In Prop 8 Case Constitutional Concepts of Marriage and Discrimination Are Key

United States District Judge Vaughn Walker of San Francisco issued a 136 page ruling yesterday holding that Proposition 8, a voter approved ban on gay marriage in California, is unconstitutional. Central to yesterday's decision and future ones will be how far the government can regulate marriage and what threshold of legal protections should extend to gays and lesbians. The decision came after a lengthy trial involving two same sex couples, one male and one female. Judge Walker, who is gay and a Republican appointee, also issued an order preventing his decision from being implemented pending an expected appeal to the United States Court of Appeals for the Ninth Circuit, the intermediate appellate court covering the West Coast that is the final stop before the case likely moves to the United States Supreme Court. The Ninth Circuit is the most liberal of the federal appellate courts and is known for advancing new legal analysis. It is also the most reversed of all the appellate courts.

The district court decision laid out a legal analysis that will be key to the next step at the appellate level. Walker wrote, "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently ... prohibiting the official defendants [California] from applying or enforcing Proposition 8."

Appellate courts generally concentrate narrowly on the application of the law in a case, rather than retrying the underlying facts. The carefully crafted decision found that California's ban on gay marriage violated two key provisions of the United States Constitution's Fourteenth Amendment. The Supreme Court holds that the amendment enacted shortly after the Civil War in February 1868 confers equal protection of the laws to citizens and also prevents states from unduly interfering with certain fundamental individual rights.

Walker's decision found that the state impermissibly interfered with marriage, a right that the Supreme Court has previously held to be "fundamental." In June 1967 the United States Supreme Court in Loving v. Virginia struck down laws banning interracial marriage in over one dozen states holding among other things, marriage to be a fundamental right. When a right is categorized as fundamental the ability of government to interfere with it is severely restricted, though not necessarily eliminated. The government may in fact apply rules that interfere with a fundamental right like marriage, religious exercise, or speech if the government's conduct survives what is called the "strict scrutiny" test. That test requires that government's restriction on an individual's fundamental right advance a compelling governmental interest in the least intrusive manner possible. Relying on facts methodically introduced at trail Walker concluded that the state's restrictions on gays' marital rights simply were not advancing compelling interests in a narrow way and were instead based on less legitimate motives. He rejects the notion that certain religious traditions can serve to restrict how the government authorizes marriages:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

Walker also attacked the state restrictions on equal protection of the law grounds, The modern concept of discrimination is also rooted in the Fourteenth Amendment. The notion is that similarly situated people should be treated as such. The United States Supreme Court has held that laws which differentiate between groups of people should at the lowest baseline have some rational, non-animus, basis for such differential treatment. Some categories, like racial groups, get even greater protection. As with fundamental rights, differential governmental treatment based on race must advance a compelling governmental interest that is narrowly tailored to achieve that interest. Walker said that he believes gays as a group should have heightened protections akin to race--a view that the Supreme Court has not as of yet adopted. Previously, the Supreme Court has held that differential treatment of gays by the government will be struck down if the government can not articulate a rational basis for doing so and the Court squarely rejected homophobia as a justification. In any event Walker ruled that the state's restriction on marriage by gays and lesbians, i.e. "same sex" does not even pass muster on a rational basis analysis, the least taxing test of the government's authority.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses' obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

CBS Legal analyst Andrew Cohen wrote of the importance of Walker's craft in laying out factual evidence presented at trial to buttress his legal conclusions:

1. "Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation."

2. "California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California."

3. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners."

4. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

5. "The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

6. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."

7. "Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society."

8. "Proposition 8 increases costs and decreases wealth for same sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage."

9. "Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents."

10. "The gender of a child's parent is not a factor in a child's adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted."

The Supreme Court with Californian Justice Kennedy as the swing vote will get the case in coming terms. There the court will determine how far the government can restrict the fundamental right of marriage and whether in the context of marriage gays and lesbians are, as Judge Walker contends, similarly situated to straight citizens.