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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1. Just Love? Marriage Equality’s funding crisis

“If there’s anybody threatening the sanctity of marriage, it comes from those who have the privilege and the right, and we have abused it for decades.”
- Sen. Diane Savino

This week saw the Civil Partnership Bill finally get some floortime in the Dáil (which was covered by our own click here). However, while TDs were opening the debate on recognition of same-sex couples last Thursday, December 3rd, many New Yorkers were still feeling the sting of the previous day’s hugely disappointing defeat of a bill for marriage equality in the New York state Senate. There are a few reasons why this defeat is particularly disheartening and frustrating:

1. New York state recognises same-sex marriage from other states but does not recognise those performed within its own borders.
2. The bill was defeated by a margin of 14 votes (38 against – 24 for) and one senator in particular (Hiram Monserrat) who voted against the bill had been endorsed during his election by the Lesbian and Gay Democratic Club of Queens.
3. It is difficult to fathom how those who who voted against the measure were not swayed after hearing Democratic Senator for Statten Island, Diane Savino, expound in plain and relatable terms, the reasons why recognition of same-sex marriage is an undeniable duty of the government. Funny, moving, and logically bang-on. Watch it below:
   

This latest disappointment from New York comes just 28 days after the devastating outcome of Maine’s Proposition 1, a Proposition 8-style measure which overturned the state’s existing marriage equality law. But don’t let the triumphant zealots fool you, the campaign for marriage equality is not going to disappear in the wake of these disappointments and will continue to gather momentum. On the same day as Maine vote, voters on the other side of the country in the state of Washington approved Referendum 71, a measure which expands domestic partner protections to grant same-sex couples the same rights and responsibilities afforded to married couples. The outcome of that referendum will be historically noted as a critical and all-too-rare vindication of civil rights by plebiscite vote. Positive confirmation that the US is on-track for recognition of same-sex couples can also be seen in late November’s passage of the Domestic Partnership Benefits and Obligations Act—a legislative move which provides equal family benefits to federal employees with same-sex partners.

In the near future, Houston, Texas (yes, Texas!) may be electing its first lesbian Mayor. Sitting City Controller, Annise Parker, holds a slight lead in pre-poll percentages in the Mayoral election for Houston which will take place next Saturday, December 12th. Houston is the fourth-largest city in the United States and is not the liberal oasis of nearby Austin, which makes Parker’s performance thus far and her possible election all-the-more momentous.

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The court’s decision effectively means that the vote by the simple majority to pass Proposition 8 still stands. (That simple majority, by the way, was 52.24% – hardly resounding.) Proposition 8 inserts a new provision into the Californian constitution, stating that marriage can only between a man and a woman. It reads:

Only marriage between a man and a woman is valid or recognized in California.

Some have been outraged at the court’s decision; some have taken a stoical view along the lines that the ruling was technical and that the court’s hands were tied.

Reading the decision, however, I’m not so sure I ultimately agree with the latter view. The ruling is set out very clearly into an introduction, and three subsequent sections detailing the court’s reasoning. (It can be read here [.pdf].)

The decision helpfully and clearly summarises the previous marriage cases which led to the same court’s earlier decision stating that same-sex marriages should be allowed. The distinction is that, in the previous cases, the law at issue was statutory; in the present case, however, it’s a constitutional matter.

The first matter to be decided, according to the court, was whether Proposition 8 constituted an amendment or a revision. (After that, they would deal with the issue of those who have already been married over the past year.) To do this, they needed to carefully “assess (1) the meaning and scope of the constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the constitutional change will have on the basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.”

The judges in the present case (I don’t know if they were actually the same individual judges who issued the previous marriage ruling) strive to frame their decision in the context of the earlier case, and thereby limit the scope and effect of the Proposition 8 provision: they say that the effect of Proposition 8 does not limit “the constitutional right of same-sex couples to ‘choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage’ (Marriage Cases [...] 43 Cal.4th at p. 829)”.

The danger in this approach as I see it, however, is that the judges hands are tied to saying that same-sex couples are (at present, at least) separate but equal: this calls to mind the U.S. era of segregation, or South African apartheid – the whites at the whites’ water fountain, the blacks at theirs: separate, but equal. Of course, we know what history has to teach us about such arrangements.

What is more worrying, however, is that the judges strain their reasoning to reach this conclusion, not as their overall ruling of the court, but in order to justify calling Proposition 8 an “amendment” (which is permitted) – rather than a “revision” (which is not permitted).

