Today’s decision in Perry v. Schwarzenegger is nothing short of a grand slam legal victory for LGBTQ people. In a comprehensive and crystal clear opinion, Judge Walker held that Proposition 8 is unconstitutional. Judge Walker reached this conclusion for two reasons: because Proposition 8 denies individuals the fundamental right to marry without a compelling reason to do so, violating the Due Process clause of the federal constitution, and because it violates the Equal Protection clause by discriminating based on sex and sexual orientation.
Under both the Due Process clause and the Equal Protection clause, whether a law is constitutional comes down to whether the state has a good enough reason for it. So, the core of Judge Walker’s opinion today is his factual findings – the determinations he made based on the evidence presented to him at trial. Judge Walker’s methodical opinion relies on the impressive and authoritative trial testimony of the Perry plaintiffs and their expert witnesses to conclusively refute every argument ever advanced against permitting same-sex couples to marry.
Judge Walker ruled that Proposition 8 and laws like it cannot withstand constitutional scrutiny even under the most forgiving legal standard, the “rational basis” test. But he also held that because it discriminates based on sexual orientation, Proposition 8 should be evaluated under the “strict scrutiny” standard – the highest level of constitutional scrutiny, which applies to laws that discriminate on the basis of race. Discussing the way that the law discriminates based on both sex and sexual orientation, he explained that excluding same-sex couples from marriage is “an artifact of a time when the genders were seen as having distinct roles in society and in marriage.” And “[t]hat time has passed.”
The court has temporarily stayed the ruling, meaning that it will not go into effect immediately – so same-sex couples are not yet able to actually marry in California as of today. The defenders of Proposition 8 have asked that the ruling not go into effect until they have finished appealing it (which could take 2-4 years), and the temporary stay will last until Judge Walker decides whether to grant their request. We can also expect that the proponents will file an appeal of the ruling to the Ninth Circuit Court of Appeals some time soon. Today’s decision only addressed California’s Proposition 8, not federal law, or any other state laws, although much of Judge Walker’s reasoning would also apply to other laws that prohibit same-sex couples from marrying or otherwise discriminate against LGBTQ people.
Judge Walker deserves a great deal of credit for sifting through the mountains of evidence presented at trial and for analyzing it so thoroughly. And the legal team representing the plaintiffs did a phenomenal job of presenting that evidence and making this day possible. It is deeply gratifying to see such a clear, detailed and comprehensive decision making the ultimately simple point that a majority of voters can’t trample the rights of LGBTQ people just because they have been sold a lie that we, and our relationships, are morally inferior. As Judge Walker wrote, “conjecture, speculation and fears are not enough.” Today is a great day for our community.