Gay Marriage Ban is Overturned in CA

[Ooberman]

U.S. Court Overturns Calif. Same-Sex Marriage Ban
By JESSE McKINLEY and JOHN SCHWARTZ
Published: August 4, 2010

SAN FRANCISCO — A federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing a temporary victory to gay rights advocates in a legal battle that seems all but certain to be settled by the Supreme Court.

Wednesday’s decision is just the latest chapter of what is expected to be a long legal battle over the ban — Proposition 8, which was passed in 2008 with 52 percent of the vote -- and proponents were already promising to appeal, confidently predicting that higher courts would be less accommodating to the other side than Judge Walker.

“Being gay is about forming an adult family relationship with a person of a same sex, so denying us equality within the family system is to deny respect for the essence of who we are as gay people,� said Jennifer Pizer, the marriage project director for Lambda Legal in Los Angeles, who filed two briefs in favor of the plaintiffs. “And we believe that equality in marriage would help reduce discrimination in other settings because the government invites disrespect of us when it denies us equality.�

The trial, which began in January, was closely watched in the gay community, drawing large crowds to courtrooms, and inspiring re-creations by actors which were posted online. The plaintiffs offered two weeks of evidence from experts on marriage, sociology and political science, and emotional testimony from the two couples who had brought the case.

Proponents for Proposition 8, which was heavily backed by the Mormon church and other religious and conservative groups, had offered a much more straightforward defense of the measure, saying that same-sex marriage damages traditional marriage as an institution. They also argued that marriage was essentially created to foster procreation, which same-sex unions could not, and was thus fundamental to the existence and survival of the human race.

Gay marriage will be a reality in America soon. I see no reason for the proponents of banning gay marriage to make a credible case - especially when we know it is rally driven by religious reasons, which makes them disingenuous AND wrong.

[WinePusher]

I guess that is going to be quite a clarion call for the Right: the judge might be gay.

Oh no!

I guess the left likes to label the right bigots when they claim that a Judge may be gay? Research it for yourself, Judge Walker is openly homosexual.

Tell, me, Winepusher, what is wrong with a gay judge presiding? You don't want gays to get married, and now you don't want them to be judges?

No, not neccesarily. But considering the Supreme Court of California upheld prop 8, and this single judge is gay and the case he is deciding on his about gay issues, I am skeptical of whether his ruling was a genuine interpretation of the law or an activist ruling.

And, SCOTUS might overturn it, but what about State's Rights?

Actually, it was this judge striking a blow aganist State's rights. If SCOTUS upholds prop 8 they will be upholding the voice of the people of California and the right of California as a soverign state to make marriage laws.

[JoeyKnothead]

Ruling - full text.

Score one for freedom!

I can imagine a million oppressors' heads asploding.

[WinePusher]

The judge was gay? What (non-fringe) source told you that?

The news, and wikipedia.

I don't deny it, I just never heard it. Maybe it was consuidered irrelevant?

As this case enters the public dialouge, his sexual preferences will undoubtably be taken into scrutinity.

I agree that the appearance of a conflict of interest might be there, but he does have a sworn duty to uphold.

Yes, but I am skeptical that his orientation played a role in his ruling. And one must wonder why this Judge was chosen to decide this specific case, and why the case was filed in the San Francisco district.

I mistakenly assumed it was a panel of three.

Nope, that'll be the next appeals case in the 9th circuit.

And no one predicted a slam dunk. Remember, he's an appellate judge; they're the grownups. Was he ever asked to recuse himself based on his (alleged) orientation?

I don't think his sexual oreintation disqualifies him fom being a judge, perhaps it disqualifies him from deciding this specific case.

"Undoubtedly" is a prediction leaving no room for doubt. Sounds like you're already counting this defeat as a victory? You may be right. But time will tell.

Well, the liberal wing of the court will vote for gay marriage, and the conservative justices will vote to uphold pro 8. It will come down to Kennedy, who leans towards conservativism.

But wouldn't limiting rights here be against the spirit of true legal conservatism (as oppossed to cultural reactionism)?

Conservatism, in general, maintains the idea that traditional America must be conserved. Legal conservatism would be the philosophy of originalism, and the original constitution nowhere mentions a right to abortion and/or gay marriage. If the people want a right to aborion and/or gay marriage it should come through the legislature, not the courts.

[JoeyKnothead]

I kinda gotta agree that the judge's sexual orientation is a possible factor here. While I agree with this ruling, I'd prefer it be presented by a heterosexual judge, if only to silence that angle.

[Scotracer]

I kinda gotta agree that the judge's sexual orientation is a possible factor here. While I agree with this ruling, I'd prefer it be presented by a heterosexual judge, if only to silence that angle.

Why not get a bisexual or asexual to preside?

Oh and this is a victory for common sense and human rights. The opinion of the many shouldn't infringe on the rights of the few.

[JoeyKnothead]

I kinda gotta agree that the judge's sexual orientation is a possible factor here. While I agree with this ruling, I'd prefer it be presented by a heterosexual judge, if only to silence that angle.

Why not get a bisexual or asexual to preside?

Given the issue, I don't think there's any way to counter claims of bias, no matter who did the judging.

Oh and this is a victory for common sense and human rights. The opinion of the many shouldn't infringe on the rights of the few.

Well stated, and accurate to boot.

[micatala]

The judge was gay? What (non-fringe) source told you that?

The news, and wikipedia.

Yes, I believe winepusher is correct, Walker is openly gay. I believe he was also appointed to his current post by GW. Bush.

I agree, his sexual orientation should really be irrelevant. I don't think it would be fair to claim heterosexual bias simply because a heterosexual judge or set of judges had ruled the other way.

