News

Judge strikes down Prop. 8 same-sex marriage ban

But immediately issues a stay of his order as proponents plan appeal

A federal judge in San Francisco today struck down Proposition 8, California's ban on same-sex marriage, saying that it violated the U.S. Constitution's guarantees of due process and equal treatment.

U.S. District Judge Vaughn Walker wrote, "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

But gay and lesbian marriages will not resume in California immediately.

Walker issued a temporary stay suspending his ruling at least until Friday while he considers a request by Proposition 8 supporters for a longer-term stay while they appeal.

If Walker declines to extend the stay, Proposition 8 sponsors could ask the 9th U.S. Circuit Court of Appeals in San Francisco for a suspension during their appeal. The appeal could take months.

Walker issued his 136-page ruling after holding a 13-day nonjury trial in January on a lawsuit filed last year by two same-sex couples.

The proceeding was the nation's first federal trial on a state ban on same-sex marriage. The case could eventually go to the U.S. Supreme Court.

Proposition 8 was enacted by a majority of 52 percent of state voters in November 2008 and provided that "only marriage between a man and a woman is valid or recognized in California."

The initiative was defended at the trial by its sponsors and their campaign committee, ProtectMarriage.com.

The two couples' lead attorneys, Theodore Olson and David Boies, said the ruling affirmed a fundamental right to marriage found by the U.S. Supreme Court in other types of cases.

Olson, a former U.S. solicitor general, said, "This decision recognizes that Proposition 8 denied the plaintiffs, and tens of thousands of other Californians, that fundamental constitutional right and treated them unequally."

But Andrew Pugno, a lawyer for the Proposition 8 sponsors, said they expect to win on appeal.

"Today's ruling is clearly a disappointment," Pugno said. "But this is not the end of our fight to uphold the will of the people for traditional marriage. We are confident that the trial court record we built will help us ultimately prevail on appeal and reverse today's ruling."

Margaret Russell, a constitutional law professor at Santa Clara University, called the ruling "a landmark decision in terms of constitutional law," but said that if the U.S. Supreme Court takes up the case, "I could see it going either way."

Walker agreed with the plaintiffs on two different constitutional arguments. The first was that the measure violated a fundamental right to marry found in the due process clause of the Constitution's 14th Amendment.

While the Constitution doesn't explicitly provide a right to marry, the U.S. Supreme Court has found in cases concerning interracial couples and prisoners that the freedom to marry is part of the basic liberty right contained in the due process guarantee.

Walker rejected the Proposition 8 sponsors' argument that the right to marry didn't extend to same-sex couples because they don't fit the male-female definition of marriage.

He said marriage in U.S. society is no longer based on gender roles and is now, under law, a "union of equals."

Same-sex marriage is thus not a separate right but part of the fundamental right to marry, Walker said.

"The right to marry has been historically and remains the right to choose a spouse, and, with mutual consent, join together and form a household," Walker wrote.

The judge also agreed with the plaintiffs' second argument that the initiative violated the 14th Amendment guarantee of equal protection under the law.

Proposition 8's sponsors presented only two witnesses at the trial while the plaintiffs called nine experts and eight other witnesses to the stand.

The sponsors contended they needed to prove only that voters had a rational basis for enacting the initiative. They said that basis was preserving the traditional definition of marriage and encouraging responsible child-rearing.

But Walker wrote that the trial showed there was no proof that same-sex marriage would hurt heterosexual marriage or that heterosexual parents are better for children than gay and lesbian parents.

"The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal," Walker wrote.

Walker said the only remaining justification for Proposition 8 would be moral disapproval of homosexuality, which the U.S. Supreme Court has said is not an allowable reason for a law.

He wrote, "Moral disapproval alone is an improper basis on which to deny rights to gays and lesbians.

"The evidence shows conclusively that Proposition 8 enacts, without a reason, a private moral view that same-sex couples are inferior to opposite-sex couples," Walker said.

The judge issued a permanent injunction prohibiting enforcement of Proposition 8, but the injunction will go into effect only if and when the stay is lifted.

The May 2009 lawsuit named Gov. Arnold Schwarzenegger, Attorney General Jerry Brown and other state and local officials as defendants. When they declined to defend the measure, the Proposition 8 sponsors stepped in to do so.

Schwarzenegger said today, "For the hundreds of thousands of

Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves."

Brown, who ended up filing briefs agreeing with the plaintiffs, said, "Proposition 8 violates the equal protection guarantee of the 14th Amendment by taking away the right of same-sex couples to marry, without a sufficient governmental interest."

A previous five-year battle over same-sex marriage in California centered on state rather than federal constitutional claims.

In May 2008, the California Supreme Court said the state Constitution provided a right to same-sex marriage. The following November, Proposition 8, enacted as a state constitutional amendment, overturned that decision.

In another ruling in May 2009, the state high court upheld Proposition 8. But it left in place the 18,000 gay and lesbian marriages performed in California between June and November 2008.

If Walker's ruling is upheld, it would reinstate the state constitutional right to same-sex marriage.

Julia Cheever, Bay City News

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