I’ve assigned the trial court opinion in Perry v. Schwarzenegger for my family law class this week, so of course, I’ve read it again myself. (Perry is the case brought in federal court in California challenging the constitutionality of Proposition 8. Proposition 8 was enacted via public vote and amended the CA Constitution to provide that marriage was between a man and a women. Thus, Proposition 8 effectively overturned the CA Supreme Court’s 2008 decision that the CA constitution required that same-sex couples have access to marriage.
There are a couple of points from Perry I want to highlight and discuss, but it is going to take me some time to set this all out. It will require multiple posts, I think. Please bear with me. For those more familiar with the legal developments in this area or with the operation of law generally, I’m sure there are parts you can skim or skip. (I do hope enough people read it to keep me honest.) Also, I’ve written about this before, during the trial of Perry this winter.
As I noted, Perry was brought in federal court and is the first serious case to assert that restrictive marriage laws violate the US Constitution. All the earlier major cases, whether successful or not, exclusively raised claims under the constitution of the relevant state. That’s enormously important for a variety of reasons (like Perry could go to the US Supreme Court while the other cases could not), but perhaps not so much for what I want to comment on here.
No matter in what court, all the cases challenging access to marriage raise some similar issues. There are two in particular that are relevant to me in this blog. First, I think virtually all parties in all cases agree that marriage benefits children. Second, those defending marriage restrictions typically assert that somehow heterosexual couples are better parents, often because they can both be genetically related to the children in question. I’ll discuss each of these further, but I need to do a bit more background.
Apart from the fact that it is in federal court, there’s another distinguishing feature of Perry–it’s an opinion of the court following a trial. As far as I can recall, not one of the cases from state court went to trial–they were generally decided on summary judgment.
The difference may seem slightly technical, but it is also important. The judge in Perry, Judge Vernon Walker, heard live testimony from witnesses. These witnesses, most of whom were expert witnesses, were subject to cross-examination. After hearing the testimony, the Judge made determinations about credibility (who he believed) and ultimately wrote “findings of fact.” By contrast, summary judgment is a paper proceeding without live witnesses and without cross-examination.
So back to my two issues. First–all the parties agree that marriage is good for children. Actually, one could even say this more broadly–all the parties agree that marriage is good for people generally.
If you think about it, you can see why both sides need to agree to this. For the plaintiffs (the people who want to get married) the point is that there is an important thing that would be beneficial for them that the state is denying them. Without this claim–a claim that they are harmed–plaintiffs could not proceed with their case. Since California offers a fairly robust version of domestic partnership, the plaintiffs have to argue that marriage is better than DP and would be better for them (and for their children.) Thus, they are harmed by Proposition 8.
The defendants, too, pretty much have to say that marriage has important benefits for married people. After all, if marriage weren’t really significant, what would be the harm of letting the same-sex couples marry.
You can see this laid out in the judge’s findings of fact at pages 69-71 (findings 38-41.) In particular, finding 41 says:
“The tangible and intangible benefits of marriage flow to a married couple’s children.”
While the proponents of Proposition 8 (who lead the actual defense of the case) did not formally concede this point, I’d be surprised to find they challenge this finding on appeal. Indeed, as I look at it sitting there on the screen, it seems like it must be one of those self-evident truths. Why is it even interesting? Read literally all it says is that to the extent there are benefits to marriage, these benefits will accrue not only to the adults, but also to the children.
What troubles me–and I’ll discuss this more next time–is that many might conclude from this that people who are having children together ought to get married. And perhaps more generally that only married people should have children (especially if/when marriage is available to same-sex couples.) Single parents or unmarried parents–perhaps most especially the latter–deny their children the benefits of marriage. How very selfish of them. This train of thought does trouble me.
That’s enough for the morning. I’ll pick this up tomorrow.