http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/04/MNQS1EOR3D.DTL&tsp=1
Bob Egelko,Demian Bulwa, Chronicle Staff Writers
Wednesday, August 4, 2010
A federal judge today struck down Proposition 8, the voter-passed November 2008 initiative that defined marriage as the union of a man and a woman. U.S. District Judge Vaughn Walker found that the ban on same-sex marriage violated the constitutional due process and equal protection rights of a pair of couples - one lesbian and one gay - who sued.
The judge ordered an injunction against enforcement of Prop. 8 but issued a temporary stay until he decides whether to suspend his ruling while it is being appealed. The stay means that same-sex couples are still prohibited from marrying.
"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker wrote in a 136-page ruling. He said the ballot measure "prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis."
The constitutional right to marry, Walker said, "protects an individual's choice of marital partner regardless of gender." He also said domestic partnerships in California, available to same-sex couples, are a "substitute and inferior institution" that lack the social meaning and cultural status of marriage.
Gov. Schwarzenegger issued a statement saying, "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."
Prop. 8's sponsors are planning an immediate appeal....
...Well, that's nice.
In all seriousness, that's all the enthusiasm I can muster for this. It's ... nice. But at the moment, it's only slightly more than symbolic. The judge has already stayed his order; if he decides to allow the stay to remain in place until the Ninth Circuit Court of Appeals rules on his decision, then nobody gets married. If he doesn't allow the stay to remain in place -- and the case that people are harmed by not being allowed to marry is at least nominally stronger than the case that they aren't, given the grounds of the decision -- then the stay, or lack thereof, itself will get express appealed through the Ninth and possibly/probably up to the Supreme Court, which is, one suspects, rather more likely to prefer a stay than otherwise, since it will give the process time to work itself out with no change in the status quo. (And in this case, unlike Prop. 8 itself which was not retroactively applied, should the Court ultimately strike down this decision, there is a very good chance that it would take any marriages performed after the stay was released, since they shouldn't have been performed in the first place.)
It's going to be fascinating to see what happens with this decision and the one out of Massachusetts that's headed to the Third (I think) Circuit Court of Appeals which struck down part of DOMA when they get to the Court. (Assuming that they do, of course. I think if the Third and the Ninth decide to strike down the relevant decisions, the Court will almost certainly refuse to hear the appeals; that said, that opinion is based on nothing more than the fact that this Court has shown every sign of ardently wishing to avoid controversial big issues when possible, and issuing strangely small decisions when they can't.) If the Court does decide to hear the cases -- and depending on timing, I would think it would hear the California case first, because the case has implications for DOMA -- then it's going to be fascinating to see what happens. In terms of the Sotomayor and Kagan (assuming she gets through) appointments, we've more or less traded liberal-to-moderate votes for the same, so I don't think those votes would change. As other articles have noted, the balance would likely rest with Justice Kennedy. And while he voted one way on Lawrence vs. Texas, he might not do the same with Perry et al vs. California et al. (What on earth is the official name of this case, anyway?) When it comes to something tied as tightly to religion as marriage is, people may not be very consistent.
The thing about Perry is that if this decision stands, logically, it takes all sorts of laws outside California down with it. (To be sure, people will need to launch court cases to get things started, but that will happen.) For example, one logical consequence ought to be to enforce the Full Faith and Credit clause specifically regarding marriage. If you strike down, on Constitutional grounds, one law that forbids same-sex marriage in one state, as with Lawrence, it takes all of the others down with it. (Virginia notwithstanding. They keep passing purely symbolic sodomy laws, because their legislature is an ass.) Moreover, logically, it also takes out the concept that states need not recognize marriages from other states that "deeply offends the public policy." After all, same-sex marriage has to be the form that said policy would find most offensive; if you're going to require states to recognize that, then allowing Michigan to refuse to recognize a first-cousin marriage performed in Illinois is beyond illogical. (Yes, that's right. Illinois refuses to allow same-sex marriage, but says that under certain circumstances, first cousin marriage is just fine and dandy! This state is sometimes very strange. But I digress.)
Honestly, what I'm going to be very curious about is what Scalia says in his dissent. Clearly, given his position in his blistering dissent in Lawrence -- that states should be allowed to make laws about what they find morally repugnant, but also that the logic of the majority position would lead inevitably to same-sex marriage being allowed -- there may be a certain amount of judicial gloating. But mostly, I expect a relentlessly entertaining, relentlessly religiously-based and relentlessly bigoted decision out of him.
There's also the not-insignificant issue that gay marriage had moved off the front burners as a political issue, and this is likely to shove it right back up there. After all, a judge -- and a gay judge, at that -- struck down a state constitutional amendment produced by a vote of the people. The Republicans and the Teabaggers (I will do the GOP the courtesy of separating them, for now) are both likely to seize on this as evidence of judicial activism, and to agitate for more states to pass anti-same-sex marriage laws, and to use this to rally supporters around more conservative candidates for the House and Senate this year. The Democrats already stand to lose a certain number of seats, simply because the party in the White House usually does during midterms; they're not being helped by the Rangel and Waters scandals, which for the moment, and quite miraculously, make them look momentarily more corrupt (and worse at it) than the Republicans. That said, no such laws are up for vote this political silly season and couldn't make it to the ballot in most states. 2012, on the other hand, is a different issue altogether, especially since that will be about the time these decisions finally wend their way to the Supreme Court.
Any road, the next three years ought to be interesting on both coasts.
Questions? Comments? Brickbats? Cigars, Cigarettes, Cigarillos?
Posted by iain at August 04, 2010 10:34 PM
