In a blistering repudiation of California's ban on same-sex marriage, a federal judge ruled Wednesday that the right to wed one's chosen partner applies equally to all Californians and that the case for excluding gays and lesbians was based ultimately, and unconstitutionally, on "moral disapproval."
Chief U.S. District Judge Vaughn Walker said a 12-day trial in his San Francisco courtroom - the first on the issue in any federal court - produced "overwhelming evidence" that denying marital rights to same-sex couples violates their constitutional right to equality and does not benefit the institution of marriage.
Testimony from a parade of scholars and researchers demonstrated that "as partners, parents and citizens, opposite-sex couples and same-sex couples are equal," Walker, an appointee of former President George H.W. Bush, said in a 136-page decision.
He said Proposition 8, the November 2008 initiative that amended the state Constitution to define marriage as the union of a man and a woman, "prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis."
Walker said Prop. 8's sponsors presented a meager case in defense of the measure and that their principal witness, who attested to the harmful effects of same-sex marriage, lacked credentials and credibility.
Federal case differed
While Prop. 8's supporters argued that same-sex couples are adequately protected by the right to enter domestic partnerships, Walker said those partnerships are "a substitute and inferior institution" that lack the status and social meaning of marriage.
Prop. 8 overturned a May 2008 California Supreme Court ruling that granted gays and lesbians the right to marry.
The state's high court upheld Prop. 8 in May 2009 - while validating 18,000 marriages performed before it passed - but was not presented with the federal constitutional claims that were raised before Walker.
Despite claims by the measure's backers that it was intended to protect marriage, benefit children and reaffirm historic tradition, Walker said evidence of the Prop. 8 campaign showed that the most likely reason for its passage was "a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples."
"Moral disapproval alone," he said, "is an improper basis on which to deny rights to gay men and lesbians."
Walker issued a temporary stay that maintains the ban on same-sex marriage while he considers whether to suspend his ruling during the appeal. Prop. 8's sponsors, a conservative religious coalition called Protect Marriage, said they are confident the measure ultimately will be upheld.
"Federal precedent is clear that there is no constitutional right to same-sex marriage," said Andy Pugno, the organization's general counsel. He said Walker "has literally accused the majority of California voters of having ill and discriminatory intent."
Plaintiffs felt unequal
The plaintiffs - two gay men from Burbank, two lesbians from Berkeley, and the city of San Francisco - argued that Prop. 8 discriminated on the basis of gender and sexual orientation and violated their fundamental right to marry. They praised the ruling.
"We just want to get married, just like our friends, family and relatives can. We are thankful to live in a nation of equal laws," said plaintiff Paul Katami, whose plan to wed his partner, Jeff Zarillo, was thwarted by Prop. 8.
San Francisco City Attorney Dennis Herrera said the ruling "should not only withstand appeal, but change heart and minds."
The ruling's fate in higher courts is uncertain. The Ninth U.S. Circuit Court of Appeals in San Francisco is one of the nation's most liberal appellate tribunals, but hears cases in randomly drawn panels of three judges who span the ideological spectrum. After that ruling, possibly in early 2011, the losing side can ask the full court for a rehearing or appeal directly to the U.S. Supreme Court.
The high court struck down laws against private homosexual conduct in 2003, but the author of that ruling, Justice Anthony Kennedy, drew a distinction between the privacy issues in that case and society's recognition of the right to marry. Unless the court's membership changes substantially, legal analysts said Wednesday, Prop. 8's fate will probably depend on Kennedy.
Headed to Supreme Court
Walker's opinion "reads as solid and careful work. I imagine it was written primarily for one pair of eyes - Justice Kennedy's," said Rick Hasen, a professor at Loyola Law School in Los Angeles.
Margaret Russell, a Santa Clara University law professor, said Walker's conclusion that Prop. 8 was based on moral disapproval of gays and lesbians was reminiscent of Kennedy's 1996 ruling in a Colorado case. Kennedy said a state law that barred local gay-rights ordinances was unconstitutionally based on disapproval of the people those ordinances protected.
Russell, who supports same-sex marriage, said the Supreme Court isn't likely to endorse Walker's conclusion that Prop. 8 violated a fundamental right to marry because the court hasn't previously recognized such rights for gay and lesbian couples. The justices could agree with Walker that the measure is unconstitutionally discriminatory, she said, but they might also draw different legal conclusions from the evidence he cited.
The ruling contained a withering critique of the case presented by Prop. 8's sponsors, who opposed holding a trial and argued that evidence of the initiative's intent and effects was legally irrelevant.
Their chief witness, David Blankenhorn, founder of the Institute for American Values, testified that marriage is universally defined as an opposite-sex institution and that allowing same-sex couples to wed would discourage heterosexual marriage.
Walker said Blankenhorn offered no evidence for his conclusions, lacked scholarly credentials and was "entitled to essentially no weight" for his opinions. Overall, the judge said, Prop. 8's backers "failed to build a credible factual record" to justify the measure.
By contrast, he said, the plaintiffs' academic witnesses testified credibly that the qualities of a spouse or parent have nothing to do with sexual orientation, that same-sex marriage would make society more equal without harming opposite-sex couples, and that Prop. 8 continued the "long history of discrimination" against gays and lesbians.
The ruling can be viewed at sfgate.com/ZKCE.
E-mail Bob Egelko at email@example.com.
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