by Rachel Peck, Fellow, 
National Women's Law Center

Wednesday, in Perry v. Schwarzenegger, a federal district court judge in California struck down Proposition 8, a voter enacted amendment to the California Constitution which declared that marriage could only be between a man and a woman. The decision is the first to find that a provision limiting marriage to opposite-sex couples violates the U.S. Constitution.

In his decision, Judge Vaughn Walker found that Proposition 8 violated both the equal protection clause and the due process clause of the 14th Amendment. In setting out the reasons men and women should be able to marry the person they desire, regardless of that person's sex, the decision drew out important connections between the movement for marriage equality and the movement away from a legally-enforced notion that marriage requires men and women to play particular, distinct gender roles. Judge Walker recognized that views of marriage have changed drastically over time and these earlier, discarded views are not a valid basis for current marriage law. 

As Judge Walker wrote in his opinion:

The marital bargain in California (along with other states) traditionally required that a woman's legal and economic identity be subsumed by her husband's upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals...The evidence [presented at trial] did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed...Today, gender is not relevant to the state in determining spouses' obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals. Perry v. Schwarzenegger, No. 09-2292, 2010 WL 3025614, at *67 (N.D. Cal. Aug. 4, 2010). 

Judge Walker's opinion is an important one for all people regardless of their sexual orientation. This opinion recognizes that we can no longer let marriage institutionalize inequality. Laws that enforced separate gender roles on men and women within marriage have largely disappeared. While this decision is sure to be appealed, we hope all people and all courts will recognize that marriage laws also must not be permitted to enforce gender stereotypes in determining who may enter into marriage. 

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