Judge Tosses Prop 8, Gay Marriage Ban Overturned in California

by JC

Via HuffPo:

In a major victory for gay rights activists, a federal judge ruled on Wednesday that a voter initiative banning same-sex marriage in California violated the Constitution’s equal protection and due process rights clauses.

After a five-month wait, 9th Circuit District Court Judge Vaughn Walker offered a 136-page decision in the case of Perry v. Schwarzenegger, firmly rejecting Proposition 8, which was passed by voters in November 2008.

“Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect,” Walker ruled.

“Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

“Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.”

This is a huge decision folks! Finally, the road to sanity in regards to gay marriage has been paved by a judge with some intelligence. Here are a few highlights of the decision:

In deciding the case, Walker offered a variety of findings that may be as important as the ruling itself. Among them were the following:

  • “Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”
  • “Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”
  • “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.”
  • “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”
  • “Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.”
  • “The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”
  • “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”

Perhaps the most important political finding that Walker made was his conclusion that the fact that Prop 8 passed as a voter initiative was irrelevant.

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.”

And let’s not forget that Montana has a Constitutional ban on gay marriage passed in 2004. That ban was challenged in court last month:

Seven gay couples in Montana filed a lawsuit against the state Thursday for its failure to provide legal protections to gay couples and their families.

In 2004 voters approved a state constitutional amendment to ban gay marriage or same-sex couple recognition.”

Should be a slam-dunk case, given the findings in Judge Walker’s decision!

Update: Here’s a link to Judge Walker’s Decision at Scribd.

  1. Ryan Morton

    this is why lgbtiq people have to rely on courts. gop wants to throw us in jail and dems won’t “get around to it.” and the majority of voters? tough luck. you can’t vote away rights.

    • A damned shame, Ryan, that lgbtiq have to rely on courts. You are right – can’t rely on Republicans, can’t rely on Dems – can’t even rely on Obama, who could sign an executive order today, ending DADT.

      MT Democrats? Silent. Even after the MT GOP’s affirmation of hate.

      I’m beyond disgusted with them all. There are a few bright spots in there – but too far and few between. And fewer and fewer have the tenacity even here at the state level to speak up for what is right.

      • mr benson

        Mr. Benson

        July 2, 2010 at 7:55 pm

        The chief danger to our individual freedom is to be found in the opinions of the majority.

  2. robertsrules

    It’s a plot by the homophobes. The plan is to appeal all the way to the Roberts Supreme Court which will ignore the Constitution and ban gay marriage once and for all.

  3. Big Swede

    Was this a prejudiced Judge? You decide, I’m thinking that if the voters of CA had voted for gay marriage and some Christian judge overturned it there’d be lots of howling.


    • Why does the government need to care about consensual anything that goes on in anyone’s bedroom, Big Swede?

      Straight up question. I want to understand why you think I (or anyone) should give a care.

      • Big Swede

        Prop 8 was about the will and intention of the CA electorate. I doubt if the voters cared about what goes on in some ones bedroom. But they did care about the historical definition of the term.

        But what bothers me more is the fact that a few unelected unaccountable people get to decide what best for us.

        On the lighter side could you call this a win for the “teabaggers”?

        • Ryan Morton

          bush appointed the judge.

          oh, and calling the judge gay as a reason to defeat the point that there’s no “rational basis” for the ban is lame.


          shortest lesson in US constitutional government: legislature/electorate make laws; executive carries out the laws; judicial interprets the laws. it’s all put together to provide checks and balances to prevent tyranny of the strong and the masses. i don’t know, though, 6y

          • Ryan Morton

            sorry. bad typing in the dark…

            6th grade civics was a long time ago for me.

            • Big Swede

              That interpretation thing at the 9th has a terrible track record.

              80% overturn rate.

              10th grade political science.

              • JC

                For a 10th grader you’re playing loose and free with the facts. Why don’t you let us in on your source?

              • Big Swede

                Media Matters, teacher rounded up 3 to 4%.

                During the 2003-2004 term, the Supreme Court reversed 76 percent of the cases that it chose to hear from appeals of 9th Circuit decisions, compared to a 77-percent average reversal rate for all circuit courts nationally. During the 2002-2003 term, the court’s reversal rate was 75 percent, compared to a 73-percent average reversal rate nationally; and during the 2001-2002 term, the 9th Circuit’s 76-percent reversal rate was roughly the same as the national average of 75 percent. In previous years, the 9th Circuit Court’s reversal rate had exceeded the national average, most notably during the 1996-1997 term, when the court’s 95-percent reversal rate far exceeded the national average of 71 percent and “earned the Western circuit [the 9th Circuit] its reputation as the nation’s ‘most reversed,’ ” according to a July 3, 2004, Sacramento Bee article.

              • Big Swede

                And using the 96/97 averages to date I’m not so sure you wouldn’t get to 80%.

              • JC

                Looks like outside of that one session in the 90’s, the 9th hasn’t fared any differently than the other Courts.

                You just dissing on the District and Circuit Courts in general? Sounds like it.

