TOWLEROAD READERS - give us your reactions:
Send your reaction photos to us, to be featured at post@tlrd.com. Send your reaction videos to us, to be featured at video@tlrd.com.
Ari is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.
But what is the immediate result of this ruling? Judge Walker concluded his Order by stating that "California is able to issues marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result." And, I just checked. My sister's heterosexual marriage has not been destroyed either.
That said, it is highly unlikely that any same-sex marriages will be conducted tomorrow. As posted here earlier, Proposition 8 supporters have already filed a pre-emptive motion to stay Judge Walker's order pending their appeal to the Ninth Circuit Court of Appeals.
This should not dampen our elation. This decision is momentous and a giant step forward toward legal recognition of our equal rights.
THERE WILL BE UPDATES TO THIS POST...REFRESH THIS POST FOR FURTHER ANALYSIS AS I CONTINUE TO GO THROUGH THE RULING...
UPDATE: The Devil is in the Details
Judge Walker's decision runs 138 pages. It is well-reasoned, exhaustively cited and drafted with one eye on its Main Street ramifications and another eye on the judges of the Ninth Circuit Court of Appeals. In other words, this Order establishes a comprehensive factual record for review. And that, as any appellate lawyer knows, is going to be the source of our salvation or the harbinger of our defeat.
When the decision of a trial judge like Judge Walker goes up on appeal, his legal conclusions are reviewed by the appellate court de novo, or "from the beginning." That means that Judge Walker can conclude that Prop 8 violated the Equal Protection clause and the Due Process clause for this or that reason, but appellate judges are not bound by his conclusions. However, Judge Walker's factual findings -- such as the effect of same-sex marriage in Massachusetts or statistics on thriving children of same-sex couples -- must be accepted by the appellate court unless they are "clearly erroneous." A clearly erroneous finding of fact is looking up at the sky, seeing it is blue and having a weatherman tell you it's blue, but concluding that the sky is, indeed, red. We do this because it was Judge Walker who heard the evidence and evaluated the trustworthiness of the witnesses with his own two eyes.
Judge Walker's factual findings are breathtaking, if only for their sheer depth. From page 54 to 109, Judge Walker lays out his findings, eviscerates the testimony of anti-marriage equality experts and emphasizes the long list of statements where Prop 8 opponents conceded their factual case. In my years as an appellate litigator, I have never seen a factual record as detailed and well-documented as this. My compliments to Judge Walker and his clerks.
Let me highlight a few striking points here:
1. This case is about civil marriage. Religious belief has no place here.
Right off the bat, Judge Walker found that "[m]arriage in the United States has always been a civil matter" (p. 60, para. 19). The pen is indeed mightier than the sword. We watched with dismay, anger and frustration as Prop 8 supporters screamed that marriage equality laws would forces churches and synagogues to consecrate relationships contrary to their liturgy. In one line, Judge Walker does away with this nonsense. What we are dealing with here, he states, is civil marriage. After all, it is the "[c]ivil authorities [who] may permit religious leaders to solemnize marriages but not to determine who may enter to leave a civil marriage." (p. 60, para 19). The supremacy of civil marriage takes this conversation out of the church and onto the town square.
2. Marriage is a state of commitment, not a construct in which to have children.
Just as important is Judge Walker's findings about the nature of marriage. "Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents" (p. 67, para. 34). Absent from this definition, based on extensive citations to evidence offered at trial, is marriage based on procreation or gender-specific roles. A marriage is a partnership based on deeply held emotional love and, as an institution, channels benefits to the married couple, their dependents and society at large. What's more, each of those benefits -- facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors -- exists irrespective of the gender and sexual orientation of the married couple (pp 67-71).
3. Same-sex couples are just like opposite-sex couples.
The entree to these appetizers came later. Judge Walker found that "[s]ame-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 to do not differ depending on whether a couple is same-sex or opposite-sex" (p. 77, para. 48).
And on the seventh day, he rested.
