BREAKING: Prop. 8 is unconstitutional

(Please sign our open letter to President Obama asking him to come out in support of full marriage equality.)

A victory for equality today. Judge Walker ruled that Proposition 8 violates the due process and equal protections clauses of Fourteenth amendment of the U.S. Constitution. Judge Walker stated that strict scrutiny should be applied when sexual orientation is implicated, but that Prop. 8 failed on the rational basis test (the lowest standard of review, which is the same standard used by Judge Trauro to declare DOMA unconstitutional.)

More details as they unfold.

We know one thing for sure: We’re heading to the Ninth Circuit Court of Appeals and the Supreme Court.

UPDATE: Here’s Judge Walker’s conclusion:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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.

The Judge did not issue a stay, as requested by the anti-gay forces. In the remedies, Judge Walker enjoined enforcement of Prop. 8:


Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

The decision has been posted at

On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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35 Responses to “BREAKING: Prop. 8 is unconstitutional”

  1. Since your clearly ignorant as you claim I am.

    Hey genius, two words into your screed and you used a word wrong. Heh.

    It’s people like you who resort to name calling that are clearly agenda driven and not seeking the best interest of the gay community.

    Okay, I’ll make you a deal: I quit calling you names, and you quit expect me to live as a legal outcaste.

    “Your solution” that purports to create a separate but equal institution is hardly “the best for everyone.” It’s best for you and people like you.

    Are there any other areas of law you’d like to exclude gay people from? Would you be happier if gay people could enter contracts but those contracts should be called something else? And gay people should be able to draw up wills, but they should be called something else?

    Why? What possible sense is there in creating two parallel bodies of law, if they are identical? The answer, of course, is that they’re not identical. One is marriage, and one is not. If you can’t understand why that’s important, please review my earlier post.

    I don’t want to tear down the religious establishment. I trust them to tear down themselves. I don’t give a shit about how people practice religion. I really don’t. But you need to keep your theology out of my government.

    Basic research will show that marriage existed before Christianity. So no, it was not the original purview of the church.

    WHY was prop 8 put on the ballot. It was put on the ballot by a Christian pastor…in an effort to protect the church from being REQUIRED to perform marriages between same sex couples who could SUE under the June 16 2008 ruling handed down by the Supreme Court of California…[that] paved the way for law suites [sic] as it afforded no protections to churches who refused. Look it up, it’s fact. You can’t spin it. Maybe you should do a little research yourself before you spout off nonsense.

    LOLWUT! Wow. That was the dumbest thing I’ve read all week.

    The in re Marriage Cases decision afforded no protections to churches who refused to marry gay couples because churches aren’t required to marry anyone. ANYONE. INCLUDING GAYS.

    But don’t take my word for it. Google an innocuous search string like “are churches required marry gay couples.” If you use that exact string you’ll get 104,000 hits that will all say exactly what I said.

    Okay, there may be a few nutjobs like you who refuse to be influenced by reality. But they’ll be spouting off some paranoid horseshit that has nothing to do with the state of the law.

    With your “solution” the debate would be far from dead. For example, recently the Hawaiian legislature passed a civil unions (not marriage) law. The governor who promised to sign domestic partnership legislation if it ever got passed nonetheless vetoed the law on the basis that it was “marriage by another name.”

    The real solution is equal access to civil marriage. Period.

    Now, if you really, really don’t want gay marriages performed in your church, by all means, join a congregation that forbids it. There’s an embarrassment of choices.

  2. Thelibra001 says:

    Since your clearly ignorant as you claim I am. It’s people like you who resort to name calling that are clearly agenda driven and not seeking the best interest of the gay community. My basic solution is best for everyone and STILL grants same sex couples the same protections and rights under the law. To suggest otherwise or hijack a religious ceremony and term only indicates how radical you are and indifferent to the rest of us who just want equality. Your agenda is not equality or justice as you claim but your remarks and lack of knowledge suggest you simply want to tear down the religious establishment. Churches have the right to exist and practice anyway they see fit. That’s called a FIRST AMENDEMENT right of Freedom of Religion.

    Basic research will find Marriage was first used as a CHURCH ceremony. Governments LATER adopted it for the reasons I originally cited and you later reiterated. The definition and practices have evolved over the generations. To cite the modern definition and/or practices as the only definitive fact is short sighted. Your using selective facts which also proves your agenda driven.

    WHY was prop 8 put on the ballot. It was put on the ballot by a Christian pastor from San Diego not the Mormon church as widely reported in an effort to protect the church from being REQUIRED to perform marriages between same sex couples who could SUE under the June 16 2008 ruling handed down by the Supreme Court of California based on an equal protection argument and ended in November 5, 2008 with the passage of Prop 8. That ruling by the State Supreme court paved the way for law suites as it afforded no protections to churches who refused. Look it up, it’s fact. You can’t spin it. Maybe you should do a little research yourself before you spout off nonsense.

