Why is Hollingworth v. Perry 'narrow?'

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Is Hollingworth v. Perry as narrow a decision as the pundit class is saying?

In reviewing the decision, I see what I see whenever I read anything written by a judge: case histories. In re Coordination Proceeding, In re Marriage cases, Lawrence v. Texas, Everson v Board of Education of Ewing Township, Pace v Alabama, Perez v Sharp, Follansbee v. Benzenberg, Elisa B v. Superior Court, Turner v. Safely, Cleveland Board of Education v. LaFleur, Griswold v. Connecticut, Bowers v. Hardwick, West Virginia State Board of Education v Barnette, Yick Wo vs Hopkins, Romer v. Evans, Heller v. Doe, Minnesota v. Clover Leaf Creamery Co, Plyler v. Doe, US Dept. of Agriculture v. Moreno, Christian Legal Society v. Martinez, Massachusetts Board of Retirement v. Murgia, San Antonio School District v. Rodriguez, City of Cleburne v Cleburne Living Center, Williams v. Illinois, Cooper v. Aaron, Palmore v Sidoti, Planned Parenthood of Southeastern Pa v Casey, and more.

The decision also outlines what happened at trial -- the bigotry and paranoia of the campaign literature that went out before the passage of Prop 8 (“TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage,”) that -- when the Judge questioned the lawyers advocating for Proposition 8 whether or not ‘the state’s interest in marriage is procreative’ and inquired how permitting same-sex marriage impairs or adversely affects that interest,” the lawyers in question replied that they did not know, even though they returned to this in the closing arguments, claiming that -- in a trial of fact -- that they did not need any evidence to say that the state had an interest in responsible procreation.

The decision then turns towards expert witnesses, some of which I tangentially touched on the other day, i.e., psychologist Letitia Anne Peplau arguing that “the desire of same-sex couples to marry illustrates the health of the institution of marriage,” that -- as Edmund Egan testified -- “states receive greater economic benefits from marriage than from domestic partnerships,” and so on.

I also think it’s worth noting that a portion of the trial in question explored “whether the evidence shows Proposition 8 enacted a private moral view without advancing a legitimate government interest,” which seems to be exactly what happened to Justice Scalia at Princeton. (Though I doubt we’ll find Scalia talking about -- as internet campaigners do in this section -- states falling into ‘the devil’s hands.’) (And is it any wonder that the phrase ‘gay pride’ justifiably exists when confronted with rhetorical nonsense like that? (cc: Ted Cruz.))

The decision goes on to note that proponents of Proposition 8 “elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters  and the arguments presented in court.” One of the experts the proponents do call leads to exchanges like this --

Q: Is it your view that the man who has married one wife, and then another wife, and then another wife, and then another wife, and then another wife, and now has five wives, and they are all his wives at the same time, that that marriage is consistent with your rule of two?

A: I concur with Bronislaw Malinowski, and others, who say that that is consistent with the two rule of marriage.

-- and who goes on to cite books, saying that they support his theory that same-sex marriage will lead to an increase of the deinstitutionalization of marriage when the books he cites don’t advance that theory. He also apparently arrived at some other ideas of his through -- and I kid you not -- free-association. (Look at the bottom of page 48.)

The California Family Code does not require a married couple to procreate. Follansbee v. Benzenberg noted in 1954 that “the legal status of a wife has changed. Her legal personality is no longer merged in that of her husband.” The decision remarks on the development of no-fault divorce laws, i.e., “the move to no-fault divorce underlines the fact that marriage no longer requires specific performance of one marital role or another based on gender.”

The decision goes on --

“States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.”

What on earth is narrow about that? Or this?

“Civil law, not religious custom, is supreme in defining and regulating marriage in the United States.”

Even as a conclusion of law -- if we’re to look at Turner v. Safely (“The decision to marry is a fundamental right”) or Cleveland v. LaFleur (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment”) -- why are we calling that ‘narrow?’ Are we looking for Earl Warren or John Jay to crawl out of the grave and lay upon us rhetoric as wide as the Mississippi or the Thames?

If anything, the decision doesn’t seem to be a winnowing, but a ramping up, and it’s no wonder it’s before the Supreme Court.

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