Seriously, though, this profound description of equality is at the heart of the marriage equality movement. Judge Walker cites Prop 8 supporters' admissions at trial that gay partnerships are loving and commitment and that the capacity to commit and love "does not depend on the individual's sexual orientation" (p. 77, para. 48(d)). We are all the same and we all deserve to be treated as such.
4. Domestic partnerships insufficiently recognize those relationships.
Since marriage is not merely an economic union, or a procreative one, for that matter, domestic partnerships that assign certain economic benefits of marriage to nonmarried cohabitants is a separate, unequal and insufficient substitute. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States" (p. 80, para. 52).
Judge Walker recognizes that we do not want to marry the loves of our lives for the joint tax return or the prospect of doubling our wardrobes. That might be part of it, but it's not the whole story. Citing expert testimony about the cultural importance tied to marriage, Judge Walker finds that marriage is greater than the sum of the economic rights associated with it. And, since same-sex couples are no different in their love and commitment than opposite-sex couples, there seems to be no reason to exclude them from this institution.
In the end, it is hard to accept these facts and not conclude as Judge Walker did. Nothing here is clearly erroneous and any appellate court will be hard-pressed to upset any of these factual findings.
UPDATE: The Law Likes Equality
The United States Constitution has an annoying habit of defaulting to equality. There are times when unequal treatment is legitimate; we don't allow 14-year-olds to vote, for example. But, for the most part, the Fourteenth Amendment sets the foundation for treating each other the same, regardless of race, religion or gender. Now, with all cautious optimism aside, Judge Walker's decision allows us to add sexual orientation to that list.
Judge Walker's legal conclusions are simple. Proposition 8 violates the Equal Protection clause and the Due Process clause because in denying a homosexual's right to marry a person of the same sex as he or she sees fit, Prop 8 classifies and discriminates against a particular class of people for no legitimate reason. It's a little more complicated than that, so let's go through it step by step.
Due Process. As previewed earlier, Judge Walker was faced with the notion that the freedom to marry has previously been considered a fundamental right and abridgments of fundamental rights must pass strict scrutiny to pass constitutional muster. But, the issue is not whether the right to marry is fundamental -- no one disputes that (p. 110); rather, the question is whether same-sex couples are seeking to exercise that right to marry or are they trying to establish a new right. Prop 8 proponents argued that the right to marry someone of your same sex is a new right and, thus, not fundamental. Judge Walker disagreed. The only factor distinguishing same-sex and opposite-sex couples is the natural ability to procreate, but "[n]ever has the state inquired into procreative capacity or intent before issuing a marriage license" (p. 111). Instead, what has remained constant about marriage is not the parties to a marriage -- it was not long ago that blacks and whites could not marry each other -- but that two individuals freely commit to one another. The true shibboleth of marriage, then, is love and commitment, not procreation. As such, this is a fundamental right.
So, the plaintiffs simply want California to recognize their fundamental right to marry whomever they choose. That itself does not mean Prop 8 is unconstitutional. Laws can interfere with fundamental rights and not run afoul of the Due Process clause as long as they pass strict scrutiny, that high hurdle that, in legal lingo, requires the law to be "narrowly tailored to a compelling government interest." In other words, the law has to be specific, engulf as few people as absolutely necessary in order to do something the government really must do.
Prop 8 comes nowhere close to that standard. Once again, the facts offered into evidence at trial play an important role. Unfortunately for Prop 8 proponents, they offered no facts. When Judge Walker asked for their evidence, Prop 8 proponents declined to prove the compelling need, relying instead on "the nature of traditional marriage." On that "minimal evidentiary presentation," Prop 8 could not pass strict scrutiny.
One down.
Equal Protection. Judge Walker held that even under the much lower rational basis test, Prop 8 does not pass muster. He was thorough enough, however, to include a strict scrutiny analysis just for good measure.
