Prop 8 Overturned

Ken AshfordConstitution, Sex/Morality/Family ValuesLeave a Comment

Two years ago, the voters of California took to the ballots, and overturned legislation which would have permitted gay marriage.  That was Prop 8, a big controversy at the time.  52% of Californians voted in favor of the gay marriage ban.

But yesterday, a decision by federal Judge Vaughn Walker (a Reagan appointee) ruled that the gay marriage ban violated the Equal Protection Clause of the U.S. Constitution, which it clearly does.  [UPDATE:  Actually, Judge Walker was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups at the time.  This opposition was because he was seen as hostile to gay rights since, as a lawyer, Walker once represented the U.S. Olympic Committee in stopping an event in San Francisco known as the "Gay Olympics"]

“Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” wrote Judge Walker. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”

That last sentence is the legal test.  The government must have (a) a legitimate state interest and (b) the law must be rationally related to that state interest.

Lawyers supporting Prop 8 argued the time-worn argument that the state has a legitimate interest in banning gays from being married because marriage is for procreation, and gay couples can't procreate.  Of course, that is where the argument fails, because if the state really did have a "legitimate interest" in seeing that marriage was for procreation, it would ban the elderly or barren couples from getting married…. and it doesn't.

The opinion is full of little gems. On page 6, Walker writes, "A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose." In other words, governments are secular. So shove your morality and put your Christian nation up there with it, because we're makin' laws for everyone here.

On page 24, when Walker is talking about the will of the voters versus what experts have to say on a subject: "When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view."   Translated?  It means the will of the majority doesn't prevail when the result is institutionalized prejudice and bigotry.

What's also amusing is the judge's recount of the Prop 8 proponent's "evidence" that banning gay marriage furthers the state's interest in marriage being for procreative purpose.  When asked by the judge how banning gay marriage furthers that interest, the Prop 8 lawyer's response — "Uh, I don't know" — was telling.

All of the opinion ultimately leads to this:


But don't expect to see a slew of gay marriages in California.  The judge stayed his own decision from having effect, realizing that it will be appealed — probably all the way to the Supreme Court.

The full text of the opinion is here.

Does Walker's opinion matter, if it is going to be appealed anyway (as everyone knew it would, no matter the outcome)?  

Yes it does, particularly because of Judge Walker's detailed opinion. The NYT's John Schwartz noted that appellate judges in this case "could find themselves boxed in by the careful logic and structure" of Walker's ruling. Northwestern Law School's Andrew Koppelman told the Times, "[I]f the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision."

The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference.

"They are supposed to take as true facts found by the district court, unless they are clearly erroneous," he said. "This opinion shows why district courts matter, even though the Supreme Court has the last word."

And to that end, Judge Walker's 136-page opinion lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial.

Slate's Dahlia Lithwick fleshed this out in more detail, adding that the ruling seemed to be "written for a court of one" — specifically, Supreme Court Justice Anthony Kennedy, very likely to be the swing judge in this case — the man "who has written most eloquently about dignity and freedom and the right to determine one's own humanity."

Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count — in his opinion today — seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "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, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

Justice Kennedy? Hot sauce to go with those words?

The case has a long way to go, but I'm glad Judge Walker was thinking ahead.

In the meantime, conservatives are — for the most part — not happy.  Writes Newt Gingrich:

"Judge Walker's ruling overturning Prop 8 is 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. In every state of the union from California to Maine to Georgia, where the people have had a chance to vote they've affirmed that marriage is the union of one man and one woman. Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy.  Today’s notorious decision also underscores the importance of the Senate vote tomorrow on the nomination of Elena Kagan to the Supreme Court because judges who oppose the American people are a growing threat to our society.”

That's going to be the general reaction from the right.  "Activist judges" overruling "the will of the majority", blah blah blah.  It's the same old kneeling down to the "will of the majority" as if that's something in the founding documents of our country.  It's not.  "The will of the majority" has brought us, at certain times in our country, slavery and segregation.  The Constitution itself is a bullwork against the "will of the majority", making sure that it doesn't go so far as to trample the basic fundamental rights of the minority — in this particular instance, gays who want to get married.

But these conservatives don't love their country, or its principles.  They just want to rule.  They don't have principles, or at least, not American principles.

The other argument circling the lower depths of the right is that the decision is bogus because Judge Walker is reportedly gay.


As if he didn't write a 138 opinion giving the reasons for his decision — none of which was "Because I am gay".  In fact, the opinion is a factual, detailed and well-argued treatise on the reasons why bans on same-sex marriage are abhorrent to the federal constitution.

Also, be on the look out for the silly "What next?" argument.  You know the one: "What next?  Can I now marry my [dog/cat/goat/sister]?"

Anyway, a round-up of conservative blaaaargh reaction is here.

Here's one of my favorites, from Brian Brown of the National Organization for Marriage:

"Never in the history of America has a federal judge ruled that there is a federal constitutional right to same sex marriage. The reason for this is simple – there isn’t!” added Brown. 

Now hold that in your mind, while you read the very next paragraph….

“The ‘trial’ in San Francisco in the Perry v. Schwarzenegger case is a unique, and disturbing, episode in American jurisprudence.

He's answered his own question… without realizing it!  Why in the history of America has no federal judge ruled there is a constitutional right to same sex marriage?  Because the case of Perry v. Schwarzenegger is unique.


But what does the person on the right think about Walker's decision?  Well, she says she hasn't read the opinion yet…..

Or, as Tbogg puts it:

Sarah Palin, Former Adjunct Professor of Constitutional Law at Matanuska Valley Cosmetology College, has been very busy helping her unwed mother daughter move back home after her fourth engagement to that guy who knocked her up was aborted again, so she hasn’t had time to read Judge Walker’s opinion and discuss it with her law partners Ronald Reagan and Jesus H. Christ Esq. so I would hold off on booking the Bridal Suite at the Madonna Inn, you guys, also because it is not that Madonna.