PROP8 RULED UNCONSTITUTIONAL (updated, with quotes)

Judge Walker's decision find Prop8 unconstitutional on both equal protection and due process grounds.

Some choice quotes from the decision:

Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.

The judge took apart both witnesses for the ProProp8 side, and also scolded them for withdrawing their other witnesses even after the trial was made secret. He also noted that the other witnesses for the defense basically agreed with the plaintiffs, so it's pretty clear they were withdrawn not over fears of personal safety but because they couldn't make the case.

The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.

The Judge also noted that the Prop-Prop8 campaign really played on fears and animus. As for the voters,

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. 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. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

The judge also noted the slippery arguments in court were different than those made to the voters:

Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court.

Then of course there was the complete absence of any evidence that same sex marriage has any effect on anyone else.

The evidence shows beyond debate that allowing same-sex couples to marry has at leasta neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id. 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. FF 55, 62. 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.

And as for religious freedom,

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

Okay, on to the big issues: Equal protection, Due Process, and whether GLBT people are subject to "strict scrutiny" as an historically disadvantaged class.

Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. ... Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

The judge takes apart the rational basis argument, and then makes this shot:

Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.

As for the endless children argument,

Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. FF 57. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. FF 49.

And as for the motivation:

The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.

And,

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.....Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples....Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

So, it fails on both due process and equal protection, it's not even rational, but if it were, GLBT still deserve strict scrutiny.

CONCLUSION 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 oppositesex 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

Judge Walker hits it out of the park.

What next? Nothing changes: the decision has been stayed, pending motions for appeal. The right wing is exploding over "activist judges" as this Bush-appointed conservative libertarian is clearly a disguised liberal activist.

One chip at a time....

Expert commentary at Poliglot, and Prop8trialTracker and the NY Times.

Opinion at the NY Times , LA Times and San Diego Union-Trib.