Under rational basis review, a law can discriminate as long as it does not target a specific suspect class or impairs a fundamental right and is "rationally related to some legitimate government interest." That sounds complicated, but it's really pretty easy to jump that hurdle. Most laws will make it because there are plenty of rational reasons to do things. But a reviewing court cannot rubber stamp a law simply because someone says their justification is rational. Not every justification is rational. In particular, discriminating against a particular group of people simply because you don't like that group is neither rational nor related to a legitimate government motive.
The trial evidence, however, suggests that gay people are a suspect class because they have "experience[d]iscrimination based on unfair stereotypes and prejudices specific to sexual orientation." They have "historically been targeted for discrimination because of their sexual orientation" and that discrimination is ongoing. And Prop 8 falls into that category. Proponents argued that it couldn't discriminate against gay people because Prop 8 never mentioned the word gay. That's being too cute by half. By defining marriage in terms of opposite sex, those who would choose to marry someone of the same sex -- only homosexuals fit that category -- have had their rights taken away.
But that is what lawyers call "dicta", or, conclusions of law in an opinion that do not bear directly on the ultimate decision. Judge Walker included it for a reason, though. By saying that Prop 8 merits strict scrutiny because it targets a class of people that should be considered a suspect classification, Judge Walker is setting the stage for arguments on appeal and emphasizing how ill-conceived and irrational Prop 8 really is. It's like losing two baseball games 1-0 and 20-0. You still lost both, but in the second game, you embarrassed yourself.
Under a rational basis review, Prop 8 could not even advance a single rational government interest. Whatever marriage might have been "traditionally," tradition alone cannot be a rational basis. Judge Walker cited precedent for that. He also found that the "tradition" of restricting marriage to opposite sex couples does, in fact, harm the state's interest in equality, stable households, property distribution and caregiving, to name just a few. Nor is it rational to uphold Prop 8 because same-sex marriage would amount to sweeping social upheaval. There was no evidence for that. Massachusetts and Connecticut, after all, have not fallen into the Atlantic Ocean. And, banning same-sex marriage does not nothing for the state's interest in encouraging sex within marriage. If anything, by prohibiting certain couples from marrying, Prop 8 encourages extra-marital sex. Nor can moral objection to same-sex relationships or same-sex conduct justify discrimination. Pure animus is irrational and certainly not a legitimate state interest.
UPDATE: What Now? And What Does It All Mean?
Logistics
You might be wondering how Judge Walker's well-reasoned and thorough opinion might impact our world tomorrow. In a word, it won't. While the Order allowed California to start issuing marriage licenses to same-sex couples, the relief has been stayed pending appeal to the Ninth Circuit.
The parties will prepare their briefs in the coming months and deliver oral argument before a 3-judge panel on the Circuit. Due to the high profile nature of the case, any decision by the panel will likely result in "en banc consdieration" by the entire Ninth Circuit. That means that after one round of appellate hearings before three judges, another round in front of every Ninth Circuit judge will likely take place. Then the case may be fast-tracked to the Supreme Court.
That is, unless the issue becomes moot. How? Marriage equality supporters are already gearing up for a push to overturn Prop 8 on the 2012 ballot. If current polling is accurate in suggesting that a majority of Californians now support marriage equality, a pro-equality victory at the ballot box before the Supreme Court takes the case may obviate the need for a Supreme Court hearing.
Some Substantive Questions
This decision is momentous. Do not forget that. Never before as a federal court declared that the gay community warrants special protection and never before has a federal court declared so clearly that marriage discrimination is so irrational.
But there is a legal mine field awaiting marriage equality lawyers going forward. For one thing, the Supreme Court, as currently constituted, is a conservative institution and among the most conservative Supreme Courts in our history. It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees.
More specifically, strict scrutiny is a tough sell. Supreme Courts since the 1970s have moved away from strict scrutiny jurisprudence with some zeal even to the point of contorting themselves into pretzels to create a new type of standard of review -- so-called "intermediate scrutiny" -- for gender classifications simply because the Court could not muster a majority for expanding the list of Warren Court era "suspect classifications." Whether the Court will be willing to do today what it would not do decades ago is an open question.
