- The Washington Times - Wednesday, August 4, 2010

National recognition for same-sex marriage took a giant step forward Wednesday when, in a decision that some are comparing to Roe v. Wade, a federal judge overturned Proposition 8, California’s voter-approved constitutional amendment on traditional marriage.

In the first federal ruling on a state marriage amendment, one that has the potential to become a Supreme Court case that would strike down every state’s marriage law and make gay marriage a national fact, Chief U.S. District Judge Vaughn Walker ruled that Proposition 8, by defining marriage as the union of one man and one woman, violated the due process and equal protection clauses of the Constitution.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Judge Walker said in his 136-page decision. “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.”

He attributed the case against same-sex marriage to personal morality. “The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” he said.

Even so, California same-sex couples who went to City Hall on Wednesday hoping to be married were disappointed. The judge agreed to postpone the ruling from taking effect until Friday in order to hear arguments on whether a stay should be granted until the conclusion of the appeals process.

As expected, attorneys for ProtectMarriage.com, which gathered the signatures to place Proposition 8 on the ballot, said Wednesday they would appeal the decision.

“In America, we should respect and uphold the right of a free people to make policy choices through the democratic process — especially ones that do nothing more than uphold the definition of marriage that has existed since the foundation of the country and beyond,” said Alliance Defense Fund Senior Counsel Brian Raum.

The state, whose attorney general and governor both back gay marriage, did not bother to defend its law against the federal challenge, leaving the case in the hands of traditional-marriage advocates.

The reaction — both negative and positive — was immediate. More than a dozen parties and victory marches were planned in the San Francisco and Los Angeles neighborhoods alone, and celebrations were planned in other cities across the nation.

In a statement after the ruling, the White House said that President Obama, who said during the 2008 presidential campaign that he opposes gay marriage, “has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”

Comedian Ellen DeGeneres, who famously came out as gay and has married her partner, said on her Twitter account: “Equality won!”

Advocates of traditional marriage decried the decision, calling it an assault on democracy that could create the same bitter divisions over marriage that the Supreme Court’s Roe v. Wade ruling ignited over abortion.

“This lawsuit, should it be upheld on appeal and in the Supreme Court, would become the Roe v. Wade of same-sex ‘marriage,’ overturning the marriage laws of 45 states,” said Family Research Council President Tony Perkins in a statement. “As with abortion, the Supreme Court’s involvement would only make the issue more volatile. It’s time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box.”

Wendy Wright, president of Concerned Women for America, said “Judge Walker’s decision goes far beyond homosexual ‘marriage’ to strike at the heart of our representative democracy.”

In addition, University of Notre Dame law professor Gerard V. Bradley, who said much of Judge Walker’s actions during the trial were “bizarre,” should have recused himself, because “(as several newspapers have reported) the judge is openly gay.” The Los Angeles Times and San Francisco Chronicle have both reported that Judge Walker’s sexuality, though he is not “out,” is an open secret in California gay and legal circles.

The lawsuit was filed by two same-sex couples after California voters approved Proposition 8 by a margin of 52 percent to 48 percent in November 2008. The measure, which affirms that marriage is between one man and one woman, was placed on the ballot after the California Supreme Court gave the OK to same-sex marriage in May 2008.

Proponents heralded the decision as a monumental victory for gay rights.

“This ruling is a historic milestone for millions of loving families, for all who have fought to realize the dream of equality under the law, and for our nation as a whole,” Courage Campaign chairman Rick Jacobs said.

At the same time, same-sex marriage advocates acknowledged that the decision was just the first step in a legal battle that could take up to two more years. The courtroom dream team of David Boies and Theodore Olson, who represented the anti-Proposition 8 side, said they would move as quickly as possible to see the judge’s ruling enacted.

“We are going to fight hard so that the opinion of this judge will be brought to fruition for the people of California as soon as possible,” Mr. Olson said at a post-ruling press conference. “We will say to the 9th Circuit that if there is any delay at all it should be exceedingly short.”

Gov. Arnold Schwarzenegger, a Republican, and state Attorney General Jerry Brown, a Democrat, praised the ruling. Mr. Brown, who refused to defend Proposition 8, leaving the task to private attorneys, is the Democratic nominee for governor.

“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,” said Mr. Schwarzenegger. “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.”

Republican gubernatorial nominee Carly Fiorina has said that she voted in favor of Proposition 8.

Judge Walker took the unusual step of ordering a federal trial on the merits of Proposition 8 after opponents filed a lawsuit challenging the measure. The three-week trial wrapped up in January, with closing arguments taking place in June.

With the ruling, California will become the sixth state to perform same-sex marriages. The other states are Massachusetts, Connecticut, Iowa, Vermont and New Hampshire, plus the District of Columbia. Three states — Maryland, New York, Rhode Island — do not perform gay marriages but recognize such unions from other states.

Maine approved same-sex marriage in 2009, but it was overturned by the voters in a referendum election a few months later.

Indeed, advocates of traditional marriage note that voters have never approved a same-sex-marriage measure. In all the states where gay marriage is legal, it was accomplished by the courts or the state legislature.

In addition, 30 states have approved Defense of Marriage Amendments to their constitutions, which specifically reject gay marriage, though these would all be put in jeopardy by Wednesday’s ruling. Only one state’s voters have rejected a traditional-marriage amendment put before them, though Arizona did pass such a measure in a second attempt.

At the press conference, Mr. Boies was asked whether his side could prevail before the right-leaning Supreme Court. Mr. Boies reminded reporters that both he and Mr. Olson appeared before the high court when they argued on opposite sides of the landmark Bush v. Gore decision in 2000.

Said Mr. Boies jokingly: “[Mr. Olson] is going to get the five justices who vote for him in Bush v. Gore, and I’m going to get the four justices who voted for me.”

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