    Now… I think both sides are attacking this issue in the wrong way. I wasn’t trying to pick a fight, but point out that the only solution to a CLEARLY RELIGIOUS issue is to compromise and accept a different term with the same rights under State and Federal law. That is not a big deal and if you suggest otherwise your not thinking in the interest of the affected on either side. The current way both sides are approaching the issue, it will NEVER get settled, and will go back and forth for generations with no solution.

    Repealing prop doesn’t make the previous law, law again. The whole process starts over. It’s a joke and with my basic solution the debate would be dead, but no, people like you don’t want a real solution, and frankly I don’t know what you want, but it’s not equality and justice for us. SHAME ON YOU!!!

  3. Since you’re clearly ignorant on the topic, and incapable of doing independent research, I’ll attempt to explain the issues, (although I’m sure it’ll be futile.)

    Marriage is not inherently religious. It is a legal contract establishing the legal fiction that two unrelated people are next-of-kin. The legal status marriage establishes is called “spouse.”

    It may help you to understand that “citizen” is also a legal status. So is “felon” and “minor.” Legal status is binary: you are or you aren’t. There’s no “quasi-citizen” or “semi-minor.”

    Without marriage, there is no spouse. You either are, or aren’t a spouse. Participants in civil unions are not spouses. Participants in domestic partnerships are not spouses. Need I belabor this point?

    Legal status is critical to establishing an individual’s legal rights. “Spouse” is a particularly beneficial legal status establishing over 1,000 federal rights, privileges, immunities, benefits and obligations that are not available to people who are not legally a “spouse.” There is another huge bundle of right afforded to spouses at a state level.

    Spousal status is portable, and valid wherever one travels. This is not true of civil unions or other lesser arrangements.

    Are you starting to understand why marriage isn’t just a word?

    Marriages typically are required to be solemnized in some sort of ceremony, typically called a “wedding.” Many people choose to have clergy solemnize the wedding ceremony, but this is not a legal requirement.

    Marriage is INHERENTLY a civil legal arrangement. That is why the clergy says, “by the power vested in me by the state of ______ …” That is why you go to a judge to get a divorce, not a bishop.

    Progress will not be achieved by pretending that Christianity owns marriage. It never did. It doesn’t now. And only idiots want that to be the case in the future.

    Any church can decline to marry any couple for any reason. Are Catholics required to bless the marriages of Jews? No. Never have been. Can an AME church refuse to bless the union of a white couple? Absolutely.

    Likewise, no proposed or enacted SSM equality laws affect the existing ministerial exception doctrine or compel any church to solemnize anyone’s marriage. Nor do they provide any lever by which to sue or strip away favorable tax treatment.

    If you believe this to be true, you’ve been lied to, and you didn’t bother to fact-check the liar at issue.

    Equality is not a selfish and radical agenda. It is the definition of justice. It is quintessentially American.

    It’s really a shame you think otherwise.

  4. Thelibra001 says:

    Your response only reinforces the last statement by emotional radicals that seek no real justice or equality and hinders the progress could be achieved if done correctly. But no, you would rather keep the fight up to serve your own selfish and radical agenda. It’s really a shame when you think about it.

  5. You forgot the evil JOOZ.

  6. Their tears are delicious.

  7. That is not a legal argument, it is not supported by history or fact, and your “solution” is equal parts wrongheaded and unoriginal.

    But other than that, the rest of your post is utterly ridiculous.

  8. Thelibra001 says:

    I hope you folks realize this was a tactic. They didn’t vigorously defend Prop 8 for one reason. They want it to end up in the Supreme Court where they will argue….

    “Marriage is a religious ceremony and always has been.
    It was adopted by governments as a way of identifying who is family for the purposes of settling disputes, dividing estates and proving family status.

    If we force churches into the position of choosing weather to perform ceremonies by dictating they must perform ceremonies to individuals which conflicts with their religion or face law suites and or tax exempt status cancellation then by doing so will infringe on the churches first amendment constitutional right to freedom of religion.”

    I say, to end the debate there is a very simple solution. Since marriage is a religious ceremony leave it to the churches and create another term such as “Union” or something with the EXACT same rights and privileges (no more or less) as the term marriage grants under all state or federal laws. Churches keep performing marriage’s and States Judges or designee’s will perform unions. This would nullify the entire fight over the term marriage and make them equal under the law (which is what they appear to be fighting for). If that is not enough, then they don’t want equal rights but tear down the concept or sanctity of marriage and attack the religious establishment.

    This argument will cause serious difficulty for the Supreme Court.

