Sunday, August 22, 2010

Judge Walker, is that a fact?

The overturn of proposition 8, historic and fascinating, will do a lot of good for gays. I hope. I'm not sure, really though, because when there are so many statements of opinion designated as "facts" upon which the findings are based, it's hard to know how that's going to play out.

I don't have the time right now to trot out all the examples, but one will surely come as no surprise to anyone who reads this blog:

51.Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.

Yet, here I am. As with many of Judge Walker's "facts", this begs the question. When I got married, I went down to the courthouse and filled out the paperwork and paid my $20 to get a license. Then we did it. How is this "unrealistic"? Oh, yeah, because gay and lesbian individuals wouldn't necessarily value or want such a marriage because we're gonna equivocate between the legal standing that marriage is and the loving relationship of intimacy that marriage can be... at least for this part of the argument. The only one that is ever guaranteed for anyone is the former, and it's just as "realistic" for anyone who signs up.

My new standard disclaimer: I favor recognition of gay marriage but oppose the civil rights argument and arguments of equality as the basis for it. No amount of love conquering hate, tolerance conquering animus, or loathing giving way to acceptance is going to change the fact that marriage between homos and heteros is qualitatively different because only one can naturally produce children. And Judge Walker, that's an *actual* fact.


Rob said...

Though I follow your argument, I will respectfully disagree and invite you to read my own blog post which addresses this very issue and shows why it IS in fact a civil rights matter, and this from a Prop 8 opponent who was nevertheless skeptical of the civil rights argument too:

-L- said...

Though you say you follow my argument, I'm not sure you do. You certainly haven't addressed it in your comment or the post you link.

You reference as key in Walker's rationale, his statement that gender is irrelevant to marriage. In terms of procreating, apparently Mother Nature missed the memo. As equal as anyone would like to declare the genders to be, they are simply not any such thing. One can be magnanimous in advocating for equal rights, but that shouldn't be confused with equality regardless of Judge Walker's equivocation on the matter. I'll address that "fact" and several others some other time.

Rob said...

Thanks for reading my post. I think we are talking past each other here. I am speaking as a lawyer, referring to the judicial opinion of the respective roles of spouses in civil law and in a civil marriage. That's all.

It appears you have not read Judge Walker's opinion. In it he addresses the argument that ability to procreate is intrinsically part of marriage. Remember, we are talking about marital roles under California civil law. Not under natural law, or within any religious perspective. So saying that "Mother Nature didn't get the memo" is irrelevant to the actual issue at hand in this legal case.

From a religious or philosophical perspective you may disagree, and that's fine. But that's not at issue here. What's at issue is whether there was a rational basis for the government of the State of California to revoke access to civil marriage based solely on gender differences.

Judge Walker is not trying to be a natural philosopher, or a theologian. He is interpreting the language of Prop 8 against Federal constitutional guarantees of equal rights. That is _all_.

Anticipating that you will indeed have more to say, I urge you strongly to read the opinion in its entirety before your next comment.

-L- said...

I have not read his opinion, but I am already aware of his dismissal of procreation as an intrinsic part of marriage. That is not something I concede, but I'm happy to defer that discussion to a post that is actually on that topic. Procreation is an intrinsic part of gender *differences* though, and all the amens to equality in the world aren't going to change that. It's the dissolution of gender differences that seemed the basis for your epiphany on your own blog, and such a dissolution is absurd in my view--societal roles are not entirely separable from biologic reality.

My post was not about the case per se, but about a specific finding of fact, which you have not acknowledged in your comments. My "disclaimer" about civil rights was not the point of the post, only to clarify why I am finding fault with the opinion despite being in favor of gay marriage. For a full discussion of civil rights, you'll have to wait for post where that's more on topic and I've got the time to opine a bit more! More to the point of the current post, California has not revoked access to civil marriage based on gender differences, they have revoked access to a variety of marriage that is not even considered marriage by the federal government. The "equality" argument begs the question by assuming that marriage can include gays by definition. Any gay in California can go on down to the courthouse and get a marriage license just like anyone else, get married just like I did, which satisfies their civil right and provides equal rights.

As for what's "at issue here", there are many topics and many issues, and the present one is kinda sorta my prerogative. :-) Feel free to discuss the issues if you can stomach such a discussion with someone who doesn't have the spare time to read the whole opinion. If I'm mistaken with anything I've said or missed some key evidence, feel free to point to the specifics, but without condescension.

Rob said...

