On Wednesday, the judge ordered a trial on whether the measure denies fundamental rights to gays and lesbians, and is therefore unconstitutional and should be struck down. Specifically, the suit alleges that the measure violates the federal Constitution's guarantees of equal protection and due process.
U.S. District Judge Vaughn R. Walker refused to dismiss the constitutional challenge to Proposition 8 by gay rights advocates, ruling instead that a trial was required to resolve legal and factual disputes.
While the ruling was expected based on prior remarks by the judge, the breadth of his decision was a boost for gay rights advocates, who argue that Proposition 8 unconstitutionally discriminates against gays; is rooted in anti-homosexual bias; and violates the right to marry the partner of one's choice.
Walker left all those issues on the table, rejecting arguments by Proposition 8's sponsors that higher courts had already resolved them. Among the questions to be answered, he said from the bench, is "whether Proposition 8 was passed with discriminatory intent."
Lawyers for Protect Marriage, the religious conservative coalition that campaigned for the November constitutional amendment, say the measure had a clear purpose – to restore the traditional male-female definition of marriage. They say opponents' claims of a hidden anti-gay agenda are both unfounded and legally irrelevant.
"Voters who passed Prop. 8 are essentially on trial in this case, accused of being irrational and bigoted," Andrew Pugno, a lawyer for the sponsors, said after the hearing.
Protect Marriage is challenging Walker's order that the sponsors must disclose internal campaign strategy documents, which opponents hope will reveal plans to appeal to voter prejudice against gays.
A federal appeals court's decision to review that order would delay this trial, now scheduled to start Jan. 11. It will be the nation's first trial on the validity of a law against same-sex marriage.
Proposition 8, passed by 52.3% of voters, amended the California Constitution to define marriage as the union between a man and a woman, overturning a May 2008 state Supreme Court ruling that allowed gay and lesbian couples to marry. The state's high court upheld the measure in May while allowing 18,000 same-sex couples who married before the election to remain legally wed.
The court's ruling Wednesday was based on state law and did not address any U.S. constitutional issues. Plaintiffs in the federal case – two same-sex couples, a gay-rights group and the city of San Francisco – claim Proposition 8 discriminates on the basis of sexual orientation and gender and interferes with the right to marry one's chosen partner.
The initiative's sponsors argued that the U.S. Supreme Court validated bans on same-sex unions in 1972 by rejecting a challenge to a Minnesota law defining marriage as being between a man and a woman. The court did not spell out its reasoning but issued a brief order that said opponents had not raised any substantial federal questions.
But Walker said prevailing legal doctrine has changed since 1972. He cited Supreme Court rulings since then that condemned discrimination based on sexual orientation and gender and overturned state laws against homosexual conduct.
Another central issue is whether Proposition 8 should be judged like laws that discriminate against historically persecuted groups. Courts generally overturn such laws unless government can show a compelling need for them.
Walker ruled after nearly two hours of argument in San Francisco, rejecting arguments by Proposition 8 proponents that precedent and tradition clearly showed last November's ballot measure was permissible under the U.S. Constitution.
During Wednesday’s hearing, Charles Cooper, representing the Proposition 8 campaign, argued that marriage historically has been reserved for unions between a man and a woman because only opposite-sex couples can procreate "naturally."
Walker, however, noted that not all married couples can procreate.
"Just last month," Walker said, "I performed a wedding in which the groom was 95 and the bride was 83. I did not demand that they prove they would engage in procreation."
Cooper, lead attorney for Protect Marriage, noted that the Supreme Court has never categorized gays and lesbians as a persecuted group, entitled to the same legal protection as racial and religious minorities. That means Propostion 8 must be upheld if voters had any rational basis for approving it, he said.
In addition to the ability of men and women couples to “naturally” conceive, Cooper cited two other grounds for such a finding – the traditional definition of marriage, and the voters' decision to wait and see how same-sex marriages work out in other states before allowing them in California.
But Walker said federal courts haven't resolved the standard for judging laws that treat heterosexuals and homosexuals differently. The answer, he said, could be determined by testimony on such topics as how much political power gays and lesbians hold and to what degree they are discriminated against.
Even if it's rational for the state to promote marriage among opposite-sex couples, the judge asked Cooper, how would that goal be impeded by allowing same-sex couples to wed?
"The answer is, I don't know," the attorney replied. But he said it doesn't matter, because it's up to Proposition 8's opponents to show that the law is irrational.
Proposition 8 backers also argued that precedent required Walker to uphold the measure as constitutional. They cited a 1972 case involving a Minnesota law that limited marriage to unions between a man and a woman.
The Minnesota Supreme Court had rejected an equal protection challenge of that law, and the U.S. Supreme Court, without issuing a full-blown opinion, declined to hear an appeal.
"We can't put much stock in that case, can we?" Walker told the lawyers. He described the case as "old," "very limited" and "not a considered decision of the Supreme Court."
In his ruling, Walker also noted that Proposition 8 stripped gays and lesbians of the right to marry, which they had been given six months earlier in a historic 4-3 ruling by the California Supreme Court.
"Potentially, Proposition 8 may be invalid given the history in California, while similar actions in another state...may not be constitutionally infirm," Walker said.
The judge previously ordered the Proposition 8 campaign to disclose its internal strategy memorandums and communications, an order the campaign is appealing to the U.S. 9th Circuit Court of Appeals on 1st Amendment grounds.
Theodore Olson, representing same-sex couples in the case, told Walker that if the appeal delays the trial, he may ask for a preliminary injunction to suspend Proposition 8.
"If the case should hang up on a discovery (the information disclosures) issue," Walker acknowledged, "that does change the equation."
A ruling on a preliminary injunction could be appealed, and higher courts could resolve Proposition 8's constitutionality without a trial. Walker said he thought it would be "unfortunate to short-circuit the process" that way.
Walker also ordered written arguments on a request by the Proposition 8 campaign to remove Atty. Gen. Jerry Brown as a defendant and make him a plaintiff in the case. Brown, who was sued in his position as the state's chief law enforcement officer, has said in court papers that he agrees with plaintiffs that the ballot measure was unconstitutional.
Brown, a former California governor, and the plaintiffs oppose the potential realignment.
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