Berman & Asbel, LLP

Prop 8 Unconstitutional Federal Court Rules

Proposition 8 is unconstitutional.  That's the holding in Perry v. Schwarzenegger, the case challenging California's Proposition 8.  Readers will recall that Proposition 8 was a voter-enacted amendment to the California Constitution which banned same-sex marriage after the California Supreme Court had previously ruled that it violated the state constitution to not allow same-sex couples the same marriage rights as heterosexual couples.

In the conclusion of his opinion, Chief Judge Vaughn Walker of the U.S. District Court for the District of Northern California wrote:

"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 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."  

More specifically, Chief Judge Walker held that Proposition 8 violates the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. 

Readers may recall that Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to have their offices defend Proposition 8 in court and it was the private organizations that originally sponsored Prop 8 who defended it.

The opinion is quite lengthy and it just was published.  When I have had a chance to read it fully, I will post again on the legal issues it addresses.  Chief Judge Walker ordered an injunction against applying or enforcing Proposition 8 directed to all state officials named in the lawsuit.  It is quite likely that the supporters of Proposition 8 will appeal this decision to the U.S. Court of Appeals for the 9th Circuit and the case could quite possibly eventually reach the U.S. Supreme Court.

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