Bench Memos

Anti-Prop 8 Myths, #6 to #9

Continuing my exposition of some of the myths and distortions in plaintiffs’ anti-Prop 8 brief:

Myth/Distortion #6: Proponents have “never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.” (Brief at 3; see also Brief at 40 (“Proponents suggest no reason to believe – indeed, they make no argument at all – that prohibiting same-sex couples from entering relationships designated ‘marriage’ will make it more likely that heterosexual couples in California will marry.”).)

Reality: Most of the testimony and volumes of documentary evidence that Prop 8 proponents offered at trial supported the likelihood that redefining marriage would result in the “deinstitutionalization” of marriage over time. Indeed, Proponents’ Proposed Findings of Fact contain an entire subsection on the “effects of extending marriage to same-sex couples.” PFF ##86-115. The first proposed finding under that subsection states that, “[a]lthough it is impossible at this time to identify with absolute certainty all the negative consequences that will flow from redefining marriage to include same sex couples, it is likely that such a redefinition would harm the institution and the vital interests it serves.” PFF #86. The subsection then goes on to identify the process by which redefining marriage could harm the institution and to identify several distinct, negative consequences that could flow from that harm. For example:

“Extending marriage to same-sex couples would entail the further, and in some respects full, deinstitutionalization of marriage.”  PFF #92.

“Extending marriage to same-sex couples would contribute to significantly changing the legal and public meaning of marriage from an institution with defined legal and social structure and purposes to a right of personal expression.”  PFF #93.

“Extending marriage to same-sex couples would likely lead to the further erosion of the institution of marriage, as reflected primarily in lower marriage rates, higher rates of divorce and non-marital cohabitation, and more children raised outside of marriage and separated from at least one natural parent.”  PFF #94.

“Extending marriage to same-sex couples would result in explicit public endorsement of the idea that a child does not need both a mother and a father.  This would likely result in fewer children growing up with fathers.”  PFF #95.

Myth/Distortion #7: “Proponents presented no witness who discussed data or studies tending to show that permitting gay men and lesbians to marry harms the institution of marriage.” (Brief at 45.)

Reality: Through cross-examination of plaintiffs’ own expert Professor Badgett, proponents introduced evidence that showed, for example, that after the Netherlands became the first nation to redefine marriage in 2001, the long-term decline in the country’s marriage rate accelerated substantially, DIX1887, while the number of unmarried couples with children and the number of single-parent households has increased substantially, DIX2639, DIX2426. 

Myth/Distortion #8: “[W]hen the district court asked [proponents’] counsel point blank what harm would come to opposite-sex married couples if gay men and lesbians could marry, Proponents’ counsel mustered only ‘I don’t know.  I don’t know.’” Brief at 45. 

Reality: Plaintiffs persist in misrepresenting the comment by proponents’ counsel. As I spell out more fully (with citations) in Part III of my amicus brief, the district judge asked counsel at the summary-judgment hearing how same-sex marriage “would harm opposite-sex marriages.” It was in response to that seeming request for an ironclad prediction that counsel stated, “Your Honor, my answer is: I don’t know. I don’t know.” Counsel then explained:

[T]he state and its electorate are entitled, when dealing with radical proposals for change, to a bedrock institution such as this to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.

Keep in mind, your Honor, this same-sex marriage is a very recent innovation. Its implications of a social and cultural nature, not to mention its impact on marriage over time, can’t possibly be known now.

Counsel also stated that “there appear to be a number of adverse social consequences in The Netherlands from” same-sex marriage, including that “the effort to channel procreative activity into the institution [of marriage] has abated quite a bit.” Counsel’s larger point at the summary-judgment stage was of course that his clients’ entitlement to summary judgment did not depend on such matters, so it is hardly meaningful that he did not see fit to use the occasion to identify all the foreseeable potential harms.

Counsel’s proposition—that it is simply too soon to predict with certainty the long-term social consequences of redefining marriage—should hardly be controversial. Plaintiffs’ own expert Professor Cott testified that it is “impossible” to know what the consequences of same-sex marriage would be because “no one predicts the future that accurately.”

Myth/Distortion #9: “[B]ecause Proponents acknowledge ‘the undisputed truth that children suffer when procreation and childrearing take place outside stable family units,’ they must also acknowledge that the undeniable effect of Proposition 8 is to cause ‘suffer[ing]’ among the nearly 40,000 children in California being raised by gay and lesbian couples.” Brief at 42 (citation omitted).

Reality: There is no empirical evidence that marriage would provide any incremental benefit to the children of gays and lesbians beyond what domestic partnerships provide. Plaintiffs’ own expert Professor Lamb conceded that he was unaware of any study “that looks at the specific benefits flowing to children whose parents are together under domestic partnership law in California.” Tr. 1184. According to the American Academy of Pediatrics, “legislative initiatives assuring legal status equivalent to marriage for gay and lesbian partners, such as the law approving civil unions in Vermont, can also attend to providing security and permanence for the children of those partnerships.” PX0753. Furthermore, respected researchers have concluded that empirical evidence indicates that “[t]he advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.” DIX0021 at 890. In short, there is no evidence that the children of same-sex couples would benefit from marriage as opposed to domestic partnerships.


The Latest