Sunday, August 8, 2010

A losing proposition

“Gender no longer forms an essential part of marriage, marriage under law is a union of equals,” Chief Judge Vaughn Walker of the United States District Court for the Northern District of California ruled on Wednesday, when, in a precisely worded, stunningly reasoned 136-page decision, Walker altered the landscape of debate over gay marriage in America.

Walker ruled that Proposition 8, the voter-enacted law that outlaws gay marriage in California was a violation of the Due Process and Equal Protection clauses in the 14th Amendment of the United States Constitution. And there’s no short-circuiting the power of this judicial opinion: Marriage bans have been quashed before at the state level; what happened on Wednesday was the first time a marriage ban was overturned on grounds of violating the federal constitution.

"The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal," Walker wrote.

“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.”

Despite having his name included as one of the defendants in Perry et al. v Schwarzenegger, California Gov. Arnold Schwarzenegger expressed his support for the triumph of the plaintiffs. "This decision affirms the full legal protections and safeguards I believe everyone deserves," he said Wednesday.

Prop 8 Ruling FINAL

Walker’s opinion was a sound repudiation of old assumptions about family integrity and social benefit. It upheld findings of fact that disprove the long-held contention that children in same-sex family units are somehow damaged, deprived or compromised compared to heterosexual couples.

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And Walker got past the platitudes of the conservative wind machine, who’ve tried to equate heterosexual marriage as a bedrock societal custom with heterosexual marriage as unbending, immutable law. The ruling Wednesday sharply challenges the primacy of marriage’s historical expression as an exclusionary experience.

In its existential sweep and the clarity and forthrightness of its language, and in its framing of the gay-marriage debate in terms of fundamental human decency, Walker’s ruling may be the lower-court equivalent of Brown v. Board of Education — a demand that niceties, deceptions and outright lies give way to the force of the inescapably moral and the irrefutably practical.

“[It] vindicates the rights of a minority of our citizens to be treated with decency and respect and equality in our system," said former U.S. Solicitor General Theodore Olson, who argued against the ban with veteran trial lawyer David Boise.

Walker’s ruling sets the stage for a likely battle over the issue at the Supreme Court, the first with Elena Kagan in robes as the court’s newest Associate Justice.

◊ ◊ ◊

In the short term, the Walker ruling changes little but the intensity of the rhetoric, and the speculation about where this goes next.

The SCOTUS Handicap has officially started, and the betting windows are open for business. The Los Angeles Times reported Thursday that John Eastman, a conservative scholar and Prop 8 backer, “said Walker's analysis and detailed references to trial evidence were likely to persuade U.S. Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.”

For those on the right, the ruling is a further defense of the standing 14th Amendment — the same amendment conservatives want to change for completely different reasons. Congressional conservatives, including the birthers and nativists from the Arizona Territory, have championed making tweaks to the 14th, which endows citizenship on those born in the United States — a sore point for conservatives in the evolving debate over undocumented immigration.

The Associated Press reported that Byran Fischer, of the American Family Association, urged AFA members to petition their congressional representatives to start impeachment proceedings against Walker for not recusing himself from a case in which "his own personal sexual proclivities utterly compromised his ability to make an impartial ruling." (Some have said Walker is openly gay, but his sexual orientation is, by this writer anyway, unknown and nobody’s business but his own.)

◊ ◊ ◊

We can expect attacks on Walker and his ruling to pick up steam now, starting with the expected appeal to the 9th Circuit Court of Appeals. Maggie Gallagher, chairwoman of the National Organization for Marriage, offered a fast broadside in an op-ed in the San Francisco Chronicle:

“The Proposition 8 case on which the Ninth Circuit's Judge Vaughn Walker ruled Wednesday was pushed by two straight guys with a hunger for media attention, lawyers with huge egos who overrode the considered judgment of major figures in the gay legal establishment, thinkers who feared exactly what we anticipate: the Supreme Court will uphold Prop. 8 and the core civil rights of Californians and all Americans to vote for marriage as one man and one woman.”

On Thursday, Andy Pugno, a lawyer for Prop 8 supporters, told the Los Angeles Times that Walker's "invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process.”

◊ ◊ ◊

But the right to vote isn’t the issue in Walker’s ruling, and never was; the issue is the constitutionality of the measure the people of California voted on. For all the fire and rage conservatives have brought to bear against the ruling, this distinction is one they won’t be easily overcome. Just because you’ve got the right to vote for something, it doesn’t always mean that what you’re voting for is constitutional in the first place. The fact that a measure’s on the ballot might make good politics; that doesn’t necessarily mean its passage, even by the voters, makes good law.

“Did our Founding Fathers really create a right to gay marriage in the U.S. Constitution?” Gallagher asks in the Chronicle. The answer of course is no, but neither did the Framers specifically endorse heterosexual marriage as deserving of any special treatment. There’s no language in that Constitution that conveys to heterosexual couples exclusive rights to the equal opportunity objectives of “life, liberty and the pursuit of happiness.”

That’s the kernel of Walker’s ruling. That’s the kernel of the challenge to be mounted by conservative opponents of his ruling and its fundamental assertions. Those seven quoted words — and the breadth of their application as American law — are the stakes facing a new U.S. Supreme Court, probably not many months after the first Monday in October.

Image credits: LGBT flag: theodoranian, republished under Creative Commons Attribution ShareAlike 3.0 Unported license. Walker: via powered news. Ted Olson and David Boise: via The Huffington Post. Anthony Kennedy: public domain. Equal Marriage flag: Stars represent states that actively perform same-sex marriages as of Jan. 1, 2010. Source:

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