Perry v. Schwarzenegger/11:Findings of Fact--Whether The Evidence Shows That Proposition 8 Enacted a Private Moral View Without Advancing a Legitimate Governmental Interest

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Perry v. Schwarzenegger
11:Findings of Fact--Whether The Evidence Shows That Proposition 8 Enacted a Private Moral View Without Advancing a Legitimate Governmental Interest

[p. 85] WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST

  1. Under Proposition 8, whether a couple can obtain a marriage license and enter into marriage depends on the genders of the two parties relative to one another. A man is permitted to marry a woman but not another man. A woman is permitted to marry a man but not another woman. Proposition 8 bars state and county officials from issuing marriage licenses to same-sex couples. It has no other legal effect.
    1. Cal Const Art I, § 7.5 (Proposition 8);
    2. PX0001 California Voter Information Guide, California General Election, Tuesday, November 4, 2008: Proposition 8 "eliminates right of same-sex couples to marry."
  2. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
    1. Tr 611:13-19 (Peplau: "[B]eing prevented by the government from being married is no different than other kinds of stigma and discrimination that have been studied, in terms of their impact on relationships.");
    2. Tr 529:21-530:23 (Chauncey: The campaign for Proposition 8 presented marriage for same-sex couples as an adult issue, although children are frequently exposed to romantic fairy tales or weddings featuring opposite-sex couples.);
    3. Tr 854:5-14 (Meyer: "Proposition 8, in its social meaning, sends a message that gay relationships are not to be respected; that they are of secondary value, if of any value at all; that they are certainly not equal to those of heterosexuals.”);
    4. Tr 2047:13-2048:13 (Herek: In 2004, California enacted legislation that increased the benefits and [p. 86] responsibilities associated with domestic partnership, which became effective in 2005. In the second half of 2004, the California Secretary of State mailed a letter to all registered domestic partners advising them of the changes and telling recipients to consider whether to dissolve their partnership. Herek "find[s] it difficult to imagine that if there were changes in tax laws that were going to affect married couples, that you would have the state government sending letters to people suggesting that they consider whether or not they want to get divorced before this new law goes into effect. I think that —— that letter just illustrates the way in which domestic partnerships are viewed differently than marriage.");
    5. PX2265 Letter from Kevin Shelley, California Secretary of State, to Registered Domestic Partners: Shelley explains domestic partnership law will change on January 1, 2005 and suggests that domestic partners dissolve their partnership if they do not wish to be bound by the new structure of domestic partnership;
    6. Tr 972:14-17 (Meyer: "Laws are perhaps the strongest of social structures that uphold and enforce stigma.");
    7. Tr 2053:8-18 (Herek: Structural stigma provides the context and identifies which members of society are devalued. It also gives a level of permission to denigrate or attack particular groups, or those who are perceived to be members of certain groups in society.);
    8. Tr 2054:7-11 (Herek: Proposition 8 is an instance of structural stigma.).
  3. Proposition 8 requires California to treat same-sex couples differently from opposite-sex couples.
    1. See PX0710 at RFA No 41: Attorney General admits that because two types of relationships —— one for same-sex couples and one for opposite-sex couples —— exist in California, a gay or lesbian individual may be forced to disclose his or her sexual orientation when responding to a question about his or her marital status;
    2. Compare Cal Fam Code §§ 300-536 (marriage) with Cal Fam Code §§ 297-299.6 (registered domestic partnerships).
  4. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples.
    1. Tr 576:15-577:14 (Peplau: Study by Gary Gates, Lee Badgett and Deborah Ho suggests that same-sex couples are [p. 87] "three times more likely to get married than to enter into" domestic partnerships or civil unions.);
    2. 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.";
    3. Tr 2044:20-2045:22 (Herek: The difference between domestic partnerships and marriage is more than simply a word. If we look at public opinion data, for example, there is a sizable proportion of the public, both in California and the United States, who say that they are willing to let same-sex couples have domestic partnerships or civil unions, but not marriage. This suggests a distinction in the minds of a large number of Americans —— it is not simply a word. In addition, looking at the recent history of California, when it became possible for same-sex couples to marry, thousands of them did. And many of those were domestic partners. So, clearly, they thought there was something different about being married.);
    4. PX0504B Video, Satellite Simulcast in Defense of Marriage, Excerpt at 0:38-0:56: Speaker warns that if Proposition 8 does not pass, children will be taught "that gay marriage is not just a different type of a marriage, they're going to be taught that it's a good thing."
  5. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.
