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Prop. 8 foes, backers look to Supreme Court showdown on gay marriage [Updated]

A day after Proposition 8 was thrown out in court, both sides in California's debate over gay marriage are focusing on the next fight in a battle that is likely to end up before the U.S. Supreme Court.

Opponents of gay marriage immediately vowed to appeal a federal judge's ruling saying same-sex unions were legal in California. [Updated at 10:30 a.m.: Gay-marriage opponents formally filed the appeal Thursday morning.]

The next step will come Friday, when U.S. District Chief Judge Vaughn R. Walker holds a new hearing. The judge stayed his order allowing gay marriage at least until then. And it remains unclear if --and when -- gay marriages will begin again in the state.

Lawyers on both sides expect the ruling to be appealed and ultimately to reach the Supreme Court during the next few years.

Walker's decision was being carefully analyzed by attorneys with an eye on how the high court might view his legal reasoning.

At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges' rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.

John Eastman, a conservative scholar who supported Proposition 8, said Walker's analysis and detailed references to trial evidence were likely to persuade Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.

"I think Justice Kennedy is going to side with Judge Walker," said the former dean of Chapman University Law School.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker's findings that homosexuality was a biological status instead of a voluntary choice, that children didn't suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality were "going to make it more difficult for appellate courts to overturn this court's ruling."

Edward E. Dolejsi, executive director of the California Catholic Conference, said he believed the judge's ruling was both legally and morally wrong.

"All public law and public policy is developed from some moral perspective, the morality that society judges is important," he said. To say that society shouldn't base its laws on moral views is "hard to even comprehend," he said.

Gay-marriage opponents plan to appeal the ruling to the U.S. 9th Circuit Court of Appeals. That court's decision will probably be appealed to the Supreme Court.

In his decision, Walker said the evidence showed that "domestic partnerships exist solely to differentiate same-sex unions from marriage" and that marriage is "culturally superior."

California "has no interest in differentiating between same-sex and opposite-sex unions," Walker said in his 136-page ruling.

The ruling was the first in the country to strike down a marriage ban on federal constitutional grounds. Previous cases have cited state constitutions.

In striking down Proposition 8, Walker said the ban violated the federal constitutional guarantees of equal protection and due process.

Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.

-- Maura Dolan, Carol J. Williams and Rong-Gong Lin II

Photo: Jovanie Arvaezi, left, and Mark Vaccarino at the West Hollywood rally on Aug. 4, 2010, celebrating the Proposition 8 ruling. “We hope to get married soon,” Vaccarino said. Credit: Mariah Tauger / Los Angeles Times

Prop. 8 ruling: Full Coverage

Comments () | Archives (175)

I can't wait for the bigamy trial. Why not allow marraige between a man and four women? Perhaps they have the bigamy gene.

Isn't the current law failing to provide equal protection for bigamists?

--- And pedophiles are just misunderstood / loving adults.
--- And marijuana really is medicine --- really !
--- I've got a bridge to sell you --- Are you interested?

Leviticus 18:22 ----- "Man shall not lie with man as with a woman; it is an abomination. They will surely be put to death. Their blood shall be upon them."

1 Corinthians 6:9 ---- "Do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived. Neither fornicators, nor idolaters, nor adulterers, nor effiminates (homosexuals), nor sodomites."

"Just as they did for racial equality in previous decades, the moment has arrived for the federal courts to bestow full equality to millions of gay men and lesbians."-NY Times.

There. That's what I believe in a nutshell.

Because people have such strong views there is no doubt this will end up at the SCOTUS. The court must tred lightly as the decision of the path will have major consequences to issues that have already been addressed. It will have to be vigilent to not allow religion as part of the debate even if it is religious views that drive the conversation. If they court rules in favor of gay marriage it will be a transition time for acceptance as it was with desegregation, inter-racial marriage, and women's rights. If the court rules against gay marriage the door is opened to challenge to impose segregation again, void inter-racial marriage, void Title IX for girls sports, etc. This is going to be as big as Brown v Board of Education since the 1950's and the 1964 Civil Rights Act! History in the making!

