Judge Lifts Stay on Overturning California Gay Marriage Ban

Thursday, 12 August 2010 14:58 By Mike Ludwig, t r u t h o u t | Report | name.

A federal judge lifted a temporary stay preventing same-sex couples in California from getting legally married, but gay couples cannot be married yet - the stay will remain in effect until August 18 to give the defendants time to appeal.

Several gay couples spent Thursday morning waiting to be the first to wed at City Hall in San Francisco, where Chief Judge Vaughn R. Walker issued his historic ruling on Perry v. Schwarzenegger that overturned the Proposition 8 ban on same-sex marriages last Wednesday.

Walker issued a temporary stay on same-sex marriages immediately after making the initial ruling. Proposition 8 supporters have appealed the ruling and pledged to appeal Walker's decision to lift the stay. The stay could be reinstated by an appeals judge.

Walker doubts an appeal of his ruling to lift the stay would be successful without the governor or attorney general signing on as a defendant, writing in his ruling that the "uncertainty surrounding proponents' standing weighs heavily against their likelihood of success."

The initial ruling, which set a historic precedent in the gay marriage debate, was the result of a lawsuit filed by the American Foundation for Equal Rights (AFER) on behalf of two gay couples whose marriage plans were canceled by Proposition 8.

AFER spokesperson Yusef Robb in Los Angeles told Truthout that the foundation is committed to fighting the appeal in the Ninth US Circuit Court of Appeals and beyond until Proposition 8 is ultimately defeated. Robb said people across California eagerly anticipated today's ruling that ended the temporary stay.

Walker's original ruling overturned the ban on grounds that it violated due process and declared gay, lesbian and bisexual persons as a "distinct group" protected by the 14th Amendment of Constitution. The ruling is expected to present serious roadblocks that could force the anti-gay marriage legal team to take the case to the Supreme Court.

Walker's initial ruling cuts through arguments made by Proposition 8 proponents and found that their claims were based on "stereotypes assuming gays are inferior."

During the case, attorneys representing the State of California argued that, as a state-sanctioned union, the state and its voters have both the interest and right to decide who can be married. They argued that thousands of years of crosscultural human tradition shows that marriage is an institution designed to promote procreation and a stable family environment, and gay marriage threatens this tradition, which is "fundamental to the survival of the race."

After weeks of testimony in January and a lively round of final arguments in June, Walker found that same-sex marriage does not threaten heterosexual marriages as Proposition 8 proponents claimed, and Walker acknowledged that the children of gay couples can benefit from their parent's marriage, and that, despite "pro-family" arguments presented by the state's defense team, the ban would only disadvantage both parents and children.

The ruling also recognizes that the same-sex civil unions offered in California violate due process by only offering a "substitute and inferior institution that denies marriage to same-sex couples."

Walker responded to the defense with important findings on the purpose of marriage itself, at least in regards to the interest of the state.

"The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry," Vaughn wrote in his ruling. "Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."

Attorneys Theodore Olson and David Boies argued on behalf of the plaintiffs that Proposition 8 violates basic constitutional rights, denies Americans basic liberties and harms both parents and children without due process. This "disfavored" legal status singles out LGBT people as "second class citizens."

Olsen and Bois argued against each other in Bush v. Gore, the case that decided that 2000 election.

Plaintiffs Kris Perry and Sandy Steir have been together for ten years and are the parents of four boys. Partners Paul Katami and Jeff Zarrillo joined Perry and Steir in challenging Proposition 8, which denied both couples the right to marry.

"I want to marry Sandy. I want to have a stable and secure relationship with her that then we can include our children in," Perry testified during the trial. "And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to begin."

Mike Ludwig

Mike Ludwig is a Truthout Fellow.

Last modified on Thursday, 12 August 2010 15:54