A Legal Analysis of Prop 8 Decision (John McCauslin, Guest Post)

As a follow up to our recent discussion of the consequences of the recent decision overturning California's Prop 8, which defined marriage as between a man and a woman, thereby excluding homosexuals from being granted marriage licenses -- and therefore the rights and benefits ordinarily provided to heterosexual married couples -- I asked John McCauslin, an elder in the congregation I pastor and a practicing attorney, to offer a legal analysis of the decision.  Now, this is a legal analysis of the reasoning behind the decision.  It is not, a theological analysis.  Ultimately, when it comes to marriage itself, congregations will have to make the decision as to whether or not they will participate/acknowledge these marriages.  We've had conversation about these other issues, so what I'd like to do here is simply limit the conversation to the legal implications of the case.  The issue itself emerges out of a broader conversation about how the Constitution is interpreted and applied.  I appreciate John's willingness to try to distill this issue into a rather brief 1200 words.  (Again, I'd like the conversation to focus on the legal issues, and not rehash the debate as to whether same sex marriage is contrary to Scripture).

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Same Sex Marriage and the Law

By John McCauslin, JD

Two same-sex couples, including Kristin PERRY, applied for marriage licenses, each in different California counties and were turned down because of the requirement adopted into law by Proposition 8, passed by referendum in November of 2008. Specifically, Proposition 8 enacted a law which provides in its entirety: ”Only marriage between a man and a woman is valid or recognized in California.” Before the law was enacted over 18,000 same-sex couples had been granted marriage licenses by the State of California.

In May of 2009, the couples sued the county clerks, the state Department of Health, the state Attorney General and the Governor, Arnold SCHWARZENEGGER. The case was captioned PERRY v SCHWARZENEGGER, and filed and tried in the United States District Court for the Northern District of California. After a trial in January of 2010, on August 4, 2010, Chief District Court Judge Vaughn R. Walker, issued his Opinion and Order. While the judge is openly gay and in a long term gay relationship, the potential for bias is unavoidable, since the only other judges who could have hear the case were heterosexual, and thus just as predisposed, or not, to reflect a bias.

Plaintiffs argued that their rights to due process and equal protection under the law were violated by Proposition 8. The government defendants refused to defend. The proponents responsible for getting Proposition 8 on the ballot and getting it passed were allowed to intervene as defendants and mount a legal defense of the new law.

While plaintiffs called eight lay witness and nine highly qualified experts, defendants were able to call only two witnesses, both of who were disqualified as experts by the court. Defendants’ primary “expert” David Blankenhorn, is an anti-gay activist with no credentials or formal training as to the history, sociology, psychology, or the legal or ethical issues regarding same-sex marriage. He testified that his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.”

Blankenhorn also testified that "marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be “a victory for the worthy ideas of tolerance and inclusion.”

Judge Walkers’ opinion included 80 specific “Findings of Fact” detailing the evolution of the civil institution of marriage, the history of invidious discrimination suffered by gays and lesbians generally and in regard to the institution of marriage, and documenting the evidence that gay marriage will not only cause no harm to the institution of marriage, but will result in wide ranging social and economic benefits to gays and lesbians and to society at large.

In its Due Process analysis, the court considered the evidence as it applied to two basic questions: (1) does the ban on gay marriage constitute a denial of the right to marry, and (2) does the state have any lawful basis to effectuate such a ban. Based upon the evidence presented the court found that Proposition 8 denies members of same-sex couples the right to marry a person of one’s choice, and that the state has no legitimate interest in denying this right to members of same-sex couples and therefore it violated the plaintiffs’ Constitutional rights to Due Process.

In its Equal Protection analysis, the court determined that Proposition 8 was discriminatory based on gender and sexual orientation. Based on its factual findings, the court ruled that the state had no lawful basis to enforce such discrimination. The court ruled that the state had no compelling interest, and in fact no rational basis, for allowing opposite sex couples to marry the person of their choice, while denying members of same-sex couples that same right. The court also ruled that the California provision for parallel (echos of “separate but equal” institution of “domestic partnerships” was not an adequate legal substitute for the right to marry because “marriages” and “domestic partnerships” carried very different social and economic consequences.

In one of the most revealing quotes from the decision the court ruled:

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.” Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Because the government defendants declined to advance such arguments, proponents (of Proposition 8) seized the role of asserting the existence of a compelling California interest in Proposition 8. (pp116-7)

In declaring Proposition 8 unconstitutional, the court concluded:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.

Of significant importance, is the fact that the court based its ruling on findings of fact instead of exclusively on the judge’s interpretation of the law. Appellate courts are far more reluctant to reverse a decision based on factual findings than a decision based on legal merits.

