Proposition 8 in California - Legal Perspective

August 4, 2010, an unforgettable day in history for California and maybe for the United States, when Judge Vaughn Walker struck down the unconstitutional Proposition 8. “The evidence shows that the movement of marriage away from a gendered institution and toward an instution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.”

In November 2008 Proposition 8 passed by a bare margin of 52 to 49 percent in California, abolishing the ability of same-sex couples to marry. This proposition, confusing at best, decried that a “yes” vote would actually say “no” to the right of same-sex couples to marry. During the time it was legal for same-sex couples to marry, May to November 2008, eighteen thousand same-sex couples married.

Once Prop. 8 passed, Perry v. Schwarzenegger was filed with the California Supreme Court challenging the passage of Prop. 8. Although I am an Orange County criminal defense attorney, I, along with many others, took part in filing what’s called an amicus brief. These briefs are filed as “friends of the court” to give additional support for one side or the other. Unfortunately, the California Supreme Court allowed Prop. 8 to stand, but thankfully kept intact the married 18,000.

The case was then filed in the U.S. District Court where opponents of Prop. 8 argued important issues as equal protection and due process. Judge Walker presided over the matter hearing evidence and arguments from both sides. Judge Walker found that Prop 8 violates the Constitution and voters do not have the right to create unconsitutional law. Marriage between same-sex couples has been stayed pending Judge Walker’s review of further briefs which were filed on Friday, August 6, 2010. Judge Walker will decide if the stay will continue through the appeal process to the Ninth Circuit and then onto the United States Supreme Court where the Supreme Court may or may not accept the case. This appeal process could take years. In deciding whether to lift the stay, Judge Walker must decide if the proponents of Prop. 8 have a likelihood of prevailing with their appeal. If not, Judge Walker will lift the stay and same-sex couples may enter into a civil marriage.

Evolve people. The 18,000 married same-sex couples of 2008 have not ruined the sanctity of marriage. More importantly, “marriage” is more than any moral classification. “Marriage” is a legal classification that protects the family unit from inequalities set by institutions and governments based on history and insitution of the word. One cannot substitute the word “marriage” for any other word and expect equality.