Chief Judge Vaughn Walker of the U.S. District Court in San Francisco, California, has had a long and respected career on the bench, but he will soon make a judicial decision for which he will probably be most well known: whether depriving gay and lesbian Americans of the right to marry their same-sex partners deprives them of their federal constitutional rights.
Here is a simplified history:
- The California legislature in 1977 defined marriage in the Family Code as between a man and a woman.
- The California legislature in 1999 established the domestic partnership as an alternative to marriage for same-sex couples.
- California voters in 2000 passed Proposition 22, which enacted another Family Code section stating that only opposite-sex marriage would be recognized in California.
- The California Supreme Court in May 2008 ruled that these statutes defining marriage as only between a male and a female were unconstitutional under the California Constitution.
- California voters in November 2008 passed Proposition 8, which amended the state constitution to say that only opposite-sex marriages are valid in California.
- The California Supreme Court in May 2009 upheld Proposition 8.
Perry v. Schwarzenegger
In the May 2009 case now before Judge Walker, two California same-sex couples sued state officials alleging that Proposition 8's denial of their entitlement to marry violates their federal rights to equal protection and due process under the U.S. Constitution. The plaintiffs make several important arguments:
- Domestic partnership is not equal to marriage
- Gays and lesbians have been and still are the victims of social and official discrimination
- Denial of the right to marry brings stigma, hardship, suffering, and psychological harm to same-sex couples and their children
Interestingly, the plaintiffs in their complaint twice cite Loving v. Virginia, the 1967 U.S Supreme Court case that struck down state statutes disallowing marriage between people of different races. Loving found that Virginia's interracial marriage ban violated the equal protection and due process guarantees of the U.S Constitution.
The California Attorney General chose not to defend the lawsuit. Instead, the court allowed individuals and organizations that campaigned for the passage of Proposition 8 to intervene as defendants. They deny that the right of same-sex couples to marry is guaranteed by the Constitution and make several other procedural and technical legal arguments.
Testimony
Plaintiffs called multiple witnesses to testify about discrimination against gays and lesbians, about the negative consequences of denying them the right to marry, about how well the children of same-sex couples do, and about how society at large benefits from increased stability and productivity.
Surprisingly, the defense called only two witnesses who testified about the political power of gays and lesbians, and about the harm same-sex marriage causes, including the weakening of traditional marriage and the possibility of it leading to the legalization of polygamy.
Future Steps
Judge Walker will schedule closing arguments in the Proposition 8 case in March and will likely take some time to ponder his final decision, which he is making without a jury.
Whatever he decides, his decision will almost certainly be appealed to the Ninth Circuit Court of Appeals and probably to the U.S. Supreme Court. The Supreme Court has the final word on constitutional interpretation and its decision could affect laws and constitutions in all 50 states that impact the marital rights of gay and lesbian couples.
Both proponents and opponents of same-sex marriage will be anxiously awaiting Judge Walker's decision. Until rights are further defined, people in same-sex relationships should seek legal advice from experienced, knowledgeable family law attorneys to guide them in important family, adoption, property ownership, medical and estate planning decisions.
