The Donkey Is Sleeping Today

BREAKING: Proposition 8 Ruled Unconstitutional – Our Analysis

In Civil Liberties, Equal Protection, Inequality, Politics on August 4, 2010 at 5:46 pm

It has been a great month for the forces of good. First, parts of DOMA were ruled unconstitutional, the most insidious parts of Arizona’s SB 1070 were blocked, and now a federal district judge in California, Judge Vaughn Walker, has ruled that Proposition 8, the voter-approved initiative that bans same-sex marriage in California, is unconstitutional under both the Due Process and Equal Protection clauses in our Constitution.  The key conclusion in his ruling (read the entire ruling here):

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.

In plain English, the rational basis test is the lowest level of scrutiny used to determine a law’s constitutionality. Judge Walker ruled there is no legitimate interest or justification for this law. In short, he ruled that the law’s sole purpose is to discriminate.

More from Judge Walker’s decision:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.


The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. … The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.”

So what happens again when we try to legislate morality?  And to the forces of hate and bigotry who have put forth the ridiculous argument that somehow advancing the right to marry to same sex couples would tear apart the very fabric of society and ruin opposite-sex marriages, the judge had a very harsh response to David Blankenhorn, the anti-gay marriage side’s expert witness who testified that gay marriage would somehow weaken traditional families.

Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples…


The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

In other words, it’s a completely bogus argument that should be mocked and summarily dismissed.

Judge Walker also began to un-do the harm of the intellectually dishonest ruling (at least in my opinion) in Lawrence v. Texas (2003), in which the Supreme Court ruled sodomy laws in Texas unconstitutional because they unfairly targeted homosexuals but without creating a precedent in which gay citizens were equally protected under the law as a group in future cases.

From Judge Walker’s decision:

All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.

Judge Walker also permanently enjoined the state from enforcing the law, pending appeal. Here’s his ruling under “Remedies” (h/t to our friend, Joe Sudbay, of AmericaBlog):

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. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

We have a lot of people to thank for this decision. The two lead counsel, Ted Olson and David Boies, as well as California Attorney General Jerry Brown and California Governor Arnold Schwarzenegger, who chose not to defend the law.  We at The Donkey Edge have been very critical of the job Gov. Schwarzenegger has done, but in this instance, he did the right thing.

But most important, this is a victory brought about by such activist organizations as our friends at the Courage Campaign, Equality California, and Freedom To Marry (among many others), and the countless gay activists and their straight allies who worked tirelessly to bring equal rights to the gay community.

But our work is not over yet.  The forces of bigotry have already announced they will appeal this judgment to the 9th Circuit Court of Appeals, as well as to the Supreme Court if necessary.

But wing-nuts’ heads all over the country must be exploding today.  No wonder they are wetting themselves trying to marshal forces to overturn the 14th Amendment.

We must never let them.

– SF

(h/t to NF)

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