        • mr benson

          Jim Crow laws were the “will and intention of the electorate”. Anti miscegenation laws were the “will and intention of the electorate”. They were wrong.

          The will and intention of the electorate is the danger best checked by the rule of law, enforced by the courts.

          • Big Swede

            I’d be with ya if we were forcing all gays to the back of the bus.

            • JC

              Nobody’s laughing with you on this one, BS. Your true colors are shining through loud and clear.

              And Mr. Benson, you’re right on the money here!

              • mr benson

                JC, my political philosophy is a coherent whole, emphasizing reason and individual rights and responsibilities, and rejecting the tyranny of the collective. That will occasionally put us in agreement when the individual right being threatened is one with which you agree.

                I see this much like the overturning of Virginia’s miscegenation laws decades ago. That was supposedly based on “biblical law”, and supported uncritically by those who could not step outside of their prejudices and superstitions and view law and government from the standpoint of protection of individual rights, the reason “governments are instituted among men”.

        • See Mr. Benson, above.

          I don’t know how you could say that you “doubt if the voters cared”. If they didn’t why even propose the proposition? Marriage is marriage – they wanted to define it between a man and a woman….so again, why care about consensual anything that goes on in a someone’s bedroom?

    • JC

      You think that voters should be able to decide constitutional issues? Wow! I think any rational judge would arrive at the same decision that Walker did. Guess we’ll find out as it works its way up the ladder.

      • Lots of people on both sides – at state and federal – tend to forget about that pesky document, that damned Constitution.

        Funny thing is, it’s what makes government. The nation or the state. Without it, we’re nothing but a bunch of Machiavellian caveman playing Welcome to the Thunderdome.

    • Ryan Morton

      um… i can hear the howling from prop 8 supporters all the way in helena now. what’s your point?

  4. JC

    “But what bothers me more is the fact that a few unelected unaccountable people get to decide what best for us.”

    And thus was the role of the judiciary in the balance of powers thrown out the window for a tyranny of the majority.

    Too bad you didn’t feel this way about Bush v. Gore.

    Oh, and speaking about Bush v. Gore, did you happen to know that the prevailing lawyers in this case were none other than Ted Olsen and David Boies working together? And proclaiming that this case is above politics, left and right, liberal or conservative.

    One would get the impression from your words, BS, that you do not believe in the 14th Amendment.

    • Lizard

      ha! five stars.

    • Big Swede

      Bush v. Gore was the will of the people.

      I’ll address the 14th separately.

      • JC

        Bush v. Gore was the will of nine people, with a vote of 5-4 deciding the presidency of the U.S.

        How quickly you forget and revisionism sets in. As a refresher, BS, the Court substituted its judgement for that of voters by disallowing Florida to proceed with a recount to determine the true will of voters.

  5. Big Swede

    Just reread the Constitution, nothing regarding marriage. In its absence we defer to the 10th amendment which says powers not reserved to the federal government go to the states and the people.

    People spoke, judge didn’t listen.

    • JC

      Sure, states have the powers to set marriage laws, but those laws have to be consistent with the 14th amendment. Prop 8 wasn’t,as Judge Walker ruled.

      I’d suggest you read Walker’s Decision, then reread the Constitution and report back to us..

    • klemz

      BS, forget about the 10th amendment – it’s virtually meaningless since Garcia v. SAMTA. Congress would certainly have power to bar the states from discriminating against same sex couples under the ICC. That’s not even the point here.

      So the fact that the constitution doesn’t mention marriage is the reason you think it’s not unconstitutional to discriminate against gays? That’s asinine. A law just has to violate the Equal Protection Clause to fail to pass constitutional muster.

      How that happens depends on who is being discriminated against (different levels of scrutiny apply to, for example, laws discriminating against women vs. blacks) and what the purported reason is for the discriminatory law. It still hasn’t been decided where sexual orientation belongs, but let’s assume it falls into the intermediate category. California must still show that the marriage ban is substantially related to an important state interest. So what legitimate state interest – besides placating religious groups – does this law advance? All the old arguments have been disproven backwards and forwards by now.

      You’re right that the Supreme Court might reverse the Ninth after that court probably affirms. But in order to do that they’ll have to conjure some legitimate state interest for California, or they’ll have to say that gays deserve no EP Clause protection at all (rational basis scrutiny, which is the legal equivalent of aspertame).

      Should be interesting.

  6. Ryan Morton

    Has anyone found any local news coverage on this topic? I perused the IR and Missoulian websites and found nothing. I’m a little disappointed.

    • klemz

      What would they cover that would be more informative than running an AP wire? Sandra and Bob on the street reacting to change in California law? That’s quite a contribution.

      • JC

        Let’s see. They could cover the recent Montana lawsuit against Montana’s gay marriage ban. And how the ruling might affect that. After all, we are in the 9th circuit, and Judge Walker’s ruling does set some precedence here.

      • Ryan Morton

        well, klemz – sounds like you’re a typical democrat who could give a crap about lgbtiq equality when push comes to shove. thanks for trying to make me feel stupid for caring about this issue. real classy.

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