Therein lies the genius of Judge Walker's opinion. He touches on strict scrutiny but doesn't need it. His strategy may prove to be our saving grace in the end.
Chad Griffin, Board President of the American Foundation for Equal Rights, representing the plaintiffs in the Prop 8 lawsuit, speaks about the victory at a press conference following the release of the ruling declaring Proposition 8 unconstitutional.
“This is a travesty of justice. The majority of Californians — and two-thirds of black voters in California -- have just had their core civil right to vote for marriage stripped from them by an openly gay federal judge who has misread history and the Constitution to impose his San Francisco views on the American people. The implicit comparison Judge Walker made between racism and marriage is particularly offensive to me and to all of us who remember the reality of Jim Crow. It is not bigotry, it is biology that discriminates between same-sex couples and opposite-sex couples. To make a marriage requires a husband and a wife, because these unions are necessary to make new life and connect children to their mother and father. Judge Walker’s slur will not stand the test of time and history, we demand that Congress and the Supreme Court act to protect all Americans’ right to vote for marriage.”
NEWT GINGRICH, married three times:
"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."
REP. JERROLD NADLER (D-NY):
"Today’s court ruling on Proposition 8 is a powerful declaration for those of us who believe in equal protection for all Americans. This affirmation of marriage equality in our nation’s most populous state shows, once again, that laws preventing same-sex couples from marrying serve no legitimate purpose, and that efforts to deprive gay men and lesbians of fundamental rights and to single them out for discrimination are anathema to our constitutional system. As Judge Walker recognized, like opposite-sex couples, ‘same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Love [does] not differ depending on whether a couple is same-sex or opposite-sex.’ I join Californians in celebrating this victory, and urge passage of my legislation, the Respect for Marriage Act, in order to provide all legally married Americans and their families the full measure of protections and obligations of federal law."
EVAN WOLFSON, Freedom to Marry:
"Today's federal ruling strikes down a cruel and unfair constitutional amendment that should never have become law and affirms that the freedom to marry belongs to every American. As the first court to strike down race restrictions on marriage said in 1948, 'the essence of the right to marry is freedom to join in marriage with the person of one's choice.' There is no gay exception in the Constitution to personal choice and the right to marry, and there is no good reason to continue excluding same-sex couples from marriage.
Judge Walker's decision will be appealed and litigation will continue, but what we witnessed in the clear light of his courtroom cannot be erased."
CONCERNED WOMEN FOR AMERICA, anti-gay group:
"Judge Walker’s decision goes far beyond homosexual ‘marriage’ to strike at the heart of our representative democracy. Judge Walker has declared, in effect, that his opinion is supreme and ‘We the People’ are no longer free to govern ourselves. The ruling should be appealed and overturned immediately. Marriage is not a political toy. It is too important to treat as a means for already powerful people to gain preferred status or acceptance. Marriage between one man and one woman undergirds a stable society and cannot be replaced by any other living arrangement. Citizens of California voted to uphold marriage because they understood the sacred nature of marriage and that homosexual activists use same-sex ‘marriage’ as a political juggernaut to indoctrinate young children in schools to reject their parent’s values and to harass, sue and punish people who disagree. CWA stands in prayer for our nation as we continue to defend marriage as the holy union God created between one man and one woman.”
JOHN PODESTA, Center for American Progress:
"Judge Walker’s decision reaffirms the Constitution’s command that all Americans must receive ‘equal protection of the laws.’ Prop 8 is incompatible with our Constitution and a long line of precedent rejecting laws that single out a certain class of Americans for disfavored legal status. Today’s decision does nothing more than restore the Constitution’s promise to millions of American couples. Because Constitutional precedent so clearly rejects Prop 8, I have every confidence that this decision will be upheld on appeal."
