Written by Skeeter Sanders   

A Ruling Is Expected by the Fall on Lawsuit Challenging Federal Constitutionality of Voter-Approved Measure Barring Gay and Lesbian Couples From Marrying, But No Matter Which Way Judge Vaughn Walker Decides, a Final Showdown in the U.S. Supreme Court is All But Inevitable



By SKEETER SANDERS

As millions of lesbian women, gay men, bisexuals and transgenders prepare to march in celebratory pride parades all across the United States and around the world this weekend, many will be casting an eye on a federal judge in San Francisco as he prepares to issue a long-awaited ruling in a closely-watched constitutional challenge to California's voter-approved Proposition 8, which bars gay and lesbian couples from marrying.

Vaughn Walker, the chief judge of the United States District Court for the Northern District of California, heard closing arguments last week in Perry v. Schwarzenegger, which many legal experts predict will be a landmark case going all the way to the U.S. Supreme Court.

During the proceedings, Walker repeatedly pressed attorneys on both sides with pointed questions on what interest is served by the state determining who can and cannot marry and on the motivations of the voters in passing the measure.

California Governor Arnold Schwarzenegger, who is named as the defendant in the lawsuit, refused to defend the measure. State Attorney General Jerry Brown, who is the Democratic candidate to succeed the Republican Schwarzenegger in November's gubernatorial election, also refused to defend Prop. 8. As a result, several religious and conservative groups intervened in the measure's defense.

Defenders of Prop. 8 -- an amendment to the California Constitution -- argued that its purpose was to preserve marriage as "an institution intended to promote childbearing."

Opponents of Prop. 8 -- which passed with 54 percent of the vote in November 2008 -- countered with Loving v. Virginia, the landmark 1967 U.S. Supreme Court decision that declared marriage to be a fundamental constitutional right guaranteed by the Fourteenth Amendment and struck down laws in 16 states that barred interracial marriages.

A ruling is expected by the fall. But no matter which way Judge Walker decides, it will almost certainly be appealed, setting the stage for a final showdown in the Supreme Court.

OLSON: FEARS OF DAMAGE TO OPPOSITE-GENDER MARRIAGES UNFOUNDED

Former U.S. Solicitor General Ted Olson, the lead attorney representing two same-gender couples challenging Prop. 8, argued that claims of marriage being a tradition whose primary purpose is to bear children and that allowing gay and lesbian couples to marry damages the marriages of heterosexual couples are not sufficient grounds to bar them from doing so.

"'We have always done it that way' is a corollary to 'Because I say so,'" Olson told Judge Walker. "It's not a reason. You can't have constitutional discrimination in public schools because you have always done it that way," referring to government-imposed racial segregation in public schools that the Supreme Court outlawed in 1954.

COOPER: HETEROSEXUALS-ONLY MARRIAGE 'FUNDAMENTAL TO SURVIVAL OF HUMAN RACE'

Former U.S. Justice Department attorney Charles Cooper, the lead attorney representing religious and conservative groups that sponsored Prop. 8, countered that the primary purpose of marriage is the raising of children and that definition is "fundamental to the very existence and survival of the human race." He argued that "children do best when they are raised by their own mother and father."

Cooper denounced as a "slur on the seven million Californians who supported Proposition 8" the plaintiff's argument that "there is no way to understand why anyone would support Proposition 8, would support the traditional definition of marriage, except through some irrational or dark motivation."

BOTH SIDES IGNORE CHURCH-STATE IMPLICATIONS OF PROP. 8

Neither side addressed a broader constitutional issue raised by Prop. 8 and other laws that bar gay and lesbian couples from marrying -- an issue that The 'Skeeter Bites Report has raised repeatedly: The separation of church and state.

This column has argued again and again and again that Prop. 8 and all similar laws, including the federal Defense of Marriage Act of 1996, enshrine into state and federal law a religious doctrine that condemns homosexuality as a sin that must be suppressed -- a violation of both the Establishment of Religion Clause of the First Amendment and the Religious Test Clause of Article VI of the Constitution.

In the seven years since the Supreme Court fully decriminalized same-gender sexual relations in its 2003 Lawrence v. Texas decision that struck down the nation's last remaining anti-sodomy laws, there has been -- and is -- no legal justification whatsoever to continue to bar gay and lesbian couples from marrying, since their relationships are no longer illegal.

That point was made clear by no less an authority than conservative Supreme Court Justice Antonin Scalia, who, in his blistering dissenting opinion in the Lawrence case, wrote, "State laws against . . . same-sex marriage . . . [are] called into question by today's decision. The Court makes no effort to cabin the scope of its decision to exclude them from its holding."

If Scalia is right -- and The 'Skeeter Bites Report strongly believes that he is in this case -- then every argument to bar gay and lesbian couples from marrying is inextricably rooted in religious approbations against homosexuality, which cannot constitutionally be used in court. The supporters of Proposition 8 and similar laws know this all too well, yet they plod on anyway, despite the Lawrence decision having effectively pulled the legal rug out from under their arguments.

