CA's same-sex marriage ban struck down by federal judge...
By Brad Friedman on 8/4/2010, 1:57pm PT  

Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law!

A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA's Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state's majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today's finding.

As New York Magazine was first to report...

This afternoon U.S District Judge Vaugh[n] Walker ruled in the case brought before him by lawyers Ted Olson and David Boies, which argued that the Proposition 8 ballot initiative denying marriage rights to same sex couples in California was unconstitutional. In a decision just handed down to lawyers for both sides, Walker ruled in that Proposition 8 is "unconstitutional under both the due process and equal protection clauses." The court, therefore, "orders entry of judgment permanently enjoining its enforcement." We're staying tuned for more updates and details on the 136-page decision, but these two sentences from the conclusion are critical:

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.

That's what history sounds like. Of course, before the ruling was released, lawyers for the opposing side filed a motion to stay his ruling pending an appeal to the 9th Circuit Court of Appeals.

TPMMuckraker's Rachel Slajda reports that "Supporters of Prop 8 (that is, opponents of gay marriage) have already promised to file an appeal," and she now offers more quotes from Judge Vaughn Walker's landmark decision.

And just a reminder to those of you foes of equality and the Constitution: Remember, where same-sex marriage is found to be legal and Constitutional, it will still be voluntary. You will not be forced to marry someone of the same sex. Just in case that's been unclear up until now.

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UPDATE: CNN reports that, in a separate ruling [PDF], Walker grants a stay to his finding, pending appeal by the opponents of equality. If appealed, as is almost certain, the case will go to the 9th Circuit Court of Appeals and then likely to the U.S. Supreme Court.

Marcy Wheeler of emptywheel tweets a very interesting point, worth remembering, in relation to the likely inevitable hearing before the U.S. Supremes...


Walker focuses on [Prop 8 proponent's "expert witness" David] Blankenhorn's admission that adoptive parents can be BETTER than genetic ones: Remember: John Roberts is adoptive parent.

...and then:

There's a very big argument in evidentiary record that to vote against marriage equality, John Roberts will have to vote against own family.

Could get interesting.

It's also worth remembering that the proponents of equality (those fighting to strike down Prop 8) were represented in this case by George W. Bush's Solicitor General Ted Olson who, in his presser following the finding, called the ruling "A victory for the American people. A victory for our justice system."

We concur.

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FURTHER UPDATE: Adam Sewer at The American Prospect speed-reads the decision and offers a smart summary:

I suggested earlier today that Judge Vaughn Walker would take the easy road and choose a relatively noncontroversial justification for striking down Prop. 8. Instead, he invalidated it on the broadest grounds possible. He found that 1) gays qualify as a protected minority; 2) there is no legitimate state interest in restricting marriage to heterosexual couples; and 3) marriage is a fundamental right. Given these determinations, the judge ruled that Prop. 8 violated the Equal Protection and Due Process clauses of the U.S. Constitution:
But more important than the fate of same-sex marriage are the findings of fact that the judge based his ruling on. Walker intended to establish an extensive factual record from the start, and as Pema and I have noted, it's important because higher courts can overrule a lower court on matters of law, but generally cannot challenge the trial courts' findings of fact. Over fifty pages in the order are dedicated these "findings of fact." The following are some of the court's noteworthy findings:

  • Sexual orientation, the judge, found, is a stable characteristic – one gays and lesbians do not choose and cannot change through therapy – and defines them as a discrete group. This is important because Prop. 8's supporters argued that sexual orientation could be changed and because one's sexuality was hard to pin down, gays could not possibly qualify as a protected minority.
  • Civil 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." What's crucial here is that the judge left out procreation or the intent to procreate. This is something that Prop. 8 defenders argued throughout the trial.
  • There is no credible evidence that same-sex marriage harms society or the institution of marriage in any tangible way. Harm to society was supposedly one of the reasons the state had an interest in restricting marriage to heterosexual couples.
  • Proposition 8 singles out gays and lesbians and "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." This point speaks to the fact that the Prop. 8 campaign was motivated by anti-gay animus and religious disapproval, which are insufficient reasons for upholding the constitutionality of a law.
  • Chlidren raised by gay or lesbian couples are as likely as the children of heterosexual couples to be "healthy, successful, and well-adjusted." Concern for children was one of the stated reasons for restricting marriage to heterosexual couples.

What's most striking about the ruling is this: Whether or not the judge's legal arguments hold up, the 136-page document lays bare the irrational prejudice behind Prop. 8. It is telling that the judge did not agree with a single legal or factual point made by same-sex-marriage opponents. Prop. 8 defenders might say this is because Walker was biased --- even though he was a conservative nominee opposed by Democrats --- or say the defense did a shoddy job. But in reality, the emotional appeals of Prop. 8 supporters did not withstand legal scrutiny: Piece by piece, Walker deconstructs the arguments against same-sex marriage and shows that they are, at root, motivated either by fear or a desire to stigmatize gays and lesbians.

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