FOCUS ON THE FAMILY, anti-gay group:
"Judge Walker’s ruling raises a shocking notion that a single federal judge can nullify the votes of more than 7 million California voters, binding Supreme Court precedent, and several millennia-worth of evidence that children need both a mom and a dad. “During these legal proceedings, the millions of California residents who supported Prop 8 have been wrongfully accused of being bigots and haters. Nothing could be further from the truth. Rather, they are concerned citizens, moms and dads who simply wanted to restore to California the long-standing understanding that marriage is between one woman and one man – a common-sense position that was taken away by the actions of another out-of-control state court in May 2008. “Fortunately for them, who make up the majority of Californians, this disturbing decision is not the last word."
RICK JACOBS, Courage Campaign:
"This ruling is an historic milestone for millions of loving families, for all who have fought to realize the dream of equality under the law, and for our nation as a whole. While today concludes the first step in a legal process that could take up to two years, Judge Walker's ruling is a landmark victory in America's centuries long war against discrimination, and the result of months of extraordinary work by the American Foundation for Equal Rights, Attorneys David Boies and Ted Olson, and courageous plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo."
FAMILY RESEARCH COUNCIL, anti-gay group:
"This lawsuit, should it be upheld on appeal and in the Supreme Court, would become the 'Roe v. Wade' of same-sex 'marriage,' overturning the marriage laws of 45 states. As with abortion, the Supreme Court's involvement would only make the issue more volatile. It's time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box. "Marriage is recognized as a public institution, rather than a purely private one, because of its role in bringing together men and women for the reproduction of the human race and keeping them together to raise the children produced by their union. The fact that homosexuals prefer not to enter into marriages as historically defined does not give them a right to change the definition of what a 'marriage' is."
CHARLENE STRONG, Activist:
"Today’s ruling is very good news. LGBT rights are not special rights. These are human rights. Anyone who says otherwise, that all citizens are not entitled full equality in our country is speaking from their own personal bias and nothing more. This has nothing to do with sexuality and everything to do with who you love.... I am an American and I am proud of that. I am not fighting for my rights alone -- I am standing up and fighting for every gay and lesbian couple who pay their taxes, contribute to society and who want the same protections every other American is afforded if and when they choose to marry."
The WHITE HOUSE, for BARACK OBAMA, President of the United States:
"The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans."
BRIAN BROWN, National Organization for Marriage (NOM), anti-gay group:
"Big surprise! We expected nothing different from Judge Vaughn Walker, after the biased way he conducted this trial. With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman. This ruling, if allowed to stand, threatens not only Prop 8 in California but the laws in 45 other states that define marriage as one man and one woman. 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!"
MAGGIE GALLAGHER, former President (NOM):
"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."
ROSS LEVI, Executive Director Empire State Pride Agenda:
"We are emboldened by the recent victory on marriage equality in California and in the federal justice system. Proposition 8 was a cruel and unconstitutional attack on LGBT families, and we are very pleased that the court has understood the need for all loving, committed couples to have the protections they need to care for each other and their children.
But we know that this struggle is far closer to home. Our movement is not only about lawyers in a far away courtroom; it’s about everyday New Yorkers who support the freedom to marry and are willing to fight until we achieve it. The victory in California provides continued momentum here in New York that will allow the Pride Agenda and our community to continue pushing equality and justice on all fronts and with every tool at our disposal. That includes an intense focus on the upcoming 2010 New York elections that will determine for the next few years how quickly we can accomplish progress in the New York State government on issues like marriage equality and basic nondiscrimination protections for transgender people. The LGBT community and our allies will be making our voices heard loudly through this election season."
DAVID PATERSON, Governor of New York:
"I was pleased and gratified to learn today of Chief Judge Vaughn Walker's ruling on California's Proposition 8 in Perry v. Schwarzenegger. This ruling affirms that the denial of the right to marry a partner of one's choosing, whether of the same or a different sex, is a violation of the Equal Protection Clause and the Due Process Clause of the United States Constitution. I congratulate attorneys David Boies and Theodore Olson for their courage in taking on this case, and their diligence in seeing it through. I know that there is a long road ahead in the legal proceedings, but whatever the outcome I believe that the bedrock American principle of equal protection under the law must mean equal rights for gay and lesbians, and that such equal rights must include the fundamental right to marry. Today's decision is one important step in a long struggle, and that struggle must continue until equality is achieved. Whether it be through the courts or via the political process, I know in my heart that those rights will one day be vindicated, in New York State and throughout our nation."
