Robert Spitzer

In 2001, Robert Spitzer — a prominent psychiatrist who led the charge to declassify homosexuality as a mental condition — released a controversial study showing that some gay people could change their sexual orientations and become straight. Spitzer’s findings bolstered the ex-gay movement and helped advocates find acceptance in the heart of conservative anti-gay politics. But earlier this month, the 80-year-old scientist dealt a devastating blow to his loudest proponents. In an interview with The American Prospect, Spitzer retracted his own ex-gay study, noting that “The findings can be considered evidence for what those who have undergone ex-gay therapy say about it, but nothing more.”

Last night, Rachel Maddow examined the consequences of Spitzer’s denunciation of his own reparative therapy study on the Proposition 8 case, which relied on its conclusions to argue that gay people are not entitled to marry someone of the same gender because sexual orientation is a mutable characteristic. NYU constitutional professor Kenji Yoshino explained the significance:

YOSHINO: I think it`s a big deal. So, first of all, the reason immutability is important is because under the Equal Protection Clause of the 14th Amendment, there’s a standard called heightened scrutiny. And there are certain classifications like race, national origin, sex, nonmarital parentage, lineage (ph) that get that scrutiny. The $64,000 question of this case is whether or not sexual orientation is going to be added to that list. And one of the criteria that`s been looked at to determine whether or not a group gets heightened scrutiny is immutability, as you mentioned. So, the fact that Spitzer retracting this and the fact that the testimony in the Prop 8 trial was overwhelming for the fact that sexual orientation is very hard to change could figure into that analysis.

Watch it:

Yoshino also suggested that Spitzer’s apology could impact Defense of Marriage (DOMA) litigation, which relies on a similar gays-can-change claim.

A 25-point gap now separates supporters and opponents of marriage equality in California, with 59 percent of residents backing same-sex marriage and just 34 percent opposing it, a new Field survey finds. This represents “the largest margin of support for the issue in the three-plus decades the Field Poll has been asking the question” and shows a big increase for marriage since voters approved Proposition 8 in 2008. Significantly, support increased among all groups, including Protestants, Catholics, African Americans, Latinos and older Americans and pollsters say that opponents of marriage would have a difficult time overcoming the trend should the measure go back to the ballot:

Poll Director Mark DiCamillo said the move to a 25-point gap goes beyond the gradual increase in support that has been expected as young voters age and “replace” older voters in the electorate. “This is now showing that opinions are changing irrespective of generational replacement,” DiCamillo said. “This is real change.” [...]

DiCamillo said voters still hold the judiciary in relatively high regard, and years of gay marriage court battles in California are likely contributing to the opinion shift. “The winds of change are blowing in other states (and) when judges start ruling the same way, I believe that has an influence,” he said.

Proposition 8 was found unconstitutional by a federal judge in San Francisco, “and his ruling was upheld by a panel of the 9th U.S. Circuit Court of Appeals earlier this month. But the appeals court is weighing a request from gay marriage opponents for a larger panel of judges to review the decision, and ultimately, the matter could be headed for the U.S. Supreme Court, with a decision years away.”

Political scientists have suggested that conservative efforts to outlaw marriage equality may have actually contributed to its growing popularity by increasing the visibility of LGBT issues and making “a topic that seemed taboo a little bit less taboo.” “One of the fascinating things is that with all this discussion out there whether positive or negative, being able to say the words, just made people more comfortable,” Professor Brian Powell of Indiana University told ThinkProgress in 2010.

Even though this week’s Proposition 8 ruling by the Ninth Circuit focuses on the unconstitutionality of taking away the right of same-sex couples to marry as opposed to addressing whether they should have such a right to begin with, the decision does take time to dissect five key arguments used by opponents of marriage equality. Here is a rundown of the anti-gay arguments brought forth in the case and how the Court rebuffed them:

1. CHILDREN DESERVE TWO BIOLOGICAL PARENTS: Proponents of Prop 8 argued that “children are better off when raised by two biological parents” and so only potential biological parents should be allowed to marry. The Court ruled this argument irrelevant, because “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California.” In addition to the fact that California law recognizes that same-sex couples are “fully capable of… responsibly caring for and raising children,” it also favors parental social relationships over biological relationships as it is. So, besides the fact that the argument simply isn’t true, it has nothing to do with the impact of Prop 8 and is entirely inconsistent with California law.

2. MARRIAGE PROMOTES “RESPONSIBLE PROCREATION”: Proponents also argued that marriage has the specific purpose of encouraging “responsible procreation” that needs only be offered to opposite-sex couples — in essence, that because same-sex couples cannot accidentally have children, they do not need (read: deserve) the privilege of marriage. Like the first, this claim is completely irrelevant, because Proposition 8 was a question of rescinding a right, not extending one. For this argument to carry any weight, proponents would have had to prove that same-sex marriage would make opposite-sex couples “more likely to procreate accidentally or irresponsibly.” Given the absurdity of the notion, the Court found that this argument, “to put it mildly, does not help Proponents’ cause.” In addition, “it is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.”

3. CALIFORNIA SHOULD “PROCEED WITH CAUTION” WHEN REDEFINING MARRIAGE: Opponents of equality regularly argue that the “consequences” of same-sex marriage have not yet been realized, but Prop 8 had little to do with “caution.” As the Court points out, “the purpose and effect of Proposition 8 was ‘to eliminate the right of same-sex couples to marry in California’ — not to ‘suspend’ or ‘study’ that right.” Proposition 8 was an unabashed permanent ban on same-sex marriages and cannot be construed as anything less.

4. PROPOSITION 8 HELPED PROTECT “RELIGIOUS LIBERTY”: The Court quickly dismisses the claim that banning same-sex marriage has anything to do with preserving so-called “religious liberty,” given Prop 8 did not change any of California’s antidiscrimination laws that protect sexual orientation. Any equality opponent wishing to use religion as a means to refuse services to same-sex couples gains nothing from Prop 8.

5. CHILDREN WOULD BE TAUGHT THAT SAME-SEX MARRIAGE AND TRADITIONAL MARRIAGE ARE THE SAME: Conservatives have stoked fears that LGBT equality threatens children for decades, and did not hesitate to do the same regarding Prop 8. The Court found little weight in this argument, pointing out that California law empowers schools with control over the content of their sexual health education curricula. Similarly, schools are prohibited from discriminating on the basis of sexual orientation — Prop 8 or no Prop 8. Perhaps most poignantly, the Court pointed out that schools are supposed to teach reality:

Schools teach about the world as it is; when the world changes, lessons change. A shift in the State’s marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discover of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors. The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy.

More than anything, this decision demonstrates that most of the arguments against same-sex marriage have little to do with the institution of marriage itself. Just as Judge Vaughn Walker found in his original opinion, the only compelling explanation for banning same-sex marriage is animus against the gay community.

Rep. Louie Gohmert (R-TX) used a House floor speech to offer a particularly disturbing reaction to yesterday’s ruling by the Ninth Circuit Court of Appeals that Proposition 8 is unconstitutional. In it, he suggested that marriage is about “the idea of an egg and a sperm coming together” and called the judges “not smart enough to figure out actual plumbing”:

GOHMERT: Nature seemed to like the idea of an egg and a sperm coming together because of pro-creation. Apparently [the judges] thought the sperm had far better use some other way biologically, combining it with something else. But the voters of Iowa came back and said you know what, if you’re not smart enough to figure out actual plumbing…then perhaps we need new judges, and that’s what they did.

Watch a clip:

What the judges actually found was that Proposition 8 had nothing to do with procreation, because it didn’t impact whether same-sex couples in California could raise children.