Proposition 8 found unconstitutional

Timothy Kincaid

August 4th, 2010

The word has just come in on Perry v. Schwarzenegger. Judge Walker Vaughn has found that Proposition 8, the constitutional amendment that banned same-sex marriage in California, is in violation of the US Constitution.

I’ll provide more information once I review the ruling, but meanwhile, go to Rex Wockner’s site to find where to celebrate. There are rallies planned throughout California and in several other states.

Ted Olson and David Boies will be holding a livestream press conference here.

UPDATE: It appears (to me) that there will be no hold placed on the ruling by Judge Vaughn.

UPDATE TWO: Items of interest:


From the judge’s summary of their deposition, the supporters of Prop 8 didn’t call their witnesses because their testimony would only bolster our side.

The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable.

Findings of Fact:

Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.

California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.

Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.

a biggie:

Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertions that sexual orientation cannot be defined is contrary to the weight of evidence.

another biggie:

Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

and he gets it:

Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

The finding that conservative Christians will latch onto in demonizing Vaughn:

Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

and the core of the case:

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriages may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

Remember “I heard that a prince could marry a prince and I can marry a princess”?

UPDATE THREE: The conclusions, and they are BIG

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny.

But Proposition lacks even a legitimate – much less compelling – reason and cannot even withstand rational basis review. In other words, orientation deserves the same level of protection as race, but Proposition 8 would not hold up under any level of inspection.

Thus Proposition 8 fails under the Due Process constitutional provisions.

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legislative state interest.

Thus Proposition 8 also fails under the Equal Protection constitutional provisions.


Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of 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 obligations to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.


Judge Vaughn has stayed his decision until August 6 at which time he will consider arguments to determine whether he should put a stay on the case until it reaches appeal before the 9th Circuit appeals court.


You can read the full decision here.


August 4th, 2010

August 4th, 2010–An Historic Day for Equality in America!!!

L. Junius Brutus

August 4th, 2010

If Walker won’t stay, the 9th Circuit will.

Lindoro Almaviva

August 4th, 2010

If not in America, at least in California. I do think this is the day the tables are officially turn on NOM and their friends.

Hi Maggie Moo! How does the biter taste of being a failure taste? How does it feel to know that you are becoming obsolete?


August 4th, 2010

The “no-stay” ruling is a good thing as it opens the window for more couples to be wed and gives the appeals court a larger “human interest” story to look at.

Lindoro Almaviva

August 4th, 2010

Brutus: The stay only means that, a stay until the case is reviewed. Do you think that the stay will be there forever? Are you that naive to think that the 9th, one of the most liberal courts in the nation will overturn this decision?

Face it, anti-equality forces today saw the tide turn, it is only a mater of time and you will be seen as the new century’s McCarthys


August 4th, 2010

woo hoo!

L. Junius Brutus

August 4th, 2010

“Brutus: The stay only means that, a stay until the case is reviewed. Do you think that the stay will be there forever? Are you that naive to think that the 9th, one of the most liberal courts in the nation will overturn this decision?”

I hate to spoil the party, but: The Supreme Court might, which is why this case was always a dangerous venture. My point was that the fact that the judge has not stayed his order, most likely does not mean that gay marriages can start once again, because the 9th will stay.

I hope I’m wrong, of course.

Timothy Kincaid

August 4th, 2010

And it the 9th doesn’t, Justice Kennedy might.


August 4th, 2010

Gloria. :)


August 4th, 2010

Every mini-DOMA and DOMA itself are now in danger of being overturned.

Lindoro Almaviva

August 4th, 2010

let the part begin:


August 4th, 2010

I think it’s a shoe-in, with the Ninth Circuit. But what I really wonder is how Jusitice Roberts and Alito are going to vote on this matter if it ever reaches the Supreme Court.

Lynn David

August 4th, 2010

Listened to FOX News and their analyst said that the Walker decision would be upheld in SCOTUS by 5-4.


August 4th, 2010

@Brutus-not gay marriage, just marriage, or even marriage equality. I don’t want to gay marry. I may not ever want to marry, but if/when I do it will just be marriage.

Emily K

August 4th, 2010

a thousand huzzah’s!!!

Rob Lll

August 4th, 2010

I think this might be one of those “where were you when…” moments. I was buying lunch at a place down the street and they had CNN on. The Prop 8 ruling was announced as breaking news while they were doing a BP oil spill story. Several people in the place started to applaud. Beautiful.

Regan DuCasse

August 4th, 2010

The opposition HAD NO EVIDENCE. A higher court will see more of the same. The opposition couldn’t possibly be favored at SCOTUS, when they had no evidence to support their case.

It’s that a requisite of showing up to court at all?
That you need to present something to the court to show the proof of why you’re there?

How can you win a case with no EVIDENCE?

Lynn David

August 4th, 2010

Schwarzenegger is happy with it.


August 4th, 2010

This truly is “a victory for the worthy ideas of tolerance and inclusion”


August 4th, 2010

While I’m elated at the decision, my worry is that this is going to have the same effect that the legalization of same-sex marriage did in Massachusetts. Now, the Republicans have a nice big “crisis” with which to distract voters. What’s scary is that they could renew their efforts to amend the federal Constitution.

