09 August 2010

The Prop 8 (Perry) Decision for Laymen

I am generally displeased with the quality of most journalism surrounding constitutional law and the cases interpreting and affecting it.  Most of this kind of journalism tends to focus purely on the political (the motivation of the judges, which party will benefit, etc.), and even those few journalists who attempt sincerely and valiantly to explain the decisions (Linda Greenhouse, Dahlia Lithwick) generally write for those who have some degree of training in law or political science.  What remains for consumption of the general public are a few choice and key quotes from the judge or panel's opinion.  While these quotes may convey the essence of the decision, without any background or further exposition, they give readers the impression that these ideas were pulled out of thin air. This tends to decrease confidence in the integrity and wisdom of the judicial branch, and is deleterious to democracy in itself.

  What I want to attempt to do here is describe and explain Judge Vaughn Walker's decision in Perry v. Schwarzenegger (the "Prop 8 case"), which struck down California's anti-same-sex marriage referendum on Wednesday, in a way that is comprehensible to someone who has never gone to law school (or for that matter, to college).  I have made every effort to refrain from editorializing on the opinion's merits or on same-sex marriage in general.

Since many of you will not want to read all of what will be a quite long post, I have moved the key analysis and conclusions section to the beginning.  If you wish to read the entirety of this piece, please skip to the horizontal line then return here when you reach the end.

Conclusions of Law
Based on the court's Findings of Fact (see below), the court made several conclusions interpreting the caselaw of the Fourteenth Amendment's Due Process (no state "[shall] deprive any person of life, liberty, or property without due process of law") and Equal Protection Clauses (no state shall "deny to any person within its jurisdiction the equal protection of the laws").  The analyses under each clause involves different legal theories and requirements; however, they are based on the same underlying determination-- that the right to marry is "fundamental."  The "fundamental" status of a right depends on its history and legal tradition.  The status of marriage as a fundamental right has a long pedigree in the United States.  The key question is whether the right sought by plaintiffs is a new right, the right to same-sex marriage, or is the same "right to marry" as has long been recognized.  To determine whether the right claimed by plaintiffs is the same fundamental right, the court examined the precise nature and content of the right sought.  The court found that the chief characteristics of marriage that remain unchanged throughout history are: two parties giving free consent, forming a household, and supporting one another and their dependents.  It determined that neither procreative ability nor specific and distinct gender roles were vital to marriage.  Instead, under modern marriage principles, men and women are recognized as equals and are free to negotiate their own roles on the basis of their individual relationship.  Individuals are granted a space of choice and intimacy in making decisions regarding their marriage, including whom they choose to marry.  After establishing the core values of marriage, the court found that same-sex couples are "situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage."  Therefore, the court found that same-sex couples did not seek recognition of a new right, but rather of the same right to marry as is currently enjoyed by opposite-sex couples.

Having determined that the right to marry sought by plaintiffs was fundamental, the Due Process Clause prohibits government from burdening the exercise of that right unless it can show that the government has a "compelling interest" in burdening it and that the law is carefully limited and designed ("narrowly tailored") to accomplish that objective.  [Under contemporary constitutional jurisprudence, this test is known as "strict scrutiny" and is the most stringent of the constitutional tests.]  Furthermore, the court recognized that "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections."  The court found that Prop 8 could not meet even the much lower test [known as "rational basis review"] of showing any legitimate government interest in preventing same-sex couples from marrying.  The potential government interests identified by proponents are discussed below.

The Equal Protection Clause asks whether the government creates a classification that targets a "suspect class" (a class with a history of discrimination that may be unable to defend itself from such discrimination) or burdens a fundamental right.  Plaintiffs argued, and the court accepted, that Prop 8 discriminated in allowing individuals to exercise a fundamental right both on the basis of gender (men could marry women, but could not marry other men, etc.) and on sexual orientation. These categories are both constitutionally protected, but courts have not subjected such classifications to strict scrutiny (i.e. they are not a suspect class).  Nevertheless, the court found that gays and lesbians are the type of minority that the Equal Protection Clause was designed to protect, due to their history of discrimination based on false stereotypes.  While the gender classification applies to heterosexuals and homosexuals alike, Prop 8 eliminates a right "only a gay man or a lesbian would exercise," therefore there was a classification uniquely damaging to homosexuals.  As was the case with the Due Process Clause analysis cited above, the court found that the proponents could not even show any legitimate government interest to which Prop 8 was rationally related-- it could not pass even the weakest constitutional test.  

