Federal Judge Strikes Down California’s Prop 8 Marriage Ban

U.S. District Judge Vaughn Walker

California’s voter-approved ban on same-sex marriage was overturned today by Chief U.S. District Judge Vaughn Walker in the Perry v. Schwarzenegger case. Walker wrote that the ban is unconstitutional because it violates both the Due Process and the Equal Protection Clauses of the 14th Amendment.  

The ruling concludes:  

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.  

Under the “Remedies” section, Judge Walker writes,  

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… Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining [forbidding] its enforcement.   

What might have been obvious to anyone following events in California was (thankfully!) obvious to Judge Walker—that 18,000 same-sex marriages performed in the state before the passage of Proposition 8 had not demonstrably harmed the state and that the state therefore has no compelling interest in discriminating. With any luck, this will put forever to rest the tired old canard that same-sex marriage undermines heterosexual marriage.  

The lawsuit was brought by two same-sex couples and the city of San Francisco. Though Governor Schwarzenegger and Attorney General Jerry Brown have refused to support the marriage ban, the defendant was officially the state, represented by attorneys from the Alliance Defense Fund, who now say they will appeal Walker’s decision. The ruling on Proposition 8 follows close on the heels of last month’s ruling, by a federal judge in Massachusetts, that the 1996 Defense of Marriage Act (DOMA) is unconstitutional. DOMA bars the federal government from recognizing gay marriages, thus depriving married gay couples of federal benefits accorded to their heterosexual counterparts. Same-sex marriage is now legal in six states–California, Connecticut, Iowa, Massachusetts, New Hampshire, Virginia–and in Washington D.C.  

Reacting to news of the ruling, Maggie Gallagher, Chairman of the Board of the National Organization for Marriage (NOM), wrote,  

The ‘trial’ in San Francisco in the Perry v. Schwarzenegger case is a unique, and disturbing, episode in American jurisprudence. Here we have an openly gay (according to the San Francisco Chronicle) federal judge substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution.  We call on the Supreme Court and Congress to protect the people’s right to vote for marriage.  

Notice Gallagher’s reference to Judge Walker’s own sexual orientation, as if it should have been cause for him to recuse himself. Presumably, no recusal would have been necessary if he were heterosexual? Or perhaps, in her view, only a bisexual judge should preside over a case involving disputes of this nature?

Gallagher packs a lot into her short paragraph, promising us that “our Founding Fathers would have been shocked…,” shocked! Indeed they probably would have been. However, many of them owned slaves and would also have been shocked by virtually all of the civil rights landmark cases of the past century.

Having listened to Maggie Gallagher debating Andrew Sullivan on this issue, I can attest that she is a highly intelligent and well-educated woman who could not conceivably be ignorant of the fact that we live in a constitutional democracy where simple majorities may not vote to deprive people of constitutionally-guaranteed rights. Thus her talk of Walker’s “substituting his views for those of the American people” is disingenuous nonsense. But it is the major thrust of most arguments we’re hearing against the ruling. Here, for example, is Newt Gingrich

[The ruling shows] outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife. 

Proposition 8 passed by a narrow margin, and Religious groups–especially the Mormons–who poured tens of millions of dollars into the Proposition 8 campaign, may now think long and hard before funding any more such measures. Andrew Sullivan, as usual, is right on top of this story and finds strong reasons to expect that the Supreme Court will uphold the lower court’s decision.  

I am increasingly confident that when this case eventually gets to the Supreme Court, the logic of equality will win. Once you have conceded that gay people are a class, and that their sexual orientation is integral to their lives and immutable, and that they are not defined by sex acts that can be performed by gays and straights alike, then the ban on marriage equality is left without anything but an amorphous claim to heterosexual supremacy—or a judicially irrelevant appeal to simple custom (already invalid in five states and many countries)—to support it.  

Read Andrew’s piece in the Daily Dish here. Candace Chellew-Hodge also has an interesting piece in Religion Dispatches about today’s ruling. 

Not to miss: Rachel Maddow on the Prop 8 ruling.


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