More Prop 8 Analysis.

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My good friend and blog-pal B. Daniel Blatt recently posted commentary at Pajamas Media concerning the Proposition 8 ruling by Judge Vaughn Walker. Though Dan and I both agree with Dale Carpenters recent review of the ruling a The Volokh Conspiracy, I disagree with Dan’s analysis. In his PJ Media piece, he  writes:

Whereas he often makes a strong argument for gay marriage, his constitutional reasoning is particularly sloppy. He reminds us that the Due Process Clause “protects individuals against arbitrary governmental intrusion into life, liberty or property,” but fails to show how Proposition 8 deprives any individual of his life, liberty, or property. Instead, he makes an incredible leap from that reading of the Constitution to a list of court decisions finding a “fundamental right to marry under” that clause.

On page 68, line 36, Walker begins to describe, complimented by various law citations to back him, the benefits of life, liberty, and property that are denied to couples who are not allowed to marry, including benefits of tax policy, immigration and citizenship, inheritance rules, and social benefits.

Line 37 shows that the law recognizes economic benefit of married over non-married couples.

Line 38: psychological.

Line 39: increase in wealth potential.

There is always the argument that gays can get married, just not to each other; therefore, they don’t lose these benefits listed above if Prop 8 stays intact. Big problem with that argument. I haven’t scoured the literature documenting the fight for interracial marriage, but I would be willing to bet that was a point the opponents tried to make there too. How does this sound? “Blacks have the legal opportunity to marry, they can’t marry each other”. Just doesn’t come off well in that context. It doesn’t come off well here either.

He did not cite the debates from the 39th Congress which passed the Amendment and sent it to the states for ratification.

First, just because the judge doesn’t cite any deliberations from that time period doesn’t mean he didn’t look at it. Maybe there wasn’t anything useful one way or the other. Of course, there may very well be something in the debate of the time that could have supported the defendants, but, Dan didn’t reveal what it could be. Plus, the judge lays out a trail of case rulings that supports his conclusion. Now, as we have recently seen in Citizen United and 2nd amendment, the Roberts led Supreme Court is not afraid to step back and erase legislative and even judicial precedent, and go back to a more origionalist interpretation of the Constitution and amendments. BUT, and this is a big but, each time they have done so, it was to restore the rights of a group that had been usurped by the legislature and the courts. If they were to decide against the judge in this case, they would be restricting a right (remember, both defendant and plaintiff agrees that marriage is a right in this ruling) to a group. This would go against the tendency of this court.

If you look at issues concerning law cases, and you find that one of the litigants failed to bring up something that you think would have helped their case, you have to consider two main possibilities:

(1) The evidence you would like to use to help your case could too easily help the opposing side even more. Consider all the witnesses the proponents of Prop 8 had originally line up to testify on their behalf. In this case, the Prop 8 proponents originally had slated to call six witnesses, but only called two. The stated reason for dropping the four was that they feared material harm if they testified, due to the fact that the trial would be broadcast live. But the motion to broadcast was struck down, and yet, they still didn’t testify.

(2) The lawyers for the defense got “sloppy” and missed this opportune piece of evidence; they simply didn’t do their homework. Which brings me to the question –  since Dan brought it up, why didn’t he go into detail and cite the items in the Congressional record that would have helped the defense. Does he know of something that would have helped the Prop 8 proponents?

Finally, he makes a point that Judge Walker did not bring up “sex differences” in his conclusion.

Yes, but throughout that evolution, marriage has indeed remained a gendered institution. While legislatures gradually removed statutes which privileged one sex over another, they, on the whole, failed to remove the stipulation that partners be of different sexes.

In making his equal protection argument, Judge Walker is equally dismissive of sexual difference:

The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.

He responds:

Antiquated and discredited notions of gender?

He sounds more like a sociologist writing in 1968 than a jurist writing in 2010. Back then, college faculties (and the popular culture) were full of scholars and others proclaiming that the differences between men and women were merely social constructs.

In the intervening years, however, a whole host of studies from neuroscientists, psychologists, sociologists, and anthropologists have found that sexual differences are real. In his 2002 book, The Blank Slate: The Modern Denial of Human Nature, Harvard Psychology Professor Steven Pinker observed: “Neuroscience, genetics, psychology, and ethnography are documenting sex differences that almost certainly originate in human biology.”

Evolutionary biologists Richard Wrangham and Dale Peterson have even found these differences in our primate “cousins.” In her recent book on the male brain (a companion to her 2006 study of the female brain), Psychiatry Professor Louann Brizendine writes: “Male and female brains are different from the moment of conception.”

Instead of notions of difference between the sexes being antiquated or discredited, they have in fact been confirmed by science.

He’s comparing apples and oranges, and taking the “antiquated and discredited notions of gender” line completely out of context (oh no, not that again). The judge outlines how changes in the historic role of women in society has changed from being subservient, and role specific, to that of a more equal footing of the male in modern society. The judge demonstrates that gender roles of men and women within the bond of marriage can no longer be used as justification for limiting marriage to one of each sex.

On this point though, the science notwithstanding, Judge Walker might have a case had enough states ratified the Equal Rights Amendment to include it in the Constitution. He bases casual dismissal of the sexual difference issue neither in the actual language of the Constitution nor in the latest findings of science.

Tell me, exactly how would biological differences of any kind help the pro-Prop 8 case? How could one make this argument in court? Dan certainly has no’t made a convincing rational for it’s inclusion in the case via this post. Gender, or sexual differences, as he defines them (or does he?),  is a spurious issue. On the ERA, there s a reason why the states did not ratify the Equal Rights Amendment – it was tacitly understood that the term “all men are created equal” in modern included women, therefore the amendment to bring equality to women was, ultimately, not necessary.

Note:  Dan’s main blog is Gay Patriot. Please visit the site for more dialogue on this subject.

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