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Federal judge to rule on whether gays and lesbians have a constitutional right to marry [Updated]

Protesters marched into the early morning in Los Angeles yesterday, expressing their anger against the passage of Proposition 8.

A federal judge in San Francisco will decide Wednesday whether gays and lesbians have a constitutional right to marry.

U.S. District Chief Judge Vaughn R. Walker, who presided over a trial earlier this year on the constitutionality of Proposition 8, will release his long-awaited ruling Wednesday on whether the 2008 ballot initiative violates the U.S. Constitution, a court spokeswoman said. [Updated, 5:50 p.m.: His ruling is expected to be released between 1 p.m. and 3 p.m.]

Walker, an appointee of President George H.W. Bush, heard myriad witnesses testify about the history of marriage, the nature of homosexuality and the degree of power gays and lesbians possess in the political system during the 2 1/2-week trial in January.

Most of the testimony favored marriage rights for homosexuals. Walker’s decision is expected to be appealed to the U.S. 9th Circuit Court of Appeals and then up to the U.S. Supreme Court.

A Los Angeles-based group funding the litigation hired former Solicitor General Ted Olson, a conservative, and noted litigator David Boies, who squared off against Olson in Bush vs. Gore, to represent two couples who are challenging Proposition 8.

The California Supreme Court ruled 4 to 3 that gays and lesbians were entitled to marry under the state Constitution in an historic ruling in May 2008. Voters passed Proposition 8 six months later, amending the state Constitution to ban same-sex marriage.

Walker will decide whether California’s ban on same-sex marriage violates equal protection and due process rights guaranteed by the U.S. Constitution.

-- Maura Dolan in San Francisco

Photo: Associated Press

 
Comments () | Archives (252)

Separation of church and state! Not all of us are religious, it is wrong and shameful for "activists" to deny human beings a Constitutional right.

I'm for equal rights for everyone, however I'm also for preserving our language. The word marriage should not be redefined by the government or any other group of people. Marriage is a sacred union between a man and woman. However that said I'd be all for equal taxation and equal rights. Not sure how the economics of healthcare work into this, but that too should be equal. Government should simply get out of the marriage business altogether. The idea of a tax break to married couples, and people with children is absurd. Any couple should be able to have any sort of ceremony they want, be legally bound to any contract they willingly enter. Not sure why the government needs to be involved in any of this.

Requiring one of each gender does NOT specify sexual preference; homosexuals are EQUAL under the law to marry someone of the opposite sex. Yes it IS that simple and they have zero rebuttal to that FACT. Many people from other countries would prefer to drive on the left side of the road but if they want to get a license to drive here they all seem to manage driving on the right despite their preference. Homosexuals don't want equal rights - they want special rights and should be denied using the term 'marriage' for which there is and always has been only one complimentary combination possible involving TWO genders not one. They should come up with their own word to define their redundant gender 'arrangement(s)' and leave marriage what it IS for over 99% of the population.

Those lamenting the state of our democracy or whining that they will never vote again because a judge can overturn "the will of the people" need to think for a minute. Voters in California can enact any proposition on the ballot. They could pass a law that, say, limits marriage to a white man and a white woman, or bans Hispanics from attending public school. Both of these laws would be blatantly unconstitutional and a judge would invalidate them. Some laws are not so transparently unconstitutional but unconstitutional nonetheless. Judicial review ensures that the rights enshrined in our constitution cannot be trumped by the will of the people or a legislative body. See, e.g., Romer v. Evans. In enacting legislation, voters and politicians may succumb to political pressure or current trends without considering all the constitutional rights at stake. Allowing courts to review all legislation is what makes our democracy work. Otherwise we would live in a tyranny of the majority.

They do not have the right. I acknowledge that they want to be recognized as having a valid relationship, but that is not possible. GOD's Law clearly defines marriage as between a man and a woman and goes even further by defining homosexual activity as an abomination.
We cannot usurp GOD's Law.

Wow. Just wow. I simply cannot believe that in the year 2010 some people are still stuck in the dark ages.

For those who throw scripture around to justify a legal proceeding, immediate disqualification. Game over. You have already violated the constitutional separation of church and state.

