Proposition 8 Overturned: Supreme Court Battle Looms

At 4:50 pm EST this afternoon, Federal District Court Judge Vaughan R. Walker (District of Northern California)overturned California's Proposition 8, setting the stage for an eventual national showdown at the US Supreme Court.

California courts had earlier required Marriage Equality, and couples began to marry under the decision, but opponents gathered enough signatures to force a referendum on the issue popularly known as "Proposition 8." (Law-making by 'popular vote' is a traditional lawmaking route in the west of the United States, but is little used elsewhere. During the last generation, then-Governor Ronald Reagan opposed a ballot initiative supported by singer Anita Bryant that would have baned gays from teaching. The campaign propelled San Francisco mayor Harvey Milk into the national limelight as he pleaded with GLBT men and women to leave the closets and be counted among their neighbors and families. That ballot initiative ultimately failed.)

But this time, after more than 80 million dollars were spent campaigning, proponents of Prop 8 won by a vote of 52-48%, and Marriage Equality immediately ceased in California 5 months after it started. Two attorneys, David Boies and Theodore Olson(one a liberal Democrat and one a conservative Republican) then brought this suit on behalf of two gay couples and challenged the referendum vote in Federal Court on the basis of the 14th Amendment to the U. S Constitution, which requires the Equal Protection of Laws for all citizens in a case more properly known as Perry et al v. Schwarzneggar. Same-sex marriage had never been challenged on these Constitutional grounds before, and many gay-rights groups expressed everything from delight to nervousness to outright hostility at pursuing this avenue of attack.

During the trial, opponents of gay marriage saw their case fall apart, as 'expert' witnesses failed to show up or to provide evidence of their 'expertise,' while Boies and Olson brought in a parade of experts in marriage, family law, and psychology to show the discriminatory nature of Prop 8 and the campaign that surrounded it.

In the end, Judge Walker wrote:

"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment...Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation...Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.“


This means that there are now TWO Federal Court rulings citing three different Constitutional provisions chipping away at systematic discrimination against gays and lesbians: This Prop 8 ruling, which places sexual orientation under both the equal protection and Due Process clauses of the 14th amendment, and Judge Tauro's decision in Massachusetts last month, which held that the so-called federal "Defense of Marriage Act" ("DOMA"), which prohibits the federal government from acknowledging the validity of same-sex marriages performed in the states where it is legal, was also unconstitutional under the 10th Amendment guaranteeing State's Rights in family issues.

There is little doubt that both of the California and Massachusetts decisions are headed to Appellate Circuit Courts, and eventually to the Supreme Court, where a decision of national import is likely to rest on the shoulders of the Courts only centrist, Justice Kennedy.