- Judge Vaughn Walker of the Northern District of California recently ruled that the U.S. Constitution gives same-sex couples the right to marry.
- The opinion rested first on the Due Process Clause, finding that marriage is a fundamental right and concluding that our contemporary understanding of marriage encompasses same-sex marriage.
- The opinion also rested on the Equal Protections Clause and rejected all proffered state interests in limiting same-sex marriage as irrational.
- Importantly, the opinion relied not on conclusions of law but instead on appeal-resistant findings of fact.
- Though a backlash to granting same-sex marriage rights is possible, the lack of legitimate state interests makes the backlash less likely when compared to the backlash against abortion rights.
This article is by Keith Southam, a 3L from Chicago-Kent.
Proponents of same-sex marriage scored a major victory recently in the federal Proposition 8 case. Perry v. Schwarzenegger. No. C 09-2292 VRW (N.D. Cal. Aug. 5, 2010). In the opinion, Judge Vaughn Walker concludes that the United States Constitution guarantees same-sex couples the right to marry. His decision is remarkable because of what it concluded, what it did not conclude, and its prospects going forward.
- A challenge to California’s Proposition 8, which took away same-sex marriage, is currently in federal court, which must decide whether and to what extent the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution protects gay men, lesbians, and bisexuals.
- This group is currently protected from action based on animus under Romer v. Evans under the Equal Protection Clause.
- Hopefully, the District Court, then the Ninth Circuit, and probably the U.S. Supreme Court will be willing to extend the Equal Protection Clause, providing protections from actions based on prejudice, misinformation, and scaremongering.
This article is by Keith Southam, a 2L from Chicago-Kent.
Recently, Illinois state Representative Greg Harris came to Chicago-Kent to speak about a bill he sponsors to allow civil unions in the state of Illinois. Next door, Iowa recently celebrated one year of permitting same sex marriage. And not long ago, same-sex couples in the nation’s capital started marrying. In contrast to these jurisdictions, California took a notable step in the opposite direction came in the fall 2008 election cycle when a slim majority of Californians voted to prohibit same-sex marriage. California’s ban took the form of a referendum, Proposition 8, that rolled back rights the California Supreme Court had previously granted. Currently, a challenge to that referendum is pending in the Northern District of California. This sort of back and forth is not uncommon. Read more…