Prop 8 Found Unconstitutional

Ruling against Prop. 8 could lead to federal precedent on gay marriage






Judge says the same-sex marriage ban was rooted in 'moral disapproval' and violates constitutional rights to equal protection and due process. Opponents vow to appeal all the way to the Supreme Court.

August 4, 20106:38 p.m.

Reporting from San Francisco and Los Angeles — A federal judge declared California's ban on same-sex marriage unconstitutional Wednesday, saying that no legitimate state interest justified treating gay and lesbian couples differently from others and that "moral disapproval" was not enough to save the voter-passed Proposition 8.

California "has no interest in differentiating between same-sex and opposite-sex unions," U.S. District Chief Judge Vaughn R. Walker said in his 136-page ruling.

The ruling was the first in the country to strike down a marriage ban on federal constitutional grounds. Previous cases have cited state constitutions.

Lawyers on both sides expect the ruling to be appealed and ultimately reach the U.S. Supreme Court during the next few years.

It is unclear whether California will conduct any same-sex weddings during that time. Walker stayed his ruling at least until Friday, when he will hold another hearing.

In striking down Proposition 8, Walker said the ban violated the federal constitutional guarantees of equal protection and of due process.

Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.

The jurist, a Republican appointee who is gay, cited extensive evidence from the trial to support his finding that there was not a rational basis for excluding gays and lesbians from marriage. In particular, he rejected the argument advanced by supporters of Proposition 8 that children of opposite-sex couples fare better than children of same-sex couples, saying that expert testimony in the trial provided no support for that argument.

"The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples," Walker wrote.

Andy Pugno, a lawyer for the backers of the ballot measure, said he believed Walker would be overturned on appeal.

Walker's "invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process," Pugno said.

He called it "disturbing that the trial court, in order to strike down Prop. 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop. 8."

At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges' rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.

John Eastman, a conservative scholar who supported Proposition 8, 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.

"I think Justice Kennedy is going to side with Judge Walker," said the former dean of Chapman University law school.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker's findings that homosexuality is a biological status instead of a voluntary choice, that children don't suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality "are going to make it more difficult for appellate courts to overturn this court's ruling."

Edward E. (Ned) Dolejsi, executive director of the California Catholic Conference, said he believed the judge's ruling was both legally and morally wrong.

"All public law and public policy is developed from some moral perspective, the morality that society judges is important," he said. To say that society shouldn't base its laws on moral views is "hard to even comprehend," he said.

In his decision, Walker said the evidence showed that "domestic partnerships exist solely to differentiate same-sex unions from marriage" and that marriage is "culturally superior."

He called the exclusion of same-couples from marriage "an artifact of a time when the genders were seen as having distinct roles in society and marriage."

"That time has passed," he wrote.

Although sexual orientation deserves the constitutional protection given to race and gender, Proposition 8 would be unconstitutional even if gays and lesbians were afforded a lesser status, Walker said. His ruling stressed that there was no rational justification for banning gays from marriage.

To win a permanent stay pending appeal, Proposition 8 proponents must show that they are likely to prevail in the long run and that there would be irreparable harm if the ban is not enforced.

Lawyers for the two couples who challenged Proposition 8 said they were confident that higher courts would uphold Walker's ruling.

"We will fight hard so that the constitutional rights vindicated by the 138-page, very careful, thoughtful, analytical opinion by this judge will be brought into fruition as soon as possible," pledged Ted Olson, one of the lawyers in the case.

Other gay rights lawyers predicted that the ruling would change the tenor of the legal debate in the courts.

"This is a tour de force — a grand slam on every count," said Shannon Price Minter, legal director for the National Center for Lesbian Rights. "This is without a doubt a game-changing ruling."

Wednesday's ruling stemmed from a lawsuit filed last year by two homosexual couples who argued that the marriage ban violates their federal constitutional rights to equal protection and due process.

The suit was the brainchild of a gay political strategist in Los Angeles who formed a nonprofit to finance the litigation.

The group hired two legal luminaries from opposite sides of the political spectrum to try to overturn the ballot measure. Former U.S. Solicitor General Theodore B. Olson, a conservative icon, signed on with litigator David Boies, a liberal who squared off against Olson in Bush vs. Gore, the U.S. Supreme Court ruling that gave George W. Bush the presidency in 2000.

Gay-rights groups had opposed the lawsuit, fearful that the U.S. Supreme Court might rule against marriage rights and create a precedent that could take decades to overturn.

But after the suit was filed, gay rights lawyers flocked to support it, filing friend-of-court arguments on why Proposition 8 should be overturned.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown refused to defend the marriage ban, leaving the sponsors of the initiative to fill the vacuum. They hired a team of lawyers experienced in U.S. Supreme Court litigation.

