A CLEAR CONSTITUTIONAL RIGHT

By H. N. Burdett

With near certainty the fate of California's ban on same-sex marriage will be dumped onto the robed laps of the United States Supreme Court. That destination was obviously on the mind of Vaughn Walker, the chief judge of the Federal District Court in San Francisco who earlier this month struck down Proposition 8, the public referendum restricting marriage in that state to one man and one woman.

In 2008, 5.5 million California voters, representing 52 per cent of the total vote, approved the prohibition against marriage between gay men and between lesbians. Following a three-week trial, however, Judge Walker ruled that because the ban "prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

"The evidence at trial regarding the campaign to pass Proposition 8," the judge wrote, "uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples."

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," Judge Walker ruled. He further stressed: "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."

Dalia Lithwick observed in Slate, the online news magazine, that Judge Walker's decision liberally cites Associate Supreme Court Justice Anthony Kennedy, who is expected to cast the decisive vote when the case almost inevitably reaches the nation's highest court. Lithwick counted seven citations of Justice Kennedy's 1996 opinion in Romar v. Evans, striking down an anti-gay ballot initiative, as well as eight citations to his 2003 decision in Lawrence v. Texas, overruling the Lone Star state's anti-gay sodomy law. These citations do more than validate Judge Walker's cleverness; they attest to his brilliance.

Walker quoted Kennedy as saying "it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," that "'moral disapproval, without any other asserted state interest' has never been a rational basis for litigation." To which the California judge added: "Animus towards gays and lesbians or a simple belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate."

Judge Walker refused to base his decision on a challenge to the 2008 California ballot initiative. He instead insisted on a full trial. Walker also sought to have the trial televised, but was overruled. His 136-page ruling lists dozens of "findings of fact," including: same-sex marriage does not have much affect on opposite-sex marriage; marriage laws have changed over time, and marriage serves many purposes beyond procreation.

Both the Los Angeles Times and the San Francisco Chronicle have reported that Judge Walker is gay. He has never confirmed nor denied these reports. But in private practice he represented the U.S. Olympic Committee in opposition to an event known as the Gay Olympics. Consequently, when President Reagan nominated Walker to the federal bench in 1987, his appointment was blocked in the Senate Judiciary Committee by Democrats, led by Rep. Nancy Pelosi, with the help of gay advocacy groups. Two years later, he was again nominated by President George H. W. Bush and this time he was approved by the Senate. As a federal judge, Walker has ruled against gay plaintiffs or defendants when he felt the law required it.

While Judge Walker appears to have directed the core of his decision to strike down Proposition 8 specifically to the attention of Justice Kennedy, it is well past time for legal discrimination based on sexual orientation to be as much a part of our past as slavery. A unanimous ruling by the Supreme Court for overturning California's ban against same-sex marriage, unlikely as this may be, would be not only the right thing to do, it would be a large nail in the coffin of discrimination -- reaffirmation of what this nation was meant to be about.