A breakdown of Prop. 8
Published Thursday, 12-Aug-2010 in issue 1181
California’s Proposition 8, the voter-passed constitutional amendment that re-banned same-sex marriage, is severely unconstitutional, U.S. District Judge Vaughn Walker ruled Aug. 4 in a blistering decision that excoriated every argument advanced by pro-Prop 8 forces during the campaign and in court.
Prop 8 violates the equal-protection and due-process guarantees of the U.S. Constitution, Walker found.
There is no “rational basis” for Prop 8’s existence, he determined. It was inserted into the state constitution solely to express “moral disapproval” of gay people, which is not an allowable governmental action, he said.
Pro-Prop 8 campaigners fueled such disapproval by airing nasty TV ads and distributing material that “relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians,” Walker wrote.
Prop 8 has no legitimate reason for having seen the light of day, and California officials should stop enforcing it immediately, he said. He could issue an order to that effect within days.
The ruling — which one gay legal eagle called “a tour de force, a grand slam” — is gripping reading. Here is a lengthy sampling of Walker’s stunning conclusions:
“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”
“The record reflects that marriage is a culturally superior status compared to a domestic partnership. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.”
“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.’”
“(T)he Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. ... The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.”
“Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
“Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest. Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8.”
“(T)he evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8. The contrary evidence proponents presented is not credible. Indeed, proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.”
“Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.”
“The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying.”
“The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.”
“Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. ... The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.”
“In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, 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.”
“The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians.”
“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.”
“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; 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.”
What happens next? Walker is considering whether to put his ruling into immediate effect, which California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have formally asked him to do, or whether to “stay” it for some amount of time while anti-gay forces attempt an appeal to the 9th U.S. Circuit Court of Appeals. However, it is unclear if the supporters of Prop 8 have “standing” to appeal, since they were not the ones actually sued. None of the governmental entities that were sued, which included Brown and Schwarzenegger, agreed to defend Prop 8, so the people who sponsored Prop 8 were allowed to become “defendant-intervenors” to defend it. But that may not fly at the appeals level, which would leave the case finished — and same-sex marriage would again be legal in California. In reality, many possible scenarios could play out over the next few days. Walker could issue a brief stay, or a longer one. He could refuse to issue a stay, but the 9th Circuit could issue one. Or not. It could be determined that the defendant-intervenors do have standing to appeal. Or not. As of this writing, it simply is not known what will happen.
Gay leaders, activists and ordinary folks were downright ecstatic over Walker’s ruling. There were virally organized marches and rallies in more than 45 cities in 12 states the evening of Aug. 4.
“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 James Esseks, director of the ACLU Lesbian, Gay, Bisexual and Transgender Project.
“For our entire lives, our government and the law have treated us as unequal,” said plaintiff Kristin Perry. “This decision to ensure that our constitutional rights are as protected as everyone else’s makes us incredibly proud of our country.”
“Judge Walker ruled that there truly is no substance to the arguments of those who would deny equality to same-sex couples,” said Kate Kendell, executive director of the National Center for Lesbian Rights. “Using the Prop 8 proponents’ own outrageous and inflammatory words, ads and e-mails, the plaintiffs powerfully demonstrated that Prop 8 was a direct product of hostility, fear-mongering and demonization of lesbians and gay men.”
“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,” said Courage Campaign Chairman Rick Jacobs.
“The meticulous assessment of the Prop 8 defenders’ case today makes clear: there’s no there, there,” said Jennifer C. Pizer, National Marriage Project Director at Lambda Legal. “The testimony of leading experts on everything from child development to adult psychology to the public costs of anti-gay discrimination laid bare the misinformation and outright lies that anti-gay groups have been pushing on the public.”
“Judge Walker has preserved our democracy by ruling that a majority cannot deny a minority group of fundamental freedoms,” said Equality California Executive Director Geoff Kors. “This is as much a victory for the soul of our nation as it is for the thousands of same-sex couples and their families who will be directly impacted.”
Kors added: “We are truly indebted to Ted Olson and David Boies and to the American Foundation for Equal Rights. We owe Gov. Schwarzenegger and Attorney General Jerry Brown a great deal of gratitude for their unprecedented decision not to defend this discriminatory measure. ... Equality California will (work) to elect a governor and attorney general this fall who refuse to spend taxpayer dollars to overturn this decision. We are also ready to battle the National Organization for Marriage this fall to keep their toxic agenda out of our state.”
Freedom to Marry’s Evan Wolfson said Walker’s ruling “reflects the growing consensus in courtrooms and legislatures across the country, and around the world, that there is simply no good reason to exclude same-sex couples from marriage.”
Same-sex marriage is legal in Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden, Mexico City, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C.
Shannon Minter, legal director of the National Center for Lesbian Rights, who argued the case before the California Supreme Court that led to the legalization of same-sex marriage in California in 2008, called Walker’s ruling “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,” Minter said. “The court held that laws that discriminate based on sexual orientation must be subject to the highest level of constitutional review (strict scrutiny), but that Prop 8 would fail even the lowest test (rational basis), because it is based solely on moral disapproval of gay people. The court made detailed findings of fact about all of the evidence presented and the credibility of the witnesses. This is without a doubt a game-changing ruling. 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.” l
Assistance: Bill Kelley

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