Lynn David

August 4th, 2010

He temporarily stayed his decision. Damn…

Mark F.

August 4th, 2010

Good news, but it’s questionable whether this ruling will survive the Appeals Court, or hold up at the SCOTUS.

The defense was totally miserable here, but they may do better in the future. Just sayin’


August 4th, 2010

I was at my apartment, sitting in front of the TV and laptop, hitting “refresh” on about 10 different blogs at once trying to get news of the ruling.

8/4: Gay Independence Day? (or would that be Stonewall?)


August 4th, 2010

AJD: I worry about another backlash, too, but let’s face it there’s ALWAYS an election coming up, there’s ALWAYS a crisis to distract voters. But each time this happens, as more people know gay friends and family and gay couples, the shock-and-awe impact is less and less. Times have changed even since 2004, even if there are still a lot of vocal haters out there.

In the meantime … Huzzah! ^.^

Regan DuCasse

August 4th, 2010

Apparently, Judge Walker has written in so much of the trial transcript, literally putting in chapter and verse, is so that SCOTUS or other higher courts in other states can read it and understand how thoroughly the evidence was scrutinized.
Meaning, what he wrote was a airtight as could be so no other court could mistake the evidence and it’s merits.

He’s left a template for every other court in the country.

Already the NOM’ers and FRC’ers are crying foul. As if they didn’t have the SAME opportunity to make their case.
As if the Judge didn’t hear and examine everything placed before him. As if he’s not actually quite conservative.

Apparently their sense of unchallenged privilege is supposed to extend to the courts and Constitution?
That is to say, they should win in a court with virtually no evidence and no witnesses?

This was a SMART Judge. And perhaps that is the biggest obstacle to our opposition.
THEY aren’t all that smart, because they never really HAD to be. And bigotry never really does advance IQ points in anyone.
Does it?

Lindoro Almaviva

August 4th, 2010

Any word on the press conference? I keep looking for the stream to no avail

Avery Dame

August 4th, 2010

“Never in the history of America has a federal judge ruled that there is a federal constitutional right to same sex marriage. The reason for this is simple – there isn’t!” added Brown.”

Such a…persuasive argument, Brian Brown. Are you also taking your ball and going home?


August 4th, 2010

Kudos to the Judge for being thorough and articulate in his report.


August 4th, 2010

I was at my internship. The second 1 P. M. PST hit, I was checking google compulsively for an answer. The first sign I got was a random tweet followed by Good As You with the full decision.

I combed through that for the next half hour, until I heard in the other room the other interns just finding out the news. It was a great moment as I walked over.


August 4th, 2010

No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

Yes, that’s a biggie right there.

Thank you Judge. Thank you BTB for summarizing it for me just before I commute back home and then digest the news.

Maybe I should stay at work and join the rally instead of going home.

What a great feeling.


August 4th, 2010

Almost done reading this decision- there’s some remarkable stuff in there. I have to agree with Regan. I’m no lawyer, but the section on “Questions of Law” looks like a slam-dunk to me.


August 4th, 2010

And here’s the nail in the coffin to the NOM’s “People should have the right to vote on marriage” meme, from the ruling:

The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. 539 US at 571. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot.
California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.”

Game, set, equality.

Helen in Ireland

August 4th, 2010

“Mark F. says:
Good news, but it’s questionable whether this ruling will survive the Appeals Court, or hold up at the SCOTUS.
The defense was totally miserable here, but they may do better in the future. Just sayin’”

I know I’m looking at this from a different country (and celebrating with you all!) but I did read that somewhere that appeals in matters such as these are solely based on the evidence submitted at the original child and challenges the JUDGE’S findings – therefore no new evidence can be presented later. Can someone confirm this is the case? Can a new defense team present their evidence in a different way?

Helen in Ireland

August 4th, 2010

‘I did read that somewhere that appeals in matters such as these are solely based on the evidence submitted at the original child and challenges the JUDGE’S findings – therefore no new evidence can be presented later.’

Re: ‘child’ – I meant ‘trial’ !! Sorry, its after midnight here and my brain slipped here!


August 4th, 2010

There are some long overdue findings in the ruling, and much welcomed. Those alone are very big news.

For those interested in the mouths of horses, the United States District Court for the Northern District of California (whew) has established a central page for the case.


August 4th, 2010

Very thrilling day today :)

My question is about the appeals process. Regan’s post got me thinking and I’m sure I could find this, but I want to know what the appeals court is allowed to do…

Are appelate courts limited to only examining the evidence and proceedings of the original trial? ie: can new evidence be introduced in subsequent appeals?

If it’s the case that the window for presenting evidence is now closed, then I have to say I’m elated! How could *any* justice rule in favour of *any* side that presented *no* evidence?


August 4th, 2010

oh woops I see my question has been addressed – my bad! I started typing the question then had to leave my computer for a few minutes hehe


August 4th, 2010

All I can say is “it’s about time.” I nearly cried reading about this.

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