Kyle Bell

Today was a historic day for gay and straight Americans alike. Judge Vaughn Walker, a federal judge for the Northern District of California, ruled that Proposition 8 is unconstitutional. His actions invalidate the initiative passed narrowly by voters in 2008 that banned gay marriage in the state of California. While Judge Walker issued a stay on his own ruling upon an expected appeal, thus delaying marriage licenses from being issued to gay couples for the time being, convincing the 9^th Circuit of Appeals to overturn this ruling will be enormously difficult for the defendants.

The judge’s decision mirrored arguments that I outlined in March, arguing that the equal protection clause of the Constitution guaranteed these rights. The law was challenged under the Due Process and Equal Protection Clauses of the 14th Amendment. Judge Walker writes that: “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

The fundamental idea behind the 14^th Amendment is to protect against arbitrary uses of power. If the government (or in the case of Prop 8, a voter-passed initiative) takes away certain rights, “the government must show that the intrusion withstands strict scrutiny.” Judge Walker noted that the Supreme Court has held that marriage is considered a fundamental right that is protected by the Due Process Clause. Judge Walker points out that race restrictions were once placed on marriage and that the Supreme Court recognized that “despite their historical prevalence, [they] stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.”

The next question before the court was the issue of Equal Protection under the Constitution. Judge Walker wrote that, “The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. … The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation.”

He notes the Lawrence case from 2003 where the Supreme Court rejected a Texas law banning sodomy: “Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian.” Ultimately, Prop 8 is unconstitutional on Equal Protection grounds because it “targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex.”

The legal history of gay marriage in California is quite lengthy. Voters approved a ban on gay marriage in 2000 with Proposition 22. San Francisco’s Mayor Gavin Newsom challenged this by issuing marriage licenses to gay couples. These licenses were invalidated by the California Supreme Court without issuing a ruling on whether the ban on gay marriage was constitutional or not. The city of San Francisco filed an action in state court to overturn California’s ban on gay marriage. The argument was that the ban was expressly against the constitution of California. The trial judge agreed, stating that it violated the state’s equal protection guarantees. An appellate court reversed the decision until the California Supreme Court ultimately decided in May 2008 that banning gay marriage was unconstitutional.

This is what led to Proposition 8. Petitioners sought to include in the state’s constitution a ban on gay marriage. They successfully got the requisite number of signatures for the initiative to be placed on the 2008 general election ballot. Ultimately, voters passed Prop 8 by a 52 to 48 margin on the same night that voters across the nation elected the first African-American president. Attempts to once again have the ban overturned failed. The California Supreme Court allowed the 18,000 marriages that occurred between the initial May 2008 ruling against the original ban and Prop 8’s passage modifying the California Constitution.

Now that a federal court has ruled on this issue, the next step will be to the 9^th Circuit Court of Appeals in San Francisco. It is known as one of the more liberal in the country and will in all likelihood uphold the ruling of Judge Walker. It is worth noting that he was appointed by a Republican president, George H. W. Bush. The trial court case lasted for roughly a year. It is unlikely that an appeal will conclude any sooner. The final step would be an appeal before the U.S. Supreme Court. Depending on how the Supreme Court rules, gay marriage will either become legal across the country or current bans will remain in place.