The decision invalidating California's Proposition 8, a voter initiative that denied gay couples the right to marry, is everything that gay rights proponents could have wanted: a closely reasoned and thorough legal analysis coupled with a comprehensive review of the evidence presented at trial.
The fear is not so much that the ruling is vulnerable to counter-arguments on appeal as it is that the appeal will reach the US supreme court, where conservative and moderate justices have signalled that they prefer incrementalism when it comes to gay rights.
Judge Vaughn Walker's decision, issued yesterday, addresses the two primary claims that provide a basis for constitutional challenges to exclusionary marriage laws: that marriage is a fundamental right and that denying marriage to gay couples constitutes unjustified discrimination.
The lengthy opinion struck down Prop 8 on both grounds, although it is unclear whether the ruling will actually go into effect during what is likely to be several years of appeals. (An injunction against state enforcement of Prop 8 is stayed at least until tomorrow, when the judge will hear arguments on continuing the stay; whatever he rules will be immediately challenged.)
Walker, an appointee of the first President Bush, found there was no rational basis for the law, meaning that it was not logically related to any legitimate state interest. "Indeed," he wrote, "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 opinion repeats several times the theme "that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples". It stresses the ways in which Prop 8 stigmatises gay men and lesbians by perpetuating outmoded stereotypes, and characterises the proponents of Prop 8 as seeking to use the power of the state to enforce a particular moral code.
According to the court, whether that "is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate".
This theme of stigma and immorality is there for a strategic reason. In the two supreme court cases that have addressed anti-gay discrimination, the high court has declared that animus cannot be a legitimate basis for legislation and that states are barred by the constitution from criminalising homosexual sexual conduct because residents believe it to be immoral.
Neither of those decisions, however, finds that a state has to show anything more than some rational basis to justify a discriminatory law, a tough standard for those challenging such laws. Walker aimed his opinion to fit within the ambit of those precedents and satisfy the rational basis test, should the case ever reach the supreme court.
At this early point in the litigation, one can only guess what the future proceedings will bring. The regional court of appeals to which this decision will go is the most liberal in the US, but the outcome is far from certain. One possibility is that the court of appeals could affirm on narrower grounds that apply only to California.
Although there are 44 other states that ban gay marriage, the legal context in California is unique. In May 2008, the California supreme court ruled four to three that gays and lesbians had a state constitutional right to marry. Proposition 8 amended the state constitution to ban same-sex marriage. The appellate court in the new case could distinguish Prop 8 from other states' laws because it rescinded what had already been recognised as a fundamental right. If it does, the supreme court would be less likely to grant review, since the import of the case would be limited to only one state.
In my view, the ideal resolution would not occur in the judicial system. If California voters repealed Prop 8, no legal precedent would be established but the end result would be the same, and the dynamic of gay rights debates would be dramatically altered. The political power of the message if voters themselves reconsidered and decided that gay couples are indeed just as entitled as straight couples to marry would truly be a game-changer.
• Nan Hunter is a professor of law at Georgetown University law centre in Washington DC and legal scholarship director at the Williams Institute on Sexual Orientation Law and Policy in Los Angeles
You have characters left
Please read our community standards.
Closing this window without pressing "Post your comment" will result in your words being lost.
Are you sure?
Thank you for your comment. This has been submitted for moderation.
Your comment has been successfully posted.
Sorry, something has gone wrong and this action cannot be completed. Please try again later.