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
Tootie,
AH, so the rational interest is “we don’t want to be like THOSE people.”
By the way, included in “THOSE people” are the ancient forerunners of Christianity. I mean unless you don’t think the Old Testament is the literal truth.
From http://www.princeton.edu/~pswpc/pdfs/scheidel/060807.pdf
“Greek and Roman marital and mating practices were unusual and conventional at the same time: unusual thanks to the observance of [Socially Imposed Uniform Monogom] and conventional in the pursuit of resource polygyny. It seems moot to speculate whether the success of these cultures may have been linked to SIUM: as long as we are unable to answer this question regarding contemporary societies it is surely fruitless to ask it about the much more distant past. SIUM could have been of relevance in so far as it contributed to historically high levels of cooperation and popular mobilization. At the same time, it would be unwarranted to exaggerate the extent of Greco-Roman exceptionalism: while married men’s concubinage with free women may have been marginalized because of its logical incompatibility with SIUM, recourse to slave concubines and casual sex partners mitigated socially imposed sexual and reproductive egalitarianism for elites and helped to reconcile formal monogamy with effective resource polygyny. We may conclude that Greece and Rome occupied an intermediate position on the spectrum between overt polygamy (in the sub-Saharan African mode) and the more effective regimes of serial monogamy and monogyny of the present.”
Voting for democrats in Texas makes a big difference on the state level. They are not creationists. This means no creationists on the state school board.
Slarti,
Perhaps coincidental wasn’t the best word choice, but that one has one structure dependent upon actual voters and the other another dictated almost solely by graft is chance. The relationship could just as easily be reversed. If you want to talk structure, this is an inherent structural weakness of a two party system. One party has to be bad cop, the other good cop, despite the very real fact they both work for K St. at the end of the day.
People that favor some form of social justice are more likely to be democrats. If you read the platforms of the two parties, they are markedly different. This is not to say that all the elected democratic officials carry out that platform.
Buddha said:
“Because the Dems are demonstrably less evil than the GOP is purely coincidence.”
I think that part of the reason that Democrats are demonstrably less evil is structural, not coincidental. For example, Republicans increase their electoral chances by voter suppression (especially amongst the poor and minorities) while Democrats increase their chances by voter registration (especially amongst the poor and minorities) – I don’t think this is because the Democrats are altruistic and the Republicans are evil, I think it is due to the demographic realities…
Swarthmore mom,
You mean there are some “Crazy Right Wingers” I thought they all were. I just learned something this morning….
http://tpmdc.talkingpointsmemo.com/2010/08/gop-rep-inglis-tells-cnn-about-crazy-right-wingers-who-ousted-him-video.php This republican stood up to the conspiracy theorists and lost.
The Green Party in Texas was bought by the republicans this year. Like I have said before, the only independent candidate that is doing well this year is Charlie Crist. He was rejected by the republican party in Florida for being too moderate. Now he has put together a coalition of conservative democrats and moderate republicans.
I know you are an Independent not a democrat Buddah.
Note I said “less”.
After their failure to take out the blatant traitor Bush, I have no use for the DNC. Aiders and abettors after the fact. Some individuals are fine (like Kucinich, Grayson and Franken) but they are just as K St. graft infected as the GOP.
Bought off by different interests is still bought off.
Then those people would be as stupid as someone who would vote for Bush. Rahm Emmanuel is an untrustworthy corporatist shitheel on par with the worst in the Senate. Of course, none of his obstructionism and capitulation to Wall St. would have to do with his tenure at Freddie Mac from 2000-2001 and you’d have to simply be paying attention to think so.
Don’t forget, Smom, I’m against criminals in both and any>/i> party.
Because the Dems are demonstrably less evil than the GOP is purely coincidence.
Buddah I bet some people still love him in Chicago. He took the old Blagojevich seat.
Smom,
Notice the past-tense. With national media exposure, that obstructionist jackass couldn’t get elected dog catcher.
I agree with Prof. Turley that some of the “findings of fact” in the opinion are questionable. I know that appellate courts defer to district courts on findings of fact, but wonder what will happen here. It will be interesting to see how this is handled, legally speaking.
