Prop. 8 gay marriage ban overturned; ruling unlikely to be the last word
UPDATED 2:50 p.m. PDT
READ THE COMPLETE RULING (PDF)
U.S. District Judge Vaughn R. Walker has overturned the voter-approved statewide ban on same-sex marriage. But it is unlikely to be the last word. Just minutes after the ruling, a stay was issued that halted gay marriages and disappointed crowds of gay activists gathered at San Francisco City Hall.
Walker ruled that Proposition 8 of 2008, the voter initiative that stopped gay marriage months after it began, violated the 14th Amendment to the Constitution. He wrote that Proposition 8 “disadvantages gays and lesbians without any rational justification.”
“A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation,” he wrote.
Not long after the ruling, a few hundred people headed from outside the Philip Burton federal courthouse to City Hall a block away, where advocates for gay marriage were hoping to see a resumption of same-sex marriages. They were singing, “Going to the chapel and we’re gonna get married.”
KALW News reported that the San Francisco assessor’s office would not be issuing same-sex marriage licenses Tuesday. The San Jose Mercury News reported Wednesday that they had filed a motion to stay the ruling pending an appeal.
Nonetheless, a crowd gathered at the top of the stairs in City Hall. No proponents of Proposition 8 could be seen.
It's long been expected that whichever side lost this ruling would appeal to the U.S. Supreme Court. And any Supreme Court decision on the marriage ban, approved in 2008 as Proposition 8 could still be years away, said Ted Olson, one of two lead attorneys opposing the ban, following closing arguments in the case.
The arguments back and forth within the courtroom took on very different issues from the ones that voters wrestled with in 2008. Indeed, David Fleischer, a gay rights activist with the Lesbian, Gay, Bisexual and Transgender Mentoring Project in Los Angeles, said in a recently released report that many voters were misled by anti-gay-marriage television ads.
Prior to closing arguments, each side responded to questions from Walker. Olson and colleague David Boies framed the case as a civil rights issue, one in which the voters of California and the state had taken away a constitutionally protected right of same-sex couples to marry.
Federal law does not recognize same-sex marriages, but the Defense of Marriage Act stipulates that states have authority over their own same-sex marriage laws. If the Supreme Court were to intervene and identify same-sex marriage as a constitutional issue, that would trump state and federal law.
Charles Cooper, representing proponents of the measure, framed the case as one in which the plaintiffs were attempting to override the will of the people on a proposition that is a matter of the state constitution and should not be decided in a federal courtroom.
Olson — representing plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeff Zarrillo — began his closing arguments speaking about the harm and humiliation they experienced by being treated differently from the heterosexual majority.
“Their state has rewritten its constitution in order to place them into a special disfavored category, where their most intimate personal relationships are not valid, not recognized, and second rate,” Olson said. “Their state has stigmatized them as unworthy of marriage, different and less respected.”
Olson stressed that his clients did not want to deinstitutionalize marriage, but rather to participate in it. He said the evidence presented by both sides in the case established that allowing same-sex couples to marry would improve the stability and wellbeing of their families, the state and the institution of marriage.
Therese Stewart, lead attorney for the San Francisco city attorney’s office, argued that permitting same-sex marriage would cut the state’s spending, especially costs associated with mental health treatment, and would stimulate San Francisco’s economy.
Defining natural relationships
Cooper, on the pro-ban side, argued that marriage has always been a union between a man and a woman, ensuring the survival of the species and channeling sexual urges into stable, enduring relationships that promote the goal of having both biological parents raise the offspring they produce.
“The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of — of the human race,” he said.
He referred to the testimony of David Blankenhorn, author of a book called “Fatherless America,” for evidence. Blankenhorn, founder and president of the Institute of American Values, was the sole witness whose evidence and testimony remained for the defense. Counsel for the couples fighting Proposition 8 had originally objected to him as an expert witness, but eventually withdrew the objection.
