A U.S. District Court has ruled that Proposition 8 is unconstitutional under both Due Process and Equal Protection Clauses and enjoins its enforcement. In an eagerly awaited opinion in Perry v. Schwarzenegger, U.S. District Court Judge Vaughn Walker has ruled that Proposition 8, which limits valid marriages to those between men and women, is unconstitutional. In Perry, a lesbian couple in a committed relationship, and a gay couple in a similar relationship had been denied a marriage license by their respective County Clerks because of Proposition 8. The couples then sued California’s governor, attorney general, and other public officials in the U.S. District Court for Northern District of California, challenging the constitutionality of Proposition 8. The attorney general conceded its unconstitutionality and the other government defendants refused to take a position on the merits of the case or to defend Proposition 8. The official proponents of the proposition were then permitted to intervene to defend its constitutionality in further proceedings and at trial.
The following are highlights of the findings of fact and conclusions of law contained in Judge Walker’s opinion: Some of the Findings of Fact:
1. California law governs its citizens’ right to marry or divorce and no longer contains racial restrictions.
2. Until the enactment of no-fault divorce, the concept of coverture required the husband to be the legal head of the household, precluded wives from suing in their own names, and assigned division of labor between spouses (husband as provider, wife as homemaker).
3. Changes in statutes and by case law have eliminated gender-based marital obligations and given husbands and wives equal rights of control over marital property and duties of support.
4. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
5. Marriage is state recognition and approval of a couple’s choice to live together, remain committed to each other, and form a household based on their feelings toward each other and desire to support each other.
6. Marriage benefits adults’ emotional well-being, and tangible and intangible benefits of marriage flow to the couple’s children.
7. Sexual orientation is an individual characteristic that is fundamental to a person’s identity and defines gays and lesbians as a discrete group.
8. Individuals do not generally choose their sexual orientation and no credible evidence supports finding that they may change it through conscious decision, therapeutic intervention, or any other method.
9. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in this state.
10. Same-sex couples are identical to opposite-sex couples in their ability to form successful marital unions, deep emotional bonds, and strong commitments to their partners.
11. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting, or assistive reproductive technology. (Approximately 18% of same-sex couples are raising children).
12. Domestic partnerships lack the social meaning associated with marriage, which is regarded as the definitive expression of love and commitment in the U.S. Domestic partnerships do not provide gays and lesbians with a status equivalent to marriage.
13. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.
14. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage, or otherwise affect the stability of opposite-sex marriage.
15. Proposition 8 places the force of law behind stigmas against gays and lesbians, requires California to treat same-sex couples differently, amends the California Constitution to codify distinct and unique roles for men and women in marriage, and has had a negative fiscal impact on California and local governments.
16. Children do not need to be raised by male and female parent to be well-adjusted and having opposite-sex parents does not increase the likelihood that a child will be well-adjusted.
17. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. Campaign advertisements never gave a reason for protecting children from same-sex marriage, but insinuated that learning about it could make a child gay or lesbian and that parents should dread having a gay or lesbian child.
Therefore, Judge Walker has ruled that the right to marry is a fundamental right. Traditions of marriage changed as courts invalidated race restrictions and the concept of coverture gave way to belief in equality of husbands and wives, but the same-sex marriage exclusion continues to exist as an artifact of a time when genders were seen as having distinct roles in society and in marriage. That time has passed. Plaintiffs do not seek recognition of a new right to same-sex marriage, but rather, recognition of their relationships as marriages. Domestic partnerships do not fulfill California’s due process obligation because they do not provide the same social meaning as marriages and exist solely to differentiate same-sex unions from marriages. Proposition 8 is unconstitutional because it denies plaintiffs a fundamental right without a legitimate or compelling reason (it is not narrowly tailored to serve a compelling state interest). Proposition 8 proponents have failed to show rational basis for excluding same-sex couples from marriage (tradition alone is not enough; state has no interest in disadvantaging an unpopular minority group because of its unpopularity; permitting same-sex marriage would not be sweeping social change, have adverse effects on society or institution of marriage, or be difficult to implement). Proposition 8 violates Equal Protection Clause because it prevents California from fulfilling its constitutional obligation to provide marriage on an equal basis.
Having found that Proposition 8 is unconstitutional, Judge Walker ordered 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.
Judge Walker also ordered the parties to submit argument on whether his judgment should be stayed pending the appeal of his decision. The Proposition 8 proponents promptly filed their appeal.