Saturday, August 21, 2010

Judge Walker Declares Proposition 8 Unconstitutional

Rules Marriage Ban Advocates May Lack Standing to Appeal

news analysis by LEO E. LAURENCE, J.D.

Copyright © 2010 by Leo E. Laurence, J.D. for San Diego News Service • All rights reserved

At press time, an unusually courageous federal judge in San Francisco on August 4 had killed the homophobic Proposition 8, effective August 18 at 5 p.m., and quite possibly permanently. The historically liberal federal Ninth Circuit Court of Appeals in San Francisco may not have jurisdiction to even consider an appeal by the Proposition 8 proponents, the judge ruled. [EDITOR’S NOTE: The Ninth Circuit later accepted the appeal and delayed Judge Walker’s decision until December, but said they would ask the proponents of Proposition 8 to address the issue, discussed below, of whether they even have legal standing to bring the appeal.]

The jurisdictional challenge to an appeal is creative judicial maneuvering by Chief Judge Vaughn R. Walker; and he’s probably right with both (1) his August 4 ruling finding Proposition 8 unconstitutional, and (2) his Order denying the Proposition 8 proponents’ request for a stay pending appeal for the lack of jurisdictional “standing” on appeal.

Standing is a fundamental legal doctrine that says a party must have been injured somehow to be able to sue in court; or as here, to appeal a case.

The Proposition 8 proponents were only “intervenors” in the trial court and were not parties to the federal lawsuit. Judge Walker therefore ruled they have no right to appeal. Proponents’ intervention, without being a party to the lawsuit in the district court, does not provide them with the right to appeal, he ruled. It’s jurisdictional.

It’s unlikely the proponents will succeed on appeal, the senior judge reasoned. They will not be ir-reparably injured without the stay, and a procedural stay is not in the public’s interest; all requirements for a stay.

Proponents “failed to articulate even one specific harm” they might suffer as a consequence of the ruling holding Proposition 8 unconstitutional, Judge Walker wrote in denying the stay.

He did, however, delay his Order denying a stay until August 18 at 5 p.m. to allow the federal Court of Appeals in San Francisco to consider the denial of the stay. However, if the Proposition 8 proponents have no standing to appeal, then the Ninth Circuit has no jurisdiction even to consider either their petitions for a stay, or their appellate briefs.

If the appellate court agrees (highly likely at press time) that it has no jurisdiction to hear the case, then it’s all over and the case may never reach the U.S. Supreme Court; largely because the proponents of Proposition 8 did such a poor job litigating the issues.

Original Court Opinion

The 136-page Opinion of the Court is cleverly and skillfully drafted by Chief Judge Walker, ruling after a 13-day trial that Proposition 8 (banning same-sex marriages) was grossly unconstitutional.

No new law was created in this ruling. Indeed, the legal doctrines involved were also stated by the California Supreme Court on May 15, 2008, in the case that legalized same-sex marriages, but was later voided by Proposition 8.

The proponents had organized the official campaign to pass Proposition 8, known as, spent $39 million to pass the measure (of which $22 million came either from the Mormon church or from individual Mormons, who were strongly urged by their church to contribute). But the proponents put on only “a rather limited factual presentation” in court, according to the comprehensive ruling.

The proponents’ key witness at trial, Institute for American Values founder David Blankenhorn. “lacked the qualifications to offer opinion testimony” and “failed to provide cogent testimony,” Judge Walker ruled.

His testimony was ruled “unreliable and entitled essentially [to] no weight.” In other words, the proponents defending Proposition 8 had no credible evidence in the court record to support their legal theories and stereotypical beliefs about Gay people.

“The minimal evidentiary presentation made by the (Proposition 8) proponents does not meet the heavy burden of production necessary” to prove their case, the ruling states.

What is Marriage?

“The freedom to marry is recognized as a fundamental right protected by the Due Process Clause (of the federal Constitution),” Judge Walker wrote in his comprehensive, 136-page ruling which also pro-vides a comprehensive history of marriage.

