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Prop 8 Decision Due Today

August 4, 2010

It’s a big day in California and around the country.  Judge Vaughn Walker will release the ruling in the Prop 8 case, spearheaded by Ted Olson and David Boies.  The decision is expect to come between 1pm and 3pm PDT (4pm and 6pm EDT).  What does this mean?  Chris Geidner at MetroWeekly provides a helpful FAQ up with minimal legalese.  The entire piece is worth a read, but here’s one of the eight questions:

6. The scope of the ruling?

There are two main claims made by the plaintiffs in the case: (A) Proposition 8 violates the Equal Protection Clause of the U.S. Constitution as an impermissible classification based on sexual orientation (or sex) and (B) Proposition 8 violates the Due Process Clause of the U.S. Constitution as an impermissible restriction on the fundamental right of marriage. In each there are subsets and secondary questions, the resolution of which are important both in California and, if upheld on the same basis on appeal, elsewhere.

A. Under equal protection, the scrutiny of classifications based on sexual orientation

One of the first issues for the judge to decide is what level of scrutiny applies to classifications — such as Proposition 8 — based on sexual orientation. The plaintiffs argued that a heightened scrutiny should apply; the proponents argued that rational basis would suffice. If Judge Walker decides that heightened scrutiny should apply, then it would be more difficult to uphold Proposition 8 as constitutional because it would have to be proven to serve an important governmental objective and be substantially related to that objective. If a rational basis would suffice, then the amendment merely needs to be found to be rationally related to a legitimate government interest.

The discussion at trial about the political powerlessness of gays and lesbians, the history of discrimination and the immutability of sexual orientation all are factual considerations that will go into Judge Walker’s conclusion about the level of scrutiny under which the case will be considered.

Regardless of the decision, however, the plaintiffs argued that Proposition 8 should be struck down. The plaintiffs argue that there was not even a rational basis that supports Proposition 8.

B. Under due process, the definition of “marriage,” in terms of its status as a fundamental right

The U.S. Supreme Court has found marriage to be a fundamental right previously, and the parties in this case aren’t asking Judge Walker to change that. They do, however, differ on their view of what the definition of “marriage” is. As has played out in ballot campaigns, the proponents argue that the very definition of marriage means only a man and a woman. As Olson put the plaintiffs’ argument at the closing, it “isn’t changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.” In many ways, the way marriage is defined here almost inevitably leads to one result or the other.

If Judge Walker concludes it is expanding the definition, then he is unlikely to decide that “same-sex marriages” are a fundamental right. If, however, he concludes that Proposition 8 restricts who can marry, then he is likely to decide that “marriage” is a fundamental right from which same-sex couples cannot be excluded.

The impact of this case could vary depending on the nuances of Judge Walker’s ruling, but regardless of degree, it’s significant.  In response, there are already rallies being planned around the country.  Rex Wockner has a frequently updated list here.

The Courage Campaign is also covering this at the Prop8TrialTracker.

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