You have stated "If I'm mistaken with anything I've said or missed some key evidence, feel free to point to the specifics". I will do so, briefly.

You need to read the full opinion. That will make the distinction I'm drawing much clearer than otherwise. This is not condescension or disrespect, it simply acknowledges that fully understanding that distinction requires familiarity with the evidence, the background, and the legal analysis within that opinion.

You do not "concede" Judge Walker's "dismissal of procreation as an intrinsic part of marriage." Again, you need to read the opinion to understand that he is not saying what you claim in such broad terms. He is simply saying that under American civil law, procreation is not a requirement for marriage. I think you must concede this; we don't force people to demonstrate that they are fertile before marriage, nor do we revoke their marriage licenses after a certain period if they don't actually have children. Everyone except for the medically sterile has the ability to procreate regardless of their marital status. The fact that historically marriage has been the main vehicle to legitimize children and provide homes for them is of course self-evident and no one disputes it, not even Judge Walker. But that wasn't the issue, nor was "gender differences." The issue was whether procreation is a sufficiently rational basis under California civil law to restrict access to a civil contractual relationship, in this case, marriage. Judge Walker found that there was no evidence to support that proposition; the "dissolution of gender differences" he relied on was solely one under California civil marriage law, not under more general "societal role" expectations." Again, please read the opinion.

Rob said...

I understand your point about allegedly "begging the question" by assuming that gays can get married by definition. This is a view that I myself once espoused and I too viewed it as a weakness in the argument for gay marriage. That is why I pointed to that specific finding of fact in Judge Walker's opinion, because in my view it answers that question. It is the culmination of his explanation of the definition of marriage under California civil law, which, as he found, has been moving for many years away from any legal distinctions based on gender roles. That has already been accomplished quite independently of Proposition 8. Given such circumstances, he found, there is no longer any rational basis for the government to perpetuate a definition of civil marriage that nevertheless insists on different genders. Again, it must be kept in mind that we are talking solely about civil marriage under secular law. And again, this is why it is crucial that you read the opinion so that you can fully follow the history and analysis.

"California has not revoked access to civil marriage based on gender differences, they have revoked access to a variety of marriage that is not even considered marriage by the federal government." The California Supreme Court is the ultimate authority on the meaning of California law. In an opinion authored by conservative Republican Chief Justice Ron George, that court found that the California Constitution's guarantees of equal protection did not allow California to insist that marital partners be of different genders. Again, that is the ruling of the ultimate authority on California law, one which as a Latter-day Saint you may disagree with but are bound by your faith to "obey, honor and sustain." As of the date of that ruling, it became California law that marriage without regard to gender distinction was a civil right under the California Constitution.

When Proposition 8 passed, it revoked that existing civil right. That is simply a fact of legal mechanics; nobody disputes it. There was an existing civil right which popular vote decided to take away from a specifically targeted group of people due primarily to religious differences. As an attorney I can assure you that this is a first in American history.

As to this "variety of marriage" not being "recognized by the federal government," the history of DOMA is clear and, with respect, your argument is not persuasive. DOMA was passed in a flurry of conservative Republican fear that early marriage equality cases like Hawaii would spread nationwide. However, it also has since been found to be unconstitutional by--surprise--yet another Republican-appointed federal judge, who held that DOMA "plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment." He also ruled that it violates the equal protection principles of the Fifth Amendment. DOMA's unconstitutionality has been self-evident to many since it was passed, so that ruling was no surprise. How ironic that such an unconstitutional intrusion into state law was created by conservative Republicans who otherwise claim to champion restraints on federal power in favor of preserving state and local governments' prerogatives.

Again, I urge you to find the time to read Judge Walker's opinion in full.

Rob said...

I would also like to respond to your statement that "there are so many statements of opinion [in Judge Walker's ruling] designated as "facts" upon which the findings are based".

It's not fair for you to call Judge Walker's findings of fact "opinion" without actually reading what he said. When you do, you'll see that each finding of fact is not simply his personal opinion. It is the conclusion he draws from considering evidence on the particular point which was submitted by both sides. The supporters of Proposition 8 had just as much opportunity as the opponents to present such evidence on all those issues. It is not a judge's job to investigate on his own or find his own evidence. He simply reviews what the parties present, and then makes a decision. That is what Judge Walker did here: he examined the evidence submitted by each party according to established rules for interpretation and analysis, and he decided what findings of fact were supported by that evidence. This is exactly what a judge is supposed to do. His opinion explains that analysis of the evidence on every point. That's why it's important for you to read it.

