The U.S. District Court judge hearing the challenge to California’s Proposition 8 referendum banning gay marriage has just ruled it unconstitutional and granted a permanent injunction against its enforcement.  Read the entire Order (138 pages of it) here. I haven’t read it yet, but I hear it found the law unconstitutional on both due process and equal protection grounds, and specifically also noted in the findings of fact the “no harm no foul” effect of the 18,000 gay marriages legally performed in CA before the passage of Prop 8. 

How will this impact us here in Georgia? First, we can bank on Karen Handel and Nathan Deal once again scrambling to out-homophobe one another in the 6 days before the Republican gubernatorial primary runoff.  But taking a longer view, the case is undoubtedly headed up the appellate court chain, likely to the Supreme Court given that the next stop will be the notoriously liberal 9th Circuit who will probably uphold the ruling.  If California’s anti-gay marriage amendment is unconstitutional, who’s to say all those other ones enacted around the country in 2002-2006 aren’t as well…including Georgia’s, which passed with 76% of the vote in 2004?

More importantly, will anyone have the cojones to file suits in other states with similar state constitutional amendments to challenge them too? Will anyone try this in Georgia? David Boies and Ted Olson appear to have lit the path for others to boldly follow…


16 Responses to CA “Prop 8” Gay Marriage Ban Ruled Unconstitutional

  1. JMPrince says:

    And a priceless commentary from Andy Borowitz: 70% of Existing Marriages, already likely Gay!

  2. JMPrince says:

    And yet another reason why the Rethugs dearly want to do away with the 14th Amendment protections here, as the witty Laura Flanders notes here on ‘The F Word’: [Via]:

    And yes, of course it made a difference that Judge Walker is gay. It made his arguments painstakingly cautious, and well & closely argued. JMP

  3. Jason says:


  4. Sara says:

    Volokh Conspiracy has many analyses, some fairly negative. Probably only interesting to lawyers who read a lot of constitutional cases, but they do give a sense of where the points of attack will be on appeal.

  5. PaulaG says:

    Has anyone read a critique of the ruling that was more substantive than “agh! activist judge!”? The only intelligent commentary I’ve seen so far, from right and left, has been pretty impressed with the ruling.

  6. Sara says:

    It would definitely be fun. I wish I could get my firm to sign on for things like this. Alas, no.

  7. MouthoftheSouth says:

    So, anyone HERE feel like filing it? I think it might be fun. Anyone in?

  8. Sara says:

    I actually think they have a decent chance of prevailing on a 5-4 split with Kennedy the swing vote, IF the SCOTUS that actually decides the issue is the current court (with Kagan instead of Stevens). Kennedy has been on the right side of the last 2 big gay rights cases (Lawrence and Romer.) Now, if the case takes too long to get there and a Republican wins in 2012 and gets to replace someone like Ginsburg, then it will be a much tougher battle.

    However, Erwin Chemerinsky is predicting that the Massachusetts case that successfully challenged the DoMA will probably be the first one to reach SCOTUS. And how that case comes down will likely do a lot to shape the state of precedent by the time the Prop 8 case arrives there.

    • Jen B. says:

      Chemerinsky. I’m so tired of that guy. I have flashbacks to law school and everyone talking about him like he’s God. In any event, he’s probably right because Prop 8 still has to wind through the appellate system.

  9. Sara says:

    I think he said that yesterday, but he was referring to how many he was able to get in Bush v. Gore…

  10. Jen B. says:

    I read somewhere that Ted Olson thinks he can get five votes from the Supreme Court.

  11. Mel says:

    Wonderful news today! Made my week.

  12. PaulaG says:

    Of the 138 page ruling, 110 pages are devoted to factual findings. Very smart approach.

  13. PaulaG says:

    In anticipation of the inevitable cries of bias and judicial activism, here’s an interesting tidbit about Judge Walker from Wikipedia: “Walker’s original nomination to the bench by Ronald Reagan in 1987 stalled in the Senate Judiciary Committee because of controversy over his representation of the United States Olympic Committee in a lawsuit that prohibited the use of the title “Gay Olympics”. Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged “insensitivity” to gays and the poor. Years later, the San Francisco Chronicle noted the irony of this opposition due to Walker’s sexual orientation.”