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|Prop 8 update: No gay marriage in Calif. until at least Dec.|
|by Lisa Keen|
|August 20, 2010 00:00|
In an historic, potent, and eloquent decision, U.S. District Court Judge Vaughn Walker ruled Aug. 4 that California’s constitutional amendment banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law.
But a three-judge panel of the Ninth Circuit Court of Appeals ruled Aug. 16 that gay marriages cannot resume in California until after the court hears an appeal from the groups who fought to uphold Proposition 8. The appeals court scheduled an expedited hearing on the appeal for the week of Dec. 6, and ordered the sides to address the issue of who has standing to appeal the ballot measure that barred gay couples from marrying in California.
While the delay dashed hopes that same-sex couples would resume marrying in California as early as this month, Walker’s opinion still represents the first major victory for legal challenges against state bans on same-sex marriage in any federal court.
“Race and gender restrictions shaped marriage during eras of race and gender inequality,” wrote Walker in his 136-page opinion, “but such restrictions were never part of the historical core of the institution of marriage.
“Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
“[T]he exclusion [of same-sex couples from marriage] exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” wrote Walker. “That time has passed.”
The decision in Perry v. Schwarzenegger, which has been much anticipated by both sides of the same-sex marriage debate, says supporters of the November 2008 ballot measure failed to establish any rational reason for prohibiting same-sex couples from having marriage licenses.
Judge Walker, an appointee of Republican President George H.W. Bush, said Proposition 8, because it burdens the fundamental right to marry, must pass the most difficult judicial standard, known as strict scrutiny. But he said the law failed to pass even the simplest standard — that of identifying at least one rational reason for treating a group of people differently.
“Even if California had an interest in preferring opposite-sex parents to same-sex parents,” wrote Walker, “…Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.”
‘Grand slam on every count’
Shannon Minter, legal director for the National Center for Lesbian Rights, called the decision “a tour de force—a grand slam on every count.”
This is without a doubt a game-changing ruling,” said Minter. “Today’s decision is the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court.”
Two other lawsuits challenged state bans on same-sex marriage in federal courts but both were dismissed and were not appealed.
Two federal cases challenging part of the federal Defense of Marriage Act won critical district court victories just last month in Boston and both are expected to be appealed to the 1st Circuit U.S. Court of Appeals. Perry and these two cases are expected to eventually reach the U.S. Supreme Court and are on track to arrive at approximately the same time.
There is little doubt that Judge Walker was keenly aware of how important his decision would be, and he seemed to make a concerted effort, during trial, to allow supporters of Proposition 8 to enter evidence to defend the law.
The State of California declined to defend the law, so the group that campaigned for the initiative, Yes on 8, hired a legal team to do so. But that legal team relied primarily on “legal conclusions and cross-examinations of some of plaintiffs’ witnesses,” noted Walker, “eschewing all but a rather limited factual presentation.”
“At trial,” said Walker, Yes on 8 attorneys, led by conservative Charles Cooper, “presented only one witness, David Blankenhorn, to address the government interest in marriage.”
Walker said Blankenhorn’s testimony “provided no credible evidence to support any of the claimed adverse effects” of allowing same-sex couples to obtain marriage licenses.
“Proposition 8 singles out gays and lesbians and legitimates their unequal treatment,” said Walker. It “perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.”
Walker agreed that gays and lesbians have “been the victims of a long history of discrimination” and that “no credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”
Those findings are important to establishing a requirement that Proposition 8 be able to withstand a strict judicial scrutiny.
No ‘rational basis’ to ban gay marriage
Walker ruled that Proposition 8 violates both the due process and equal protection clauses of the U.S. Constitution’s 14th amendment. The 14th amendment states, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within itst jurisdiction the equal protection of the laws.”
When governmental law burdens a fundamental right, such as marriage, said Walker, the law must withstand strict scrutiny. And Proposition 8, he said, could not withstand even the simplest judicial review — rational basis.
“Conjecture, speculation and fears are not enough,” wrote Walker. “Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.” The evidence presented at trial, he said, “demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval.”
The U.S. Supreme Court, in Romer v. Evans, ruled in 1996 that animus against any particular group could not be used to justify a law that disadvantages that group.
The Perry decision comes less than two months after Walker heard closing arguments in the case, but six months after the close of testimony in a three-week-long trial in the U.S. District Court of Northern California in San Francisco.
The legal team challenging Proposition 8 was led by two of the country’s most prominent and respected attorneys — conservative Ted Olson and liberal David Boies. The challenge was organized and funded by the newly formed Americans Foundation for Equal Rights, headed by Democratic activist Chad Griffin.
Griffin organized the challenge shortly after California voters, in November 2008, approved Proposition 8, amending the state constitution to bar recognition of same-sex marriage. The California Supreme Court had ruled, only six months earlier, that the state constitution required same-sex couples be treated the same as heterosexual couples in state marriage licensing.
More than 18,000 same-sex couples obtained marriage licenses before Proposition 8 became law and those marriages are considered valid. Opponents of the new amendment challenged it in state court but the California Supreme Court ruled that the measure was valid. It also ruled that the 18,000 marriage licenses would remain valid.
The case drew widespread national attention, not only because of the high profile legal team and the irony of such a conservative icon as Olson leading the case, but also because national gay legal and political groups were initially hostile to the effort. The groups said they felt a lawsuit taking the issue of same-sex marriage to the U.S. Supreme Court was too risky, given the likelihood the case would reach the high court at a time when the court is considered conservative.
Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, and the ACLU were also denied the right to serve as a party to the case. But the groups did contribute to the litigation, providing advice on expert witnesses that delivered a wealth of ammunition against the ballot measure. All three groups filed briefs in support of the plaintiffs. And all three, of course, applauded Walker’s decision.
James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, called the decision “a huge victory for LGBT people of America.”
“For the first time, a federal court has conducted a trial and found that there is absolutely no reason to deny same-sex couples the fairness and dignity of marriage,” said Esseks in a statement. “At the same time, we know that this is not the end.”
Top photo: Atlantans joined LGBT rights advocates in cities around the country who hosted rallies and celebrations Aug. 4 to mark the federal court ruling overturning Proposition 8. (Photo by Dyana Bagby)
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