Gay Marriage Ban Overturned

SUBHEAD: California Prop 8 is determined to be unconstitutional by federal judge. Image above: Lady Liberty and Lady Justice - The ultimate same sex marriage. From ( Transcript of Rachel Maddow 0n 4 August 2010 for MSNBC - ( In past decade, 31 states put to a vote the question of whether or not gay people should be allowed to get married. Thirty-one states have put those minority rights up to a vote. And in all 31 of those states, that minority rights issue has gone down to defeat. In general, when ask you for a majority rules vote on minority rights, you get results like what we`ve seen on the gay marriage issue -- 31 out of 31 times in 31 out of 31 states voters voted it down. But here`s the thing about rights-- they`re not actually supposed to be voted on. That`s why they`re called rights.
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
No state shall deny to any person within its jurisdiction the equal protections of the laws -- even if lots of people in that state want to. It`s not up for a vote. Rights are part of the deal if you`re an American. That`s why the Equal Protection Clause is in the Constitution. In this case, specifically, it`s in part of the newly controversial 14th Amendment to the Constitution. Rights are not supposed to be put up for a vote. They`re not a popularity contest. They`re supposed to be subject to a test of their constitutionality. That`s why we have courts, not just to put people on trial, but to try the things the people say they want to be their laws. We try those things against the Constitution. And the Constitution restricts the things that Americans can make laws about so those laws don`t infringe on our constitutionally protected rights. That`s sort of the big idea in this country. That`s sort of the big idea that is this country. America, come for the religious liberty, stay for the rock-ribbed constitutional guarantees of all your other rights. Today, for the first time in our nation`s history, a federal court put the issue of a state ban on gay marriage to the constitutional test. The results were blistering. A federal judge in California ruled unequivocally today in the strongest possible terms that California`s recently passed gay marriage ban, Prop 8, is unconstitutional. The ruling`s long but it is page turner. Federal Judge Vaughn Walker summed up his ruling this way,
"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. The court concludes that Proposition 8 is unconstitutional.
And with that, California`s gay marriage ban went kaput -- a huge victory, of course, for gay rights supporters in that state and possibly around the country. But Judge Walker, who`s a George H.W. Bush appointee, Judge Walker not only struck down California`s gay marriage ban as unconstitutional, he also probably set the stage for what will be the next big court fight and the next big political fight -- the anti- gay marriage side that was defeated in this case has already filed paperwork expressing intention to appeal the decision. We should expect to hear lots of excerpts from Judge Walker`s ruling. Not only in the legal discussion, but I think you`ll hear it in the political fight that is sure to come as well, because I think many conservatives will see some of this language as explosive.
"That the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to a vote. They depend on the outcome of no elections."
Also, there`s this:
"The evidence shows that movement of marriage away from a gendered institution and toward an institution free from state- mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion existed as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the right to choose a spouse and with mutual consent join together and form a household. Race and gender restrictions shape marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses` obligations to each other and to their dependents."
