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Proposition 8 ruled unconstitutional

August 4, 2010

It’s all over the news, Facebook, blogs, etc. and I’m getting frequent e-mails and text messages, but in case you haven’t heard yet, a federal judge ruled California’s Prop 8 unconstitutional today.

U.S. District Court Chief Judge Vaughn R. Walker used the strongest possible reasoning in his ruling that California can’t deny same-sex couples marriage licenses.  (For the legally minded among you, he said it failed both strict scrutiny and rational basis tests.)

The judge stayed his ruling pending the appeal that’s already in the works, and I think we can fully expect this case to make its way all to the U.S. Supreme Court. But we should be very grateful we have such a strong decision to work off of, which you can read in full here (PDF). For those without the appetite for a 138-page legal document, here’s how Judge Walker sums it up:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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.
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. 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,
see FF 64-66; 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 judgment 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. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and
defendant-intervenors pursuant to FRCP 58.
The Advocate has a brief statement from the Obama administration supporting the decision. It’s something, though not much.
“The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”
Learn more about the ruling at NPR, the New York Times, and CNN.
11 Comments leave one →
  1. August 11, 2010 8:37 pm

    I’m all for gay marriage, but a constitutional amendment doesn’t have to provide an argument, it becomes that premise upon which arguments are made. So, sad as I am to say it, now I have to become a Proposition 8 supporter or be a hypocrite.

    • August 11, 2010 8:42 pm

      I’m no constitutional scholar (yet?), but I’m fairly certain an amendment does need a rational basis, and still can’t break other laws. For instance, you couldn’t pass an amendment saying green-eyed people can marry only blond-haired people, because it serves no actual purpose and you can’t discriminate like that under the Equal Protection Clause. So if you want, you can be against Prop. 8 hypocrisy-free!

      • August 11, 2010 8:47 pm

        But the equal protection clause didn’t cover gay marriage until a previous court case declared it to. This is all soft laws through court interpretations. I like this particular outcome, but with what the courts have been doing (interpreting our rights away like with the recent eminent domain case) giving them this much power to just ignore constitutional amendments is… well it threatens the very foundation of our nation (and I mean that literally.)

        • August 11, 2010 8:52 pm

          I disagree. It may not have been the popular interpretation that gay marriage was covered, but reading the actual text I have trouble seeing how you could get away with arguing it’s not. Just like the courts were willing to let “separate but equal” slide during segregation, saying something that’s clearly wrong doesn’t make it right.

          I’m not nearly as familiar with the eminent domain case as I am with the Prop 8 trial, and I’ll admit I’m still studying for the LSAT, but I’m fairly certain the Supreme Court can’t just decide things with no basis in previous decisions or laws. Any lawyers care to chime in?

        • August 11, 2010 9:14 pm

          I asked on Facebook if any of the many lawyers I know could explain this better than I can. Here’s what one (non-lawyer) friend had to say:

          Me: Can I get some lawyers to chime in on the comments here? A commenter says he’s pro-marriage but thinks it was really awful to overturn a constitutional amendment, and I’m trying to explain why amendments can be illegal. I’m fairly certain I’m at least somewhat right, but I’m wading into some deep water here…

          Him: I would point that person in the direction of the 18th and 22nd Amendments, which enacted and then overturned prohibition. Additionally, the entire purpose of the appeals system is to address the constitutionality of laws, bills, amendments and other federal or state issues. Its kind of the reason the supreme court exists, in order to determine the constitutionality of additions and amendments to the constitutions of states and of the nation. I, also, am not a lawyer.

        • August 11, 2010 9:29 pm

          I’m not really getting how the 18th and 22nd amendments apply. And while I do see the point with the supreme court, this was a judge on the United States District Court for the Northern District of California. He gets his authority from the state, and he overturned a state amendment based on interpreting the federal constitution. I’ll check in with some lawyer friends of mine tomorrow. Thanks for responding to me so quickly by the way.

        • August 11, 2010 9:52 pm

          No problem! When I can reply to comments quickly I always do. I should note that Judge Walker is actually a federal judge, not a state one, but I’m curious what the lawyers you know will have to say. All of the ones I know agree with the decision, but I’ll admit that’s a biased sample.

        • jcbrooks1 permalink
          August 11, 2010 10:11 pm

          Short answer: The Supreme Court has held that “fundamental rights may not be submitted to a vote, they depend on the outcome of no elections.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Enactments of state law, including amendments to a state constitution, are explicitly subject to the Fourteenth Amendment: “No State shall make or enforce any law which shall…” Similarly, there is an extensive line of Supreme Court cases going back to the 1890s that “incorporates” most of the other protections of the Bill of Rights to the states. This is accomplished through the Supreme Court’s reading of the Due Process Clause of the Fourteenth Amendment. So, while a state can amend its constitution to do just about anything, state constitutional amendments cannot infringe on certain “fundamental” rights protected in the Bill of Rights and the Fourteenth Amendment. It’s not that federal courts are “ignoring” the fact that the laws they are overturning are amendments to state constitutions, it’s that the fact that it’s an amendment is a distinction without a difference. If *any* state law is in violation of these particular constitutional provisions without a sufficient and satisfactory reason, a federal court can (and must) overturn it. (There are also Supremacy Clause arguments, but I’m not opening that door.)

          The Perry v. Schwarzenneger decision didn’t find that “gay marriage” was protected by the Constitution. Instead, it found (1) that the right to marry the partner of your choice is a fundamental and protected right and also that (2) state laws that target people based on their sexuality are subject to the Equal Protection clause. These two decisions, together or separately, invalidate Prop 8, and both of these rulings are very well-grounded in Supreme Court caselaw. On the fundamental right to marry, I suggest looking at Loving v. Virginia (the anti-miscegenation case), Griswold v. Connecticut (the contraception and marital-privacy case), and Turner v. Safely (the right of prisoners to marry). On the applicability of the Equal Protection Clause to sexuality, I suggest reading Justice O’Connor’s concurring opinion in Lawrence v. Texas.

          What Judge Walker did in Perry was to find first that Prop 8 targeted the fundamental right to marry. Because of this, the defendants had to prove that Prop 8 protected a “compelling interest” and that it was as “narrowly tailored” as possible to protect that interest – i.e.; the law had to have a minimum impact on protected rights. Judge Walker found that the evidence simply did not meet this very strict test. He then went further, and applied a much lower standard, rational basis review. This review applies to state laws that create classifications among people that do NOT impact fundamental rights. He found that, even assuming a fundamental right to marry wasn’t at issue, Prop 8 was not “rationally related” to a “legitimate” government interest.

          I’m hoping this helps answer the question.

        • jcbrooks1 permalink
          August 11, 2010 10:14 pm

          Also, Judge Walker as a district court judge in a United States District Court, is a federal judge, not a state court judge, and is empowered to decide these cases under Article III of the US Constitution.

        • August 12, 2010 9:15 am

          “Also, Judge Walker as a district court judge in a United States District Court, is a federal judge, not a state court judge, and is empowered to decide these cases under Article III of the US Constitution.”

          This. This may change everything…

        • August 12, 2010 10:26 pm

          Glad we could help! In case you’re still curious, Ted Olson (one of the lead attorneys for the pro-LGBT side and a well-known conservative highly respected in that circle) did a great job of explaining things on Fox News, of all places.

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