Bulletin 8 September 2010: The California State Supreme Court has dismissed the suit of Pacific Justice Institute (see below) without comment. “It will now be up to a federal appeals court, and possibly the U.S. Supreme Court, to decide whether Prop. 8’s sponsors have legal standing – the right to represent the state’s interests in defending one of its laws” (San Francisco Chronicle Report). In the meantime, the stay on the performance of gay marriages in California remains in place, pending outcome of appeals.
Bulletin 1 September 2010: The Pacific Justice Institute has petitioned the Third District Court to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, defendants in the “Prop 8 Case,” who happen to support the ruling in favor of the plaintiffs in the case, to defend Proposition 8, California’s gay marriage ban in court. Proposition 8 sponsors have appealed the ruling, but there is some concern over whether they have standing to do so, since they are ordinary citizens and not responsible for enforcing the law. The Institute argues that government officials do not have discretion to enforce only those laws with which they agree. Governor Brown is on record as asserting that he is not obligated to defend a measure that he judges to be an unconstitutional violation of Californians’ civil rights.
Bulletin 16 August 2010: A three-judge panel of the Ninth Circuit Court of Appeals has overruled the decision of the lower court in its post-decision ruling in the case Perry et al. v. Schwarzenegger et al. and put further same-sex marriages on hold pending the outcome of the appeal (see earlier developments below).
Bulletin 12 August 2010: Judge Vaughn R. Walker has announced today that as of August 18, same-sex couples will once again be allowed to marry in California. “Based on the trial record, which establishes that Proposition 8 violates plaintiffs’ equal protection and due process rights, the court cannot conclude that proponents have shown a likelihood of success on appeal,” wrote Judge Walker in issuing this ruling. Same-sex unions are permitted in five other U.S. States – Massachusetts, Connecticut, Vermont, Iowa, and New Hampshire – as well as in the District of Columbia. Civil unions are permitted in New Jersey. In July 2010 the Washington State Supreme Court ruled, 5-4, that the state constitution does not guarantee a right to same-sex marriage. That decision came after 19 gay and lesbian couples sued to overturn Washington’s Defense of Marriage Act, a 1998 law limiting marriage to heterosexual couples.
August 2010 – San Francisco
In a strongly worded opinion which accepted the plaintiffs’ arguments and rejected all defense claims, U.S. District Chief Judge Vaughn R. Walker has struck down California’s Proposition 8, the ballot measure banning homosexual marriage, which was passed by a narrow margin of California voters in November 2008. Walker’s 4 August 2010 ruling asserts that the measure violates the federal constitutional rights of gays and lesbians to marry the partners of their choice. Proposition 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” said Judge Walker. “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 Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.” The decision, made in Perry et al. v. Schwarzenegger et al., a case brought by two homosexual couples in San Francisco, has been appealed by the organization Protect Marriage to the Ninth Circuit, which has set a deadline of November 12 for written arguments. Both parties have expressed intentions of taking the case to the United States Supreme Court.
It is generally felt by religious conservatives that, as asserted by Brian Brown, president of the National Organization for Marriage, “this ruling, if allowed to stand, threatens not only Prop. 8 in California, but the laws in 45 others states that define marriage as between one man and one woman.” Judge Walker has said that he would consider waiting for the outcome of the appeals process before he makes his opinion final, requiring the state of California to stop enforcing the ban. Meanwhile lawyers for Governor Arnold Schwarzenegger, Attorney General Jerry Brown (two of the original defendants in the case who nevertheless side with the plaintiffs), two gay couples, and the city of San Francisco all filed legal motions Friday asking Judge Walker to implement his ruling immediately.