    1. Tr 1087:5-18 (Lamb: The "traditional family" refers to a family with a married mother and father who are both biologically related to their children where the mother stays at home and the father is the bread winner.);
    2. PX0506 Protect Marriage, The Fine Line Transcript (Oct 1, 2008) at 13: "Children need a loving family and yes they need a mother and father. Now going on what Sean was saying here about the consequences of this, if Prop 8 doesn't pass then it will be illegal to distinguish between heterosexual and same sex couples when it comes [p. 88] to adoption. Um Yvette just mentioned some statistics about growing up in families without a mother and father at home. How important it is to have that kind of thing. I'm not a sociologist. I'm not a psychologist. I'm just a human being but you don't need to be wearing a white coat to know that kids need a mom and dad. I'm a dad and I know that I provide something different than my wife does in our family and my wife provides something entirely different than I do in our family and both are vital.";
    3. PX0506 Protect Marriage, The Fine Line Transcript at 6 (Oct 1, 2008): "When moms are in the park taking care of their kids they always know where those kids are. They have like a, like a radar around them. They know where those kids are and there's just a, there's a bond between a mom and a kid different from a dad. I'm not saying dads don't have that bond but they don't. It's just different. You know middle of the night mom will wake up. Dad will just sleep you know if there's a little noise in the room. And, and when kids get scared they run to mommy. Why? They spent 9 months in mommy. They go back to where they came.";
    4. PX390 Video, Ron Prentice Addressing Supporters of Proposition 8, Part I at 5:25-6:04: Prentice tells people at a religious rally that marriage is not about love but instead about women civilizing men: "Again, because it's not about two people in love, it's about men becoming civilized frankly, and I can tell you this from personal experience and every man in this audience can do the same if they've chosen to marry, because when you do find the woman that you love you are compelled to listen to her, and when the woman that I love prior to my marrying her told me that my table manners were less than adequate I became more civilized; when she told me that my rust colored corduroy were never again to be worn, I became more civilized.";
    5. PX0506 Protect Marriage, The Fine Line Transcript (Oct 1, 2008) at 15: "Skin color is morally trivial as you pointed out but sex is fundamental to everything. There is no difference between a white or a black human being but there's a big difference between a man and a woman.";
    6. PX1867 Transcript, ABC Protecting Marriage at 27:6-9: Dr Jennifer Roback Morse states that "[t]he function of marriage is to attach mothers and fathers to one another and mothers and fathers to their children, especially fathers to children.";
    7. PX0480A Video supporting Proposition 8 at 2:00-2:24: Prentice states that "[c]hildren need the chance to have both mother love and father love. And that moms and dads, male and female, complement each other. They don't [p. 89] bring to a marriage and to a family the same natural set of skills and talents and abilities. They bring to children the blessing of both masculinity and femininity.";
    8. PX2403 Email from Kenyn Cureton, Vice-President, Family Research Council, to Prentice at 3 (Aug 25, 2008): Attached to the email is a kit to be distributed to Christian voters through churches to help them promote Proposition 8 which states: "Thank God for the difference between men and women. In fact, the two genders were meant to complete each other physically, emotionally, and in every other way. Also, both genders are needed for a healthy home. As Dr James Dobson notes, 'More than ten thousand studies have concluded that kids do best when they are raised by mothers and fathers.'";
    9. PX1868 Transcript, Love, Power, Mind (CCN simulcast Sept 25, 2008) at 43:19-24: "Same sex marriage, it will unravel that in a significant way and say that really male and female, mother and father, husband and wife are just really optional for the family, not necessary. And that is a radically anti-human thing to say.”;
    10. PX1867 Transcript, ABC Protecting Marriage at 28:18-23: "And we know that fatherlessness has caused significant problems for a whole generation of children and same-sex marriage would send us more in that direction of intentionally fatherless homes.";
    11. PX0506 Protect Marriage, The Fine Line Transcript at 5 (Oct 1, 2008): Miles McPherson states that it is a truth "that God created the woman bride as the groom's compatible marriage companion."
  6. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
    1. In re Marriage Cases, 189 P3d at 451-452 ("[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.") (Citing Cal Const Art I, § 4); [p. 90]
    2. Tr 194:24-196:21 (Cott: Civil law, not religious custom, is supreme in defining and regulating marriage in the United States.);
    3. Cal Fam Code §§ 400, 420.
  7. Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. Strauss, 207 P3d at 102 ("Proposition 8 does not eliminate the substantial substantive [constitutional] protections afforded to same-sex couples[.]") (emphasis in original).
  8. Proposition 8 has had a negative fiscal impact on California and local governments.
    1. Tr 1330:23-25 (Badgett: "Proposition 8 has imposed some economic losses on the State of California and on counties and municipalities.");
    2. Tr 1364:16-1369:4 (Badgett: Denying same-sex couples the right to marry imposes costs on local governments such as loss of tax revenue, higher usage of means-tested programs, higher costs for healthcare of uninsured same-sex partners and loss of skilled workers.);
    3. Tr 720:1-12 (Egan: "What we're really talking about in the nonquantifiable impacts are the long-term advantages of marriage as an institution, and the long-term costs of discrimination as a way that weakens people's productivity and integration into the labor force. Whether it's weakening their education because they're discriminated against at school, or leading them to excessive reliance on behavioral and other health services, these are impacts that are hard to quantify, but they can wind up being extremely powerful. How much healthier you are over your lifetime. How much wealth you generate because you are in a partnership.");
    4. Tr 1367:5-1368:1 (Badgett: Denying same-sex couples the right to marry tends to reduce same-sex couples' income, which "will make them more likely to need and be eligible for those means-tested programs that are paid for by the state." Similarly, to the extent that same-sex couples cannot obtain health insurance for their partners and children, there will be more people who might need to sign up for the state's sponsored health programs.). [p. 91]
  9. CCSF would benefit economically if Proposition 8 were not in effect.
    1. CCSF would benefit immediately from increased wedding revenue and associated expenditures and an increased number of county residents with health insurance. Tr 691:24-692:3; Tr 708:16-20 (Egan);
    2. CCSF would benefit economically from decreased discrimination against gays and lesbians, resulting in decreased absenteeism at work and in schools, lower mental health costs and greater wealth accumulation. Tr 685:10-14; Tr 689:4-10; Tr 692:12-19; Tr 720:1-12 (Egan);
    3. CCSF enacted the Equal Benefits Ordinance to mandate that city contractors and vendors provide same-sex partners of employees with benefits equal to those provided to opposite-sex spouses of employees. CCSF bears the cost of enforcing the ordinance and defending it against legal challenges. Tr 714:15-715:10 (Egan).
