Yesterday at around 9pm GMT (at 2:20pm PST), United States federal Judge Vaughan Walker issued his ruling in the case of Perry v Schwarzenegger.

The case involved a challenge by two same-sex couples against Proposition 8, the measure constituting a California referendum which successfully sought a ban on marriage equality (after several thousand marriages between same-sex couples had previously been carried out).

The state of California did not mount a defence against the challenge by the couples; instead, proponents of the measure argued in its favour. Each of these arguments was rejected in turn by Judge Walker in his decision.

The decision can be downloaded via the court’s website (click on “Download the Findings of Fact and Conclusions of Law in Perry”).

Judge Walker stated: “Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.” He said that the United States Supreme Court “recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship”.

The judge referred to the decision in Loving, where the ban on interracial was successfully challenged. Walker said that the U.S. Supreme Court in that case “recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry”.

He also referred to certain traditional subservient roles of women in marriage have also been consigned to history: “The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals.”

The judge stated that the evidence presented during the trial “did not show any historical purpose for excluding same-sex couples from marriage [...].”Rather,the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”

He stated that “Proposition 8 cannot withstand rational basis review” and “Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim.” Strict scrutiny is the concept which must be applied in the U.S. where a legislative provision seeks to discriminate against a certain social group of the population.

He rejected the defendants’ contention that the “traditional” concept of marriage as being between a man and a woman should be preserved. “Tradition alone, however, cannot form a rational basis for a law,” he stated. “The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.”

He continued: “Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest. Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality.

“Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular.”

The judge also rejected the contention by the defendants that an incremental approach should be taken when implementing social change. Firstly, he rejected the notion that marriage equality was sweeping social change at all. “Instead, the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8.

“ The contrary evidence proponents presented is not credible. Indeed, proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage. The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage.”

The judge added: “Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.”

When it came to parenting and the defendant’s assertion that opposite-sex parents should be favoured over same-sex parents, the judge was equally dismissive. Referring to the evidence presented during the trial, he stated, “(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.

“The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying.”

Under the heading, “A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation,” judge Walker stated:

“ Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.”

The judge concluded:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

An appeal has been lodged to challenge judge Walker’s decision, and accordingly he has issued an Order to stay the ruling. The appeal, if pursued, will take the case to the United States Supreme Court.

Read more:

• Statement by California governor, Arnold Schwarzenegger.

• Statement by supreme leader of lesbians, Ellen DeGeneres.

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