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On August 4, 2010, Federal Judge Vaughn R. Walker ruled that California’s Proposition 8, which prohibits California from recognizing same-sex marriage, is unconstitutional. The ruling was stayed pending appeal—which means that nothing will happen until a Federal Appeals court reviews it. As you might imagine, it will be appealed. The ruling itself is 138 pages long. I’ll summarize.

The previous lawsuit challenged Proposition 8 on procedural grounds. My post on that case is here. The California Supreme Court disagreed with me. Since the California Supreme Court gets the final say on the California Constitution, it got the last word.

The new suit was brought by two same-sex couples on different grounds. And, since it was brought in Federal court, the California Supreme Court doesn’t get a say at all. Something strange happened. California’s government was sued. The Attorney General said, essentially, “I agree that this thing is unconstitutional.” The other government groups said, “I’m not going to bother defending this.” So did a number of other people, including “ProtectMarriage.com - Yes on 8.”

The people who brought the lawsuit (“the Plaintiffs”) claimed two things. First, they claimed that marriage is a fundamental right under the 14th Amendment of the U.S. Constitution. (There is some decent precedent on this—the only question is whether the protected marriage is the one man/one woman kind of marriage). If the 14th Amendment protects same-sex marriage, the court reviews the case using “strict scrutiny” which I’ll discuss below.

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