Wednesday, August 4, 2010

Total Victory for Gay Marriage

By Robert Gammon
Wed, Aug 4, 2010 at 3:38 PM

Gay marriage proponents won a complete victory this afternoon in federal court when US District Judge Vaughn Walker issued a scathing, and meticulously argued, 138-page repudiation of Proposition 8. Walker ruled that the anti-gay marriage measure approved by voters in 2008 flatly violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment of the US Constitution, and thus is illegal.

Walker ruled that by seeking same-sex marriages, gays and lesbians were not trying to obtain some “new right” under the law as Prop. 8 supporters contended. Instead, Walker ruled that under the Constitution’s Due Process clause, gays and lesbians were seeking to exercise their fundamental right to marry — and thus should be treated no differently from heterosexual couples:

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 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

And because Prop. 8 denies to gays and lesbians a fundamental right under the US Constitution, then it was illegal for voters — or state Legislators — to enact the measure, Walker said.

But the judge wasn’t done there. He also ruled that Prop. 8 completely violated the Equal Protection Clause because the state has no legitimate interest in excluding gays and lesbians from marrying. Walker repeatedly ridiculed the anti-gay marriage argument that the basis of heterosexual marriage is to promote “procreation.” The judge noted that no law anywhere requires that heterosexual couples prove that they can have children before getting married. He also noted that there is no legitimate argument that children are better off with opposite sex parents. Instead, he repeatedly cited the overwhelming evidence presented at trial by the plaintiffs that children of straight parents are no different that those whose parents are gay. Walker also noted that children suffer emotionally when their parents aren’t allowed to marry under the law:
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.

Walker also ruled that Prop. 8 is unconstitutional because it discriminates not only because of a person’s sexual orientation but also because of their gender. He noted that Prop. 8 forbids a woman from marrying another woman because she is a woman:
Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

Update: The Mercury News reports that Walker agreed after issuing the ruling to hear arguments on whether it should go into effect immediately or be stayed, pending appeal.

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