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Living Out The True Meaning of Our Creed

SOURCE: AP/Jeff Chiu

Sheree Red Bornand, right, hugs Aidan Dunn after hearing the decision in the United States District Court proceedings challenging Proposition 8 outside of the Phillip Burton Federal Building in San Francisco on August 4, 2010.

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U.S. District Chief Judge Vaughn Walker declared Wednesday the basic truth that gay couples love just as intensely, care for their children just as deeply, and are entitled to the very same dignity as straight spouses. And that is just one small part of his opinion. Indeed, if Judge Walker’s reasoning is upheld on appeal, Perry v. Schwarzenegger—which struck down California’s ban on same-sex marriage, Proposition 8—will be the judiciary’s single most important blow against inequality since the Supreme Court’s landmark decision in Brown v. Board of Education.

Walker offers at least four different reasons why Proposition 8 offends the Constitution. But the most striking is his holding that sexual orientation qualifies as a “suspect class,” a determination which means that discrimination against gay men and lesbians is subjected to the highest level of constitutional scrutiny.

Suspect classification protects groups that have a “history of purposeful unequal treatment,” or have been “subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Race, for example, is a suspect class, because racial minorities have experienced a terrible legacy of discrimination and because a person’s race has nothing to do with their talents or their character.

As Judge Walker determined, race and sexual orientation share many traits in common. Like race, one cannot determine one’s own sexual orientation. In the words of the opinion, “[n]o credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Likewise, laws like Proposition 8 “place the force of law behind stigmas against gays and lesbians” in the same way that Jim Crow branded African Americans as inferior. Most importantly, Walker also determined that a person’s sexual orientation is no reflection on their commitment to their spouse or their devotion to their children.

Beyond his suspect class holding, Judge Walker also determined that the arguments supporting antigay laws such as Proposition 8 are completely divorced from reality—itself a sufficient reason to hold a discriminatory law unconstitutional.

Indeed, the court determined what gay rights supporters have long known: Opponents to marriage equality (and likely a whole host of other rights for lesbian, gay, bisexual, and transgender people) have no rational evidence for their opinions or beliefs. They are based on malice at worst and ignorance at best. And as the decision said, “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.”

Judge Walker’s ruling artfully dismantled the primary arguments against allowing gay couples to marry, including that marriage’s primary purpose is to support procreation, that having gay parents is somehow harmful to children, and that domestic partnerships are an adequate substitute for marriage. Both sides in the case had the same opportunity to present evidence and otherwise argue why they were right. Witnesses for the plaintiffs seeking to overturn Proposition 8 and secure marriage for gay couples included psychologists, economists, and other experts. The defense offered just two witnesses, whose credibility could not withstand questions from Judge Walker or the plaintiffs.

Originally, four other individuals were set to testify, but they dropped out citing unfounded fears for their personal safety. Most likely, they were afraid to subject themselves to withering cross-examination that was sure to come their way.

Judge Walker, beyond his painstaking evidentiary review, also examined the changing role of marriage in our society. Contrary to Proposition 8 supporter’s claims, marriage has transformed itself throughout American history. So-called “miscegenation” laws, which banned interracial marriages, were once ubiquitous and are now unconstitutional. And a woman’s property once was controlled entirely by her husband, but now we understand husbands and wives to be equal.

In other words, the fact that same-sex couples historically have not been allowed to marry in the United States does not allow states to deny them their fundamental right to marry. Indeed, Judge Walker concluded that marriage was traditionally limited to opposite-sex couples entirely because of outdated gender roles that require one man to be the breadwinner and one woman to be the homemaker. America has rejected this sexist vision, and so it must also reject its antigay consequences.

The best news of all is that Judge Walker’s opinion does nothing more than affirm the fundamentally American principle that all persons are entitled to equal justice under law.

Ian Millhiser is a Policy Analyst and Jeff Krehely is the Director of the LGBT Research and Communications Project at American Progress.

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