Reactions to Prop 8 Defeat

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We came to court to seek for Kris, Sandy, Paul and Jeff the same right to marry that all other Americans enjoy, and to ensure that they receive equal protection under the law as guaranteed to every American by the Constitution. Through its decision today, the court has acted in the best traditions of a legal system established to uphold the Constitution and the principles of equality upon which this nation was founded. On no less than 14 occasions, the Supreme Court has held that marriage is a fundamental right. This decision recognizes that Proposition 8 denied the plaintiffs, and tens-of-thousands of other Californians, that fundamental constitutional right and treated them unequally.

– Attorney Ted Olson, who brought the suit to overturn Prop 8.

In terms of the trial itself, it was really a tour de force. There has never been a full-blown evidentiary trial on whether or not same-sex couples have a protected constitutional right to marry. And the plaintiffs’ side, with Ted Olson and David Boies, put on a really magnificent array of expert witnesses, addressing in very great depth the real personal, social, and psychological harm caused to same-sex couples by not being able to have the status of marriage and by being singled out and stigmatized as inferior and unequal. In the decision, Judge Vaughn Walker literally made eighty separate findings of fact based on all of the testimony that had been presented to him, and many of those findings centered on the very serious harms caused by Proposition 8.

– Shannon Minter
Legal Director of the National Center for Lesbian Rights
Democracy Now!
August 5, 2010

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. At the same time, it provides an opportunity for all Californians 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. Today’s decision is by no means California’s first milestone, nor our last, on America’s road to equality and freedom for all people.

– California Governor Arnold Schwarzenegger

Judge Walker’s ruling recognizes what we have long seen as obvious: denying some couples the ability to marry because of the sex of the individuals involved is discriminatory. OutFront Minnesota also views it simply as bad public policy that serves no purpose, and we are encouraged that 4 of the 5 leading major-party candidates for governor in Minnesota strongly agree. The positive ruling from San Francisco, combined with the recent decision by a federal judge in Boston invalidating a key part of the federal ‘Defense of Marriage’ Act, reflect the fact that arguments attempting to defend continued exclusion of same-sex couples from marriage are drifting further away from the mainstream of legal thought.

– Phil Duran
Legal Director, OutFront Minnesota

Today’s ruling by U S District Court Judge Vaughn R. Walker striking down the voter approved Proposition 8 ruling in California prohibiting same sex marriage-in that state, is both a disappointment and a challenge to the traditional and culturally acknowledged definition of marriage as being between one man and one woman. It is a sad and almost incomprehensible event for the court to deny both the Judean-Christian and natural law definition of one man one woman marriage, particularly after the people of the State of California had voted as free and responsible citizens to support it...

. . . Having failed to change the definition of marriage at the ballot box, proponents of same sex marriage have shifted their strategies to using our courts to issue judicial fiats that will do so, corrupting the very meaning and role of marriage. As my fellow Bishop, Joseph Kurtz of Louisville, stated last month, “Marriage exists prior to the state and is not given to redefinition by the state. The role of the state is to respect and reinforce marriage.” And that means upholding marriage as a union between one man and one woman.

– Archbishop John C. Nienstedt
of the Roman Catholic Archdiocese of St. Paul-Minneapolis

There can be little doubt that Walker's argument will eventually win the day – whether you agree with his reasoning or not – though the current Supreme Court may not follow him. It is practically unimaginable that 50 years from now this matter will have long been decided in favor of gay marriage.

And so what are the bishops and others who oppose civil same-sex marriage to do? One option is to protest until hoarse, but given the drift of public opinion and the lack of evidence from Massachusetts or anywhere else that same-sex marriage is somehow damaging to society, that course is not likely to have any effect in the civic arena.

– Bryan Cones
"Prop 8 Goes Down: Now What?"
U.S. Catholic
August 5, 2010

[President Obama] has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.

– White House Statement on Proposition 8

. . .[The Obama] administration . . . doesn't want to do something that could mitigate the current position – say that all marriages must convert to civil unions, thus underscoring church-state separation of the institution. Honestly, that’s more explosive an opinion to hold than marriage equality, but obviously there’s no political spine to take that belief public, as we’ve seen.

This tap dancing is enraging enough, but the fact that it is convoluted nonsense is depressing because this administration is bending over backwards not to offend an increasingly shrinking part of the American public, and looks more concerned about the voters he never had in the first place.

Why is separate-but-equal fine for gay and lesbian couples, Mr. President? What other constituencies are officially second-class citizens?

– Pam Spaulding
"Axelrod’s Headspinner on MSNBC: Obama Says Marriage is a State Matter"
Pam’s House Blend
August 5, 2010

. . . As Americans, our Federal Constitution guarantees the separation of church and State and today’s decision is a victory for our justice system and that the rights of a minority cannot be stripped away by the majority. Judge Vaughn Walker’s ruling also demonstrates the success of the Olsen Boies team in presenting the facts that there is no rational basis for withholding a marriage license to LGBT couples and that heterosexual and same gender couples are capable of creating healthy and productive marriages and families alike.

We are learning many things from this difficult and divisive issue: The day to day conversations with families, co-workers and neighbors that have been carried out by many of us and the organizations we support, are clearly bearing fruit.

. . . As people of faith, we pray that the witness of our relationships will continue to change hearts and minds and to finally heal the wounds that have demonized us and divided us on the issue of marriage equality.

– Rev. Canon Albert Ogle
"Integrity VP Albert Ogle's Remarks at San Diego Prop 8 Rally"
Walking With Integrity
August 4, 2010

This is a tyrannical, abusive and utterly unconstitutional display of judicial arrogance. Judge Walker has turned ‘We the People’ into ‘I the Judge.’

It’s inexcusable for him to deprive the citizens of California of their right to govern themselves, and cavalierly trash the will of over seven million voters. This case never should even have entered his courtroom. The federal constitution nowhere establishes marriage policy, which means under the 10th Amendment that issue is reserved for the states.

It’s also extremely problematic that Judge Walker is a practicing homosexual himself. He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity. The fundamental issue here is whether homosexual conduct, with all its physical and psychological risks, should be promoted and endorsed by society. That’s why the people and elected officials accountable to the people should be setting marriage policy, not a black-robed tyrant whose own lifestyle choices make it impossible to believe he could be impartial.

– Tim Wildmon
"Judge Walker is the Problem; Impeachment is the Cure"
The American Family Association
August 5, 2010

I’m still studying the decision . . . in Perry v. Schwarzenegger, which strikes down Prop 8 on both due process and equal protection grounds. I like a lot of the language, and the arguments, as a matter of rhetoric, common sense, and policy. There are some interesting twists on familiar arguments and, overall, the opinion is a pretty good compendium of a policy brief for same-sex marriage.

But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage.

– Dale Carpenter
"A Maximalist Decision, Raising the Stakes"
The Volokh Conspiracy
August 4, 2010

See also the previous Wild Reed posts:
Prop 8 Struck Down
The Facts

Recommended Off-site Links:
The Real Consequences of Gay Marriage - Michael A. Jones (Gay Rights, August 5, 2010).
The Cardinals Chirp About the Judge - Colleen Kochivar-Baker (Enlightened Catholicism, August 5, 2010).
NOM and the American Family Association Come Out of the Closet on Judge Walker - Colleen Kochivar-Baker (Enlightened Catholicism, August 6, 2010).