The decision by United States District Court Judge Vaughn Walker striking down Proposition 8 in California is a fascinating read. It is also an opinion that is likely to trigger not only a furious appeal but a renewed demand for a constitutional amendment barring same sex marriage.
The critical part of the Walker opinion in Perry v. Schwarzenegger may be his findings of fact. Normally, such findings are given deference by the appellate court — as opposed to the de novo review afforded legal questions. It will be interesting to see how these findings are treated on appeal. The state has announced that it will be filing an appeal.
Walker went out of his way to iron plate his opinion with citations directly to the record on development of children and testimony on gay marriages. Walker knew that these are not subjects that should be the subject for judicial notice and that they must be given deference. However, some judges and justices may not want to be bound by such findings and may view this as more of a legal question. Some findings appear unassailable like this one: “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.” It should also be a matter of judicial notice to find: “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” It gets a bit more controversial with the following:
[T]the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8.
That leads to the following conclusion:
Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.
The rational basis test is usually viewed as rather easy to satisfy — making these findings even more important for the plaintiffs. In one of the most important passages, Walker states:
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. 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.
. . . Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
While this decision is likely to trigger calls for the constitutional amendment, it is important to note that it does not bind other states or circuits. Moreover, the assumption that the Court would clearly accept cert could prove misplaced. Historically, the Court has preferred to let the circuits develop their own — and often conflicting — views on matters with such great political and social interest. While I agree that this case would appear a very strong candidate for cert, the Court has avoided the same sex marriage issues for years. Indeed, in crafting the Lawrence v. Texas decision, the Court seemed to go to great lengths to avoid a holding that could be used to support such a claim.
There is a misconception about the Ninth Circuit, which will eventually hear this case. While it is viewed as the most liberal, it has a fair number of conservatives on the Court. Moreover, many judges are likely to view a failure under the rational basis test for a state to be questionable. You never know what panel you will be given, including the possibility of a panel with district court judges sitting by designation. Any ruling by the panel can then be appealed by the losing side to the entire court through an en banc petition — before proceeding to the Supreme Court.
Any way it goes, this case could be before the Supreme Court and a new Justice Kagan in a matter of a few years. If critics are right that Kagan lacks a judicial philosophy, she will need to get one pretty quick with cases like this one heading to the Court. Each involve sweeping issues ranging from equal protection to federalism to federal jurisdiction.
Here is the opinion: FF_CL_Final
Anonymously Yours wrote:
“is this the same TraderB who said that he/she or they would be back after Sherrod sued?”
Yes, but notice how carefully worded it was. I did not say I would be back only after she sued. I learned from the master, Bill Clinton.
frankdawg
“The Anti-marriage forces did not put up a real defense of their position.”
They may not have been able to get good expert witnesses. However, if we want to get into conspiracy theories, I came up with one. First of all, Judge Walker is gay, but he is very conservative on everything, except drug and gay rights. In fact, he sounds more like a Libertarian, perhaps even a Tea Party supporter. Fox has interviewed many gays who have attended their meetings and they have all found them to be gay-friendly.
Could he have made the decision for political reasons? This will be a big boost to Republicans in the Ninth where there are three critical Senate races leaning Democratic, CA, WA and NV.
Secondly, is this a way to out Democrats who do not really support gays? Reid is running in NV, which is 22% Hispanic, probably nearly half of his support. Hispanics in CA heavily supported Prop 8. If Angle backs him into a corner and makes him come out in favor of the ruling, he is dead meat.
Nope Lotta … didn’t work for me … and I wanted sunglasses!
(if prop 8 had)
going to give it a try (8)
TraderB
1, August 5, 2010 at 5:08 pm
“…. There were numerous instances of violent attacks by gays on Prop 8 supporters shown in the media. …”
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Not only are gays coming to get your men and your women … they’re going to bonk you on the head too … send more money for divine protection … thus sayeth the lord.
Hark, Hark,
is this the same TraderB who said that he/she or they would be back after Sherrod sued?
His “facts” were based on rather dubious expert testimony. The defense had a weak case, because only two experts would testify. The judge said that they were not qualified as witnesses and gave their opinions no weight.
Their witnesses were scared off by the judge who ruled that he would make the video of the trial public every day, in spite of the fact that there was a threatening atmosphere. There were numerous instances of violent attacks by gays on Prop 8 supporters shown in the media.
The judge was overruled by the Supreme Court. However, the public knowledge of the tape made it likely that there would be a leak. I suspect that the Ninth Circuit will rule for a new trial in a safer venue without videotaping.
This just makes me, happy. I am do Happy that they got it right. At least Dick Cheneys daughter will know she is safe from the abuse from the conservatives….
Political hacks are not the only ones who use this issue to raise funds … preachers also use the issue to help raise funds to line their pockets … not just Christian white preachers … though they are the ones who willingly partner with the political hacks … Christian black preachers are just as guilty. It’s a particularly ugly partnership.
frankdawg:
“By allowing this to drag on in the courts the money river keeps flowing from teabagging morans and the religiously insane into their pockets.”
Nice tie in to this sign:
http://politicalhumor.about.com/library/images/blpic-moran.htm
The Anti-marriage forces did not put up a real defense of their position. I do not think that is arrogance or sloth on their part but actually part of the plan. The people behind this don’t really care about the issue except that it is a great fund raising tool for the forces of darkness.
If same-sex marriage were to be a settled issue in CA there would be no need to fund raise to prevent it. The suckers would stop sending money to the con men and crooks that keep them in panic to make the fleecing easy.
By allowing this to drag on in the courts the money river keeps flowing from teabagging morans and the religiously insane into their pockets.
Mike Appleton:
isnt gay marriage illegal only because some states legislature says it is? Isnt gay marriage a non-issue?
The testimony of the defendants had no empiric basis and that seems to be at the heart of the opinion. The Right has been using gay marriage as a get out the vote strategy, and it still may be effective despite the declining opposition to same-sex marriage. Most of the opposition is concentrated in older age groups (where voter participation is greater) in the Southeast which seems to elect the most socially regressive representatives.
Weird. Every time I type an eight in parens I get a smiley face with sunglasses. Probably a smily-code trick I knew at one time but forgot. Oh well, it simply mirrors my boundless joy at the ruling. .
Blouise and I had a couple of comments about this decision on another thread and like the decision. From what I’ve read of the decision it’s well founded and the proponent’s (of prop 8) had a weak case based on nothing more than bias against homosexuals. This is really monumental. The battle is now joined and won’t end short of SCOTUS and Congress. Either the (now) national question of civil rights for GLBT persons will be upheld or we will be treated to the spectacle of this country revealing itself to the world as a backward, legally sanctioned at the highest levels of justice, discriminatory nation. I am hoping for progress and the (metaphorical) bloody bodies of the moss-backs on the barroom floor. It’s a great day for justice 🙂
Maybe it won’t be an intense argument.
A few religious types will profess their ideologies.
It’s up to the rest of us whether we remain calm, or get dragged into screaming matches.
I’ve downloaded the opinion, but haven’t read it yet. I predict that this thread will become intense.
Cultural evolution seems to take forever … probably because ignorance is so stubborn.
Good on you Judge Walker.