Prop. 8 struck down

Judge stays ruling pending appeal, but big guns ask for marriage now

by Anthony Glassman

San Francisco--U.S. District Court Judge Vaughn R. Walker spent almost a quarter of his 136-page ruling picking apart the constitutionality of Proposition 8, the 2008 California constitutional amendment barring same-sex marriages, ultimately finding it in violation of the federal constitution�s guarantees of equal rights.

The ruling was handed down on August 4, but Walker stayed the decision, meaning that same-sex marriages are not yet being performed again in California. However, both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown filed requests with the court that Walker lift the stay so that marriages may begin again.

That leaves the people behind ProtectMarriage.com/Yes on 8, who were intervenors in the suit on the defendants� side, as the only ones left standing on the anti-marriage end for an appeal.

Vaughn heard arguments in the case in January, then received written answers to further questions in June.

In his ruling, Walker points to contradictory statements from defense witness David Blankenhorn, who while defending the �traditional� definition of marriage, acknowledged that same-sex couples would benefit from the ability to marry, as would the state of California benefit from allowing them to marry.

He also points out that another heavyweight defense witness, political scientist Kenneth Miller, contradicted himself by saying that gay men and lesbian had political power because of some political successes over the last few decades, but wrote in a 2001 book that gays and lesbians were as vulnerable and powerless as other minorities in the initiative process.

Because of these inconsistencies, Walker wrote, he mostly disregarded the testimony of the two witnesses.

In going over the factual findings of the case, Walker noted that there was a large coalition of religious organizations working with ProtectMarriage.com to pass the initiative. He then wrote, �Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.�

He also noted, �California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.� That statement alone cuts to one of the main arguments of the Prop. 8 proponents, that the amendment was necessary to �protect� children, and that marriage as an institution is elevated to give impetus to procreation.

Walker went on to cite a number of ways that the institution of marriage had changed in just the 160 years that California has been a state: the days when African American slaves could not marry because, as property, they could not consent to marriage, the era of laws barring interracial marriage, the doctrine of coverture, the complete economic subjugation of the wife to her husband, and divisions of labor along gender lines, with women taking care of the home and raising children, and men going out to work.

According to New York Law School professor Arthur S. Leonard, writing an exhaustive examination of the ruling in Gay City News, �The long section of factual findings may seem redundant, but Walker articulated several times during the trial his concern to compile a detailed record, realizing that the case would be appealed no matter which side won. By pinning down a wide range of potentially relevant factual findings, he believed he would provide a strong basis for the winning party to defend his ruling on appeal.�

John Schwartz of the New York Times wrote, �Appeals court judges and the justices at the highest court in the land could find themselves boxed in by the careful logic and structure of Judge Vaughn R. Walker�s opinion.�

�They are supposed to take as true facts found by the district court, unless they are clearly erroneous,� said Northwestern Law School Prof. Andrew Koppelman. �This opinion shows why district courts matter, even though the Supreme Court has the last word.�

University of California-Irvine law school Dean Erwin Chemerinsky noted, �His decision does not depend on the higher court finding strict scrutiny� He finds it doesn�t even meet rational basis review.�

Chemerinsky lauded the ruling for its conservatism.

That conservatism is an integral part of Walker�s make-up, despite anti-gay activists bemoaning to the media that Walker is gay and therefore should not have been allowed to decide the case; one assumes they would also ask a divorced judge to step down from the bench of family court, or an African American judge to recuse herself in a case with a black defendant.

Despite their protestations of Walker�s �judicial activism,� however, the fact remains that he was first nominated to the federal bench by Pres. Ronald Reagan, having been recommended by Ed Meese. Nancy Pelosi and Edward Kennedy opposed his nomination, along with leading LGBT organizations at the time.

A later nomination by Pres. George H.W. Bush succeeded in getting him on the bench.

Walker has been called a Libertarian, and first made his name filing suit against what were then known as the Gay Olympics on behalf of the U.S. Olympics Committee.

A June public opinion survey in California conducted by the Public Religion Research Institute found that support for Prop. 8 has dropped, with 51 percent of voters now saying they would vote to allow same-sex couples to marry, and 45 percent saying they would vote to keep the ban in place.

The case will now go to the Ninth Circuit Court of Appeals, which is unlikely to hear arguments in the case before the new year.