California’s Prop 8 Falls, Spectacularly

By Justin Gardner | Related entries in California, Homosexuality, Law, Legislation, Proposition 8, Sexuality

Proponents and opponents of gay marriage, the end is nigh.

The ruling today was a thing of beauty, not just because Prop 8 was overturned, but because the language in the decision basically positions Gay Americans as equal to every other American in every single way.

And, the cherry on top of the judicial sundae? A Republican appointed judge wrote a lengthy repudiation of every single conservative talking point against gay marriage.

Why? Because the defense didn’t present any compelling reasons why Gay Americans should be denied marriage rights. In fact, in many cases during the trial they had to admit that gay marriage has absolutely no effect on straight marriage.

More from ABC:

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” wrote U.S. District Court Judge Vaughn Walker in a 136-page decision. “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.” [...]

Lawyers supporting the ballot measure had argued that voters endorsed a “fundamental, definitional feature” of marriage that has historical roots “in this country and, almost without exception, in every civilized society that has ever existed.”

But Walker found the plaintiffs in the case — one lesbian and one gay couple — demonstrated by “overwhelming evidence” that Proposition 8 violates their rights to due process and equal protection under the Constitution.

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples,” wrote Judge Walker.

Now it’s on to the Supreme Court, where it’s extremely likely that the decision will be affirmed…which will then nullify all of the state amendments that define marriage should strictly be between a man and a woman.

Long story short, it’s a good day for all Americans in the long run, even though many don’t think so today.

Please leave your thoughts below.


This entry was posted on Wednesday, August 4th, 2010 and is filed under California, Homosexuality, Law, Legislation, Proposition 8, Sexuality. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

31 Responses to “California’s Prop 8 Falls, Spectacularly”

  1. Kate Says:

    This ruling left me weeping tears of joy at my desk today. I am gay and a Californian. I never doubted my fellow Californians and felt pummeled when Prop 8 passed. I know I speak for many when I say that this decision is simply life changing. My girlfriend and I have been together for 4 years and are anxiously awaiting the green light.

    The proponents of Prop 8 played on fear and misinformation. They now play the card that “the people have spoken”, deeming that a justification for the legislation of second class citizenship for law abiding citizens. The argument is hollow as it never should have been put to a vote.

    Another fact that many gay marriage opponents fail to face: it’s inevitable. Younger generations generally feel more indifferent, if not accepting of homosexuality. This violent intolerance is led by an older generation that is honestly out of touch with changing sentiment. As they pass, acceptance will only grow. I only wish they could see that they’re intolerance only delays the inevitable.

    I love my girlfriend. I want to marry her. I am an adult and in the land of the free, I am relieved to finally be able to fulfill that right. I am proud to be a Californian and an American today. This decision is LONG overdue.

  2. Simon Says:

    I agree with Justin that after a tangle with the Ninth Circuit, we can expect the Supreme Court to affirm this decision in the spring of 2013. That isn’t to say that the plaintiffs–of Judge Walker–have any convincing arguments, but the math is four liberals plus Anthony Kennedy. Every cent spent fighting this is a cent wasted.

  3. Chris Says:

    Hopefully this prevents measures being put to ballot that infringe on other’s rights in the future. The majority should never get to decide what rights the minority has or doesn’t . Or even vice versa.

  4. Chris Says:

    I don’t normally read huffpo, but found this article through another link: http://www.huffingtonpost.com/alvin-mcewen/dear-proposition-8-suppor_b_671145.html

  5. Simon Says:

    Chris, your comments are as inane as ever. “The majority should never get to decide what rights the minority has or doesn’t”? “The majority” always decides what rights the minority has. If Walker’s ruling is correct as a matter of law, “the majority” has prevailed, because the only legitimate basis for his striking prop. 8 is to find that a rule decided by the majority which adopted the Constitution yesterday trumps a decision by today’s majority at the ballot box. Cf. G.K. Chesterton, Orthodoxy 84-85 (1909) (discussing tradition as “democracy extended through time”). All of the Constitutional rights we enjoy are binding not because they are the God-given rights of all (some of them are, some aren’t), but because at one time or another, the majority agreed to ratify that limitation on government. That is the essence of American constitutional government.

    Lastly, while I know I made a typo in my comment above, it’s “others rights” not “other’s rights.” Given the placement of the keys, that seems much more likely to be a mistake than a typo.

  6. Alistair Says:

    Simon:

    Chris is right that ballots like these should not be the deciding factor of other people’s civil liberties. If a ballot like this was in southern states on interracial marriages 40 plus years ago before Loving v Virginia most likely it would have past. This is a case like Loving v Virginia this U.S. District Court Judge made his decision base of 1967 Supreme Court.

  7. Chris Says:

    Simon you’re confusing the political process of our republic with a democratic majority vote of the public. Majority vote doesn’t even determine our president. But I understand that you might be tired, after staying up all night crying and all.

