August 4, 2010 | by Lou Chibbaro Jr.
JUDGE OVERTURNS PROP 8 IN HISTORIC RULING

A crowd at Bravo Bravo Restaurant & Nightclub in D.C. celebrates Wednesday's federal court decision finding Proposition 8, which banned same-sex marriage in California, to be unconstitutional. The decision is expected to be appealed. (Washington Blade photo by Michael Key)

In an historic development, a federal judge in California ruled Wednesday that the Golden State’s ban on same-sex marriage is unconstitutional.

The ruling by U.S. District Court Judge Vaughn Walker in San Francisco said an amendment to the state’s constitution banning same-sex marriage, which voters approved in a 2008 ballot measure known as Proposition 8, violates the U.S. Constitution’s equal protection and due process clauses.

“Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement,” Walker wrote in his ruling.

The order also prohibits “the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

But Walker stayed his own order for an indeterminate length of time at the request of Prop 8 supporters in a separate ruling, pending an expected appeal of the case.

Voter approval of Prop 8 put an end to same-sex marriages that began in California in early 2008, when the state’s highest court ruled that gays and lesbians could not be denied the right to marry under the state constitution.

Same-sex marriage opponents said Wednesday they would take immediate steps to appeal Vaughn’s decision to the Ninth Circuit U.S. Court of Appeals, which could take a year or more to issue a ruling.

Supporters and opponents of same-sex marriage have each vowed to take the case to the U.S. Supreme Court if they lose at the appeals court level, a development that legal observers say could lead to a landmark Supreme Court ruling on same-sex marriage.

Vaughn’s decision Wednesday followed a controversial 12-day trial in January in which he presided over arguments by supporters and opponents of same-sex marriage that drew international media coverage. He ordered a four-month break in the trial to go over a mountain of evidence before resuming the proceedings in June to hear closing arguments.

His 136-page decision released late Wednesday strongly rejected arguments by attorneys supporting Proposition 8 that same-sex marriage harms traditional marriage, procreation and child-rearing, saying those arguments reflect a “moral view” that does not justify a “state interest” in banning same-sex marriage.

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”
He added that “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.”

The ruling drew quick praise from many advocates of same-sex marriage, including Evan Wolfson of Freedom to Marry.

“Judge Walker’s decision will be appealed and litigation will continue, but what we witnessed in the clear light of his courtroom cannot be erased,” he said. “The witnesses, evidence and arguments all demonstrated what we’ve long known: exclusion from marriage harms committed same-sex couples and their families, while helping no one and the unjustified and unfair denial of marriage to same-sex couples violates the United States Constitution.

“The judge’s ruling reflects the growing consensus in courtrooms and legislatures across the country, and around the world, that there is simply no good reason to exclude same-sex couples from marriage.”

Several elected officials, including New York Gov. David Paterson, also applauded the ruling.
“I know that there is a long road ahead in the legal proceedings, but whatever the outcome I believe that the bedrock American principle of equal protection under the law must mean equal rights for gays and lesbians, and that such equal rights must include the fundamental right to marry,” he said. “Today’s decision is one important step in a long struggle, and that struggle must continue until equality is achieved.”

But the National Organization for Marriage, the nation’s leading group opposing same-sex marriage, called the decision a threat to “traditional” marriage in other states.

“With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman,” said Brian Brown, the group’s president. “This ruling, if allowed to stand, threatens not only Prop 8 in California but the laws in 45 other states that define marriage as one man and one woman.”

The case, Perry v. Schwarzenegger, was named after Kris Perry, who, along with her partner of 10 years, Sandy Stier, was among two same-sex couples that filed the lawsuit to challenge Prop 8 on federal constitutional grounds.

Paul Katami and Jeff Zarrillo, the other two plaintiffs, have been together for nine years. Neither of the couples married in California during the short window in which same-sex marriage was legal but said they joined the suit to enable them and other same-sex couples to fulfill their desire to marry from that time going forward.

In a development that angered supporters of Proposition 8, California Attorney General Jerry Brown, a Democrat and long-time supporter of LGBT rights, refused to defend the ballot measure on behalf of the state. Republican Gov. Arnold Schwarzenegger chose not to overrule Brown, placing himself in the odd position of being named the lead defendant in the case but taking no action to defend a state constitutional provision.

