I was there the day hundreds lined up in Sandoval County during the few fleeting hours Clerk Victoria Dunlap (R) issued marriage licenses to same-sex couples. The hope, the heart, the flat-out happiness—people were gettin’ hitched, their unions respected in the eyes of the law. Just imagine California on Wednesday, Aug. 4, when Proposition 8 was overturned.
“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.” That’s from the 138-page ruling by Federal Judge Vaughn Walker. He’s no poet, but he overturned Prop 8, California’s voter-induced gay marriage ban. Casting love in such sterile terms makes for an uncomfortable read. That’s the kind of clinical writing that happens when the state, the government and the judicial system get caught up in la vie romantique. “Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners,” pens Walker. It may state the obvious, but the impact of this blunt, bulletproof language is deep.
Hell, even Fox News posted an unscientific online poll showing overwhelming support for the decision.
Most reporting on the matter indicates the case will likely go all the way to the Supreme Court. It's not there yet, though. Walker's decision is firm when it states that Prop 8 violates the 14th Amendment. The case will first be heard in the U.S. Court of Appeals for the Ninth Circuit in San Francisco. Law professor Vikram Amar points out in the San Francisco Chronicle that the Supreme Court does not have to accept every case that's shot its way, and the country's highest court could be content to let the issue bubble elsewhere for a good long while before choosing to take it on.
But the lawyers who represented the gay couples bringing the suit against Prop. 8 say there might not even be an appeal. To appeal a decision, a person has to show that the ruling causes them harm. And during this trial, Walker asked how same-sex couples tying the knot could damage heterosexual couples. According to the ACLU, the lead lawyer for the Prop. 8 crowd said “Your honor, my answer is: I don’t know. I don’t know.”
The ruling also says in no uncertain terms that California is obligated to recognize same-sex marriage. Walker put a hold on his own ruling, stalling this aspect of it. California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown pushed the judge to end the hold. New Mexico knows all about the heartbreak from marriage licenses issued and then declared void. Though if you've seen the fight in the eyes of someone who's determined not to let such a monumental certificate go, you know there's no take-backs on this one, not really.