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Stanford Prof: Prop. 8 Will Be 'Unconstitutional'

Publication Date: 
August 04, 2010
Palo Alto Online

Professor Michael Wald is quoted on his prediction for Judge Vaughn Walker's ruling in California's Proposition 8 trial. Sue Dremann of Palo Alto Online filed this story:

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.


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.