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Aug 5th, 2010

Judge Overturns California Gay Marriage Ban

Proposition 8 foes rally while proponents criticize ruling over lawsuit

Gay marriage supporters rally after Proposition 8 ruling in California
Scott Hutton of West Hollywood, Calif., and gay marriage supporters rally on Wednesday, Aug. 4, 2010 in West Hollywood after a federal court judge overturns Proposition 8, California’s ban on same-sex marriage. (Photo credit: Jason Redmond / EPA)

The Associated Press via NBC and
August 5, 2010

SAN FRANCISCO — A federal judge overturned California’s gay marriage ban Wednesday with an unequivocal ruling that could eventually force the U.S. Supreme Court to confront the question of whether same-sex couples have a constitutional right to wed.

Chief U.S. District Judge Vaughn Walker’s strongly worded opinion in the landmark case — the first in a federal court to examine if states can lawfully limit marriage to a man and a woman — touched off a celebration outside the courthouse. …

The ruling met immediate criticism from Mormon and Catholic church leaders and cheers from gay-rights advocates. …

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples,” Walker wrote.

The judge added in the conclusion of the 136-page opinion: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

His ruling came in response to a lawsuit brought by two same-sex couples and the city of San Francisco seeking to invalidate the law as an unlawful infringement on the civil rights of gay men and lesbians. The landmark case is expected to be appealed and could eventually reach the U.S. Supreme Court. …

Read the judge’s ruling (PDF)

“Proposition 8 singles out gays and lesbians and legitimates their unequal treatment,” Walker wrote.

“Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.” …

Reactions to the ruling: Praise

California Gov. Arnold Schwarzenegger: “For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.” …

California Attorney General Jerry Brown: “In striking down Proposition 8, Judge Walker came to the same conclusion I did when I declined to defend it. Proposition 8 violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest.” …

Reactions to the ruling: Criticism

Cardinal Francis George of the U.S. Conference of Catholic Bishops: “Marriage between a man and a woman is the bedrock of any society. The misuse of law to change the nature of marriage undermines the common good. It is tragic that a federal judge would overturn the clear and expressed will of the people in their support for the institution of marriage. No court of civil law has the authority to reach into areas of human experience that nature itself has defined.” … President Randy Thomasson: “Natural marriage, voter rights, the Constitution, and our republic called the United States of America have all been dealt a terrible blow. Judge Walker has ignored the written words of the Constitution, which he swore to support and defend and be impartially faithful to, and has instead imposed his own homosexual agenda upon the voters, the parents, and the children of California. This is a blatantly unconstitutional ruling because marriage isn’t in the U.S. Constitution. The Constitution guarantees that state policies be by the people, not by the judges, and also supports states’ rights, thus making marriage a state jurisdiction.” …

Family Research Council President Tony Perkins: “[The ruling has] almost left me speechless … This has now become a national case. Using the courts to inject this radical social policy solves nothing and it only inflames the political passion of people and so I think this is far from over … That they would find a right to same-sex marriage in the constitution is just absurd.” …

Case background

The ruling puts Walker at the forefront of the gay marriage debate. The longtime federal judge was appointed by President Ronald Reagan.

Prop 8, which outlawed gay marriages in California five months after the state Supreme Court legalized them, passed with 52 percent of the vote in November 2008 following the most expensive campaign on a social issue in U.S. history. …

Former U.S. Solicitor General Theodore Olson delivered the closing argument for opponents of the ban. He told Judge Walker that tradition or fears of harm to heterosexual unions were legally insufficient grounds to discriminate against gay couples.

Olson teamed up with David Boies to argue the case, bringing together the two litigators best known for representing George W. Bush and Al Gore in the disputed 2000 election. …

Currently, same-sex couples can only legally wed in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C.



It will be interesting to see how the U.S. Supreme Court rules on the constitutionality of legally prohiting same-sex unions. As a lay person, I can’t find anything in the Constitution that enshrines marriage as a union between one man and one woman, nor can I find anything that expressly prohibits gay marriage. (I suspect part of the reason may be that the framers of the Constitution could not have foreseen the day when same-sex couples would seek the legal right to enter into matrimony.)

Opponents of Prop 8 assert that the prohibition of same-sex marriage violates the equal protection clause of the Fourteenth Amendment by restricting individual rights without a sufficient governmental interest in doing so.

I’m wondering if arguments before the Supreme Court would also invoke  First Amendment protection. (Although not explicitly protected in the First Amendment, the Supreme Court ruled, in NAACP v. Alabama, 357 U.S. 449 [1958], freedom of association to be a fundamental right protected by it.)

