Prop 8 judge rules: Unconstitutional


Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

In a ruling handed down this afternoon, Judge Vaughn R Walker, Chief Judge of the United States District Court for the Northern District of California has ruled:

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.

Judge Walker saw basis for Proposition 8 even on the lowest standard of legality. The ruling was broad making more likely that it will be taken by the US Supreme Court. Walker is an appointee of George H. W. Bush and would have been appointed by Ronald Reagan.

The ruling is here. Added 10:19 pm – the court has also issued evidence from the trial.

Proposition 8, the ban on same-sex marriage known by supporters as the “California Marriage Protection Act,” was passed by voters in November of 2008. Opponents were surprised because surveys leading up to the vote showed a slim majority of the electorate would vote against Prop 8. Ironically, a public opinion poll conducted by Public Religion Research Institute in June of this year also predicted “a similar ballot measure would not pass today.”

The verdict is likely to be appealed to the US Supreme Court. Yesterday, when the court announced it the decision would be issued today, proponents filed a Motion for Stay Pending Appeal accompanied by a memorandum in support of the motion — that filing is here. California is unique among the 50 states because gay marriage once was legal: “The period of granting such licenses began on June 16, 2008, due to a ruling by the Supreme Court of California based on an equal protection argument and ended November 5, 2008, due to the passage of Proposition 8.”

5:22 pm Eastern: A stay has been issued, so no marriages for now.

The Rev. Tom Jackson, President of OASIS California, will speak at a rally in San Francisco’s Castro district at 5 pm, Pacific time. That the gathering will then march to the Civic Center. The Rt. Rev. Marc Andrus, Bishop of the Episcopal Diocese of California will speak at the 6 pm rally in the Civic Center.

In September of 2008 the Episcopal diocesan bishops in California jointly issued a statement opposing Proposition 8.


The California Faith for Equality response to Prop 8 Decision? is here.

Statement from the Rt. Rev. Jon Bruno, Bishop of Los Angeles . Also here.

All Saints Episcopal Church, Pasadena

The Rt. Rev. Marc H. Andrus, Episcopal Bishop of CaliforniaAndrus reminds us, General Convention 2006 in Columbus passed Resolution A095 that said,

Resolved, the House of Deputies concurring, That the 75th General Convention reaffirm the Episcopal Church’s historical support of gay and lesbian persons as children of God and entitled to full civil rights; and be it further Resolved, That the 75th General Convention reaffirm the 71st General Convention’s action calling upon municipal council, state legislatures and the United States Congress to approve measures giving gay and lesbian couples protection[s] such as: bereavement and family leave policies; health benefits; pension benefits; real-estate transfer tax benefits; and commitments to mutual support enjoyed by non-gay married couples and be it further Resolved, That the 75th General Convention oppose any state or federal constitutional amendment that prohibits same-sex civil marriage or civil unions.

Jerry Falwell’s Liberty Counsel (schadenfreude opportunity)

The Church of Jesus Christ of Latter-day Saints

Calfornia Catholic Conference


Box Turtle has a roundup of Prop 8 supporter reactions.

For ongoing developments follow

More from the decision:

Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. FF 20, 34. The spouses must consent to support each other and any dependents. FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. FF 35-37. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567.

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Josh Thomas

I'm taking advantage of the schadenfreude opportunity!

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But, a caveat: expect this

The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.

to send the Wingnuts into overdrive---esp. re that term "governable."

"It's Obama taking over MARRIAGE too!" they'll cry (nevermind that this decision had nothing to do w/ Obama, but he's the Bete Noire upon which every stubbed toe is blamed these days). "He's out to destroy marriage, to make us 'governable' slaves in his Socialist Dystopian Nightmare!"

[Please, let me be wrong. }-X]

JC Fisher

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tobias haller

I beg to differ on "Never has the state inquired into procreative capacity or intent before issuing a marriage license..." (unless "state" means "California.")

Because, in fact, in certain states the government does inquire into procreative capacity in certain instances -- though in the negative: in the case of first cousins who are permitted to marry only if one or both are infertile. See the citations at Isocrat.

I'd also suggest the "right to have intercourse" lies behind some of the provisions in some states concerning blood tests.

On the whole, though, good job.

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