Wednesday, August 04, 2010

Fed Judge Finds Calif. Prop. 8 Unconstitutional

August 4, 2010

A federal lawsuit was filed in May 2009 challenging Proposition 8, the California referendum which amended the state constitution to define marriage as between one man and one woman. Prop. 8 previously was upheld by the California Supreme Court.

The federal lawsuit, Perry et al v. Schwarzenegger et al, was filed by noted Republican attorney Ted Olson, and noted Democratic attorney David Boies. Olson and Boies were on opposite sides of the landmark Bush v. Gore lawsuit which resolved the Florida electoral dispute in the 2000 election.

The lawsuit sought an injunction against implementation of Proposition 8 under federal law, including alleged violations of the Due Process Clause of the 5th Amendment to the U.S. Constitution and the Equal Protection Clause of the 14th Amendment. At the time of the suit, many gay marriage advocates criticized the tactic, fearing that a loss at the federal level would damage ongoing state efforts.

Today, Chief Judge Vaugh Walker of the Northern District of California issued his ruling in the case holding that Prop. 8 violates the U.S. Constitution.

Here is the Judge's conclusion:

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 oppositesex 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.

Throughout the opinion, the Judge goes into great detail regarding trial testimony and justifications for Prop. 8. The Judge then holds, in essence, that the justifications are irrational and have no legitimate societal basis.
The Judge even designated a section of the opinion "Credibility Determinations." Many commentators think the Judge was trying to insulate the opinion from appeal since appeals courts do not normally overturn credibility determinations, since only the trial judge observed the witness.

In this case, the Judge seems to be trying too hard to insulate the opinion, and I doubt that on such a momentus finding of a new constitutional right for same sex marriage that an appeals court, much less the U.S. Supreme Court, will care much about the credibility of witnesses as a basis for a legal ruling.
Everyone expects this case to end up on the U.S. Supreme Court, which should test what Elena Kagan meant when she said, under oath, that there is no constitutional right to gay marriage.

Update: The trial court has granted a stay of entry of judgment until the motion for a stay pending appeal can be decided. The plaintiffs must respond by August 6. So for at least a couple of days, the effect of the ruling is on hold.

As to the political end of this, the decision will be seen as another example of overreaching by a liberal judiciary which throws out laws it doesn't like politically (Arizona) and invents rights it likes. I'll quote Ace:

Oh, PS, Judge Walker--

Thanks for the extra 7% turnout in


Hugs and kisses,


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