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Prop. 8 backers, opponents agree legal fight just beginning

By Steven Luo August 5, 2010 No Comments Print Share

SAN FRANCISCO — Jubilation over a U.S. District court ruling finding California’s ban on same-sex marriage unconstitutional permeated the streets of San Francisco’s Castro District Wednesday evening, but both opponents and supporters of Proposition 8 agreed that the legal battle over the voter-approved ban was far from over.

Supporters of the same-sex marriage ban formally filed an appeal to the 9th U.S. Court of Appeals Thursday morning asking the higher court to strike down Judge Vaughn Walker’s ruling.

Advocates for both sides immediately began preparing for another legal fight over Walker’s decision after he ruled Wednesday that Proposition 8 violates the due process and equal protection rights of gays and lesbians by denying them the right to marry.

“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,” Walker wrote in his 136-page decision.

The ruling angered backers of the November 2008 measure, who argued that traditional family values would be jeopardized if same-sex marriages were allowed in the state. Supporters of the measure said they would immediately appeal Walker’s decision to the U.S. Ninth Circuit Court of Appeals in San Francisco, and looked towards a final hearing at the U.S. Surpreme Court.

“Even if this decision is upheld by the Ninth Circuit Court of Appeals — the most liberal appeals court in America — the Family Research Council is confident that we can help win this case before the U.S. Supreme Court,” the organization’s president, Tony Perkins, said in a written statement released after Walker’s decision. “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.”

Legal observers note that the public’s intense interest in the debate over same-sex marriage could compel higher courts to take up the issue more quickly.

“The issue is popping up all over, and it’s only going to get louder,” said California Beat Legal Analyst Preston Thomas. “This hasn’t even hit the Ninth Circuit yet, but expect to see the [Supreme Court] ruling on this before too long.”

Walker devoted much of his ruling to a discussion of the evidence presented at trial, criticizing Proposition 8’s backers for presenting only two witnesses at trial and saying that he did not find their evidence reliable.

Opponents of same-sex marriage presented only two witnesses at trial, saying that their other potential witnesses were concerned that the use of recording devices in the courtroom would endanger their personal safety.

But Walker noted that Proposition 8 backers “failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.”

And Walker ruled that neither of the two expert witnesses that same-sex marriage opponents presented could be considered credible expert witnesses, saying that neither was qualified to give expert opinions on the subjects they testified about and both had contradicted themselves during trial.

Perhaps not too surprisingly, then, Walker’s findings of fact based on the evidence presented at trial “read like [a] pro-equality narrative and acknowledge a laundry list of now-outdated views and practices such as forbidding interracial marriage and subsuming the woman’s identity into the man’s that have been discarded over the years,” Thomas says.

And Thomas says “the findings of fact in this case are highly unlikely to be disturbed by subsequent courts.” “The first court is ‘closest to the ground,’ so to speak, and thus has as good if not better of a perspective on the facts as the higher courts do,” he explains.

“The Prop. 8 supporters are pretty much saddled with these for the long haul; opponents, conversely, will be riding higher because of them,” Thomas notes.

Walker’s equally sweeping legal conclusions, however, will get much less consideration from appellate courts.

“Conclusions of law will be decided ‘de novo’ at each successive court because each higher court is better positioned to determine the law than the court below it,” Thomas says, explaining that “De novo means that the lower court ruling gets no deference and the appeals court decides the case anew.”

Walker concluded that “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 therefore violates both the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.

Walker said that the availability of domestic partnerships did not satisfy same-sex couples’ right to marry, saying that domestic partnerships were “a substitute and inferior institution that denies marriage to same-sex couples.”

And while Walker said that he believed that the “strict scrutiny” standard applies in this case, he ruled that Proposition 8 is unconstitutional even under the looser standard of “rational basis review.” For a law subject to strict scrutiny to be upheld, the state must show that it is “narrowly tailored to a compelling government interest,” while under rational basis review, a law is constitutional if the government can show it is “rationally related to some legitimate government interest.”

Same-sex marriage supporters, who rallied at Civic Center Plaza in San Francisco Wednesday evening, were cautiously optimistic about the decision and upcoming appeals process.

“The fact that it could go against us is unsettling,” said Marianne Barlow, 35, of Oakland. “But so many times, we’ve seen that progress doesn’t go backwards as often as it goes forward.”

Key findings of fact in Walker’s ruling

  • “Marriage in the United States has always been a civil matter,” and while “may determine independently whether to recognize a civil marriage or divorce,” this has “no effect on the relationship under state law.”
  • “California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.”
  • Freed slaves considered the right to marry one of the most important new rights granted when they were freed.
  • The concept of marriage has evolved over the years; for example, prohibitions on interracial marriages no longer exist, and a married woman’s legal identity is no longer joined with that of her husband’s.
  • Marriage has a wide range of benefits for married couples, their children, and the state.
  • Same-sex couples “are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions,” and “receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.” Moreover, the childen of same-sex couples “benefit when their parents can marry.”
  • “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”
  • Domestic partnerships lack “the social meaning” of marriage, and “intentionally withhold” that meaning from same-sex domestic partners.
  • Proposition 8 “places the force of law behind stigmas against gays and lesbians.”
  • Proposition 8 “increases costs and decreases wealth” for same-sex couples by preventing them from marrying.
  • “Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.”
  • Gays and lesbians have been and continue to be discriminated against in the United States.
  • The Yes on 8 campaign relied on “fears that children exposed to the concept of same-sex marriage may become gay or lesbian” and “stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.”

Key legal conclusions in Walker’s ruling

  • The traditional restriction of the right to marry to heterosexual couples is not fundamental to the concept of marriage or a result of a state interest in procreation, but rather “an artifact of a time when the genders were seen as having distinct roles in society and in marriage.”
  • The availability of domestic partnerships does not satisfy same-sex couples’ right to marry.
  • Proposition 8 opponents’ claim that the measure discriminates on the basis of sexual orientation is equivalent in this case to a claim that the measure discriminates on the basis of sex.
  • Because gays and lesbians have experienced “a history of purposefully unequal treatment,” and because there is “rarely, if ever, […] a reason to categorize individuals based on their sexual orientation,” the appropriate standard of review in this case is strict scrutiny.
  • Proposition 8 is unconstitutional even under rational basis review:
    • Preserving the “traditional institution of marriage” does not “further any state interest.”
    • “Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.”
    • The evidence does not support a finding that “California has an interest in preferring opposite-sex parents over same-sex parents,” or that “Proposition 8 advances a state interest in encouraging the formation of stable households.”
    • “As a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex,” so protecting those who oppose same-sex marriage is not a rational basis for the law.
    • “The evidence fatally undermines any purported state interest in treating [same-sex] couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.”
    • “Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples,” and “whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.”

Contact Steven Luo at sluo@californiabeat.org.

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