  10. Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs.
    1. Tr 1330:14-16 (Badgett: Proposition 8 has "inflicted substantial economic harm on same-sex couples and their children who live here in California.");
    2. Tr 1331:12-1337:25 (Badgett: Marriage confers economic benefits including greater specialization of labor, reduced transactions costs, health and insurance benefits and more positive workplace outcomes.);
    3. Tr 1341:2-1342:13 (Badgett: Couples that would marry but would not enter into a domestic partnership suffer tangible economic harm such as higher taxes and limited access to health insurance.);
    4. PX1259 MV Lee Badgett, Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits, The Williams Institute at 1 (Dec 2007): "[W]orkers who have an unmarried domestic partner are doubly burdened: Their employers typically do not provide coverage for domestic [p. 92] partners; and even when partners are covered, the partner's coverage is taxed as income to the employee.";
    5. PX2898 Laura Langbein and Mark A Yost, Same-Sex Marriage and Negative Externalities, 490 Soc Sci Q 293, 307 (2009): "For example, the ban on gay marriage induces failures in insurance and financial markets. Because spousal benefits do not transfer (in most cases) to domestic partners, there are large portions of the population that should be insured, but instead receive inequitable treatment and are not insured properly.... This is equally true in the treatment of estates on the death of individuals. In married relationships, it is clear to whom an estate reverts, but in the cases of homosexual couples, there is no clear right of ownership, resulting in higher transactions costs, widely regarded as socially inefficient.";
    6. PX0188 Report of the Council on Science and Public Health, Health Care Disparities in Same-Sex Households, C Alvin Head (presenter) at 9: "Survey data confirm that same-sex households have less access to health insurance. If they have health insurance, they pay more than married heterosexual workers, and also lack other financial protections.... [C]hildren in same-sex households lack the same protections afforded children in heterosexual households.";
    7. PX0189 American Medical Association Policy: Health Care Disparities in Same-Sex Partner Households, Policy D-160.979 at 1: "[E]xclusion from civil marriage contributes to health care disparities affecting same-sex households.";
    8. PX1261 California Employer Health Benefits Survey, California HealthCare Foundation at 7 (Dec 2008): Only 56 percent of California firms offered health insurance to unmarried same-sex couples in 2008;
    9. PX1266 National Center for Lesbian Rights and Equality California, The California Domestic Partnership Law: What it Means for You and Your Family at 13 (2009): Domestic partnerships create more transactions costs than exist in marriage. "Despite...automatic legal protection for children born to registered domestic partners, [the National Center for Lesbian Rights] is strongly recommending that all couples obtain a court judgment declaring both partners to be their child's legal parents, either an adoption or a parentage judgment.";
    10. PX1269 Michael Steinberger, Federal Estate Tax Disadvantages for Same-Sex Couples, The Williams Institute at 1 (July 2009): "Using data from several government data sources, this report estimates the dollar value of the estate tax disadvantage faced by same-sex [p. 93] couples. In 2009, the differential treatment of same-sex and married couples in the estate tax code will affect an estimated 73 same-sex couples, costing each of them, on average, more than $3.3 million."
  11. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.
    1. Tr 2054:7-11 (Herek: In "a definitional sense," Proposition 8 is an instance of structural stigma against gays and lesbians.);
    2. Tr 826:21-828:4 (Meyer: Domestic partnership does not eliminate the structural stigma of Proposition 8 because it does not provide the symbolic or social meaning of marriage.);
    3. Tr 820:23-822:5 (Meyer: One of the stereotypes that is part of the stigma surrounding gay men and lesbians is that gay men and lesbians are incapable of, uninterested in and not successful at having intimate relationships.);
    4. Tr 407:8-408:4 (Chauncey: The fear of homosexuals as child molesters or as recruiters continues to play a role in debates over gay rights, and with particular attention to gay teachers, parents and married couples —— people who might have close contact with children.);
    5. PX0001 California Voter Information Guide, California General Election, Tuesday, November 4, 2008 at PM 3365: "TEACHERS COULD BE REQUIRED to teach young children that there is no difference between gay marriage and traditional marriage." (emphasis in original);
    6. Tr 854:5-22 (Meyer: Proposition 8 "sends a message that gay relationships are not to be respected; that they are of secondary value, if of any value at all; that they are certainly not equal to those of heterosexuals.... [So] in addition to achieving the literal aims of not allowing gay people to marry, it also sends a strong message about the values of the state; in this case, the Constitution itself. And it sends a message that would, in [Meyer's] mind, encourage or at least is consistent with holding prejudicial attitudes. So that doesn't add up to a very welcoming environment."). [p. 94]
  12. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships.
