Discrimination against gays and lesbians cannot withstand the light of day or the moral force of the Constitution.
Judge Vaughn Walker, chief judge of the Federal District Court in San Francisco, issued a landmark ruling on Wednesday when he affirmed the equal right of marriage for gays and lesbians.
In his 136-page ruling, he destroyed every argument against equality for gays and lesbians. His reasoning, if upheld, should drive a stake into the heart of discriminatory laws not only over marriage but also over employment and housing and other areas of life.
It doesn’t matter, Judge Walker said, that the voters directly chose in California to pass Proposition 8. He upheld the constitutional rights of the minority. “That the majority of California voters supported Proposition 8 is irrelevant,” he ruled.
“An initiative measure adopted by the voters deserves great respect,” he wrote. . . . However, the voters’ determination 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.”
Judge Walker ruled that Proposition 8 violated both the Due Process Clause and the Equal Protection Clause of the Constitution.
“Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest,” he wrote.
He dismissed arguments based on religion or tradition.
“Marriage in the United States has always been a civil matter,” he said. “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 law.
Same with tradition, he wrote. “Tradition alone, however, cannot form a rational basis for a law. . . . Rather, the state must have an interest apart from the fact of the tradition itself. . . . The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality.”
He wrote that “Proposition 8 places the force of law behind stigmas against gays and lesbians.” It “perpetuates the stereotype that gays and lesbians are incapable off forming long-term loving relationships and that gays and lesbians are not good parents.”
Judge Walker traced earlier discriminatory marriage traditions, including the ban on interracial marriage and the granting of property rights to the husband alone. “Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful, or even bizarre,” he noted. “When the Supreme Court invalidated race restrictions . . . the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in marriage.”
And he shredded every argument made by those opposed to marriage equality.
“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to form successful marital unions,” he wrote.
“Permitting same-sex couples to marry will not affect … the stability of opposite sex-marriages.”
“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.”
And he dispensed with the silly argument that opponents of marriage equality made in court: to wit, that marriage should be reserved for heterosexuals for procreation purposes.
“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,” he wrote. He stressed that “choice and privacy play a pivotal role in the marital relationship.”
“Same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage,” he wrote. As a result, he ruled that same-sex couples have a “fundamental right to marry.”
In his broadest statement, he could foresee no rational basis for discriminating against anyone on the basis of sexual orientation in any venue. “All classifications based on sexual orientation appear suspect,” he wrote.
In so doing, he laid the foundation not only for marriage equality but for employment equality and housing equality and more.
Future plaintiffs will rightly invoke his ruling to demonstrate that they were illegally fired simply because their bosses didn’t approve of their sexual orientation. Such firing is still allowed in 29 states.
In the case before him, Judge Walker noted that many of the arguments against marriage equality were based on “nothing more than a fear or unarticulated dislike of same-sex couples.” He concluded: “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”
By ruling Proposition 8 unconstitutional, Judge Walker has gone a long way toward making gays and lesbians first-class citizens in this country, at last.
If you liked this story by Matthew Rothschild, the editor of The Progressive magazine, check out his article “Scapegoating Brown-Skinned Immigrant Children.”
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