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
Yeah! … another potential Watergate? … Ms. Serafin sounds like graduate of the Donald Segretti School of Dirty Tricks … the legacy of CREEP lives on … she’s not a rat … she’s an opportunist … in the best republican tradition.
The Temecula Tea Party disavowed any connection with the mosque protest, although an apparent member may have been involved. There appears to have been a media campaign to besmirch the Tea Party. It is just part of the Democrat’s fear-mongering. It does no good to make Muslims apprehensive about a group that welcomes them.
http://www.desertrosebooks.com/TemeculaTeaParty.html
Diana Serafin seems to be a real rat. She stole materials and an email list from another organizer.
http://www.commonsense4.us/
Byron
1, August 8, 2010 at 2:43 pm
I am curious, if these people voted republican would everyone feel the same way?
Would TraderB want to repeal the 14th amendment?
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In my opinion? … NO
But the fashion trends dictated by their leadership is something non-thinking republican party members follow religiously. Anchor baby hats, anchor baby coats will soon be all the rage at rallies thus replacing the less sophisticated teabagger trimmed headwear.
As anon nurse quoted: “In today’s GOP, the few with loose morals vie to lead the many with loose marbles.”
I am curious, if these people voted republican would everyone feel the same way?
Would TraderB want to repeal the 14th amendment?
Club an anchor baby for Mitch and the Neocons!
Blouise,
“… one can take to the bank. (forgot to finish my sentence in all the excitement)”
🙂 and I don’t smile (or laugh) much these days
Now I really am signing off.
TraderB,
” … I don’t think he has a right to criticize anyone. He is a Democratic operative. When he appears on TV, he lies through his teeth. All the Republicans want to do is clarify the ambiguous language in the 14th Amendment that gives automatic citizenship to the children of illegal aliens born in the U.S. Apparently, many of the people involved in its creation thought that it did not. From Wikipedia: …”
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This election cycle’s newest garment for the chic republican is the anchor baby. Like infant seal pups, anchor babies are defenseless and thus perfect prey for the modern republican who wishes to be in fashion.
Blouise,
Somewhat.
TraitorB,
Considering you are a Neocon GOP operative – the ones responsible for destroying America from the inside – and one who has not only lied through his teeth from post one but seems to be proud of it, Oh Worshiper of Turdblossom. You most certainly don’t have a right to criticize someone who sees through your bullshit.
Oh, wait a minute! You do have that right. Just like Robert Shrum does. Under the 1st Amendment. Unless you fascist clowns want to try to repeal that amendment too.
So let me rephrase. You can criticize all you like and We the People have a right to laugh in your lying fascist face.
Yep.
Sucks to be you.
anon nurse wrote:
““The Republican war on the Constitution” by Robert Shrum
http://theweek.com/article/index/205792/the-republican-war-on-the-constitution
The entire article is worth reading, but the following seems apt:
“In today’s GOP, the few with loose morals vie to lead the many with loose marbles.””
I don’t think he has a right to criticize anyone. He is a Democratic operative. When he appears on TV, he lies through his teeth. All the Republicans want to do is clarify the ambiguous language in the 14th Amendment that gives automatic citizenship to the children of illegal aliens born in the U.S. Apparently, many of the people involved in its creation thought that it did not. From Wikipedia:
“There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment.[5] During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding American Indians who maintain their tribal ties, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” He was supported by other senators, including Edgar Cowan, Reverdy Johnson, and Senate Judiciary Committee Chairman Lyman Trumbull.[6] Howard further stated the term jurisdiction meant “the same jurisdiction in extent and quality as applies to every citizen of the United States now”[6] and that the United States possessed a “full and complete jurisdiction” over the person described in the amendment.[7][8][6] Other senators, including Senator John Conness,[9] supported the amendment, believing citizenship should cover all children born in the United States.”
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
Hi green guy … getting better at the vertical?
… one can take to the bank. (forgot to finish my sentence in all the excitement)
anon nurse
1, August 8, 2010 at 2:07 pm
Oh, and let me get shout this to the rafters before I sign off to do some work:
Given what I’m seeing — given my vantage point — we’re in serious trouble, as I’ve said ad nauseum. Many of these people (the ones involved in the garbage to which I’m alluding) are out for blood — they’ll do anything to gain power — anything as they pursue their, as yet, elusive goal of having a “permanent conservative majority.” And if what is taking place isn’t treasonous, I don’t know what it.
(Blouise, When the story breaks, as it inevitably will, you’ll definitely want it for your book (and subsequent Mike Nichols’ film) — I guarantee it. And I’m not joking. I wish I were.)
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OK … my curiosity is definitely aroused … I’ll stay tuned for unfolding sub plots, given the kind of individuals to which we are referring, is a guarantee.
Tea Bagger Parrots?
“Fortunately, only 30 people showed up.” (TraderB)
People love to talk the talk … fortunately, only a few actually walk the walk. (In defense of the teabaggers … the media loves to catch them with their pants down.)
Oh, and let me get shout this to the rafters before I sign off to do some work:
Given what I’m seeing — given my vantage point — we’re in serious trouble, as I’ve said ad nauseum. Many of these people (the ones involved in the garbage to which I’m alluding) are out for blood — they’ll do anything to gain power — anything as they pursue their, as yet, elusive goal of having a “permanent conservative majority.” And if what is taking place isn’t treasonous, I don’t know what it.
(Blouise, When the story breaks, as it inevitably will, you’ll definitely want it for your book (and subsequent Mike Nichols’ film) — I guarantee it. And I’m not joking. I wish I were.)
“In today’s GOP, the few with loose morals vie to lead the many with loose marbles.”
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That’s a great quip!
Apparently, she is no longer a part of Tea Party Patriots. I can find her listing in a cached version, but not currently. She also took Tea Party out of the name of her organization, which appears to be a splinter group.
http://www.wethepeople-swrc.com/
The national groups clearly do not want members to get off message. She apparently promoted the event from her tea party web site and got axed. Fortunately, only 30 people showed up.
“The Republican war on the Constitution” by Robert Shrum
http://theweek.com/article/index/205792/the-republican-war-on-the-constitution
The entire article is worth reading, but the following seems apt:
“In today’s GOP, the few with loose morals vie to lead the many with loose marbles.”
It was a gratuitous mention of the Tea Party by the writer. The woman just said that she had met some of the people there and at immigration rallies. It appears that the group sponsoring the rally was probably something called ACT! for America. These are the two statements:
“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.”
“Recently, a small group of activists became alarmed about the mosque. Diana Serafin, a grandmother who lost her job in tech support this year, said she reached out to others she knew from attending Tea Party events and anti-immigration rallies. She said they read books by critics of Islam, including former Muslims like Walid Shoebat, Wafa Sultan and Manoucher Bakh. She also attended a meeting of the local chapter of ACT! for America, a Florida-based group that says its purpose is to defend Western civilization against Islam.”
While the first may be literally true, it carried the implication that her Tea Party chapter was behind the demonstration. It would have been kicked out of the National. However, individual members can have their own idea about things other than taxes and spending.