Federal Judge Rules California’s Gay Marriage Ban Unconstitutional

Judge Vaughn R. Walker today ruled to overturn California’s gay marriage ban, finding that Proposition 8 violated both the Equal Protection Clause and the Due Process Clause of the U.S. Constitution.

Applying strict scrutiny analysis, the federal judge concluded that Proposition 8 both denies gay couples a fundamental right to marriage and also targets a disfavored class by relegating the gay community to the lesser status of domestic partnerships for no legitimate government interest or societal benefit.

In the opinion, Judge Walker wrote:

“Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.”

What Happens Next in the Proposition 8 Case?
Ahead of today’s decision, the pro-Proposition 8 side applied for a stay, writing: “A stay is essential to averting the harms that would flow from another purported window of same-sex marriage in California” warning of the distress gay couples could face should the decision be oveturned and the pressure it would put on licensing officials.

The irony of the pro-Proposition 8 side’s supposed concern that banning gay marriage could cause same-sex couples harm, in spite of the fact that they argued the opposite during the trial, is palpable.

Regardless, Judge Walker has issued a motion to stay this decision from going into effect pending the appeal. You can read that here.

The case will now go before the 9th Circuit Court of Appeals. While there is no deadline for this decision, it is likely that both sides will want an expedited ruling.

Should the 9th Circuit rule that Proposition 8 is unconstitutional, this would set a precedent for states falling within the court’s jurisdiction. You can find out which states that would effect here.

Ultimately, it is thought that the case will be taken before the U.S. Supreme Court with a possible time frame of two to four years depending on how quickly the 9th Circuit takes up the case.

How Did the Proposition 8 Court Case Come About?
California’s Supreme Court ruled in early 2008 that same-sex couples could not be discriminated against under the state’s marriage laws and struck down a previous gay marriage ban.

18,000 same-sex marriages were carried out before Proposition 8 passed at the ballot in November, 2008. The court subsequently ruled to preserve the ban, but also upheld the 18,000 same-sex marriages.

Plaintiffs Kris Perry, Sandy Stier, Paul Katami, Jeff Zarrillo, a lesbian and a gay couple respectively, filed against the state of California claiming that Proposition 8 violated their rights, subjected them to actual emotional harm and that it was enacted through a campaign of anti-gay animus.

You can read more on this in our coverage The Proposition 8 Court Case: What’s the Big Idea?

The Proposition 8 Legal Teams

Representing the plaintiffs were legal odd couple David Boies, a liberal and noted litigator, and Ted Olson, a self-avowed conservative and former Solicitor General. The two famously went head to head in the Bush v. Gore trial of 2000.

Ahead of the trial the Boies/Olson team offered: “More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” referring to the Court’s decision in Loving v.Virginia, which struck down bans on interracial marriage.

This was at the heart of the case: that the U.S. Constitution prohibits the enactment of California’s Proposition 8 because marriage is a fundamental right that should never have been subjected to a majority vote.

The team argued that gay and lesbian people suffered political powerlessness, faced a history of discrimination and that sexuality is an immutable or unchangeable characteristic.

California’s Governor Schwarzenegger and Attorney General Jerry Brown declined to defend Proposition 8 in court, both believing the marriage ban to be unconstitutional, so it was left to the group Protect Marriage and a coalition of like-minded groups to take up the case as defendant intervenors.

As such, Charles Cooper took the helm as the lead attorney for the pro-Prop 8 side. The defendant intervenors offered that the ban was a reasonable exercise of the majority will, and that gay marriage constituted a radical redefinition of marriage – an institution they put at the core of how we rear children and ensure child welfare – and that this redefinition could harm “traditional” marriage and society.

Therein, they postulated that there exists a legitimate government interest in upholding the ban, and that there is no need to actually prove that harm has occurred from gay marriage, saying it was sufficient enough that traditional marriage could be harmed to decide that the ban should stand.