  8. Simon Says:

    Alistair, “like these” is the key term there. He didn’t say “ballots like these,” he invoked the majority. The Constitution certainly wasn’t a ballot like this one, but it draws its force from its ratification by the majority. Re Loving, that was a wholly different case; it involved an actual violation of the Fourteenth Amendment. Like many Warren court opinions, it meanders to the correct result through a thicket of questionable reasoning, but the bottom line is that the Fourteenth Amendment forbids racial discrimination by government—period. And it does so because the majority adopted it through the Article V process. I’m very glad we did, although it seems that some of my bedfellows over here on the right are thinking about repealing a part of it. I tend to think we should let sleeping dogs lie, myself.

    Chris, why would I be upset by—still less lose sleep over—an amicus brief to the Ninth Circuit (which is, in practical terms, all this opinion amounts to)? In any event, the Supreme Court is going to impose gay marriage in a couple of years; I made my peace with that on the day Lawrence was decided, when it became obvious. I’m just surprised that it has taken this long.

    I’m glad to see that you recognize that majority vote doesn’t determine our President, and hope that you will join me in heading off this insane attempt to remove the electoral college.

  9. kranky kritter Says:

    On really big and important social issues, I am generally willing to care much more that in the end we get it right than to care that every I was dotted and every T crossed.

    For a long time I’ve sensed that life was far too short to worry that including gays and lesbians in the full privileges of society would somehow harm it. I have over the years enjoyed the privilege of working with many gay and lesbian colleagues and even have the honor of considering some of them my friends. What these folks do in their beds is their business alone, If they want to partner up in the eyes of the state, they should be able to do so, just like any man and woman who wants to.

    While I appreciate that many folks deeply value the traditional meaning of the word marriage, in the end all such folks have is a semantic argument and a visceral opposition to a clerical change that is going to harm no one. A generation from now, no one in America will question gay marriage. Faster, please.

    Oh, and for all those folks who are joining the club, there’s only one bit of bad news. You can put away your pick-a-nick baskets. Because marriage aint one. :-)

  10. Kate Says:

    This makes me very happy. That is all.

  11. theWord Says:

    @Kranky–
    At last, we completely agree

    @Simon
    To be precise, use of the word majority is interesting since the majority of people were excluded from the process. (women, minorities, the poor, atheists, hell even people from the wrong religion)

  12. Simon Says:

    @theWord I wrote a longer comment but a WV flub ate it. The gist was, “so what?” Are you saying that because the 14th Amendment was adopted by a majority that didn’t include blacks and women, the more inclusive majority that supported proposition 8 ought to trump the older, less inclusive law?

    Didn’t think so.

  13. theWord Says:

    @Simon-
    Actually, no, that isn’t what I was saying. I’m one who would say that the 14th only codified what should have been unnecessary if the orignal Constitution had not been so accommodating to the bigots of their day. In an odd coincidence, the South and many of the same religious persuasion Same as it ever was, same as it ever was.

    My point was that the thing you should be proud of is your use of the English language (Conclusions not so much :-)) and it is hard to use the term majority when it most decidedly wasn’t in play. I made no point about whether it was correct or incorrect, only that it was about as accurate and descriptive as the “World Series”. It seemed to me the kind of nit that you would generally pick.

  14. blackout Says:

    This is excellent news. Chris, I understood perfectly what you meant.

    captcha: The barbarity. Ain’t it the truth?

  15. michael mcEachran Says:

    IMO – The proponents of Prop 8 – the “Defense of Marriage” group – are not fighting to prevent what adult gay people do – have sex, domestically partner or get married, they are fighting to protect their collective right to determine what their children are taught in the public domain about what is right and wrong. They want to maintain public leverage that allows them to shame their own gay kids into staying in the closet. IMO – These people believe that gayness is an act, not a state of being, that can be prevented. They also believe (IMO) that it damn well better be prevented from happening in their family. They fear (irrationally, and futily IMO) that public acceptance of gay unions and publicly declared equality will result in MORE gayness, prevent them from imposing public shame on their own gay kids, and result in their own prejudice becoming publicly unacceptable. I have some simpathy for these people. I genuinly do; but they are going to have to make the same social adjustment that all the biggots before them have had to make.

  16. theWord Says:

    @Michael
    If it were a choice, the surest predictor seems to be being virulently anti-Gay and Republican. :-) I think I’ll go with the Science (although preliminary) That or being born to or in those families.

  17. mw Says:

    I’m pleased with the Judge’s decision, as I saw Prop 8 as a clear attempt by the majority to impinge on the rights of a minority. As others have pointed out, the decision does not mean much until we hear from the 9th circuit. My understanding is that if the 9th circuit reverses Judge Walker’s decision – the Supreme Court will likely not hear this case, as they generally prefer to leave this hot potato to the states. If the 9th affirms Walker, the Supes probably cannot avoid it, as it will essentially invalidate prohibitions of single sex marriage across all western states in the jurisdiction of the 9th.

