Federal judge strikes down Calif. gay marriage ban

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Chief U.S. District Judge Vaughn Walker's strongly worded opinion in the landmark case—the first in a federal court to examine if states can lawfully limit marriage to a man and a woman—touched off a celebration outside the courthouse. Later in the day, a jubilant crowd marched through the city that has long been a haven for gays.

As word of the verdict spread, about 300 people assembled in a West Hollywood park waving rainbow gay pride flags. In New York City, a

crowd of about 150 gathered outside a lower Manhattan courthouse. They carried signs saying "Our Love Wins" as organizers read portions of the 136-page decision aloud.

Ruling in a lawsuit filed by two couples who claimed the ban violated their civil rights, Walker methodically dismantled every argument advanced by sponsors of the voter-approved measure, known as Proposition 8, before declaring it unconstitutional.

"Proposition 8 singles out gays and lesbians and legitimates their unequal treatment," he wrote. "Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents."

Standing in front of eight American flags

at a news conference, the two couples behind the case beamed and choked up as they related their feelings of validation.

"Our courts are supposed to protect our Constitutional rights," lead plaintiff Kris Perry said as Sandy Stier, her partner of 10 years, stood at her side. "Today, they did."

"We are not here to change the world. Equality is something our country has always been about," said co-plaintiff Jeff Zarrillo, who is seeking the right to marry his partner of nine years,

Paul Katami. "Today's decision brings Paul and I and so many others like us closer to that equality, too."

Voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had tied the knot. Despite Wednesday's ruling, it remains uncertain when gay weddings will be allowed to resume in the state.

Protect Marriage, the coalition of religious and conservative groups that sponsored the ban, said it would appeal Walker's ruling to the 9th U.S. Circuit Court of Appeals.

"In America, we should uphold and respect the right of people to make policy changes through the democratic process, especially changes that do nothing more than uphold the definition of marriage that has existed since the founding of this country and beyond," said Jim Campbell, a lawyer on the defense team.

Walker, meanwhile, said he would consider while Protect Marriage pursues its appeal suspending an order requiring the state to cease enforcing Proposition 8. He ordered both sides to submit written arguments by Friday on the issue.

The appeal would go first to the 9th Circuit, then to the U.S. Supreme Court, if the high court justices agree to review it.

Currently, same-sex couples can legally wed only in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C.

Before deciding the case, Walker heard 13 days of testimony and arguments. Former U.S. Solicitor General Theodore Olson teamed with David Boies to argue for the plaintiffs, bringing together two litigators best known as adversaries who respectively represented George W. Bush and Al Gore in the disputed 2000 election.

Reveling in their joint victory Wednesday, Boies said their unusual alliance would be valuable if the Proposition 8 case, known as Perry v. Schwarzenegger, reaches the Supreme Court.

"Ted and I have a deal: He is going to get the five justices that were for him in Bush v. Gore, and I'm going to get the four justices that were with me in Bush v. Gore," Boies joked.

Defense lawyers argued at trial that the ban was necessary to safeguard the traditional understanding of marriage and to encourage responsible childbearing. But they called just two witnesses, claiming they did not need to present expert testimony because the U.S. Supreme Court had never specifically recognized a right to gay marriage.

"To prevail in the end, our opponents have a very difficult task of convincing the U.S. Supreme Court to abandon precedent and invent a new constitutional right," Andy Pugno, a lawyer for Protect Marriage said Wednesday.

The judge, however, dismissed the notion that gay Americans were seeking a new right as opposed to one already guaranteed them as U.S. citizens under the Constitution's due process and equal protection clauses.

Preventing gays from marrying does nothing to strengthen heterosexual unions or serve any purpose that justifies the ban's discriminatory effect, he said.

"Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions," the Walker wrote. "Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners."

"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," the judge wrote.

Describing the defense case as "a rather limited factual presentation," he also said its proponents offered little evidence that they were motivated by anything other than animus toward gays—beginning with their campaign to pass the ban, which included claims of wanting to protect children from learning about same-sex marriage in school.

"Proposition 8 played on the fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual," Walker wrote.

The ruling puts Walker, a Republican appointed by President George H.W. Bush, at the forefront of the gay marriage debate and marks the second verdict in a federal gay marriage case to come down in less than a month.

In July, a District Court judge in Massachusetts decided the state's legally married gay and lesbian couples had been wrongly denied the federal financial benefits of marriage because of a law preventing the U.S. government from recognizing same-sex unions.

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Associated Press Writers Juliana Barbassa in San Francisco, Raquel Dillon in West Hollywood, Jennifer Peltz in New York City contributed to this report.WHAT DID THE SUPREME COURT OF CALIFORNIA SAY?