It doesn't say much for our public education system when 7 million California voters arbitrarily determine that "majority rules" trumps the 14th Amendment to the U.S. Constitution based on their irrational and self-interested interpretation of constitutionality. Is it merely coincidence that Congressional Republican leaders are now openly discussing the possibility of revoking that same 14th Amendment, which protects every American citizen's right to due process and equal access and protection under the law without qualification? The fact that Republicans are even weighing this move should set off alarms - if the only way they can advance their political and social agenda is to suspend the basic rights and protections of all Americans, we are facing something more dire than we've ever faced in our nation's history.

I don't care how they spin the majority of marriages will produce children. Psychologist agree that ideally speaking all children need a good mother and a good father. It has taken some dysfunctional people years to realize their lack of worth, self-esteem and broken relationships was because their father or mother was emotionally or physically not available, both are needed. That hurt over not having a healthy mother and father in their lives is rooted so deep that some people are in denial over this for many years (myself included)!

So much time and money wasted on this issue simply so that heterosexuals can continue living under the false notion that they are superior to the gay citizens they created.


First, you can't recall a federal judge as they have life tenure. Second, morality does have a place in the law. Those of you crying foul and arguing that Judge Walker's ruling divorces morality from the law are just wrong. In fact he's doing the opposite. He's upholding the pervasive and indeed Judeo-Christian approved ethic of sticking up for the oppressed minority. Indeed it is morality which fuels the premise of our society that all should be treated equally under the law. Masquerading bigotry as morality is the true crime. Tyranny of the majority is precisely why the Constitution exists. So that 51% cannot decide to weed out the 3% who choose to live a life consistent with the prescriptions of a free state.

If 51% of Country X thought that homosexuality was a sinful crime worthy of punishment by death (as some countries do), one could argue that the law should be upheld on the basis of morality. I should hope to think that the fine readers of this publication would disagree. In sum, there's really no way to justify prop 8. That's why the proponent's counsel, despite all the legal skill in the world, could not proffer a single authority in support of the position, nor make a single cogent argument for why gay-marriage is inferior.

If we all put on the ballot that people under 4 feet tall are not allowed to marry, would that be legal because we all voted on it? After all, aren't they potentially harming their children by passing on the gene for dwarfism?

We are a lesbian couple and have been "married" in a church that performs these ceremonies. We have been faithful to each other for nearly 3 decades.

We also have 2 children, pay our taxes, volunteer in the local public schools where my children attend, and bring food to neighbors when a baby is born, when someone dies, or when someone is ill.

Why shouldn't the local court clerk issue us a marriage license? I don't see how we are harming the institution of marriage by asking for a legal right to marry and take care of our children.

There are so many foster kids abandoned or abused by their straight parents. It's a tragedy. My kids are doing well. They like school, get good grades, have lots of friends, and I rarely get calls from the principal that they are acting up.

Are Canadian families breaking down now that gay people can marry legally in Canada?

If you don't believe in gay marriage, then don't enter into one.

The Gay Marriage issue is not left to the interuptation of any "man", but rather it's a God issue. We have gotten so far from the way God intended for us to live until if we aren't restrained by some "law" on the books, we are putting ourselves in harms way of a judgment that has never been seen by this country. I know we have progressed in the field of thecnology and sciences that we've forgotten that it is God that gives us the ability to do all that we do. The simplicity of it all escapes us. We are so achievement oriented, that we have exempted ourselves for anything close to what got us to this point in our society, and that is the "grace and mercy of our heavenly Father. It is un-important what you or I believe about God...He is real. If we would just consider a portion of the Holy Word of God, we will clearly see that God is merciful, but He is also the "Judge." To have us flaunt everything that we want to do in His face, is asking Him to unleash His righteous indignation on us. Ask Sodom & Gomorrah in scripture of old. Check out Genesis chapters 18-19. These events actually happened, and they will happen again. Men are evil inheriently, we don't have to push their agenda to increase more evil practices. If one wants to violate God's law, then let him/her., but not at the expense of making society bow down to their degradation with a hand of iron. If they choose to do evil, we shouldn't have to be coerced to accept it. Let's put laws on the book that will benefit this country in a positive way. This is a personal (gay marriage) matter that should not be entertained by our tax dollars!

