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The Decision in the Prop 8 Trial – Walker Finds Gay Marriage Ban Unconstitutional

Via the entire Internet and the mothership, federal district court judge Vaughn Walker has overturned Prop 8, ruling that the gay marriage ban is unconstitutional. Here is the final ruling, all 130-plus pages of it. The key piece:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants anddefendant-intervenors pursuant to FRCP 58.


The defendant-intervenors in the case have already asked for a stay of the ruling, pending appeal to the 9th Circuit Court of Appeals, and if necessary, the Supreme Court. Expect this to hit the nation’s highest court sometime next year.

We may see new defendants by that time. The Governor and Attorney General races are up for grabs in California this year, and while Arnold Schwarzenegger and Jerry Brown chose not to fight the trial out, Meg Whitman and LA District Attorney Steve Cooley, the Republican nominees in both races, may choose to do so. Brown and SF District Attorney Kamala Harris would surely not fight the ruling and leave it to the D-I’s.

The American Federation for Equal Rights and their legal “dream team” of Ted Olson and David Boies believe they have the votes on the Supreme Court to overturn gay marriage bans. They will have an opportunity to find out. In the meantime, we shall see if same-sex couples in California will be allowed to marry before the appeal (my guess would be no).

UPDATE: Judge Walker apparently did issue a stay in the case, meaning that the law will continue in place pending appeal.

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David Dayen

David Dayen