The Law Offices of Abbas Hadjian, APC

CALIFORNIA: Culture & Proposition 8

References to Culture in the Historical Ruling of Judge Walker on Unconstitutionality of Proposition 8

California(August 4, 2010): Judge Vaughn R. Walker,  Chief Judge,  the United States District Court for The Northern District Of California, ruled that California Proposition 8, the voter-enacted amendment to the California Constitution in November 2008, is unconstitutional. Proposition 8 provides that:  ”Only marriage between a man and a woman is valid or recognized in California.”

In his ruling, Judge Walker found that Proposition 8, violates the due process and equal protection rights of the same-sex couples who wish to get married, including 18, 000 same sex couples who have already obtained their license to get married.

In the ruling, titled: PRETRIAL PROCEEDINGS AND TRIAL EVIDENCE CREDIBILITY DETERMINATIONS FINDINGS OF FACT CONCLUSIONS OF LAW ORDER, Judge Walker made reference to testimony of many witnesses who addressed the issue of same-sex marriage from the cultural point of view.

Here are quotations of the ruling referring to culture. .

• Three Rules of Marriage across Cultures and Times Page 14: “Blankenhorn identified three rules of marriage (discussed further in the credibility determinations, section I below), which he testified have been consistent across cultures and times: (1) the rule of opposites (the “man/woman” rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25.” .
• Cultural Esteem of Marriage vs. Domestic Partnership Page 19: ”Peplau testified that little of the cultural esteem surrounding marriage adheres to domestic partnerships. .
• Cultural Understanding of Danger to Children Pages 20-21: “Historian George Chauncey testified about a direct relationship between the Proposition 8 campaign and initiative campaigns from the 1970s targeting gays and lesbians; like earlier campaigns, the Proposition 8 campaign emphasized the importance of protecting children and relied on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children. Chauncey concluded that the Proposition 8 campaign did not need to explain what children were to be protected from; the advertisements relied on a cultural understanding that gays and lesbians are dangerous to children. This understanding, Chauncey observed, is an artifact of the discrimination gays and lesbians faced in the United States in the twentieth century….”. .
• Cultural Variations of  Same-sex Marriage Pages 36-37: ”Young has been a professor of religious studies at McGill University since 1978. PX2335 Young CV. She received her PhD in history of religions and comparative religions from McGill in 1978. Id. Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess Page 37 the same desire for love and commitment as opposite-sex couples. PX2545 (dep tr); PX2544 (video of same). Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples. Id. “. .
• Cultural Rule of Two Page 43: “ Blankenhorn testified that his research has led him to conclude there are three universal rules that govern marriage: (1) the rule of opposites (the “man/woman” rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25. Blankenhorn explained that there are “no or almost no exceptions” to the rule of opposites, Tr 2882:14, despite some instances of ritualized same sex relationships in some cultures, Tr 2884:25-2888:16. Blankenhorn explained that despite the widespread practice of polygamy across many cultures, the rule of two is rarely violated, because even within a polygamous marriage, “each marriage is separate.” Tr 2892:1-3; Tr 2899:16-2900:4″. .
• Cultural Construction of Sexual Orientation Page 72: ”f. Tr 2176:23-2177:14 (Herek, responding to crossexamination that sexual orientation is a socially constructed classification and not a “valid concept”: “[Social constructionists] are talking about the construction of [sexual orientation] at the cultural level, in the same way that we have cultural constructions of race and ethnicity and social class. * * * But to say that there’s no such thing as class or race or ethnicity or sexual orientation is to, I think, minimize the importance of that construction.)…”. .
• Social Meaning of Marriage in Our Culture Pages 80-81: “c. Tr 207:9-208:6 (Cott, describing the social meaning of marriage in our culture: Marriage has been the “happy ending to the romance.” Marriage “is the principal happy ending in all of our romantic tales”; the “cultural polish on marriage” is “as a destination to be gained by any couple who love one another.”); d. Tr 2 08:9-17 (Cott: “Q. Let me ask you this. How does the cultural value and the meaning, social meaning of marriage, in your view, compare with the social meaning of domestic partnerships and civil unions? A. I appreciate the fact that several states have extended-maybe it’s many states now, have extended most of the material rights and benefits of marriage to people who have civil unions or domestic partnerships. But there really is no comparison, in my historical view, because there is nothing that is like marriage except marriage.”).”. .
• Cultural Meaning of Marriage vs. Domestic Partnerships Page 82: “ 54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”. .
• Cultural Trappings of Statutes Is Clear Message of Inferiority Page 87: “b. PX1273 M V Lee Badgett, When Gay People Get Married at 58, 59, 60 (NYU 2009): “Many Dutch couples saw marriage as better because it had an additional social meaning that registered partnership, as a recent political invention, lacked.” “In some places, the cultural and political trappings of statuses that are not marriage send a very clear message of difference and inferiority to gay and lesbian couples.” “[W]hen compared to marriage, domestic partnerships may become a mark of second-class citizenship and are less understood socially. In practice, these legal alternatives to marriage are limited because they do not map onto a well-developed social institution that gives the act of marrying its social and cultural meaning.”. .
• Cultural Issues of Stability in Asian Families Page 107: ”o. Tr 1913:17-1914:12 (Tam: Tam supported Proposition 8 because he thinks “it is very important that our children won’t grow up to fantasize or think about, Should I marry Jane or John when I grow up? Because this is very important for Asian families, the cultural issues, the stability of the family.”. .
• Cultural Superiority of Same-sex Marriage vs. Domestic Partnership Page 116: “The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. FF 53-54. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same sex couples.”.