The court went on to analyze rationales offered by the proponents as legitimate government interests that Prop 8 could advance, namely: (1) preserving "traditional marriage"; (2) proceeding with caution in enacting social change; (3) promoting opposite-sex parenting; (4) protecting the freedom of those who oppose same-sex marriage; and (5) distinguishing between same-sex couples and opposite-sex couples.  The court reviewed these rationales extensively, but determined in each case that a) that the rationale was not a legitimate one for government (e.g. tradition alone); b) that the rationale was not reasonable given the evidence provided (i.e. that same-sex couples and opposite-sex couples were fundamentally the same and that children were not adversely affected by being raised with two same-sex parents); or c) that Prop 8 would actually produce effects that damaged the interests identified by proponents (i.e. that the purpose was not reasonably related to what Prop 8 would actually cause).

Having reviewed and rejected all of the proposed interests, the court inferred, as supported by evidence in the trial record, that Prop 8's true motivation was not a legitimate government interest, but a "private moral view" about the immorality and inferiority of same-sex couples.  The court then cited past Supreme Court cases stating that such beliefs are "not a proper basis on which to legislate."

Having found no "rational basis" for the law, but instead only an impermissible moral disapproval at the heart of Prop 8, the court declared Prop 8 unconstitutional under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.


I will not rehearse the facts of the Prop 8 saga, since I assume that they will be well-known to any who have an interest in reading what is to follow.  What I will say is that in May 2008, the California Supreme Court held that California counties were required to issue marriage licenses to same-sex couples.  In November of that same year, Proposition 8 revised the California Constitution to provide that marriage was between one man and one woman.  In the intervening period, approximately 18,000 same-sex couples took advantage of the availability of marriage licenses.  Those marriages were unaffected by Prop 8.

Grounds for Challenge
The plaintiffs, who are same-sex couples who had been denied marriage licenses following the passage of Prop 8, challenged the law under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution.  The proponents of Prop 8, who intervened in the case in lieu of the various state governmental officials who were named defendants (who had refused to defend the law), defended the law on the grounds that same-sex marriage would effect certain negative consequences that California had an interest in preventing by prohibiting the marriage of same-sex couples.

Review of Evidence
The court reviewed the testimony that had been provided at trial.  [In the American federal court system, the trial court (or district court) hears the evidence and makes certain findings of fact.  Appellate courts, such as the U.S. Supreme Court, may review the evidence produced at trial, but do not repeat the trial itself.  Generally, such courts are confined to determining whether the trial court correct interpreted and applied the law to the facts as it found them.]  Plaintiffs and proponents put on both lay (non-expert) and expert witnesses.  The lay witnesses were primarily composed of the plaintiff couples, who testified as to why they wanted to be married, and persons who had been involved in the "Yes on 8" campaign (or ProtectMarriage), who testified regarding their efforts and motivations in opposing same-sex marriage.  The trial judge had earlier explained at trial that he wished to have a full review of the status of gay and lesbians in society and the effects that same-sex marriage could potentially have on homosexual and heterosexual marriages.  Thus, the expert witnesses ran the gamut from history, psychology, human development, economics, social epidemiology, and political science.  The range and amount of testimony provided cannot even be effectively summarized in a space such as this (the opinion was 136 pages long), though I will provide some highlights below.  However, the judge found that plaintiff's witnesses were generally credible in their testimony, and that proponents' experts lacked credibility.  The judge stated his belief that the proponents had generally failed to provide any credible evidence that supported their bare assertions of negative consequences that would result from allowing same-sex marriage.

Plaintiffs' Expert Testimony
The plaintiffs' evidence consisted in part of the following ten points.  Due to the fact that the judge adopted many of the expert's conclusions in his findings of fact, I have identified those findings by number.  Plaintiffs' experts argued that:
(1) marriage in the US has always been a secular (or civic) institution and has undergone a number of changes and transformations over the course of American history (Finding #19);

(2) gays and lesbians are subject to widespread private and public discrimination and stigma, based on negative stereotypes of homosexuals that are without basis in fact (Findings #58, 67, 74-76, 78);

(3) same-sex couples and the state of California (and its cities and counties) have been subject to serious economic harm as a result of Prop 8 (Findings #64-66);

(4) same-sex couples are in all important respects similar to opposite-sex couples (Finding #48);

(5) allowing same-sex marriage would not have adverse effects on opposite-sex marriage (Finding #55);

(6) marriage has important benefits for the couple and any children raised in that marriage (Findings #50, 56);

(7) the stigma on gays and lesbians has negative effects on their mental health;

(8) homosexuality is a personality trait that is not chosen and is not amenable to change through therapy;

(9) children raised by same-sex couples are just as likely to be well-adjusted as children raised by heterosexual couples (Finding #69); and

(10) gays and lesbians do not possess a meaningful degree of political power.

