California’s Proposition 8 is declared unconstitutional!

August 4, 2010 will long be remembered as the day that California’s Proposition 8, which prohibits same-sex marriage, was declared unconstitutional by U.S. District Court Chief Judge Vaughn Walker in Perry v. Schwarzenegger, Case No.     C 09-2292 VRW.

Judge Walker ruled that gays and lesbians have a constitutional right to marry.  He held that “Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8.”  (Order, pg. 136.)  The court ordered the entry of a judgment permanently enjoining enforcement of Proposition 8.

Judge Walker concluded:

“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.”

(Order, pg. 135.)

Marriage equality laws legalizing same-sex marriage have been passed and remain in force in five states:  New Hampshire, Iowa, Massachusetts, Vermont, and Connecticut, as well as the District of Columbia. Argentina, Canada, and Spain, among others, are on the list of countries that allow same-sex marriage.  Even the Coquille Tribe, which lives on the southern Oregon Coast, legalized same-sex marriage in 2008.

Of course, Judge Walker’s decision is not the end of the story.  Before the ink was even dry on the opinion, the opponents gave notice of their intention to appeal his decision to the Ninth Circuit Court of Appeals, and then perhaps to the United States Supreme Court.  Judge Walker also granted a temporary stay to consider the stay request and ordered the parties to file papers in support of and opposing an extended stay by August 5, 2010. 

The legalization of same-sex marriage will have a significant impact on other areas of law.  Many benefits and rights are tied to marital status.  The ruling would also affect areas of family and property rights, probate, insurance, employment benefits, and income taxes.

While an appeal will be followed with significant interest, more pressing attention will be given the current attempts to obtain the stay, either from the United States District Court, or in the event that fails, the Ninth Circuit or United States Supreme Court.  Given the strength of statements made in the 136-page opinion, it is doubtful Judge Walker will issue a stay, especially in light of the public interest and hardships to the proponents if they are forbidden to marry.

To win a stay, the opponents must make a showing that the status quo should be maintained.  Questions will also arise as to what will happen if couples marry and the ruling is later reversed, as well as what happens to the 18,000 couples who married before Proposition 8 went into effect.

If a stay is denied, then Judge Walker’s ruling will go into effect and Proposition 8 cannot be enforced. If the action is stayed, then the celebrations will have to be put on hold.  And getting to a final decision by the Ninth Circuit and the United States Supreme Court could take years.