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
Buddha,
“They are the voice of American Apartheid and corporatism.”
That is very, very good. I am collecting quips that ring true.
Blouise — I’ll e-mail you, so you’ll have my address. Then you can reset the filter. Give me a few minutes.
Blouise,
I’ll testify that Byron isn’t a bad fellow. Some of his ideas suck, but he’s okay. 😉 I’d not only buy him a beer, I’d drink one with him. And I only drink with friends or not at all.
TraitorB on the other hand and speaking of drinking, I wouldn’t piss on him if he was on fire. “I have seen the enemy and he is us.” – Walt Kelly.
And their names are Cheney, Rumsfeld, Bush, Perle, Feith, Wolfowitz, Rove, Breitbart, Yoo, Bybee, Gonzales, C-Street, K Street, any and all signatories to PNAC and any who carry their Neocon fascist water.
Like TraitorB.
These people have done more damage to American international standing and the economy than any terrorist organization could ever accomplish with bombs and hijackings.
They are the voice of American Apartheid and corporatism.
Slartibartfast,
There is a place for you in my novel but you have to agree to be AY’s keeper at the Oscars when he’s giving his acceptance speech (Buddha will show you how to operate the stun gun)
anon nurse
1, August 8, 2010 at 4:06 pm
Should have read: And there’s even more to it. (It’s really ugly stuff.)
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Aaaaaargh … you are driving me crazy … you must tell me … I know how to hold a confidence:
here’s my email address (don’t pass it around)
blouise17@gmail.com (Methinks I’m going to have to reset the filter)
TraderB
1, August 8, 2010 at 3:35 pm
Byron wrote:
“I am curious, if these people voted republican would everyone feel the same way?
Would TraderB want to repeal the 14th amendment?”
It looks like you have been infected with strawmanitis. You better get away from here. I did not say I or the Republicans wanted to repeal the 14th amendment. They want to clarify one phrase.
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Okay … hell has now officially frozen over. Never, in a million years would I have thought that I would come to the defense of Byron with whom I have deep political disagreements but …
I read everyone of Byron’s posts and I can say with complete confidence that the man does not have a bigoted bone in his body.
He is a “thinking” conservative and if there were more like him on your side of the aisle you all just might regain your collective humanity.
TraderB said:
“So, you believe that 9/11 was a plot by Bush and Rove?”
I believe that President Bush was negligent in heeding the warnings of his intelligence agencies (and what he did after qualifies as one of the biggest black marks in American history).
TraderB posted:
Wow. How naive are you? New immigrants tend to vote Democratic (especially with how the Republicans are going all out to make sure that no hispanics vote for them ever again – which while it may not kill them this election cycle will eventually result in the marginalization of the party if they stay on that road). You don’t think that it has to do with votes? Then why are the Republicans against plans that their own members suggested? Republican immigration policy is all about votes – they want to cash in on anti-immigrant hate this cycle (and come up with some new Rovian trick next cycle to scare people into voting against their best interests and the best interests of the country…). I can only hope the the Republican party will be hoist on its on petard and replaced with a conservative party of people willing to rationally debate the issues based on the facts instead of fear-mongering to get votes and doing all they can to suppress turnout amongst populations that tend to vote Democratic.
Should have read: And there’s even more to it. (It’s really ugly stuff.)
TraderB:
I was just asking a question. I think it is political for both democrats and republicans. They both want new voters.
TraderB
1, August 8, 2010 at 3:41 pm
Blouise wrote:
“Honey, after all the wondrous blessings the republicans have given us over their 8 years in power … from 9/11..”
So, you believe that 9/11 was a plot by Bush and Rove?
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Sorry … you’ll have to read the book … I ain’t given away nothin’ for free!
Shahid Buttar
Civil rights lawyer
Posted: August 2, 2010 01:21 PM
COINTELPRO 2.0 http://www.huffingtonpost.com/shahid-buttar/cointelpro-20_b_664943.html
I’m a WASPy female (and a registered nurse) and I know that he’s right, given what I’ve heard from patients, as well as seen with my own two eyes for the past several years. It isn’t just ethnic groups and individuals who are being harassed — it’s Democrats, so-called “liberals”, activists…
And it’s going to get ugly, given what I’m seeing. I’m the old canary in the mine. Maybe Obama and others (DHS?) are “in the know” and are trying to figure out how to contain this.
As Mr. Shahid accurately states,
“This is no conspiracy theory: Congress documented wanton FBI abuses in over 14,000 pages of testimony. According to the Church committee, the FBI’s activities then would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that…the Bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights….
Revelations of the FBI’s “COINTELPRO” (counter-intelligence program) prompted a national outrage that forced the Department of Justice to enact limits in 1976 curtailing the Bureau’s various abuses. Today, these problems are back.”
Mr. Shahid is right. This I know. And it’s even more to it.
TraderB
1, August 8, 2010 at 3:35 pm
Secondly, this has nothing to do with votes. It has to do with anchor babies.
