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Federal Judge Strikes Down California Same-Sex Marriage Ban in Major Victory for Gay Rights Advocates

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A federal judge struck down Proposition 8, the state’s voter-approved ban on same-sex marriages, on Wednesday. In his ruling, US District Court Chief Judge Vaughn Walker wrote, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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.” [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: We begin today’s show in California, where a federal judge struck down Proposition 8, the state’s voter-approved ban on same-sex marriages. The ruling by US District Court Chief Judge Vaughn Walker is being hailed as a major victory for gay rights advocates.

In his ruling, Judge Walker wrote, quote, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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.”

Walker is the first federal judge to strike down a marriage ban on federal constitutional grounds. The case is almost certain to reach the US Supreme Court.

It is unclear if gay and lesbian couples will be able to marry in California while the case goes through the appeals process. On Wednesday, Judge Walker issued a temporary stay until he decides whether to suspend his ruling while it is being appealed.

The case against Proposition 8 was argued by two longtime adversaries: David Boies and former Solicitor General Ted Olson. Ten years ago, they battled against each other in the Supreme Court case Bush v. Gore. On Wednesday, they celebrated the judge’s ruling. This is Ted Olson.

    TED OLSON: This is a victory for the American people. It’s a victory for our justice system. When our individual rights are taken away, when the majority decides that an unpopular group of individuals should be treated differently — and they can’t succeed at the ballot box, because they are unpopular because they are a minority, because they are viewed differently by a number of people in the populace — they turn to the courts of the United States. And we have a spectacular Constitution that values equality and values fundamental rights and values an independent judiciary to protect and vindicate those rights.

AMY GOODMAN: Supporters of gay rights rallied Wednesday in San Francisco, Los Angeles and other cities. Carol Russell celebrated outside the federal courthouse in San Francisco with her wife.

    CAROL RUSSELL: We’ve been together forty-one years. We were married here in San Francisco two years ago. Our first date, believe it or not, was the night of Stonewall, and we were on Christopher Street in New York when the Stonewall riot happened. It did not deter us, and we’ve had a very happy life together. And we want to make sure that the next generation has a happy life, too. We’ve worked very hard for this. And frankly, it’s wonderful to see that in America the system works. And we look forward to the rest of this fight, I guess.

AMY GOODMAN: In West Hollywood, Art Andrade celebrated the news with his partner.

    ART ANDRADE: My partner and myself have been now together for eighteen years, and we’ve just gotten married a year ago in [inaudible]. And we want to see other young gay couples — or other couples, period, older, younger — to take the challenge and to commit themselves to a long and loving relationship.

AMY GOODMAN: To talk more about the Prop 8 ruling, we’re joined by two guests. Shannon Minter is legal director of the National Center for Lesbian Rights based in San Francisco. He was a lead counsel in the 2008 California State Supreme Court case that allowed same-sex couples to marry, a ruling that was reversed when voters approved Prop 8. And Marc Solomon, he’s with us from Los Angeles, marriage director at Equality California. He’s been leading the organization’s statewide effort to restore the right to marry for gay and lesbian couples.

Marc, let’s begin with you. Your response?

MARC SOLOMON: It’s a tremendous day. The ruling was just fantastic. And it really said, you know, what we believe, which is that committed same-sex couples, couples who are committed to one another for life, are guaranteed the right to be treated equally under our federal Constitution. And it’s just fantastic to see a federal judge rule that way. It’s something that we all believe, but this is a huge step forward, no question about it.

JUAN GONZALEZ: And Shannon Minter, you were in the courtroom during most of the proceedings. Could you talk about the breadth, I think, of the judge’s ruling on this issue?

SHANNON MINTER: Yes, you know, it really was remarkable. I just want to say it’s so wonderful to hear all the personal reactions. This decision was just so meaningful to so many people and couples in California who’ve been through such turmoil, and it really just means the world to people to have a federal judge stand up for their equality and dignity and their right to have the same freedom as other people to enter into marriage if they choose.

