Fighting For Important Causes In State And Federal Courts
By JESSE McKINLEY and JOHN SCHWARTZ
Published: August 4, 2010
SAN FRANCISCO — Saying that it discriminates against gay men and women, a federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions at least a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.
Wednesday’s decision is just the latest chapter in what is expected to be a long battle over the ban — Proposition 8, which was passed in 2008 with 52 percent of the vote. Indeed, while striking down Proposition 8, the decision will not immediately lead to any new same-sex marriages being performed in California. Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, immediately stayed his own decision, pending appeals by proponents of Proposition 8, who seem confident that higher courts would hear and favor their position.
But on Wednesday the winds seemed to be at the back of those who feel that marriage is not, as the voters of California and many other states have said, solely the province of a man and a woman.
“Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” wrote Judge Walker. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
Supporters of Proposition 8 said that the decision defied the will of the people of California, and could well be an issue in November’s midterm elections.
“This is going to set off a groundswell of opposition,” said Jim Garlow, the pastor of Skyline Church in La Mesa, Calif., and a prominent supporter of Proposition 8. “It’s going to rally people that might have been silent.”
Wednesday’s decision applied only to California and not to the dozens of other states that have either constitutional bans or other prohibitions against same-sex marriage. Nor does it affect federal law, which does not recognize such unions.
Still, the very existence of federal court ruling recognizing same-sex marriage in California, the nation’s most populous state, set off cheers of “We won!” from crowds assembled in front of the courthouse in San Francisco. Evening rallies and celebrations were planned in dozens of cities across the state and several across the nation.
In West Hollywood, Ron Cook, 46, an accountant who is gay, said he was thrilled by the decision. “If the court had come back and upheld it,” he said. “I would have moved out of the state.”
The plaintiffs’ case was argued by David Boies and Theodore B. Olson, ideological opposites who once famously sparred in the 2000 Supreme Court battle between George W. Bush and Al Gore over the Florida recount and the presidency. The lawyers brought the case — Perry v. Schwarzenegger — in May 2009 on behalf of two gay couples who said that Proposition 8 impinged on their constitutional rights to equal protection and due process.
On Wednesday, Mr. Olson called the decision a “victory for the American people,” and anyone who had been denied rights “because they are unpopular, because they are a minority, because they are viewed differently.”
For advocates of gay rights, same-sex marriage has increasingly become a central issue in their battle for equality, seen as both an emotional indicator of legitimacy and as a practical way to lessen discrimination.
“Being gay is about forming an adult family relationship with a person of the same sex,” said Jennifer Pizer, the marriage project director for Lambda Legal in Los Angeles, who filed two briefs in support of the plaintiffs. “So denying us equality within the family system is to deny respect for the essence of who we are as gay people.”
But Andrew Pugno, a lawyer for the defense, said Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who “simply wished to preserve the historic definition of marriage.”
“The other side’s attack upon their good will and motives is lamentable and preposterous,” Mr. Pugno said in a statement.
During the trial, which ended in June, plaintiffs offered evidence from experts on marriage, sociology and political science, and emotional testimony from the two couples who had brought the case. Proponents for Proposition 8 offered a much more straightforward defense of the measure, saying that same-sex marriage damaged traditional marriage as an institution and that marriage was historically rooted in the need to foster procreation, which same-sex unions cannot, and was thus fundamental to the existence and survival of the human race.
But Judge Walker seemed skeptical of those claims. “Tradition alone, however,” he wrote, “cannot form the rational basis for a law.”
Even before appeals to higher courts, Judge Walker seemed ready to continue to hear arguments, telling both sides to submit responses to his motion to stay the decision by Friday, at which point he could lift or extend it.
How the decision might play politically was also still unclear. In 2004, same-sex marriage was seen as a wedge issue that helped draw conservatives to the polls, and Richard Socarides, who advised President Bill Clinton on gay rights issues, said that this decision could be used as a rallying cry for Republicans again. “But Democrats and most importantly President Obama will now have to take sides on whether gays deserve full equality,” Mr. Socarides wrote in an e-mail.
In California, it could also affect the race for governor. Jerry Brown, a Democrat, has been vocal in his support of same-sex marriage in his current role as California attorney general and hailed the decision on Wednesday. Meg Whitman, a Republican, has taken the position that marriage should be between a man and a woman — in line with the language of Proposition 8 — though she says that she strongly supports the state’s domestic partnership laws, which afford many of the same rights as marriage.
Gov. Arnold Schwarzenegger in a statement on Wednesday supported the ruling, saying it “affirms the full legal protections” for thousands of gay Californians.
Some gay rights activists initially feared the case, believing that a loss at a federal level could set back their more measured efforts to gain wider recognition for same-sex marriage, which is legal in five states and the District of Columbia. But those concerns seemed to fade as the trial began, and on Wednesday, the mood was of elation and cautious optimism that Mr. Boies and Mr. Olson’s initial victory might change the debate.
Kate Kendell, executive director for the National Center for Lesbian Rights, said that she believed that there were members of the Supreme Court who “have a very deep-seated bias against L.G.B.T. people,” meaning lesbian, gay, bisexual and transgender. But, she added, “This legal victory profoundly changes the conversation” by involving “folks in the legal world and the policy world who were previously unmoved by this struggle.”
For those who had actually filed the suit, Wednesday’s victory, while measured, also seemed sweet.
“This decision says that we are Americans, too. We too should be treated equally,” said Kristin M. Perry, one of the plaintiffs. “Our family is just as loving, just as real and just valid as anyone else’s.”