“The right to marry has been historically, and remains, the right to choose a spouse and, with mutual consent, join together and form a household.”

Marriage itself is defined by the Court as simply “a union of equals.” In the law, it is nothing more.

“(Gay) plaintiffs do not seek a new right … rather, (they) ask California to recognize their relation-ships for what they are: marriages,” the Opinion adds.

Domestic Partnerships Inadequate

“California has created two separate and parallel institutions to provide couples with essentially the same rights and obligations,” Judge Walker’s ruling states.

“The evidence shows that domestic partnerships do not fulfill California’s due-process obligations to (Gay) plaintiffs for two reasons: (1) domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage.

“Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from (them).

“The (evidence) reflects that marriage is a culturally superior status compared to a domestic part-nership.”

Sex Discrimination

“The evidence at trial shows that Gays and Lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation,” Judge Walker explained in his ruling.

“Gays and Lesbians have historically been targeted for discrimination because of their sexual ori-entation, and that discrimination continues to the present.”

“Homosexual conduct and identity are constitutionally protected and integral parts of what makes someone Gay or Lesbian.”

In an unusual statement connecting sexual orientation to sex discrimination (historically, no nexus has been found), “the Court determined that (Gay) plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex,” the Court said.

Minority Status

Traditionally, minority status has been limited to racial groups (e.g., Latinos, Asians, etc.), and Gays have been excluded from being identified — under the law — as a minority.

Our state Supreme Court hinted at giving Gays minority status in 2008, but this federal ruling specifically says “that Gays and Lesbians are a type of minority.”

All Arguments For Proposition 8 Rejected

All six arguments by Proposition 8 proponents were rejected, including (1) marriage must be only between a man and a woman, (2) go slow with social change, (3) promoting opposite-sex parenting, (4) protecting freedom of opponents of same-sex marriages, (5) treating straight and Gay couples differently, and (6) any other conceivable interest.

“Many of the purported interests by proponents are nothing more than a fear or unarticulated dislike of same-sex couples,” the ruling states.

“The evidence (at trial) shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite sex couples and same-sex couples are equal,” Judge Walker wrote.

Equal Protection

The Gay and Lesbian plaintiffs’ equal protection argument said that Proposition 8 (1) “discriminates against Gay men and Lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely;” and (2) disadvantages a suspect class in preventing only Gay men and Lesbians, not heterosexuals, from marrying. In federal law, the legal phrase suspect class usually applies only to racial minorities, but now includes Gays.

“Whether based on moral disapproval, animus towards Gays and Lesbians, or simply a belief that a (straight) relationship is inherently better than a (Gay) relationship, this belief is not a proper basis (to support the Proposition 8 initiative),” the ruling says.

“Moral disapproval alone is an improper basis on which to deny rights to Gay men and Lesbians,” it states.

Eighty Findings of Fact

In remarkable work in the judicial craft, Judge Walker carefully cast in stone numerous statements of basic civil rights for Gays by writing them into 80 separate facts in 55 pages of “Findings of Fact” in the ruling.

When a case goes up on appeal, the appellate courts generally accept the facts as established by the trial court, and look only for errors of law. The federal Ninth Circuit Court of Appeals in San Francisco will not hold a second trial and re-try the facts of this case on appeal.


“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,” Judge Walker ruled.

Until this learned Opinion by Judge Walker, Gays did not have any rights in the federal law based on sexual orientation.

The case stops if the Ninth Circuit Court of Appeal in San Francisco agrees with him and concludes that the Proposition 8 proponents have no right to appeal because of their limited role as intervenors in the trial court, rather than parties to the case.

In that situation, it may not go to the U.S. Supreme Court — except possibly for the limited purpose of reviewing the Ninth Circuit’s refusal to hear the case.

Contact writer Leo E. Laurence, J.D. at (619) 757-4909 or