While Rove has never served in public office, Rahm Emanuel was elected to Congress from the 5th congressional district in Illinois.
“At approximately 8:25 p.m. last Sunday night, the New York State Police on Long Island logged a 911 call about a toddler in cardiac arrest. The boy, 17-month-old Roy Jones, was rushed from the Shinnecock Indian Reservation in Southampton, N.Y. to Southampton Hospital, where he was pronounced dead at 9:11 p.m.
According to authorities, the toddler had endured a savage beating. His tiny body had been repeatedly punched with closed fists and grabbed by the neck. By the time 911 had been called at dusk, he was already in cardiac arrest from the sheer brutality of the assault and it was too late to save his life.
Charged with manslaughter in the first degree and held without bail is the toddler’s mother’s live-in boyfriend, 20-year-old Pedro Jones, who was babysitting. The pair lived together on Shinnecock Nation tribal land, though Jones himself was not a member of the tribe. They were reportedly to marry, and Jones called the toddler ‘my baby,’ though Roy was not, in fact his baby.
‘I was trying to make him act like a boy instead of a little girl,’ Jones explained. ‘I never struck that kid that hard before. A one-time mistake, and I am going to do 20 years.’
He told troopers that the little boy had been too feminine and that he’d been trying to toughen Roy up by literally beating the life out of him.
‘I’m sorry,’ he said ‘That’s my baby. I loved him to death.’
A nominally civilized society such as ours can only recoil in horror at any news of a child’s death at the abusive hands of an adult. Infanticide is the ultimate forfeiture of our humanity, rightly seen as a perversion of the very essence of the natural order and the circle of life. The act is a declaration of such abject monstrosity that is very nearly beyond forgiveness. But it happens every day, and we guiltily avert our eyes to these stories when we read them because, on some level, we realize that the children could easily be our own and the pain is too much to bear. In 2008, in the U.S. alone, the Department of Health and Human Services reported 772,000 cases of child abuse, resulting 1,740 fatalities–a sharp rise from 1,330 in 2000.
But there is an added and significant dimension to the tragedy. The reason given for the beating is that, even at 17 months, the toddler was perceived by his killer to be effeminate. Madhouse logic indeed, but to Pedro Jones there was a way that little boys should act and a way little girls should act.”
To see the rest of the story about what happens when people who “think” like Tootie run amok, see http://www.huffingtonpost.com/michael-rowe/what-it-says-about-us-whe_b_671373.html
Tootles,
Nice to see that you’ll admit homosexuality is natural (and ergo a creation of God) but that you alone are the decider about what is “normal biology”.
Tell me, does God like it when you criticize His work to His face or does that just ever come up when you have Him on the phone?
Yeah, you know something about pathology alright. And when I say “know”, I mean “exemplify”.
Jealous, TraitorB?
Hardly. Of either Rove or Emmanuel.
See, unlike you, someone proud to be a liar and propagandist, I see both of those guys for exactly what they are.
Unelected and unelectable parasites.
At least you guys have that going for you.
Which is nice.
If this spreads, it will lead to polygamy and polygamy is a bell-weather indicator generally associated with primitive or backwards civilizations (Islam, Africa, Island Cultures).
Monogamy is more associated with advanced civilizations (Egypt, Greece, Roman, Europe and offspring).
For the court to say there is no evidence that homosexual “marriage” doesn’t hurt anything is ridiculous because there is no such body of evidence complete enough as to be definitive. It would take many generations for this to show up in the data. And by then it would likely be too late to reverse course should it be destructive.
On the other hand, nature provides millions of years of solid evidence (if you believe in evolution) and thousands of years if you don’t. And that evidence is that most mammals are heterosexual. If we are descended from the lower mammals, then we are very much like them in this way and most of human history confirms it. If we are not descended, it still holds true.
I am not denying that there is a biological basis for some homosexuality. There is a biological basis for some criminal activity. And there is a biological basis for birth defects. In fact, everything HAS to have a biological basis.
The question is how we treat or respond to normal biological pathology.
Turning civilization on its head is not my idea of a good response.
Mike Appleton wrote in “”:
“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.”
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.
“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.”
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/