Proposition 8 Overturned: The Beginning of a More Just Era?

With Liberty and Justice for All

The following article is based upon reading the 138 page ruling regarding California’s Proposition 8 by Judge Vaughn Walker. The ruling is available from

On August 4, 2010 a momentous moment in American history took place. Proposition 8, a California law limiting the ability of homosexuals and bisexuals to marry by requiring that marriage be between “one man and one woman” was overturned, opening the door for homosexuals and bisexuals within the state to marry. There is the possibility of similar actions in many other states, based upon the same violation of Constitutional law, and there is potentially the chance of moving the case up to the Supreme Court, challenging the federal Defense of Marriage Act. Those in favor of Proposition 8 have already pledged to continue to fight to keep Proposition 8 in place; gay rights activists are just as determined to see the fight through to end, hoping to have the opportunity to have the case eventually heard in the Supreme Court, giving gay marriage the opportunity to become the law of the land.

Judge Vaughn Walker in his ruling clearly stated that Proposition 8 was an absolute violation of an individual’s right to due process under the 14th Amendment. Those in favor of Proposition 8 say the clearly stated will of the people should not be thwarted. Judge Walker addresses this in the trial proceedings and summary of testimony stating: “An initiative developed by voters deserves great respect. The considered views of even the most highly qualified scholars and experts seldom outweigh the determination of the voters. When challenged, however, the voters’ determination must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of  a group or class of citizens suffice, no  matter how large the majority that shares the view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.”

As Americans we have a history of allowing prejudices to stand until they are challenged in courts. For the majority of our country’s history women were viewed as being under “coverture,” that is under the economic and social status of their husbands with no property or rights of their own, regardless of what they may have brought into the marriage. Until as recently as 43 years ago inter-racial marriages were still illegal in parts of the United States. Court cases have determined the turning points of anti-discrimination legislation in our country again and again. The 4th of August stands as another of those turning points. Those in favor of Proposition 8 admit abolishing “coverture” and the laws against inter-racial marriage have had no negative effect on the institution of marriage, but they believe abolishing Proposition 8 and allowing homosexual and bisexual marriage will negatively impact marriage and the family in the United States. Why should this be the case?

Judge Vaughn Walker is a courageous man, standing in a position sure to draw fire from conservatives and the “moral majority.” It is important to keep in mind exactly what Judge Walker did. He remembered that our Constitution does not exist to protect the rights of the majority, but rather to guard the rights of the minority; to protect the “little man” from an overpowering, judgmental government, or the enforcement of others’ personal opinions upon the individual.

The plaintiffs in the case against Proposition 8 brought compelling arguments and witnesses to bear. They had the testimony of eight individuals and nine expert witnesses whose testimony carried considerable weight. The defense, in favor of Proposition 8 brought a  few “expert” witnesses whose own research and/or remarks on cross examination directly contradicted their remarks when questioned by their own attorneys. One witness had, in the past, published an opposing viewpoint to the one he offered in court that day and he also admitted to not being familiar with the particulars of the gay rights issues he was asked to testify on. Judge Walker found the defense’s expert witnesses’ testimony to be of little to no weight, while finding the plaintiff’s experts had substantially advanced the viewpoint in favor of overturning Proposition 8.

It was found as many as 1700 faith-based organizations had participated in the drive to pass Proposition 8, preaching from their pulpit weekly about the sins of homosexuality, the imagined dangers to children from gay individuals and the need to pass Proposition 8 in order to preserve the sanctity of marriage and the family. Arguments were fear based, rather than based in fact. Churches have no right to interfere in marriage in the United States as marriage is a civil union, not a church one. Churches can accept or deny an individual’s marriage and/or divorce, but the act of marriage itself is determined by the states and as such is subject to the U.S. Constitution.

In issuing his final remedies regarding the repeal of Proposition 8 Judge Vaughn Walker stated: “Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection clauses, the court orders 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. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.”

In a predictable move the defendants in the case asked that a hold be put on same-sex marriage licenses until they had a chance to appeal the ruling. Both sides were to present briefs to the judge regarding whether the issuance of licenses should be allowed to move forward. Governor Schwarzenegger sided with those in favor of allowing same-sex marriages to resume.

Gays, lesbians, bisexuals and transsexuals have been the target of hate and bigotry in throughout the history of the United States. It can only be hoped that Judge Vaughn’s ruling marks the beginning of a new era where true equality can come to pass. In time, it is hoped sexual orientation will no longer matter and marriage, whether between heterosexual, or homosexual couples will come to have the same meaning.

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