Chief U.S. District Judge Vaughn Walker has ruled that California’s controversial voter-approved Proposition 8, which banned same-sex marriage in 2008, is unconstitutional. The ruling in Perry v. Schwarzenegger sends ripples across the nation, where gay marriage has been contested at the ballot box repeatedly, advancing the cause of gay rights on the ground in California but also all but guaranteeing that a higher court will now be asked to take up the issue. A decision by the Supreme Court on the matter would effectively end any bans on gay marriage in all 50 states.
“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker wrote in the conclusion to the 136 page ruling. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”
One Colorado Executive Director Brad Clark celebrated the ruling as a victory for fairness.
“One Colorado celebrates today’s ruling with gay and lesbian couples and their families all across the nation,” he said in a release. “This is an issue of basic fairness. It’s not about Republicans or Democrats. It’s a constitutional issue that goes beyond party lines.”
Clark also saw the ruling as a lesson in constitutional protections in our democracy against discrimination, especially the discrimination of majority groups against minority groups.
“Today’s groundbreaking decision affirms that the law cannot treat people differently based on their sexual orientation and that a majority cannot strip a minority group of its fundamental freedoms at the ballot box.”
Openly gay Second District Colorado U.S. Rep. Jared Polis also issued a statement celebrating the ruling. He said Prop 8 “set the country back” in its efforts toward greater equality:
“I applaud Judge Walker’s decision… No one should be denied the opportunity to choose his or her spouse. It is a basic human right. It is a deeply personal decision. Throughout history, our country has made great strides moving forward with equality and civil rights for all. Proposition 8 set this country back by attacking gay couples who only wanted to share lifelong obligations and responsibilities. It sent the wrong message to society, was unconstitutional and it deserved to be overturned.”
The ruling may have the effect of moving gay marriage closer to the center of political discussion. Social issues have generally been pushed aside this midterm election season as economic issues in the recession have taken center stage. Arizona’s new immigration law, SB 1070, however, and the recent ruling barring its most controversial provisions from taking effect, have thrown the spotlight back onto immigration reform, for instance, despite wariness on the part of politicians exhausted from the health care reform battle and facing tough re-election battles.
Prop 8 overturned a previous California Supreme Court decision that legalized same-sex marriage. The proposition’s defenders anticipated today’s ruling and were organizing protests today in San Francisco, the site of the trial. They planned to ask an appeals court to issue an immediate stay on Walker’s order while the appeals process was set in motion. The stay would prevent same sex couples from getting married as the legal contest continued.
San Francisco and other California cities hosted a run on gay marriage for the months it was legal before Prop 8 took effect. There is likely to be a similar euphoric run in California in the coming weeks should the stay on Walker’s ruling be denied. (**Update: the stay was granted. No rush to marriage yet.)
The Prop 8 trial will be seen as an historic case, not least for the way it seemed to capture a cultural moment and turn preconceptions on their head, making strange bedfellows and throwing up the kind of material ripe for Hollywood treatment.
Judge Walker, for example, is a Reagan conservative who is openly gay but who also has been accused of being insensitive to gay issues. GOP-associated attorney Ted Olson — who argued in favor of the Bush campaign in the Bush v Gore Supreme Court case that decided the 2000 presidential election and who is not gay — by all accounts argued a brilliant case in favor of gay rights. Straight witnesses declined to testify against gay marriage at the trial because they were afraid of being harassed by gay-rights supporters– ie, by members and friends of a long-persecuted minority group. And one of the witnesses for Prop 8 who did give testimony was David Blankenhorn, president of the Institute for American Values, who referred mainly to works by George Rekers, the famous anti-gay “expert” recently caught on a whirlwind tour of Europe with a male escort.