MICHAEL KEEGAN, President of People For the American Way:
“This is a historic day for California, and for our country. Proposition 8 took away the freedom of committed couples to make what is one of the most important decisions in any person’s life—to make a lifelong promise of caring, responsibility, love, and protection for another individual. Now, like the thousands of other California couples who have been barred from marrying who they choose, Kris Perry and Sandy Stier can have security of knowing they can receive legal protections for their family, visit each other’s hospital rooms when they are ill, and provide for each other in old age. They now have the freedom to make that lifelong commitment to each other. This decision is an important step in the right direction, but there’s a lot of work left to do. We will continue to work toward making America a place where all couples can enjoy the freedom and security of marriage.”
MICHAEL MITCHELL, Executive Director Stonewall Democrats:
“Religion-based bigotry should never outweigh constitutionally-based guarantees of equal protection, especially when thousands of California families are at risk. Judge Walker unequivocally affirmed that the freedom to marry is a fundamental right protected under the Constitution and that it includes lesbian and gay couples. It’s a great day for same-sex couples, and it’s a great day for all Americans who value equality under the law. As the case inevitably finds its way to the US Supreme Court, I am reminded of the 2000 campaign when it was commonly held that the two candidates, Al Gore and George W. Bush, were virtually indistinguishable. Imagine what a different world we’d be living in if this case were going to ultimately land in the laps of a Court that was headed by a Gore appointee instead of Chief Justice John Roberts. Elections matter, whether it’s the razor thin elections that resulted in two terms for George W. Bush, the election that gave us the spiteful Prop. 8, or the one this November that could hand over Congress to Republican control. Republicans will certainly turn back every gain that LGBT Americans have seen under the Obama Administration.”
ARNOLD SCHWARZENEGGER, Governor of California:
"Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision. For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity. Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people."
CAROLYN JENISON: Executive Director, One Iowa:
"Today’s decision is a victory for all Americans who believe in fundamental fairness. This is the first step toward remedying the pain done by California’s Proposition 8 and recognizing gay and lesbian couples who simply want to marry the person they love. As we celebrate with Californians, we recognize the work is far from over. In order to make equality a reality for all Americans, we must continue to have conversations with our friends and families about the importance of marriage for same-sex couples."
CYNDI LAUPER:
"Gay and lesbian couples have long struggled for acceptance and the ability to marry the person they love and want to build a family with. Today's landmark ruling declaring Proposition 8 unconstitutional is a testament to the fundamentals on which this great country was built and validates that the discrimination gay couples face must come to an end. We as a society should be embracing these couples and helping them make the lifelong commitment to each other that many of us straight people take for granted each and every day. This decision is a major step in the right direction towards equality.
On behalf of the True Colors Fund and the Give a Damn Campaign, I want to commend and thank Chad Griffin and the American Foundation for Equal Rights, the legal team headed by Ted Olson and David Boies, and the plaintiffs in the case, Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo, for their leadership and courage in standing up for equality and fairness."
JUDY SHEPARD: mother of Matthew Shepard:
“These plaintiffs are law-abiding, family-oriented, tax-paying citizens whose privacy was invaded, and whose dignity was affronted, by a misguided and unconstitutional law. Their victory at trial shows that our courts still play a vital role in safeguarding the rights of minorities from majorities who misunderstand them. But more importantly, it proves the power of personal stories. Equal marriage rights are ultimately about people’s families, and during the trial, their personal need for legal recognition of their relationships came through loud and clear. After Matt came out to me, he once asked me if I thought gay couples would ever be allowed to get married. I told him I didn’t think it would happen in my lifetime, but it probably would in his. It’s so sad, and ironic, that it turned out the other way. But this case warms my heart, to think that his dream is still coming true.”
