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California Marriage Ruling Sets Stage for Appeal

Theodore Olson
Theodore Olson, former U.S. solicitor general. Photographer: Chris Kleponis/Bloomberg

California’s ban on same-sex marriage was thrown out by a federal judge who ruled it deprives gays and lesbians of equal rights under the U.S. Constitution, setting the stage for an appeal that may reach the Supreme Court.

U.S. District Judge Vaughn Walker in San Francisco yesterday struck down the state constitutional amendment, Proposition 8, passed in 2008 by 52 percent of California’s voters. He sided with the city of San Francisco and couples from Berkeley and Burbank, who argued the amendment violates the federal constitution.

Supporters of the state’s ban on same-sex marriage said they will appeal Walker’s decision. The judge halted his ruling from taking effect immediately to give both sides time to argue whether the ban should be lifted while the appeal proceeds.

The plaintiffs demonstrated by “overwhelming evidence” that Proposition 8 violates constitutional equal protection rights, Walker said in his ruling, which prohibits California from enforcing the ban.

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” Walker wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples” and violates constitutional protections because it “disadvantages gays and lesbians without any rational justification.”

‘Devastating to Marriage’

Charles Cooper, the lead lawyer for proponents of the ban, said the ruling “sweeps aside” the historical understanding of marriage. Cooper’s firm yesterday filed a notice of intent to appeal on behalf of four individuals and the website The U.S. Court of Appeals in San Francisco today set a Nov. 12 deadline for the initial written arguments to be filed.

“A single federal judge has negated the will of the people of California,” Cooper said in an e-mailed statement. “The court’s disregard for the historical purposes of marriage would require California to embark on a novel experiment with the fundamental institution of marriage. In doing so, it threatens to harm the vital interests historically served by marriage.”

Walker, in a separate order yesterday, said he would delay implementation of his ruling until tomorrow at the request of those who intervened in the case to defend Proposition 8. He directed other parties to submit papers addressing a potential stay pending appeal by then.

‘Irreparable Harm’

Proponents of the ban said in an Aug. 3 filing that, without a stay order, same-sex marriages could begin immediately after Walker’s ruling. They said a stay was required because of the likelihood they will prevail on appeal and because of the “the possibility of irreparable harm absent a stay.”

Cooper argued at the trial that the desire of gays and lesbians to marry is outweighed by the state’s interest in promoting child-rearing in marriages between a man and a woman.

Theodore Olson, a former U.S. solicitor general, argued on behalf of the gay couples seeking marriage rights. He said the U.S. Supreme Court has determined in 14 cases going back to 1888 that marriage is tied to rights of privacy, liberty and freedom. He said Proposition 8 proponents can’t show that California has any rational basis or compelling interest to take away that right. Olson didn’t return calls seeking comment.

“For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves,” California Governor Arnold Schwarzenegger, a Republican, said in a statement.

‘History of Leading’

“At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.”

About 18,000 gay couples married in California before Proposition 8 was passed. As of 2006, there were an estimated 109,000 gay couples in California, more than any other state, according to U.S. Census data compiled by the University of California, Los Angeles.

John Lewis, 51, an attorney, and Stuart Gaffney, 47, a policy analyst, who married on June 17, 2008, were among those gathered yesterday outside the federal courthouse in San Francisco, where cheers erupted immediately after Walker’s ruling was announced and the crowd sang “This Land is Your Land” and “What the World Needs Now Is Love.”

Lewis and Gaffney were plaintiffs in the four-year court battle in state court that ended with California’s highest court legalizing same-sex marriage in May 2008 by a 4-3 vote. The voter-approved ban followed that November.

‘Happily Ever After’

“Everyone should be able to marry the person they love, everyone is entitled to their ‘happily ever after,’” Gaffney said. “This case is for love and equality and is actually going to make a better California and a better America.”

Maria Ydil, 31, and Vanessa Judicpa, 32, walked two blocks from the courthouse to San Francisco City Hall, where they were the first couple yesterday to fill out an application for a marriage license. They said they planned to wed in four days. At the clerk’s office, they were told that the federal court had decided not to immediately lift the marriage ban.

“The social stigma, it’s gone. You don’t have that hanging over our heads more,” Judicpa said. “That’s what’s important.”

Jerry Brown

California Attorney General Jerry Brown, the Democratic nominee to succeed Schwarzenegger as governor, said Walker “came to the same conclusion I did when I declined to defend it,” according to an e-mailed statement.

“Proposition 8 violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest,” Brown said.

Walker wrote in his ruling that “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 case is Perry v. Schwarzenegger, 3:09-cv-02292, U.S. District Court, Northern District of California (San Francisco).

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