A Stanford Law School professor, Michael Wald, is predicting a federal judge will rule that Proposition 8, the state law banning same-sex marriage, is unconstitutional.
The ruling by U.S. District Judge Vaughn Walker is expected between 1 and 3 p.m. today (Aug. 4). Walker will decide whether the law violates the U.S. Constitution.
The federal trial pits two same-sex couples who want to marry against the sponsors of Proposition 8 and their campaign committee, ProtectMarriage.com. The measure was enacted as a state constitutional amendment by California voters in 2008 and provides that only marriage between a man and a woman is valid or recognized in California.
Walker heard evidence in the non-jury trial in January, presided over closing arguments in June. Two couples challenged California's same-sex marriage ban in federal court last year: Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank. They claim the measure violates their right to equal treatment and their fundamental right to marry.
California also has a uniquely unequal situation because some same-sex couples are married while others cannot marry, the plaintiffs contend in another, narrower argument that would apply only to California.
The defendants, the initiative's sponsors, contend the law is constitutional because it is a reasonable way of preserving the traditional definition of marriage and promoting the welfare of children.
Wald said the current case differs from a previous five-year battle over same-sex marriage in California and rulings in other states, which were centered on the state rather than the federal constitution.
If Walker decides in favor of the plaintiffs, the case could have national implications and any appeal would be heard in the U.S. 9th District Court and, potentially, in the U.S. Supreme Court, according to Wald, who served as deputy general counsel for the U.S. Department of Health and Human Services during the Clinton administration. He also wrote a paper entitled, "Same Sex Couple Marriage: A Family Policy Perspective," published in 2001.
"I expect that Judge Walker will hold the ban unconstitutional, largely because the defendants in the case failed to put on any credible evidence supporting a rationale for the ban," he said.
"It's a unique case. It's the first time since a case a long, long time ago in Hawaii, where there was a trial on whether there are rational reasons for not allowing marriage," Wald said.
Previous cases did not have witnesses and just involved theory and papers, he said. In the current case, Proposition 8 opponents gave extensive testimony that there was no reason for discriminating against marriage between gays or lesbians.
But the defense had no witnesses to prove their reasons for discriminating against same-sex marriage -- only various interest groups, he said. The main defense witness, David Blankenhorn, founder and president of the Institute for American Values, admitted there was no provable harm with same-sex marriage, Wald said.
The state would have a hard time explaining its ban on same-sex marriage, since it recognizes gay and lesbian partnerships under the California Domestic Partnership Rights and Responsibilities Act of 2003 (AB 205), he said. The law gives registered domestic partners rights and responsibilities similar to those of marriage.
Walker's decision will be an important piece in the same-sex debate since a ruling striking the law would be coming from a judge not known for liberal positions, Wald said.
If Walker rules in favor of the ban, a state could opt for keeping its opposition to same-sex marriage in order to preserve tradition; the ruling would set the groundwork for how big of a burden the state must have to prove its case, Wald said.
"It's an unsettled area of law and won't be settled until the U.S. Supreme Court hears a case like this," he said.
Both sides have said Walker's court is only the first stop and that they will appeal if they lose, first to a federal appeals court in San Francisco and then likely to the U.S. Supreme Court.
Proposition 8 sponsors filed a motion late Tuesday asking Walker to stay his ruling if he decides to strike down the ban while they appeal to the 9th U.S. Circuit Court of Appeals.
Proposition 8 attorney Charles Cooper argued in the filing that the sponsors are likely to win on appeal and that allowing same-sex marriage in the interim would cause confusion and uncertainty.
"Another purported window of same-sex marriage in California would cause irreparable harm," Cooper wrote.
The last "window" of same-sex marriage in the state occurred between June 2008, when a California Supreme Court ruling allowing gay weddings under the state Constitution went into effect.
About 18,000 same-sex couples married during that time. On Nov. 4, 2008, voters approved Proposition 8, effectively negating the state-court ruling. The state high court left those marriages in place at the same time that it upheld voters' right to enact Proposition 8 in a decision in May 2009.
There will be no court hearing when Walker issues his ruling today. The decision will be posted on the court's website at www.cand.uscourts.gov, and a limited number of paper copies will be available at the court clerk's offices in San Francisco, Oakland and San Jose.