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social sciences

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Proposition 8 (California)  
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Judge Walker declared that "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."

Judge Walker endorsed the contention of Olson and Boies that the ban on same-sex marriage violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

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In reaching this conclusion, he found that, although sexual orientation is entitled to heightened scrutiny, Proposition 8 fails to survive even rational basis review. He further found that the ban discriminates on the basis of sex as well as sexual orientation. He described domestic partnerships as a "substitute and inferior institution."

Judge Walker emphatically rejected the defendants' argument that the purpose of marriage is procreation, observing that "states have never required spouses to have an ability or willingness to procreate in order to marry."

He described the exclusion of same-sex couples from marriage "as an artifact of a time when the genders were seen as having distinct roles in society and in marriage," and declared, "That time has passed."

The judge dismissed the idea that a referendum of voters is somehow sacrosanct. The referendum's outcome was "irrelevant," he said, because "fundamental rights may not be submitted to a vote."

In his findings of fact, Judge Walker established that same-sex couples are identical to opposite-sex couples in their ability to form successful marital unions and raise children.

The editorial page of the New York Times described Judge Walker's decision as both "an instant landmark in American legal history" and also "a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults."

Appeal to the Ninth Circuit

Judge Walker's historic ruling was quickly appealed to the Ninth Circuit Court of Appeals. On August 16, 2010, the Ninth Circuit Court of Appeals stayed Judge Walker's decision pending review by the appellate court. It expedited consideration of the appeal and ordered that briefs address the question of whether proponents of Proposition 8 have standing to appeal.

On December 6, 2010, a three-judge panel of the Ninth Circuit heard oral arguments in the case. The judges asked both sides to discuss not only the substantive issues at dispute, but also the question of standing.

The standing issue was important because neither the Governor nor the Attorney General of California believed Proposition 8 to be constitutional and refused to appeal on behalf of the state.

During the December 6 hearing, it appeared that the panel was searching for a way to render a narrow ruling applicable to the particular set of circumstances in California rather than to issue a broad ruling about marriage rights generally.

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