But, yes, in terms of the trial itself, it was really a tour de force. There has never been a full-blown evidentiary trial on whether or not same-sex couples have a protected constitutional right to marry. And the plaintiffs’ side, with Ted Olson and David Boies, put on a really magnificent array of expert witnesses, addressing in very — in great depth, you know, the real personal, social, psychological harm caused to same-sex couples by not being able to have the status of marriage and really by being singled out and stigmatized as inferior and unequal. In the decision, Judge Walker’s decision yesterday, he literally made eighty separate findings of fact based on all of the testimony that had been presented to him, and much of the — many of those findings centered on the very serious harms caused by Proposition 8.

AMY GOODMAN: Can you talk about the significance of Judge Walker striking down the marriage ban on federal constitutional grounds, Shannon?

SHANNON MINTER: Yes. It’s a very big deal. This is the first time that any federal court has held that a law barring same-sex couples from marriage violates federal constitutional protections. It was really a grand slam on that level. Judge Walker ruled in favor of the plaintiffs on all of their federal claims, so finding that same-sex couples have a fundamental right to marry, the same right that others have under the federal Constitution, and that Proposition 8 violates the federal Equal Protection Clause, because, Judge Walker found, it discriminates both on the basis of gender and on the basis of sexual orientation. So these are core constitutional issues. And having those issues being litigated in the federal court system means, as you alluded to at the beginning of the segment, that it’s quite likely that the US Supreme Court will end up opining on whether Judge Walker was correct in his construction of the Constitution.

JUAN GONZALEZ: Well, he specifically also seemed to refer to attempts to have the voters decide this issue. And at one point in his decision, he said, “Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.” So he was seemingly saying, hey, this is a constitutional issue; no matter what the people feel at any particular time in a jurisdiction, there are constitutional rights at stake here.

SHANNON MINTER: You know, absolutely, yeah. This case gets down to really the core —-

MARC SOLOMON: Yeah, that’s absolutely right. And, you know -—

JUAN GONZALEZ: Marc Solomon?

MARC SOLOMON: We strongly believe that it’s wrong for the majority to decide the fundamental rights of a minority group. And that’s been our position all along. And, you know, we’re obviously very gratified that Judge Walker ruled that way.

AMY GOODMAN: I wanted to get response to Newt Gingrich’s reaction to the ruling. He said, “Judge Walker’s ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife. […] Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy.”

Newt Gingrich went on to say, “Today’s notorious decision also underscores the importance of the Senate vote tomorrow on the nomination of Elena Kagan to the Supreme Court because judges who oppose the American people are a growing threat to our society.” Marc Solomon?

MARC SOLOMON: Wow, what an ugly statement. “Judges who oppose the American people.” That’s — you know, I think our Constitution has been about — you know, is a living, breathing document, and it’s been about expanding rights for people, you know, who are oppressed. And I think there’s this amazing dynamic as LGBT people tell their stories and talk about who we are. You know, that’s what enables judges to see that, you know what, LGBT people are deserving of equal protection, our relationships are valid, are significant, are important. I mean, I’m not surprised by what Newt Gingrich is saying. He’s — it’s pretty harsh, though, the idea that a judge — you know, is sort of questioning the patriotism of a judge. But, you know, that’s sort of par for the course, I guess, right?

AMY GOODMAN: We’re going to break and then come back. I wanted to ask about the witnesses that Prop 8 advocates put forward in the court and also get your personal stories. We’re talking to Marc Solomon, marriage director at Equality California, and Shannon Minter, legal director of the National Center for Lesbian Rights. This is Democracy Now! We’ll be back in a minute.