REP. TAMMY BALDWIN (D-WI):
“We live in a democracy wherein majority rule is checked and balanced by the guarantee of inalienable minority rights. This case, as it wends its way up to the U.S. Supreme Court, presents jurists with fundamental questions about minority rights and majority rule. I believe Judge Walker got it right, declaring that denial of marriage rights and protections to gay and lesbian citizens violates the Constitution even if it reflects the will of the majority of Californians;”
REA CAREY, Executive Director, National Gay and Lesbian Task Force:
“This ruling marks a victory for loving, committed couples who want nothing more than the same rights and security as other families. From the start, this has been about basic fairness. Today we celebrate the affirmation of this fundamental principle; tomorrow, we are back out there sharing our personal stories and having conversations with Californians and people all across the country about why this matters and who we are. The tide is turning nationwide in favor of marriage equality, but our work is far from over. Today’s ruling is just a beginning step in what will likely be a long process, yet we are confident that fairness will prevail. Our conversations are breaking down barriers and helping to transform our country.”
KATHLEEN RICE, New York Attorney General Candidate:
“Nothing is more fundamentally American than equal treatment under the law, and Judge Walker’s decision today recognizes that equality should not be subject to popular referendum. As a longtime advocate for marriage equality, I am hopeful that this discriminatory and wrongheaded attack on the civil rights of LGBT people in California will no longer stand in the way of full civil marriage equality. Even without Prop. 8, the federal Defense of Marriage Act continues to deny states the ability to offer married same-sex couples the full rights and responsibilities of civil marriage. That’s wrong, and as the first attorney general candidate in New York to commit to suing the federal government over DOMA, I will continue to partner with marriage advocates across the state to bring true equality to all LGBT New Yorkers.”
THOMAS DINAPOLI, New York State Comptroller:
“California’s Federal District Court made the right decision this afternoon by declaring Proposition 8 unconstitutional. The ban on gay marriage was unfair and amounted to legalized discrimination. Same-sex couples everywhere should be afforded the same opportunity to form meaningful and lasting unions as everyone else. In September, 2007, I directed the New York State and Local Retirement System to recognize same-sex marriages wherever they are performed. This policy guarantees that all surviving spouses have access to certain retirement benefits, including accidental death benefits awarded in certain situations and a cost-of-living adjustment to monthly pension payments.”
In a 136-page ruling, Judge Vaughn Walker has declared Proposition 8, the measure banning same-sex marriage in California, unconstitutional under both the due-process and equal-protection clauses.
Says the ruling'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 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."
And its remedies:
"Plaintiffs have demonstrated by overwhelming evidence
that Proposition 8 violates their due process and equal protection
rights and that they will continue to suffer these constitutional
violations until state officials cease enforcement of Proposition
8. California is able to issue marriage licenses to same-sex
couples, as it has already issued 18,000 marriage licenses to same-
sex couples and has not suffered any demonstrated harm as a result,
see FF 64-66; moreover, California officials have chosen not to
defend Proposition 8 in these proceedings."
“Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”
Read the ruling below. We'll have further analysis soon...
The Proposition 8 defense team filed papers late last night suggesting they expect the decision won't go their way:
"In court papers filed Tuesday night, lawyers for the Proposition 8 defense team asked Chief U.S. District Judge Vaughn Walker for a stay of his ruling if the outcome is to declare the law unconstitutional. The motion indicates that the Proposition 8 lawyers will immediately ask the 9th U.S. Circuit Court of Appeals to review the ruling if Walker rules against them.
'A stay is essential to averting the harms that would flow from another purported window of same-sex marriage in California,' they wrote...Walker has already refused to allow same-sex couples to marry while the legal challenge is pending, finding that it would create too much uncertainty in the state. Legal experts do not believe same-sex marriages will be permitted immediately, even if the judge overturns Proposition 8, because of the lengthy appeals ahead."
Recent Comments