In November 2008, California voters passed ballot Proposition 8, adding a new provision to the state Constitution providing that “only marriage between a man and a woman is valid or recognized in California.” A group of individuals and the City of San Francisco, represented by the bi-partisan dream team of David Boies and Ted Olson, challenged the law by suing the state of California, claiming that the law was unconstitutional. California Governor Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) made the unprecedented decision to not defend the discriminatory “Prop. 8” in court. In essence, the state of California refused to defend its own law.

Yesterday, after a lengthy recitation of the factual record and expert testimony offered at a 2 ½ week trial, a federal district court found for plaintiffs on all claims and ruled that Proposition 8 is unconstitutional. ,Vaughn Walker, Chief Judge of the District Court for the Northern District of California, held that the law violates both the Due Process Clause and the Equal Protection Clause of the Constitution. In invalidating the discriminatory law, Judge Walker wrote that:

“The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”

The court found that Proposition 8 violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution by placing an unconstitutional burden on the fundamental right to marry. The court determined that marriage is a fundamental right, regardless of whether the parties seek to enter the marital contract for the purpose of procreation, noting that “a marriage license is more than a license to have procreative sexual intercourse.”

Importantly, the court found that the right sought was not a novel “right to same-sex marriage,” but simply the same right to marry already enjoyed by opposite-sex couples. The significance of this distinction cannot be overstated, as rights rooted “in our Nation’s history, legal traditions, and practices” are entitled to an increased level of protection that newly recognized rights are not. While opponents of marriage equality often try to frame same-sex marriage as a “special” right, the court rightly recognized that the same-sex couples in the case only wanted the same treatment as heterosexual couples.

Additionally, the court found that the availability of domestic partnerships could not cure the Due Process violation – marriage has a unique social significance and is “culturally superior” to domestic partnerships. The State’s attempt to “substitute an inferior institution that denies marriage to same-sex couples” did not make the law any less unconstitutional.

The Court also found that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment. When a law treats people differently and creates a classification based on a non-suspect trait, the law will be upheld so long as the classification is rationally related to some legitimate purpose; but “…to survive rational basis review, a law must do more than disadvantage or otherwise harm a particular group.”

In reaching its decision, the court rejected each of the State’s plethora of asserted rationales behind the law. First, the court found that preserving the traditional nature of marriage as an opposite-sex institution alone was insufficient: “proponent’s asserted state interests in tradition are nothing more than tautologies.” It likewise dismissed the State’s claim that Proposition 8 promoted opposite-sex parenting, based on a finding that same-sex and opposite-sex parents were of equal quality. Further, Prop 8 in no way made it more likely that children would be raised by two opposite-sex parents, and by denying households with same-sex parents the stability that marriage offers, the law has the effect of making it less likely children will be raised in stable households. The State’s remaining asserted interests in (1) proceeding with caution before making sweeping social changes, (2) protecting the freedom of same-sex citizens who opposed same-sex marriage, and (3) treating same-sex couples differently (“using a different name for a different thing”), all failed to meet even the minimal rational basis test.

Having rebutted all the State’s asserted interests, the court found that the only possible remaining motivation behind the law was a moral view that same-sex couples are inferior to opposite couples – a rationale the court firmly rejected as an insufficient justification for discriminating based on sexual orientation.

A particularly interesting portion of the decision dealt with what level of review was appropriate. It is generally considered an unsettled question whether Equal Protection challenges based on sexual orientation should be reviewed under a heightened level of review, in the same way as laws that discriminate based on gender or race, or whether they should be reviewed under the less scrutinizing “rational basis” review, applied to non-suspect classifications such as age or political preference. Interestingly, Judge Walker held that because that “Proposition 8 is unconstitutional under any standard of review,” it need not determine whether a heightened level of review was appropriate. Yet the court did suggest that strict scrutiny is appropriate for all statutes that distinguish based on sexual orientation, because the State would rarely if ever have a reason to categorize individuals based on sexual orientation, which does not have the “real and undeniable” differences that might justify such classifications.

Despite Judge Walker’s decision, nothing has yet changed in California. Gay and lesbian couples still cannot marry, because Judge Walker issued a temporary stay on his decision. There is little doubt this case will be appealed to the Ninth Circuit and Supreme Court.

Coming the day before the Senate votes to confirm Elena Kagan to the U.S. Supreme Court, this case is an important reminder that judges at all levels of the federal courts play a critical role in the lives of all Americans. Support AFJ’s work to create a fair and impartial judiciary.

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