When Kristin Perry and Sandy Stier of Berkeley filed their historic lawsuit challenging the constitutionality of Proposition 8, some gay and lesbian activists criticized them. The cause of gay marriage would be better served at the ballot box, the critics said. But Stier and Perry, along with the American Foundation for Equal Rights, were convinced they had a winning strategy. They had two of the nation’s best lawyers on their side — liberal David Boies and conservative Ted Olson, who had squared off in Bush v. Gore. And they knew the anti-gay-marriage forces had no legal leg to stand on.
Last week’s ruling by US District Court Judge Vaughn Walker validated their decision to ignore their critics. In a scathing and meticulously argued 138-page repudiation of Prop 8, Walker ruled that the anti-gay marriage measure approved by California voters in 2008 violated both the Due Process and Equal Protection clauses of the Fourteenth Amendment of the US Constitution — and thus was illegal.
Walker agreed with the arguments proffered by Olson and Boies during the trial, and penned a point-by-point rebuttal to the often-absurd assertions made by the anti-gay-marriage side. He ruled that gays and lesbians were not trying to obtain some “new right” under the law as the Prop 8 supporters had contended. Instead, Walker ruled that under the Constitution’s Due Process clause, gays and lesbians were seeking to exercise their fundamental right to marry.
“Plaintiffs do not seek recognition of a new right,” the judge wrote in one of numerous memorable passages in the decision. “To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”
The judge also ruled that the state has no legitimate interest in excluding gays and lesbians from marrying. Walker repeatedly ridiculed the anti-gay marriage argument that the basis of marriage is to promote “procreation.” The judge noted that no law anywhere requires heterosexual couples to prove that they can have children before getting hitched.
The judge also noted that there is no proof that children are better off with opposite-sex parents. Indeed, he pointed out that even the losing side agreed that children suffer emotionally and psychologically when their parents aren’t allowed to marry. “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest,” he wrote.
Walker also ruled that Prop 8 discriminates on the basis of gender. He noted that the measure prohibited a woman from marrying another woman simply because she is a woman. “Having considered the evidence, the relationship between sex and sexual orientation, and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex,” the judge wrote.
Right-wing pundits immediately called the judge a liberal activist who ignored the will of the people. In reality, he is a careful jurist who was nominated to the bench by the first President Bush. The right also contended that Walker should have recused himself because he is gay. From their perspective, only heterosexuals are qualified to judge whether gays and lesbians have been victims of discrimination.
In truth, attorneys for the anti-gay marriage forces knew they had put on a pathetic case at trial and had expected Walker’s decision. They even asked the judge before the ruling came out if he would not enforce it while they appealed. Walker agreed to hear arguments on the issue, and then in a somewhat surprising move, Republican Governor Arnold Schwarzenegger parted ways with the anti-gay-marriage crowd and urged the judge to order that gay and lesbian couples begin receiving marriage licenses right away.
In the end, Perry and Stier’s case probably will be decided by the US Supreme Court. Some of the same critics who decried their lawsuit are concerned that the conservative court is not ready to sanction gay marriages. But the lesbian couple from Berkeley may still have a winning strategy. They now have brilliantly written and painstakingly sourced decision from a Republican-appointed judge. They have a Republican governor arguing their side. And their attorney, Olson, may give conservative justices on the high court the political cover they need to rule in their favor. After all, when Olson was US solicitor general under the second President Bush, the right-leaning justices routinely issued rulings agreeing with him.
Oakland Mayor Ron Dellums will not seek reelection. His decision was expected and marked an end to a disappointing tenure in which he was often detached from the many problems facing the city. … Dellums, however, still has support in the black and progressive communities, and both Councilwomen Rebecca Kaplan and Jean Quan are seeking his endorsement. … The city officially launched the free Broadway shuttle connecting Uptown to Jack London Square. … A judge ordered AC Transit management to rescind a cost-cutting contract imposed on bus drivers while the issue is before an independent arbitrator. … SunCal sued the City of Alameda for alleged breach of contract, following the city council’s decision to kill the developer’s controversial plan for the former Naval Air Station. … And the Marin County town of Fairfax banned PG&E’s SmartMeters in part because of health concerns related to electromagnetic radiation.