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Federal judge strikes down Calif. ban on gay marriage

Says Prop. 8 is discriminatory, then stays decision

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By Robert Barnes and Sandhya Somashekhar
Washington Post / August 5, 2010

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WASHINGTON — A federal judge in California ruled yesterday that the state’s ban on same-sex marriage violates the constitutional right to equal protection, the first step in a legal struggle that is widely expected to end at the Supreme Court.

Judge Vaughn Walker wrote that Proposition 8, which voters approved as an amendment to the state constitution in 2008, 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,’’ wrote Vaughan, chief judge of the US District Court for the Northern District of California in San Francisco.

The amendment outlawed same-sex marriage five months after the state Supreme Court legalized it. Walker was asked to decide whether limiting marriage to opposite-sex couples violated the US Constitution’s guarantees of due process and equal protection.

The ban’s supporters said they would immediately appeal to the US Court of Appeals for the Ninth Circuit. Walker stayed his ruling to give them time to argue that it should remain stayed while the case is on appeal.

“What’s at stake here is bigger than California,’’ Andrew Pugno, an attorney representing Proposition 8 supporters, said in a statement. “Americans in numerous states have affirmed — and should be allowed to continue to affirm — a natural and historic public policy position like this. We are prepared to fight all the way to the US Supreme Court if necessary.’’

David Boies, an attorney for the plaintiffs, said the judge agreed with the plaintiffs on every argument that they made.

“Discrimination against gays and lesbians is the last area where you have state-enforced discrimination, and this ruling goes a long way to eliminating that,’’ Boies said.

Shortly after the ruling, he spoke at a news conference alongside his cocounsel, Ted Olson, and the four plaintiffs in the case — one lesbian couple and one gay couple who had tried to get married but were denied marriage licenses. When asked if the couples planned to marry immediately, plaintiff Paul Katami responded, “I need time to order a cake.’’

In a statement, Governor Arnold Schwarzenegger, a Republican, said, “For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves.’’

The ban’s supporters accused Walker of interfering with a decision that ought to be left to the people, potentially inflaming the culture wars much as the Roe v. Wade decision of 1973 did in legalizing abortion.

“Under our Constitution, the definition and meaning of marriage is a decision left in the hands of the people, not given to that small fraction of the population who happen to be judges,’’ Robert George, chairman of the anti-gay-marriage advocacy group National Organization for Marriage, said in a statement.

Wendy Wright, president of Concerned Women for America, said in a statement, “Judge Walker’s decision goes far beyond homosexual ‘marriage’ to strike at the heart of our representative democracy.’’

Walker’s ruling comes a month after a federal judge in Massachusetts struck down a 1996 law barring the federal government from recognizing gay marriages.

Washington lawyer Charles Cooper represented the group that was behind Proposition 8. Cooper argued that it is crucial to the public interest to limit marriage to opposite-sex couples.

“It is fundamental to the very existence and survival of the human race’’ that society promote marriage to ensure that procreative relations are in “enduring, stable unions,’’ with a goal that children be raised by both parents, Cooper said.

Cooper said California voters are in line with the rest of the country, where referendums on allowing same-sex marriage have met with defeat for gay-rights advocates. The record in the judicial branch is similar, he said: More than two-thirds of judges who have considered the issue have ruled against same-sex marriage.

Olson invoked groundbreaking Supreme Court civil rights decisions, such as Brown v. Board of Education, which forbade racial segregation in public schools, and Loving v. Virginia, which threw out that state’s law against interracial marriage.

“Proposition 8 discriminates on the basis of sex the same as Virginia law discriminated on the basis of race,’’ Olson said.

The plaintiffs in the case were Kris Perry and Sandy Stier, a lesbian couple from Berkeley with four children, and Katami and Jeffrey Zarillo, longtime partners from Burbank.

It was the first federal trial to consider whether banning same-sex marriage violates the US constitution, and Olson and Boies provided an elaborate record for Walker and future courts, with their own clients, social scientists, psychologists, and experts on marriage providing testimony. Cooper called only two witnesses, and, in his questioning at closing arguments, Walker seemed peeved that the Proposition 8 backers did not do more.

Cooper said all he needed to show was that California voters were simply being cautious and reasonable in making sure that the traditional definition of marriage was not changed.

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