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Eugene Weekly : Natural Resistance : 9.9.10




Moral Disapproval

The majority does not always know best

By Mary O'Brien

It’s always interesting to ask someone what their favorite reading material is. Long at the top of my favorites is a good court opinion. Of course “good” is in the eye of the beholder. When the case involves the environment, “good” means to me a court opinion that is thoughtful, informed and rules for the health of humans, other species and ecosystems.

On the other hand, I also want to read a thoughtful, informed opinion that does not rule for the environment because I need to know how the opinion was reached so I can consider whether and how that aspect of our environment can come out further ahead the next time. 

Unfortunately, some court opinions aren’t so riveting. They might be sloppily constructed, reveal few facts presented at trial or focus on technicalities that have little to do with the burning issue.

But one really good read is the recent 136-page ruling by U.S. District Court Chief Judge Vaughn Walker in Perry v. Schwarzenegger. It can be found on the web, and a description of events leading up to the case can be found at Wikipedia. 

Walker ruled that California’s Proposition 8, an initiative passed by California voters in 2008 as a state constitutional amendment, is federally unconstitutional. Proposition 8 states, “Only marriage between a man and a woman is valid or recognized in California.” Walker’s ruling already has been appealed to the Ninth Circuit Court, and some years from now the Supreme Court may agree to rule on it. So the story hasn’t ended, but Walker’s account of the trial and of his legal reasoning is a fascinating chapter.

For one thing, Walker reminds us that just because a majority of Californians who voted on Proposition 8 voted “yes” doesn’t mean that what Californians voted for is legal under our nation’s Constitution. As was noted during the trial, 41 states and territories once had laws prohibiting the marriage of white people with African-Americans. That once-popular “no” wasn’t legal under our nation’s Constitution. 

As the plaintiffs’ attorneys showed, the defendants (proponents of Proposition 8), could point to only one difference between same-sex couples and opposite-sex couples: Some of the latter can produce offspring biologically related to both parties. So? Many opposite sex couples cannot or decide not to produce biological offspring, but they still can marry. Both opposite-sex and same-sex couples foster and adopt and raise children, and the children of both types of couples are indistinguishable in terms of health and social adjustment. Both types of couples benefit equally from marriage. The government benefits equally from marriages of both types of couples, economically and socially, in terms of marriage providing greater stability, health and economic benefits for both types of couples. 

So what dog does the government have in the fight over who gets to marry and who doesn’t? None. But the government does have a dog in the fight over due process and equal treatment for all people. 

What is particularly interesting in the 136 pages are the facts, history, study results, Proposition 8 ads and claims that are quoted and brought forth and challenged, resulting in the court’s conclusion that Proposition 8 wasn’t based in accurate information, wasn’t based on evidence and thus had no rational basis. Some of the facts and history summarized and quoted in the ruling indicate that religious institutions and religious beliefs played a core role, financially and persuasively, in passage of Proposition 8. For instance, CNN exit polls found that 84 percent of those who attend church weekly voted “yes” on Proposition 84, and 54 percent of those who attend church occasionally voted “no” on Proposition 8, and 83 percent of those who never attend church voted “no” on Proposition 8.

“Moral disapproval alone [i.e., in the face of evidence that no harm is being done by same-sex marriage to children, either type of couple, society, or the institution of marriage] 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 couples.”

It’s all so interesting: Don’t votes make law? What happens when a government and a religion define marriage differently? What does it mean to have three branches of government instead of just two? 

Mary O’Brien has worked as a public interest scientist since 1981. She is currently dividing her time between Eugene and Castle Valley, Utah.