  9. Brian says:

    As tedious as it can seem, it is crucially important to the individual self-esteems of the readers, to read the opinion it its entirely.

    The opinion has real science. Please read this most historical account of what it means to be an American.

  10. Guest says:

    Oh, it’s gotta be California literally breaking apart… a la “Escape from LA.”

  11. Guest says:

    Their argument (though I believe they’re ignorant assholes for making it) makes SOME sense: if the ruling is reversed, then every same-sex marriage that happens between now and then will be invalid, which could cause a bit of a backlash.

    *shrug* I’ll take the chance.

  12. Keith says:

    That’s how I understood it too but from what I was told, gays will not be allowed to marry until the appeal is over. Hopefully it won’t take too long but the anti gay fanatics will surely drag it out as long as they can.

  13. Blueflash says:

    Thanks for the information. But why will an emergency stay overruling Walker’s denial of a stay necessarily be successful?

  14. Michael says:

    ANOTHER GREAT DAY TO BE A RESIDENT OF SAN FRANCISCO! Here are links to SF/Bay Area TV stations to check online for local coverage of decision and events including a rally in the Castro, scheduled to begin at 5:00 Pacific time tonight, which should include some great speakers followed by march to SF City Hall where
    California’s fight began:

  15. Blueflash says:

    Frankly, as of late, it’s been seeming like safety in numbers from a gay point of view.

  16. tomtallis says:

    Judge Walker has issued a two day stay. The proponents waited until yesterday to file their motion for a stay and Judge Walker has issued a two day stay and given the parties until Friday to file their arguments. Then he will decide whether to stay his decision or not.Having said that, if he decides NOT to stay his decision, expect an emergency request for a stay to be filed with the Ninth Circuit within hours and expect it to be granted.

  17. Blueflash says:

    That’s what I want to know right now for sure. It seems, but I’m not sure, that Judge Walker didn’t grant the stay requested by the haters. I think that means gay people can begin marrying immediately in California.

  18. Butch1 says:

    I love curses, was this an Irish one? ;-)

  19. Butch1 says:

    Does this mean gays and lesbians can continue marrying from this point on in the state of California? If the authorities are not allowed to enforce the discriminatory law, it seems gays can marry again. Any thoughts on this whilst it is being appealed?

  20. Gridlock says:

    Let them drown in the ocean of their tears and take their blighted children along.

  21. Keith says:

    I can’t believe we finally won one. The bigots will now turn purple and spew their wretched hate at us.

  22. cowboyneok says:


  23. cowboyneok says:

    That makes me happy in a schadenfreude kinda way.

  24. cowboyneok says:

    Until we are we will continue to have our rights voted on by the supposed “cool kids.”

  25. Keith says:


  26. Michael @ says:

    This is one of those times when it’s great to live in San Francisco. Sadly, some Gay Org PARASITES are already trying to take their bite of this wonderful event.

    The WORTHLESS, LUDICROUS Courage Campaign has already e-blasted people with requests for donations to allegedly pay for their:

    “unprecedented online storytelling project to bring the Prop 8 trial into the lives of the American people and transform the debate over marriage equality.”


    AS IF any “moveable middle” person is going to take the time to read a transcript or attend a “dramatization” of a trial that doesn’t involve murder and/or sex scandal.

    When someone wonders why we’re still not free 41 years after Stonewall, think of self-serving idiots like these!

    As for the plaintiffs and their attorneys and funders and the judge [and everyone who’s been involved in the fight for decades]: BRAVO!!!

  27. KarenMrsLloydRichards says:

    Married gays! Mexican birth tourism babies! Muslim Mosques! Black dudes with guns! Mexican drug gangs!

    So many to hate, so little time and attention span!

  28. Mike_in_the_Tundra says:

    I doubt many are surprised at the ruling. What I’m looking forward to is seeing the whole conclusion.

  29. Guest says:

    It will be an errant steroid from Ahnold’s butt.

  30. Guest says:

    Moral disapproval alone is an improper basis on which to
    deny rights to gay men and lesbians. The evidence shows
    conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians
    without any rational justification, Proposition 8 violates the
    Equal Protection Clause of the Fourteenth Amendment.

  31. Daftpunkydavid says:

    so we have not been found a suspect class?

  32. UnitedHealthDeathPanels says:

    just checked free republic
    they sound like they are literally crying

  33. Ninong says:

    Let the outrage from the wingnuts begin! LOL

    I may have to watch the 700 Club just to see what disaster Pat Robertson predicts will strike San Francisco now. Will it be a tsunami, an earthquake or an errant asteroid?

  34. Ninong says:

    Great first post!

  35. UnitedHealthDeathPanels says:

    Suck it Mormons.

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