Landmark Ruling Declares Prop 8 Unconstitutional

In a stunning, carefully crafted 136-page opinion, U.S. District Court
Judge Vaughn Walker held in Perry v. Schwarzenegger that California's
Proposition 8, which outlaws same-sex marriage, is unconstitutional.
The lawsuit was filed by two gay couples who sought to overturn Prop
8. Interestingly, the named defendant, Gov. Arnold Schwarzenegger, did
not defend Prop 8. Neither did California's Attorney General Jerry
Brown; in fact, he conceded that Prop 8 is unconstitutional. It was
the official proponents of the ballot initiative in the California
election who defended Prop 8 in the lawsuit.

After making 80 bullet-proof findings of fact, Walker concluded that
Prop 8 violates both the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment. The judge agreed with all of the
legal arguments advanced by the plaintiffs. The forces for marriage
equality hit a grand slam. It remains to be seen, however, whether
Walker's ruling will hold up on appeal.

Walker presided over the first trial in U.S. history that raised the
issue of whether same-sex marriage violates the federal Constitution.
He heard testimony for two weeks, including that of plaintiffs' myriad
experts and the plaintiffs themselves. The anti-marriage equality side
presented only two witnesses, who were unable to articulate any
rational reason to treat straights and gays differently when it comes
to the right to marry. Walker found that the opinions of one of those
witnesses, David Blankenhorn, who is founder and president of the
Institute for American Values, were "not supported by reliable
evidence or methodology . . . and entitled to essentially no weight."
Kenneth. Miller, a professor of government at Claremont McKenna
College, also testified for the pro-Prop 8 side. The judge noted that
Miller's research did not focus on gay and lesbian issues, and the
opinions he gave at trial conflicted with his prior opinions, which
undermined his credibility.

When trial judges make factual findings, they are rarely disturbed on
appeal; appellate courts usually confine themselves to reviewing legal
conclusions. Walker's detailed findings of facts included the

  • Marriage in the United States has always been a civil matter. Civil
    authorities may permit religious leaders to solemnize marriages but
    not to determine who may enter or leave a civil marriage.
  • California, like every other state, has never required that
    individuals entering a marriage be willing or able to procreate.
  • Individuals do not generally choose their sexual orientation.
  • Same-sex couples are identical to opposite-sex couples in the
    characteristics relevant to the ability to form successful marital
  • Proposition 8 does not affect the First Amendment rights of those
    opposed to marriage for same-sex couples. Prior to Proposition 8, no
    religious group was required to recognize marriage for same-sex
  • The sexual orientation of an individual does not determine whether
    the individual can be a good parent. Children raised by gay or lesbian
    parents are as likely as children raised by heterosexual parents to be
    healthy, successful and well-adjusted.

Walker determined that "Proposition 8 both unconstitutionally burdens
the exercise of the fundamental right to marry and creates an
irrational classification on the basis of sexual orientation."
Same-sex couples, the judge found, are situated identically to
opposite-sex couples regarding their ability to perform the rights and
obligations of marriage under California law. He rejected the argument
that domestic partnerships are a worthy substitute for marriage, which
he called "a culturally superior status."

Because the plaintiffs sought to exercise the fundamental right to
marry, their claim was subject to strict scrutiny. "The minimal
evidentiary presentation made by proponents [of Prop 8]," the judge
said, "does not meet the heavy burden of production necessary to show
that Proposition is narrowly tailored to a compelling government
interest. Proposition 8 cannot, therefore, withstand strict scrutiny."
Thus, the judge ruled that Prop 8 violates the Due Process Clause.

Walker then held, "Proposition 8 cannot survive any level of scrutiny
under the Equal Protection Clause." All classifications based on
sexual orientation, he wrote, "appear suspect, as the evidence shows
that California would rarely, if ever, have a reason to categorize
individuals based on their sexual orientation." When there is a
suspect classification, the court will judge it with strict scrutiny.

But, Walker noted, strict scrutiny is unnecessary here because Prop 8
fails even if the court uses the "rational basis" test, in which case
the Prop 8 proponents would only need to show that there was a
rational basis for treating homosexuals differently from
heterosexuals. This is how the judge shot down each one of the
rationales the proponents set forth for denying gays the right to

  1. Reserve marriage as only a union between a man and a woman.
    --Judge: Tradition alone cannot form a rational basis for a law.
  2. Proceed with caution when implementing social changes.
    --Judge: "Because the evidence showed that same-sex marriage has and
    will have no adverse effects on society or the institution of
    marriage, California has no interest in waiting and no practical need
    to wait to grant marriage licenses to same-sex couples."
  3. Promote opposite-sex parenting over same-sex parenting.
    --Judge: The evidence shows "beyond any doubt that parents' genders
    are irrelevant to children's developmental outcomes." Prop 8 has
    nothing to do with children; it simply prevents same-sex couples from
  4. Protect the freedom of those who oppose marriage for same-sex couples.
    --Judge: Prop 8 does not affect any First Amendment right or
    responsibility of parents to educate their children, or the rights of
    those opposed to homosexuality or to same-sex marriage.
  5. Treat same-sex couples differently from opposite-sex couples.
    --Judge: Prop 8 creates an administrative burden on California because
    it must maintain a parallel institution for same-sex couples.
  6. Any other conceivable interest.
    Judge: Proponents have not identified any rational basis that Prop 8
    could conceivably further.

A private moral view that same-sex couples are inferior to
opposite-sex couples is not a proper basis for legislation, the judge
said. Thus, he held, "Proposition 8 fails to advance any rational
basis in singling out gay men and lesbians for denial of a marriage

To the proponents' arguments that the purpose of marriage is
procreation, Walker retorted, "Never has the state inquired into
procreative capacity or intent before issuing a marriage license."
Moreover, the fact that a majority of California voters supported Prop
8 is irrelevant, according to Walker, who wrote that "fundamental
rights may not be submitted to [a] vote."

If this case reaches the U.S. Supreme Court, it will likely fall to
the swing Justice Anthony Kennedy to decide whether he wishes to be on
the right side of history by affirming Judge Walker's ruling. Kennedy
authored Lawrence v. Texas, which overturned Texas' anti-sodomy law,
and Romer v. Evans, which struck down Colorado's anti-gay ballot
initiative. But Kennedy joined with the four conservative justices in
overruling Walker's decision to broadcast the Prop 8 trial to some
locations, although this may reflect Kennedy's views about the effect
of televising trials rather than the way he feels about same-sex

Well-aware that Kennedy may cast the critical vote, Walker cited Romer
and Lawrence several times in his ruling. For example, Walker held
that "moral disapproval of homosexuality, animus towards gays and
lesbians or simply a belief that a relationship between a man and a
woman is inherently better than a relationship between two men or two
women . . . is not a proper basis on which to legislate," citing

Walker also wrote, "The arguments surrounding Proposition 8 raise a
question similar to that addressed in Lawrence, when the Court asked
whether a majority of citizens could use the power of the state to
enforce 'profound and deep convictions accepted as ethical and moral
principles' through the criminal code. The question here is whether
California voters can enforce those same principles through regulation
of marriage licenses. They cannot."

Both Schwarzenegger and Brown asked Walker to permit gay marriages to
proceed in California even while the case proceeds through the
appellate courts. In ruling on this request, the judge will consider
whether his opinion is likely to be upheld on appeal as well as
whether same-sex couples who seek to marry would suffer irreparable
harm by a postponement.

Judge Walker's ruling may or may not survive. Nevertheless, in
overturning Proposition 8, he struck a mighty blow against homophobia
and in favor of equality.

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