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California's ban on gay marriage is struck down

Supporters of same-sex marriage celebrate, though Judge Vaughn Walker stayed his own decision pending any appeals. 

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Supporters of same-sex marriage celebrate, though Judge Vaughn Walker stayed his own decision pending any appeals. 

SAN FRANCISCO — Saying it discriminates against gay men and women, a federal judge struck down California's voter-approved ban on same-sex marriage Wednesday, handing supporters of such unions at least a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.

Wednesday's decision is just the latest chapter in what is expected to be a long battle over the ban — Proposition 8, which was passed in 2008 with 52 percent of the vote. While striking down Proposition 8, the decision will not immediately lead to any new same-sex marriages being performed in California. Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, immediately stayed his own decision, pending appeals by proponents of Proposition 8, who seem confident that higher courts would be less accommodating than Walker.

But on Wednesday the winds seemed to be at the back of those who believe marriage is not, as the voters of California and many other states have said, solely the province of a man and a woman.

"Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause," Walker wrote. "Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest."

The decision applied only to California and not to the dozens of other states that have either constitutional bans or other prohibitions against same-sex marriage. Nor does it affect federal law, which does not recognize such unions.

The plaintiffs' case was argued by David Boies and Theodore Olson, ideological opposites who famously sparred in the 2000 Supreme Court battle between George W. Bush and Al Gore over the Florida recount and the presidency. The lawyers brought the case — Perry v. Schwarzenegger — in May 2009 on behalf of two gay couples who said Prop 8 impinged on their Constitutional rights to equal protection and due process. Olson called the decision a "victory for the American people," and anyone who had been denied rights "because they are unpopular, because they are a minority, because they are viewed differently."

For advocates of gay rights, same-sex marriage has increasingly become a central issue in their battle for equality, seen as both an emotional indicator of legitimacy and as a practical way to lessen discrimination. "Being gay is about forming an adult family relationship with a person of the same sex," said Jennifer Pizer, the marriage project director for Lambda Legal in Los Angeles, who filed two briefs in support of the plaintiffs. "So denying us equality within the family system is to deny respect for the essence of who we are as gay people."

But Andrew Pugno, a lawyer for the defense, said Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who "simply wished to preserve the historic definition of marriage."

During the 13-day trial, which ended in June, plaintiffs offered evidence from experts on marriage, sociology and political science, and emotional testimony from the two couples who had brought the case. Proponents for Prop 8 offered a much more straightforward defense of the measure, saying same-sex marriage damaged traditional marriage as an institution and marriage was historically rooted in the need to foster procreation, which same-sex unions cannot, and was thus fundamental to the existence and survival of the human race.

But Walker seemed skeptical of those claims. "Tradition alone, however," he wrote, "cannot form the rational basis for a law."

Even before appeals to higher courts, Walker seemed ready to continue to hear arguments, telling both sides to submit responses to his motion to stay the decision by Friday, at which point he could lift or extend it.

How the decision might play politically was also still unclear. In 2004, same-sex marriage was seen as a wedge issue that helped draw conservatives to the polls, and Richard Socarides, who advised President Bill Clinton on gay rights issues, said that this decision could be used as a rallying cry for Republicans again.

"But Democrats and most importantly President Obama will now have to take sides on whether gays deserve full equality," he wrote in an e-mail.

In California, it could affect the gubernatorial race. Democrat Jerry Brown has been vocal in his support of same-sex marriage in his current role as attorney general and hailed the decision. Republican Meg Whitman has taken the position marriage should be between a man and a woman — in line with the language of Proposition 8 — though she says she strongly supports the state's domestic partnership laws, which afford many of the same rights as marriage.

The 136-page ruling puts Walker, a Republican, at the forefront of the gay marriage debate and marks the latest in a long line of high-profile legal decisions for the longtime federal judge.

He was appointed by Ronald Reagan, but his nomination was held up for two years in part because of opposition from gay rights activists. As a lawyer, he helped the U.S. Olympic Committee sue a gay ex-Olympian who had created an athletic competition called the Gay Olympics.

Information from the Associated Press was used in this report.

California's ban on gay marriage is struck down 08/04/10 [Last modified: Wednesday, August 4, 2010 11:41pm]

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