________
And nothing to do with the fact that the Civil Rights Acts of 1964 and 1968 use the 14th Amendment (both the Congressional enforcement and the Equal Protection clauses) and the Commerce clause (U.S. Const., Art. I, Sec. 8, Cl. 3) for their basis.
Yeah, but according the the propagandist, it’s all about the anchor babies.
cough cough cough bullshit cough cough cough
In re 9/11:
op·por·tun·ism \-ˈtü-ˌni-zəm, -ˈtyü-\, n.,
: the art, policy, or practice of taking advantage of opportunities or circumstances often with little regard for principles or consequences
op·por·tun·ist \-ˈtü-nist, -ˈtyü-\, n.,
: one that is opportunistic or that practices opportunism
par·a·site\ˈper-ə-ˌsīt, ˈpa-rə-\, n.,
1 : a person who exploits the hospitality of the rich and earns welcome by flattery
2 : an organism living in, with, or on another organism in parasitism
3 : something that resembles a biological parasite in dependence on something else for existence or support without making a useful or adequate return
— par·a·sit·ic \ˌper-ə-ˈsi-tik, ˌpa-rə-\ also par·a·sit·i·cal \-ti-kəl\ adjective
— par·a·sit·i·cal·ly \-ti-k(ə-)lē\ adverb
synonyms parasite, sycophant, toady, leech, sponge mean a usually obsequious flatterer or self-seeker. parasite applies to one who clings to a person of wealth, power, or influence or is useless to society (a jet-setter with an entourage of parasites). sycophant adds to this a strong suggestion of fawning, flattery, or adulation (a powerful prince surrounded by sycophants). toady emphasizes the servility and snobbery of the self-seeker (cultivated leaders of society and became their toady). leech stresses persistence in clinging to or bleeding another for one’s own advantage (a leech living off his family and friends). sponge stresses the parasitic laziness, dependence, and opportunism of the cadger (a shiftless sponge, always looking for a handout).
Hey, look! It’s Bush and Cheney!
Blouise wrote:
“Honey, after all the wondrous blessings the republicans have given us over their 8 years in power … from 9/11..”
So, you believe that 9/11 was a plot by Bush and Rove?
TraderB
1, August 8, 2010 at 3:35 pm
Secondly, this has nothing to do with votes. It has to do with anchor babies.
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Splat!
Club an anchor straw baby for Mitch and the Necons!
The poor people are going to need something to stay warm this winter. Quick! Call Karl. We need a distraction so they don’t start burning GOP politicians for warmth.
To which Karl said, “Babies. They can’t fight back.”
” It is just part of the Democrat’s fear-mongering. ” (TraderB)
Honey, after all the wondrous blessings the republicans have given us over their 8 years in power … from 9/11 to the wall street/bank crash … democrats have no need to beat the fear-mongering drum … that’s a republican tradition we do not envy.
Anchor straw babies?
Byron wrote:
“I am curious, if these people voted republican would everyone feel the same way?
Would TraderB want to repeal the 14th amendment?”
It looks like you have been infected with strawmanitis. You better get away from here. I did not say I or the Republicans wanted to repeal the 14th amendment. They want to clarify one phrase.
Secondly, this has nothing to do with votes. It has to do with anchor babies.
Oh, really? They can deny all they want. Doesn’t change the facts.
“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.
In Sheboygan, Wis., a few Christian ministers led a noisy fight against a Muslim group that sought permission to open a mosque in a former health food store bought by a Muslim doctor.
At one time, neighbors who did not want mosques in their backyards said their concerns were over traffic, parking and noise — the same reasons they might object to a church or a synagogue. But now the gloves are off.
In all of the recent conflicts, opponents have said their problem is Islam itself. They quote passages from the Koran and argue that even the most Americanized Muslim secretly wants to replace the Constitution with Islamic Shariah law.
These local skirmishes make clear that there is now widespread debate about whether the best way to uphold America’s democratic values is to allow Muslims the same religious freedom enjoyed by other Americans, or to pull away the welcome mat from a faith seen as a singular threat.
“What’s different is the heat, the volume, the level of hostility,” said Ihsan Bagby, associate professor of Islamic studies at the University of Kentucky. “It’s one thing to oppose a mosque because traffic might increase, but it’s different when you say these mosques are going to be nurturing terrorist bombers, that Islam is invading, that civilization is being undermined by Muslims.”
Feeding the resistance is a growing cottage industry of authors and bloggers — some of them former Muslims — who are invited to speak at rallies, sell their books and testify in churches. Their message is that Islam is inherently violent and incompatible with America.
But they have not gone unanswered. In each community, interfaith groups led by Protestant ministers, Catholic priests, rabbis and clergy members of other faiths have defended the mosques. Often, they have been slower to organize than the mosque opponents, but their numbers have usually been larger.”
Read the rest at: http://www.nytimes.com/2010/08/08/us/08mosque.html?_r=1