Proponents' Expert Testimony
The proponents did not call many of their expert witnesses as they had originally planned.  Their initial justification for this choice is that the experts feared exposing themselves to risks to their personal safety due to their testimony.  However, after publication of the proceedings was prevented by a Supreme Court intervention, the plaintiffs still refused to call their witnesses.  Plaintiffs offered the previously recorded testimony of two of proponents' experts.  Those experts concluded that "religion lies at the heart of the hostility" against gays and lesbians and there was no evidence that children raised by same-sex couples fared worse than children raised by opposite-sex couples.

The proponents did offer the testimony of two expert witnesses.  One of those witnesses, David Blankenhorn, was the founder and president of the Institute for American Values, a family values think tank.  The court dismissed Blankenhorn's testimony for his lack of qualifications or support for his conclusions.  He lacked formal training in the relevant fields, had no peer-reviewed publications, and his conclusions were not produced using reliable methods (i.e. scientific methods).  Blankenhorn had testified that the state had a interest in preserving opposite-sex marriage in order to regulate the bearing and raising of children.  This was important because children raised by married, biological parents do better than children in other environments.  However, the court found that the evidence he used to arrive at this conclusion only compared married, biological parents with other living situations that were not the equivalent of married same-sex parents (e.g. single parents, step families).  Blankenhorn also testified that three universal rules that governed marriage: that it was between a man and a woman, that only two spouses were involved, and that sex was involved. Finally, Blankenhorn testified that recognizing same-sex marriage would lead to the "deinstitutionalization" of marriage, which he defined as out-of-wedlock marriage, non-marital cohabitation, rising divorce rates, etc.  The court found that he produced no credible evidence to support these conclusions.  Besides the general lack of reliability in this opinions, the court found that Blankenhorn's testimony contradicted his own opinions in several respects.  Proponent's second expert, Kenneth Miller, is a professor of government at Claremont McKenna College.  The purpose of Miller's testimony was to show that gays and lesbians enjoyed significant political power.  The court found that, because Miller had failed to consider key evidence and was not familiar with gay and lesbian politics, his testimony should be discounted.  The court further found that Miller's previous writings contradicted his testimony as a witness for the proponents.

Findings of Fact
In addition to those findings of fact listed above under Plaintiff's Expert Testimony, the court made certain other findings of fact on which it based its legal conclusions.  While space does not permit me to do so here, the court identified specific citations to the trial record, including documents and testimony offered by experts for both sides, that supported his findings.  These findings include:
(1) CA, like other states, did not require that couples be willing or able to procreate in order to obtain a marriage license (Finding #21);

(2) Marriage requires free consent of the parties (Finding #23);

(3) Marriage has undergone significant changes in the course of American history, including the elimination of racial restrictions, the elimination of status of women as property of her husband, and the equalization of gender roles in marriage.  These changes have not weakened marriage. (Findings #24-28, 33);

(4) Under current law, marital partners have equal obligations to one another and their dependents (Finding #32)

(5) Marriage is a state recognition with many purposes, including family stability, legitimating children, and establishing support obligations, and is used to provide benefits to certain couples (Findings #34-37);

(6) Marriage is good for the health and material well-being of those involved, including children (Findings #38-41);

(7) Same-sex behavior has a long history, though a separate identity for homosexuals developed in the late 19th century (Finding #42);

(8) Sexual orientation is an enduring pattern of behavior, stable through adulthood, and is a fundamental and distinguishing characteristic of an individual's identity.  It is not a choice and cannot be change through decision or therapy (Findings #43-44, 46);

(9) CA law already allows gays and lesbians to become parents (Finding #49);

(10) Domestic partnership is not equal to marriage, due to different symbolic meanings and benefits, and is inferior to marriage (Findings #52-54);

(11) Prop 8 requires unequal treatment and inferior treatment of same-sex couples vis a vis opposite-sex couples (Findings #59-60);

(12) Prop 8 codifies distinct traditional gender roles in marriage (Finding #61);

(13) Prop 8 does not affect the First Amendment rights of those opposed to same-sex marriage (Finding #62);

(14) Prop 8 does not affect other constitutional rights (Finding #63);

(15) Gender and sexual orientation of parents, r a child's genetic relationship to parents, are not factors in a child's adjustment.  Opposite-sex couples are not required to produce well-adjusted children (Findings #69-73);

(16) Religious beliefs in the sinfulness or inferiority of homosexual relationships are harmful to gays and lesbians (Finding #77); and

(17) The campaign to pass Prop 8 was based on never-articulated and vague fears about homosexuals and stereotypes (Findings #79-80).

[If you have read this far, please return to the top and read the "Conclusions of Law" section.]

01 August 2010

Two "Ticking Time Bombs" - Deficits & Unemployment

Warning: There will be a lot of links in the post below.  I am going for the "full Greenwald."

