Jim Porter: Gay marriage ruling headed to U.S. Supreme Court | SierraSun.com

Jim Porter: Gay marriage ruling headed to U.S. Supreme Court

Jim Porter
Special to the Sun

In what I would call a surprise ruling, certainly a landmark decision, federal Judge Vaughn R. Walker declared that Proposition 8, which defined marriage in California as and#8220;only between a man and a woman,and#8221; violated gays’ constitutional equal-protection and due process rights.

California Supreme Court

A year ago in a 6-1 decision, the California Supreme Court said California voters were within their rights when in November 2008, 52 percent of voters approved a constitutional amendment redefining marriage to include only male-female couples. The lone dissenting justice argued that a majority of voters should not be allowed to deprive a minority group of fundamental rights by passing an initiative. That point was the essence of Judge Walker’s ruling.

Judge Walker’s opinion is merely a footnote in time, as Prop 8 proponents have already appealed. A randomly selected 3-judge panel will hear the appeal, then it will be heard by the entire 9th U.S. Circuit Court of Appeals en banc. And we all know what happens after that and#8212; off to the U.S. Supreme Court which has yet to decide the gay-marriage issue.

Familiar attorneys

From everything I’ve read, the Prop 8 proponents did a lousy job at the federal court hearing, producing only two witnesses who did not hold up under cross-examination by the plaintiffs’ lawyers Ted Olson and David Boies. You may recognize those names. Olson successfully argued on behalf of George W. Bush before the U.S. Supreme Court during the 2000 presidential recount dispute while Boies represented former Vice President Al Gore. That decision reflected the ideological views of the court, as this one will.

Appeal to U.S. Supreme Court

In fact, my take is we could skip the appeals to the 9th Circuit, take the case straight up to the Supreme Court in D.C., give the four justices that are going to vote to uphold Prop 8 and the four Justices that are going to vote to overturn Prop 8 a coffee break, then argue the case before the swing-vote Justice Anthony Kennedy. His vote determines almost all of the close cases on the Supreme Court.

Justice Kennedy has written a couple of decisions upholding the rights of homosexuals. In fact, in one such case, conservative Justice Antonin Scalia wrote scathingly in a 2003 dissent, Justice Kennedy’s opinion and#8220;dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.and#8221;

My prediction

The 9th Circuit has been reversed by the more conservative U.S. Supreme Court in the past two years in 22 out of 31 cases. Unbelievable. I am predicting that is what is going to happen here: Prop 8 will be resurrected and will survive. It will be a close call, however, in part because Judge Walker wrote a brilliant, defensive opinion knowing full well he would be appealed. In fact, some writers have suggested the judge was and#8220;speakingand#8221; to Justice Kennedy when he cited from Kennedy’s decisions.

and#8216;Gays are inferior’

Judge Walker’s decision concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses with the passage of Prop 8. He noted that Prop 8 was based on tradition and moral disapproval of homosexuality and that those two things are not legal grounds for discrimination.

Judge Walker cleverly made 80 so-called Findings of Fact, which are given great deference by courts of appeal who let trial judges determine the facts, while the appellate court overturns if there is an error of law. Some of his facts included: individuals may not change their sexual orientation; domestic partnerships lack the social meaning associated with marriage; there are costs and harms to the state resulting from the denial of marriage to same-sex couples; gays and lesbians have been victims of a long history of discrimination; religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians; Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships; Proposition 8 preserves the most valued form of relationship (marriage) for opposite-sex couples; and individuals do not generally choose their sexual orientation.

The proponents of Prop 8 put forth a series of purported and#8220;state interestsand#8221; which would justify the voters approving Prop 8, which Judge Walker found not legitimate, including: reserving marriage as a union between a man and a woman; proceeding with caution when implementing social changes; promoting opposite-sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples.

The ruling

Judge Walker found that Prop 8’s only justification is and#8220;a private moral view that same-sex couples are inferior to opposite-sex couples.and#8221; He observed, and#8220;the evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples.and#8221; And and#8220;because moral disapproval alone cannot support the state’s action and voter approval of Prop 8, it violates the Equal Protection clause of the Constitution and#8230; Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license and#8230; that the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to a vote and#8230; Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis.and#8221;

Finally, the judge wrote in detail how the proponents failed to support a list of 23 and#8220;specific consequencesand#8221; of allowing gay marriage.

The lengthy opinion is fascinating reading, if not controversial, should you be interested.

The U.S. Supreme Court will have the final word on whether marriage is a fundamental right protected by the Constitution. That is at least a year away.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firm’s web site http://www.portersimon.com.