More recently it has been noted by Judge Walker that in Perry v Schwarzenegger the proponents’ appeal may be thrown out because the proponents have no legal standing to claim an appeal. Federal procedural law limits the class of those who may appeal a ruling to include only those litigants who are adversely affected by a ruling or those who may be compelled to enforce such a ruling. The court has already made a finding of fact that heterosexuals will not be adversely affected by same-sex marriage. Therefore, proponents can show no adverse effects of the ruling on themselves. Because the proponents are not part of the state government of California they will not have any role in enforcement. And it appears they have no lawful standing to appeal.

People should be aware that this case is the second salvo in a war by the courts against crusading right wing religious groups seeking to subvert the law to their own purposes. In early July of this year a federal judge in Boston overturned part of the Federal Defense of Marriage Act (DOMA), declaring unconstitutional its ban on federal recognition of same-sex marriages that are otherwise legal at the state level. The case, Gill v Office of Personnel Management, was brought by gay or lesbian couples, who were legally married in the state of Massachusetts but, because of DOMA, had been denied various benefits such as “joint tax filing, social security, health and life insurance for the spouses of federal employees”to which heterosexual couples are entitled. United States District Judge Joseph Tauro rule that the DOMA impermissibly violated the Equal Protection Clause of the Constitution by creating two unequal classes of married couples.

These two decisions send a clear signal to anti-gay Christians that Federal courts are not going to tolerate attempts by religious groups to subvert and manipulate the law to punish and otherwise disadvantage people and groups with whom they disagree.

John McCauslin is an Elder at Central Woodward Christian Church (Disciples of Christ) and a practicing attorney in the state of Michigan. 

Ecclesial Implications of Marriage Equality

If, as I believe, the pendulum has swung in the direction of legalizing the marriages of gays and lesbians, the church will be forced to wrestle with its implications.  I've invited John, one of our frequent commentators and an attorney, to write a legal analysis of the Prop 8 decision.  From what I've been reading, its unlikely that the appellate courts will overturn the District Court ruling on legal grounds.  It is, therefore, likely that the case will go to the Supreme Court.  Should they hear it -- and generally that means that four justices agree to hear it -- then it will be interesting to see where this goes.  If things go as they generally do, the deciding vote will be Anthony Kennedy.  If this ruling stands, and it just might do so, then it has implications for the entire country.  If upheld, it could very well overturn gay marriage bans across the country.  Now there could be an effort to enshrine traditional marriage into the Constitution, but I don't think that this will fare well.  Amendments to the Constitution take a lot of time and effort, and the cultural trends are working against such an eventuality.

Therefore, I believe that the ball has been effectively placed in the court of the church (and other religious communities).  Although the legal ramifications could mean that the "state" could no longer refuse to grant marriage licenses to same sex couples, and it could lead to the overturning of the "Defense of Marriage Act," which denies recognition to same sex couples on a statutory basis, this doesn't mean that churches have to recognize such marriages.  Clergy do act as agents of the state when they perform weddings, but they're not the only possible agents. 

So the question looms -- how will the church respond?  At least initially, I expect most ecclesial bodies will continue business as usual.  With few exceptions, most Christian denominations do not recognize gay unions of any kind, including marriage.  My own denomination, the Disciples of Christ, has taken no official position, so that really leaves it up to local congregations.  As for my congregation, we are only now beginning conversations about these issues (not just gay marriage, but homosexuality and the church in general).  We've not taken a position, and it is my stated view that I will not participate in such a marriage ceremony until the congregation has come to a consensus on the issue.  At this point, I simply don't know where the congregation will come out on this issue.  I know that there is openness, but traditions and cultural mores die very slowly, if at all.  Tradition may not be a useful argument in the court of law, but it is in the church. 

So, I'd like to open up the discussion as to what the implications for the church might be.  Let me put a caveat here -- I'd rather that we not reargue the question of whether or not Scripture casts homosexuality in a negative light -- we've had this discussion.  I'd rather not have this be about the legal aspects either -- hopefully John can shed light on that question.  What I'd like for us to do is have a "civil" conversation that wrestles with the implications for the church if Prop 8 is declared unconstitutional, which might make it legal across the vastness of this nation for people to marry same sex partners and receive all the rights and benefits currently accorded to heterosexual couples.   

The March toward Marriage Equality

When Proposition 8, the amendment to the California Constitution limiting marriage to a man and a woman, passed, it did so by a rather narrow margin -- 52% to 48%.  Opponents to same sex marriage received tremendous financial support from religious groups, especially the Mormon Church.  This amendment served as a response to an earlier California Supreme Court ruling that overturned bans on same gender marriage because they were inherently discriminatory and akin to bans on interracial marriage, which had been overturned in California by the Courts.  What is interesting about California is that it's easier to amend the constitution than pass a budget, and so needing only a simple majority, the voters reversed the court ruling.  That effort led to efforts to overturn the California law by taking it to federal court and arguing that this ban stands contrary to the "Equal Protection" clause of the U.S. Constitution.