CIVIL MARRIAGE AND RELIGIOUS MATRIMONY ARE NOT THE SAME THING

Lest anyone forget, the Yes on 8 campaign was heavily bankrolled by several conservative churches, most notably the Utah-based Church of Jesus Christ of Latter-Day Saints -- better known as the Mormon Church -- and the Reverend Rick Warren's southern California-based Saddleback Church, which made headlines during the 2008 presidential campaign as the venue for a forum on faith and politics in which then-candidates John McCain and Barack Obama participated.

Contrary to the long-held assertions of religious conservatives, the civil institution of marriage is not "a holy gift from God." They have confused the state institution of civil marriage with the religious sacrament of holy matrimony.

It is the sacrament of holy matrimony, the exclusive province of religion, that is the "holy gift from God," completely separate from civil marriage, the exclusive province of the state.

Conservative religious institutions that oppose homosexuality have every right under the First Amendment to deny the sacrament of holy matrimony to gay and lesbian couples in accordance with their religious doctrine. But they have no constitutional right to seek to have the state deny civil marriage to gay and lesbian couples. It is clearly not their place to do so.

Nor do all religious institutions condemn homosexuality. To the contrary, many other religious institutions are openly supportive of gay men and lesbians -- with some even according the sacrament of "holy union" to gay and lesbian couples.

JUDGE WALKER A CONSERVATIVE WITH A STRONG INDEPENDENT STREAK

Judge Walker, appointed to the district court in 1989 by President George H.W. Bush and elevated to chief judge of the court in 2004 by President George W. Bush, is widely seen by court observers as a conservative jurist with a strong independent streak.

Originally nominated for the district court in 1987 by President Ronald Reagan, Walker's nomination was stalled for two years by Senate Democrats who objected to his membership in an all-male private club and to his having been the attorney representing the International Olympic Committee and the U.S. Olympic Committee in its 1982 copyright-infringement lawsuit against the organizers of the first Gay Games in San Francisco, originally dubbed the "Gay Olympics."

Two dozen House Democrats, led by now-Speaker Nancy Pelosi (D-California), whose district includes San Francisco, opposed Walker's nomination because of his alleged "insensitivity" to gays while representing the IOC and USOC.

(The Olympic committees and the Federation of Gay Games (FoGG) have since made peace with one another and have worked cooperatively together, successfully lobbying to have travel restrictions on HIV-positive athletes waived for the 1994 Gay Games in New York, the 1996 Summer Olympics in Atlanta and the 2002 Winter Olympics in Salt Lake City. The 2010 Gay Games will take place July 31-August 6 in Cologne, Germany; Cleveland will host the 2014 Gay Games).

Judge Walker has demonstrated having a libertarian streak in cases involving individual rights, ruling that the federal government's controversial post-9/11 warrantless wiretapping program was unconstitutional. He has also issued rulings in two previous cases on the on the civil and constitutional rights of LGBTs that have been interpreted as being pro-gay.

In one case, Judge Walker ruled that the First Amendment free-speech rights of two city employees in Oakland, California were not violated when when managers removed a bulletin board flier for a religious group that promoted "natural family, marriage and family values."

In another, Walker dismissed a lawsuit brought by the parents of a California boy against a local school district that claimed their First Amendment religious rights were violated by comments their son's teacher had made in the classroom supporting LGBT civil rights.

CONSERVATIVES ATTACK JUDGE'S IMPARTIALITY AFTER NEWSPAPER 'OUTS' HIM AS GAY

Throughout the trial on the constitutionality of Prop. 8, Judge Walker asked a lot of tough questions to the attorneys on both sides of the issue. And given Walker's past representation as an attorney of the IOC and USOC in the 1982 copyright case against the Gay Games, no one can realistically call Walker a "pushover" on LGBT-related issues.

Yet when the San Francisco Chronicle revealed in February that Judge Walker is himself gay, conservatives were quick to demand that Walker recuse himself from the case.

Ed Whelan, a columnist for the conservative National Review magazine writing on its online edition that "Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now."

That prompted the Chronicle to fire back with an editorial asserting that "A judge's sexual orientation does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom. Assuming this case advances on appeal, no matter how [Judge] Walker rules, there almost certainly will be jurists who will need to set aside their religion's teachings -- and, quite likely, the impact of their ruling on close friends or even a family member -- as they do their utmost to uphold the meaning of the Constitution."

In fairness to the Chronicle, Judge Walker never kept his being gay a secret, so the newspaper cannot be accused of "outing" him against his will. But he's never boasted about it either, thus the Chronicle's disclosure did come as a surprise to many.

That the Prop. 8 case will ultimately land in the Supreme Court is beyond doubt -- indeed, it's inevitable. So the fact of Judge Walker being gay really is of no consequence to the final outcome of this case.

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Copyright 2010, Skeeter Sanders. All rights reserved.