If some of his findings of fact sound similar to some peoples' "statements of opinion," that does not negate the legitimacy of his findings or the process by which he got there. It is merely a coincidence and shows that those peoples' opinions are the ones supported by the weight of evidence.

-L- said...

Good gravy, I don't even have time to read your full comments, let alone Walker's full opinion! :-)

When I say, "feel free to point to the specifics" I mean that literally. If you could provide a link to the place in the opinion that clarifies something I've misunderstood, that would be great. Cuz I ain't reading the whole thing any time soon, as I mentioned before. As far as the extent to which procreation is necessary for marriage, you would know that I understand the relevant arguments that make the basis of Walker's opinion had you read the entirety of my blog, so please see that you do that before commenting again. ;-) I am happy to concede that procreation is not necessary for marriage, but the manner in which marriage may potentially promote responsible procreation was presented by the defense as evidence in the case as I mentioned in a previous post. I urge you to read all my previous posts to be sure you haven't missed something. If we accept that marriage is nothing but a civil contractual relationship and that this evolution of how marriage is regarded is a done-deal in California, and that proponents of proposition 8 were motivated solely by religion and not by an attempt to support marriage in a secular way as something that necessarily includes gender differences, then Walker can conclude from this begging-question beginning exactly what he concluded. It's a tidy dismissal of the attitudes and motivations of a huge demographic of people who voted as well as a self-reinforcing assertion of what marriage already is and must continue to be in California (you know, based on case law etc. etc not subject to discussion).

And, just for the record, I did read the part of the opinion supporting the finding of fact I actually blogged about here, including the list of previous opinions that supported it, and all I have to say is: weak sauce. The defense didn't provide any evidence or examples of gays being married hetero? Or that was left out of the findings of fact because it didn't actually support the "fact"? I'm not spitting on Judge Walker's mother's grave here or saying he's anything other than a superstar--this isn't directed at him personally. I just personally think it's stupid to have a finding of fact that is prima facia bullshit. So, if you'd like to comment on that one finding of fact--the reason for this post and the present topic--then you can comment without reading the rest of my blog. Otherwise I'm going to start quizzing you on the details of my book club posts. ;-)

I'm not one persuaded by a judge's authority or by his endorsement of "the weight of the evidence" any more than I accept the frequent appeals to scientific authority that pepper these sorts of topics (and which Walker apparently accepts only piecemeal as it suits him).

I don't know you and your Olan Mills glamor shot makes you look like a stand-up guy. I do appreciate your clarifying some of the case and I will read more of the opinion when I have the time. My blog is variously cerebral and glib, and most often a mix. This post was not a carefully researched commentary on legal scholarship, just my gut reaction to "facts" that are sometimes stupid. Take what I write as rhetorical catharsis only (usually).

-L- said...

Read the first 11 pages. Go me! Nothing particularly revelatory so far except numerous instances that reinforce my charge of question-begging. Judge Walker repeatedly frames the arguments disregarding the contingency that gay marriage is a change in the actual nature of marriage (whether previously codified and accepted or not, this is still the crux of the contentious matter across the country) and then approaches the entire matter from that question-begged vantage point. He says:

Although the evidence covered a range of issues, the direct and cross-examinations focused on the following broad questions:

The way he presents these "broad" questions has already biased the way the evidence is viewed and the judgement is made. Now, I accept that the rules of the legal game are far beyond my knowledge, and "facts" in the findings denotes valid conclusions from the presented evidence without necessarily any actual relation to truth (that's what you were saying, right?). But when I talk about "facts" here in my post, I'm talking about the literal sense of the word, and that's where some of his findings fall short, whether through the incompetence of the legal team presenting witnesses and evidence, or Walker, or whatever.

Gay people can get married hetero. As I said, I'm the living proof of this as a realistic proposition. If that's not true, let me know.

Now... if I can only get through the next 125 pages without falling asleep.


Rob said...

I'm glad you are reading the opinion. A few thoughts in response to your latest post.

First, don't read the opinion at any time when you don't have a clear head and ability to focus. Because it is legal analysis, some if not much of it may seem unfamiliar and even strange since you're an actual productive person and not a lawyer.