Contrary to the slander and hysteria flying around, this judge did nothing wrong or unusual with this ruling. A gay judge is no more necessarily biased than a straight judge, and is no more obligated to recuse himself than a female judge is from a case where a woman is the victim. Further, "majority rules" is a lie, this country has never been a pure democracy, and maybe some people need to listen to less right-wing propagandists and brush off their high school textbooks. They'll see that our system is working on this issue exactly as intended, with checks, balances, popular vote and judicial review.

johanna, you say Marriage is about procreation. Judge Walker cites in his ruling, at no time does the state of California make marriage license applicants prove their ability to procreate, therefore your argument is not valid. When Grandma remarries her high school sweetheart at 80, she probably can't procreate, so you're saying she can't get married? A 30 year old woman who had a hysterectomy wants to get married, she cannot procreate. According to you, she is also ineligible. Sorry, your argument falls flat.

savvydude, if Judge walker had been straight, and ruled in favor of Prop 8, i could then claim bias as well right? and in any other case where a gay person is involved, i can ask any straight judge to recuse him/herself correct? You better be prepared to agree with me, if you're going to use the bias argument. Judge Walker is a republican as well, appointed by the first President Bush. If you think you can't be gay and republican, go ask the Log Cabin Republicans how they pull it off.

hetero father, it is not tyranny when the judiciary protects a fundamental right from be taken away from the tyranny of the majority. Established case law says marriage is a fundamental right, Judge Walker drew from established law, not what he made up himself. A fundamental right is not subject to be given OR taken in an election!
See you at my wedding!

Common sense will tell us that most married gays will want eventually want and have children .

I consent that one good parent is better than two bad ones. You can use this analogy with anything one good is better than two bad ones. As an example: one good eye is better than two blind eyes. However, the ideal would be two eyes that function normally. I concur to the belief that children need both male and female parents ( a good mother and a good father). Some people say they need love period, but when one parent is AWOL it is like going through like making do with a missing part.
PS don't call me a homophob. Psychatrist have being talking about children that grow up with single parents or a missing father or mother for years.
I also do not agree with single parents having children when the other parent is missing.

To those concerned about Judge Walker's sexual orientation. So what you're saying is a gay men are biased toward gays, but heterosexuals have no biases against homosexuality? What race should the judge be for an African American defendant? By the same logic, awhite judge is biased toward the prosecution, and a black judge toward the defendant. What about a rich defendant? Should the judge be rich or poor? How do you define the most fair judge?

All judges have personal backgrounds, and they have to separate that from their work. Walker was a Reagan appointee whose nomination ran into trouble from the left because he had previously represented the US Olympic Committee *against* the Gay Olympics for inappropriate use of the term "Olympics" (see Vaughn R. Walker on wikipedia). Sounds like a real activist left-wing judge whose only goal in life is to push the "gay agenda" on the rest of us.

Note too than none of the pro-Prop 8 comments here even address one of Walker's points: What interest does the state have in preventing gay marriage? Who honestly cares if you don't like it? Nobody's asking you to do it! And don't tell me democracy is only about the will of the majority.
We wouldn't have the Senate, supermajority voting requirements, or the Supreme Court if that's all it is.

Why is empathy in such short supply? How many problems in the world would disappear instantly if everybody followed the Golden Rule? Instead, all we can do is think about ourselves... me me me.

I am sure there is now much rejoicing going on all over West Hollywood and San Francisco now. Let the Great Debate begin.
There is truth in that everyone should have life, liberty, & the pursuit of happiness. Not one person should object to someone else finding and pursuing happiness. But let us not forget, friends-we are "ONE NATION UNDER GOD." It's in the Pledge of Allegiance which every student recites in school every morning.

In Matthew 9.15, when Lord Jesus spoke of "the bridegroom," He was referring to Himself. Marriage is a sacred relationship!
The Bridegroom is none other than Jesus, God's only begotten Son.
The Bride is The Church. Thus marriage is a supremely sanctified institution, even though all kinds of idiots still get married everyday and repeat the oath that "what God has put together, let no man put asunder."
"I have espoused you (the True Church) to one husband, that I may present you as a chaste virgin (a bride) to Christ." (2 Cor 11.2b, KJV) It says nothing about two husbands or two brides here.

