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
Celebrate victory, but prepare for the worst…
http://www.deciminyan.org/2010/08/celebrate-victory-but-prepare-for-worst.html
Cheney got his start in government as a staff member in Nixon’s administration … then Chief of Staff under Ford
Swarthmore mom,
From the article you linked:
“Like many groups on the liberal side of the political spectrum, we receive support from large, small and online donors – and while we are barely four months old, our membership is expanding rapidly, …. review of its IRS filings show that four billionaires have contributed 97 percent of the $4.7 million it has raised to date.”
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These guys always try to make themselves appear popular … when in all actuality … no one invited them to the prom.
Anonymously Yours wrote:
“you are as sick and twisted as Rove. I don’t think you are a smart as Cheney or as clever as Atwater, but you are still sick and twisted none the less….”
I actually think I am smarter. Obama and I have one thing in common. We attended the same university.a
The State of California did not put on the defense case, as the Attorney General believes it is unconstitutional.
As to an inability to obtain experts because of a fear of being taped, I simply don’t believe it. We regularly see people publicly take very unpopular positions all the time. Given the strength of the organizations supporting the proposition, counsel could have found qualified experts willing to discuss the matters at issue. Either they didn’t try, or the data just isn’t there to be testified about, or both. Personally, I think it was both–counsel chose to put little emphasis on the evidentiary aspects of the case, and any expert testifying that the state has some legitimate interest in refusing to allow same-sex marriage while effectively blessing heterosexual marriage would be torn apart when cross-examined on any data cited to support that view.
Smart judge and did a LOT of work to cover his bases. What was SO surprising was the incredibly weak case the government had to try and support prop 8… How lame was that???
As “Gypes” says above…”Good on you Judge Walker.”
Anonymously Yours
“The master is Tricky Dick. I actually liked him to….”
He is a perfect example of the old saying that “paranoia will destroy ya”. He did a lot of things that should have put him among the great progressive Presidents, so admired by liberals. He was actually to the left of Kennedy on most issues. Yet, he managed to become a pariah by associating with a bunch of screwballs.
TraderB:
I thought that was an interesting take on it. Politics is blood sport. Blacks and Hispanics tend to be conservative socially and attend church, hispanics are very family oriented.
Most of the blacks I speak with could be classified as conservative democrats of the old school or just a hair to the right of center republicans. But they will vote for far left candidates. When I ask them about it they tell me they are leery of republicans.
http://www.salon.com/news/politics/war_room/2010/07/23/rove_group_billionaire_donors Rove has a new group funded by Dallas billionaires.
Blouise,
w may have dropped him, but did Cheney release him as his private Monkey?
AY … gotcha boss, on my way
TraderB … I’m glad somebody still loves Karl … Bushie dropped him like a hot potato … somebody else did too, I just can’t remember her name ……
Well TraderB, You are indeed evil. I am not sure if you are the axis of evil, but damn close, if Rove is your mentor.
TraderB
“For all the mental gyrations, spins, turns and tortured twists of logic required to come to the convoluted conclusions of your posts, you might consider applying for Dancing with the Stars. It is quite amusing to watch you dance around trying to turn this to conservatives’ advantage.”
Actually, it is Karl Rove who came up with it first. If he manipulates thing as well as lefties think, he might be behind my speculation about the judge’s motives.
TraderB,
You are as sick and twisted as Rove. I don’t think you are a smart as Cheney or as clever as Atwater, but you are still sick and twisted none the less….
Judge Napolitano said on Fox that, based on previous rulings, Kennedy would likely vote against Prop 8. I am for Prop 8, but it is not a big deal either way. However, it is a good way for Republicans to make inroads into the Black and Hispanic communities.
TraderB
For all the mental gyrations, spins, turns and tortured twists of logic required to come to the convoluted conclusions of your posts, you might consider applying for Dancing with the Stars. It is quite amusing to watch you dance around trying to turn this to conservatives’ advantage.
Yes and that why it is so sad that your party tricks them in to voting against something that they are really for. Have you ever looked at a ballot measure per chance? Generally they are written in the negative…Then you say sucker….just like Cuban did to Tom Hicks last night or was that….so long sucker….Hicks is out no matter if Cuban got the nod or not….I think poetic justice prevailed….Nor did he get his side wager which was to sell the parking lot for 70 million to them….he screwed us with w (loss of importance from W) and ended up screwing himself….teach him to change guppies in the lake…
Anonymously Yours wrote:
“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….”
The two major Democratic voting blocks, Black and Hispanics, overwhelmingly supported Prop 8. 70% of Blacks voted for it. It probably would not have passed if Obama had not been running.
Nah,
The master is Tricky Dick. I actually liked him to….
Blouise,
Please direct all donations to the address you have from the ABA routing number to assure that it properly deposited in the proper account.
Please direct all correspondence to the previously designated hold spot. Please do not place in the ordinary bins to be collected by the refuse people again. It caused nothing but headaches for the administrative staff. Please scan the other envelopes to assure that they contain no donations for the work of the people.
I am trying to workout a deal with homeland security to borrow a IRED to assist in your work. But for right now, take it to the airport between 1 and 5 am and scan those. It has been worked out with the evening shift supervisor.
Again, Please do not toss them, until scanned and incinerated. Did I say incinerated, I meant to say, to the stack that makes them organic as soon as possible. Ash is good for the soil..