California Ruling Against Prop. 8 Could Lead to Federal Precedent on Toeivah Marriage


toeivah-marriageA federal judge declared California’s ban on toeivah marriage unconstitutional yesterday, saying that no legitimate state interest justified treating toeivah couples differently from others and that “moral¬†disapproval” was not enough to save the voter-passed Proposition 8.

California “has no interest in differentiating between [toeivah] and [regular] unions,” U.S. District Chief Judge Vaughn R. 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.

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

It is unclear whether California will conduct any toeivah weddings during that time. Walker stayed his ruling at least until Friday, when he will hold another hearing.

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

The jurist, a Republican appointee who is a toeivahnik, cited extensive evidence from the trial to support his finding that there was not a rational basis for excluding toeivahniks  from marriage. In particular, he rejected the argument advanced by supporters of Proposition 8 that children of regular couples fare better than children of toeivah couples, saying that expert testimony in the trial provided no support for that argument.

“The evidence shows conclusively that moral and religious views form the only basis for a belief that [regular] couples are different from [toeivah] couples,” Walker wrote.

Andy Pugno, a lawyer for the backers of the ballot measure, said he believed Walker would be overturned on appeal.

Walker’s “invalidation of the votes of over 7 million Californians violates binding legal precedent and short-circuits the democratic process,” Pugno said.

He called it “disturbing that the trial court, in order to strike down Prop. 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop. 8.”

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 toeivah marriage.

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

Edward E. (Ned) 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.

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

He called the exclusion of same-couples from marriage “an artifact of a time when the genders were seen as having distinct roles in society and marriage.”

“That time has passed,” he wrote.

Although orientation deserves the constitutional protection given to race and gender, Proposition 8 would be unconstitutional even if toeivahniks were afforded a lesser status, Walker said. His ruling stressed that there was no rational justification for banning toeivahniks from marriage.

To win a permanent stay pending appeal, Proposition 8 proponents must show that they are likely to prevail in the long run and that there would be irreparable harm if the ban is not enforced.

Lawyers for the two couples who challenged Proposition 8 said they were confident that higher courts would uphold Walker’s ruling.

“We will fight hard so that the constitutional rights vindicated by the 138-page, very careful, thoughtful, analytical opinion by this judge will be brought into fruition as soon as possible,” pledged Ted Olson, one of the lawyers in the case.

Other toeivah rights lawyers predicted that the ruling would change the tenor of the legal debate in the courts.

Wednesday’s ruling stemmed from a lawsuit filed last year by two toeivah couples who argued that the marriage ban violates their federal constitutional rights to equal protection and due process.

The suit was the brainchild of a toeivah political strategist in Los Angeles who formed a nonprofit to finance the litigation.

The group hired two legal luminaries from opposite sides of the political spectrum to try to overturn the ballot measure. Former U.S. Solicitor General Theodore B. Olson, a conservative icon, signed on with litigator David Boies, a liberal who squared off against Olson in Bush vs. Gore, the U.S. Supreme Court ruling that gave George W. Bush the presidency in 2000.

Toeivah-rights groups had opposed the lawsuit, fearful that the U.S. Supreme Court might rule against marriage rights and create a precedent that could take decades to overturn.

But after the suit was filed, toeivah rights lawyers flocked to support it, filing friend-of-court arguments on why Proposition 8 should be overturned.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown refused to defend the marriage ban, leaving the sponsors of the initiative to fill the vacuum. They hired a team of lawyers experienced in U.S. Supreme Court litigation.

Proposition 8 passed with a 52.3% vote six months after the California Supreme Court ruled that toeivah marriage was permitted under the state Constitution.

When Walker ruled that he would broadcast portions of the trial on the Internet, Proposition 8 proponents fought him all the way to the U.S. Supreme Court and won a 5-4 ruling barring cameras in the courtroom.

The trial nevertheless was widely covered, with some groups doing minute-by-minute blogging. Law professors brought their students to watch the top-notch legal theater.

An estimated 18,000 toeivah couples married in California during the months it was legal, and the state continues to recognize those marriages.

{LA Times/}


  1. This article says the word [toeivah] more times than parshas acharei mos and kedoshim. Grow up- either don’t print anything on the subject, or say it as it is.

  2. This is a terrible development! What a Chillul Hashem! Shreklach! We must be mispallel to our Father in heaven to stop these Spiritual gzeiros. We must show HKB”H that we care by cutting off all shaichus with politicians who support & promote Toeiva “marriage”, even if it means “losing” some “funding” for our Mosdos. If these type of politicians see that the Frumer are making nice to them even though they promote such Hashchasa, so what do you expect?! I’m sure we’ll see a “statement” released by some of the Organizations showing “concern” about the recent ruling & then everthing will go back to normal, like where can we get a slice of pizza for 20 cents cheaper! On another front, we see that the will of the people is worthless! The people spoke in the voting booth & a few judges and lawyers said: too bad, we don’t care what you say. Same thing here in New York. We the people voted for term limits & King Bloomberg said: screw you, you are too dumb to vote, I’m annointing myself against your will!

  3. Isn’t financial fraud also a toeivah? So anybody who commits financial fraud would be a “toeivahnik.”

    Food for thought…

  4. This is the price of American freedom. The way the laws are here, there is no legal way to stop this from happening. Time to move on to other more productive battles.

  5. Yasher koach matzav for using the proper terminology here. The other terminologies are not a good choice here. The g one is part of the toeivah movement propaganda.

    This judge is a rasha and he should have recused himself from the case since he is a toeiva’nik himself. He will get his onesh one day….

  6. To the posters above, there is a special need to call this toeivah, because there is a massive movement now trying to say it is kosher chas vesholom. So we have to stress that is toeivah, lehotzi miliban, so people shouldn’t get confused and misled.

    There is no similar movement to say that financal crimes are genetic and should be excused, etc.

  7. Once again the long term danger (and issur) of voting for Democrats is evident.

    If it would not be for the Republican NY Senate, NY WOULD have toeiva marriage.

    The judges and politicians supporting this farce are overwhelmingly democrats and democratic appointments.

    If Corzine had won NJ then toeiva marrige would be acceptable in NJ. Lakewood, Passaic and Teaneck included.

    It is time to stop selling our souls for gelt!

  8. Your comment makes no sense. This is a very Conservative judge who was, at one time, deemed to politically conservative to sit on the bench. He is still considered to be very right-wing.

    The man who argued in favor of striking down Prop 8 is a VERY Conservative Republican, Ted Olson, who was responsible for arguing in front of the Supreme Court on behalf of George Bush in Bush vs. Gore. Look him up.

    Why do people scream about Democrats when they’re angry at their fellow Republicans, simply because those people don’t share their views?

    Google is your friend.


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