Gay marriage ban/Prop 8 struck down by US federal judge

Five states and Washington DC currently allow same-sex nuptials
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A US federal judge has overturned California's voter-approved ban on same-sex marriage.

The judge found it unconstitutionally discriminated against same-sex couples who sought to wed.
The state measure, known as Proposition 8, was passed by voters in 2008. It banned same-sex marriage, although the state offered same-sex civil unions.
Backers of the ban had said they would appeal if it were overturned. It is likely to reach the US Supreme Court.
The measure was passed in a ballot referendum by a vote of 52% to 48%.
Currently, five states and Washington DC allow same-sex nuptials, though many states have enacted bans.
California Governor Arnold Schwarzenegger quickly welcomed the ruling.
"For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves," he said in a statement.
"At the same time, it provides an opportunity for all to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity."

'Right to choose'

The 2008 ballot measure, known as Proposition 8, amended the California constitution to state that "only marriage between a man and a woman is valid or recognised in California".


Two same-sex couples challenged the measure, saying it violated their right to equal protection under the US constitution.
They said the measure violated gays' and lesbians' right to choose whom to marry while allowing it to heterosexuals.
Supporters of the ban said it affirmed the will of California voters to exclude same-sex couples from marriage and argued the state had an interest in promoting procreation within marriage.
In his ruling, US District Judge Vaughn Walker permanently forbade enforcement of the same-sex marriage ban.
"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage licence," he wrote.
"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same-sex couples.
"Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

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The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California's obligation is to treat its citizens equally, not to "mandate [its] own moral code." Id (citing Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992)). "[M]oral disapproval, without any other asserted state interest," has never been a rational basis for legislation. Lawrence, 539 US at 582 (O'Connor, J, concurring).

Tradition alone cannot support legislation. See Williams, 399 US at 239; Romer, 517 US at 635; Lawrence, 539 US at 579.
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. See FF 78-80.

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage:
For a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. FF 79-80.

The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. FF 79-80; See PX0016 Video, Have You Thought About It? (video of a young girl asking whether the viewer has considered the consequences to her of Proposition 8 but not explaining what those consequences might be).

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