Federal Judge Declares Prop. 8 “Unconstitutional”

A federal judge in California has handed marriage equality supporters a major victory by striking down California’s Proposition 8 that banned same-sex unions in that state. U.S. District Court Judge Vaughn Walker, the chief judge of the U.S. District Court for the Northern District of California wrote in his decision that the ban is unconstitutional, violating both the Due Process and Equal Protection Clauses of the 14th Amendment :

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. 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.

Judge Walker’s did grant a motion from Prop 8 supporters to stay his decision pending a further hearing on the matter.

Though this is a landmark and historical ruling, it is just a stop along judicial process highway. The next stop will be the 9th U.S. Circuit Court of Appeals, with the ultimate destination being the U.S. Supreme Court.

Reaction to the ruling has been swift from marriage equality proponents like Joe Solmonese from the Human Rights Campaign who praised Judge Walker.

“After hearing extensive evidence in support of marriage equality, and essentially no defense of the discrimination wrought by Prop 8, Judge Walker reached the same conclusion we have always known to be true – the Constitution’s protections are for all Americans, including the lesbian, gay, bisexual and transgender community,” he said.

On the other side, National Organization for Marriage (NOM) leader Maggie Gallagher, left without a real argument, launched a personal attack on Judge Vaughn:

“The ‘trial’ in San Francisco in the Perry v. Schwarzenegger case is a unique, and disturbing, episode in American jurisprudence. Here we have an openly gay (according to the San Francisco Chronicle) federal judge substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution. We call on the Supreme Court and Congress to protect the people’s right to vote for marriage,” she said.

Newt Gingrich, a former Congressman from Georgia and rumored 2012 Republican presidential candidate called the ruling an “outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife.” He called on Congress “to act immediately to reaffirm marriage as a union of one man and one woman as our national policy.”

In his ruling, Judge Walker took on that “one man, one woman” argument and rather literally “neutered” it — pointing out that while marriage has, historically, been defined by gender roles, it can no longer be seen that way:

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.

This, of course, is the crux of much of the religious opposition to same-sex marriage — a blurring of what many religions see as “God-given” gender distinctions with women being subservient to their husbands. Religious people certainly have a right to believe in, and practice, such gender roles in their marriages, but, the judge ruled that’s no reason to bar gays and lesbians from the institution:

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.

Judge Vaughn also noted that “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 couples.”

Even after this rule, no religious group will ever be required to recognize marriage for same-sex couples. Churches continue to have the right to refuse to perform ceremonies. Religious opposition to same-sex marriage was strong in the campaign to pass Prop 8. Religion News Service notes:

Religious groups – including the Roman Catholic Church and the Church of Jesus Christ of Latter-day Saints — used their political influence and deep pockets to push for Prop 8. Mormons donated an estimated $22 million to the cause, and church headquarters were fined $5,000 by California officials for failing to declare non-monetary contributions.

Judge Walker, however, ruled that religious opposition was not a “rational basis” for opposing marriage equality:

“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. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis for supporting Proposition 8.”

Prop 8 passed in November 2008 by a margin of 52-48 percent, but a recent survey by Public Religion Research Institute showed that if the vote were taken now, Prop 8 would have been defeated. That defeat would come now, with the support of many in religious communities including Latino Catholics.

In reviewing the history of marriage in his decision, Judge Walker observed that those who hold to rigid gender roles in marriage — like more conservative religious groups — are simply on the wrong side of history:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.


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