Leading the challengers to the law was an interesting pair of attorneys -- two men who faced off against each other in 2000 before the Supreme Court.  The issue then was the 2000 Presidential Election, a case in which the Supreme Court stepped in and ended Florida recounts and handing the election to George W. Bush, even though Al Gore had won the popular vote.  Maybe you remember that.  Anyway, Theodore Olson, Bush's lead attorney in that case, would go on to be Solicitor General -- the position that Elena Kagan held until receiving confirmation yesterday as our next Supreme Court Justice.  Olson is a conservative, a republican, and an advocate for gay marriage!  Sometime back he wrote an important op-ed piece in which he argued for a "conservative case for same sex marriage."   In that piece he wrote:

When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.

So, earlier this week, arguing for the opponents to Prop. 8, his position was vindicated by the Court, when Federal Judge Vaughn Walker argued in his ruling that that tradition alone, including the presupposition that marriage fosters procreation,  is not sufficient to deny rights to one segment of society that is not accorded to another.  

I know that there will be much outcry about activist courts that overrule the will of the people.  Remember, however, that it was the "will of the people" that banned interracial marriage.  It wasn't the legislatures that overturned that discriminatory practice, but the Courts.   It was the will of the people that segregated buses, lunch counters, and schools.  It wasn't legislation that overturned these discriminatory practices, it was the Courts (only afterwards did the Civil Rights legislation get passed to affirm what the courts had already deemed appropriate). 

More important than the initial effects of this ruling are the longer term ones.  Remember that in that earlier election, the vote was rather close -- just a 4 point margin.   While California is considered more liberal than most states, there large swaths of the state that are fairly conservative.  In addition, the Roman Catholic Church and the Mormon Church have significant presences and they both actively backed Prop 8.  In addition, while Latinos and African Americans tend to vote Democratic, they also tend to be social conservatives.  Finally, while the trend in 2008 led to the amendment, recent polls suggest that the wind is at the back of those who support same gender marriage.  So, what's next?

Obviously this will be appealed, and expect it to go all the way to the Supreme Court.  My sense is that the Appeals Court will sustain the District Court judges ruling.  What will be interesting is whether the Supreme Court chooses to hear the case.  It may not choose to do so.  If it does choose to rule, then the question is -- where will Anthony Kennedy take his stand?  If it goes all the way and the Supreme Court rules in favor of the opponents of Prop 8, then we have a perfect storm.  If Prop 8 is ruled unconstitutional then so is every other marriage ban across the nation -- including federal ones.  I think that's what scares religious conservatives (and even many moderates and liberals -- remember that the President has expressed his own discomfort with gay marriage).     

The cultural wind is at the backs of those who support same sex marriage.  Society has become more and more accepting of gays.  In addition, it is becoming increasingly clear that homosexuality is not a chosen "persuasion," but a genetically defined orientation.  The judge in this case accepted as foundational the premise that this is not something that is either "chosen" or "changeable."  My sense is that among those under 40, the majority is not only accepting of gays, but supportive of gay marriage.  The idea that marriage is primarily designed to support procreation is no longer foundational.  We marry for love and companionship, with children as a secondary element.  Besides, with adoption and artificial insemination  there are other avenues for creating families. 

If society is moving in this direction, the religious community seems to be somewhere behind the curve.  It will be a long time coming in Roman Catholic Churches, whose teaching reinforces the principle that marriage, sex, and procreation all go together (my uniformed assumption is that the Orthodox churches would be somewhere in the mix here -- at least regarding the importance of tradition).  Most evangelical churches will stand back from it because they believe it is contrary to their reading of scripture.  Thus, that leaves more moderate to liberal Mainline Protestant churches.  We are, to this point, a mixed bag.  The United Church of Christ and the Evangelical Lutheran Church have taken the most progressive positions.  Disciples of Christ have left these issues to congregations -- with discussion at the "level" of the General Church essentially staying out of the conversation.  What is important to note in all of this is that no church will be "forced" to marry anyone they don't wish to marry.  Although clergy fill a societal role in officiating at weddings (we sign off on the licenses), we are not required to act contrary to theology or beliefs.  

So, where will this lead?  Only time will tell! 

Gays and the Church -- Interview with the Rev. Steve Kindle

Gay Marriage and the rights of gays and lesbians in church and society is an ongoing debate in the churches and in society, though it seems to be much less a concern for those under 40.  Several years ago I published an interview with my good friend Steve Kindle at the blog Faithfully Liberal, a blog to which I was a regular contributor, but one that is sadly no longer in existence (at least not as a functioning entity).  Knowing that the issue continues to rage on, I thought I'd reprint this to stimulate your conversation.  Since this interview was published, Steve became the pastor of a Disciples congregation in Fremont, CA.   His blog is called  Open Hearts -- Affirming Pages. 

