Wednesday, August 4, 2010
Prop 8 Found Unconstitutional
Ruling against Prop. 8 could lead to federal precedent on gay marriage
Judge says the same-sex marriage ban was rooted in 'moral disapproval' and violates constitutional rights to equal protection and due process. Opponents vow to appeal all the way to the Supreme Court.
August 4, 20106:38 p.m.
Reporting from San Francisco and Los Angeles — A federal judge declared California's ban on same-sex marriage unconstitutional Wednesday, saying that no legitimate state interest justified treating gay and lesbian couples differently from others and that "moral disapproval" was not enough to save the voter-passed Proposition 8.
California "has no interest in differentiating between same-sex and opposite-sex unions," U.S. District Chief Judge Vaughn R. Walker said in his 136-page ruling.
The ruling was the first in the country to strike down a marriage ban on federal constitutional grounds. Previous cases have cited state constitutions.
Lawyers on both sides expect the ruling to be appealed and ultimately reach the U.S. Supreme Court during the next few years.
It is unclear whether California will conduct any same-sex weddings during that time. Walker stayed his ruling at least until Friday, when he will hold another hearing.
In striking down Proposition 8, Walker said the ban violated the federal constitutional guarantees of equal protection and of due process.
Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.
The jurist, a Republican appointee who is gay, cited extensive evidence from the trial to support his finding that there was not a rational basis for excluding gays and lesbians from marriage. In particular, he rejected the argument advanced by supporters of Proposition 8 that children of opposite-sex couples fare better than children of same-sex couples, saying that expert testimony in the trial provided no support for that argument.
"The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples," Walker wrote.
Andy Pugno, a lawyer for the backers of the ballot measure, said he believed Walker would be overturned on appeal.
Walker's "invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process," Pugno said.
He called it "disturbing that the trial court, in order to strike down Prop. 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop. 8."
At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges' rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.
John Eastman, a conservative scholar who supported Proposition 8, said Walker's analysis and detailed references to trial evidence were likely to persuade U.S. Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.
"I think Justice Kennedy is going to side with Judge Walker," said the former dean of Chapman University law school.
Barry McDonald, a constitutional law professor at Pepperdine University, said Walker's findings that homosexuality is a biological status instead of a voluntary choice, that children don't suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality "are going to make it more difficult for appellate courts to overturn this court's ruling."
Edward E. (Ned) Dolejsi, executive director of the California Catholic Conference, said he believed the judge's ruling was both legally and morally wrong.
"All public law and public policy is developed from some moral perspective, the morality that society judges is important," he said. To say that society shouldn't base its laws on moral views is "hard to even comprehend," he said.
In his decision, Walker said the evidence showed that "domestic partnerships exist solely to differentiate same-sex unions from marriage" and that marriage is "culturally superior."
He called the exclusion of same-couples from marriage "an artifact of a time when the genders were seen as having distinct roles in society and marriage."
"That time has passed," he wrote.
Although sexual orientation deserves the constitutional protection given to race and gender, Proposition 8 would be unconstitutional even if gays and lesbians were afforded a lesser status, Walker said. His ruling stressed that there was no rational justification for banning gays from marriage.
To win a permanent stay pending appeal, Proposition 8 proponents must show that they are likely to prevail in the long run and that there would be irreparable harm if the ban is not enforced.
Lawyers for the two couples who challenged Proposition 8 said they were confident that higher courts would uphold Walker's ruling.
"We will fight hard so that the constitutional rights vindicated by the 138-page, very careful, thoughtful, analytical opinion by this judge will be brought into fruition as soon as possible," pledged Ted Olson, one of the lawyers in the case.
Other gay rights lawyers predicted that the ruling would change the tenor of the legal debate in the courts.
"This is a tour de force — a grand slam on every count," said Shannon Price Minter, legal director for the National Center for Lesbian Rights. "This is without a doubt a game-changing ruling."
Wednesday's ruling stemmed from a lawsuit filed last year by two homosexual couples who argued that the marriage ban violates their federal constitutional rights to equal protection and due process.
The suit was the brainchild of a gay political strategist in Los Angeles who formed a nonprofit to finance the litigation.
The group hired two legal luminaries from opposite sides of the political spectrum to try to overturn the ballot measure. Former U.S. Solicitor General Theodore B. Olson, a conservative icon, signed on with litigator David Boies, a liberal who squared off against Olson in Bush vs. Gore, the U.S. Supreme Court ruling that gave George W. Bush the presidency in 2000.
Gay-rights groups had opposed the lawsuit, fearful that the U.S. Supreme Court might rule against marriage rights and create a precedent that could take decades to overturn.
But after the suit was filed, gay rights lawyers flocked to support it, filing friend-of-court arguments on why Proposition 8 should be overturned.
Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown refused to defend the marriage ban, leaving the sponsors of the initiative to fill the vacuum. They hired a team of lawyers experienced in U.S. Supreme Court litigation.
Proposition 8 passed with a 52.3% vote six months after the California Supreme Court ruled that same-sex marriage was permitted under the state Constitution.
At trial, the opponents of Prop. 8 presented witnesses who cited studies that showed children reared from birth by gay and lesbian couples do as well as children born into opposite-sex families. They also testified that the clamor for marriage in the gay community had given the institution of marriage greater esteem.
The trial appeared to be a lopsided show for the challengers, who called 16 witnesses, including researchers from the nation's top universities, and presented tearful testimony from gays and lesbians about why marriage mattered to them.
The backers of Proposition 8 called only two witnesses, and both made concessions under cross-examination that helped the other side.
The sponsors complained that Walker's pretrial rulings had been unfair and that some of their prospective witnesses decided not to testify out of fear for their safety.
When Walker ruled that he would broadcast portions of the trial on the Internet, Proposition 8 proponents fought him all the way to the U.S. Supreme Court and won a 5-4 ruling barring cameras in the courtroom.
The trial nevertheless was widely covered, with some groups doing minute-by-minute blogging. Law professors brought their students to watch the top-notch legal theater.
An estimated 18,000 same-sex couples married in California during the months it was legal, and the state continues to recognize those marriages.
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