Finally, although it probably has no legal standing, what should we make of this unalienable right enunciated in our Declaration of Independence as a self-evident truth?

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Is it not tyranny — or at least overreach — for the government to proscribe same-sex marriage?

Personally, I’m not a proponent of same-sex marriage, though I do view it as somewhat of a states’ rights issue, where the federal government should not overturn the will of the people, as expressed in the adoption, by referendum, of California’s Proposition 8.

Nonetheless, I anticipate that ultimately the Supreme Court will make the unconstitutionality of the legal prohibition of same-sex marriage the law of the land, with liberal activist judges and conservative constitutional originalists jointly rendering the majority opinion and activist, socially conservative constitutional constructionists relegated to the minority.

Time will tell.


Michele Bachmann weighs in

An Irrational Ruling

By Michele Bachmann
August 5, 2010

Yesterday, federal judge Vaughn R. Walker sent a blow to more than 7 million voters in California who had full faith in the democratic process. These citizens had extended their voting rights in November 2008 by passing Proposition 8, or a ban on same-sex marriage.

As gay-rights activists challenged the voter-passed referendum, the case made its way to Judge Walker in San Francisco. The Los Angeles Times reported, “The jurist, a Republican appointee who is gay, cited extensive evidence from the trial to support his finding that there was not a rational basis for excluding gays and lesbians from marriage.”

But if Walker says Proposition 8 doesn’t survive the rational basis test, then is he implying that the majority of California voters, those who voted for the measure, aren’t rational?

Since 1998, thirty states have added language to their constitutions, defining marriage as between a man and a woman. Does Walker believe the voters in these states aren’t rational either?

Frankly, I believe that progressive, activist judges, who issue their personal moral pronouncements under the guise of “constitutional law” are instead demonstrating irrational rulings.

In this case, we can expect to see Judge Walker’s ruling appealed to the U.S. 9th Circuit Court of Appeals and then end up at the U.S. Supreme Court.


Update: Related interest

Gay Priest Defies Pope: Catholics Should Vote ‘No’ on Minnesota Marriage Ban

By David Edwards

June 12, 2012


An openly gay priest on Sunday urged Catholics to go against the Pope’s wishes and vote “no” on a November ballot measure that would enshrine Minnesota’s same sex marriage ban in the state’s Constitution.

Father Bob Pierson argued that Paragraph 1782 of the Catechism of the Catholic Church allows Catholics to make their own decisions in cases where their conscience is not in agreement with the church’s doctrine. …

“As Catholics we must follow our own conscience in making decisions such as how to vote,” he continued. “My conscience tells me to vote no on the amendment because I have yet to hear a convincing reason why we need such an amendment to our state constitution.” …

A survey (PDF) released last week by Public Policy Polling indicated that the measure adding marriage discrimination to the Minnesota Constitution was on track to be defeated, with 49 percent opposed and only 43 percent in favor.

Full story


FROM THE ARCHIVES: One Year Ago — August 5, 2009

Sample of Minnesota State Partisan Primary Ballot for Stearns County, Sept. 9, 2008 primary election.
Sample primary ballot. Click to see larger image.

Building a Non-Partisan Coalition

One year ago today, I described the difficult challenges of mobilizing a cross-partisan majority in Minnesota’s 6th Congressional District to defeat U.S. Rep. Michele Bachmann — who does not have majority support in her district — in the 2010 Minnesota state primary election (which had been scheduled for Sept. 14 prior to the state legislature shifting the goalposts in spring 2010 and moving the election date forward five weeks, to Aug. 10).


FROM THE ARCHIVES: Two Years Ago — August 5, 2008

Army Spc. Seth Goehring holds his son, Kolton, at his home in Crookston. When Kolton was born, Goehring’s wife, Alicia, was able to send him cell-phone photos of the baby. (Photo credit: Jae C. Hong / The Associated Press)

On the Campaign Trail: Day 22

Two years ago today, on the 22nd day of my 2008 campaign against incumbent U.S. Rep. Michele Bachmann for the Republican nomination in Minnesota’s 6th Congressional District, I received a call from a member of the Minuteman Civil Defense Corps regarding a Spanish-language community forum in Cold Spring, Minn., “to help residents understand their rights and discuss legal and civil rights issues,” followed by a workshop “on immigration and detained immigrants’ rights.” I also posted a public service announcement to help draw attention to the sacrifice of National Guard citizen soldiers serving in Iraq and the families they leave behind.

One Response to “CA Gay Marriage Ban Overturned”
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