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Prop 8 Found Unconstitutional by Federal Court

By Tanya Roth, Esq. on August 04, 2010 | Last updated on March 21, 2019

In the much anticipated opinion in Perry v. Schwarzenegger, Chief Judge of the U.S. District Court for the Northern District of California, Vaughn Walker, found on August 4 that California's law banning same sex marriage violates the Constitution of the United States. Proposition 8 was passed by a narrow margin of voters in 2008. Previous to its passage, 18,000 same sex couples were granted marriage licenses in the state of California. Today's Prop 8 ruling, like those before from the state courts, does not affect those marriages.

In his opinion, Judge Walker found the state law violated both the Equal Protection and the Due Process clauses of the Constitution. SCOTUS Blog writes that after consideration, the court found that the proponents of Prop 8 did not show that the state had a rational basis (the lowest of the tests for constitutional validity applied by the courts) for excluding same sex couples from the right to marry. The judge found the law specifically, "... fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage age 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 ..."

In his Opinion, Judge Walker did not find the evidence presented by the proponents of Prop 8 to be persuasive. For example, he noted that one key expert witness, David Blankenhorn, gave conflicting testimony. Not persuaded by his evidence, the judge wrote, "None of Blankenhorn's opinions is reliable." (Opinion, p. 43)

Regardless of the court's Prop 8 ruling today, no quick action will be available to any same sex couples who may want to marry under California law. The judge is now considering a stay on his order that Prop 8 not be enforced. The proponents of Prop 8 petitioned the court to place a hold on the decision until an appeal can be heard by the 9th Circuit Court of Appeals. Judge Walker has given the plaintiffs to the original case until August 6 to submit their responses to the request for a stay.

Whatever the outcome of the stay, it is likely that the right of gay couples to marry in California will be on hold for some time to come. The court of appeals, and then then almost certainly the Supreme Court, will both have their say on this major issue affecting us all -- both in and outside the state of California.

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