    1. Tr 846:22-847:12 (Meyer: When gay men and lesbians have to explain why they are not married, they "have to explain, I'm really not seen as equal. I'm —— my status is —— is not respected by my state or by my country, by my fellow citizens.");
    2. Tr 1471:1-1472:8 (Badgett: Badgett's interviews with same-sex couples indicate that couples value the social recognition of marriage and believe that the alternative status conveys a message of inferiority.);
    3. Tr 151:20-24 (Perry: A passenger on a plane once assumed that she could take the seat that Perry had been saving for Stier because Perry referred to Stier as her "partner.");
    4. Tr 174:3-175:4 (Stier: It has been difficult to explain to others her relationship with Perry because they are not married.);
    5. Tr 175:5-17 (Stier: It is challenging to fill out forms in doctor's offices that ask whether she is single, married or divorced because "I have to find myself, you know, scratching something out, putting a line through it and saying 'domestic partner' and making sure I explain to folks what that is to make sure that our transaction can go smoothly.");
    6. Tr 841:17-844:11; 845:7-10 (Meyer: For lesbians and gay men, filling out a form requiring them to designate their marital status can be significant because the form-filler has no box to check. While correcting a form is a minor event, it is significant for the gay or lesbian person because the form evokes something much larger for the person —— a social disapproval and rejection. "It's about, I'm gay and I'm not accepted here.").
  13. The factors that affect whether a child is well-adjusted are: (1) the quality of a child's relationship with his or her parents; (2) the quality of the relationship between a child's parents or significant adults in the child's life; and (3) the [p. 95] availability of economic and social resources. Tr 1010:13-1011:13 (Lamb).
  14. The gender of a child's parent is not a factor in a child's adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.
    1. Tr 1025:4-23 (Lamb: Studies have demonstrated "very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents." These results are "completely consistent with our broader understanding of the factors that affect children's adjustment.");
    2. PX2565 American Psychological Association, Answers to Your Questions: For a Better Understanding of Sexual Orientation and Homosexuality at 5 (2008): "[S]ocial science has shown that the concerns often raised about children of lesbian and gay parents —— concerns that are generally grounded in prejudice against and stereotypes about gay people —— are unfounded.";
    3. PX2547 (Nathanson Nov 12, 2009 Dep Tr 49:05-49:19: Sociological and psychological peer-reviewed studies conclude that permitting gay and lesbian individuals to marry does not cause any problems for children); PX2546 at 2:20-3:10 (video of same).
  15. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted. Tr 1014:25-1015:19; 1038:23-1040:17 (Lamb). [p. 96]
  16. The genetic relationship between a parent and a child is not related to a child's adjustment outcomes. Tr 1040:22-1042:10 (Lamb).
  17. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. Tr 1187:13-1189:6 (Lamb).
  18. Gays and lesbians have been victims of a long history of discrimination.
    1. Tr 3080:9-11 (Proponents' counsel: "We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination.");
    2. Tr 361:11-15 (Chauncey: Gays and lesbians "have experienced widespread and acute discrimination from both public and private authorities over the course of the twentieth century. And that has continuing legacies and effects."); see also Tr 361-390 (Chauncey: discussing details of discrimination against gays and lesbians);
    3. PX2566 Letter from John W Macy, Chairman, Civil Service Commission, to the Mattachine Society of Washington (Feb 25, 1966) at 2-4: The Commission rejected the Mattachine Society's request to rescind the policy banning active homosexuals from federal employment. "Pertinent considerations here are the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities, the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.";
    4. PX2581 Letter from E D Coleman, Exempt Organizations Branch, IRS, to the Pride Foundation at 1, 4-5 (Oct 8, [p. 97] 1974): The Pride Foundation is not entitled to an exemption under Internal Revenue Code § 501(c)(3) because the organization's goal of "advanc[ing] the welfare of the homosexual community" was "perverted or deviate behavior" "contrary to public policy and [is] therefore, not 'charitable.'"
  19. Public and private discrimination against gays and lesbians occurs in California and in the United States.
    1. PX0707 at RFA No 29: Proponents admit that gays and lesbians continue to experience instances of discrimination;
    2. PX0711 at RFA Nos 3, 8, 13, 18, 23: Attorney General admits 263 hate crime events based on sexual orientation bias occurred in California in 2004, 255 occurred in 2005, 246 occurred in 2006, 263 occurred in 2007 and 283 occurred in 2008;
    3. PX0672 at 18; PX0673 at 20; PX0674 at 20; PX0675 at 3; PX0676 at 1 (California Dept of Justice, Hate Crime in California, 2004-2008): From 2004 to 2008, between 17 and 20 percent of all hate crime offenses in California were motivated by sexual orientation bias;
    4. PX0672 at 26; PX0673 at 28; PX0674 at 28; PX0675 at 26; PX0676 at 20 (California Dept of Justice, Hate Crime in California, 2004-2008): From 2004 to 2008, between 246 and 283 hate crime events motivated by sexual orientation bias occurred each year in California;
    5. Tr 548:23 (Chauncey: There is still significant discrimination against lesbians and gay men in the United States.);
    6. Tr 1569:11-1571:5 (Segura: "[O]ver the last five years, there has actually been an increase in violence directed toward gay men and lesbians"; "gays and lesbians are representing a larger and larger portion of the number of acts of bias motivated violence" and "are far more likely to experience violence"; "73 percent of all the hate crimes committed against gays and lesbians also include an act of violence...we are talking about the most extreme forms of hate based violence"; the hate crimes accounted for "71 percent of all hate-motivated murders" and "[f]ifty-five percent of all hate-motivated rapes" in 2008; "There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.");
    7. PX0605 The Williams Institute, et al, Documenting Discrimination on the Basis of Sexual Orientation and [p. 98] Gender Identity in State Employment at 1 (Sept 2009): "There is a widespread and persistent pattern of unconstitutional discrimination on the basis of sexual orientation and gender identity against [California] government employees" and the pattern of discrimination is similar for private sector employees in California;
    8. PX0619 The Williams Institute, Chapter 14: Other Indicia of Animus against LGBT People by State and Local Officials, 1980-Present at 14-8 (2009): Statements made by legislators, judges, governors and other officials in all fifty states show hostility towards gays and lesbians, including a 1999 statement by California State Senator Richard Mountjoy that "being gay 'is a sickness...an uncontrolled passion similar to that which would cause someone to rape.'";
    9. Tr 2510:23-2535:7 (Miller: Miller agrees that "there has been severe prejudice and discrimination against gays and lesbians" and "widespread and persistent" discrimination against gays and lesbians and that "there is ongoing discrimination in the United States" against gays and lesbians.);
    10. Tr 2572:11-16 (Miller: Gays and lesbians are still the "object of prejudice and stereotype.");
    11. Tr 2599:17-2604:7 (Miller: Miller agrees that "there are some gays and lesbians who are fired from their jobs, refused work, paid less, and otherwise discriminated against in the workplace because of their sexual orientation.”).
