Published on
the San Francisco Chronicle

Judge Strikes Down California Prop. 8, the Ban on Same-Sex Marriage

Bob Egelko and Demian Bulwa

Molly McKay and John Lewis celebrate at the Philip Burton Federal Building after learning Chief U.S. District Court Judge Vaughn Walker ruled that Proposition 8 is unconstitutional in San Francisco on Wednesday. (Paul Chinn/The Chronicle)

SAN FRANCISCO -- A federal judge today struck down Proposition 8, the voter-passed November 2008 initiative that defined marriage as the union of a man and a woman.

U.S. District Judge Vaughn Walker found that the ban on same-sex marriage violated the constitutional due process and equal protection rights of a pair of couples - one lesbian and one gay - who sued.

The judge ordered an injunction against enforcement of Prop. 8 but issued a temporary stay until he decides whether to suspend his ruling while it is being appealed. The stay means that same-sex couples are still prohibited from marrying.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker wrote in a 136-page ruling.

He said the ballot measure "prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis."

The constitutional right to marry, Walker said, "protects an individual's choice of marital partner regardless of gender." He also said domestic partnerships in California, available to same-sex couples, are a "substitute and inferior institution" that lack the social meaning and cultural status of marriage.

Gov. Schwarzenegger issued a statement saying, "For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves."

Prop. 8's sponsors are planning an immediate appeal.

"In America, we should respect and uphold the right of a free people to make policy choices through the democratic process," said Brian Raum, an attorney for the Alliance Defense Fund who was part of the legal team defending Prop. 8.

Prop. 8 was approved by 52 percent of voters in November 2008. It amended the California Constitution to prohibit same-sex marriage, overturning a May 2008 state Supreme Court ruling that extended marital rights to gays and lesbians.

The state court upheld the initiative last May, but left in place the same-sex marriages performed in the state before Prop. 8 passed.

Walker presided over a nonjury trial in January, the first ever held in a federal court on the issue. The plaintiffs, two gay men from Burbank and two lesbians from Berkeley, testified that their hopes to be married were thwarted by the voters.

Walker's ruling is certain to be appealed to the Ninth U.S. Circuit Court of Appeals in San Francisco. The case could reach the U.S. Supreme Court in 2011 or 2012.

A group that supports same-sex marriage is planning a march from the Castro district to City Hall, starting at 5 p.m., followed by a rally from 6:45 to 8 p.m.

Outside the U.S. District Court, dozens of people - most supporters of same-sex marriage - gathered long before ruling was announced. They carried American flags, played Bob Marley's "Get Up, Stand Up" and exchanged hugs.

A smaller group of supporters of Prop. 8 also stood outside the courthouse, carrying signs that read "Marriage = man and woman" and "Recriminalize sodomy."

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