For the goofball who said "it's a choice, because you choose to embrace/deny it" -- nice bit of rhetoric, and even somewhat novel. But you admit defeat in the construction by accepting that the only choice is to conform to society or fulfil your own nature. One does not choose to be, one is. No points.

For the folks who say "my 3 yo child even knows", also no points. Children absorb your perspective, and need to mature before being counted as independent thinkers.

For those who fear the breakdown of society, umm. Well. Folks have feared the breakdown of society just about forever. Before monotheism, before Judaism, before the Bible entered our literary canon. More specifically, I struggle to understand how the gay marriage topic affects you (if you are that anti-gay, I assume you actively deselect them from your social circle, thus removing any relevance of the legislation to your life.)

And for a judge to make the decision, well, guess what -- that's the sanctified Founding Fathers who set up that system. Please demonstrate some intellectual rigour when choosing to support/attack constitutional issues.

I left the US almost a decade ago, just as Bush II was getting into the swing of things. Since then I've lived in The Netherlands, arguably one of the most tolerant countries on earth. Reading some of the vitriol that's been posted here, I shudder to think what it is like to live in my own country anymore. A shame the country's in debt up to its earballs. My tax dollars go somewhere else now. Thankfully.

Why does it HAVE to be called marriage? Why cannot the gays and lesbiens call them civil unions? The same rights are conferred to gay partners in california anyway. Why do they have to take something that heterosexual couples have and try to further demean the family unit.

Get off of the marriage equality kick. How about having a straight pride day or a straight pride parade that actually celebrates the family. The GALA community kind of sinks their own boat by engaging in termed risky behavior. Stop whining about it. Additionally, stop trying to say that people HAVE to accept your choices.

Finally, marriage is a privelege. NOT A RIGHT!!!!! GET IT STRAIGHT. If it was a right then you would get issued a spouse from the government. However, because we live and die by natural selection, we do not all get to exercise that privelege because of our personalities or our looks.

GET OVER YOURSELF!!!!!!!!

To me it seems the aim is to create another special class in the same vane as race or gender. I will not debate the issue of if it is a choice or not. As long as the powers that be WOULD be satisfied with being on an equal footing, I would have no problem. But the fact is the power brokers leading the cause will get their equal status, then point to the injustices of the past and hold up any infraction of the present to justify preferential treatments and quotas.

The last thing this nation needs is another protected class. These tactics only slow the popular acceptance of groups by creating resentment instead of understanding. But the leaders of the cause will never publicly state they have achieved their goals because if the LBGT community gained real equality, accepted it, moved on and resumed their normal lives, the leaders would have to find new jobs and new ways to line their pockets with other's money.

We can never legislate real fairness or equality. We can only encourage society to do what is truly right. If we create artificial equality, we are subjected to someone else's view of it. We may agree with your leaders' view of equality today, but their replacements may have a radically different view and then where will we be? Equality will be defined on the whim of whoever makes policy. The only real answer is to promote advancement of society through tolerance and enlightenment and let nature sort the rest out...

It's funny to read all of the posts on this article and topic, everybody has an opinion on someone else's life and what they should or shouldn't do. Where is the freedom in that thought? and you claim to be so free here in the US... I can only imagine the darkness in which they must live.

California is modern day soddom...

Marriage is between a man and a woman. Period.

Gee, I wonder how a judge will rule in San Francisco? How unbiased. Yeah, right! This will end up in the U.S. Supreme court. They had to wait a while so that the voters in California would forget that they voted overwhelmingly on this that marriage is between a man and woman.

I can't wait until Jesus comes back.

I LOVE it when people quote the Bible. Hey NeilandBob why don't you ever quote this passage:

Leviticus 11:9-12 says:
9 These shall ye eat of all that are in the waters: whatsoever hath fins and scales in the waters, in the seas, and in the rivers, them shall ye eat.
10 And all that have not fins and scales in the seas, and in the rivers, of all that move in the waters, and of any living thing which is in the waters, they shall be an abomination unto you:
11 They shall be even an abomination unto you; ye shall not eat of their flesh, but ye shall have their carcases in abomination.
12 Whatsoever hath no fins nor scales in the waters, that shall be an abomination unto you.