  20. Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.
    1. DIX1162 Randy Albelda, et al, Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute at 1 (Mar 2009): "A popular stereotype paints lesbians and gay men as an affluent elite.... [T]he misleading myth of affluence steers policymakers, community organizations service providers, and the media away from fully understanding poverty among LGBT people."; [p. 99]
    2. Tr 474:12-19 (Chauncey: Medical pronouncements that were hostile to gays and lesbians provided a powerful source of legitimation to anti-homosexual sentiment and were themselves a manifestation of discrimination against gays and lesbians.);
    3. Tr 820:23-822:5 (Meyer: One of the stereotypes that is part of the stigma surrounding gay men and lesbians is that gay men and lesbians are incapable of, uninterested in and not successful at having intimate relationships. Gay men and lesbians have been described as social isolates, as unconnected to society and people who do not participate in society the way everyone else does —— as "a pariah, so to speak.");
    4. PX1011 David Reuben, Everything You Always Wanted to Know About Sex (But Were Afraid to Ask) 129-151 at 143 (Van Rees 1969): "What about all of the homosexuals who live together happily for years? What about them? They are mighty rare birds among the homosexual flock. Moreover, the 'happy' part remains to be seen. The bitterest argument between husband and wife is a passionate love sonnet by comparison with a dialogue between a butch and his queen. Live together? Yes. Happily? Hardly.";
    5. Tr 361:23-363:9 (Chauncey: Even though not all sodomy laws solely penalized homosexual conduct, over the course of the twentieth century, sodomy laws came to symbolize the criminalization of homosexual sex in particular. This was most striking in Bowers v Hardwick, which reads as though the law at issue simply bears on homosexual sex when in fact the Georgia law at issue criminalized both homosexual and heterosexual sodomy.);
    6. Tr 484:24-485:5 (Chauncey: The federal government was slow to respond to the AIDS crisis, and this was in part because of the association of AIDS with a "despised group.");
    7. Tr 585:22-586:8 (Peplau: There is no empirical support for the negative stereotypes that gay men and lesbians have trouble forming stable relationships or that those relationships are inferior to heterosexual relationships.);
    8. PX2337 Employment of Homosexuals and Other Sex Perverts in Government, S Rep No 81-241, 81st Congress, 2d Sess (1950) at 4: "Most of the authorities agree and our investigation has shown that the presence of a sex pervert in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials [p. 100] have the responsibility of keeping this type of corrosive influence out of the agencies under their control. It is particularly important that the thousands of young men and women who are brought into Federal jobs not be subjected to that type of influence while in the service of the Government. One homosexual can pollute a Government office.";
    9. Tr 395:6-25 (Chauncey: Like most outsider groups, there have been stereotypes associated with gay people; indeed, a range of groups, including medical professionals and religious groups, have worked in a coordinated way to develop stereotypical images of gay people.);
    10. Tr 397:2-6; Tr 397:25-398:5 (Chauncey: "[I]n some ways, the most dangerous stereotypes for homosexuals really developed between the 1930s and '50s, when there were a series of press and police campaigns that identified homosexuals as child molesters." These press campaigns against assaults on children focused on sex perverts or sex deviants. Through these campaigns, the homosexual emerged as a sex deviant.);
    11. PX2281 George Chauncey, The Postwar Sex Crime Panic, in William Graebner, ed, True Stories from the Past 160, 171 (McGraw-Hill 1993): Contains excerpts from wide-circulation Coronet Magazine, Fall 1950: "Once a man assumes the role of homosexual, he often throws off all moral restraints.... Some male sex deviants do not stop with infecting their often-innocent partners: they descended through perversions to other forms of depravity, such as drug addiction, burglary, sadism, and even murder.";
    12. Tr 400:18-401:8 (Chauncey: This excerpt from Coronet Magazine, PX2281 at 171, depicts homosexuals as subjects of moral decay. In addition, there is a sense of homosexuality as a disease in which the carriers infect other people. And the term "innocent" pretty clearly indicates that the authors are talking about children.);
    13. PX2281 Chauncey, The Postwar Sex Crime Panic, at 170-171: Contains a statement made by a Special Assistant Attorney General of California in 1949: "The sex pervert, in his more innocuous form, is too frequently regarded as merely a 'queer' individual who never hurts anyone but himself.... All too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes...and is ever seeking for younger victims.";
    14. Tr 402:21-24 (Chauncey: These articles (in PX2281) were mostly addressed to adults who were understandably concerned about the safety of their children, and who "were being taught to believe that homosexuals posed a threat to their children."); [p. 101]
    15. Tr 407:8-408:4 (Chauncey: One of the most enduring legacies of the emergence of these stereotypes is the creation and then reenforcement of a series of demonic images of homosexuals that stay with us today. This fear of homosexuals as child molesters or as recruiters continues to play a role in debates over gay rights, and with particular attention to gay teachers, parents and married couples —— people who might have close contact with children.);
    16. Tr 1035:13-1036:19 (Lamb: Social science studies have disproven the hypothesis that gays and lesbians are more likely to abuse children.).