Proposition 8 passed with a 52.3% vote six months after the California Supreme Court ruled that same-sex marriage was permitted under the state Constitution.

At trial, the opponents of Prop. 8 presented witnesses who cited studies that showed children reared from birth by gay and lesbian couples do as well as children born into opposite-sex families. They also testified that the clamor for marriage in the gay community had given the institution of marriage greater esteem.

The trial appeared to be a lopsided show for the challengers, who called 16 witnesses, including researchers from the nation's top universities, and presented tearful testimony from gays and lesbians about why marriage mattered to them.

The backers of Proposition 8 called only two witnesses, and both made concessions under cross-examination that helped the other side.

The sponsors complained that Walker's pretrial rulings had been unfair and that some of their prospective witnesses decided not to testify out of fear for their safety.

When Walker ruled that he would broadcast portions of the trial on the Internet, Proposition 8 proponents fought him all the way to the U.S. Supreme Court and won a 5-4 ruling barring cameras in the courtroom.

The trial nevertheless was widely covered, with some groups doing minute-by-minute blogging. Law professors brought their students to watch the top-notch legal theater.

An estimated 18,000 same-sex couples married in California during the months it was legal, and the state continues to recognize those marriages.

maura.dolan@latimes.com

carol.williams@latimes.com
Copyright © 2010, Los Angeles Times

California to Ban Divorce?!

Movement under way in California to ban divorce

By JUDY LIN, Associated Press Writer

Tuesday, December 1, 2009







In a movement that seems ripped from the pages of Comedy Channel writers, John Marcotte wants to put a measure on the ballot next year to ban divorce in California.



The effort is meant to be a satirical statement after California voters outlawed gay marriage in 2008, largely on the argument that a ban is needed to protect the sanctity of traditional marriage. If that's the case, then Marcotte reasons voters should have no problem banning divorce.



"Since California has decided to protect traditional marriage, I think it would be hypocritical of us not to sacrifice some of our own rights to protect traditional marriage even more," the 38-year-old married father of two said.



Marcotte said he has collected dozens of signatures, including one from his wife of seven years. The initiative's Facebook fans have swelled to more than 11,000. Volunteers that include gay activists and members of a local comedy troupe have signed on to help.



Marcotte is looking into whether he can gather signatures online, as proponents are doing for another proposed 2010 initiative to repeal the gay marriage ban. But the odds are stacked against a campaign funded primarily by the sale of $12 T-shirts featuring bride and groom stick figures chained at the wrists.



Marcotte needs 694,354 valid signatures by March 22, a high hurdle in a state where the typical petition drive costs millions of dollars. Even if his proposed constitutional amendment made next year's ballot, it's not clear how voters would react.



Nationwide, about half of all marriages end in divorce.



Not surprisingly, Marcotte's campaign to make divorce in California illegal has divided those involved in last year's campaign for and against Proposition 8.



As much as everyone would like to see fewer divorces, making it illegal would be "impractical," said Ron Prentice, the executive director of the California Family Council who led a coalition of religious and conservative groups to qualify Proposition 8.



No other state bans divorce, and only a few countries, including the Philippines and Malta, do. The Roman Catholic Church also prohibits divorce but allows annulments. The California proposal would amend the state constitution to eliminate the ability of married couples to get divorced while allowing married couples to seek an annulment.



Prentice said proponents of traditional marriage only seek to strengthen the one man-one woman union.



"That's where our intention begins and ends," he said.



Jeffrey Taylor, a spokesman for Restore Equality 2010, a coalition of same-sex marriage activists seeking to repeal Proposition 8, said the coalition supports Marcotte's message but has no plans to join forces with him.



"We find it quite hilarious," Taylor said of the initiative.



Marcotte, who runs the comedy site BadMouth.net in his spare time, said he has received support from across the political spectrum. In addition to encouragement from gay marriage advocates, he has been interviewed by American Family Association, a Mississippi-based organization that contributed to last year's Yes on 8 campaign.



He was mentioned by Keith Olbermann on MSNBC's "Countdown" during his "World's Best Persons" segment for giving supporters of Proposition 8 their "comeuppance in California."

Marcotte, who is Catholic and voted against Proposition 8, views himself as an accidental activist. A registered Democrat, he led a "ban divorce" rally recently at the state Capitol in Sacramento to launch his effort and was pleasantly surprised at the turnout. About 50 people showed up, some holding signs that read, "You too can vote to take away civil rights from someone."

