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
Mike Appleton wrote <>:
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Did you read the same transcript I read? On p. 35-36, the judge explicitly states that proponents’ counsel on 15 Jan 2010 stated that the witnesses “were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever.” This includes the two witnesses whose deposition was entered into evidence by plaintiffs.
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It does not say that. It says the witnesses were withdrawn on 11 Jan 2010. The permanent stay on broadcast was issued 13 Jan 2010. The court withdrew the case from the public broadcast on 15 Jan 2010 and the proponents affirmed the withdrawal the same day.
Note, however, the question for the witnesses was not the legitimate public release of the tapes. Rather, it was any taping. I do not think that there is anyone foolish enough to believe that they would not be leaked.
I advise everyone to read it themselves at:
https://ecf.cand.uscourts.gov/cand/09cv2292/
Karl Rove is truly a genius. He undoubtedly engineered this. He does his friend Dick Cheney a favor and, at the same time, gives the Republicans the best issue ever. They can take the high road and say they oppose the way that the issue was resolved. Dummycrats, on the other hand, can not take a position either way. If they oppose Prop 8, they lose Blacks and Hispanics. If they support it, they lose lefty whites. They are really in a bind. Fox News is abuzz with the issue.
Judge Walker is gay, but he is very conservative on everything, except drugs 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.
This will be a big boost to Republicans in the Ninth where there are three critical Senate races leaning Democratic, CA, WA and NV. Hispanics are 22% of the population of NV and heavily supported Prop 8. If Sharron Angle corners Reid into taking a position on either side, he is a dead man.
It is also a way to out Democrats who do not really support gays? Obama and the Dummycrats have done nothing to advance gay rights. I doubt if Obama will even rescind “Don’t Ask, Don’t Tell.”
Mike Appleton wrote:
“As for TraderB’s suggestion that the defense was hamstrung due to threats to its witnesses and the suspected homosexuality of the judge, I would advise that he stick to commenting on the toxic effects of chemical dispersants in sea water. The court pointedly noted on pages 35 and 36 of the opinion that the defense withdrew witnesses even after the Supreme Court had barred the taping of the trial.”
I was obviously aware of that and covered it by my statement that:
“The judge was overruled by the Supreme Court. However, the public knowledge of the tape made it likely that there would be a leak.”
Buddha Is Laughing
“Nice to see you admit not only that you a liar, but that you are proud of it. Says a lot about you.”
You are just jealous that Karl Rove outwitted Rahm Emmanuel. We will never see another Democratic President after 2012.
Buddha Is Laughing wrote:
“For the ruling: Kennedy, Ginsberg, Sotomayor, Kagan, Breyer”
I doubt if it will make it past the Ninth. Due process, in it real meaning, applies to the proponents as well.
Yissil wrote:
“This is pretty cool. These are the Proposition 8 Trial Re-enactment videos from marriagetrial.com. Since video wasn’t allowed in the courtroom they had actors act out each day’s transcript and put it on youtube. It’s very well done”
There is videotape. It just could not be released.
This is pretty cool. These are the Proposition 8 Trial Re-enactment videos from marriagetrial.com. Since video wasn’t allowed in the courtroom they had actors act out each day’s transcript and put it on youtube. It’s very well done.
[youtube=http://www.youtube.com/watch?v=Jss6yO9LwUg&hl=en_US&fs=1]
TraitorB,
Nice to see you admit not only that you a liar, but that you are proud of it. Says a lot about you.
This is indeed good news. Congratulations on finally getting the recognition and respect from the law that the LGBT community deserves. As a firm believer in the concept of liberty and justice for all, it’s good to see a win for the egalitarian team. As to SCOTUS? I see SCOTUS breaking down this way:
For the ruling: Kennedy, Ginsberg, Sotomayor, Kagan, Breyer
Against the ruling: Scalia, Thomas, Roberts, Ailito
The Four Horsemen of the Apocalypse’s pending votes hardly require psychic abilities to predict, but at least they are consistent.
As to the GOP sideshow? It’s going to be a spectacular display of hatred “in the name of Jesus”. And the Tea Baggers might just flat out catch on fire.
After reading the posts by the experienced lawyers herein and elsewhere, Judge Walker made a sound, reasonable ruling. In fact, it was the only rational ruling he could have made considering his citations of legal precedent.
