SAN FRANCISCO—A federal judge this week refused to dismiss a lawsuit challenging California’s same-sex marriage ban on grounds the state constitutional amendment denies LGBT people fundamental rights.
Wednesday’s ruling by Chief U.S. District Judge Vaughn Walker surprised neither side, as he repeatedly has said a court battle is necessary to resolve constitutional issues inherent in California voters’ approval of Proposition 8 last November.
Although Walker did not address arguments that Prop. 8 violates U.S. constitutional guarantees by codifying discrimination against gays and lesbians and legitimizing homosexual bias, his broad ruling did indicate the court will consider what constitutes a “right” and whether a popular vote can determine rights granted to minority classes.
One of the big questions Walker raised from the bench is “whether Prop. 8 was passed with discriminatory intent.”
Walker set a trial date of Jan. 11, but that may be delayed by a challenge to one of his orders. The judge ruled Prop. 8 sponsors must disclose campaign finance and strategy documents, which gay-rights organizations hope will prove discriminatory intent. Protect Marriage, a conservative religious coalition that campaigned for the passage of Prop. 8, has challenged the ruling, saying allegations of an anti-gay agenda are unfounded and irrelevant.
If it goes to trial in January as scheduled, the Prop. 8 case will be the first in the nation to test the validity of constitutional same-sex-marriage bans. Prop. 8 has been a bellwether for the issue since November 2008, when voters overturned a five-months-old state Supreme Court ruling declaring a ban on same-sex marriage violated the California constitution. The state’s Supreme Court subsequently upheld Prop. 8 in May 2009, although the justices left intact some 18,000 marriages that took place before the amendment’s passage.
However, opponents note in the current federal lawsuit, the state supremes did not address any larger U.S. constitutional issues. Prop. 8 proponents, on the other hand, argue the U.S. Supreme Court validated same-sex marriage bans in 1972, when justices declined to hear a challenge to a Minnesota law defining marriage as a union between one man and one woman. In that case, the court indicated appellants did not raise any substantial constitutional issues.
In his Wednesday ruling, Walker noted legal doctrine has changed significantly since 1972, citing U.S. Supreme Court rulings that condemned gender- and sexuality-based discrimination. The Supreme Court also has overturned a number of state laws that forbade homosexual conduct, he said. The case at hand, he noted, is similar to successful past federal challenges that resulted in the striking of laws that stripped rights from historically persecuted groups. In such cases, Walker said, government must prove a compelling interest in order for the bans to stand.
Protect Marriage will not be dissuaded from its course, nonetheless. The organization’s lead attorney, Charles Cooper, said gays and lesbians do not qualify as a “persecuted group” in the same way religious and ethnic minorities do. Consequently, the rational intent of the voters must be allowed to stand based on traditional American values.
To that Walker responded it may be time for federal courts to weigh in on whether gays and lesbians compose a persecuted class. To that end, he will entertain evidence about the political power wielded by the LGBT community and whether broad-scale discrimination exists.
Among the many other questions to be answered during the trial are whether homosexuality is a choice and whether same-sex marriage in some way harms traditional marriage. During Walker’s consideration of the dismissal motion, Cooper asserted same-sex marriage would damage the state’s legitimate goal of “fostering naturally procreative relationships.”
“What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?” the judge asked.
“The answer is, I don’t know,” Cooper responded, adding it was up to the plaintiffs to show there is none. “It is not self-evident that there is no chance of any harm, and the people of California are entitled not to take the risk.
“There are things we can’t know, [and] that’s my point,” Cooper said. “The people of California are entitled to step back and let the experiment unfold in Massachusetts and other places, to see whether our concerns about the health of marital unions have either been confirmed or perhaps they have been completely assuaged.”
Late Sunday, California Gov. Arnold Schwarzenegger signed a bill recognizing same-sex marriages that occurred in other states during the period when such unions were sanctioned in California. The new law also grants same-sex couples married in other states after the passage of Prop. 8 the same rights California accords domestic partners.
Although the conservative outcry calling Walker an “activist judge” after his Wednesday ruling was immediate and loud, in the end the far-right may be correct: The issue most likely is headed for the U.S. Supreme Court.
“Supporters of marriage have to realize we’re in this for the long haul,” Bruce Hausknecht, a judicial analyst for Focus on the Family Action, told CitizenLink.org. “The U.S. Supreme Court will ultimately get this case and decide one way or the other about marriage.”