The state’s decision not to defend the law forced leaders of the campaign to pass Prop 8 to assume the role of defending it in court, with the pro-Prop 8 group Protect Marriage taking the lead.

The American Foundation for Equal Rights, a group created by California gay activist Chad Griffin to challenge Prop 8, initiated the lawsuit at a time when some legal experts and gay legal groups opposed such a challenge.

Lambda Legal Defense & Education Fund was among the groups that considered challenging Prop 8 on federal constitutional grounds to be too risky because the case would likely reach the U.S. Supreme Court, which was expected to rule against same-sex marriage rights.

Support for the lawsuit initially was less than overwhelming within LGBT legal and activist circles. But the initial reservations — at least in public forums — appeared to vanish when American Foundation for Equal Rights leaders managed to pull off what some considered a stunning coup.

The group lined up conservative Republican attorney and acclaimed constitutional expert Theodore “Ted” Olson, a former U.S. Solicitor General under President George W. Bush; and esteemed litigator, law school professor and U.S. Justice Department attorney during the Clinton administration, David Boies, as the lead attorneys for the two couples in the case.

Olson, who had not spoken out on LGBT issues in the past, emerged as a champion for LGBT equality, saying the right to marry for same-sex couples was protected by the U.S. Constitution and should be a fundamental principle in U.S. law.

The two attorneys’ arguments and actions during the Prop 8 trial appeared to dominate the proceedings and prompted many legal observers to conclude that their side came across far stronger than the legal team defending Prop 8.

Olson and Boies argued during the trial, among other things, that Prop 8 violates the U.S. Constitution’s Equal Protection Clause and the Fourteenth Amendment as well as the Constitution’s Due Process Clause by “impinging” on fundamental liberties.

The two also argued that Prop 8 singles out gays and lesbians for “disfavored legal status” and thus creates “second-class citizens.” They also told the court the same-sex marriage ban discriminates on the basis of gender and sexual orientation.

Attorneys Andrew Pugno and Charles Cooper with Protect Marriage presented just two witnesses during the trial. The credentials of both witnesses as experts were challenged by the plaintiffs, and both supporters and opponents of Prop 8 thought the attorneys did a lackluster job of defending the marriage ban statute.

Vaughn, 65, who was first nominated for his federal judgeship post by President Ronald Reagan, became the focus of unexpected publicity when media reports disclosed in February that he’s gay.

Some gay rights opponents demanded he be removed from the case, saying he could not render an impartial decision. Other same-sex marriage opponents said Vaughn’s sexual orientation should not matter but accused him of being biased against the defendants in his procedural rulings during the trial.

LGBT legal groups and public opinion leaders, including newspaper editorials, disputed claims that Vaughn was biased and dismissed calls for him to step down from the case. Some noted that the judge had been criticized during his earlier years on the bench for handing down conservative, libertarian oriented decisions that in a few cases went against gay rights.

Gay rights attorneys familiar with the case said Vaughn’s strongly worded ruling overturning Proposition 8 on federal constitutional grounds lays the groundwork for striking down laws banning same-sex marriage in all states that have them.

But the attorneys noted that the other states won’t be directly impacted unless or until the Ninth Circuit Court of Appeals and the U.S. Supreme Court upholds Vaughn’s ruling. With the Ninth Circuit long considered to have liberal and progressive leanings, LGBT activists and gay rights attorneys believe they have the best shot at winning there.

According to Jenny Pizer, an attorney and same-sex marriage law specialist with Lambda Legal, if the Supreme Court does not reverse a favorable ruling by the Ninth Circuit, either by refusing to take the case or by upholding the appeals court’s decision, laws banning same-sex marriage in the nine states under the Ninth Circuit’s jurisdiction would likely fall.

In addition to California, the states in the Ninth Circuit include Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Should the Supreme Court uphold Vaughn’s decision, laws banning same-sex marriage in virtually all states – as well as the federal Defense of Marriage Act – could also be expected to fall.

“The federal Constitution’s guarantee of equal protection and due process, including the fundamental right to marry, need to mean the same thing in every state in the union,” Pizer said.

