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Judge strikes California's ban on same-sex marriage, Proposition 8

By Robert Barnes and Sandhya Somashekhar
Washington Post Staff Writer
Thursday, August 5, 2010; A01

A federal judge in California ruled Wednesday that the state's ban on same-sex marriage violates the constitutional right to equal protection. The decision is the first step in a legal struggle that is widely expected to end at the Supreme Court.

In the nation's first federal trial on same-sex marriage, Judge Vaughn R. Walker said that California's 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," wrote Walker, chief judge of the U.S. District Court for the Northern District of California in San Francisco. In 2008, 52 percent of the state's voters approved Proposition 8, an amendment to the state Constitution.

(Read Judge Vaughn's full ruling)

The decision set off joyous celebrations in California and elsewhere, outrage among conservative activists and a solemn determination among those opposed to same-sex marriage to appeal the decision to the nation's highest court. Walker said opponents have until Friday to convince him that the decision should be stayed during the appeals process, or the marriages will resume. About 18,000 same-sex couples in California married in the five-month period between the time the state Supreme Court allowed such unions and the voter initiative curtailed them.

(Post poll: Do you agree with the decision?)

The U.S. Supreme Court has never directly addressed the question of same-sex marriage, and most think that the case is headed there after it is appealed to the U.S. Court of Appeals for the 9th Circuit.

Walker, a veteran judge who was first nominated by President Ronald Reagan and confirmed under President George H.W. Bush, accepted virtually every argument advanced by opponents of Proposition 8. They said the prohibition on same-sex marriage violated the U.S. Constitution's 14th Amendment guarantees of due process and equal protection.

(Appeal of ruling could delay weddings)

"To characterize plaintiffs' objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage," Walker wrote. "Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

(Obama: I'm against gay marriage and Prop 8)

Walker said the decisions of voters must be respected. But because the right to marriage is fundamental, he wrote, "voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons."

The ban's supporters accused Walker of interfering with a decision that ought to be left to the people, potentially inflaming the culture wars much as the Roe v. Wade decision of 1973 did in legalizing abortion.

"Under our Constitution, the definition and meaning of marriage is a decision left in the hands of the people, not given to that small fraction of the population who happen to be judges," Robert George, chairman of the anti-gay-marriage advocacy group National Organization for Marriage, said in a statement.

(Seea roundup of religious responses to Proposition 8)

One of the attorneys who represented Proposition 8's backers said they would immediately appeal the ruling.

"What's at stake here is bigger than California," Andrew Pugno said in a statement released by the Alliance Defense Fund, an advocacy group participating in the case. "Americans in numerous states have affirmed -- and should be allowed to continue to affirm -- a natural and historic public policy position like this. We are prepared to fight all the way to the U.S. Supreme Court if necessary."

(See a roundup of religious responses to Proposition 8 ruling)

Five states and the District of Columbia allow same-sex marriages, and 30 states have constitutional prohibitions such as California's.

State officials respond

Pugno's group defended the voter initiative because the state declined to. Even though he is the named defendant in the suit, Gov. Arnold Schwarzenegger (R) said Wednesday, "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."

State Attorney General Jerry Brown (D), who had declined to defend Proposition 8, said that Walker "came to the same conclusion I did."

It was the second major court decision in recent weeks to go the way of gay rights activists.

Last month, a federal judge in Massachusetts struck down a 1996 law barring the federal government from recognizing gay marriages. He said it was unconstitutional to disqualify couples in states where such marriages are allowed from receiving marriage-based federal benefits under the Defense of Marriage Act.

(Read more about the Massachusetts case.)

Challengers of Proposition 8 were represented by a political odd couple: conservative legal stalwart Theodore B. Olson and liberal trial lawyer David Boies. The two men were on opposite sides in arguing Bush v. Gore in 2000 before the Supreme Court, and Olson went on to become President George W. Bush's solicitor general.

(Read about how Olson's role in the case surprised conservatives.)

Washington lawyer Charles J. Cooper, who usually is on the same side as Olson, represented the group behind Proposition 8.

Walker had presided over a 2 1/2-week trial in January, but procedural matters delayed closing arguments until June.

Olson and Boies provided an elaborate record for Walker and future courts, with their own clients, social scientists, psychologists and experts on marriage providing testimony. Cooper called only two witnesses, and, in his questioning at closing arguments, Walker seemed peeved that Proposition 8's backers did not do more.

In his 136-page opinion, Walker returned to that, saying, "Proponents' evidentiary presentation was dwarfed by that of plaintiffs."

Backers' arguments

Cooper had argued that it is "crucial to the public interest" to limit marriage to opposite-sex couples. It is "fundamental to the very existence and survival of the human race," he said, that society promote marriage to ensure that procreative relations are in "enduring, stable unions," with a goal that children be raised by both parents.

But Walker said California had no requirement that couples who wanted to marry be capable of procreating or willing to procreate. He echoed the arguments of Olson and Boies that laws limiting marriage to opposite-sex couples were comparable to previous restrictions that disallowed interracial marriage or subjugated a woman to her husband.

The exclusion of homosexuals from marriage "exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage," Walker wrote. "That time has passed."

Curt Levey, executive director of the conservative Committee for Justice, denounced the ruling as "a particularly shameless example of judicial activism." He also raised the question of Walker's sexuality. The San Francisco Chronicle and the Los Angeles Times have reported that Walker is gay. The judge has neither confirmed nor denied those reports.

Boies called the ruling a "great result" saying that "discrimination against gays and lesbians is the last area where you have state-enforced discrimination, and this ruling goes a long way to eliminating that."

Boies and Olson were representing two couples -- lesbians from Berkeley and gay men from Burbank -- who had tried to marry but were denied licenses.

When asked at a news conference when the couples planned to marry, plaintiff Paul Katami responded, "I need time to order a cake."

The case is Perry v. Schwarzenegger.

Read more on PostPolitics.com.

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