From the archives: Court Overturns Same-Sex Marriage Ban

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Tim Maloney/File

This article was originally published Aug. 5, 2010 in The Daily Californian. This archival article makes references using the term homosexual. The Daily Cal has since changed its style to use the more preferred term gay.

By Stephanie Baer and Gianna Albaum

Daily Cal Contributing Writers

SAN FRANCISCO — Supporters of same-sex marriage took to the streets Wednesday after a federal court ruling overturned Proposition 8, the 2008 voter-approved Constitutional amendment defining marriage as between a man and a woman, though the proposition’s backers have said they will appeal the ruling.

U.S. District Judge Vaughn Walker’s decision in the case Perry v. Schwarzenegger states that the proposition “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Walker has stayed his order until Friday, giving the proposition’s supporters time to file an appeal and seek a longer-term stay.

Following the ruling, plaintiffs Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank spoke at a press conference organized by the American Foundation for Equal Rights.

Despite the likelihood of the case going to a higher court, Stier said she will “never forget this day.”

“Today we can go to sleep knowing that our hopes and our dreams to … have legal marriage can be realized,” Stier said at the press conference.

Supporters of the decision met in the Castro district around 5 p.m. and marched down Market Street to City Hall singing and dancing to old hits such as “We Are Family” by Sister Sledge and “Celebration” by Kool and the Gang.

Activists and city staff — among them San Francisco City Attorney Dennis Herrera and Stuart Gaffney, one of the plaintiffs in a 2004 suit to legalize same-sex marriage — spoke to the assembled crowd.

“We are going to be victorious,” Herrera said.

In the trial, defense attorney Charles Cooper — who became the lead lawyer for the defense after Attorney General Jerry Brown declined to defend the ban — argued that the state had a compelling interest in defending the institution of marriage, which defendants argued would be threatened if it was redefined to include same-sex marriage.

However, Walker ruled that the state had no legitimate interest in prohibiting same-sex marriage.

“The evidence fatally undermines any purported state interest in treating (same-sex and opposite-sex) couples differently,” the decision states.

The plaintiff’s attorneys, Theodore Olson and David Boies, had argued on opposing sides in the U.S. Supreme Court case Bush v. Gore that decided the outcome of the 2000 presidential election, but united in this case, agreeing the proposition violated the rights of gay and lesbian citizens.

“We have other battles ahead of us,” Olson said. “But with this decision … we are well on our way to an ultimate victory.”

He added that the decision will not go into effect for at least two days, and maybe not at all if the appellate court places a stay on the decision.

Supporters of the marriage ban, including the Alliance Defense Fund, have said they would appeal the decision.

In a statement released after the ruling, Edward Dolejsi, executive director of the California Catholic Conference, said the decision “does a great injustice to the institution itself and ultimately will further encourage the disintegration of mother-father families.”

“Homosexuals certainly have every right to the love, companionship and support of another person — but the courts do not have a right to distort the meaning of marriage,” he said.

No matter what comes next, Olson and Boies expressed confidence that the plaintiffs would prevail if the case ends up going to the U.S. Supreme Court.

“This case does not ask the court to establish a new right for gays and lesbians to not be discriminated against. … That right has already been set,” Olson said. “In light of that, we believe the Constitutional violation of depriving gay and lesbian citizens of this fundamental right is very clear.”

The ruling questions whether voters can enforce ethical and moral principles in regulating marriage licenses and concludes that they cannot. The state’s obligation is to treat its citizens equally, not to “mandate (its) own moral code,” the decision states, citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992.

Courtney Joslin, professor of law at UC Davis, said proponents for the proposition claimed that the “optimal environment for raising children is a household with a married heterosexual couple.”

However, the trial found no evidence to support that claim, she said, adding that the evidence presented showed raising children in a homosexual household provided an equal environment.