“The ruling issued today concludes, and we think of course rightly, that lesbian and gay Americans have the same fundamental right to marry that heterosexual Americans have. And they should be able exercise that right to marry.”

Pizer noted that Vaughn cited repeatedly in his ruling two key Supreme Court rulings considered landmark breakthroughs for LGBT rights—Lawrence v. Texas, which overturned state sodomy laws for consenting adults in private; and Roemer v. Evans, which overturned a Colorado ballot measure that banned local jurisdictions within the state from adopting laws prohibiting discrimination based on sexual orientation.

“The Roemer decision affirmed the liberty rights of gay people, which is at the center of the freedom to marry the person that you choose,” Pizer said.

She said the Lawrence decision, written by Supreme Court Justice Anthony Kennedy, established that “traditions and moral beliefs alone do not justify maintaining a discriminatory system.”

Speaker of the House Nancy Pelosi (D-Calif.), the American Civil Liberties Union, People for the American Way, and Judy Shepard, mother of gay student Matthew Shepard, whose murder in a 1998 anti-gay hate crime drew attention to LGBT rights, were among those praising Judge Walker’s decision.

The White House released a brief statement on the Prop 8 decision through spokesperson Shin Inouye.

“The president has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans,” the statement says.

Rep. Tammy Baldwin (D-Wisc.), who is lesbian, appeared to sum up the views of LGBT civil rights groups and supportive members of Congress on the question of whether the courts should overturn a law passed by the voters.

“We live in a democracy wherein majority rule is checked and balanced by the guarantee of inalienable minority rights,” Baldwin said in a statement.

“This case, as it wends its way up to the U.S. Supreme Court, presents jurists with fundamental questions about minority rights and majority rule. I believe Judge Walker got it right, declaring that denial of marriage rights and protections to gay and lesbian citizens violates the Constitution even if it reflects the will of the majority of Californians,” she said.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

8 Comments
  • Today’s decision is of course only the first step in a long legal process. Since our elected representatives have not been effective in advancing the cause of gay people, the courts seem to be our only hope for achieving equality. This underscores the importance of appointing judges who will help our cause, and especially makes the Kagan nomination critical at this time.l

  • Great news! This battle is won, but the war is long and we still have a long way to go.

  • If only there weren’t earthquakes in CA…

  • Frankie, DC has marriage equality, you don’t need to leave. LOL

  • go to this link, it could probably use a few more “comments”.

    http://www.washingtonpost.com/wp-dyn/content/article/2010/08/05/AR2010080504766.html?hpid=opinionsbox1

    Here was mine…
    My sister and her ex-husband spent $40,000.00 on their lawyer expenses over egos. Do I want to go through that as a gay male, no… but it should be my decision not yours. I knew she shouldn’t have married the guy but it wasn’t up to me to make that decision, it was hers. I don’t have the right to tell straight people not to get married nor would I want it. What gives some straight people the thought that they have the right to determine my “marital status”? If I ever decided that I wanted to get married it should be my and my partners decision alone and not anyone else’s. Also, Technically (and legally) it is unconstitutional because it is denying equal rights to all citizens. It is also hypocritical as a nation to portray how it treats everyone equally but imposes inequality within it’s laws. And, if it’s a religious decision (subconcious or conscious) by straight citizens then they are being hypocritical because they are going against the seperation of church and state. It’s the only conclusion that you can come up with as why they are so opposed to it and that’s how they rationalize their opposition for it. The older I get the more I realize that the greatest problem that this country is facing is it’s incessant need to try to control everyone else, not only the government but also the populace. And it’s the result of our arrogance because we’ve been “numero uno” over the last 70 years. What happens when another human being continually tries to control another, resistence. Even if this fails now it will pass in the future. Look at the strides that the gay community has made over the last 50 years, have we made considerable progress? I think so, compare now and then and make your own assessment. As generations change it will not be an issue at some point so I’m not worried. To all the straight people out there that have a problem with it, don’t we (as a nation) have bigger problems right now than to waste time, private; and tax money on this when we are in debt up to our behinds all ready? Really, ask yourself this… How would my marriage (if I did get married) hurt you or have any type of negative impact on your life???

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