A federal lawsuit was filed in May 2009 challenging Proposition 8, the California referendum which amended the state constitution to define marriage as between one man and one woman. Prop. 8 previously was upheld by the California Supreme Court.

The federal lawsuit, Perry et al v. Schwarzenegger et al, was filed by noted Republican attorney Ted Olson, and noted Democratic attorney David Boies. Olson and Boies were on opposite sides of the landmark Bush v. Gore lawsuit which resolved the Florida electoral dispute in the 2000 election.

The lawsuit sought an injunction against implementation of Proposition 8 under federal law, including alleged violations of the Due Process Clause of the 5th Amendment to the U.S. Constitution and the Equal Protection Clause of the 14th Amendment. At the time of the suit, many gay marriage advocates criticized the tactic, fearing that a loss at the federal level would damage ongoing state efforts.

Today, Chief Judge Vaugh Walker of the Northern District of California issued his ruling in the case holding that Prop. 8 violates the U.S. Constitution.

Here is the Judge’s conclusion:

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.

Throughout the opinion, the Judge goes into great detail regarding trial testimony and justifications for Prop. 8. The Judge then holds, in essence, that the justifications are irrational and have no legitimate societal basis.

The Judge even designated a section of the opinion “Credibility Determinations.” Many commentators think the Judge was trying to insulate the opinion from appeal since appeals courts do not normally overturn credibility determinations, since only the trial judge observed the witness.

In this case, the Judge seems to be trying too hard to insulate the opinion, and I doubt that on such a momentus finding of a new constitutional right for same sex marriage that an appeals court, much less the U.S. Supreme Court, will care much about the credibility of witnesses as a basis for a legal ruling.

Everyone expects this case to end up in the U.S. Supreme Court, which should test what Elena Kagan meant when she said, under oath, that there is no constitutional right to gay marriage.

Update: The trial court has granted a stay of entry of judgment until the motion for a stay pending appeal can be decided. The plaintiffs must respond by August 6. So for at least a couple of days, the effect of the ruling is on hold.

What is the chance of a more long-lasting stay pending appeal? Given the novel legal theory, and the widespread impact in California of an injunction, one would think that the trial judge at least would grant a stay pending an application to the 9th Circuit.

The politics of this opinion probably could not come at a worse time for Democrats. There is no groundswell of support for gay marriage, with even Obama having expressed the view during the campaign that marriage is between one man and one woman. The opinion attempts to short-circuit the political process by finding a constitutional right which most people — even people who might support gay marriage — do not recognize.

At the end of the day, I do not expect this decision to survive constitutionally, and the supporters of gay marriage may rue the day that they sought to impose a solution from the courts of law rather than the court of public opinion.

Some similar thoughts from Dale Carpenter at The Volokh Conspiracy:

Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next. The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM. Premature litigation, they feared, would do more harm than good (even if there were a temporary win at a lower level). Well, nothing has changed except that the stakes have been considerably raised today in a maximalist decision, bringing us one step closer to Perry v. Schwarzenegger, ___ U.S. ___ (201_) (reversing lower court ruling for same-sex marriage on due process and equal protection grounds).

And also Logan Penza at The Moderate Voice:

Lest anyone should misunderstand, let me note that I personally support marriage rights for gay couples. I think court decisions are a very bad way to achieve that goal, for the reasons discussed above as well as because court decisions tend to lengthen political conflicts rather than resolve them.

It is worth remembering that in 1973 there was a clear trend among the states in favor of abortion rights. The main accomplishment of Roe may have been to make abortion formally legal, but the decades-long firestorm of controversy has made actual exercise of those rights difficult in many areas of the country. Using the courts is a way to an emotionally satisfying quick “win” on issues where the legal elite runs ahead of broader social attitudes, but that emotional rush often leads to a big crash in the longer term. Temporary success can lead to long-term failure that is even more firmly entrenched than it was before.

I also don’t think that every desirable social policy enjoys the status of constitutional right.

As to the political end of this come November, the decision will be seen as another example of overreaching by a liberal judiciary which throws out laws it doesn’t like politically (Arizona) and invents rights it likes. I’ll quote Ace:

Oh, PS, Judge Walker–
Thanks for the extra 7% turnout in
Hugs and kisses,

[Note to readers: This post is something of a rolling thought process, as information became available and upon further review, text was added from the original.]

Perry v. Schwarzennegger – Trial Court Decision http://d1.scribdassets.com/ScribdViewer.swf
Related Posts:
Federal Challenge to Prop. 8
Split Decision on Prop. 8
Kagan Said She Meant What She Said About Gay Marriage

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