Thursday, August 5, 2010

Brody's Scribbles... Noted Norfolk, Virgina Attorney Weighs In On Prop 8 Decision

By Michael B. Hamar (Norfolk, Virgina) AUG 5 | I have now had an opportunity to review Judge Walker's opinion handed down today in Perry v. Schwarzenegger and my reaction in a nut shell is wow!! The reaction of professional Christians and others who are enriching themselves by beating the anti-gay marriage horse to death since anti-abortion hysteria doesn't yield the money it once did is that the world is coming to an end. What may actually be coming to an end is folks like Maggie Gallagher making nice six figure incomes by disseminating anti-gay marriage lies and hate.
Judge Walker's opinion properly applied prior U.S. Supreme Court precedent and was willing to call a spade a spade. While the opinion only referenced religious belief out right once, the message in numerous parts of the opinion clearly was that the equal protection clause of the 14 Amendment of the U.S. Constitution does not allow discriminatory laws to be enacted solely because of the moral beliefs [read religious beliefs] of a majority.
Reading the opinion I could not help but note the difference between Judge Walker's directness and willingness to face the mandates of the U. S. Constitution and the Supreme Court of Virginia's refusal, without opinion, to address largely the same issues in the case of Michael Moore v. Virginia Museum of Natural History. Indeed, almost identical constitutional issues were raised by Moore in briefs to the Court.
Was the Virginia Court - the justices of which are not appointed for life unlike federal judges - afraid to face the wrath of Governor Bob "Taliban Bob" McDonnell, Virginia Attorney General Ken "Kookinelli" Cuccinelli, and/or the Republicans in the Virginia General Assembly who largely function as puppets of The Family Foundation, the Virginia affiliate of Daddy Dobson's Focus on the Family? We will never know since the Virginia Supreme Court rejected Michael Moore's appeal without rendering any opinion.
But I digress. In his opinion, Judge Walker enumerated many findings of fact that savaged the proponents of Proposition 8, particularly anti-gay Christianist witnesses who in the final analysis had nothing [other than religious belief] to support their anti-gay bigotry. Needless, the Christo-fascists will appeal the decision which is stayed for two days to allow the parties to submit arguments on why the ruling should be stayed pending an appeal to the Circuit Court of Appeals for the 9th Circuit. The war is far from over, but Ted Olson and David Boies have won the first battle and Walker has written an opinion that was obviously written from a perspective of making a reversal difficult on appeal. Here are a few of the best lines from the opinion:
To the extent California has an interest in encouraging sexual activity to occur within marriage (a debatable proposition in light of Lawrence, 539 US at 571) the evidence shows Proposition 8 to be detrimental to that interest.
Proponents argue Proposition 8 advances a state interest in encouraging the formation of stable households. Instead, the evidence shows that Proposition 8 undermines that state interest, because same-sex households have become less stable by the passage of Proposition 8. The inability to marry denies same-sex couples the benefits, including stability, attendant to marriage.
Proponents failed to put forth any credible evidence that married opposite-sex households are made more stable through Proposition 8. FF 55. The only rational conclusion in light of the evidence is that Proposition 8 makes it less likely that California children will be raised in stable households.
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than
their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) ("[T]he Constitution cannot control [private biases] but neither can it tolerate them.").
"[M]oral disapproval, without any other asserted state interest," has never been a rational basis for legislation. Lawrence, 539 US at 582 (O'Connor, J, concurring). Tradition alone cannot support legislation. See Williams, 399 US at 239; Romer, 517 US at 635; Lawrence, 539 US at 579.
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex
Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
Michael B. Hamar is a practising attorney in Norfolk Virgina and has over Thirty (30) years experience in Civil Ligation. Openly Gay in a committed relationship; formerly married and father of three wonderful children, he describes himself as a sometime activist and political/news junkie. Hamar says that he has survived coming out in mid-life and hopes to share his experiences and reflections with others as a contributor to The Bilerico Project and on his blog: [Link]