Judge Vaughn Walker

In an historic, potent, and eloquent decision, U.S. District Court Judge Vaughn Walker ruled Wednesday, August 4, that California’s constitutional amendment banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law. The opinion represents the first major victory for legal challenges against state bans on same-sex marriage in any federal court.

“Race and gender restrictions shaped marriage during eras of race and gender inequality,” wrote Walker, in his 136-page opinion, “but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

“[T]he exclusion [of same-sex couples from marriage] exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” wrote Walker. “That time has passed.”

A few minutes after issuing the decision, Walker also approved a temporary stay of its impact and gave attorneys challenging Proposition 8 until August 6 to submit their reasons for opposing the continuation of the stay until a federal appeals court can weigh in on the case.

The decision in Perry v. Schwarzenegger, which has been much anticipated by both sides of the same-sex marriage debate, says supporters of the November 2008 ballot measure failed to establish any rational reason for prohibiting same-sex couples from having marriage licenses.

Judge Walker, an appointee of Republican President George H.W. Bush, said Proposition 8, because it burdens the fundamental right to marry, must pass the most difficult judicial standard—known as strict scrutiny. But he said the law failed to pass even the simplest standard—that of identifying at least one rational reason for treating a group of people differently.

“Even if California had an interest in preferring opposite-sex parents to same-sex parents,” wrote Walker, “…Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.”

Shannon Minter, legal director for the National Center for Lesbian Rights, called the decision “a tour de force—a grand slam on every count.”

“The court held that Prop 8 violates the fundamental right to marry and discriminates on the basis of both sex and sexual orientation in violation of the equal protection clause.”

“The court,” said Minter, “held that laws that discriminate based on sexual orientation must be subject to the highest level of constitutional review, but that Prop 8 would fail even the lowest test, because it is based solely on moral disapproval of gay people.”

“This is without a doubt a game-changing ruling,” said Minter. “Today’s decision is the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court.”

Longtime lesbian legal activist and law professor Nan Hunter was somewhat more reserved in her reaction.

“It’s a thorough analysis and a comprehensive review of the factual and quasi-factual bases for each side’s arguments in the marriage debates,” said Hunter.

“Is it a watershed, either legally or culturally?” asked Hunter in her blog Hunter of Justice. “Too soon to know.”

Two other lawsuits challenged state bans on same-sex marriage in federal courts but both were dismissed and were not appealed.

Two federal cases challenging part of the federal Defense of Marriage Act (DOMA) won critical district court victories just last month in Boston and both are expected to be appealed to the 1st Circuit U.S. Court of Appeals. Perry and these two cases are expected to eventually reach the U.S. Supreme Court and are on track to arrive at approximately the same time.

There is little doubt that Judge Walker was keenly aware of how important his decision would be, and he seemed to make a concerted effort, during trial, to allow supporters of Proposition 8 to enter whatever evidence they could to defend the law. The State of California declined to defend the law, so the group that campaigned for the initiative—Yes on 8—hired a legal team to do so. But that legal team relied primarily on “legal conclusions and cross-examinations of some of plaintiffs’ witnesses,” noted Walker, “eschewing all but a rather limited factual presentation.”

“At trial,” said Walker, Yes on 8 attorneys, led by conservative Charles Cooper, “presented only one witness, David Blankenhorn, to address the government interest in marriage.” Walker said Blankenhorn’s testimony “provided no credible evidence to support any of the claimed adverse effects” of allowing same-sex couples to obtain marriage licenses.

Walker said, “California has no interest in differentiating between same-sex and opposite-sex unions” and that “domestic partnerships lack the social meaning associated with marriage” and do not provide gays and lesbians with “a status equivalent to marriage….”

The absence of Proposition 8 does not require any religious group to recognize marriage for same-sex couples, but the existence of “Proposition 8 places the force of law behind stigmas against gays and lesbians.” “Proposition 8 singles out gays and lesbians and legitimates their unequal treatment,” said Walker. It “perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.”

Walker agreed that gays and lesbians have “been the victims of a long history of discrimination” and that “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.” Those findings are important to establishing a requirement that Proposition 8 be able to withstand a strict judicial scrutiny.

Walker ruled that Proposition 8 violates both the due process and equal protection clauses of the U.S. Constitution’s 14th amendment. The 14th amendment states, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

When governmental law burdens a fundamental right, such as marriage, said Walker, the law must withstand strict scrutiny. And Proposition 8, he said, could not withstand even the simplest judicial review—rational basis.

“The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household,” wrote Walker. While an “initiative measure adopted by the voters deserves great respect,” said Walker, the voters’ determinations “must find at least some support in evidence.”

“Conjecture, speculation and fears are not enough,” wrote Walker. “Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.” The evidence presented at trial, he said, “demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval.”

The U.S. Supreme Court, in Romer v. Evans, ruled in 1996 that animus against any particular group could not be used to justify a law that disadvantages that group.

