US judge overturns gay marriage ban

5 Aug 2010, 3:35 pm   -   Source: AAP
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Proposition 8 was passed by a 52 per cent majority only six months after California's Supreme Court overturned a previous ban. (File AAP)

Proposition 8 was passed by a 52 per cent majority only six months after California's Supreme Court overturned a previous ban. (File AAP)

A federal judge has overturned California's gay marriage ban, saying the 2008 referendum barring same-sex marriage violated the US Constitution.

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A federal judge has overturned California's gay-marriage ban in a landmark case that could eventually force the US Supreme Court to confront the question of whether same-sex couples have a constitutional right to wed.

The ruling by Chief US District Judge Vaughn Walker sparked a celebration outside the San Francisco courthouse on Wednesday.

Gay couples waved rainbow and American flags and erupted with cheers in the city that has long been a haven for gays.

In a written opinion, Judge Walker ruled in favour of rights activists who argued that a November 2008 referendum which barred gays and lesbians from tying the knot was discriminatory and therefore violated the US Constitution.

The referendum, known as Proposition 8, was passed by a 52 per cent majority only six months after California's Supreme Court overturned a previous ban on same-sex weddings, triggering a flood of same-sex marriages.

However, Walker wrote in a ruling that Proposition 8 failed to "advance any rational basis" to deny gay men and lesbians a marriage licence.

"Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples," Walker wrote.

Protect Marriage, the coalition of religious and conservative groups that sponsored the ban, said it would immediately appeal the ruling.

"In America, we should uphold and respect the right of people to make policy changes through the democratic process, especially changes that do nothing more than uphold the definition of marriage that has existed since the founding of this country and beyond," said Jim Campbell, a lawyer on the defence team.

Walker methodically rejected every argument posed by sponsors of the ban in response to a lawsuit filed by two gay couples who claimed Proposition 8, the voter-approved ban, violated their civil rights.

"Proposition 8 singles out gays and lesbians and legitimates their unequal treatment," the judge wrote in his 136-page opinion.

"Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents."

Standing in front of eight American flags at a news conference, the two couples behind the case beamed and choked up as they related their feelings of validation.

"Our courts are supposed to protect our Constitutional rights," lead plaintiff Kris Perry said as Sandy Stier, her partner of 10 years, stood at her side.

"Today, they did."

Australian actress Portia de Rossi and her American TV talk show wife Ellen DeGeneres were among those celebrating across the country on Wednesday.

Geelong-born de Rossi and DeGeneres married legally in 2008, shortly before Californians voted for Proposition 8.

"I am ecstatic that Proposition 8 has been overturned in the state of California. This is an incredibly exciting and historical day and a big step towards equal rights for all," de Rossi, the former star of US TV series Ally McBeal and Arrested Development, wrote in a Tweet to fans.

DeGeneres wrote: "This just in: Equality won!"

Despite the favourable ruling for same-sex couples, gay marriage will not be allowed to resume immediately.

Judge Walker said he wants to decide whether his order should be suspended while the proponents of the ban pursue their appeal.

He ordered both sides to submit written arguments by Friday on the issue.

The appeal would go first to the 9th Circuit then to the US Supreme Court if the high court justices agree to review it.

California's Republican Governor Arnold Schwarzenegger welcomed Wednesday's ruling, describing it as "a milestone in America's road to equality and freedom for all people".

However opponents of same-sex marriage lashed out at Walker's ruling, with Randy Thomasson of the socially conservative SaveCalifornia.com - Campaign for Children and Families describing it as a "terrible blow" to voter rights.

"Judge Walker has ignored the written words of the Constitution, which he swore to support and defend and be impartially faithful to, and has instead imposed his own homosexual agenda upon the voters, the parents and the children of California," Thomasson said.

"This is a blatantly unconstitutional ruling because marriage isn't in the US Constitution," Thomasson added.

Currently, same-sex couples can only legally wed in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, DC.

Proposition 8 effectively nullified a May 2008 California Supreme Court decision by redefining marriage as a union only between a man and a woman.

A failed attempt to overturn the referendum in California in 2009 prompted activists to take their fight to federal courts, a strategy seen as risky because it could result in a US Supreme Court ruling, which would settle the issue once and for all with no possibility of appeal.

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