Second Corinthians 11.2 makes it abundantly clear that the True Church is the bride who God chose to be wed to His Son. And if you are a Christian, then you are of the True Church and, as such, you are "the bride of Christ." What God has done, and is doing, is to bring about the greatest marriage in all eternity -- the marriage of Christ to the church. Marital vows are NOT something to be politicized or trifled with.

I do not think it is in the best interests of anyone to start messing around with what as been and continues to be God's sanctified relationship-that exists between both Himself and His Church and thus extended into the confines of a proper male/female earthly union. I wish all the LBGT community well and believe civil unions are the answer but leave alone the sacred wedding vows-as dictated by God Himself. Let's see what The Supreme Court in Washington D.C. has to say about all this-I hope that our Founding Fathers are not rolling in their graves as the Justices mull over Constitutional Law and-hopefully Biblical Law as well!

It never ceases to amaze me how little the "average" American knows about our government, our judiciary, and our laws. It's really shameful, particularly in a country that purports to set the standards of freedom and democracy around the world. "Majority rules" in elections, not in determining civil rights and protections.

Reality, Judge Walker is indeed owning up to his actions, that's why he signed his name to the ruling, duh.
He cited established law, which any judge will do, and based his decisions on the evidence presented to him. Even the Prop 8 backers know, they did a horrible job in court. Most of their 'expert' witnesses backed out, and all they had left to argue was "traditional marriage is tradition".

What gives the "majority" this sense of entitlement to remove or take my rights away from me? How dare you feel better than anyone?

All these people in the comment section whining about their vote not counting don't seem to understand the Constitution very well. The Constitution does not allow you to vote on other people's rights. It prevents democracy turning into two wolves and a lamb voting on what's for dinner.

"People that are married now might not want the word defined same way as the gay community and it's their right to think that way, just as it's a gays right to celebrate, pride march and believe their way."

It IS their right to think that way, but it's no violation of that right that the government doesn't make law based on their belief. We do not have a right to not be offended or to have our beliefs contradicted - just to have the belief. My jaw drops every time a gay marriage opponent talks about their rights. On one side, Citizen A is offended. On the other, Citizen B is denied rights and benefits. Somehow, I don't see equally meritorious complaints...

I wish people would learn about the system of government we have before making comments like, "majority rules in this country" and "what are we voting for." It doesn't matter what side of the issue you are on when you don't even understand the three branches of government. My favorite was the person who stated "opponents of gay marriage are free to move" when it should have been "proponents" and the argument was based on a clear lack of understanding of how again the three branches of government work. If courts did not place checks on laws that we have voted for, Jim Crow laws, slavery, segregation and many other civil rights issues would still be on the books and enforced. If you are happy about the decision or if you are upset with the decision, learn about our government and country before making stupid remarks publicly and showing your ignorance.

It's hard to believe there is such a big deal about this when there are so many other issues and problems to worry about.

Has the allowance of same-sex marriage in other states been detrimental to "traditional" marriage or the children in that state?

If marriage, is for procreation, all couples without children should have their marriages disallowed. Likewise all married couples with children should not be allowed to divorce. Further, any single parents should have their children taken away. Absurd? Certainly is, but it goes to show how far we can go on the "protection of children" argument. In fact this seems like one of the few arguments the opponents to some-sex marraige seems to have, however mis-guided it is. Further, many same-sex couples will not chose to have children. It is simply a scapegoat argument.

For those who complain about "advocate judges'" are you saying that the many past cases regarding segregation, interrational marraiges and the like were a mistake? If the rights of African-Americans were left to the voters, we would probably still have segregation. There are times in our history where the court needs to step in and do the right thing. This is not the first nor the last time that this is true.

Just read the first line of the 14th amendment (you can look it up!). These people are citizens of this country and they have rights and privileges that cannot be denied by any state. It's the same amendment that the GOP is trying to overturn about being born in the country.
And these are the "Christians" of our country. Just a bunch of mean spirited social idiots who are terrified to see anything change in their little lives.
Why don't we kill the 2nd amendment while we're at it. See how the white trash gun keepers would like that one...but I guess that one's not inconvenient for their liking.

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