Find out more in our coverage The Proposition 8 Court Case: Opening Statements, Testimony and Reaction

Judge Walker Considers the Wider Questions of the Gay Marriage Case
The trial began at the start of the year and lasted from January 11 to January 27. Throughout the trial Judge Walker asked probing and consistently demanding questions of both the plaintiffs and defendant intervenors. The trial concluded in June with closing arguments.

Throughout the trial, Judge Walker demonstrated a desire to examine in detail the kinds of arguments the courts usually maneuver around, asking questions as to the nature of sexuality, whether homosexuality was an immutable characteristic, and whether there was proof that Proposition 8 was enacted through anti-gay animus.

Prior to closing arguments, Walker issued a list of 39 questions he wanted answered, which included whether the court could rule on Proposition 8 without also ruling on the legality of the federal ban on gay marriage, the Defense of Marriage Act.

The Proposition 8 Decision and the Road Ahead

Ultimately, Judge Walker ruled that “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” adding in his rather lengthy and withering opinion, “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”

He also found that domestic partnerships, by their nature, “invidiously discriminate” by relegating gay and lesbian couples to a lower status than marriage.

But one thing is clear, as important and affirming as today’s ruling is, it is only one step along the road of a much larger fight, with the next stop being the Court of Appeals.

As a final note, while this case took a sideways glance at DOMA, the federal ban on gay marriage, a recent court decision ruled that a portion of the federal law itself was unconstitutional. Readers can discover why a federal judge struck down Section 3 of DOMA here.

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Photo used under the Creative Commons Attribution License, with thanks to angela n.


W. C
W. C2 months ago


William C
William C2 months ago

Thank you.

Ed Gould
Ed G6 years ago

Quick Google cam uo with this:

It would weaken the definition and respect for the institution of marriage.
It would further weaken the traditional family values essential to our society.
It could provide a slippery slope in the legality of marriage (e.g. having multiple wives or marrying an animal could be next).
The gay lifestyle is not something to be encouraged, as a lot of research shows it leads to a much lower life expectancy, psychological disorders, and other problems.

Ed Gould
Ed G6 years ago

That is the 100,000 dollar question. Its one that the other side refuses to answer as they do not have anything to backup thier argument.

One person I heard said something like that people (presumably married types) will see what a great life the gays have and will want to get a divorce as a result.

This is their side *NOT MINE*

Miranda Lyon
Miranda Lyon6 years ago

Even trying to look at it from their point of view, I don't understand why anyone feels their heterosexual marriage is threatened if gay and lesbian human beings have the same privilege and right to legal marriage they have.

kenny s.
Kenny Stidham6 years ago

@ Pam W.... The reason these anti-gays dont answer these questions is because they cant. They dont have legit reasons for being against gays. They are doing what they "think" a stupid backward religious belief has told them. I glad I dont need an ancient book like the bible to tell me how to be a good person. It just comes naturally to me. "christians" cant say the same.

pam w.
pam w6 years ago

Just once, I'd like someone to list...in detail....these "harms to traditional marriage." Just once, I'd like someone to explain why my brother and his partner would threaten anyone else's marriage if they were able to legally marry. Just once, I'd like someone to tell us what Jesus had to say about same-sex marriage.

Heather G.
Heather G6 years ago

Willetta, I don't know if you realize this or not but not all "gays" are men and lesbians can and do give birth to their own children!!

Plus, believing that sodom and gomorrah was caused by gay people is along the same lines as believing hurricane katrina hit New Orleans because there was too many bars or prostitutes in that town.

Danuta W.
Danuta W6 years ago

Thanks for sharing.

Willetta S.
Willetta s6 years ago

Ruby W.. thats liking saying animal abuse is okay....its been going on forever... and hasn't stoped and in that case, it sounds like as long as it's been going on sence the begaing of time that its okay !

W R O N G, W R O N G, W R O N G and W R O N G !!!!

PLUS... In the bible it says to.. go and friutful { in plain english } have children,,,forge adoption ..having giving birth, if it were ment for gays ... men would be able to have a baby. duh !