The Court declared in a 4-3 split that the California Constitution requires the state to end the exclusion of same-sex couples from marriage.

In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual's opportunity to live a happy, meaningful and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all couples, without regard to their sexual orientation.

The state’s exclusion violated two different rights of individuals who wished to marry a person of the same-sex: the fundamental right to marry and the right to equal treatment.

Historical article 

THE SUPREME COURT OF CALIFORNIA IS THE FIRST HIGH COURT TO RECOGNIZE SAME-SEX COUPLES’ FUNDAMENTAL RIGHT TO MARRY

A fundamental right is one that cannot be taken away unjustifiably from anyone, whether or not there is any unequal treatment. This is the first time a state’s highest court has recognized same-sex couples’ fundamental right to marry.

…we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.

In Lambda Legal’s victory in Lawrence v. Texas, the U.S. Supreme Court said that courts cannot analyze a fundamental right by looking only at how it has historically been enjoyed by a certain group of people because that will automatically preclude extending that right to those who have been excluded. Instead, courts must look at the underlying liberty itself. The California Supreme Court followed that reasoning to examine the fundamental right to marry, explaining that the key precedents do not…

. . . define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons – composed of individuals sharing a personal characteristic such as a particular sexual orientation — who historically have been denied the benefit of such rights.

THE SUPREME COURT OF CALIFORNIA IS THE FIRST HIGH COURT TO RECOGNIZE THAT WHEN A STATE TREATS PEOPLE DIFFERENTLY BASED ON SEXUAL ORIENTATION, THE JUSTIFICATION MUST PASS THE MOST DIFFICULT LEGAL TEST - STRICT SCRUTINY

When the government treats people unequally, it has to justify that treatment. The most difficult legal test for the government to meet in equality cases is called the “strict scrutiny” test, commonly applied in cases where people were classified for different treatment based on their race or religion. The California Supreme Court concluded that unequal treatment based on sexual orientation should be subject to strict scrutiny:

Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.

That is the first time a state’s highest court has recognized that strict scrutiny is the appropriate test when a state has discriminated on the basis of sexual orientation.

In applying the strict scrutiny test to decide our claim for equality, the Supreme Court again relied on Lawrence v. Texas, this time to reject the state’s excuse of needing to preserve the traditional definition of marriage:

Although the understanding of marriage as limited to a union of a man and a woman is undeniably the predominant one, if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. . . . As the United States Supreme Court observed in its decision in Lawrence v. Texas . . . the expansive and protective provisions of our constitutions, such as the due process clause, were drafted with the knowledge that ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.’”

Under the strict scrutiny test, all excuses for discrimination failed, and the Supreme Court held that excluding same-sex couples’ from marriage was a violation of their right to equality.

THE SUPREME COURT OF CALIFORNIA AGREED THAT THE “M’ WORD MATTERS

In California, same-sex couples could register as domestic partners and thus obtain most of the protections of marriage, except for the powerful name of marriage itself. The Supreme Court agreed with us that the name of marriage matters:

While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

This is more strong authority for Lambda Legal’s ongoing campaign to educate America about how a separate legal structure for same-sex couples’ relationships is an invitation for others to discriminate against those couples.

THE SUPREME COURT OF CALIFORNIA MADE A STRONG STATEMENT ABOUT THE INDEPENDENT ROLE OF THE COURTS TO UPHOLD THE PROMISES OF THE STATE CONSTITUTION

The Supreme Court of California stood firm in asserting its proper role to make sure constitutional promises are kept by other branches of government:

. . . under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve” . . . a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.

As Chief Justice Poritz of the New Jersey Supreme Court observed in her concurring and dissenting opinion in Lewis v. Harris . . . “Perhaps the political branches will right the wrong presented in this case by amending the marriage statutes to recognize fully the fundamental right of same-sex couples to marry. That possibility does not relieve this Court of its responsibility to decide constitutional questions, no matter how difficult. . . . . The question of access to civil marriage by same-sex couples ‘is not a matter of social policy but of constitutional interpretation.’ . . . It is a question for this Court to decide.

One justice concurred, emphasizing the profound importance of judicial independence:

In holding today that the right to marry guaranteed by the state Constitution may not be withheld from anyone on the ground of sexual orientation, this court discharges its gravest and most important responsibility under our constitutional form of government. There is a reason why the words “Equal Justice Under Law” are inscribed above the entrance to the courthouse of the United States Supreme Court. Both the federal and the state Constitutions guarantee to all the “equal protection of the laws” . . . and it is the particular responsibility of the judiciary to enforce those guarantees. The architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.

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