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The Rev. Steve Kindle has a unique ministry. He is Executive Director of Clergy United for the Equality of Homosexuals, a consulting and education organization focused on the inclusion of homosexuals and transgender persons in the church. Originally ordained in the conservative Churches of Christ, in whose colleges and seminaries he received his theological education, today he has standing in the Christian Church (Disciples of Christ) and the United Church of Christ. Before founding Clergy United, he served as pastor of two “Open and Affirming” Disciples congregations, and since then has served as consultant to congregations exploring the process of becoming open and affirming to the GLBT community, and this fall (2007) he’ll be speaking to a number of Log Cabin Republican groups.  

Q. You’re straight and happily married, so why this cause?

A. Yes, it’s true that I have no “hidden agenda” behind my interest in promoting gay equality in the churches. It comes, very simply, from my understanding of the gospel: We are to welcome one another as Christ has welcomed us—unqualifiedly, without exception.

Q. Since your background is fairly conservative, what was it that changed the way you looked at homosexuals?

A. I was raised in a very conservative home, both politically and religiously. My understanding of the gay community was formed by all the stereotypes that typically accompany such an upbringing: that they are in the main promiscuous, self-centered, lust filled, choose this “lifestyle,” and are not to be trusted around children. I happened to move from North Dakota to San Francisco and, in the course of getting to know the gay community, I discovered the startling reality that GLBTs are as normal as any other large segment of America. Also, working with many gay Christians challenged my view that “gay Christian” is an oxymoron. So, I began a lifelong pursuit of examining the scriptures used to support the antigay view and found the traditional interpretations wanting.

Q. What role does religion play in how we view homosexuality?

A: One’s religion is usually a received phenomenon. We accept what we are given with little reflection. Since most people are not familiar with gay people (at least knowingly), our religion provides us the context for understanding and relating to them. If one is raised in an environment where GLBTs are named as abominations and condemned to hell, it is difficult not to become homophobic.

Q. To take this to another level, since you teach a seminar on the Bible and Homosexuality, what is the role of biblical interpretation in forming our views?

A. Most Christians don’t form their views, they inherit them. In the case of Fundamentalist, those who teach them seldom interpret the Bible; they are content to “let the Bible speak for itself.” So the surface reading of the scriptures is left as the final meaning rather than as the starting point for understanding. It’s as though the Bible should be read the same way we read the morning paper, without taking into consideration that some 2,000-3,000 years separate us from the original documents. If you are going to take the Bible seriously, you can’t take it literally; what it says may not be what it means in the least.

Q. If religious communities have traditionally been inhospitable places for gays and lesbians, how might they become open and affirming?

A. Change can only come when people are given, or give themselves, the opportunity to meet gay Christians. That’s why “coming out” is so important. When people discover that the notions they have just don’t hold up, change can begin. That’s why I encourage gays to go back to their churches, even though they can be unwelcoming places, and be a living witness against the lies told about them. Most of the congregations I am familiar with which have become open and affirming did not make the change simply for reasons of justice (although it happens). Most discovered that the GLBTs among them deserved to be treated with gospel welcoming.

Q. Although ordination is a point of contention in most churches, it’s marriage that is the issue that seems to be a problem even for the most progressive among us. Why is this?

A. I’ve discovered that the refusal to marry same-sex couples comes more from polity than from belief. If the restriction were lifted, there would be immediate and wholesale gay marriages performed all over the country. In spite of the restrictions, many clergy do it anyway, and many others perform union blessings that are in reality marriage by another name. I find it very curious that we won’t allow gays and lesbians to marry, and then accuse them of not behaving as we straights (should) behave!

Q. With younger Americans seemingly more accepting of homosexuality, do you see a major sea change in both the church and in the broader culture occurring in the near future?

Projecting the effect of the Millennium Generation taking the power now held by the Baby Boomers is wonderful to contemplate. All the polls suggest that being gay is a non-issue for them. However, as in all the major sea changes in America, from slavery, segregation, women’s rights and now gay rights, the church always comes in last. The citizenry as a whole is much farther ahead of the church on gay rights. I’m not looking for much to change in this regard. We have much to answer for.

Q. Finally, Steve, is there anything we’ve not yet covered that you just have to get off your chest?

A. Yes, indeed, and thank you! Ultimately, the refusal of marriage to same-sex couples is a denial of their humanity. The first “not good” of creation was God’s discovery that “it is not good for the human to be alone.” When the church denies marriage to gay couples it is saying that you are not worthy of having your loneliness relieved in the only way it is possible. In other words, you are not worthy of being a human being. Imagine the anguish of a straight person not being able to marry, ever, unless he or she married someone of the same sex. God created us all in the image of God. Who are we to denigrate that which God has made?