California was given  a “do over” as the decision in Perry v. Schwarzenegger was handed down, today, August 4 (www.hrc.org).

There are major implications for all of us within the LGBTQ & A community which we will address more thoroughly in a later alert.  This notice is to help everyone understand what has happened in the past and what happened today.   We want to acknowledge Chris Geidner, Washington, D.C. http://lawdork.net/ for his excellent comments regarding the context for today’s decision, contained herein.

Soulforce & Marriage Equality

Marriage equality has been a core issue within the Soulforce community since our inception.  Why?  Religious bigotry,  patriarchy, mysoginy and sexism are intertwined within all US legal rulings on heterosexual and same-sex or same-gender loving marriage and the rights of partners within that defined class of individuals.  While we may not all hold the same views on the fight for marriage equality, it is our prayer that today’s ruling will really serve as a refiner’s fire within our movement and engage more people in our fight for justice for LGBTQ & A people.

Today’s ruling is very important and, as you will see below, is by no means the end of our work.  We must continue to be active and increase our level of activism to ensure that we advance.  To that end, on Saturday, August 6, Meg Sneed, one of our Equality Riders will be sponsored in part by Soulforce as she starts the Arizona Right to Marry Walk.  If you wish to assist in this effort, please donate online.  You can follow Meg at the Soulforce blog.

Background information on today’s ruling

U.S. District Court Judge Vaughn Walker, the chief judge of the U.S. District Court for the Northern District of California, conducted the trial in January and June of 2010 in in San Francisco. Today’s decision appeared online around 2:00 PM PDT today.

The American Foundation for Equal Rights recruited Ted Olson, a conservative, and David Boies, a liberal, to serve as the lead lawyers in a federal court challenge to the amendment. After a trial that lasted three weeks in January and concluded with closing arguments in June, the decision was set for today.

Outcomes of today’s decision

Today, regardless of the decision, very little — in terms of actual change — will happen soon. Both sides have asserted — and Judge Walker has acknowledged — that they plan to appeal if they lost today.  An appeal can be heard by the U.S. Ninth Circuit Court of Appeals.   It is important to understand the scope of Judge Walker’s legal conclusions and the specificity of the findings of fact.

On appeal, the conclusions of law are considered de novo, or considered anew — without deference to the decision below. The judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be changed only if the appellate court finds any to be clearly erroneous.

As such, it is very important to understand those points Judge Walker advances — regardless of the legal conclusions — in the findings of fact because they are far more likely to “stick the landing” all the way up to and including at the U.S. Supreme Court, should it accept the case eventually.

Scope

There are two main claims made by the plaintiffs in the case: (A) Proposition 8 violates the Equal Protection Clause of the U.S. Constitution as an impermissible classification based on sexual orientation (or sex) and (B) Proposition 8 violates the Due Process Clause of the U.S. Constitution as an impermissible restriction on the fundamental right of marriage. In each there are subsets and secondary questions, the resolution of which are important both in California and, if upheld on the same basis on appeal, elsewhere.

Under equal protection, the scrutiny of classifications based on sexual orientation

One of the first issues for the judge to decide is what level of scrutiny applies to classifications — such as Proposition 8 — based on sexual orientation. The plaintiffs have argued that a heightened scrutiny should apply; the proponents have argued that rational basis would suffice. If heightened scrutiny applies, it is more difficult to uphold Proposition 8 as constitutional because it would have to be proven to serve an important governmental objective and be substantially related to that objective. If a rational basis would suffice, then the amendment merely needs to be found to be rationally related to a legitimate government interest.

The discussion at trial about the political powerlessness of gays and lesbians, the history of discrimination and the immutability of sexual orientation all are factual considerations that enter into Judge Walker’s conclusion about the level of scrutiny under which the case will be considered.

The plaintiffs argued that Proposition 8 should be struck down. The plaintiffs argued that there was not even a rational basis that supports Proposition 8.

Under due process, the definition of “marriage,” in terms of its status as a fundamental right

The U.S. Supreme Court has found marriage to be a fundamental right previously, and the parties in this case did not ask Judge Walker to change that. They did, however, differ on their view of what the definition of “marriage” is.  As has played out in ballot campaigns, the proponents argued that the very definition of marriage means only a man and a woman. As Olson put the plaintiffs’ argument at the closing, it “isn’t changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.” In many ways, the way marriage is defined here almost inevitably leads to one result or the other.

With an expanded definition, “same-sex marriages” are not considered a fundamental right, but if Proposition 8 restricts who can marry, then “marriage” is a fundamental right from which same-sex couples cannot be excluded.

The California Supreme Court held in early 2008 that same-sex couples could not be discriminated against under the state’s marriage laws. This decision led to 18,000 same-sex marriages — and the passage of Proposition 8 in November 2008. These specific facts (along with literature related to the Proposition 8 campaign), the plaintiffs argued, making California a nearly unique or unique situation when it comes to proving that the passage of the amendment is based on animus — or hatred. If so, the plaintiffs argued, then this case is similar to Romer v. Evans, in which the U.S. Supreme Court held that animus alone could not be a legitimate basis for passing a law that prohibited the ability of Colorado cities and other political subdivisions from passing sexual orientation nondiscrimination ordinances. This is the primary basis under which most analysts expected to see the law struck down under rational basis.

Finally, any mention of the federal law, although not technically at issue in the case, raises alarm or celebration all over the United States.  Judge Walker asked about DOMA in written questions to the parties before the closing arguments, asking whether he could strike down Proposition 8 and not address DOMA.

Today’s ruling states

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, 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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Thank you for your amazing work in behalf of justice for all people and your support of Soulforce in our continued work in the area of marriage equality.

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