Perry v. Schwarzenegger federal trial court decision mandating same-sex marriage in California

[Wardle]

On August 4, 2010, a federal district judge (trial judge Vaughn Walker) in San Francisco, California entered a very controversial judgment holding that an amendment to the California state constitution (Proposition passed by voters in 2008 (and identical in language to an earlier ballot initiative passed by voters in 2000) is unconstitutional under the U.S. Constitution (violating the equal protection and due process clauses) and cannot be enforced. The state marriage amendment had defined marriage as the union of a man and a woman; thus, it prohibited same-sex marriage. Similar amendments have been adopted in thirty (30) states - sixty percent of the American states; by contract, five states of the fifty American states have legalized same-sex marriage. This new judicial ruling effectively mandates legalization of same-sex marriage in California and, if it is followed by other courts, it could have the same effect to legalize same-sex marriage by judicial decree in all other states.

The decision in Perry is controversial as every other federal court to consider the question, and the great majority of state top courts to consider the question, have rejected similar or identical arguments. But the result is not unexpected; the trial was conducted like a political show trial in a very biased and intimidating environment (scaring away most of the witnesses who were prepared to testify in support of the marriage amendment), and the weak opinion of the court is clearly one-sided and partial. The state officials declined to defend the marriage amendment because politically they favored same-sex marriage even though the citizens have twice, by substantial margins, rejected same-sex marriage. Now the same state officials who like having the judge do what they could not do in legalizing same-sex marriage, and are openly undermining defense of teh state marriage amendment. However, the case is far from over. Despite the lack of responsible defense by the public official, several interveners will appeal the decision of the trial judge to the Ninth Circuit Court of Appeals, and eventually to the Supreme Court of the United States.

Lynn Wardle
wardlel@law.byu.edu