Advancing a Free Society

Same-Sex Bombshell Overturns Proposition 8

Wednesday, August 4, 2010

Judge Vaughn Walker, a judicial appointee of former President George H. W. Bush, handed down a decision that has to count as a political shocker insofar as he was prepared to overturn Proposition 8, which was subject to such a hardcore political fight. This decision was not to be unexpected in light of the similar decision that came out of Massachusetts, which struck down those portions of The Defense of Marriage Act (DOMA), about which I have already commented.

In one sense the legal issues that were raised in the Massachusetts cases were more difficult because Judge Tauro had to find a way to apply the Equal Protection Clause, which on its face only applies to the states, to the federal government. On this issue, his path was made easier by the 1954 decision in Bolling v. Sharp, which did exactly that to make sure that its desegregation decision in Brown v. Board of Education also applied to the segregated schools in Washington, D.C. Here the simple question was whether the Proposition 8 could survive a federal constitutional challenge.

Continue reading Richard Epstein at Forbes.com…