Yes on 8 attorneys, apparently anticipating a loss at the district court level, filed a motion with Judge Walker on Tuesday night, asking that, if the court rules against them, to issue a stay of the impact of his decision pending their expected appeal to the 9th Circuit U.S. Court of Appeals. Attorneys for the two gay couples challenging Proposition 8—Kristin Perry and Sandra Stier and Paul Katami and Jeff Zarrillo—submitted a letter, prior to release of the decision, saying the request was premature.

Judge Walker, in approving a stay of the impact of his decision, gave plaintiffs’ attorneys until August 6 to file their formal response to the request for a stay, pending a decision from the 9th Circuit. He did not schedule an in-court proceeding to hear arguments concerning the stay but simply said that the temporary stay would remain in effect until he rules on the request.

Meanwhile, pre-planned rallies to celebrate—or protest—Wednesday’s ruling were scheduled to take place in major cities across the country Wednesday evening, even before the decision was released. Rallies were planned in a number of major cities around the country following release of the decision –including Atlanta, Boston, Dallas, West Hollywood, and San Diego.

The Perry decision comes less than two months after Walker heard closing arguments in the case, but six months after the close of testimony in a three-week-long trial in the U.S. District Court of Northern California in San Francisco.

The legal team challenging Proposition 8 was led by two of the country’s most prominent and respected attorneys—conservative Ted Olson and liberal David Boies. The challenge was organized and funded by the newly formed Americans Foundation for Equal Rights, headed by Democratic activist Chad Griffin.

Griffin organized the challenge shortly after California voters, in November 2008, approved Proposition 8, amending the state constitution to bar recognition of same-sex marriage. The California Supreme Court had ruled, only six months earlier, that the state constitution required same-sex couples be treated the same as heterosexual couples in state marriage licensing. More than 18,000 same-sex couples obtained marriage licenses before Proposition 8 became law and those marriages are considered valid. Opponents of the new amendment challenged it in state court but the California Supreme Court ruled that the measure was valid. It also ruled that the 18,000 marriage licenses would also remain valid.

The case drew widespread national attention, not only because of the high profile legal team and the irony of such a conservative icon as Olson leading the case, but also because national gay legal and political groups were initially hostile to the effort. The groups said they felt a lawsuit taking the issue of same-sex marriage to the U.S. Supreme Court was too risky, given the likelihood the case would reach the high court at a time when the court is considered to increasingly conservative.

Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, and the ACLU were also denied the right to serve as a party to the case –a development that caused considerable chagrin within the LGBT community. But the groups did contribute to the litigation, providing advice on expert witnesses that delivered a wealth of ammunition against the ballot measure. All three groups filed briefs in support of the plaintiffs. And all three, of course, applauded the result of Wednesday’s decision.

Jenny Pizer, head of Lambda’s National Marriage Project, said Judge Walker’s decision was “historic,” and applauded his “methodical assessment of the evidence presented at trial.” She predicted the decision would have “immense positive implications as the case advances, and in the national struggle for full LGBT equality.”

“The right-wing excuses for denying same-sex couples the right to marry have had an all-too-familiar and ugly ring, echoing the defamatory stereotypes used against us in past decades to deny jobs and other basic rights. Today’s decision,” said Pizer, “examines and explodes each of these lies about us, yielding yet another important legal ruling justly concluding that constitutional guarantees of liberty and equality must require equal treatment under a state’s marriage laws.”

“Judge Walker’s ruling,” said NCLR Executive Director Kate Kendell, “is complete vindication for the most bedrock principles this nation is built on: a majority cannot strip a minority of fundamental rights, we do not permit bare prejudice or even discomfort to provide the basis for sweeping and damaging discrimination, and protecting loving families and couples is the humane and just thing to do. Prop 8 was a major stain on the kind of nation we strive to be, good riddance.”

James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, called the decision “a huge victory for LGBT people of America.”

“For the first time, a federal court has conducted a trial and found that there is absolutely no reason to deny same-sex couples the fairness and dignity of marriage,” said Esseks, in a statement released Wednesday. “At the same time, we know that this is not the end.”

The end, of course, could be an eventual U.S. Supreme Court decision—something that is not necessarily guaranteed. Thousands of cases are petitioned to the high court every year, but the court hears only a tiny fraction. The likelihood the court would take an appeal on this case—once the 9th Circuit appeals court has weighed in—is probably enhanced by the high profile, wide-spread fight over same-sex marriage bans nationally and by the involvement of such a high-profile and well-respected legal team as Olson and Boies. But it may also be diminished, depending on whatever the 9th Circuit says. Ultimately, at least four justices must ask to hear the case before the Supreme Court will take it for review.

Meanwhile, the expected confirmation of Solicitor General Elena Kagan to the Supreme Court is not likely to change the conservative lean of the current court, given that she replaces one of the court’s most liberal justices, John Paul Stevens.