AN AMERICAN JUDGE has ruled California’s ban on same-sex marriage illegal – raising the possibility of a Supreme Court hearing to determine whether any ban on gay marriage is unconstitutional.

Judge Vaughn R Walker, the chief judge of the Federal District Court in San Francisco, ruled that Proposition 8 – the measure which outlawed gay marriage in the state, approved by referendum in 2008 – “cannot withstand any level of scrutiny under the Equal Protection Clause” of the federal Constitution.

“Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest,” he ruled.

However, Walker placed an immediate stay on his own ruling, freezing it until a separate hearing determines whether to once again allow same-sex marriages while his ruling is appealed.



The ruling will now be appealed to the local branch of the national court of appeals, but commentators anticipate that the matter will ultimately come before the Supreme Court itself which would ultimately rule on whether all bans on gay marriage are unconstitutional.

The Equal Protection Clause provides that “no state shall [...] deny to any person within its jurisdiction the equal protection of the laws.”

Supporters of the legal challenge welcomed the ruling, claiming it a major legal victory in the quest for full equality.

“Being gay is about forming an adult family relationship with a person of a same sex,” said gay rights activist Jennifer Pizer, “so denying us equality within the family system is to deny respect for the essence of who we are as gay people.”

Pastor Jim Garlow, however, who had been an outspoken proponent of the ban, said congregations across America ‘would fast and pray for the ban to be restored.’

Other opponents argued that the Constitutional reference to ‘We the People’ would mean the court would acknowledge the fact that the public had twice voted against gay marriage – at Proposition 8 and also in 2000, when voters explicitly defined marriage as between “a man and a woman”.

The controversial proposition 8 was passed in November 2008 – on the same day that Barack Obama was elected president – by 52% of voters, which barred any future gay marriages, but did not rule earlier gay marriages illegal.