By Bob Kecskemety
The up and down relationship between Proposition 8, California’s ban on same-sex marriage and the 9th Circuit Court of Appeals in San Francisco appears to have come closer to an end with the LGBT community becoming the winner.
In what looks like a major victory for same-sex marriage, last week a federal judge ruled that the voter initiative banning same sex-sex marriage in California violated the state Constitution’s equal protection and due process clauses.
Proposition 8, officially titled “California Marriage Protection Act,” was a ballot proposition and constitutional amendment which was narrowly passed in the November 2008 state elections. The measure added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution, which provides that “only marriage between a man and a woman is valid or recognized in California.”
It has been 5 months since 9th Circuit Court Judge Vaughn Walker presented his 136-page decision in the case of Perry v. Schwarzenegger rejecting Proposition 8 which California voters narrowly passed in November 2008.
Same-sex marriage licenses were granting in California beginning on June 16, 2008 due to a ruling by the state’s Supreme Court and ended on November 5, 2008 due to the passage of Proposition 8. Prior to the passage of Proposition 8, Californian was only the second state to allow same-sex marriage. Marriages granted by any civil entity, foreign or otherwise, anytime before the passage of Proposition 8 remained legally recognized and retained full state-level marriage rights.
On August 4, 2010, Judge Walker declared Proposition 8 unconstitutional in Perry v. Schwarzenegger but temporarily stayed his ruling. On August 6, 2010, both sides submitted legal briefs to Judge Walker arguing for or against a long-term stay of the ruling. On August 12, 2010, Walker had scheduled to lift his stay. On August 16, 2010, the United States Court of Appeals for the 9th Circuit granted the motion to stay, ordered expedited briefing on the merits of the appeal and directed both parties to submit briefs as to why the appeal should not be dismissed for lack of a standing. On August 17, 2010, the 9th Circuit panel ordered expedited briefing on the Imperial County appeal. The 9th Circuit requested that the California Supreme Court rule as to whether Proposition 8 sponsors have a standing to defend it in the courts and the Supreme Court set September 6, 2011 as the date to hear arguments. On November 17, 2011, the California Supreme Court ruled that the sponsors do have the right to defend the initiative, clearing the way for the case to be heard in the Court of Appeals for the 9th Circuit.
What added to the contentiousness of the appeal of Proposition 8 was that Judge Walker himself is a homosexual though he was appointed to the court by President George H. W. Bush in 1989.
While the constitutionality of Proposition 8 was being debated in the courts, California continued to allow domestic partnership which allowed same-sex couples almost all the state-level rights and obligations but did not include federal-level rights of marriage that cannot be granted by the states. These rights included hospital visitation rand health insurance coverage for the dependents of government employees covered by CalPERS, the state retirement system.
Though Proposition 8 has been overturned, this does not mean that gays and lesbians in California can necessarily start getting married anytime in the near future.
Proposition 8 proponents are arguing that Judge Vaughn Walker’s decision should be thrown out because he was, at the time of the hearing, in a long-term relationship with another man and thus could not be impartial on the issue of same-sex marriage.
Though Proposition 8 has been overthrown, there are still some legal hurdles to be overcome before same-sex marriages can resume.
The court is still considering whether the tapes of the testimony given by proponents of Proposition 8 will be released to the public.
However, a final ruling on California’s marriage ban could come at any minute.
At that time, Walker wrote: “ “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.”
The judgment was the first offered by a federal court with respect to laws banning gay marriage at the state level and it promises to have massive reverberations across the political and judicial landscape. The decision is now expected to head to the Ninth Circuit Appeals Court, also based in San Francisco, for appeal, and from there to the Supreme Court. (Gay marriages will not resume immediately in California; the decision has been stayed until August 6 to consider arguments regarding an appeal.)
“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,” said Gov. Arnold Schwarzenegger in a statement.
A White House official emailed reporters, “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.”
“It is not only a home run, it is a grand slam,” said Jon Davidson the legal director at Lambda Legal, the country’s largest and oldest LBGT legal organization. “This decisions is not going to be the end of this fight, the proponents have already said they will appeal.
But I think the factual findings that the judge has made and his clear and detailed analysis will be important to frame the case as it goes up on appeal.”
“This is part of an educational process that is going on in this country. When judges look outside of the political process and they go through the evidence and treat arguments as more than just sound bites they come to the conclusion that withholding marriage from same sex couples hurts them and their families and doesn’t help anyone. That helps move the conversation.”
Wednesday’s decision came after lengthy, substantive, and at times provocative legal deliberations in which an odd-couple pairing of lawyers took on the cause of overturning the same-sex marriage ban. Theodore Olson and David Boies — direct adversaries in the 2000 Supreme Court presidential recount battle — made the case that Prop 8 violated both the equal protection and due process clauses of the constitution. The law, the two argued, was discriminatory on the basis of both sexual orientation and on the basis of sex in addition to violating the principle that marriage was a personal liberty.
“The Supreme Court has said that marriage is the most important relation in life. Now that’s being withheld from the plaintiffs,” Olson said in his closing argument. “Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, spirituality and autonomy.”
Representing the defense, another Washington-based lawyer, Charles Cooper leaned heavily on the social impact of codifying gay marriage, arguing that “marriage is to channel the sexual behavior between men and women into a procreative union.”
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 as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.”
