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Associated Press/Photo by Eric Risberg

Prop 8 overturned

Marriage | A federal judge determines that California's voted upon gay marriage ban is unconstitutional

U.S. District Court Judge Vaughn R. Walker has overturned Proposition 8, California's constitutional amendment banning same-sex marriage. The ruling, which chided Proposition 8 proponents for calling so few witnesses, concludes a trial that began in January, and it continues a fight that both sides promise they will take all the way to the U.S. Supreme Court.

The plaintiffs, which were two gay couples represented by famed attorneys Theodore Olson and David Boies, argued that Proposition 8 violated their rights under both the Constitution's Due Process and the Equal Protection clauses. Walker sided with the plaintiffs on both counts-a decisive win for same-sex marriage proponents, who argued in the case that the "freedom to marry the person of one's choice is a fundamental right."

Proposition 8 proponents argued that a ban on same-sex marriage merely maintained California's definition of marriage as heterosexual and affirmed the will of California citizens, who voted for the measure in November 2008. Proponents argued that marriage has a biological basis based on heterosexual reproduction and that gays and lesbians are not a powerless political minority suffering discrimination.

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In his 136-page ruling, Walker said that while proponents of Proposition 8 said they would prove 23 adverse effects of same-sex marriage, the proponents' witness, David Blankenhorn, "provided no credible evidence to support any of the claimed adverse effects" and his testimony "should be given essentially no weight." Walker also faulted the proponents for supplying just two expert witnesses while the plaintiffs supplied eight lay witnesses and nine expert witnesses.

Walker's ruling concluded, "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."

Chris Clark, pastor of East Clairemont Southern Baptist Church in San Diego and a Proposition 8 defender, said that the witnesses were intimidated by the possibility of televised proceedings. (Walker had decided to televise the trial but the U.S. Supreme Court eventually blocked his decision.) Clark said that after the backlash following the November 2008 election, "there were a number of witnesses on the Yes on 8 side that were simply fearful of coming in and providing testimony with cameras on."

The case certainly will be appealed to the 9th U.S. Circuit Court of Appeals. Even before Walker handed down his decision, proponents of Proposition 8 filed a request asking that he stay the judgment pending appeal, arguing that denying a stay would cause "irreparable harm." Walker has requested that both sides submit written arguments by Aug. 6 on that issue.

Clark said he believes Walker will not likely grant a stay, and if he doesn't, proponents will appeal to the 9th Circuit and possibly Justice Anthony Kennedy of the U.S. Supreme Court.

Clark denied arguments that gays and lesbians are stigmatized: "There is no fear and there is no hatred toward this group. We feel that the definition of marriage should be decided in the public arena and that the public voters should be deciding it in a fair election. It should not be decided by one individual."

Clark added that there's one facet of the case that both side agree on: "That it's ultimately going to wind up in Washington, D.C."

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