Stick that on a bumper sticker. Actually, I will bet you that somewhere in right-wing America, someone already is. You know, the night that the gay marriage ban passed in California back in November 2008, gay people and gay rights supporters took to the streets in anger during what was an otherwise joyous election night for liberals and progressives. Obama was just elected president. But then in California, that was Prop 8. Today, some of those same protesters were back in the streets, this time celebrating -- celebrating a dramatic and provocative reversal. In a few minutes, we`ll be joined by David Boies and Ted Olson, the two attorneys who won the case against Prop 8 today. But, first, we`re joined by`s legal correspondent and senior editor, Dahlia Lithwick. Dahlia, thanks so much for joining us. DAHLIA LITHWICK: Hi there, Rachel. MADDOW: So, the senior legal counsel for the Alliance Defense Fund, the people defending Prop 8, say they plan to appeal the decision today, all the way to the U.S. Supreme Court. Where do they start? What happens next? LITHWICK: Well, first we have a little site that we`re going to have over the judge staying his order. Today, in other words, Judge Walker almost immediately temporarily stayed his order. And he`s going to let the parties decide. I think their papers are due actually -- it`s definitely expedited. But I think, by Friday, they`ve got to get their filings in. And then he`s going to make a decision, I`m hearing, on Tuesday, about whether or not this is going to be stayed pending an appeal. So, we have already a fight over a stay. And then over and above that, as you say, there`s going to be an appeals process, both sides had intended to appeal, because the end game here was always to get this before the U.S. Supreme Court. MADDOW: In terms of the ruling, Judge Walker`s reasoning, the way he wrote his decision, if or when this does make it to the U.S. Supreme Court, or even looking ahead to the 9th Circuit, based on your understanding of the law here, how strong do you think the anti- gay marriage appeal is going to be? How resilient do you think this ruling is going to be when it gets higher scrutiny? LITHWICK: It`s a great question, Rachel. And it`s really clear when you look at this 138-page opinion of which you read some of the highlights but not nearly all. MADDOW: Yes. LITHWICK: It`s really worth reading in its entirety. But, you know, two very, very strategic things that Judge Walker did. One, and you quoted some of these quotes yourself, he quoted Anthony Kennedy, who`s been the pivotal justice on gay rights issues in Romer, the Colorado anti- gay rights initiative and then again in Lawrence v. Texas, the Texas sodomy case. It was Anthony Kennedy, believe it or not, on a very, very polarized court who always stood really steadfast and in lofty language for the rights and the dignity of gay Americans. So, this is couched in a little bit of a love letter to Anthony Kennedy. The other thing that is really important to understand in Judge Walker`s order is that there are findings of fact and there are findings of law. An appellate court has to defer enormously to a judge`s finding of fact. They can really look at findings of law from scratch. And Judge Walker puts together 80 different findings of fact in this cage, really meticulously combing through the record, looking at the evidence, citing the witnesses and finding 80 different places where he says things as a matter of fact like kids that -- it doesn`t make any difference if you are raised by gay or straight parents, that the animus of Prop 8 was biased and based on stereotypes. So, bump, bump, bump, he goes down 80 findings of fact that the courts are going to have to take very seriously. So, I think that he really constructed something that is going to be hard to dismiss as, you know, activist judges, finger painting, you know, to loud music. MADDOW: All right. I`m so glad that you pointed that out. That`s how -- just as a layman, I don`t have any legal training or never, but I was reading through this. I got to the statements of fact and I -- instead of just reading them online, I started printing them out and highlighting them because I sort of couldn`t believe that this was in that part of the ruling. I mean, the campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships. He then says the stereotypes are not based in fact. He makes claims about, you know, the health of children in gay families. It`s a bold, bold ruling. In terms of the federal and national implications for this, Dahlia, obviously, this is narrowly about Proposition 8 in California. But this was a federal court ruling. Does this have implications for other states? LITHWICK: Well, not immediately. And, in fact, Judge Walker was very careful in the -- in his own closing arguments and when he was talking to the lawyers asking questions. He asked a lot of questions about DOMA, the Defense of Marriage Act. That doesn`t come up in this case. So, I think what this really does is it -- a very, very broad statement. I mean, he finds both as a matter of equal protection and as a matter of due process of law, this is unconstitutional. So, it`s not a narrow ruling, Rachel. But, certainly, I think this tees up a question that the Supreme Court probably wants to avoid but I think it`s really going to have to deal with it. I mean, this is -- you know, has always been a gamble about, as I said, one person, Anthony Kennedy, at the center of the court. And I think it tees it up in a way that`s going to make, really force the court to contend with this issue squarely on the merits and again dealing with the very, very elaborate findings of fact. MADDOW: And that was always the case that was made by David Boies and Ted Olson when they faced criticism for pushing forward with this case when some other advocates of this issue wanted other cases to take the issue forward. They always maintained that they felt like this was their best -- this was their best vehicle for bringing it to the Supreme Court. David Boies and Ted Olson will actually be joining us next. They`re standing by. Dahlia Lithwick, senior editor and legal correspondent for, you really helped us clarify this. Thanks a lot.

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