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Federal Judge Tells Claimants in Prop 8 Case to Prove It

(06-30) 19:00 PDT SAN FRANCISCO -- A federal judge said Tuesday he's inclined to leave California's ban on same-sex marriage in effect for now, but wants an early trial to determine whether the voter-approved prohibition violates the U.S. Constitution's guarantee of equality.

In his first response to the lawsuit challenging Proposition 8, Chief U.S. District Judge Vaughn Walker of San Francisco said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment.

Two same-sex couples filed the federal suit last month, four days before the state Supreme Court upheld Prop. 8 in separate proceedings as a valid amendment to the California Constitution. The November ballot measure invalidated the court's May 2008 ruling that struck down a law defining marriage as the union of a man and a woman.

The couples, represented by Theodore Olson and David Boies - the lawyers for George W. Bush and Al Gore in the case that decided the 2000 presidential election - say Prop. 8 violates the U.S. Constitution by denying equal treatment to gays and lesbians. Gay-rights groups did not raise that issue before the California court, unwilling to risk a U.S. Supreme Court ruling on the right to marry.

Olson and Boies asked Walker to issue an injunction at a Thursday hearing that would suspend Prop. 8 and allow same-sex couples to marry while the case proceeds.

In Tuesday's order, the judge said he has tentatively decided instead to move "directly and expeditiously" to a trial on the constitutionality of the measure.

Halting enforcement of Prop. 8 at this stage "may inject still further uncertainty," Walker said. He noted that any couples who married as a result of an injunction would be unclear about their status until a final ruling.

The judge said lawyers at Thursday's hearing could discuss how the case should proceed.

Olson said he was pleased with Walker's approach, even though the ballot measure will remain in effect.

"He's taking the case very seriously," Olson said. "We're prepared, willing and able to move as fast as the judge is willing to go."

Attorney Brian Raum of the Alliance Defense Fund, representing sponsors of Prop. 8, said he sees no need for a trial.

"We think this is an issue of law" that does not depend on disputed evidence, Raum said. For example, he said, questions of past persecution of gays and lesbians are irrelevant because Prop. 8 allows them to marry, as long as they wed someone of the opposite sex.


"There is no indication that the marriage laws discriminate based on sexual orientation," Raum said. "Our position is that from a federal constitutional perspective, there is no fundamental right to same-sex marriage."

Walker said in his order, however, that past discrimination is relevant in evaluating a law that limits the right to marry.

A related issue, he said, is "whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians."

He said opponents of same-sex marriage may also need to present evidence to justify their arguments that children are best raised by a married mother and father, and that allowing gays and lesbians to wed "destabilizes opposite-sex marriage."

Citing the plaintiffs' argument that Prop. 8 was motivated by antagonism toward homosexuals, Walker also said he may want to take a look at campaign ads and ballot arguments to establish voters' intent.

Raum said none of that was necessary. He said the voters' intent is clear from the text of the measure, which reads in full: "Only marriage between a man and a woman is valid or recognized in California."

Source.



The parties disagree regarding the standard of review the court should apply to plaintiffs’ equal protection and due process claims. Compare Doc #7 at 11 (suggesting that under the Due Process Clause, Prop 8 is subject to strict scrutiny) and 18 (arguing that gays and lesbians are a suspect class for equal protection purposes) with Doc #36 at 17 (arguing that Prop 8 does not affect a fundamental right under the Due Process Clause and must therefore only survive rational basis review) and 30 (arguing that gays and lesbians are not a suspect class).

The facts necessary to establish the appropriate level of scrutiny under the Equal Protection Clause have been adverted to in the parties’ submissions but have not been adequately briefed, nor have these facts been established on an adequate evidentiary record. The factors, of course, derive from the Supreme Court’s formulation in United States v Carolene Products Co, 304 US 144, 153 n4 (1938). See also Varnum v Brien, 763 NW2d 862, 887 (Iowa 2009) (synthesizing federal precedent and listing the factors used to determine whether a classification should receive heightened scrutiny). In the context of the present case, the relevant factors appear to include: (1) the history of discrimination gays and lesbians have faced; (2) whether the characteristics defining gays and lesbians as a class might in any way affect their ability to contribute to society; (3) whether sexual orientation can be changed, and if so, whether gays and lesbians should be encouraged to change it; and (4) the relative political power of gays and lesbians, including successes of both pro-gay and anti-gay legislation. The parties have also averted to facts, such as the history of marriage and whether and why its confines may have evolved over time, that may be necessary to determine whether the right asserted by plaintiffs is "deeply rooted in this Nation’s history and tradition" and thus subject to strict scrutiny under the Due Process Clause. Washington v Glucksberg, 521 US 702, 721 (1997) (citations omitted).

In support of their argument that Prop 8 is constitutional, the intervenors have raised state interests that appear to require evidentiary support. Doc #8 at 17-18 (citing state interests asserted in In re Marriage Cases, 43 Cal 4th at 784 and Hernandez v Robles, 7 NY3d 338 (2006)). To determine whether the asserted state interests can survive plaintiffs’ constitutional challenge, the record may need to establish: (1) the longstanding definition of marriage in California; (2) whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage or alternatively whether permitting same-sex couples to marry destabilizes opposite-sex marriage; (3) whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment; and (4) whether and how California has acted to promote these interests in other family law contexts.

The parties’ submissions raise the question whether or not Prop 8 discriminates based on sexual orientation or gender or both. Compare Doc #7 at 20, 21 (citing In re Marriage Cases, 43 Cal 4th at 840, to argue it is "sophist to suggest" that Prop 8 does not discriminate against gays and lesbians) with Doc #36 at 29, 32 (citing Cuyahoga Falls, Ohio v Buckeye Comm Found, 538 US 194 (2003), for the proposition that Prop 8 has a disparate impact on gays and lesbians but does not discriminate against them as a class); see also Doc #52 at 17 (asserting that plaintiffs have suffered psychological harm because Prop 8 directs state-sanctioned discrimination at them based their sexual orientation). In addition to the particular facts pertaining to the parties at bar, resolution of this dispute may depend on: (1) the history and development of California’s ban on same-sex marriage; (2) whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians; (3) whether the ban on same-sex marriage meaningfully restricts options available to heterosexuals; and (4) whether requiring one man and one woman in marriage promotes stereotypical gender roles.

Finally, the parties have raised a question whether Prop 8 was passed with a discriminatory intent. Doc #7 at 18 (arguing that the sole motivation for Prop 8 was moral disapproval of gays and lesbians) with Doc #8 at 17-18 (arguing various state interests in preventing same-sex couples from marrying). The question of discriminatory intent may inform the court’s equal protection analysis. Romer v Evans, 517 US 620, 631-32 (1996); Vil of Arlington Heights v Metro Housing Dev, 429 US 252, 266-67 (1977). To resolve the question, the court may have to consider the "immediate objective" and "ultimate effect" of Prop 8, along with its "historical context and the conditions existing prior to its enactment," Reitman v Mulkey, 387 US 369, 373 (1967), which in this case may require the record to establish: (1) the voters’ motivation or motivations for supporting Prop 8, including advertisements and ballot literature considered by California voters; and (2) the differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts.

The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.

Full text of the order.

This can only be good for our side. The defendants can't prove any of their claims about the ill effects of gay marriage, and in fact there's a shitload of evidence AGAINST them. The easiest part will be proving the immediate objective of Prop 8 was to discriminate against gay people. All we need to do there is show the pamphlets and other campaign materials Prop 8 people spread around. It's like the Scopes Trial Part Deux. I can't wait to see how it'll play out. :D
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