VOL. 18 ISSUE NO. 33   |   AUGUST 18 – 24, 2010


Gay marriage, a constitutional right or ‘tyranny of elitists?’

The people decided with Proposition 8, now it‘s the courts‘ turn

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district judge vaughn walkerSAN FRANCISCO – On Aug. 4, U.S. District Court Judge Vaughn R. Walker overturned Proposition 8, known as the California Marriage Protection Act. The ballot initiative was passed by voters in November 2008, adding a new section to the state Constitution, providing “only marriage between a man and a woman is valid or recognized in California.”
Walker was originally nominated to the bench by President Ronald Reagan in 1987.

However, this nomination stalled in the Senate Judiciary Committee due to his representation of the United States Olympic Committee in a lawsuit that prohibited the use of the title "Gay Olympics."

Rep. Nancy Pelosi, D-San Francisco led dozens of House Democrats to oppose his nomination, based on his supposed insensitivity to the gay community and the poor.
Walker was re-nominated in 1989 by President George H.W. Bush, receiving unanimous Senate confirmation that November.

Ironically, Walker is said to be openly gay and many proponents of Prop. 8 believe he should have recused himself from the case.

The campaigns both for and against the initiative marked the highest-funded campaign for a ballot measure in any state, raising nearly $40 million for and over $43 million against.

In his 130-page opinion, Walker wrote, “The evidence shows that Prop. 8 does nothing more than enshrine in the California constitution, the notion that opposite sex couples are superior to same sex couples.”

Because it “prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,” Walker concluded the Marriage Protection Act is unconstitutional.

ACLU of Southern California Executive Director Ramona Ripston issued a statement immediately after Walkers’ ruling to say the court’s decision “affirms that in America, we don’t treat people differently because of their sexual orientation. We rejoice at today’s decision …”

Representing the proponents of Prop. 8, Attorney Brian Raum of the Alliance Defense Fund issued a statement afterward calling the court’s ruling “disappointing” and said, “Its impact could be devastating to marriage and the democratic process.”

He said the majority of voters “simply wished to preserve the historic definition of marriage.”

Raum called the opponents’ attack upon the motives and goodwill of the initiative’s supporters “lamentable and preposterous.”

Walker stayed his ruling for several days, giving defendants an opportunity to request a stay of his ruling, pending appeal, which the Ninth Circuit Court of Appeals granted on Monday along with an expedited briefing schedule and the appeal calendared for the week of Dec. 6.

The Ninth Circuit panel that issued Monday’s order to stay the lower court’s ruling, which is not the panel that will be assigned to review the case, stated, “In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.” In other words, the appellants would need to argue how they are specifically harmed by gay marriage being allowed in order to have standing.

Raum stated, “Imagine what would happen if every state constitutional amendment could be eliminated by small groups of wealthy activists who malign the intent of the people. It would no longer be America, but a tyranny of elitists.”

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