  21. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
    1. PX2547 (Nathanson Nov 12, 2009 Dep Tr 102:3-8: Religions teach that homosexual relations are a sin and that contributes to gay bashing); PX2546 (video of same);
    2. PX2545 (Young Nov 13, 2009 Dep Tr 55:15-55:20, 56:21-57:7: There is a religious component to the bigotry and prejudice against gay and lesbian individuals); see also id at 61:18-22, 62:13-17 (Catholic Church views homosexuality as "sinful."); PX2544 (video of same);
    3. Tr 1565:2-1566:6 (Segura: "[R]eligion is the chief obstacle for gay and lesbian political progress, and it's the chief obstacle for a couple of reasons. * * * [I]t's difficult to think of a more powerful social entity in American society than the church.... [I]t's a very powerful organization, and in large measure they are arrayed against the interests of gays and lesbians.... [B]iblical condemnation of homosexuality and the teaching that gays are morally inferior on a regular basis to a huge percentage of the public makes the...political opportunity structure very hostile to gay interests. It's very difficult to overcome that.");
    4. PX0390 Video, Ron Prentice Addressing Supporters of Proposition 8, Part I at 0:20-0:40: Prentice explains that "God has led the way" for the Protect Marriage campaign and at 4:00-4:30: Prentice explains that "we do mind" when same-sex couples want to take the name "marriage" and apply it to their relationships, because "that's not what God wanted.... It's real basic.... It starts at Genesis 2.";
    5. Tr 395:14-18 (Chauncey: Many clergy in churches considered homosexuality a sin, preached against it and have led campaigns against gay rights.); [p. 102]
    6. Tr 440:19-441:2 (Chauncey: The religious arguments that were mobilized in the 1950s to argue against interracial marriage and integration as against God's will are mirrored by arguments that have been mobilized in the Proposition 8 campaign and many of the campaigns since Anita Bryant's "Save Our Children" campaign, which argue that homosexuality itself or gay people or the recognition of their equality is against God's will.);
    7. PX2853 Proposition 8 Local Exit Polls - Election Center 2008, CNN at 8: 84 percent of people who attended church weekly voted in favor of Proposition 8;
    8. PX0005 Leaflet, James L Garlow, The Ten Declarations For Protecting Biblical Marriage at 1 (June 25, 2008): "The Bible defines marriage as a covenantal union of one male and one female.... We will avoid unproductive arguments with those who, through the use of casuistry and rationalization, revise biblical passages in order to condone the practice of homosexuality or other sexual sins.";
    9. PX0770 Congregation for the Doctrine of Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons at 2: "Sacred Scripture condemns homosexual acts as 'a serious depravity.'";
    10. PX0301 Catholics for the Common Good, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, Excerpts from Vatican Document on Legal Recognition of Homosexual Unions (Nov 22, 2009): There are absolutely no grounds for considering homosexual unions to be "in any way similar or even remotely analogous to God's plan for marriage and family"; "homosexual acts go against the natural moral law" and "[u]nder no circumstances can...be approved"; "[t]he homosexual inclination is...objectively disordered and homosexual practices are sins gravely contrary to chastity"; "[a]llowing children to be adopted by persons living in such unions would actually mean doing violence to these children"; and "legal recognition of homosexual unions...would mean...the approval of deviant behavior.";
    11. PX0168 Southern Baptist Convention, SBC Resolution, On Same-Sex Marriage at 1 (June 2003): "Legalizing 'same-sex marriage' would convey a societal approval of a homosexual lifestyle, which the Bible calls sinful and dangerous both to the individuals involved and to society at large.";
    12. PX0771 Southern Baptist Convention, Resolution on President Clinton's Gay and Lesbian Pride Month Proclamation (June 1999): "The Bible clearly teaches that [p. 103] homosexual behavior is an abomination and shameful before God.";
    13. PX2839 Evangelical Presbyterian Church, Position Paper on Homosexuality at 3: "[H]omosexual practice is a distortion of the image of God as it is still reflected in fallen man, and a perversion of the sexual relationship as God intended it to be.";
    14. PX2840 The Christian Life —— Christian Conduct: As Regards the Institutions of God, Free Methodist Church at 5: "Homosexual behavior, as all sexual deviation, is a perversion of God's created order.";
    15. PX2842 A L Barry, What About...Homosexuality, The Lutheran Church-Missouri Synod at 1: "The Lord teaches us through His Word that homosexuality is a sinful distortion of His desire that one man and one woman live together in marriage as husband and wife.";
    16. PX2844 On Marriage, Family, Sexuality, and the Sanctity of Life, Orthodox Church of America at 1: "Homosexuality is to be approached as the result of humanity's rebellion against God.";
    17. Tr 1566:18-22 (Segura: "[Proponents' expert] Dr Young freely admits that religious hostility to homosexuals [plays] an important role in creating a social climate that's conducive to hateful acts, to opposition to their interest in the public sphere and to prejudice and discrimination.");
    18. Tr 2676:8-2678:24 (Miller: Miller agrees with his former statement that "the religious characteristics of California's Democratic voters" explain why so many Democrats voted for Barack Obama and also for Proposition 8.).
