The Washington Times - August 5, 2010, 04:26AM

A federal judge on Wednesday struck down California’s ban on same-sex marriage (otherwise known as Proposition 8).  Reports say attorneys on both sides of the the case conceded that regardless of the ruling on Wednesday, they are expecting a long appeal process that could take the case up to the U.S. Supreme Court. 

Some excerpts from the ruling reads:


The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1. According to plaintiffs, Proposition 8 violates the Equal Protection Clause because it:

1.Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and

2.Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

The ruling also includes opinions from the judge, who is openly gay himself, on why voters cannot ban gay marriage, why homosexuality is not a choice, and why he thinks gender is no longer a necessary component of marriage. The L.A. Times includes a comprehensive list of excerpts from the judge’s decision.

Rep.Tom McClintock, California Republican, responded to the ruling on Wednesday telling me:

“It flies in the face of more than two centuries of American jurisprudence of affirming the traditional institution of marriage, so I strongly believe that this will be reversed as long as it is decided on legal as opposed to political,” he said.

“If the decision stands, it will require an amendment to the United States Constitution, which is not a small undertaking, but if it’s allowed to stand  the United States Constitution is really meaningless. Judges can imprint their own biases on that document. So if a decision like this is allowed to stand, it means that the Constitution is a meaningless document subject to the whims of the judiciary. I wouldn’t understand the point of amending it if the judges feel free to legislate from the bench.”

Conservatives are questioning the logic of the ruling and are looking at President Barack Obama’s Supreme Court nominee Solicitor General Elena Kagan as someone willing to make more political decisions from the bench as opposed to legal ones.  In mid- July, Ed Whelal at National Review gave an interesting look into how Judge Walker conducted the case:

Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who voted in support of Prop 8. 

Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors.  That ruling was overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.  But the portion that survived enabled plaintiffs to conduct scorched-earth discovery that leveraged the massive resource advantage provided by their lavish Hollywood backers.  And the sweeping judicial invasion of the core political speech rights and associational rights of Prop 8 supporters had the added benefit, from Walker’s perspective, of intimidating opponents of same-sex marriage from ever daring to exercise those rights again.

Take Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate.  Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality. 

Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.  And—surprise, surprise—every single one of plaintiffs’ “expert” witnesses is an activist for same-sex marriage whose “expert” testimony was just a repackaging of their political advocacy

 It should be noted that Proposition 8 passed in California during the 2008 presidential elections when voters went to the polls and 52 percent of state residents voted in favor of the referendum that would ban same-sex marriage in the state for five months.