AMY GOODMAN: Our guests are Marc Solomon, marriage director at Equality California, and Shannon Minter, legal director of the National Center for Lesbian Rights. He was a lead counsel in the 2008 California State Supreme Court case that allowed same-sex couples to marry, a ruling that was reversed when voters approved Prop 8. And yesterday, in a historic decision, a judge in California struck down the ban, struck down Proposition 8. And we are following this story, personal stories.

Shannon Minter, tell us about how you got involved in this issue.

SHANNON MINTER: Well, I’ve been an attorney for the National Center for Lesbian Rights for a number of years now, and when this issue arose in California back in 2004, when the city of San Francisco began issuing marriage licenses to same-sex couples, we were kind of right in the heart of that happening. And it was just natural to jump into the fray and tackle this issue. And now, here we are many years later, having been through, you know, a number of ups and downs, with winning, you know, the incredible just joy of winning the freedom to marry in the California Supreme Court and then the just devastation of having that partially taken away by Prop 8, and now yesterday’s ruling by Judge Walker. It has been an incredible rollercoaster.

AMY GOODMAN: Now, you, yourself, are married, is that right?

SHANNON MINTER: Yes, I actually am a transgender man. I was born female and then transitioned to male a number of years ago. And because of that, I was able to marry my wife in California way back in 2001. And that, just having that experience of going from literally being in a category of people are not able to marry the person they love and then being able, after transitioning and being recognized as legally male, to marry my wife was incredibly transformative. To me, it was such — had such personal meaning and was so significant in terms of my relationship with my family, my daughter. It just transformed my life. And having that experience and knowing that that was not available to same-sex couples was extremely motivating for me all through the California marriage case. I was just so keenly aware on such a deeply personal level of how harmful it is to tell a human being that you cannot marry the person you love and what it would mean to people to have the California Supreme Court say, “No, that is not right. You are entitled to that same dignity and the same freedom to choose whether to marry as anyone else.” It was just a very powerful experience.

JUAN GONZALEZ: And Marc Solomon, if you could tell us your personal story and your decision to be involved and continue this fight? And also, I’d be interested, following up on what Shannon Minter said — the judge specifically spent quite a bit of time in his decision talking about why domestic partnerships were, in essence, an inferior, second-class status that some states and jurisdictions had adopted — if you could talk about that, as well?

MARC SOLOMON: Sure. I guess, first, on my personal story, I got involved in this issue in 2001. I was living in Massachusetts, in graduate school in Boston. And that’s when our colleagues were thinking about bringing a lawsuit to challenge Massachusetts’s ban on same-sex marriage. And, you know, after we won that decision in November of 2003, the whole — it felt like the whole world came at us, from President Bush to the hierarchy of the Catholic Church to even some elected officials you would have expected to be on our side, like John Kerry. And so, we mounted a very big campaign to protect the court decision. And I ended up running that effort, and we defeated two constitutional amendments and then helped out some of the other East Coast, Northeastern states like Connecticut and Vermont, and post-Prop 8, came out here to see if we can — if we could figure out a way to reverse Prop 8.

And fundamentally for me, in our experience, it’s simply about — it’s as simple as telling our stories and talking about who we are. The path is not always so clear about how it’s going to happen. Is it going to be the courts? Is it going to be back at the ballot? But the approach of talking about our relationships, our commitment to one another, is so important. And that’s what I think is so important for your audience is, you know, whether you’re gay or straight, to talk about this decision, talk about why it matters to you personally, really makes a big difference.

Now, with respect to domestic partnership versus marriage, you know, I was talking to a same-sex couple — actually, a woman living in Riverside who married her partner after twenty-four years, and her partner just passed away from breast cancer. She was telling me, you know, 'Domestic partnership was a piece of paper, you know, a legal document that we filed in our file cabinet. Marriage is about recognition by society that our commitment, our love, is just as good as anyone else's. And it’s important for our kids,” she said, “the three kids that we were raising, to be able to know that their moms are married.” You know, and I think one of the great things about the decision is it explains the importance of marriage in our society. I mean, marriage really matters, and so creating some other thing that, you know, is supposed to be analogous, but really isn’t, it can’t. You know, no other thing can carry the social significance of marriage. And I think Judge Walker really got that right.