  22. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians.
    1. Tr 413:22-414:6 (Chauncey: The "Save Our Children" campaign in Dade County, Florida in 1977 was led by Anita Bryant, a famous Baptist singer. It sought to overturn an enactment that added sexual orientation to an antidiscrimination law, and it drew on and revived earlier stereotypes of homosexuals as child molesters.);
    2. Tr 1554:14-19 (Segura: Ballot initiatives banning marriage equality have been passed in thirty-three states.); [p. 104]
    3. Tr 2608:16-18 (Miller: "My view is that at least some people voted for Proposition 8 on the basis of anti-gay stereotypes and prejudice.");
    4. Tr 538:15-539:10 (Chauncey: Chauncey is less optimistic now that same-sex marriage will become common in the United States than he was in 2004. Since 2004, when Chauncey wrote Why Marriage? The History Shaping Today's Debate over Gay Equality, the majority of states have enacted legislation or constitutional amendments that would prohibit same-sex couples from marrying. Some have been enacted by legislative vote, but a tremendous number of popular referenda have enacted these discriminatory measures.);
    5. Tr 424:18-23 (Chauncey: "[T]he wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.");
    6. Tr 412:20-413:1 (Chauncey: The series of initiatives we have seen since the mid-to-late 1970s over gay rights are another example of continuing prejudice and hostility.);
    7. Tr 564:4-16 (Chauncey: The term "the gay agenda" was mobilized particularly effectively in the late 1980s and early 1990s in support of initiatives designed to overturn gay rights laws. The term tries to construct the idea of a unitary agenda and that picks up on long-standing stereotypes.);
    8. Tr 1560:22-1561:9 (Segura: "[T]he role of prejudice is profound.... [I]f the group is envisioned as being somehow...morally inferior, a threat to children, a threat to freedom, if there's these deeply-seated beliefs, then the range of compromise is dramatically limited. It's very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That's just not the basis for compromise and negotiation in the political process.");
    9. Tr 1563:5-1564:21 (Segura: "[T]he American public is not very fond of gays and lesbians." Warmness scores for gays and lesbians are as much as 16 to 20 points below the average score for religious, racial and ethnic groups; over 65 percent of respondents placed gays and lesbians below the midpoint, below the score of 50, whereas a third to 45 percent did the same for other groups. When "two-thirds of all respondents are giving gays and lesbians a score below 50, that's telling elected officials that they can say bad things about gays and lesbians, and that could be politically advantageous [p. 105] to them because...many parts of the electorate feel the same way." Additionally, "the initiative process could be fertile ground to try to mobilize some of these voters to the polls for that cause.”);
    10. PX0619 The Williams Institute, Chapter 14: Other Indicia of Animus against LGBT People by State and Local Officials, 1980-Present at 9 (2009): The Williams Institute collected negative comments made by politicians about gays and lesbians in all fifty states. An Arizona state representative compared homosexuality to "bestiality, human sacrifice, and cannibalism." A California state senator described homosexuality as "a sickness...an uncontrolled passion similar to that which would cause someone to rape.";
    11. PX0796 Kenneth P Miller, The Democratic Coalition's Religious Divide: Why California Voters Supported Obama but Not Same-Sex Marriage, 119 Revue Française d’Études Américaines 46, 52 (2009): "In the decade between 1998 and 2008, thirty states held statewide elections on state constitutional amendments defining marriage as a union between a man and a woman.... Voters approved marriage amendments in all thirty states where they were able to vote on the question, usually by large margins."
  23. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.
    1. Tr 424:24-429:6 (Chauncey: Proposition 8 Official Voter Guide evoked fears about and contained stereotypical images of gay people.);
    2. PX0710 at RFA No 51: Attorney General admits that some of the advertising in favor of Proposition 8 was based on fear of and prejudice against homosexual men and women;
    3. Tr 2608:16-18 (Miller: "My view is that at least some people voted for Proposition 8 on the basis of anti-gay stereotypes and prejudice."); [p. 106]
    4. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8, Politics at 45-47 (Feb 2009): "[P]assing Proposition 8 would depend on our ability to convince voters that same-sex marriage had broader implications for Californians and was not only about the two individuals involved in a committed gay relationship." "We strongly believed that a campaign in favor of traditional marriage would not be enough to prevail." "We probed long and hard in countless focus groups and surveys to explore reactions to a variety of consequences our issue experts identified" and they decided to create campaign messaging focusing on "how this new 'fundamental right' would be inculcated in young children through public schools." "[T]here were limits to the degree of tolerance Californians would afford the gay community. They would entertain allowing gay marriage, but not if doing so had significant implications for the rest of society." "The Prop 8 victory proves something that readers of Politics magazine know very well: campaigns matter.";
    5. PX2150 Mailing leaflet, Protect Marriage: "[F]our activist judges on the Supreme Court in San Francisco ignored four million voters and imposed same-sex marriage on California. Their ruling means it is no longer about 'tolerance.' Acceptance of Gay Marriage is Now Mandatory.";
    6. PX0015 Video, Finally the Truth; PX0016 Video, Have You Thought About It?; and PX0091 Video, Everything to Do With Schools: Protect Marriage television ads threatening unarticulated consequences to children if Proposition 8 does not pass;
