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
Kennedy is the swing vote. It used to be O’Connor and she was more liberal than he.
I think it possible that the SC would rule, 5-4, that the Constitution does not prevent people from enshrining their prejudices into law, whether or not they have any basis in fact. I hope I’m wrong, but I wouldn’t be surprised by such a ruling.
Is gay the new black?
“Two days ago I wrote a column addressing the recent Federal Circuit Court decision in California which reversed Proposition 8 and set the stage for a Supreme Court battle to legalize same-sex marriage. It has been met with mixed reactions.
There appears to be three sides of the debate and great minds find different angles within the maze. First, most agree that civil rights protections should be extended to all minority groups – but stop just short of marriage. These seem to have adopted the far-right narrative that marriage is a “sacred institution” reserved for “one man and one woman”. Others seem to believe that gays are dying and going to “hell” in a hand basket and don’t deserve the respect of the law in any regard. And then there is the small minority, who don’t care what others do in the privacy of their bedrooms, or believe in the solitude of their hearts – and as a result, are happy to live and let live. I am of the latter contingent, but have found that this space is never fully occupied and it appears to be mostly open for rent.”
http://www.thegrio.com/politics/how-being-gay-has-become-the-new-black.php
From Huffington Post (8/6/2010)
Supreme ‘Double Rainbow’: Two Marriage Equality Rulings Head Toward High Court
http://www.huffingtonpost.com/2010/08/06/supreme-double-rainbow-tw_n_673653.html
Excerpt:
With U.S. District Judge Vaughn Walker’s decision to overturn California’s ban on same-sex marriages, we now have two landmark marriage equality cases wending their way forward through the legal process, with the Supreme Court looming as their potential final destination.
The first is the aforementioned Prop 8 decision. The second is last month’s ruling by U.S. District Judge Joseph Tauro, who ruled that the federal ban on same-sex marriage, more commonly known as the Defense of Marriage Act (DOMA), was unconstitutional. Taken at first blush, this combination of midsummer rulings seem to represent a wave of support for same-sex marriage. But on closer inspection, it would seem that not all marriage equality cases are created equal.
In deciding Perry v. Schwarzenegger, Judge Walker seemed to anticipate that his decision had a date with the Supreme Court, and so he went out of his way to set the stage for the occasion. Over at Slate, Dahlia Lithwick contends that Walker more or less hardwired his ruling directly to the legal amygdala of the very Supreme Court Justice who would represent the swing vote in the case:
Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count–in his opinion today–seven citations to Justice Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law). In a stunning decision this afternoon, finding California’s Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “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,” Walker notes, with a jerk of the thumb at Kennedy.
Byron,
What’s most disturbing to me is how she doesn’t really seem to care about the policies she advocates (excepting some of her stands which are based on her religious views). All she seems to care about is saying whatever will give red meat to her uber-partisan audience in a way the she can exploit for her own opportunism.
tomdarch 1, August 5, 2010 at 2:40 pm
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.
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yep, dragged into a nonsensical screaming match.
Carry on feeding the trolls.
Slarti:
“I don’t think she in any way embodies it (she supports that Alaskan communist redistribution of oil wealth, after all…).”
you hit that on the head and skinned it to. She is bad news for the free market and human beings in general. Your example is just one of the reasons she should be defeated.
http://tpmdc.talkingpointsmemo.com/2010/08/angle-to-headline-event-promoted-by-anti-medicare-hiv-denying-conspiracy-theorist-group.php?ref=fpa Sharon Angle is heading this event for tea party doctors.
Fiorina was running against a “liberal” republican. I am serious. Of course Palin endorsed the conservative Fiorina. Fiorina by the way ran HP into the ground. Maybe Fiorina will support Palin for president as her i.o.u.
Embarrasing number of typos, I must say.
In any case, there are no such thing as “Tea Party candidates” there are only Republican candidates. It’s the Republican Party who decides what issues its going to run on, and most other things.
When Sarah Palin endorrsed Carly Fiorina she was dissing her base and acting like a Republican powerbroker. Palin may not be the sharpest pencil in the box, but she is the consummate opportunist.
http://voices.washingtonpost.com/right-now/2010/05/how_did_carly_fiorina_become_a.html Carly Fiorini is anti-abortion. She beat a pro choice republican, Tom Campbell, in the primary. Her anti-choice stance is hurting her in California.
TraderB,
Sarah Palin can support anyone she wants to due to her lack of logical consistency and intellectual honesty. And while she may have high approval ratings amongst the Tea Party, I don’t think she in any way embodies it (she supports that Alaskan communist redistribution of oil wealth, after all…).
TraderB,
” … The Tea Party, stays neutral on moral issues, even though individuals disagree. …”
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Not in my neck of the woods … here it’s all about “moral” issues.
Swarthmore mom wrote:
“http://maddowblog.msnbc.msn.com/_news/2010/08/06/4831343-gops-new-stealth-issue-abortion Republicans may me giving up on gay marriage this time around and concentrating on abortion.”
The two she cited are Tea Party candidates. The Tea Party, stays neutral on moral issues, even though individuals disagree. That is why Sarah Palin can support Carly Fiorina.
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/13/AR2010071301436.html
http://www.huffingtonpost.com/2010/08/06/first-punish-the-unemploy_n_673335.html Republicans have another target besides gays, minorities and women – the unemployed.
Mespo:
it is the same for both ideologies but for different reasons and for different issues.
The bottom line, at least in my mind, is what Mike Appleton wrote above:
“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.”
However that view cuts both ways and is as it should be. Isn’t that what America and our Constitution is about after all, the protection of the individual from incursions of the majority and the government into areas where they do not belong.
http://maddowblog.msnbc.msn.com/_news/2010/08/06/4831343-gops-new-stealth-issue-abortion Republicans may me giving up on gay marriage this time around and concentrating on abortion.
I am continually amazed at how the conservative mind regards a plebiscite. When it advances an idea near and dear as with Prop 8, it is a “triumph of democracy” sacrosanct from any judicial scrutiny. But let the decision run contrary to their cold, dead precepts mired in the past, and the will of the people is just the rabble rising up after being duped by a charismatic “agent of change.” It must be fun to be a conservative and thus freed from the constraints of logic and intellectual honesty. How does it feel there, Tootie?
Excuse me, my copy and paste covered up the lead in:
As to the Greek and Romans, you may want to look at what actual historians say on the matter (Trader, THIS is how you cite research to back up your thesis).