Citing both the Due Process and Equal Protection Clauses of the Federal Constitution, Chief U.S. District Judge Vaughn R. Walker of the US District Court for the Northern District of California, on Wednesday, held that Prop 8’s ban on same-sex marriages was unconstitutional.
Next stop, the Ninth Circuit Federal Court of Appeals, then on to the US Supreme Court. When Prop 8 was passed in the Fall of 2008, I wrote a piece for F&HD predicting this result on these very grounds and my article here provoked, shall we say, just a bit of controversy – some very critical comments were posted concerning my constitutional law analysis. Now that the formidable legal talent from both sides of Bush v Gore have combined, the results, at least at the Federal Trial Court level are in.
You can read Judge Walker’s Decision and Order here and likely in many other places in cyberspace by the time you get around to reading this.
The suit was brought by two same-sex couples alleging that Prop 8’s ban on same-sex marriage deprived them of fundamental Constitutional Rights and will likely be cited as Perry v. San Francisco, when lawyers gather to debate it . . . . endlessly.
The first few pages of the Opinion discuss the history of Prop 8 and the California Supreme Court decision concerning it which left the ban in place, but recognized the validity of a special category of people who married in California between the time that the Supreme Court had invalidated Prop 22 in May 2008, a prior initiative attempt to ban same-sex marriages passed in November2000 (amending the Family Code, which is the consolidated body of statutes governing marriage), through Prop 8’s passage in November 2008. This created a true oddity in the law, if there ever was one; but, it left valid some 10,000 marriage licenses issued to California same-sex couples in the intervening months between May and November (I know there is a song in there somewhere!).
Later, California’s Supreme Court upheld the validity of Prop 8, but left open the serious Constitutional law questions which were then opened up (as one might a can of, say, worms) for further adjudication in the case subsequently filed and heard by Judge Walker, resulting in the truly seismic Constitutional Law event of Wednesday.
Plaintiffs argued that marriage to the person of one’s choice without governmental interference is, under the 14th Amendment’s Due Process Clause, Section 1, to be precise, a deprivation by government of a person’s right to "life, liberty, or property, without due process of law." What is more, Plaintiffs also argued that the Equal Protection Clause of the very same 14th Amendment protected their right to marry the person they chose because that fundamental right provides that no state shall deny to "any person . . . the equal protection of the laws."
Federal Judge Walker agreed. He reviewed the history of Prop 8 in some detail. Of special note, was the argument in defense of Prop 8 that the state of California has an interest in procreation, specifically to preserve and protect marriage for procreative purposes and to insure secure families to raise those children. The Court also heard extensive testimony, both pro and con, as to both the state’s interest and the interests of the Plaintiffs, who were same sex couples. Among the witnesses were mental health experts’ testimony concerning children raised in families of same-sex couples and whether same-sex couples suffered a ‘stigma’ by being denied the right to marry, as opposed to some form of domestic partnership which is already available by law, and as to the latter, why they are different from marriage and why the denial of the right to marriage is so significant to same-sex couples.
Did Prop 8 enact a "private moral view" (regardless of a majority of Californians voting for its passage) without advancing a legitimate governmental interest? Yes, it did, said Judge Walker.
Some history of discrimination against gays and lesbians was also introduced into evidence, as well as discussion in Judge Walker’s opinion of other discrimination in law of the past. In a detailed opinion explaining his reasoning, Judge Walker held that the evidence offered fatally undermined the rationale for the passage of Prop 8 which its’ proponents urged on the Court. In short, Judge Walker held that the majority of California voters cannot decide to disenfranchise some citizens of some rights and that their reasoning in support of doing so did not match up to the strength of the Constitutional Rights embodied and long respected in both the Due Process and Equal Protection Clauses of the Federal Constitution, stating that "Prop 8 is beyond the constitutional reach of [California’s] voters or their representatives."
The Opinion is some 139 typed pages and space considerations do not permit a more detailed discussion here. Suffice it to say that Judge Walker felt the evidence he heard "overwhelmingly" (a word not often used in Constitutional Law matters) showed that Prop 8 violated the Due Process and Equal Protection Rights of Plaintiffs, and therefore, enforcement of Prop 8 is permanently enjoined and same sex couples may obtain marriage licenses in California once again, joining the 10,000 couples already recognized by the California Supreme Court.
We have not heard the last, but, for now, a duo of important Federal Constitutional Rights has trumped Prop 8, which, for now, is no more.