Judge Walker's bias will be overruled

 SAN FRANCISCO -- When a judge struck down California's ban on same-sex marriage Wednesday, he handed gay rights advocates a historic and invigorating victory, but also a temporary one in a long fight that may be heading toward a showdown at the U.S. Supreme Court.

Even as Chief U.S. District Judge Vaughn Walker's toppling of Proposition 8 set off hours of celebration in some quarters - with many gays and lesbians seeing the ruling as not just a validation of marriage rights, but of their lives in general - opponents planned to seek a reversal at the Ninth U.S. Circuit Court of Appeals.
Backers of the marriage ban said they were confident they would prevail in the end, and predicted that Walker's decision would energize people who believe marriage should be reserved for one man and one woman, just as the ban had mobilized gay rights proponents.
One of those who hailed the decision was Kristin Perry of Berkeley, whose desire to marry her partner of 10 years, Sandy Stier, prompted the couple to sue over Prop. 8, along with two men from Burbank. The initiative was approved by 52 percent of voters in November 2008, overturning a state Supreme Court ruling six months earlier that extended marital rights to gays and lesbians.

Differing views on ruling

At a news conference just after Walker's 136-page decision was released, Perry said, "Today, every American should be proud.
"For so long, Sandy and I and our family have been regarded as 'less than,' 'unequal' and not worthy of liberty and the pursuit of happiness under the law," Perry said. "But this decision says that we are Americans, too. We too should be treated equally. Our family is just as loving, just as real and just as valid as everyone else's."
The emotional plea was rejected by Douglas Napier, an attorney who defended Prop. 8, as a distraction in a case that he said should have been about voters' rights. He called the ruling, which was the result of a nonjury trial in January, a legal "bump in the road."
"Those that want to uphold traditional family values are going to be outraged," said Napier, of the Alliance Defense Fund of Scottsdale, Ariz. "The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters."

appeal next

On Wednesday, at least, the purely practical impact of the decision was limited, and gay and lesbian couples such as Perry and Stier were unable to rush to the altar. Walker attached a stay order to his ruling, freezing it for at least a few days until a separate hearing can be held on whether to allow same-sex marriages while the case is appealed.
The decision did not affect 18,000 gay and lesbian couples who wed before voters passed Prop. 8. Those unions are still legal.
But the broader legal and political repercussions are weighty, as the trial was the first ever held in federal court on the issue. Legal experts said that if Walker's ruling is affirmed on appeal, the U.S. Supreme Court would almost certainly take up the case and establish law for the rest of the country.
If the appeals court reverses Walker's decision and restores the ban, the experts said, the Supreme Court may leave the case alone.
The appeal to the Ninth Circuit could be decided within months - or the process could take more than a year.
"If the Ninth Circuit invalidates all of the laws of the Western states, that would be a momentous change that might require the Supreme Court to charge in," UC Davis law Professor Vikram Amar said. "But if they uphold Prop. 8, they're not changing the world."

ruling provides guidance

In the meantime, the ruling may provide a valuable template for proponents of same-sex marriage, said Margalynne Armstrong, a law professor at Santa Clara University.
"The decision puts forth an analysis that is so complete that it provides arguments for other people who are advocating for this in other states, and for other judges writing these decisions - even if this gets slapped down," Armstrong said.
Five states and the District of Columbia allow gay and lesbian marriages. But not every effort to expand marriage has been a winner. In December, the New York Legislature voted down an attempt to legalize same-sex marriage.
Walker's decision comes amid other stabs at momentum. Last month, a federal judge in Massachusetts overturned part of the federal Defense of Marriage Act, ruling that it is unconstitutional to define marriage only as a union between a man and a woman.
Wednesday's ruling leaves same-sex marriage advocates with a dilemma. While they won the case, the stay issued by Walker means it could be months or years before another gay or lesbian couple is married in California. And there is no guarantee that higher courts will agree with Walker's ruling.
"The appeals court could take the case on an expedited basis or take two years or more to get to it," said Geoff Kors, executive director of Equality California. "I don't think we want to wait until 2014 or 2016 to get marriage equality in California."
As a result, Kors said, same-sex marriage proponents will proceed with plans to put an initiative to repeal Prop. 8 on the November 2012 ballot, a measure that would instantly make same-sex marriage legal in California.
That would mean a commitment of more than $1 million to collect the 700,000 or so signatures needed to get the constitutional amendment on the ballot and tens of millions more for a campaign effort like the one in 2008.

time to plan

The good news for same-sex marriage proponents is that they have more than a year to decide whether to make a push for a ballot measure, and preparations for a 2012 vote aren't that different from what's needed to gather financial support for defense of the upcoming appeal.
While public opinion isn't supposed to play a role in legal decisions, Kors added, "we know judges read the newspapers."
A Field Poll last month found that a majority of California's registered voters approve of allowing same-sex marriage, which boosts the chances of a 2012 initiative.
The issue is a tricky one for politicians, including President Obama, who has said he opposes same-sex marriage but also opposes Prop. 8. It could play a pivotal role in the November election, as candidates in the state's top races this year have widely different views.
Democratic gubernatorial candidate Jerry Brown praised Wednesday's invalidation of Prop. 8, saying Walker "came to the same conclusion I did when I declined to defend it (as state attorney general): Proposition 8 violates the equal-protection guarantee of the 14th Amendment of the United States."

feeling 'sense of security'

A spokesman for Republican Meg Whitman, who supported Prop. 8, said the "ruling is the first step in a process that will continue."
The state's U.S. Senate hopefuls also disagree. Democratic Sen. Barbara Boxer praised the ruling, while Republican Carly Fiorina said that "the people of California spoke clearly on this issue at the ballot box in 2008."
Stier, Perry's partner, said Walker's ruling is not the end of her fight but points "toward the final piece that we've been waiting for with as much patience as possible."
"Tomorrow, I will wake up and have a normal day," she said. "I'll do things around the house. Check in on the kids, go to work, just like I do every other day. But tomorrow will feel different. Because tomorrow I will have a sense of security that I haven't been able to experience in the past."