On Friday evening, my wife asked me what I was planning on doing this weekend.  My reply was "As little as possible."  These days it seems like that is exactly what the GOP has planned to do with existing budget deficits and the unemployment that will handicap the United States for the foreseeable future.

The big upcoming budget fight for the rest of this year, and probably into the next Congress, will be whether, or to what extent, the "Bush tax cuts" ought to be extended.  Good estimates from the Committee for a Responsible Federal Budget find that a full extension of the tax cuts will add $3.28 trillion to cumulative deficits between 2011 and 2018.  Alternate proposals would include allowing the tax cuts to expire only for those Americans earning more than $250,000 per year but extending them for those making less than that.  As pointed out this morning by William Gale in the Washington Post, the Bush tax cuts are estimated to account for approximately 25% of the budget deficit this year.  That is not a majority, nor likely even a plurality of the budget deficit.  Other large line items contributing to the deficit include the TARP and Recovery Act measures (one-time expenses), and the wars in Iraq and Afghanistan (which will supposedly end sometime in the next ten-year budget window, but who knows?).  These are all on the side of tax expenditures, while the revenue side has certainly been reduced by the reduced taxable income and assets caused by the recession itself. Allowing all tax cuts to expire would have a more helpful effect on the immediate and long-term budget deficit; however, a large portion of the work can be done by allowing higher-income earners to bear the brunt of the increases.  Moreover, since the GOP wants to pretend that nothing was wrong with the Bush tax cuts in the first place, allowing any tax cuts to expire will be difficult politically.  Allowing all of them to expire, particularly in a time fraught with middle-class anxiety, is next to impossible, even if it was desirable.

While swallowing this deficit camel (Note: The idea that tax cuts "pay for themselves" or that they have a stimulative effect far in excess of their ultimate cost to the deficit, I find to be laughable.  At least four prominent conservative economists (as well as just about everybody else who knows anything about the problem), agree with me.), the GOP simultaneously strains at the gnat of additional stimulus (particularly in the form of extended unemployment benefits).  Unemployment benefits, extended even to periods of several years, are not threats to the long-term deficit.  Quite to the contrary, they are among the most effective forms of direct stimulus, as those without jobs are likely to spend nearly every dime they receive as unemployment benefits on basic necessities.  Even if unemployment benefits were a form of pure deficit spending, without any correlating stimulative effect, they would be the right thing to do, as I will explain shortly.  But to insist that a $3 trillion tax expenditure is no problem, while filibustering an extension of unemployment benefits with a cost of $33 billion smacks of a profound lack of seriousness about dealing with deficits.

The extension of unemployment benefits would be a priority of the second order if it were reasonably anticipated that prospects for employment were to improve rapidly in the short- to medium-term.  Such is emphatically NOT the case.  Estimates range anywhere from 5 to 11 years to restore employment to pre-recession levels.  While the long-term deficit is no doubt a ticking time bomb that will need to be tackled with some tough and courageous policies over the next decade and into the future, persistent high unemployment is a crisis RIGHT NOW and into the future.  More (and more targeted) short-term stimulus is one answer, with deficits being handled in the medium- to long-term.  For those of us not personally associated with someone with a long-term unemployment issue, the high numbers of the unemployment can tend to blur into mere statistics.  But the full cost of long-term unemployment is not something that can be appreciated solely on the basis of a GDP figure, deficit numbers, or the monthly U16 report.  The true costs of unemployment are a deterioration in the nation's stock of human capital, in the form of unrealized investments in education, training, etc.  Perhaps this is most profound for youth growing up in homes where one or both parents may be suffering from long-term unemployment.  Lack of savings for education and enriching experiences in one's youth cannot be easily regained once that youth is spent.  That means that the full and true cost of this recession will not be known until 15-25 years from now, when today's youngsters are entering the workforce in full for the first time.  One of the most important governmental priorities in this recession is to support education (i.e. by not forcing state budget cuts in education and teacher layoffs) and put money in the hands of families so that they can make their own investments in human capital.  That is why, aside from any stimulative effect it might have, it is imperative that Congress put the extension of unemployment benefits beyond the reach of short-sighted legislative maneuvers.  Ergo, unemployment benefits should be extended almost indefinitely, or at least until our unemployment figures hit a certain stable and acceptable floor (probably between 5 and 6 percent, 3% being defined as full employment).  At the same time, short-term measures to forestall cuts in education expenditures and further targeted stimulus must be put in place.

There can be no recovery in the broader economy without a recovery in employment as soon as possible.  Consumer spending and tax revenues will not get back to where they need to be until reliable and steady incomes can be put back into the hands of all of America's working populace.  In the meantime, the human cost of unemployment and resulting dislocations is too high to wait for the jobs to come back.