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California Marriage Definition Held Unconstitutional

In anticipation of the issuance on August 4, 2010, of a decision on the constitutionality of a provision of California’s Constitution defining marriage as solely between one man and one woman, gay rights activists scheduled protests or celebrations (depending on the ruling) for the Bay Area and elsewhere. Judge Vaughn Walker, the chief judge of the U.S. District Court for the Northern District of California, issued his 138-page opinion holding the California marriage definition unconstitutional at approximately 2:00 p.m. California time, so celebrations seem likely. There has been such intense interest in the decision that the court’s principal site for posting important decisions was very busy and a mirror site was made available for it.

In a nutshell, Judge Walker held that the California definition of marriage as solely between one man and one woman adopted as an amendment to the California Constitution via Proposition 8 violates the guarantee of equal protection of the laws under the Fourteenth Amendment to the U.S. Constitution and is, therefore, unconstitutional. He rejected the notion that “traditional views” of marriage are a valid basis for limiting the status of marriage to that between a man and a woman. For what little if anything it may be worth, Judge Walker was nominated by President George H.W. Bush and confirmed by the U.S. Senate on November 21, 1989, on unanimous consent.

Judge Walker’s decision in Perry v. Schwarzenegger is available here. It was issued following many days of hearings as well as legal arguments in support of and against the constitutionality of California’s marriage definition. The proponents of Proposition 8 offered very little substantive evidence, and the opponents offered lots. Judge Walker rejected nearly all of the testimony of the proponents’ witnesses as not credible or as beyond the limits of their expert competence. Such determinations by a trial judge are customarily given very substantial weight on appeal because the trial judge heard the witnesses and the appellate court will not. Judge Walker concluded that the proponents failed to meet “the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest.”

Judge Walker based his ruling on the following:

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

He concluded that religious perceptions are not constitutionally significant and that “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. In addition, “marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.” However, individuals do not generally choose their sexual orientation and “marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” In addition, a domestic partnership

does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.

Accordingly, he decided that Proposition 8 stigmatizes gays and lesbians as inferior to heterosexuals and accordingly undeserving of the full recognition of society. Further, the “relationship between sex and sexual orientation makes Proposition 8 discrimination based on sex”; and Proposition 8 “was premised on the belief that same-sex couples simply are not as good as opposite-sex couples, which is not a proper basis on which to legislate.” In conclusion, he held that

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.

Judge Walker held that freedom to marry is recognized as a fundamental right protected by the Due Process Clause and accordingly Proposition 8

unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

Consistently with the tenor of his opinion, Judge Walker did not stay the effectiveness of his decision pending appeal.

What happens next? If appealed, the appeal would go to the Ninth Circuit Court of Appeals to be heard by a three judge panel. Governor Schwarzenegger has stated:

Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision.

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.

Today’s decision is by no means California’s first milestone, nor our last, on America’s road to equality and freedom for all people.

A petition for en banc reconsideration of the decision, grant of which would be discretionary, could be filed by the proponents (or some of them) of Proposition 8 and the petition would be decided by a nine judge panel drawn from the twenty-nine Ninth Circuit judges. Following whatever might happen at the Ninth Circuit, the case could be presented to the Supreme Court on a petition for certiorari, grant of which would be also discretionary.

Although various proponents of Proposition 8 have indicated that they would appeal a decision such as that issued by Judge Walker, it seems entirely possible that no appeal will be filed. The decision is consistent with that in a companion case to Massachusetts v. U.S. Dept. of Health and Human Services, where Judge Tauro of the United States District Court for the District of Massachusetts held that regulation of marriage is up to the states under Article 10 of the Constitution rather than the federal government and that the Defense of Marriage Act (DOMA) impermissibly intrudes upon that state prerogative. Despite this perhaps obligatory homage to states’ rights, Judge Tauro held in the companion case, Gill v. Office of Personnel Management, that the DOMA definition of marriage violates the U.S. Constitution’s guarantees of equal protection and due process embodied in the Fifth Amendment. Judge Tauro held that

this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.

In this context, and also in addressing the rights of the states to define marriage as they please, Judge Tauro cited the Supreme Court’s decision in Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967), striking down state laws prohibiting interracial marriage, holding that “prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.” Judge Walker cited the same case in his opinion. Unlike the Supreme Court’s Loving v. Virginia decision, the two District of Massachusetts decisions are binding only there; they can, however, be relied on elsewhere for whatever they might be deemed worth.

This article is intended to reflect only my views as a (retired) attorney, and I advocate no personal position; I have no personal views, religious or otherwise, on whether homosexual marriage is good or bad. When the California Supreme Court on May 8, 2008, initially held that a statutory definition of marriage as between one man and one woman, enacted by the legislature, was invalid under the California Constitution my principal concern was that some churches, for example the Roman Catholic Church, the doctrines of which forbid them, might be forced to perform such marriages. The California Supreme Court later held that an amendment to the California Constitution including substantially the same definition was OK; it did not consider the United States Constitution. In the present case, my concerns about the impact on churches is reduced but not entirely assuaged by Judge Walker’s statement that “religious leaders may determine independently whether to recognize a civil marriage or divorce.” My concerns to some extent remain, however, because that observation amounts only to dictum, i.e., a statement by the judge superfluous to his holding and therefore not legally binding. This issue may well arise in subsequent litigation.

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