That is to say, if the judges found that Proposition 8 was found to have “entirely repealed or abrogated” the constitutional privacy rights of same-sex couples and due process; or if they had found that Proposition 8 had “fundamentally altered” the meaning and substance of constitutional equal protection principles: then, they might have found that Proposition 8 was a revision and therefore invalid.

But they didn’t: the judges found that

Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Perhaps I’m missing something, but the fact that they’ve decided to classify Prop 8 as an amendment and not a revision (thereby allowing Prop 8 to remain valid) worries me. (Especially as people on this side of the water are fond of following the people on the other side of the water..)

What do you think?

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So the community in California woke up one morning feeling a sense of disappointment, like a giant step backwards had been forced upon them.  They have reacted in various ways.  In Los Angeles, they have had massive protests against the mormons and in San Fransisco they have had a candlelight walk through the streets in an effort to comfort each other.  Melissa Etheridge took a good stance saying that she’d no longer pay tax as she’s seen as a second class citizen.  To date there have been three lawsuits challenging the outcome of the vote.  Different methods of giving a similar message – we are disappointed but not beaten!

It’s tough for the rest of the world to take too.  I know it doesn’t effect us directly but any decrease in gay rights around the world deflates us and makes us wonder if we’ll ever live to see the day that we are seen equally!  This will hopefully only last a short time and I’m hoping that when the history books of the future are written, proposition 8 will go down as the catalyst to a great turning point in LGBTQ history, a time when people all over the world showed that we will keep going and will keep fighting for equality.

For information of Irisg organisations fighting for gay marraige, visit Marraige Equality and LGBT Noise.

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1. Irish support same-sex marriage

“How is marriage protected by intimidating gay and lesbian people into loveless and lonely lives? I am morally compelled to vote no on Proposition 8. . . I know these words of truth will cost me dearly, but to withhold them. . . I would become an accomplice to a moral evil that strips gay and lesbian people not only of their civil rights but of their human dignity as well.”

Fr. Geoffrey Farrow speaking during a sermon to St. Paul Newman Center, Fresno, California.

Saturday, 11th October

A story to bring a smile to even the most hard-hearted of homophobes came from San Francisco, California today when a group of first-graders took a field trip to City Hall to shower their teacher, Erin Carder and her wife Kerri McCoy, with rose petals and bubbles. The teacher was unaware of the excursion and the whole event was the brainchild of one of the children’s parents who thought it would make a nice surprise for the newlyweds.

Sunday, 12th October

Today marked the tenth year since the death of Matthew Shepard, who was fatally injured in a brutal and savage hate crime attack on October 12th 1998. Judy Shepherd, Matthew’s mother and Executive Director of the Matthew Shepard Foundation, released a statement to mark the anniversary. The full statement can be read here. The foundation seeks to educate and enlighten others on the importance of diversity, understanding, compassion, acceptance and respect. The foundation was established in memory of Matthew Shepard.

Monday, 13th October

The LA Times today reported an incident about a priest truly deserving of our respect. Fr. Geoffrey Farrow. Fr. Farrow—a gay man and parish priest in Fresno, California—was removed from his post after he spoke against Proposition 8 during a sermon. A week before he was removed from his post (which consequently costs him his salary and health benefits), Fr. Farrow stood before his congregation of Catholic parishioners and spoke against the upcoming referendum which seeks to overturn the California Supreme Court decision earlier this year which recognised same-sex marriage. So what prompted “Father Geoff” to take a stand before his flock on October 5th? Apparently, Fr. Farrow resolved to go public and express his position against Proposition 8 when he received a “pastoral letter” from Fresno Bishop John T. Steinbock in which the bishop not only condemned the California Supreme Court’s ruling, but compared it to efforts by Nazi Germany and the Communist regimes in Russia and China to alter family arrangements. Fr. Farrow’s former parish are reportedly divided in support of his action but one thing is for sure, when a Catholic priest takes a moral stand against the Church, that one man’s protest will not be forgotten quickly.

