defending marriage

UNCONSTITUTIONAL: Prop 8 Overturned In Landmark Federal Ruling

In the long-awaited ruling Perry v. Schwarzenegger, 9th Circuit District Court Judge Vaughn Walker handed down a doozy of a ruling: The voter-approved law known as Prop 8, which stripped California’s same-sex couples of the right to marry, is unconstitutional, violating both due process and equal protection clauses. And how is your day going?

TAKEAWAY: Walker’s ruling is, plainly, a vicious assault on the very premise that marriage discrimination is legal, and that voters can decide such a matter. He does not hold back on painting, in very clear language, how each of the defendant’s arguments about why Prop 8 should stand are a farce. This is a bold, unequivocal win. It’s also crucial to note how many aspects of banning same-sex marriage Walker addressed, which will help the case as it’s appealed; moving forward judges must look at Walker’s ruling as a basis for their own judgments.

CAN CALIFORNIA GAYS MARRY … STARTING RIGHT NOW? No. According to the ruling Prop 8 is dead immediately. As if it didn’t exist. As in: No government office or county clerk can withhold marriage licenses from same-sex couples, because the language “only marriage between a man and a woman is valid or recognized in California” is erased. Walker’s ruling means the California State Supreme Court’s 2008 decision legalizing same-sex marriage stands. However: It’s unclear whether Walker is granting or denying the defense’s request to stay the decision until appeals are exhausted, and there will be no action until Walker makes a decision on the motion.

CAN ALL GAYS GET MARRIED? Haha, no. This thing is headed to the Ninth Circuit Court of Appeals, and from there the Supreme Court. Only a ruling there could knock down every state law and constitutional amendment banning same-sex marriage.

ANY WORD FROM THE WHITE HOUSE? Barack Obama is celebrating his 49th birthday today, in case you thought he was too busy for you beforehand. But the White House did issue this statement: “The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”

Some main points from the ruling:

• “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

• “Domestic partnerships do not satisfy California’s obligation to allow plaintiffs to marry.”

• “The evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality, FF
69-73, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”

• “PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING) REASON. Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'”

• “Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.”

• “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

• “PROPOSITION 8 DOES NOT SURVIVE RATIONAL BASIS. Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed. See Background to Proposition 8 above.”

And my personal favorite part of the ruling (which I’ve had five seconds to skim):

• “A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION. In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.
FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better
than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433
(1984) (‘[T]he Constitution cannot control [private biases] but neither can it tolerate them.’).”

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians.


Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.


And if you even care, here’s the National Organization for Marriage’s Brian Brown: “Big surprise! We expected nothing different from Judge Vaughn Walker, after the biased way he conducted this trial. With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman. This ruling, if allowed to stand, threatens not only Prop 8 in California but the laws in 45 other states that define marriage as one man and one woman.”

Full ruling:

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