Prop. 8 foes, backers look to Supreme Court showdown on gay marriage

A day after Proposition 8 was thrown out in court, both sides in California’s debate over gay marriage are focusing on the next fight in a battle that is likely to end up before the U.S. Supreme Court.

Opponents of gay marriage immediately vowed to appeal a federal judge’s ruling saying same-sex unions were legal in California. The next step will come Friday, when U.S. District Chief Judge Vaughn R. Walker holds a new hearing. The judge stayed his order allowing gay marriage at least until then. And it remains unclear if --and when -- new gay marriage will begin again in the state.

Lawyers on both sides expect the ruling to be appealed and ultimately to reach the U.S. Supreme Court during the next few years.

Walker’s decision was being carefully analyzed by attorneys with an eye on how the high court might view his legal reasoning.

At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges’ rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.

John Eastman, a conservative scholar who supported Proposition 8, said Walker’s analysis and detailed references to trial evidence were likely to persuade U.S. Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.

“I think Justice Kennedy is going to side with Judge Walker,” said the former dean of Chapman University law school.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker’s findings that homosexuality was a biological status instead of a voluntary choice, that children didn’t suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality were “going to make it more difficult for appellate courts to overturn this court’s ruling.”

Edward E. Dolejsi, executive director of the California Catholic Conference, said he believed the judge’s ruling was both legally and morally wrong.

“All public law and public policy is developed from some moral perspective, the morality that society judges is important,” he said. To say that society shouldn’t base its laws on moral views is “hard to even comprehend,” he said.

Gay-marriage opponents plan to appeal the ruling to the U.S. 9th Circuit Court of Appeals. That court’s decision will probably be appealed to the U.S. Supreme Court.

In his decision, Walker said the evidence showed that “domestic partnerships exist solely to differentiate same-sex unions from marriage” and that marriage is “culturally superior.”

California “has no interest in differentiating between same-sex and opposite-sex unions,” Walker said in his 136-page ruling.

The ruling was the first in the country to strike down a marriage ban on federal constitutional grounds. Previous cases have cited state constitutions.

In striking down Proposition 8, Walker said the ban violated the federal constitutional guarantees of equal protection and due process.

Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.