    To the topic of what was intended in the Constitution by the founders regarding the protection of minority rights from “majority rule” – James Madison spoke specifically to this subject in Federalist #10:

    “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

    By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” – James Madison

    Finally – I feel compelled to note that Justin’s political bias has once again gotten the best of him, as he claims the Judge refuted every “conservative talking point”. They are only conservative talking points if President Obama is a conservative – since Obama supported Prop 8 and* opposes gay marriage, invoking the very same “conservative talking points” as a rationale. I would not be surprised to see the Obama Justice department enter the fray to reverse this decision.

    In future posts covering this issue, I expect to see Justin, out of fairness, refer to the Prop 8 supporters argument as the “Obama talking points”.

    *Edited after being corrected by The Word

  18. Chris Says:

    “They are only conservative talking points if President Obama is a conservative”

    That’s a very astute observation MW, and I’m gladdened to finally see a conservative admit it. Liberal, Obama is not.

  19. the Word Says:

    mw-
    If you truly think Obama would try to reverse this I predict he would have approval ratings as abysmal as W’s were. He’d have no one standing with him. No one. Did Obama support Prop 8? I don’t remember that, You’re link said he opposed it.

  20. mw Says:

    Word – You are right, I mis-read the article. There is no excuse for that as the article is very clear – Obama opposed same sex marriage, but also opposed prop 8 at the time, but still opposes sames sex marriage now, and Axelrod has clearly communicated the administration’s strongly held conviction that it is politically expedient to have no opinion whatsoever on Judge Walker’s decisions.

  21. mw Says:

    @chris
    On social issues – you are correct. Obama pretty much embraces centrist to right wing positions on issues like separation of church and State, protection of Civil Liberties, gay rights, and the wars in Iraq and Afghanistan.

    On fiscal issues – he is a classic spend, tax and borrow liberal.

    To sum it up – Obama is the consummate anti-libertarian.

  22. Chris Says:

    MW – you’re right on that, but I don’t see a huge difference fiscally between the two parties. But honestly I care more about social issues than fiscal issues anyway.

  23. the Word Says:

    @mw- first their is reading, then there is comprehension. There’s still hope :-)

  24. the Word Says:

    I hate typos sorry.

  25. theWord Says:

    @mw-
    I agree Obama should as the Brits would say tell the GOP to sod off and just do the right thing. He goes way too far out of his way not to offend the offensive.

  26. TinSoldier Says:

    If you want to change the definition of marriage, do it at the ballot box. Which is what California did and the pro-same-sex marriage folks lost.

    Don’t take it to court and make up some non-previously-existing right to same-sex marriage to justify your position.

    The more you say that same-sex marriage is some kind of pre-existing right may convince some people but it doesn’t make you correct. A big lie, told often enough, etc.

    Crap like this makes me even more opposed to gay marriage because it is so undemocratic.

    I don’t have much hope that the 9th Circuit or SCOTUS has any more common sense though.

  27. Edith H Says:

    For the purpose of this comment, I am NOT referring to “marriage” as a sacrement (a religious rite) but I am referring to marriage as a legal act(license).
    How does the state have a vested interest in marriage, aside from it being a revenue stream? I am from the last generation, in which most children were raised by their biological parents in an intact home.
    But now? the fairy tale has been over for sixty years. What does the state bring to the table in this day and age? For what purpose does it regulate marriage? And don’t even see the vested interest at the state and local level, let alone the federal level. Maybe, in the past the state’s interest was understandable but marriage is increasingly a joke. Millions of children have no connection to their parents biological or otherwise. It is a given that the parents must financially support their children whether there is a state sanctioned marriage or not; the state is irrelevant. I would rather see the state butt out altogether and just leave it to contract law as long as the parties are sentient and consenting.
    For a change, let’s all try to think outside the box. BTW, I know that my view buts up against maudlin sentimentality.

  28. kranky kritter Says:

    If you want to change the definition of marriage, do it at the ballot box. Which is what California did and the pro-same-sex marriage folks lost.

    No, whether you want to change the def’n or keep it the same that battle belongs with the usage panel of a dictionary.

    By and large, states and laws never have defined marriage. Presumedly, that’s because no one imagined it was necessary. Nevertheless, that oversight is now biting the arses of folks who want to exclude gays from the popular civic tradition.

    Now, if any such anti-gay marriage folks want to deny equal protection under the constitution, they are free to do THAT at the ballot box. Or rather, they would be, if they actually had the votes.

    Crap like this makes me even more opposed to gay marriage because it is so undemocratic.

    Really? “Even more opposed?” Huh.