In other US same-sex marriage-related news, Arizona will also be voting on whether or not to adopt a constitutional amendment which would prohibit same-sex marriage. Proposition 102, if accepted by voters, would restrict marriage to a union between one man or one woman. The anti-marriage for gays and lesbians group, YesForMarriage.com, erected hundreds of signs urging “Yes to 102” which were vandalised by activists who painted the words “Yes to Hate” over the original slogan. Today it was reported that the damage cost the YesForMarriage.com $6,000 to repair. Pity. Again in the US, the Gay, Lesbian and Straight Education Network (GLSEN) and The Advertising Council teamed up to produce a national multimedia public service advertising (PSA) campaign, which aims to educate teens on the hurtful, albeit unintended effects, homophobic language can have on their gay and lesbian peers. The advertisements feature casual scenarios in which the term “that’s so gay” is used off-the-cuff. Celebrities then interrupt the banter in an effort to help the teens recognise that anti-LGBT language is harmful.

Tuesday, 14th October

CNN reported on a new public high school for Chicago, Illinois in the US which appears to have taken a leaf out of the Harvey Milk High School in New York City. The Chicago Public Schools’ Office for New Schools announced that the School for Social Justice Pride Campus (The name is a bit of a mouthful but still beats the hell out of “Our Lady’s Manor of the Faithfully Devout”!) will cater for up to 600 students and seeks to foster a supportive and welcoming environment for the city’s gay or marginalised youth.

Wednesday, 15th October

Comedienne, actress, talk show host, and godess among gays, Ellen DeGeneres has put her name and $100,000 of her fortune behind the campaign to secure a no vote to Proposition 8. The capital is being used to fund the publicising of a public service announcement, in which Ellen passionately tells the viewer “I believe in fairness. I believe in compassion. I believe in equality for all people. Proposition 8 does not. Please, please, vote NO on Prop. 8.” Speaking on the Jay Leno Show—which broadcasts from Los Angeles, California—Ellen urged voters to “love thy neighbour” and reject the proposed constitutional amendment.

In Brazil, a left-wing mayoral candidate for the city of Sao Paolo—home of the world’s largest Pride parade—was in hot water after endorsing a television advertisement which allegedly insinuates homophobic assertions about her competitor for office. Candidate for the Worker’s Party, Marta Suplicy, appears in the advertisements asking of her opponent Gilberto Kassab, “Is he married? Does he have children?” The Brazil LGBT Committee quickly released a press statement saying that Sulpisy’s comments were “wrong and unacceptable”. Sulpisy’s provocative comments came as a shock to many LGBT campaigners as she had been an advocate to several gay causes previously.

Thursday, 16th October

A Ugandan Bishop, Eria Paul Luzinda of Mukono, publicly admonished homosexuality, and “blamed” its recent proliferation in Uganda on a concurrent surge in the desire for wealth. *Yawn* Come on now Bishop Luzinda. Blaming 21st century greed on the gays? It’s more than a little clichéd and uninspired. And since back in the days of B.C. the Bible documented celestial inscriptions prohibiting ‘coveting’ of the wives of our neighbours, His Divinity was hardly talking to the lesbians hanging out with Moses…or was He?

Friday, 17th October

Paul Elliot, a retired professional footballer, made a splash across various tabloid front-pages after he claimed that he knew of at least a dozen gay professional football players playing the beautiful game at the moment. Elliot was speaking at a conference in London hosted by the British FA, Homophobia: Football’s Final Taboo. Elliot, who now works as an advisor to the Equality and Human Rights Commission, was speaking in relation to the launch of a new campaign by Kick It Out which seeks to remove prejudice from soccer. Elliot also claimed that gay players do not come out because they fear the reaction of fans.

A posthumous reconstruction of the last movements of Austrian far-right leader Joerg Haider has revealed that he was drinking in a gay bar before he died. Haider’s alleged homosexuality had been the subject of much speculation and had resulted in his “outing” in the German and Austrian press in 2006 although Haider himself had never confirmed the allegations. The suit and tie combo Haider’s sporting in the picture (right) screams Queer Eye for the Fascist Guy to me but controversial rumours are bound to stalk any pro-Nazi politician. Perhaps because the laddy doth protest too much?

As always, all images are used in good faith and without any implying any infringement. if they need to be removed, just let me know and it’ll be done.

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You can see it on youTube here, it seems that over 80,000 people have already, let’s hope they get the message.

Not only that but she has also gone on the Tonight Show to bring the “No Campaign” to the forefront, see here.

I saw when she had McCain on her own talk show, she brought up the marraige issue without ever bullying him or seeming disrespectful to his right to his opinion, I thought she did it very well.

So here’s hoping people “vote no on 8″ and that the right to marry is protected in California.

What do you think of people in the media using their own money to put forward their personal political views?  Should more people do it?  Let us know what you think!

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