Blankenhorn’s testimony turned out to be, as Walker put it “somewhat equivocal,” and Olson used that to bolster his argument, showing a clip of Blankenhorn saying on the stand: “I do believe it is almost certainly true that gay and lesbian couples and their children would benefit by having gay marriage.”
Olson said he counted 14 Supreme Court decisions which established precedence for ruling in favor of the plaintiffs. He said it would be a matter of interpreting, not changing, the Constitution to restore the right for same-sex couples to marry. Among the rulings he cited was Loving v. Virginia, which overturned that state’s law against interracial marriage in 1967.
Olson concluded his closing argument by using Blankenhorn's own words: "Gay marriage would be a victory for the worthy ideas of tolerance and inclusion. It would likely decrease the number of those in society who tend to be viewed warily as ‘other’ and increase the number who are accepted as part of ‘us.’ In that respect, gay marriage would be a victory for, and another key expansion of, the American idea.”
In his counter-argument, Cooper pointed out several rulings, including the 2009 case High Tech Gays v. Defense Industrial Security Clearance Office, to establish precedence to uphold Proposition 8.
Cooper sought to establish that the opposite-sex aspect of marriage is a definitional one, and specifically so in legal terms.
“Indeed, when the Massachusetts Supreme Judicial Court made Massachusetts the first state to legalize same-sex marriage in 2004, it acknowledged that its ruling, and I’m quoting, ‘Changed the definition of marriage as it had been inherited from the common law and understood by many societies for centuries,’” he said.
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Appearing after closing arguments in the Proposition 8 trial, Paul Katami (left), Ted Olson, Kristin Perry and David Boies, said their aim was to have gays and lesbians join marriage, not change it. Photo by Monica Jensen/SF Public Press.
About the Author
Kristine Magnuson is one part reporter and editor for SF Public Press, one part author, one part visual artist, and one part social media maestro. As a content partnerships editor, she helps the Public Press bring readers unique San-Fran-centric stories from other independent news organizations.
Comments
A reader who apparently found our story through a CNN link wrote the following:
I think your column was biased in favor of the Judge’s Ruling, rather than reporting the story fairly. I expect that you will take the direction that if the Judge were straight and married that it could be claimed by the opponents of Prop 8 that he was biased against them. I don’t think that would be so unless the Judge had demonstrated that bias in his writings, speeches or by his personal actions, in which case the Judge should recuse him or herself. I do however feel that this Judge was biased by the way he handled the case and the way he wrote his decision. I believe that bias comes from the fact that many gays feel they are discriminated against, and I would not argue that they are not. I think that gays that are activists or are followers of activists are out to push their agenda to be accepted as equal. I think the perception of inequality is only from their perspective. I have known many people during my life that are gay and some of my close friends are gay. I accept them the way they are as friends. I agree with their wanting to have the same rights as married people, but I do not think they should have the right to be married to a same sex partner. Civil unions or domestic partnerships have been legislated by 13 states and provide most of the benefits that same sex couples are looking for. You may say this is not the same as equality. It may not, but I might argue that there are many that I would not be judged equal to and I am a straight heterosexual male. But, we are talking about opinions here, personal opinions. And that is what this Judge did. He gave his personal opinion and not a legal opinion which he was bound to do. I think he realized that was the case and knew an appeal would be entered so he stayed his own decision, pending the appeal to the 9th circuit court. What I expect from a writer in a news column however, is not their opinion, but the truth or at least the facts, all the facts, so I and other readers can form our own opinion. It is unfortunate that there are so many gullible people that believe everything they read as being an absolute truth, because of where they read it. . . . I thank you for your reply.
M.H.
(I've used the reader's initials rather than name, just in case this person would prefer not to use his or her name publicly.)
Dear M.H.,
Again, thanks so much for taking the time to comment on the article I've written for S.F. Public Press.
