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Judge Walker rules Proposition 8 unconstitutional

Rosemary Joyce, professor of anthropology | August 4, 2010

As reported by the San Jose Mercury News, Judge Walker concluded that

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” the judge wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples”.

The argument those in favor of Proposition 8 presented during the trial was, obviously, not legally compelling. But it is of some cultural interest:

Prop. 8 defenders tried to introduce evidence to show that gay marriage would undermine the institution of marriage, and that it conflicts with marriage’s central purpose of procreation.

Indeed, Prop. 8 lead attorney Charles Cooper told the judge in closing arguments in June that marriage between heterosexual couples is “fundamental to the survival of the human race.”

What is interesting here from a historical and cultural perspective is the claim that “marriage’s central purpose of procreation” is threatened if the persons in the marriage are not a man and a woman. Presumably, the intended implication is that procreation in marriage is always a function of the union of that man and that woman. But that raises questions about families with adopted children, and about married couples without children. Where do they fit in this either/or logic?

Anthropologists who have written about American kinship have long noted a tendency in US society to equate kinship with blood identity. Yet at the same time, in US society, adopted children are not supposed to be differentiated from children born of the biological union of their parents. Both today and historically, children have been incorporated in families through a variety of means. The idea that biological kinship is more authentic than kinship through fostering, feeding, care, and history would be offensive to many, I would hope most, people in the US today.

In the closing argument quoted above, attorney Cooper merges marriage — a social and political relationship, in some cultures and societies also a religious one — with reproduction, a biological process.

Biological reproduction is fundamental to the persistence of a species. But allowing the legal and economic relationship that in contemporary US society is signified by state-registered marriage to take place between people who are not able together to produce biological offspring is hardly endangering all biological reproduction.

If the argument made were accurate, then what should we make of heterosexual couples in marriages that do not produce children — either by choice or by biological incapacity?

Judge Walker, in his “Findings of Fact” in the case, underlines this point:

21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.
a. Cal Fam Code § 300 et seq;
b. In re Marriage Cases, 183 P3d 384, 431 (Cal 2008) (“This contention [that marriage is limited to opposite-sex couples because only a man and a woman can produce United States District Court For the Northern District of California children biologically related to both] is fundamentally flawed[.]”);
c. Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”);
d. Tr 222:22-223:22 (Cott: “There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. * * * [P]rocreative ability has never been a qualification for marriage.”).

Civil marriage is a legal relationship, that brings with it legal rights. And in California, that legal relationship is now, once again, open to everyone who sees it as valuable. That should, in fact, strengthen the institution by allowing more people to engage in it.

Comments to “Judge Walker rules Proposition 8 unconstitutional

  1. After reading many of your posts, like the current one about Prop. 8 Us/Them polarization, I have come to believe that anthropologists are also futurists because we never learn from the mistakes of the past and keep repeating them over and over seemingly ad infinitum.

    And it also doesn’t help fix the problems when communications by far too many members of our intellectual establishment are one-way because replying is like sending information into a black hole as if the patricians are expected to do all the talking while replies from the plebians are unwelcome.

    Thus I thank you for your highly informative anthropology based posts, and also the fact that you encourage two-way conversations that greatly increase the value of the Berkeley Blog.

  2. Laws against gay marriage are the 21st century’s version of Jim Crow laws that outlined the “natural differences” between blacks and whites from the late 1800’s to 1960’s. The Plessy decision, creating separate but equal was knocked down by the 1954 Brown decision, although some of these laws persisted. Bans against gay marriage basically allow and create functional equivalence between civil unions and marriage — while “equivalent” cases, they are somewhat “naturally different.” In addition to being archaic, these laws beg the question regarding the status of “marriage” generally — if it’s a religious event, what does government licensing have to do with it in the first place? If it’s a contractual event, which it legally is I believe, then there should be no reason for the government to distinguish between civil commitments/contracts and marriages, in this case banning those arrangements between gay people while allowing them for others. Doesn’t that exclude a class of people unfairly? Or have I missed something….

    • You recap many of the points made by Judge Walker in his legal decision, which again, I would reiterate, is worth reading. Separate but equal is by definition separate and unequal.

      • Totally agree. I read the opinion (conclusion section). I just felt compelled to express what is obvious regarding the baseless separate-but-equal defense against gay marriage in this case — it was just as obvious and baseless regarding racial discrimination as I came of age in Mississippi many, many years ago. When will we learn…

  3. The “tendency in US society to equate kinship with blood identity” is to some extent a consequence of the sad fact that “All men are created equal” was not meant to be taken literally by our founding fathers.

    Prop. 8 is just one more proof that our brain is not evolving fast enough to deal with the accelerating challenges of change that are overwhelming us today.

    Politicians, religions, societies and tribes are still finding ways to deny the basic fact of life that the common origin of H. sapiens DNA is Africa, subject to more evidence to the contrary from Asia as a possible second source. So people who champion inequality will continue to deny the facts of life.

    Social progress has in fact been very slow even in California. My Cal classmate-wife and I wouldn’t have been able to marry in California, and my wife’s relatives weren’t even allowed to own property in California up until just a few decades before we got married.

    We may have come a long way in some respects, but we still have a very long way to evolve to mitigate social, political, economic sources of inequality, while ongoing climate changes may prevent us from ever achieving our goal of equality for all.

    In the meantime, thank goodness we still have some judges left who haven’t allowed themselves to be corrupted by the system, because anti-people shall never stop trying to negate the concept of equality for all.

    • The paradox of basing kinship on a notion of blood when in fact, kinship is enacted through more than mere genetic relationship, is part of what underpins confusions when in the US we talk about adoption, marriage, and relatedness. This ruling is a big step away from that confusion.

  4. Proposition 8 is “unconstitutional under both the due process and equal protection clauses.” The court, therefore, “orders entry of judgment permanently enjoining its enforcement.” Two key sentences from the ruling:

    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.

    That’s what history sounds like.

    • The decision is extraordinary reading; everyone should read it. Judge Walker reviews the history of progress in making access to marriage more equitable, and in reducing invidious differences based on race and gender. As a researcher working on gender, I am most impressed by his analysis of how the legal definition of marriage has tended to remove gendered assumptions (such as that men and women were unequal partners) in favor of more equitable assumptions (that both parties in a marriage deserve the same rights in that marriage) as part of his argument.

  5. And, I might add, it is not currently the law in any state (can’t speak for the past) that one must be married to procreate (re: “threat to the future of the human species”). I have living proof. Procreation and marriage are (my impression, anyway) becoming increasingly disconnected activities in the U.S. and elsewhere.

    • Yep. Delinking marriage and having children is a reality today; but presumably the conservative backers of Proposition 8 would say children outside marriage are a threat to “traditional marriage” as well. The position is intensely ahistorical and, as the judge found, based on no facts. But it is truly remarkable that the one real argument they made was that marriage was “for” procreation: since that would make marriages among senior citizens as questionable in theory as marriages like mine, that have lasted 26 years without children.

  6. Proposition 8 Unconstitutional? You mean to tell me that Leviticus, was just the original fundamental Republican (emphasis on mental) who had not made it out of the closet (kinda like Ted Haggard)? Lets face it was not in the Ten Commandments or even addressed by Jesus the son of God, so are we surprised with this ruling, its about time.

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