Second, the issues were framed by the arguments of the parties, not by the judge. That is why he referenced the parties' presentations during trial. Remember that Charles Cooper, lead counsel in support of Proposition 8, is a nationally known attorney and had every opportunity the other side did to frame issues and arguments. He is a very smart man and an extremely able attorney, with a team of people to help him. So if he didn't make an argument you think might have been more persuasive, he must have had a reason for that. Perhaps the arguments you like would not have worked in this trial. Perhaps there is no evidence for them that he could present. Perhaps there's some other reason, I don't know. But just keep in mind that a whole lot of very smart people worked for quite a while to defend Prop 8 in this trial. So if you think the judge's summary of the issues presented is a display of his own bias, that tells me that you are unfamiliar with trial procedure. It was the parties--including the Prop 8 supporters--who framed the issues that way by their own arguments, not the judge.

I think you've hit a key point which is the definition of "facts." Your post talks about "literal facts" but Judge Walker's opinion talks about "legal facts." What your original post did, I believe, was to confuse the two. A "literal fact" is what you simply believe to be a real world fact. A "legal fact" is what a judge decides is true after hearing evidence presented in court and making a finding based on that evidence. Of course a "legal fact" can thus be influenced by the type of evidence presented and how the issue is framed. Of course.

The problem arises, though, when one criticizes the resulting court rulingfor relying on "legal facts" when one's criticism is based on a belief in "literal facts" that are different. Two separate sets of facts are then at issue and they shouldn't be confused with each other. That is why I urged you so strongly to read the opinion. It was pointless to discuss further until you were fully familiar with the issues framed by the parties, the evidence they both presented, the process for interpreting the evidence, and the resulting "legal facts."

Good job for reading the opinion, keep going.

-L- said...

You are very nice, and I'm very impressed with your restraint, Rob.

I do see your point about the arguments that were made and the way the judgments were made.

I did confuse legal facts with, umm, real facts in my post, and that was kind of deliberate. Makes for a nice rhetorical title, don't you think? Anyway, I can see how that confusion is funny when contrasted with my accusing Walker of equivocation.

So, thanks for your thoughts and hopefully you can appreciate the overall point of the post: it's NOT unrealistic for a gay person to marry someone of the opposite sex. Whether the marriage works for them or not... well, that's another story.

Rob said...

And thanks for your kind comments in return. I'm glad my approach makes more sense to you now. Sometimes lawyers can be a little obscure.

But I will respectfully take issue with your statement that it is "NOT unrealistic for a gay person to marry someone of the opposite sex."

According to, "realistic" means "interested in, concerned with, or based on what is real or practical." Synonyms include "pragmatic" and "sensible."

If "realistic" means only "technically possible" then yes, you are correct. You and I are evidence of that. But I think most people, me included, would consider that an artificially restricted definition. I think most people would consider "realistic" to mean not only technically possible but also "pragmatic" and "sensible," something that actually would work well and have a reasonable chance of success. It was always technically possible for the United States to launch a nuclear attack on the Soviet Union during the Cold War, but few people would have called that "realistic" in light of the consequences.

The wreckage of countless mixed orientation marriages, the fact that the ultra-conservative LDS Church itself has now conceded its own culpability in such tragedies and stopped telling young gay Mormon men to marry women, the virtually unanimous consensus among professional therapists that such marriages are a bad idea and usually destined to fail, all tell me that despite "technical feasibility" it is NOT realistic for gay men to marry straight women IF they expect a reasonable chance of marital happiness and success.

There will always be exceptions of course. You may be one. But we don't make social policy or laws based on exceptions, especially when evidence to the contrary is so overwhelming.

So while I understand your point, with respect, I think it's an unpersuasive technicality that fails to account for the larger picture and larger issues. Perhaps you should consider revising your definitions?

-L- said...

LOL, you just can't give an inch, can you?

I agree with the sentiment you're expressing, if not the particulars. It is relevant and true that marriage is not realistic in the most meaningful sense. But in the legal sense (I write with trepidation at the correction that is sure to come), it is perfectly within anyone's power to trot on down to the courthouse and get hitched to someone of the opposite sex just like anyone else, whether gay or straight. In that sense, the one I wrote about in my post, it's factually and perfectly realistic.

But if you hadn't made that comment just now putting all the caveats and qualifiers in there that I agree with, I would have been disappointed if *nobody* had. I fully expected it to come up, because it's important.

Sybil said...

You should move to Canada.

We don't make such a fuss here ...
people are people.

Procreation ?! Oh good grief.
And I thought California was one of your brighter states. ;-)

Nova Scotia