwarzenegger yesterday, and no shortage of analysis, so I won’t duplicate others’ efforts. What I will do is provide the key findings of fact, and explain why that’s important.

Appellate courts — the Ninth Circuit and the Supreme Court — are supposed to say what the law is, and how it applies to particular facts. The District Court is supposed to figure out what the facts are, and do the actual applying. That’s only slightly oversimplified. In the rush to read Judge Walker’s reasoning, most commentators have not focused on the facts. But if the Circuit or the Supremes want to change what Walker said about the law, all they do is say, “no, that’s not the law.” That’s what’s called a de novo review; they owe the lower court no deference.

Facts are different. There was a trial. Usually the trier of fact is a jury, but sometimes as here, it’s a judge. The judge finds the facts. Those findings of fact are supposed to get a more deferrential review. The judge below actually heard the testimony and had the full record, so hers or in this case his in the view from the playing field. That’s not to say that appellate courts never find ways to change the factual record, but the facts have a staying power that legal reasoning doesn’t. What Walker found as a matter of fact, the subsequent courts are more stuck with than his rulings of law.

Now, you, gentle reader, probably don’t want to wade through the dozens of pages. Each finding of fact had several subparagraphs where Walker basically cited the evidentiary backup, and it goes on for a while. To save your eyes and help my fellow bloggers say intelligent things about what this case did, I’ve excepted what I think are the key Findings of Fact, 42-80, without the supporting subparagraphs. Basically, it’s a manageable memo at that point, so if you want to read what Walker found, you can. For those interested in the long version, probably everyone has it, I got it at Pam’s.

Here are the findings of fact, 42-80, in brief. Formatting issues are my cut-and-paste, all typos should be blamed on the judge’s clerk.

42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late ineteenth century.

43. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.

44. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.

46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

47. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.

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 samesex 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.

50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.

51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.

52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.

53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.

54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.

55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

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

57. Under Proposition 8, whether a couple can obtain a marriage license and enter into marriage depends on the genders of the two parties relative to one another. A man is permitted to marry a woman but not another man. A woman is permitted to marry a man but not another woman. Proposition 8 bars state and county officials from issuing marriage licenses to samesex couples. It has no other legal effect.

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.

59. Proposition 8 requires California to treat same-sex couples differently from opposite-sex couples.

60. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples.

61. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.

62. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

63. Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. Strauss, 207 P3d at 102 (“Proposition 8 does not eliminate the substantial substantive [constitutional] protections afforded to same-sex couples[.]”)
(emphasis in original).

64. Proposition 8 has had a negative fiscal impact on California and local governments.

65. CCSF would benefit economically if Proposition 8 were not in effect.

66. Proposition 8 increases costs and decreases wealth for samesex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs.

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.

69. The factors that affect whether a child is well-adjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) the availability of economic and social resources. Tr 1010:13- 1011:13 (Lamb).

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.

75. Public and private discrimination against gays and lesbians occurs in California and in the United States.

76. Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

78. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians.

79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from samesex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or
lesbian child.

80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.

8 Comments leave one →
  1. August 5, 2010 9:37 am

    Thank you, Thomas, for laying this out in this format! It really was pretty useful for me over at the BARCC blog!

    And thank you, Judge Walker, for putting together this decision!

    I’m really excited and can’t stop using exclamation points!

  2. DavidC permalink
    August 5, 2010 11:53 am

    As with many of the arguments/rulings in favor of marriage equality, this is a bit worrying!

    People who don’t want to get married should also be protected from social stigma and from “increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage.”

    Oh well. I’m sure it’s being said in a lot of places, but I wanted to say it here.

    • Berneta permalink
      August 5, 2010 9:18 pm

      DavidC, YOU ARE SO RIGHT! Single people do need to be protected in the same manner. And I find it totally ridiculous that I have to suffer financially for my decision to remain single. Otherwise, great post, Thomas! I will definitely be returning to this blog: I’ve already put you on my blog roll.

  3. August 5, 2010 7:16 pm

    Thanks for posting this. I started writing a comment with some criticism of various points in the list, but it ended up long enough to make a blog post about it, so that’s what I did.


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