Wednesday, August 4, 2010

LATE BREAKING: Prop H8 Ruled Unconstitutional, But 48 Hour Stay Ordered (No Marriages Yet)

Here's the rundown of what's happened today:

U.S. District Chief Judge Vaughn R. Walker said Proposition 8, passed by voters in November 2008, violated the federal constitutional rights of gays and lesbians to marry the partners of their choice. His ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals and then up to the U.S. Supreme Court.

"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment," the judge wrote. "Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."

Vaughn added: "Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs' relationships are consistent with the core of the history, tradition and practice of marriage in the United States."

Ultimately, the judge concluded that 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 Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

And here's some early analysis from Brian Devine at Calitics:

Judge Walker found that the "strict scrutiny" test applies. As its name implies, this is the most stringent of the three tests that can be used to applying equal protection rights. Under strict scrutiny, the State may not pass a discriminatory law unless it serves a "compelling state interest." Judge Walker found that Prop 8 does not serve a "legitimate interest" (which is the standard for the less rigorous "intermediate scrutiny" that some argue should apply to marriage) much less a compelling interest.

And here's the full decision if you'd like to read along with me:

Prop 8 Ruling FINAL

Here's what I see so far:

- Judge Vaughn Walker has ordered California to (once again) issue marriage licenses to same-sex couples requesting them. This may be halted if the 9th Circuit Court of Appeals says so, but so far no stay of Judge Walker's ruling has been ordered.

- The remedies look to be California specific, so don't expect to get married here any time soon.

- However, Judge Walker's reasoning for overturning California's Prop H8 was rather broad. He went right into the 14th Amendment and equal protection. And because he said marriage discrimination does not serve a "compelling state interest", this may very well open the door to future federal law suits challenging other state marriage bans. I doubt Nevada's Question 2, which also specifically targeted LGBTQ families in denying gay & lesbian couples the right to marry, would hold the strict scrutiny test of serving "compelling state interest" any better than Prop H8.

More to come soon as I look through the decision some more...

UPDATE 2:41 PM: Judge Walker has just ordered a 48 hour stay...

ORDER granting [706] Motion to Shorten Time. Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to respond to Doc #705 on or before August 6, 2010. The clerk shall STAY entry of judgment herein until the motion to stay pending appeal has been decided. (vrwlc1, COURT STAFF) (Filed on 8/4/2010)

UPDATE 3:11 PM: So far, it looks like the 48 hour stay is mostly procedural. Still, even if Judge Walker lifts the stay on Friday, we'll have to await what the 9th Circuit Federal Court of Appeals says, as the case is now being appealed to them. They will likely first decide whether or not to stay Judge Walker's ruling pending hearing in their court.

The 9th Circuit has a good track record of supporting LGBTQ equality, so I'm cautiously optimistic the final ruling for them will be good news. However we never know for sure, and they may still issue a stay pending their hearing. We'll probably find out in the coming week what happens next.

So no marriages until Friday, depending on how Judge Walker rules on the motion to suspend the overturning of Prop H8. OK, so we have to wait another two days...

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