Prop 8 ban on gay marriages in California ruled unconstitutional

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Following a lengthy public trial, Judge Vaughn Walker has ruled that the voter-initiated Proposition 8, which bans gay marriage in California, is unconstitutional.

Judge Walker ruled that Prop 8, as it has become known, violates the equal protection clause in the United States constitution by denying gays and lesbians the right to marry a member of the same sex. Lawyers representing supporters of Proposition 8 have already made applications for the judgment to be stayed pending appeal.

In a written judgment, Judge Walker said: “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage licence,” he added.

“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.”

The case was brought by two gay couples who argued that their constitutional rights were violated by Prop 8, which was voted in by residents of California following an earlier court ruling that legalised gay marriage within the state.

During case testimony, the court heard experts testify that allowing gay marriage would help the mental health of gays and lesbians, give more legal protection to their children, reduce discrimination and give gay couples more political power.

Prop 8 supporters argued that retaining the ban would protect children and traditional marriage. They put forward only two witnesses, one of who argued that gays are 12 times more likely to molest children.

Unusually, given that the legislation is upheld by the State of California, the original ‘defendants’, California Attorney General Jerry Brown and Governor Arnold Schwarzenegger, refused to support Proposition 8 in court. Schwarzenegger campaigned heavily against the introduction of Proposition 8.

In concluding, Judge Walker re-instated gay marriage in California. He wrote that the “plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8.”

He added: “California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same- sex couples and has not suffered any demonstrated harm as a result, moreover, California officials have chosen not to defend Proposition 8 in these proceedings. Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgement permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

However, on Tuesday, a day prior to the publication of the judgment, lawyers for the Prop 8 supporters filed papers seeking a stay that would prohibit gay marriage while the decision is appealed. Judge Walker has ruled that arguments for and against staying the judgment must be filed before 6th August 2010, when he will make a decision whether to make a temporary or semi-permanent stay on the decision. Law Professor Douglas NeJaime says it’s unlikely that a the judge will make an order to permanently stay the decision. “The tone of this [the judgment] is it doesn’t look like he would be issuing a stay,” Professor NeJaime wrote.

Democrat Congresswoman Tammy Baldwin, the co-chair of the Congressional LGBT Equality Caucus said: “We live in a democracy wherein majority rule is checked and balanced by the guarantee of inalienable minority rights. This case, as it wends its way up to the US Supreme Court, presents jurists with fundamental questions about minority rights and majority rule.  I believe Judge Walker got it right, declaring that denial of marriage rights and protections to gay and lesbian citizens violates the Constitution even if it reflects the will of the majority of Californians.”

In 2009, following a trip to the United States, the then prime minister, Gordon Brown told gay rights campaigners: “This Proposition 8 in California, this attempt to undo good that has been done, this attempt to create divorces for 18,000 people who were perfectly legally brought together in partnerships.

“This is unacceptable and this shows why we have always got to be vigilant, always got to fight homophobic behaviour and any form of discrimination.”

Amnesty International welcomed the decision saying: “The US District Court has sent a clear message on Proposition 8: discrimination by any means is unacceptable.  This affirms not only equality in civil marriage, but the basic human right to be treated equally under the law, without regard to an individual’s sexual orientation.

“Proposition 8 served only to stigmatize same-sex relationships in ways that can fuel further discrimination. Denying equal civil recognition of same-sex relationships compounds the effects of discrimination and undermines other rights, such as the right to housing or social security.  Amnesty International welcomes today’s ruling as an affirmation of equality under the law.”

The president of the right-wing Family Research Council was dismayed by the judgment: “It’s time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box.

“Marriage is recognised as a public institution, rather than a purely private one, because of its role in bringing together men and women for the reproduction of the human race and keeping them together to raise the children produced by their union. The fact that homosexuals prefer not to enter into marriages as historically defined does not give them a right to change the definition of what a ‘marriage’ is.

“Marriage as the union between one man and one woman has been the universally-recognized understanding of marriage not only since America’s founding but for millennia.  To hold that the Founders created a constitutional right that none of them could even have conceived of is, quite simply, wrong.”

Gay and Lesbian Center chief executive Lorri Jean welcomed the ruling: “Today’s historic decision by the federal district court is clearly a milestone victory for all gay, lesbian and bisexual Californians, our families and our friends. But much more than that, it is a resounding affirmation of fundamental American ideals and core principles of the US Constitution.

“Almost from our very beginnings, one of the exceptional hallmarks of our nation’s progress has been the expansion of our concepts of liberty and justice to include those of us who were not initially considered fully equal, or who were perhaps not even considered at all.

“Although it has often taken years of struggle, we have seen profound advancements in the recognition of the full citizenship of women, of African-Americans, and of countless other ethnic, religious and social minorities.

“These changes have come about through a continually broadening public understanding of who we all are, and of the common bonds and aspirations that we all share.”

She added: “As welcome and significant as today’s ruling truly is, it is in no way a final victory…not in the current court case, and certainly not in the ultimate fight for the fully equal treatment of all LGBT Americans. There are more legal challenges, debates and votes to come. Therefore, it is as important as ever that all who support our ultimate goal of full equality continue, through every available avenue and at every opportunity, to persuade those who may not yet be with us.

“Over the last 40 years, the advances in the movement for LGBT equality have been extraordinary, but that progress has not been unbroken and there are clearly more obstacles to overcome.  But today’s decision is yet another signpost as we move ever closer to the day when the ideal of liberty and justice for all is fully realized for LGBT Americans, as it should be for every American, and indeed for everyone everywhere.”

Around 18,000 gay couples married in the state in the few months in which gay marriage was legal. They were permitted to remain married after the ban passed.

Prop 8, which was the most expensive social issue campaign in US history, passed with 52 per cent of the vote.

It is expected that the supporters of Prop 8 will fight the case all the way to the US Supreme Court.