Same fate for Proposition 8
On Tuesday, supporters of gay marriage in California won what political analysts are calling a historic and decisive victory, following a decision handed down by U.S. District Court Chief Justice James S. Ware that denied a motion filed by anti-gay marriage forces calling for the court to vacate an earlier decision that ruled Prop. 8 unconstitutional.
Prop. 8, a constitutional amendment, eliminated the right of same-sex couples to wed in California. During the November 2008 state elections, which saw a huge 79.4% turnout, Prop 8 passed 52.24% to 47.76%. Mono County was one of 16 counties that went against it, 44.2% to 55.8%.
Part of Prop. 8 added a new provision to the state’s constitution providing that “only marriage between a man and a woman is valid or recognized in California.” It overturned a previous California Supreme Court ruling that same-sex couples have a constitutional right to marry.
Prop 8 went into effect the day after the election, but did not affect domestic partnerships, nor same-sex marriages performed before Nov. 5, 2008.
After the election, demonstrations and protests occurred both across the state and nationwide. Same-sex couples and government entities filed numerous lawsuits with the California Supreme Court challenging the proposition’s validity and effect on previously administered same-sex marriages, none more visible than Perry v. Schwarzenegger.
In that case, U.S. District Court Judge Vaughn R. Walker overturned Prop. 8 on August 4, 2010, ruling that it violated both the Due Process and Equal Protection clauses of the U.S. Constitution. Judge Walker issued an injunction against enforcing Prop 8 and a stay to determine suspension of his ruling pending appeal.
Walker, who retired at the end of February 2011, drew national attention when, on April 6, 2011, when he told reporters that he is gay and has been in a relationship with a male doctor for about 10 years.
Curiously, legal analysts have described Walker as an “unorthodox” and “independent-minded conservative judge.” At the time of his nomination by then-Governor Ronald Reagan, The New York Times reported Walker was “active in Republican politics,” and Wired magazine wrote of Walker as having “libertarian leanings.”
In his ruling this week, Ware found no fault with Walker. “The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification,” he wrote.
“The presumption that ‘all people in same-sex relationships think alike’ is an unreasonable presumption, and one which has no place in legal reasoning,” added Ware.
Ware’s ruling dealt a severe blow to Prop. 8 supporters, who vow to fight on, but will now face a much steeper legal climb. “He [Judge Ware] erased all doubt that the Prop. 8 trial was anything but fair and thorough, and sent a powerful message that extreme fringe groups cannot strong-arm the law,” read a statement issued by a prominent Prop. 8 opponent, the American Foundation for Equal Rights.
Prop. 8 supporters maintain that Walker made his ruling because he might someday want to marry his same sex partner, but that notion has yet to gain traction with the general public. Even the historically more conservative Fox News Channel didn’t agree with the motion to throw out Judge Walker’s decision to strike down the marriage ban.
During a discussion shortly after Judge Ware issued his ruling, both Fox newsman Gregg Jarrett and Fox legal analyst Judge Andrew Napolitano agreed the motion arguing bias on the part of Judge Walker lacked merit.
“Why can’t a gay judge decide this case?” Jarrett asked. “There’s no reason why he can’t,” Napolitano replied, “and it is utterly unprecedented to inquire into the personal life of a judge after the case has been ruled on. This Reagan appointee, who had been a state court judge appointed by then-Governor Reagan, has never manifested any kind of bias whatsoever.”
Following this week’s GOP debate in New Hampshire, national pollster Frank Luntz’s focus group revealed that Republican voters are divided on the issue of same-sex marriage. While some identified with more conservative candidates who think marriage and a proper family environment should only exist between a man and a woman, others said they have no problem with gay marriage, and think same-sex families are equally as capable of properly raising children as their male-female counterparts.
