The Prop 8 ruling

It is no longer just a slogan, it is the law. You can’t vote away a right to marry. U.S. District Court Judge Vaughn Walker today ruled that California’s Proposition 8, which banned same-sex marriage, is unconstitutional.

Here’s the ruling:

Prop 8 Ruling FINAL

And here are the major points of the ruling:


“The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”

“Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.”


“Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.”


“An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations 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 that 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.”


“Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”


“Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.”

“The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”


“The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.”


“The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.”

“Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.”


“Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.”


“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.”

The case will end up at the U.S. Supreme Court eventually. But first it has to stop at the 9th Circuit Court of Appeals, one of the most liberal — and the most overturned — courts in the country.

Once it gets to the Supreme Court, the swing vote will be Justice Anthony Kennedy.

  • Matt

    Bob, thanks for pulling out these choice quotes. Really illuminating to see the thoughts and evidence behind the ruling.

    Think it will stand up to scrutiny in front of the Supreme Court?

  • Heather

    It will if they do the right thing.

    That’s all.

  • Great reporting Bob! It’s difficult not to get swept up in a storm of rhetoric and opinions concerning this issue. What a breath of fresh air to come here and get just the facts, all the facts, and nothing but the facts.

    Kudos, Judy

  • Bob Collins

    The judge today did everything but actually characterize the plaintiffs’ argument that same-sex marriate is “icky.”

    “It’s icky” might actually be recognized as a legal argument at the Supreme Court.

  • Matt

    @Bob: Because of the make-up of the Court as it is today? Or because that’s a legitimate legal argument?

    One could argue that Walker addressed the issue: “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”

    There’s no secular purpose in preserving people’s moral beliefs about whether their neighbor can get married. Is there? Being grossed out isn’t a consitutional right.

    Unless they want to start causing some real civil unrest: burning down houses, sparking violence, riots in the street… Maybe then minorities who oppose gay marriage will start seeing the parallels and get on the bus.

  • Heather

    But the term “icky” is dangerous! It could be applied to a NUMBER of married couples I know. It’s so broad that no sane court would go down THAT slippery slope, right?

    Do you just know “icky” when you see it?

  • Sam

    I’ll be very curious to see what happens after the 9th Circuit (presumably) rubber stamps Judge Walker’s ruling. Some legal experts seem to be suggesting that the Roberts court might simply decline to hear the case, believing that the matter should be decided at the state level. That would leave the ruling intact, but not set it in place as a national precedent, unless I’m wrong about how that sort of thing works. Such a move would be at least somewhat consistent with the Court’s current center-right philosophy, right?

  • bj

    @heather – if Prop 8 had banned ‘icky’ people from getting hitched (and having babies) perhaps this would never come to pass -> Idiocracy clip

  • bj

    Seriously do these law makers ever read their own state constitutions? This is not some judge just saying that the law sucks. It is a Judge going,” hey dorks this law conflicts with the existing constitution. “

    Next the right will be calling this legislating from the bench. First they need to amend the existing constitution to allow for discrimination then they can attempt to pass prop 8 again. That is a tall order.

  • Bob Collins

    //will start seeing the parallels and get on the bus.

    I’m seeing the usual reaction in the usual places: Why not let people marry animals, then, and that sort of nonsense.

    It misses the point, and it also shows how many people don’t read these judicial decisions. The question isn’t — really — should gay people be allowed to marry as much as it is “can you convey rights to some people and not others?”

    Put in that context, it’s much easier to view the issue.

    Could people marry animals? Sure, if a state decided to pass such a law. But what it can’t do is say “blonde” people can marry animals, but brown-haired people cannot.

    There might be a compelling public interest in conveying rights to come but not others. Some felons can’t vote. Some sex offenders don’t have a right to freedom.

    And what the judge basically said here is “show me that reason.” The one plaintiff witness who tried, didn’t have the research or evidence to show what that compelling interest is.

    That’s what the Supreme Court will have to look at if and when it gets the case — WHAT is the compelling public interest in conveying rights to some and not others.

    A religious consideration is out. An effect on children of same-sex couples looks like it’s out, too.

    Until a well-researched reason is put forward, the kind of discussion without the hysteria that the talk-shows foster probably will rule.

  • Able I Was

    Bob Collins said: “can you convey rights to some people and not others?”

    I really get all the empirical analysis in the decision — about procreation, identity and so on. But I am puzzled by that.

    Shouldn’t the constitutionality be determined by concordance with Constitutional law? Those other issues, while interesting and important, seem to be issues of prudence to be taken up by the legislative powers that be, including referendums. It would seem those issues should be taken up only to determine among different legal alternatives, not to determine the legality of them up front.

    But then we come back to the Money Quote, and Bob Collins’ quote. I cannot fathom how this is an issue of differential rights. Two people, identical in every way but sexual orientation, have identical rights under Prop 8. Only that one will not like the potential to exercise that right. But that is not conveying rights differentially, It is rather a referendum on what the definition of marriage is.

    To follow up on the hair color thing, I could have married my spouse if I were either blonde or dark haired. OK fine. But I also could have if I were gay or straight. It would have made -no difference- as to my legal rights to marry my spouse. But that would have impacted my desire to alter the definition of what marriage is.

    A full scale discussion on the merits and demerits of changing the definition of marriage may be one worth having. But it astonishes me to see Prop 8 opponents and their allies using the totally fallacious argument about equal rights, and Prop 8 supporters and their allies failing to call them on it.

  • bsimon

    Able I Was –

    You have failed to address the ‘Money Quote’. What is the state’s compelling interest in regulating the relative genders of the participants in a marriage?

    Your argument, if I’m following it, boils down to: gay men and straight man have the equal right to marry women (or vice-versa). But you haven’t explained why the state should get a say in that relationship.

  • Able I Was

    bsimon said: “You have failed to address the ‘Money Quote'”

    I don’t follow this at all…in reality there isn’t much to address. Let’s break it down by sentence

    “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

    The latter half of that statement is a false premise; the language may provide counterexamples of what marriage is understood to be, using those terms, but that is only for the convenience of the reader – no legal distinction between an otherwise identical gay person and a straight person is made in the eyes of the law. So it needs not advance a basis for something it doesn’t do.

    “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.”

    I predict this kind of language will be problematic on an appeal. “superior” is a highly loaded word (“different” would be fine) because it is making a value judgment and offering strong connotations on what is simply concordance to a particular legal definition of marriage.

    (This is like calling 4 “superior” to 5 because it equals 2+2, but 5 doesn’t. This would imply more about the preferences of the speaker than the numbers themselves.)

    But more problematic is this: “does nothing more” Huh? That kind of universal quantifying is better placed in the nonsense spewed by idealogues like Perez Hilton or Bill Donahue. It is a very prejudical construction (even if it were factually true, which is highly unlikely due to its universalness) So not only is that sentence logically constructed to almost certainly fail in some future circumstance, it is also heavily prejudicial.

    “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”

    But neither premise happens. This sentence was the basis for my original post: it was to point out that there is no “discrimination”. And the state does provide marriages on an equal basis, the objection seems always to be to let the state provide (equally) a DIFFERENT concept than the one currently known as marriage, but still call it that.

    But that simply falls back to what the definition of marriage is going to be. Like I said, there may be good reasons to change its definition, but I have never seen a place where the law gives different rights to two people identical in all ways but sexual orientation.

  • Heather

    Let’s break it down without so many words: