Judge Rejects Prop. 8 as Unconstitutional

     SAN FRANCISCO (CN) – A federal judge ruled Wednesday that Proposition 8, California’s voter-approved ban on same-sex marriage, is unconstitutional. “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose,” U.S. District Judge Vaughn Walker wrote. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.” An appeal is expected.




     Walker made the much-anticipated ruling in response to a lawsuit filed by two gay couples who claimed Prop. 8 violated the Due Process and Equal Protection clauses of the 14th Amendment.
      “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation,” Walker ruled.
     “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as the ‘right to seek same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy – namely, marriage,” Walker wrote. “Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”
     Walker also maintained that gender is no longer an essential aspect of the marriage institution, as “marriage under law is a union of equals.”
     Prop. 8 outlawed gay marriages in California only five months after the state Supreme Court made them legal.
     During the two-week bench trial in January, attorneys for the opponents of Prop. 8 likened the case to the 1967 Supreme Court ruling in Loving v. Virginia, which ended all race-based marriage restrictions.
     Walker noted the historical race and gender restrictions placed on marriage “during eras of race and gender inequality,” but said “such restrictions were never part of the historical core of the institution of marriage.”
     Walker also denounced domestic partnerships as an “alternative to marriage” that was much touted by attorneys for the Prop. 8 proponents during the trial. He called it an unsatisfactory substitute that fails to provide the same social meaning as marriage and puts same-sex couples at a disadvantage.
     Walker used the highest level of scrutiny in determining the ban’s unconstitutionality, but noted that Prop. 8 would not have been able to withstand even a rational basis review, the lowest level.
     In arguing that Prop. 8 also violated the Constitution’s Equal Protection clause, Walker said the ban discriminates against same-sex couples on both the basis of their sexual orientation and their gender, as plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarillo were unable to marry their respective partners because of their genders.
     “If Perry were a man, Prop. 8 would not prohibit the marriage,” Walker wrote. “Thus Prop. 8 operates to restrict Perry’s choice of marital partner because of her sex. But Prop. 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.”
     Walker further refuted the proponents’ argument that allowing same-sex couples to marry would “de-institutionalize” marriage.
     “The tradition of restricting marriage to opposite-sex couples does not further any state interest,” he wrote. “Rather, the evidence shows that Prop. 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.”
     Attorneys for Prop. 8’s proponents filed a motion Tuesday to stop any same-sex marriages from being performed pending an appeal to the 9th Circuit.

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