This basically means if you have eaten shrimp or any finless creature from the ocean you have committed an "abomination". So why don't you go protest people at Red Lobster?! It's God's law RIGHT? It is in the Bible RIGHT? All God's law are justified and must be obeyed RIGHT?!!!! You only pick and choose stuff from the Bible that you can use as justification for your intolerances against others. Jesus taught love your neighbor as you love yourself. Maybe you should start doing the same!

If judges love the Constitution so much, then what about article 1 section 10 that says states may only accept gold and silver as legal tender?

Whatever the judge does, our legal system is clearly a big joke.

Marriage equality ALREADY!!!!

Follow the rules, don't change them to fit your lifestyle choice!

Marriage is a privelage like driving, any business license, any degree!

Anyone can do it... if you follow, what We The People have decided it IS.

A mother, a father, a commitment to children, the noblest & highest of goals.

Slavery has ALWAYS been viewed anathema. Unequal treatment of minorities the same. In the entire scope of HISTORY, the exclusion of marriage outside of heterosexual marriage has NEVER been viewed as unjust.......until the sexual cultural shift beginning in the late 1950's.

The human law is a man-made law, but there is a God-made law also.
A man-made law should not contradicts with the God-made law.

Children can't give legal consent, nor can animals.

This ruling is ju st theater. Everyone knows there will be years of legal wrangling in the appeals process. In the meantime, we know that a repeal will be on the ballot and will win next time round.

Prop 22, 2000, 62% anti-Gay
Prop 8, 2008, 52% anti-Gay
You do the math for 2012 or 2014.

Are my "constitutional rights" violated if I want to marry a sibling, or two men, or two men and three women, or a twelve year old? This is nothing but an effort to redefine the family. Period.

The arguments against homosexual marriage appear to be religious rather than legal. In dealing with religious issues, legal applications can only be unteniable in our liberal society. That is, the government cannot police and enforce religiously-based morality that happens within one's bedroom. The only sane decision that the government can produce would be to replace the legal definition of marriage with civil unions for all individuals. Under the law, the civil union would be an agreement to have two or more parties combine their wealth and support for mutual gain. In this manner, human sexuality, and therefore the religious argument, would be completely irrelevant. Legally speaking, the civil union would be an incorporation of all of the agreeing individuals. Under this construct, even two heterosexual individuals of the same gender could merge their resources to receive the same rights currently assigned to marriage under this defition of civil union. In this vein, marriage would still be allowed as a particular variation of the civil union administered by religious organizations.

I think you have to ask yourself what is at the root of the issue of why homosexuals want marriage to begin with. Is it for access to the legal entitlements of spousal benefits as it pertains to social security, medical, retirement benefits, and awarding of the estate of a deceased partner? If that is the underlying goal, then civil unions and minor law changes can allow access to those things without actually making it a "marriage". If it is to have your union blessed in the eyes of the church and society, then no law will give you that. MOST religions view it as a sin and will not condone it, and the U.S. population is still far from a tipping point where the majority believe homosexuality is "ok". It's all really a moot point. When the Bush tax cuts expire and the marriage penalty kicks back in, nobody is going to be able to afford to be married, gay or straight.


You may have all the right that I do just don't (in my eyes) pervert the name "Marriage" call it anything else- why not "public union" as long as it contains the same rights. It has taken hundreds of years to build the image of "Marriage" you can start today to build the image of "public union" or whatever you may chose to call it, just please leave us "Marriage"

Nothing about a gay "marriage" can make it equal to heterosexual marriage owing to the unique biological relationship between a man and a woman. There is no particular benefit to society from gay relationships being defined as a marriage. The concept that two single persons of the same sex should be awarded spousal marriage benefits for merely cohabitating presents a cost burden that should not be bourn by taxpayers and consumers. If homosexuals suddenly develop maternal instincts then they can direct their activities to raising overweight cats and worm ridden poodles. Just say no to Perez Hilton!

"...history of marriage, the nature of homosexuality and the degree of power gays and lesbians possess in the political system"
What does their political power have to do with anything? Politics has no place in a courtroom. Besides, if they wielded that much political power, Proposition 8 never would have passed.
And what about the will of the people? They whine about imaginary rights, but no one seems to consider that this was voted upon. By overturning a mandate from the People, you're invalidating the entire democratic process.

 
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