Summary of 80 Findings of Fact in Judge Walker's decision on Proposition 8 (Perry V. Schwarzenegger)

Court strikes down Prop 8 Federal Court Judge Walker's soon-to-be famous "80 findings of fact" were hard to scan in their original format, so I removed all those annoying (though, no doubt, necessary) citations and have created a friendlier list.

Walker overturned Proposition 8 because its proponents "fail[ed] to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

I could offer my thoughts, but I mostly want to hear yours. What did YOU find interesting about these facts?


1-18. The Parties


  • Primarily information about the plantiffs and defendants.The only interesting points to note in this section are:
    • the stories/situations of the plantiffs seeking to overturn Proposition 8 and
    • the details of the political maneuvering of the defendants regarding Proposition 8.

19-41. Whether any evidence supports California's refusal to recognize marriage between two people because of their sex


  1. Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.
  2. A person may not marry unless he or she has the legal capacity to consent to marriage.
  3. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.
  4. When California became a state in 1850, marriage was understood to require a husband and a wife.
  5. The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained.
  6. Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other.
  7. Racial restrictions on an individual’s choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967. An individual’s exercise of his or her right to marry no longer depends on his or her race nor on the race of his or her chosen partner.
  8. Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain.
  9. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.
  10. The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage.
  11. In 1971, California amended Cal Civ Code § 4101, which had previously set the age of consent to marriage at twenty-one years for males and eighteen years for females, to read “[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage.”
  12. In the 1970s, several same-sex couples sought marriage
    licenses in California, relying on the amended language in Cal Civ Code § 4101. In response, the legislature in 1977 amended the marriage statute to read “[m] arriage is a personal relation arising out of a civil contract between a man and a woman * * *.” The legislative history of the enactment supports a conclusion that unique roles of a man and a woman in marriage motivated legislators to enact the amendment.
  13. In 2008, the California Supreme Court held that certain provisions of the Family Code violated the California Constitution to the extent the statutes reserve the designation of marriage to opposite-sex couples. The language “between a man and a woman” was stricken from section 300, and section 308.5 (Proposition 22) was stricken in its entirety.
  14. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.
  15. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
  16. Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.
  17. The state has many purposes in licensing and fostering marriage. Some of the state’s purposes benefit the persons married while some benefit the state:
    • Facilitating governance and public order by organizing individuals into cohesive family units.
    • Developing a realm of liberty, intimacy and free decision-making by spouses.
    • Creating stable households.
    • Legitimating children.
    • Assigning individuals to care for one another and thus limiting the public’s liability to care for the vulnerable.
    • Facilitating property ownership.
  18. 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.
  19. Marriage creates economic support obligations between consenting adults and for their dependents.
  20. Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals.
  21. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well- being for married spouses.
  22. The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity.
  23. The tangible and intangible benefits of marriage flow to a married couple’s children.

42-56. Whether any evidence shows California has an interest in differentiating between same-sex and opposite-sex unions


  1. Same-sex love and intimacy are well- documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.
  2. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.
  3. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.
  4. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.
  5. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.
  6. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.
  7. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.
  8. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.
  9. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.
  10. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.
  11. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
  12. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.
  13. 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.
  14. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
  15. The children of same-sex couples benefit when their parents can marry.

57-80.  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.
  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.
  3. Proposition 8 requires California to treat same-sex couples differently from opposite-sex couples.
  4. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples.
  5. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.
  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.
  7. Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution.
  8. Proposition 8 has had a negative fiscal impact on California and local governments.
  9. CCSF would benefit economically if Proposition 8 were not in effect.
  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.
  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.
  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.
  13. The factors that affect whether a child is well-adjusted are:
    • the quality of a child’s relationship with his or her parents;
    • the quality of the relationship between a child’s parents or significant adults in the child’s life; and
    • the availability of economic and social resources.
  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.
  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.
  16. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes.
  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.
  18. Gays and lesbians have been victims of a long history of discrimination.
  19. Public and private discrimination against gays and lesbians occurs in California and in the United States.
  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.
  21. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
  22. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians.
  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.
  24. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.

Bibliographic Citations


Reverend Boony

The whole kit and kaboodle...

I personally found the whole of this article to be interesting and informative and therefore was unable to pick and choose any particular statement.

In regards to # 44 however, I would like to say that while I agree with it wholeheartedly, I think it could have been said better to the effect that sexual orientation is an innate trait similar to hair color and/or eye color.

Still, I wouldn't be expecting lawyers and/or judges to be willing to give up their long winded legalese language anytime soon.

Adelle Frank

Some other Facts that I found FASCINATING

  • Marriage is a civil, not religious, matter. (#19)
  • How the State defines civil marriage (#34)
  • The benefits of civil marriage (to the State and the individuals). (#35-41)
  • The State has no interest in asking gays and lesbians to change their orientation, or in reducing the number of gays and lesbians in California. (#47)
  • The costs and harms (to the State and to lesbians and gays) resulting from denial of marriage to same-sex couples (#64-68, 77-78)



I found #44 most interesting, because it prompted in me a question about language and the law. It seems to me that words/concepts like 'sexual orientation' and 'identity' work very well -have some sort of meaning- when we use them in everyday ways. But they don't always hold water when they're scrutinized in certain philosophical or psychological settings. Often times, legal writing demands a similar kind of scrutiny -- you have to know - as exactly as possible - what the terms in a law refer to, and what they don't. But here it seems like the colloquial (here a non-technical, psychological) definition counts as a definition... and one that presumably can be used in legal writings. --- So I'm curious to think about cases where it's necessary, cases where it's beneficial, cases where it's detrimental, and cases where it's impractical to permit or encourage judges to use language as the ruled people use it, or to use language that meets different standards of precision.

Adelle Frank

Relationship to #43?

In #43, a very interesting definition was given of "sexual orientation". Does this at all modify your thoughts on language and the law ... or does this just make it more complicated?