    For the purpose of this comment, I am NOT referring to “marriage” as a sacrement (a religious rite) but I am referring to marriage as a legal act(license).
    How does the state have a vested interest in marriage, aside from it being a revenue stream?

    Well, really the state’s interest is in acknowledging and recording a legal contractual agreement. We’d probably be better off if the state got completely out of the business of appearing to sanctify anything like a marriage. Let’s just let the state acknowledge and record the legal contract. Then, each private religion can still decide for itself whether such a union should be sacred, profane, an abomination, or whatever. I wouldn’t expect any private religion to be required to accept and sanctify a union they cannot abide.

    So, the state records the contract and makes no moral judgement nor grants any special social approval. All private individuals retain their right to their own moral perspective. In my opinion, this solution requires substantial petty moral gymnastics to oppose.

  29. theWord Says:

    @Kranky
    You said In my opinion, this solution requires substantial petty moral gymnastics to oppose. And you doubt whatsoever that that would happen?

    I agree with the approach. If it were seen as a legal contract, the churches would have to butt out. If they continued to discriminate though, I could see the eventual issue of “follow the law or lose your special tax exempt status” They shouldn’t be able to have it both ways. Can they refuse things like marrying minorities legally now? Can’t remember the case but there was a Moose Lodge, I think, with a liquor license and that was what was argued should make them comply with anti-discrimination laws. (Case went the other way at Federal Level)

    To truly protect marriage, they’d have to end it for evangelicals since they have the highest divorce rate and “could damage the institution for society.” I’m pretty sure their rationale is only used to attempt to justify their bigotry and not used accurately though.

  30. Edith H Says:

    to kk: If the state does not regulate marriage but is limited to enforcing contracts and record keeping, I believe we are on the same page and this is so obviously the solution. The license, if it exists, would be for the purpose of record keeping. It is a given the parties to the contract must be sentient, consenting, and competent to consent. Religious rites would be optional just as they are now.

    I have no idea what MW is on about.

  31. kranky kritter Says:

    You said In my opinion, this solution requires substantial petty moral gymnastics to oppose. And you doubt whatsoever that that would happen?

    No, I’m just stating my opinion ahead of time. Surely you know me at least well enough to know that I estimate the probability of “petty moral gymnastics” to be damn close to 100%. :-)

    I agree with the approach. If it were seen as a legal contract, the churches would have to butt out. If they continued to discriminate though, I could see the eventual issue of “follow the law or lose your special tax exempt status” They shouldn’t be able to have it both ways.

    Well, if I am reading you right here, then I think we disagree. I absolutely would not try to force any private religious organization to acknowledge the moral rectitude of a state certified marriage or civil union contract, or penalize them if they chose not to do so. I think that’s a terrible idea.

    So let me try again. The basis of my approach is the constitution’s prescription against establishing or favoring any particular religion or religious view, commonly described these days as “separation of church and state.” This idea is without a doubt one of my personal favorites, one that I believe has served our nation astonishingly well. Even many hardcore conservatives like this idea, and see how it has protected the free and private practice of one’s personal spiritual beliefs from government interference.

    What I am saying is that the state’s only legitimate interest in any marriage is its basis as a legal contract. This is especially true given that marriage may bring things like tax privileges. What the state does NOT have any interest in is the business of sanctifying. The state should steer clear of declaring things holy or worth spiritual reverence. When they do, they’re establishing religion.

    Insofar as marriage is viewed as a civil right, the state guarantees and provides that right by granting licenses and acknowledging contracts without making any moral judgement whatsoever. They are OUT of the sanctifying business.

    Churches, on the other hand? Their whole business involves sanctifying. IMO, they deserve to be protected from government punishment for expressing and acting upon their beliefs, so long as they don’t undertake actions which infringe upon others rights.

    Any couple that wants to get married IMO deserves the civil right to do so. So long as that civil right is provided solely by the state, then churches IMO are off the hook. That churches have often been the accepted location of the ceremony bookmarking that contract? That’s coincidental, and an artifact.

    I think it’s a terrible idea to take away a church’s tax exemption as a way to force them to alter their spiritual beliefs. Truly, truly terrible.

    However, I have no objection to the general idea of reviewing our ideas and policies about what sorts of organizations deserve tax exemptions and why. The goverment should assiduously avoid any policies which attempt to get churches to re-conceptualize right and wrong as the government wishes. But the government absolutely should periodically re-visit whether various tax exempt institutions deserve such preferential treatment.

    So, for example, I would not support taking away the catholic church’s tax exemption because it believes that homosexuality is a sin. But suppose someone said “wow, the catholic church is extraordinarily wealthy and powerful and occasionally meddlesome in public politics and policy. Let’s look at their tax exempt status in that light.” In that context, I’d be willing to consider policy revisions. Of course, if I felt the rationale was still sound…. .

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