    7. PX0513 Letter from Tam to "friends": "This November, San Francisco voters will vote on a ballot to 'legalize prostitution.' This is put forth by the SF city government, which is under the rule of homosexuals. They lose no time in pushing the gay agenda —— after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children... We can't lose this critical battle. If we lose, this will very likely happen... 1. Same-Sex marriage will be a permanent law in California. One by one, other states would fall into Satan's hand. 2. Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals. Even if our children is safe, our grandchildren may not. What about our children's grandchildren? 3. Gay activists would target the big churches and request to be married by their pastors. If the church refuse, they would sue the church." (as written);
    8. Tr 553:23-554:14 (Chauncey: Tam's "What If We Lose" letter is consistent in its tone with a much longer [p. 107] history of anti-gay rhetoric. It reproduces many of the major themes of the anti-gay rights campaigns of previous decades and a longer history of anti-gay discrimination.);
    9. PX0116 Video, Massachusetts Parents Oppose Same-Sex Marriage: Robb and Robin Wirthlin, Massachusetts parents, warn that redefining marriage has an impact on every level of society, especially on children, and claim that in Massachusetts homosexuality and gay marriage will soon be taught and promoted in every subject, including math, reading, social studies and spelling;
    10. Tr 530:24-531:11 (Chauncey: The Wirthlins' advertisement implies that the very exposure to the idea of homosexuality threatens children and threatens their sexual identity, as if homosexuality were a choice. In addition, it suggests that the fact that gay people are being asked to be recognized and have their relationships recognized is an imposition on other people, as opposed to an extension of fundamental civil rights to gay and lesbian people.);
    11. PX0391 Ron Prentice Addressing Supporters of Proposition 8, Part II at 1:25-1:40: "It's all about education, and how it will be completely turned over, not just incrementally now, but whole hog to the other side.";
    12. Tr 1579:5-21 (Segura: "[O]ne of the enduring...tropes of anti-gay argumentation has been that gays are a threat to children.... [I]n the Prop 8 campaign [there] was a campaign advertisement saying,...'At school today, I was told that I could marry a princess too.' And the underlying message of that is that...if Prop 8 failed, the public schools are going to turn my daughter into a lesbian.");
    13. PX0015 Video, Finally the Truth; PX0099 Video, It's Already Happened; PX0116 Video, Massachusetts Parents Oppose Same-Sex Marriage; PX0401 Video, Tony Perkins, Miles McPherson and Ron Prentice Asking for Support of Proposition 8: Proposition 8 campaign videos focused on the need to protect children;
    14. PX0079 Asian American Empowerment Council, Asian American Community Newsletter & Voter Guide (Oct/Nov 2008): Children need to be protected from gays and lesbians;
    15. 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."); [p. 108]
    16. Tr 558:16-560:12 (Chauncey: Tam's deposition testimony displays the deep fear about the idea that simple exposure to homosexuality or to marriages of gay and lesbian couples would lead children to become gay. And the issue is not just marriage equality itself —— it is sympathy to homosexuality. They oppose the idea that children could be introduced in school to the idea that there are gay people in the world. It is also consistent with the idea that homosexuality is a choice and there is an association between homosexuality and disease.);
    17. PX0480A Video supporting Proposition 8 at 0:58-1:12: Prentice states that "[i]f traditional marriage goes by the wayside, then in every public school, children will be indoctrinated with a message that is absolutely contrary to the values that their family is attempting to teach them at home."
  24. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.
    1. Tr 429:15-430:8, 431:17-432:11, 436:25-437:15, 438:8-439:6, 529:25-531:11; PX0015 Video, Finally the Truth; PX0016 Video, Have You Thought About It?; PX0029 Video, Whether You Like It Or Not; PX0091 Video, Everything to Do With Schools; PX0099 Video, It's Already Happened; PX1775 Photo leaflet, Protect Marriage (black and white); PX1775A Photo leaflet, Protect Marriage (color); PX1763 Poster with Phone Number, Protect Marriage: (Chauncey: The campaign television and print ads focused on protecting children and the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage. The campaign conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships. The most striking image is of the little girl who comes in to tell her mom that she learned that a princess can marry a princess, which strongly echoes the idea that mere exposure to gay people and their relationships is going to lead a generation of young people to become gay, which voters are to understand as undesirable. The campaign conveyed a message used in earlier campaigns that when gay people seek any recognition this is an imposition on other people rather than simply an extension of civil rights to gay people.);
    2. Compare above with Tr 412:23-413:1, 418:11-419:22, 420:3-20; PX1621 Pamphlet, Save Our Children; PX0864 Dudley Clendinen and Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America at 303 [p. 109] (Touchstone 1999): (Chauncey: One of the earliest anti-gay initiative campaigns used overt messaging of content similar to the Proposition 8 campaign.);
    3. PX0008 Memorandum, Protect Marriage, New YouTube Video Clarifies Yes on 8 Proponents' Concerns: Education and Protection of Children is [sic] at Risk (Oct 31, 2008); PX0025 Leaflet, Protect Marriage, Vote YES on Prop 8 (Barack Obama: "I'm not in favor of gay marriage...."); PX1565 News Release, Protect Marriage, First Graders Taken to San Francisco City Hall for Gay Wedding (Oct 11, 2008): Proposition 8 campaign materials warn that unless Proposition 8 passes, children will be exposed to indoctrination on gay lifestyles. These materials invoke fears about the gay agenda.