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
TraderB:
come on man, every party has a people they discriminate against and dont like at some point in history, the democrats used dogs and water hoses on blacks in the 60’s. It took republicans like Charleton Heston to help blacks win civil rights. I can imagine that some people on the right may have an ax to grind, especially in light of the 3,000 people killed on 9/11. It isnt too much of a stretch to believe what Blouise is saying.
I know a lot of ’em here in Ohio and they all consider themselves “good” republicans.
The “National” can’t be picky … they need every “body” they can get. Lose the teabaggers and instead of gaining seats, republicans lose seats.
Nice spin though.
I doubt if they are members of the National. Otherwise, they would be thrown out. The Tea Party is about taxes and spending, period. Individuals can have their own opinions on other matters, but they are not supposed to do it under the Tea Party banner.
On the front page of today’s NYTimes there is an article about the difficulties being encountered by Muslims across the country as they attempt to build new mosques.
“In late June, in Temecula, Calif., members of a local Tea Party group took dogs and picket signs to Friday prayers at a mosque that is seeking to build a new worship center on a vacant lot nearby.”
Once again employing these age old republican party tactics, how can they not regain their majorities?
It’s not Karl Rove at work … it’s republican values at play.
This is must reading for you living-room liberals: “White Gays Guide to Dealing With the Black Community.”
“Perhaps you weren’t in Los Angeles during the aftermath of Proposition 8, but I can tell you, the Prop. 8 supporters have good reason to fear gay rights activists, just ask the many many Black people, both gay and heterosexual, who found themselves in the wrong place at the wrong time after Proposition 8 passed. They were accosted in their cars, on the street, called Niggers, and blamed for the passage of Prop. 8 simply because of their skin color.”
http://www.jasmynecannick.com/blog/?p=8384
TraderB:
“Some people think that Karl Rove engineered the election of Obama. He is doing a great job of destroying the Democratic party.”
I know a few people who voted for him for just that reason. More than one person has told me they did it because they knew bad things were coming down the pike. I even heard some guy on the radio in the fall of 2008 say he was voting for Obama so democrats could be blamed for all that we see now.
So I would say there is some truth in your statement. Although I doubt Rove is the mastermind, I doubt he is that smart.
Anonymously Yours,
8)
TraderB:
“Bill Krystol of the Weekly Standard now thinks that the Republicans will take 60 House seats. I am going out on a limb and predicting 80.”
I’ll take some of that action. I’ll even spot you 5 seats. How about a $50 dollar gift certificate to Olive Garden or Outback Steak House?
So 75 seats or more and you win, 74 or less and I am having the bottomless salad :).
Blouise,
I have no money and I own nothing….I just have a better right to use it than the next person…I hope that makes sense….I have learned, we really own not one thing…We just have a better right for its exclusive use…things can be taken away…its your integrity that should not suffer…and at times mine has….in big ways….selfish…and self-centered…
A few of these demonstrations around the election would help the Republican vote. I hope their operatives have infiltrated these groups.
http://www.christianexaminer.com/Articles/Articles%20Dec08/Art_Dec08_09.html
Anonymously Yours,
TraderB doesn’t have the kind of money it takes to play in your ballpark … it isn’t nice to take advantage of him …
TraderB,
Is that really the best you can come up with? You must really suffer a sever deficit in personality and social relations, if this is the best….Karl Rove…Obama…come on…I imagine the grow great turd blossoms where you’re from…..oh, can’t you smell that smell……Magic Mushroom in your Omelet?
Ah ha, a person that speaks without saying much….
TraderB, I’ll take that bet. Where would you prefer to place the wager and for how much?
Does not seem like I want to hold it. I asked where you would PREFER TO PLACE THE WAGER AND FOR HOW MUCH?
But then again an empty pot makes the most noise….can you really hear the hollow sound when you knock on a tree? How about your head?
Some people think that Karl Rove engineered the election of Obama. He is doing a great job of destroying the Democratic party.
A.Y.
I am not foolish enough to trust you to pay off your losing bets.
TraderB, I’ll take that bet. Where would you prefer to place the wager and for how much?
Bill Krystol of the Weekly Standard now thinks that the Republicans will take 60 House seats. I am going out on a limb and predicting 80.
I see the movie came out recently staring TradersB’s life. I think its called minions…
Define, anyone but no 2….but then again…no 2 can run a car now…
The Republicans are playing this issue well. They are not making comments on it. The heavy lifting will be done under the radar by the ministers in Black and Hispanic Protestant churches. If they get their members to refrain from voting for Democrats, it could make a big differences in the 2010 elections.
Did you lefties ever wonder why Ted Olsen (Gore v. Bush) is one of the plaintiffs’ attorneys? I hope Karl Rove is behind this. It would be a real feather in his cap.
And now we have the Governor and Attorney General saying that civil unions should still be performed…..huhhhh