I certaing like this statement that Mespo quoted: (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).
Byron,
That’s like asking if a state has a right to legislate corporations.
Of course it does, neither marriage nor corporations exist outside of the state saying that they do. Legally speaking, a marriage is after all, just a contract.
Here’s the crux of the well-reasoned and well-documented opinion, in my view:
In the absence of a rational basis, what remains of
proponents’ case is an inference, amply supported by evidence in
the record, that Proposition 8 was premised on the belief that
same-sex couples simply are not as good as opposite-sex couples.
FF 78-80. Whether that belief is based on moral disapproval of
homosexuality, animus towards gays and lesbians or simply a belief
that a relationship between a man and a woman is inherently better
than a relationship between two men or two women, this belief is
not a proper basis on which to legislate. See Romer, 517 US at
633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433
(1984) (“[T]he Constitution cannot control [private biases] but
neither can it tolerate them.”).
This decision was a good start in guaranteeing that gay couples the same rights that straight couples have. The only argument the Right can come up with are religous ones that should have zero legal weight. I do believe that the Supremes will get involved in this one just in time for the 2012 election. I can only imagine how wild the Religous Right will be over this “evil” decision.
Mike Appleton:
“In my view, however, minorities in this country who are ambivalent about gay rights would do well to keep in mind that Proposition 8 at bottom was an attempt to eliminate minority rights by majority vote, a direct assault on the Constitution.”
That was the money shot. I hope my conservative brethren understand that is the real issue when it comes to gay marriage.
Mike Appleton:
good post. From a purely objective view, gays should be given the same ability to marry/enter into civil unions as heterosexuals. But is it an issue of civil rights? And should the federal government be involved in the same way it segregated schools in the south? Quite frankly is a prohibition against gay marriage even legal?
Does a state even have the right to legislate that area of a persons life? I dont think they do so why have they? It seems to me it was unconstitutional from the beginning. Why didnt a challenge come many years ago? Restrictions on a persons free excercise of their personal choice seems unconstitutional. (Obviously you can’t chose to beat someone over the head with a bat.) So why hasnt the legal profession spoken out against this years ago and why has it taken so long to get a hearing in front of the SC? I would think this is where this is headed.
Mike,
As I noted, I don’t have a big stake in either side. However, I do like it as an issue to demagogue. Only time will tell whether which legal interpretation. I will make this prediction, the Ninth will call for a new trial. What is you prediction?
AY,
The signature on the previous in not really Karl Rove Just a simple mistake.
Anonymously Yours,
“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.”
Thank you, AY.
Karl
On January 2, 2009, I wrote the following comment (Brown Seeks to Overturn Proposition 8):
“In my view we will never be able to have a rational discussion about marriage in this country unless we are able to agree on what we mean when we use the term “marriage.” Most debates on the issue break down because the participants fail to recognize the distinction between marriage as a legal union and marriage as a sacramental bonding. The state has a legitimate interest in the former and no interest whatsoever in the latter.
Broadly stated, a principal purpose of law is to define relationships and the rights and duties that flow from them. When, through the process of recording a document, the state confirms the existence of a marriage, it is simply acknowledging the creation of a legal relationship which will be recognized as such for certain statutory and common law purposes. In essence, the effect is identical to what occurs when the state issues a charter confirming that a new corporation has been validly formed or a title certificate transferring the ownership of a motor vehicle. In each instance, the action of the state merely confers legal recognition on an authorized type of relationship. It does not address the morality of the underlying transaction, nor confer the blessings of the Almighty.
The issue confronting society in the context of gay individuals is whether government should give legal recognition to gay couples and, if so, whether that recognition should be coextensive with that afforded heterosexual couples who have entered into a legal marriage (i.e., a civil union). Proponents of legal recognition argue that there is no rational basis to treat homosexual and heterosexual partners any differently under the law. I have long agreed with this view.
