Barbara J. Cox

For LGBT Californians and our supporters, Judge Vaughn Walker’s decision in Perry v. Schwarzenegger was an important victory. Depending on what happens with the case over the next few years, it may be a great victory for all LGBT Americans and our supporters nationwide. [Ed. note: On Aug. 12—prior to publication but after this column was submitted—Judge Walker announced he would lift the stay on same-sex marriage in California as of Aug. 18.] It is likely that this case will reach the U.S. Supreme Court and that the Court will address the question of whether states violate our federal constitutional rights when they ban same-sex couples from marrying.

Following the path of marriage for same-sex couples in California can be difficult. In May 2008, the California Supreme Court held that same-sex couples must be permitted to marry based on the Equal Protection guarantee in the California Constitution. More than 18,000 couples were married between June 17 and Nov. 5 of 2008. The Court also struck down Proposition 22, which prevented recognition of same-sex couples’ marriages from other states or countries. However, voters then adopted Proposition 8 by a 52 to 48 percent majority, amending the state constitution to ban marriages by same-sex couples. In 2009, the California Supreme Court upheld Prop. 8 as valid but held that the marriages of the 18,000 couples that had already married also were valid. Shortly afterwards, the Legislature amended Family Code section 308 to recognize marriages from outside California that were entered into before Prop. 8 was adopted.

That may all change following Judge Walker’s decision. In the first case concerning the U.S. constitutional rights of same-sex couples to marry, the trial court held that Prop. 8 “violates their due process and equal protection rights and . . . they will continue to suffer constitutional violations until state officials cease enforcement of Proposition 8.” Though California Attorney General Jerry Brown and Governor Arnold Schwarzenegger refused to defend Prop. 8, the “Yes on 8” proponents were allowed to defend it.

Judge Walker found all of the plaintiffs’ witnesses were credible in testifying that same-sex couples are harmed by being prevented from marrying and that marriage has changed over time to eliminate race restrictions and gender-based distinctions. More importantly, Judge Walker found that the testimony by the “Yes on 8” witnesses was either not credible or irrelevant. The court also found that the “evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.”

In his 136-page opinion, issued Aug. 4, Judge Walker spent most of his time summarizing the testimony and making findings of fact. Those findings of fact must be upheld on appeal unless they are not supported by the evidence. This may be important because the “Yes on 8” witnesses had not presented any rational governmental interest sufficient to uphold Prop. 8’s constitutionality. Rejecting their purported interests, such as preserving tradition, promoting opposite-sex parenting, and promoting procreation, the court held that the arguments made by the “Yes on 8” witnesses were “nothing more than a fear or unarticulated dislike of same-sex couples.” Having rejected the argument that California has any rational interest in preventing same-sex couples from marrying, Judge Walker said all that was left is moral disapproval of homosexuality, animus towards gays and lesbians, or simply a belief that relationships between opposite-sex couples are better than relationships of same-sex couples. None of these were valid reasons on which to legislate and Prop. 8 must be struck down.

Now Judge Walker must decide whether to order California to immediately allow same-sex couples to marry or stay his decision pending appeal. Brown and Schwarzenegger filed papers urging the court to allow the marriages to begin immediately. “Yes on 8” filed papers asking that the decision be stayed while on appeal, and it is likely that either Judge Walker or the 9th Circuit Court of Appeals will issue a stay. We know how difficult it was to allow couples to marry and then declare their marriages to be void, because that is what happened in 2004, when San Francisco Mayor Gavin Newsom ordered the city clerk to begin issuing marriage licenses to same-sex couples.

Walker’s decision has been appealed to the 9th Circuit Court of Appeals and both sides have said they will appeal to the U.S. Supreme Court regardless of the 9th Circuit’s decision. It’s hard to predict what the Supreme Court will do but it’s likely that it will be a 5-4 decision. The Court should uphold Judge Walker’s decision and strike down all the laws banning same-sex couples from marrying across the U.S. Perhaps the Prop. 8 plaintiffs’ winning attorneys— David Boies and Ted Olson— who were on opposite sides in the Bush v. Gore case, and who have already convinced Judge Walker, a Reagan appointee, will be able to convince the conservative members of the U.S. Supreme Court that these bans must end.

—Barbara J. Cox is a Clara Shortridge Foltz Professor of Law at California Western School of Law in San Diego. She is a national authority on issues regarding sexual orientation and the law, and women and the law, and has written numerous articles on interstate recognition of marriage and same-sex civil unions. Professor Cox helped draft one of the earliest domestic partnership ordinances in the country. She co-chairs the steering committee and the executive committee of the national Freedom to Marry organization.