Court Rejects Same-Sex Marriage Ban in California

By JESSE McKINLEY and JOHN SCHWARTZ

Published: August 4, 2010 - New York Times

SAN FRANCISCO — A federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing a temporary victory to gay rights advocates in a legal battle that seems all but certain to be settled by the Supreme Court.

Wednesday’s decision is just the latest chapter of what is expected to be a long legal battle over the ban — Proposition 8, which was passed in 2008 with 52 percent of the vote -- and proponents were already promising to appeal, confidently predicting that higher courts would be less accommodating to the other side than Vaughn R. Walker, the judge who issued the ruling.

Still, the very existence of federal-level ruling recognizing same-sex marriage in California, the nation’s most populous state, set off cheers from crowds assembled in front of the courthouse in San Francisco Wednesday afternoon. Evening rallies and celebrations were planned in dozens of cities across California and several across the nation.

In San Francisco, the plaintiffs’ case was argued by David Boies and Theodore Olson, ideological opposites who once famously sparred in the 2000 Supreme Court battle beween 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.

For gay rights advocates, 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 a same sex, so denying us equality within the family system is to deny respect for the essence of who we are as gay people,” said Jennifer Pizer, the marriage project director for Lambda Legal in Los Angeles, who filed two briefs in favor of the plaintiffs. “And we believe that equality in marriage would help reduce discrimination in other settings because the government invites disrespect of us when it denies us equality.”

The trial, which began in January, was closely watched in the gay community, drawing large crowds to courtrooms, and inspiring re-creations by actors which were posted online. The plaintiffs offered two weeks of 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, which was heavily backed by the Mormon church and other religious and conservative groups, had offered a much more straightforward defense of the measure, saying that same-sex marriage damages traditional marriage as an institution. They also argued that marriage was essentially created to foster procreation, which same-sex unions could not, and was thus fundamental to the existence and survival of the human race.

On Tuesday, those supporting Proposition 8 telegraphed their view that they had likely lost this round as the defense’s leading lawyer, Charles J. Cooper, filed a notice with the court requesting that Judge Walker keep the ban on same-sex marriage in place while they appealed his decision.

The defendants requested a ruling at the same time as Judge Walker issues the opinion, setting the stage for a quick appeal to the Ninth Circuit Court of Appeals "and, if necessary, the Supreme Court."

On Wednesday, lawyers for Ms. Perry responded with a letter of their own, requesting that Judge Walker not automatically rule on such questions without a hearing, asking that they be allowed to respond to the "obviously premature" motion before any action is taken.

The decision could also play into the state’s gubernatorial race in California though the race has been centered largely on economic issues thus far, with unemployment running more than 12 percent and a $19 billion budget gap.

Democrat Jerry Brown has been vocal in his support of gay marriage in his current role as California attorney general. Republican Meg Whitman 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 civil union laws, which afford many of the same rights as marriage.

There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Some in the gay rights community were initially upset by the case fearing 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 Supreme Court who “have a very deep seated bias against LGBT people,” meaning lesbian, gay, bisexual and transgender. But, she called Wednesday’s ruling “potentially game changing.”

“This legal victory profoundly changes the conversation,” she said, “for folks in the legal world and the policy world who were previously unmoved by this struggle.”