Maybe you thought yesterday's decision was just about undoing Prop. 8, the California initiative limiting marriage to one man and one woman. Maybe you've read some of the analysis about it, or saw Rachel Maddow encouraging you to read the decision. I would join that sentiment (TPM has it posted here, along with their analysis), but add that, having read it myself, the potential scope of this decision is simply breathtaking. In essence, if this decision is allowed to stand as precedent, EVERY gay marriage ban in the country is now on shaky legal ground and will be subject to constitutional challenge.
You know those 31 states where the rightwingers used prejudiced electorates and legislatures to bar gay marriage by statute or by constitutional amendment? Well, now, every one of those initiatives are, as a matter of federal constitutional law as of this very moment, impermissible denials of gay men and women's fundamental right to marry the PERSON of their own choosing.
Follow me over the fold for the juicy quotations that strike at the heart of gay marriage bans across the nation:
An initiative measure adopted by the voters deserves great respect.... When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives. Perry decision, @ 24.
Holy Handgrenade, Batman! Did you just see that?!? The learned judge states that anti-gay classifications like that barring LGBT persons from marrying based on gender is not only beyond the power of the states populace to enact via initiative, as with Proposition 8, but also bans enacted by "their representatives." In legal speak, that means state legislatures. Essentially, whether passed by the legislature or by a public initiative process, whether by statute or constitutional amendment, gay marriage bans can't be based on mere moral disapproval alone and pass constitutional muster.
And now introducing our "modern" definition of "marriage" and the right to marry:
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. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals. Perry, @ 113
Marriage restrictions based on gender that burden LGBT people's right to marry won't withstand constitutional scrutiny. Anywhere in the U.S.A.
Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States .... Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as "the right to same-sex marriage" would suggest that plaintiffs seek something different from that opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages. Perry, @ 113-14.
What the judge is saying here is that the essential right is already there, and that our exercise of that right DESERVES recognition, regardles of the gender of the persons involved. In fact, not recognizing LGBT families violates their due process rights under the 14th Amendment. The judge is talking about California there, specifically, but the principle is the same, regardless of the state.
What that means is that states across the country are now on notice that they are violating the 14th Amendment due process rights of countless Americans by enacting and enforcing gay marriage bans and refusing to recognize their LGBT citizen's exercising their fundamental right to marry. Wow!
And guess what else, when we are talking about the fundamental right to marry, strict scrutiny applies (even if that standard doesn't apply to sexual orientation generally--more on that point below):
Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. 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." West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943). Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. ....
As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Perry, @ 116-17.
The same might now be said of any marriage ban in any state across the nation: It burdens LGBT person's fundamental right to marry under the federal constitution, and must survive strict scrutiny to enforce gender restrictions on the choice of marriage partners. If that's the standard, those marriage bans are about to be toppled.
If you are familiar with the evolution of LGBT case law, you might be aware that in the progeny of cases since Romer and Lawrence, the US Supreme Court has danced around the issue of what standard of review was applicable to legislative classifications based on sexual orientation, deeming the laws in question not to pass even rational basis scrutiny, so the USSC was able to stop short of deciding the issue. A similar dynamic was at play in this case:
As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review. Perry, @ 121.
Judge Walker of course then proceeds to "address the question" of whether a heightened standard of review applies, saying what's already been read between the lines of those earlier USSC precedents by legal observers. You know, just in case you were curious about what legal standard should appertain here:
Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. .... No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to "real and undeniable differences" that the government might need to take into account in legislating.
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
No, the judge need not have spelled it out for us, but the plaintiffs presented evidence supporting strict scrutiny as the applicable standard, so he said so. This is the judge's conclusion as part of a trial where this issue was specifically raised and argued. Short of a Supreme Court ruling on the point, that's persuasive authority regarding the applicable standard in all future sexual orientation cases. Now, if the Supreme Court wishes to overturn this determination, they'll have to announce what their applicable standard of review is. No more dancing around the issue! Else, this decision will be cited in sexual orientation cases from this day forward as determining the applicable standard of review for LGBT rights cases. The USSC can adopt it or reject it--but they can no longer ignore it.
But, just in case the USSC does find a way to reject Judge Walker's reasoning and applies a rational basis review to sexual orientation issues, Judge Walker has already determined that Prop 8 (and by implication, other marriage bans like it) fail even that low standard:
Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. ....
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
And after you boil away all of the Prop 8/Marriage-ban proponents' supposed rational bases for the marital gender restriction, what's left?
In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief 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. ....
Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something "wrong" with same-sex couples. Perry, @ 132-33.
Ruh-Roh, Raggy! Our wingnut arguments aren't holding up in court! I hear the crumbling sounds of gay marriage bans across the country! Quick! To the "Activist Liberal Judge" defense!
And just in case you were thinking that Judge Walker let the "Civil Union" separate-but-equal states off the hook, think again:
The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships. Perry, @ 82.
Stop the presses, people!!! "Civil Unions" and "Domestic Partnerships" are insufficient to satisfy LGBT persons' fundamental right to marry under the Federal constitution! Separate-but-Equal isn't good enough to satisfy the 14th Amendment! Judge Walker has just set true marital equality as the standard applicable in states across the nation.