Wednesday, August 4, 2010

Prop 8 overturned - thanks Judge Walker! Highlight reel for those who don't want to read the entire ruling!

Here are some good tidbits from Judge Walker's ruling today declaring Prop 8, the Proposition which would define marriage as being between a man and a woman, unconstitutional. I am sorry I don't know how to blue book, or whatever, but I got the text from here.

Plaintiffs challenge Proposition 8 under the Due Process
and Equal Protection Clauses of the Fourteenth Amendment. Each
challenge is independently meritorious, as Proposition 8 both
unconstitutionally burdens the exercise of the fundamental right to
marry and creates an irrational classification on the basis of
sexual orientation.

The marital bargain in California (along with other
states) traditionally required that a woman’s legal and economic
identity be subsumed by her husband’s upon marriage under the
doctrine of coverture; this once-unquestioned aspect of marriage
now is regarded as antithetical to the notion of marriage as a
union of equals. FF 26-27, 32. As states moved to recognize the
equality of the sexes, they eliminated laws and practices like
coverture that had made gender a proxy for a spouse’s role within a
marriage. FF 26-27, 32. Marriage was thus transformed from a
male-dominated institution into an institution recognizing men and
women as equals. Id. Yet, individuals retained the right to
marry; that right did not become different simply because the
institution of marriage became compatible with gender equality.

Because plaintiffs seek to exercise their fundamental
right to marry, their claim is subject to strict scrutiny.
Zablocki, 434 US at 388. That the majority of California voters
supported Proposition 8 is irrelevant, as “fundamental rights may
not be submitted to [a] vote; they depend on the outcome of no
elections.” West Virginia State Board of Education v Barnette, 319
US 624, 638 (1943). Under strict scrutiny, the state bears the
burden of producing evidence to show that Proposition 8 is narrowly
tailored to a compelling government interest. Carey v Population
Services International, 431 US 678, 686 (1977). Because the
government defendants declined to advance such arguments,
proponents seized the role of asserting the existence of a
compelling California interest in Proposition 8.

To the extent California has an interest in encouraging
sexual activity to occur within marriage (a debatable proposition
in light of Lawrence, 539 US at 571) the evidence shows Proposition
8 to be detrimental to that interest. Because of Proposition 8,
same-sex couples are not permitted to engage in sexual activity
within marriage. FF 53. Domestic partnerships, in which sexual
activity is apparently expected, are separate from marriage and
thus codify California’s encouragement of non-marital sexual
activity. Cal Fam Code §§ 297-299.6. To the extent proponents
seek to encourage a norm that sexual activity occur within marriage
to ensure that reproduction occur within stable households,
Proposition 8 discourages that norm because it requires some sexual
activity and child-bearing and child-rearing to occur outside

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. See Romer, 517 US at
633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433
(1984) (“[T]he Constitution cannot control [private biases] but
neither can it tolerate them.”).

Again, apologies for the lack of proper citations.