Marcotte stopped dozens of people during another signature drive in downtown Sacramento. Among them was Ryan Platt, 32, who said he signed the petition in support of his lesbian sister, even though he thinks it would be overturned if voters approved it.



"Even if by some miracle this did pass, it would never stand up to the federal government," Platt said. "And if it did, there's something really wrong with America."



Other petition signers said they were motivated by a sincere interest to preserve marriages. One was Ervin Hulton, a 47-year-old dishwasher who said he believes in making it harder for couples to separate.



"The way I feel, why go out and spend all these tons of money for marriage, the photography and all that? And along down the line, it's going to shatter," said Hulton, who is single.

The U.S. divorce rate is 47.9 percent, according to data provided by the National Center for Health Statistics reports. That figure, however, does not include California, Georgia, Hawaii, Indiana, Louisiana and Minnesota because those six states no longer report their divorce rates to the center.



California stopped because of budget problems, said Ralph Montano, a spokesman for the California Department of Public Health.



While most people would not support banning divorce, it does make sense for couples to be educated about the financial and emotional commitments of marriage, said Dan Couvrette, chief executive and publisher of Toronto-based Divorce Magazine. The publication has a circulation of 140,000, including a regional edition in Southern California.



"It's a worthwhile conversation to have," said Couvrette, who started the magazine in 1996 after going through his own divorce. "I don't think it's just a frivolous thought."

___

On the Net:

2010 California Marriage Protection Act: http://www.rescuemarriage.org

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/11/30/national/a111733S84.DTL#ixzz0ZsEYifJzRead more: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/11/30/national/a111733S84.DTL#ixzz0ZsEYifJz

California high court upholds gay marriage ban

By LISA LEFF, Associated Press Writer Lisa Leff, Associated Press Writer – 30 mins ago
SAN FRANCISCO – The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.
Demonstrators outside the court yelled "shame on you!" Gay rights activists immediately promised to resume their fight, saying they would go back to voters as early as next year in a bid to repeal the ban.
The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California Constitution's equal protection clause to such a dramatic degree that it first needed the Legislature's approval.
The court said the Californians have a right, through the ballot box, to change their constitution.
"In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling said.
The justices said the 136-page majority ruling does not speak to whether they agree with the voter-approved Proposition 8 or "believe it should be a part of the California Constitution."
They said they were "limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."
The announcement of the decision set off an outcry among a sea of demonstrators who had gathered in front of the San Francisco courthouse awaiting the ruling. Holding signs and many waving rainbow flags, they yelled "shame on you." Many people also held hands in a chain around an intersection in an act of protest.
Same-sex marriage is legal in Iowa, Maine, Vermont, Massachusetts and Connecticut.
The court said it is well-established legal principle that an amendment is not retroactive unless it is clear that the voters intended it to apply retroactively, and there was no such clear indication in Proposition 8.
That provided some relief for the 18,000 gay couples who married in the brief time same-sex marriage was legal last year but that wasn't enough to dull the anger over the ruling that banned gay marriage.
"It's not about whether we get to stay married. Our fight is far from over," said Jeannie Rizzo, 62, who was one of the lead plaintiffs along with her wife, Polly Cooper. "I have about 20 years left on this earth, and I'm going to continue to fight for equality every day."
Also in the crowd gathered at City Hall, near the courthouse, were Sharon Papo, 30, and Amber Weiss, 32, who were married on the first day gay marriage was legal last year, June 17.
"We're relieved our marriage was not invalidated, but this is a hollow victory because there are so many that are not allowed to marry those they love," Weiss said.
"I feel very uncomfortable being in a special class of citizens," Papo said.
A small group of Proposition 8 supporters also had gathered outside the court to hear the ruling.
"A lot of people just assume we're religious nuts. We're not. But we are Christians and we believe in the Bible," said George Popko, 22, a student at American River College in Sacramento, where the student government officially endorsed Proposition 8.
The state Supreme Court had ruled last May that it was unconstitutional to deny gay couples the right to wed. Many same-sex couples had rushed to get married before the November vote on Proposition 8, fearing it could be passed. When it was, gay rights activists went back to the court arguing that the ban was improperly put to voters and amounted to a revision — which required legislative approval — not an amendment.
That was the issue justices decided Tuesday.
"After comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision," the ruling said.
Justice Carlos Moreno wrote the dissenting opinion disagreeing that the proposition did not change the constitution's equal protection clause. He said the law denying same-sex couples the right to wed "strikes at the core of the promise of equality that underlies our California Constitution." He said it represents a "drastic and far-reaching change."
"Promising equal treatment to some is fundamentally different from promising equal treatment for all," said Moreno, who had been mentioned as a possible contender for the U.S. Supreme Court. "Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment."