Today, Chief Judge Vaughn Walker issued the first federal court ruling on same sex marriage in many decades, striking down California’s Proposition 8. I’ve summarized Prop 8 in greater detail in other posts. A link to the opinion is here .
The legal analysis is located from page 109 to page 136 of the ruling. Notably, Judge Walker based the ruling on several alternative grounds. The first is that Prop 8 violates the fundamental right to marry by prohibiting individuals from marrying the person of their choice (regardless of whether that person is of the same sex). Although this argument has had some success in other same sex marriage cases, it has normally failed because, in order to find a fundamental right that is protected by the Due Process clause of the 14th Amendment, courts have required that the fundamental right have historical support. In short, courts have generally ruled that same sex marriage has never been a historical right so it is therefore not a fundamental right. In contrast, opposite sex marriage has been historically protected, and therefore is a fundamental right.
The other grounds for the judge’s ruling are based on the Equal Protection Clause of the 14th Amendment. The first ruling is that Prop 8 discriminates on the basis of sexual orientation and that sexual orientation is a suspect classification requiring higher scrutiny. This is a great ruling, as if it is adopted then the entirety of the prohibitions against same sex marriage would fall in this country. Under the Equal Protection clause, a law that treats one group of people differently than another group of people is permissible so long as some rational reason for the distinction can be identified, as long as the classification is not a “suspect classification” such as race, gender, nationality or religion. If, however, the law treats people differently on the basis of a “suspect classification,” then heightened scrutiny is given to the law to make sure that the classification is truly based on legitimate governmental concerns and the law is closely tailored to address those concerns. No judge has ever held that a ban against same sex marriage has passed any form of heightened scrutiny. The science is just not there to support it; there are too many fantastic same-sex parents and too many horrible opposite-sex parents out there to disprove that prohibiting same sex marriage is substantially related to creating good environments for children, for instance. Personally, I feel like this is the strongest argument against the bans against same sex marriage. Of the judges that have ruled that bans on same-sex marriage are prohibited, this seems to be the most popular basis.
Judge Walker, however, went one step further, ruling that no rational basis that is legitimate supported Prop 8 at all. This argument has been successful with several judges over the years, but is not the most popular. Judge Walker made extensive findings of fact showing that the studies shoot down any conceivable rational basis for why opposite-sex marriage is superior to same-sex marriage and thus concluded that the only rational basis for Prop 8 is animosity towards same-sex couples, which in itself is insufficient to justify laws harming them.
I haven’t finished the entire opinion yet and I plan to do a more in-depth post on the opinion within the next week or so.