AMY GOODMAN: Shannon Minter, can you talk about Judge Walker, one of the few federal judges who is publicly gay, who was appointed by President George H.W. Bush in — well, when was it? — 1989?

SHANNON MINTER: Yes, he was originally nominated to the bench by President Reagan and then finally appointed under Bush Senior. Ironically, at the time, women’s groups and lesbian and gay groups were expressing concerns about his nomination to the bench, based on some positions he had taken. You know, he’s a conservative judge. But he does have a history of standing up for individual liberties and civil rights, and he certainly has done that in a very powerful way in this decision. But this continues a pattern of, you know, the — some of the most powerful, affirmative decisions holding that same-sex couples have the freedom to marry have been issued by judges or courts who are Republican and who are generally pretty conservative.

AMY GOODMAN: And the opposition, the witnesses that the lawyers for Prop 8 brought forward, and who they represented? Shannon Minter, you were in the court every day.

SHANNON MINTER: Yes. I have to say, that was one of the more satisfying aspects of the case, because here, you know, the proponents of Prop 8, those who oppose marriage for same-sex couples, here was their chance. You know, a federal court and the judge has opened it up and said, “Show me what you’ve got. You know, present your evidence about how it is that allowing same-sex couples to marry is harmful in any way to anyone.” And they simply could not do it. They had initially said they were going to put on a number of expert witnesses. And then most of them withdrew. They withdrew most of those witnesses.

They ended up with a couple of folks testifying, one of whom was David Blankenhorn from the National Organization of Marriage, who was literally unable to articulate any reason why same-sex couples should not be permitted to marry. And Judge Walker’s opinion really takes apart Mr. Blankenhorn, and for very good reasons. He points out that he actually does not really have credentials or expertise in the first place to speak about marriage. That’s not his professional or academic background. But in any case, his testimony actually powerfully supported the position that same-sex couples and their children and their families and society would benefit by allowing lesbian and gay couples to marry. So, really extraordinary. I mean, when push came to shove, the proponents of Prop 8 just had nothing to support their position, and hence Judge Walker’s ruling that there is just no legitimate basis, no public interest served by Prop 8, that all it does is serve to hurt lesbian and gay couples and their families.

JUAN GONZALEZ: And Shannon Minter, the significance and importance of having these two lawyers who — so diametrically opposed politically, David Boies, who represented Al Gore, and Ted Olson, who defended George Bush, in the most contentious federal court case involving political elections? How did they work together in the courtroom? And the impact of having them carry your arguments?

SHANNON MINTER: Oh, it was just so amazing! And, I mean, what a dramatic moment just in the history of our country, and certainly in the legal community. I just can’t recall anything quite as dramatic as that happening in a long time. But Ted Olson and David Boies were an amazing team. I mean, Mr. Olson is perhaps, you know, the most highly respected constitutional Supreme Court litigator in the country and an appellate specialist. I think that really came through in his opening and closing arguments. He’s just so eloquent and passionate on this issue. And then David Boies is one of the most skilled trial court attorneys in the country. And his performance in cross-examining the proponents’ witnesses was just amazing. I mean, he really did a remarkable job of eviscerating the other side’s witnesses. So, to have both of those guys standing up for our community and doing such a magnificent job, I think, was just so exciting for the whole community. And sitting in the court every day was just the experience of a lifetime.

AMY GOODMAN: Well, we want to thank you both for being with us, Shannon Minter, legal director of the National Center for Lesbian Rights, lead counsel in the 2008 California State Supreme Court case that allowed same-sex couples to marry, a ruling that was reversed when Prop 8 was approved, and now Prop 8 has been struck down. And also thanks so much to Marc Solomon, marriage director at Equality California.

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