Openly gay federal judge rules against Prop 8. I’d hold fire with the celebrations, because someone is going to have a field day with that one when it comes before the supreme court.
The UK human rights take on it is that the ruling will be difficult to overrule -here’s hoping!
The case is interesting in that it was fought not just on the basis of constitutional principle, but rather an elaborate evidence-based analysis of the sociological status of gay marriage. The judge ultimately made a finding that:
The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, social disapproval of same-sex relationships, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry (p 112)
This evidence-based approach has led some to argue that the ruling will be harder to appeal in the Supreme Court, where the real fight is likely to eventually take place. The New York Times reports:
Andrew Koppelman, a professor at Northwestern Law School, said “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.” The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference. “They are supposed to take as true facts found by the district court, unless they are clearly erroneous,” he said. “This opinion shows why district courts matter, even though the Supreme Court has the last word.”
Ted Olson and David Boies do not need the thanks of Geoff Kors, whose inexperience was a factor in losing the campaign against Prop H8.
Both Boies and Olson were interviewed on different political Sunday talk shows this morning, and gave an excellent account of why the unconstitutional ruling by Judge Walker should be allowed to stand. (Their interviews are cached at joemygod.blogspot.com.)
This is not a new 14th Amendment case. Nearly 50 years ago, the California Legislature passed the Rumford Fair Housing Act, which banned discrimination against “colored” (read black and latino) property renters or buyers.
About 2/3 (!) of California voters overturned the Rumford Act when they passed Proposition 14, which, like Proposition 8, amended the California Constitution. Proposition 14 said Californians could refuse to sell or rent to anyone for any reason. The U.S. Supreme Court ruled that Proposition 14 violated the 14th Amendment, and it didn’t matter how many Californians had voted for it — it was racial discrimination, and unconstitutional. The equal protection clause that Walker cited in his Proposition 8 ruling is part of that same 14th Amendment.
There are several rulings concerning marriage as a right guaranteed to Americans (the most famous case is probably Loving vs Virginia, which struck down laws against interracial marriage). If SCOTUS can be counted on to do the right thing, there is ample precedent.