You make a point which is sure to be debated quite extensively in following months and years. What I will grant you is that I have presented coverage from somewhat of a San Francisco perspective, largely because the focus of our publication is San Francisco news. While certainly not all San Franciscans or Californians would agree with Judge Vaughn Walker's ruling in this case, in general, San Francisco residents seem to favor it. Today, I heard on television for the first time a term which is actually new to me, the "Rainbow Belt," in reference to our region of the country. My impression is that outside of California, New York and many other large cities, the country's perspective still tends to lean in another direction.
Three points:
First, many who first heard that Judge Walker had been picked by the random selection process to hear this case actually first suspected he might have a bias against same-sex rights interests, partly because he was first appointed by Former President, Mr. Ronald Reagan (a president who is still strongly revered by many "conservative" or Republican voters and thinkers, as well as independent ones), and also partly because Walker had once ruled in a case that the "Gay Olympics" could not use the term "Olympics" in their name since only the official Olympic Committee had that legal right.
Clearly, the "Gay Olympics" case was a very different type of case, but I do think Walker’s decision in that case suggests what I personally witnessed of Chief Judge Vaughn Walker's professional demeanor in the courtroom in Perry v. Schwarzenegger during my many hours observing the trial: that he seems to rule based on the law as he understands it, and on the case as it’s been presented.
I found the judge to be respectful to attorneys and witnesses from both sides of this case, as well as highly articulate in matters of legal reasoning. So the second point I'd like to make is this. My interpretation of the events of Perry v. Schwarzenegger has been shaped largely by my first-hand observations, based on the evidence I've seen presented, the arguments I've heard articulated, and the documents and findings I've done my best to understand and summarize for our readership.
My third point is that I haven't personally spoken with the judge about his orientation (or any other matter), or with anyone close enough to him to presume to know his sexual orientation with any degree of certainty, so I did make a choice not to report on rumors that the judge might actually be gay, though the one rumor I caught wind of was that he was not at all openly gay, but actually "closeted." I don't necessarily think that even if the judge were to be identified as gay that he would need to recuse himself from the case on those grounds, but I don’t know the legal guidelines for recusing oneself, and I certainly don't think that anyone on the defense team ever suggested that he should do so, so I think it's wise to take my cue from that. Had they felt that to be an issue, I assume they would have addressed it much sooner. But in any case, we do have the higher courts to review the entire case and make all of those determinations, and I have the highest hope that they will remain impartial in doing so, as they've been professionally trained to do to the extent that it’s possible for any person to remain impartial, in spite of personal biases, which of course we all hold to at least some degree.
If you haven't yet had an opportunity to witness the trial first-hand (as sadly, most people throughout the country haven't), I'd urge you to read the transcripts in their entirety. Since reading so much in the way of legal documents can be dry and tedious, I'd also recommend watching the reenactments of the court proceedings of Perry v. Schwarzenegger available at http://marriagetrial.com. (While the reenactments were produced and directed by two very openly-gay men, both of whom are married to their husbands, those producers, John Ainsworth and John Ireland, did go to some lengths to avoid editorializing in terms of directing their actors. This is not to say that the directors do not have a particular bias; just that they did try not to let that interfere in any way with what they regarded as a "documentary" process.)
I feel incredibly lucky to have been able to attend so much of the trial in person, as I already live in S.F., and I wish that people throughout the country could have taken off time from work and traveled to do the same, or else seen the trial televised or broadcast online.
I think that anyone who takes any interest in this case, regardless of his or her stance on it, would want to witness the case and learn from it. As a sometime-educator, I found it challenging, fascinating, and educational to see our legal process in action.
I hope everyone would join me in urging our higher courts to broadcast the appeals trial(s) expected to follow, so that our entire citizenry, and not just a privileged few, are able to stay engaged with this issue and examine what all the proponents and opponents have to say.
Again, thank you so very much for sharing your thoughts, and please, do let us know if you disagree with any facts we've presented about the case. It's in our best interest, and that of our readers, to ensure that our coverage is as factually accurate as possible.
Truly,
Kristine Magnuson
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