Wednesday, August 4, 2010

Gay marriage not banned in California

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," [Reagan appointed Judge] Walker wrote. "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."

California court overturns Proposition 8 bar on gay marriage
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An interesting result in California, not entirely unexpected since the Northern District of California court has a record of interpreting civil rights more broadly than other United States District Courts. The findings of Chief Judge Vaughn R. Walker are certain to be appealed to the U.S. Court of Appeals for the Ninth Circuit and ultimately, to the U.S. Supreme Court.

Judge Walker issued a temporary stay Wednesday against his own judgment striking down Proposition 8 and will take arguments Friday about lifting or continuing the stay. Opponents of gay marriage, as expected, filed an appeal of the decision that declared the ban unconstitutional.

A Philadelphia Inquirer editorial Equal under the law suggests the ultimate result is likely clear:
Walker has decades of Supreme Court case law on his side: In 1967, the court overturned prohibitions of interracial marriage; in 1978, it declared unconstitutional a Wisconsin law preventing child-support scofflaws from marrying; in 1987, it struck down a Missouri law that said imprisoned felons couldn't marry; in 2003, it ruled that states could not outlaw consensual homosexual activity.

"Decisions of this court confirm that the right to marry is of fundamental importance for all individuals," the court wrote in 1978.

Thus there will be a high hurdle for those who seek to reinstate California's ban. There is not much from their side for higher courts to review, as they called only two witnesses. "Proponents' evidentiary presentation was dwarfed by that of plaintiffs," Walker noted in his opinion.

Any final ruling of course will be bigger than one case in California. Thirty states have prohibitions similar to Prop 8, while five states and the District of Columbia recognize same-sex marriage.

If Walker's ruling is ultimately upheld, a host of difficult questions will have to be confronted. In particular, how will the rulings impact churches and religiously affiliated social-service agencies?

Best to start thinking through those issues now, because, as Ted Olson, one of the plaintiffs' lawyers said, "With this decision we are well on our way to an ultimate victory."
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