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Marjorie Cohn: Landmark Ruling Declares Prop 8 Unconstitutional
Sunday, 08 August 2010 18:21
by Marjorie Cohn

In a stunning, carefully crafted 136-page opinion, U.S. District Court Judge Vaughn Walker held in Perry v. Schwarzenegger that California's Proposition 8, which outlaws same-sex marriage, is unconstitutional. The lawsuit was filed by two gay couples who sought to overturn Prop 8. Interestingly, the named defendant, Gov. Arnold Schwarzenegger, did not defend Prop 8. Neither did California's Attorney General Jerry Brown; in fact, he conceded that Prop 8 is unconstitutional. It was the official proponents of the ballot initiative in the California election who defended Prop 8 in the lawsuit.

After making 80 bullet-proof findings of fact, Walker concluded that Prop 8 violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The judge agreed with all of the legal arguments advanced by the plaintiffs. The forces for marriage equality hit a grand slam. It remains to be seen, however, whether Walker's ruling will hold up on appeal.

Walker presided over the first trial in U.S. history that raised the issue of whether same-sex marriage violates the federal Constitution. He heard testimony for two weeks, including that of plaintiffs' myriad experts and the plaintiffs themselves. The anti-marriage equality side presented only two witnesses, who were unable to articulate any rational reason to treat straights and gays differently when it comes to the right to marry. Walker found that the opinions of one of those witnesses, David Blankenhorn, who is founder and president of the Institute for American Values, were "not supported by reliable evidence or methodology . . . and entitled to essentially no weight." Kenneth. Miller, a professor of government at Claremont McKenna College, also testified for the pro-Prop 8 side. The judge noted that Miller's research did not focus on gay and lesbian issues, and the opinions he gave at trial conflicted with his prior opinions, which undermined his credibility.

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When trial judges make factual findings, they are rarely disturbed on appeal; appellate courts usually confine themselves to reviewing legal conclusions. Walker's detailed findings of facts included the following:

--Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage.

--California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.

--Individuals do not generally choose their sexual orientation.

--Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.

--Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

--The sexual orientation of an individual does not determine whether the individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.

Walker determined that "Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation." Same-sex couples, the judge found, are situated identically to opposite-sex couples regarding their ability to perform the rights and obligations of marriage under California law. He rejected the argument that domestic partnerships are a worthy substitute for marriage, which he called "a culturally superior status."

Because the plaintiffs sought to exercise the fundamental right to marry, their claim was subject to strict scrutiny. "The minimal evidentiary presentation made by proponents [of Prop 8]," the judge said, "does not meet the heavy burden of production necessary to show that Proposition is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny." Thus, the judge ruled that Prop 8 violates the Due Process Clause.

Walker then held, "Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause." All classifications based on sexual orientation, he wrote, "appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation." When there is a suspect classification, the court will judge it with strict scrutiny.

But, Walker noted, strict scrutiny is unnecessary here because Prop 8 fails even if the court uses the "rational basis" test, in which case the Prop 8 proponents would only need to show that there was a rational basis for treating homosexuals differently from heterosexuals. This is how the judge shot down each one of the rationales the proponents set forth for denying gays the right to marry:

(1) Reserve marriage as only a union between a man and a woman.
--Judge: Tradition alone cannot form a rational basis for a law.

(2) Proceed with caution when implementing social changes.
--Judge: "Because the evidence showed that 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."

(3) Promote opposite-sex parenting over same-sex parenting.
--Judge: The evidence shows "beyond any doubt that parents' genders are irrelevant to children's developmental outcomes." Prop 8 has nothing to do with children; it simply prevents same-sex couples from marrying.

(4) Protect the freedom of those who oppose marriage for same-sex couples.
--Judge: Prop 8 does not affect any First Amendment right or responsibility of parents to educate their children, or the rights of those opposed to homosexuality or to same-sex marriage.

(5) Treat same-sex couples differently from opposite-sex couples.
--Judge: Prop 8 creates an administrative burden on California because it must maintain a parallel institution for same-sex couples.

(6) Any other conceivable interest.
Judge: Proponents have not identified any rational basis that Prop 8 could conceivably further.

A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation, the judge said. Thus, he held, "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

To the proponents' arguments that the purpose of marriage is procreation, Walker retorted, "Never has the state inquired into procreative capacity or intent before issuing a marriage license." Moreover, the fact that a majority of California voters supported Prop 8 is irrelevant, according to Walker, who wrote that "fundamental rights may not be submitted to [a] vote."

If this case reaches the U.S. Supreme Court, it will likely fall to the swing Justice Anthony Kennedy to decide whether he wishes to be on the right side of history by affirming Judge Walker's ruling. Kennedy authored Lawrence v. Texas, which overturned Texas' anti-sodomy law, and Romer v. Evans, which struck down Colorado's anti-gay ballot initiative. But Kennedy joined with the four conservative justices in overruling Walker's decision to broadcast the Prop 8 trial to some locations, although this may reflect Kennedy's views about the effect of televising trials rather than the way he feels about same-sex marriage.

Well-aware that Kennedy may cast the critical vote, Walker cited Romer and Lawrence several times in his ruling. For example, Walker held that "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 . . . is not a proper basis on which to legislate," citing Romer.

Walker also wrote, "The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce 'profound and deep convictions accepted as ethical and moral principles' through the criminal code. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot."

Both Schwarzenegger and Brown asked Walker to permit gay marriages to proceed in California even while the case proceeds through the appellate courts. In ruling on this request, the judge will consider whether his opinion is likely to be upheld on appeal as well as whether same-sex couples who seek to marry would suffer irreparable harm by a postponement.

Judge Walker's ruling may or may not survive. Nevertheless, in overturning Proposition 8, he struck a mighty blow against homophobia and in favor of equality.

Marjorie Cohn, a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild, is on the board of directors of the U.S. Human Rights Network. See www.marjoriecohn.com.

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