I don't deny it, I just never heard it. Maybe it was consuidered irrelevant?

As this case enters the public dialouge, his sexual preferences will undoubtably be taken into scrutinity.

Yes I expect this will happen, and this will be unfortunate, in my view.

I agree that the appearance of a conflict of interest might be there, but he does have a sworn duty to uphold.

Yes, but I am skeptical that his orientation played a role in his ruling. And one must wonder why this Judge was chosen to decide this specific case, and why the case was filed in the San Francisco district.

My understanding would be the district is determined by the jurisdiction of the law, and where there is ambiguity, but those bringing the suit, which in this case would be Olson and Boies.

I am not sure how judges are chosen when there are options. However, at this point I see no reason to suspect any kind of skullduggery.

And no one predicted a slam dunk. Remember, he's an appellate judge; they're the grownups. Was he ever asked to recuse himself based on his (alleged) orientation?

I don't think his sexual oreintation disqualifies him fom being a judge, perhaps it disqualifies him from deciding this specific case.

I really don't see why. Do we expect divorced men to recuse themselves as judges in divorce cases?

"Undoubtedly" is a prediction leaving no room for doubt. Sounds like you're already counting this defeat as a victory? You may be right. But time will tell.

Well, the liberal wing of the court will vote for gay marriage, and the conservative justices will vote to uphold pro 8. It will come down to Kennedy, who leans towards conservativism.

I agree it will probably come down to Kennedy, but I would not count Roberts as a firm Prop 8 supporter. I think Roberts understands that down the road, a decision with his name on it against gay marriage has the potential over time to make him infamous along the lines of the Chief Justice Roger Taney for the Dred Scott decision or Oliver Wendell Holmes for his Buck v. Bell decision.

But wouldn't limiting rights here be against the spirit of true legal conservatism (as oppossed to cultural reactionism)?

Conservatism, in general, maintains the idea that traditional America must be conserved. Legal conservatism would be the philosophy of originalism, and the original constitution nowhere mentions a right to abortion and/or gay marriage. If the people want a right to aborion and/or gay marriage it should come through the legislature, not the courts.

The problem is the case for gay marriage is firmly entrenched itself in very conservative and constitutional values. The case against it is mired in clearly discriminatory arguments or religious arguments that smack of violating the first amendment.

You are right, the original constitution does not mention abortion, or gay marriage. IN fact, it does not mention marriage at all.

But look at what SCOTUS has written about marriage, based on the inalienable right to "life, liberty, and the pursuit of happiness" and the equal protection clause of the suddenly not the favorite of Republicans 14th amendment.


From Loving v. Virginia, the case that overturned Virginia's ban on interracial marriage.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

From Turner V. Safely, a case based on a Missouri law. The court decided even felons cannot be prevented from marrying.

The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements [482 U.S. 78, 96] are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication.

Marriage as an expression of emotional support and public commitment is every bit as valid for same-sex marriage as heterosexual marriage.


The case for gay marriage is not about creating a new right, it is about recognizing that the restriction of this right to prevent same-sex marriage has no real justification either in the constitution or via any valid state interest. I think even Scalia, Alito, and Thomas are going to be squirming to come up with any valid justification for upholding Prop 8.

[micatala]

The following might be helpful in discussing what the SCOTUS might do when the case reaches them.


http://www.nytimes.com/2010/07/20/us/po ... 20bar.html

The sentence was resolutely bland and nicely hidden in a long Supreme Court decision issued on the last day of the term.

All it said was this: “Our decisions have declined to distinguish between status and conduct in this context.� But the context mattered. Justice Ruth Bader Ginsburg, writing for the majority, was talking about laws affecting gay men and lesbians.

Slipping that thought into a case about the treatment of a Christian student group reminded some of a technique perfected by Justice William J. Brennan Jr., whose fellow justices were wary of his “time bombs.�

“Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote — seeds that would be exploited to their logical extreme in a later case,� Seth Stern and Stephen Wermiel wrote in a new biography of the justice to be published in October.

Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.

There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia.

“The court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,� Professor Goldberg said.

http://www.law.cornell.edu/supct/html/02-102.ZS.html

This is the case that overturned the Texas anti-sodomy law. I believe the minority opinion will include a statement by Scalia to the effect that this case basically removes and real rationale for denying gay marriage. Scalia of course was not happy about this, but it would be ironic if his prophecy holds true.

[TheLibertarian]

This doesn't bother me a bit. I'm a strong believer in H.L. Mencken's dictum that "the masses are asses", and that democracy is a sham. To place so much fiat power in the hands of a motley mixture of undereducated morons is to accept political suicide. The people need an educated elite to rule over them, to safeguard minority rights and prevent the majority from destroying themselves. To that end I decry all efforts by "conservatives" to embrace the direct democracy system present in California.

The thing is, people like WinePusher and his fellow Fundies aren't remotely conservative. They're quite at home with mob rule, so long as the mob does what they want. I reject that, and I reject "the People" as a political fiction. There is only the individual man, the solitary soul.

This is a meritocratic republic, not a democracy. "The People" are not entitled to a vote on the decisions of the individual man.

[WinePusher]

The thing is, people like WinePusher and his fellow Fundies aren't remotely conservative. They're quite at home with mob rule, so long as the mob does what they want. I reject that, and I reject "the People" as a political fiction. There is only the individual man, the solitary soul.

Your inability to reserve judgement knows no bounds, before telling me that I am not a conservative you should maybe pull the large stick out of your own eye. But unlike you, I do not regard the American public as a "mob" that knows nothing. I suppose your arrogance leads you to believe that if the majority of the public disagrees with you, they must be ignorant about the issues?