Opponents of gay marriage confuse the role of the state in regulating the legal aspects of civil unions (or marriages) and the role of religion in providing a sacramental foundation for relationships which meet the criteria of a particular religion. In other words, opponents of gay marriage argue that the legal recognition of gay relationships somehow undermines the sacramental character of marriage as they understand it. But this is quite literally nonsense. The state has nothing whatsoever to do with marriage as a religious sacrament. Therefore, the legal recognition of gay relationships has absolutely no bearing on a person’s religious view of marriage. In sum, the fear expressed by many sincerely religious people that recognition of gay marriage by the state will corrupt the theological underpinnings of marriage is simply wrong. It is, however, another example of the sort of muddled thinking we fall into when we attempt to integrate particular religious viewpoints into the law.”
Following the decision of the California Supreme Court upholding Proposition 8, I commented as follows (California Supreme Court Votes 6-1 to Uphold Proposition 8):
“I remain mystified by the widespread misunderstanding of the respective roles of the state and religion on the institution of marriage. The state’s interest relates to the bundle of legal rights and responsibilities created by marriage. Accordingly, each state has adopted by statute and litigation a detailed legal framework through which it issues licenses, maintains records of vital statistics, regulates the acquisition and disposition of assets, provides rules for the custody and support of children and determines the legal consequences of death and dissolution. The role of the state, then, is in the creation and regulation of legal relations arising from civil unions.
The interest of religion in marriage is scriptural and sacramental. Each religious body determines its own eligibility requirements and adopts its own rules and rituals within a specific doctrinal framework. The religious ceremony does not create the legal relationship; it confers a sacramental blessing. Thus the right to terminate the legal relationship remains regardless of the religion’s view on the permissibility of divorce.
Unfortunately, the word “marriage” is used interchangeably to describe separate and distinct relationships. As a result, people of strong religious views treat the interests of the state and religion in marital relationships as indistinguishable. When anyone proposes expanding the class of people whose relationships should receive legal recognition by the state, religion regards the proposal as an attack on the religious institution. In biblical terms, the resulting debate calls to mind the story of the Tower of Babel.
Although they would deny it, and the denial of many would be in good faith, the arguments of opponents of gay marriage (or civil unions between gay persons) are essentially theocratic. The controversy will never be resolved until we recognize and restore to its rightful place the doctrine of separation of church and state.”
And on November 5, 2009, I added (Maine Voters Repeal Law Allowing Gays to Marry):
“This is purely an issue of civil rights and we cannot expect a rational discussion of it unless and until people begin to grasp the fundamental distinctions between the roles of religion and government in the recognition and regulation of private relationships.”
Judge Walker has written an opinion which demonstrates that he has a very clear understanding of the distinctions. As he notes on page 62 of the opinion:
“Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.” Bingo.
The court saw through the defense arguments because they were pathetic attempts to throw a secular cloak around a law primarily intended to adopt as a tenet of public policy the view that same-sex relationships are inherently immoral. (See p. 20). The proponents even submitted testimony from a witness who opined that same-sex marriage would lead to the eventual abandonment of the states to Satan. (p. 22).
Whether all of the court’s conclusions of fact were amply supported may be subject to argument, but there were a sufficient number of well-founded conclusions to support his ruling that Proposition 8 violates both due process and equal protection (at least until the Fourteenth Amendment is repealed by the Republicans).
As for TraderB’s suggestion that the defense was hamstrung due to threats to its witnesses and the suspected homosexuality of the judge, I would advise that he stick to commenting on the toxic effects of chemical dispersants in sea water. The court pointedly noted on pages 35 and 36 of the opinion that the defense withdrew witnesses even after the Supreme Court had barred the taping of the trial. Certain witnesses were withdrawn because their deposition testimony actually supported the position of the plaintiffs. Other witnesses withdrew for unknown reasons, but most probably not because they feared mobs of rampaging gays. It is much more likely that they recalled Spencer Tracy’s destruction of Fredric March in “Inherit the Wind.”
And whether the opinion will serve to encourage Hispanics and blacks to vote Republican is beside the point. In my view, however, minorities in this country who are ambivalent about gay rights would do well to keep in mind that Proposition 8 at bottom was an attempt to eliminate minority rights by majority vote, a direct assault on the Constitution. If I were a member of a minority, I would be cautious about supporting politicians who find it acceptable for the majority to run roughshod over a disfavored minority.
Swarthmore mom,
The problem for republicans is that all those little grass root folks don’t have any money left thanks to the great republican recession of 2007/2008 … they are having enough trouble supporting their preachers. Only the billionaires are left and that might dry up somewhat when the tax cuts expire.