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    Fed Judge Finds Calif. Prop. 8 Unconstitutional

    Fed Judge Finds Calif. Prop. 8 Unconstitutional

    A federal lawsuit was filed in May 2009 challenging Proposition 8, the California referendum which amended the state constitution to define marriage as between one man and one woman. Prop. 8 previously was upheld by the California Supreme Court.

    The federal lawsuit, Perry et al v. Schwarzenegger et al, was filed by noted Republican attorney Ted Olson, and noted Democratic attorney David Boies. Olson and Boies were on opposite sides of the landmark Bush v. Gore lawsuit which resolved the Florida electoral dispute in the 2000 election.

    The lawsuit sought an injunction against implementation of Proposition 8 under federal law, including alleged violations of the Due Process Clause of the 5th Amendment to the U.S. Constitution and the Equal Protection Clause of the 14th Amendment. At the time of the suit, many gay marriage advocates criticized the tactic, fearing that a loss at the federal level would damage ongoing state efforts.

    Today, Chief Judge Vaugh Walker of the Northern District of California issued his ruling in the case holding that Prop. 8 violates the U.S. Constitution.

    Here is the Judge’s conclusion:

    Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

    Throughout the opinion, the Judge goes into great detail regarding trial testimony and justifications for Prop. 8. The Judge then holds, in essence, that the justifications are irrational and have no legitimate societal basis.

    The Judge even designated a section of the opinion “Credibility Determinations.” Many commentators think the Judge was trying to insulate the opinion from appeal since appeals courts do not normally overturn credibility determinations, since only the trial judge observed the witness.

    In this case, the Judge seems to be trying too hard to insulate the opinion, and I doubt that on such a momentus finding of a new constitutional right for same sex marriage that an appeals court, much less the U.S. Supreme Court, will care much about the credibility of witnesses as a basis for a legal ruling.

    Everyone expects this case to end up in the U.S. Supreme Court, which should test what Elena Kagan meant when she said, under oath, that there is no constitutional right to gay marriage.

    Update: The trial court has granted a stay of entry of judgment until the motion for a stay pending appeal can be decided. The plaintiffs must respond by August 6. So for at least a couple of days, the effect of the ruling is on hold.

    What is the chance of a more long-lasting stay pending appeal? Given the novel legal theory, and the widespread impact in California of an injunction, one would think that the trial judge at least would grant a stay pending an application to the 9th Circuit.

    The politics of this opinion probably could not come at a worse time for Democrats. There is no groundswell of support for gay marriage, with even Obama having expressed the view during the campaign that marriage is between one man and one woman. The opinion attempts to short-circuit the political process by finding a constitutional right which most people — even people who might support gay marriage — do not recognize.

    At the end of the day, I do not expect this decision to survive constitutionally, and the supporters of gay marriage may rue the day that they sought to impose a solution from the courts of law rather than the court of public opinion.

    Some similar thoughts from Dale Carpenter at The Volokh Conspiracy:

    Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next. The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM. Premature litigation, they feared, would do more harm than good (even if there were a temporary win at a lower level). Well, nothing has changed except that the stakes have been considerably raised today in a maximalist decision, bringing us one step closer to Perry v. Schwarzenegger, ___ U.S. ___ (201_) (reversing lower court ruling for same-sex marriage on due process and equal protection grounds).

    And also Logan Penza at The Moderate Voice:

    Lest anyone should misunderstand, let me note that I personally support marriage rights for gay couples. I think court decisions are a very bad way to achieve that goal, for the reasons discussed above as well as because court decisions tend to lengthen political conflicts rather than resolve them.

    It is worth remembering that in 1973 there was a clear trend among the states in favor of abortion rights. The main accomplishment of Roe may have been to make abortion formally legal, but the decades-long firestorm of controversy has made actual exercise of those rights difficult in many areas of the country. Using the courts is a way to an emotionally satisfying quick “win” on issues where the legal elite runs ahead of broader social attitudes, but that emotional rush often leads to a big crash in the longer term. Temporary success can lead to long-term failure that is even more firmly entrenched than it was before.

    I also don’t think that every desirable social policy enjoys the status of constitutional right.

    As to the political end of this come November, the decision will be seen as another example of overreaching by a liberal judiciary which throws out laws it doesn’t like politically (Arizona) and invents rights it likes. I’ll quote Ace:

    Oh, PS, Judge Walker–
    Thanks for the extra 7% turnout in
    Hugs and kisses,

    [Note to readers: This post is something of a rolling thought process, as information became available and upon further review, text was added from the original.]

    Perry v. Schwarzennegger – Trial Court Decision
    Related Posts:
    Federal Challenge to Prop. 8
    Split Decision on Prop. 8
    Kagan Said She Meant What She Said About Gay Marriage

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    Hello notmynose, there are more same sex relationships mislabelled as marriages, there is no such thing as a same sex marriage. The fact that a judge can alter the definition in a dictionary does not change the reality of the thing being defined. A rose by any other name is still a rose.

    Moreover, since others have argued here that "tradition" is not a valid consideration, why should we accept that the federal judiciary have the power to decide the constitutionality of laws~merely because they have done so in the past? If this is not a logical argument for keeping marriage the way it is, why should the courts be exempt?

    To answer your query about a defense of polygamy (which I am against BTW), when a legal relationship is defined by who is having sex with whom there is logically no difference between monogamous and polygamous relationships or for that matter incestuous ones. Bans of those relationships are based on the same traditions, so-called. Logically there is no difference. Who are you as a person who supports homosexual marriage to say what relationships constitute a marriage? If a man loves four women, why should he not be allowed to marry all of them? After all isn't love the sine qua non of marriage now? If four men and three women really love each other why should they not allow group marriage? After all isn't love now the sine qua non of marriage? Or if a father and daughter really love each other, who are you to decide they can not marry? Aren't you imposing the same narrow-minded morality on those lovers that is supposedly behind Prop 8?

    As for your characterization of "slippery slope", a rhetorical "slippery slope" is just another name for judicial activism. If same sex marriages are more prevalent, it is because of such things being forced down society's throats by a vocal minority who tyrannically manipulate the legeal system to thwart the will of the people. Also, the argument miscegnation is a red herring argument. The color of one's skin is an immutable characteristic. It is far easier to change sex partners than it is the color of one's skin.

    BTW, falsely suggesting that someone is engaging in fallacious reasoning is fallacious in itself.

    Matt Kane, Thank you for your response. I have no idea how the case was argued in California~I imagine very poorly~if you are correct that "tradition" was the main argument. I have never been impressed by California jurisprudence or the quality of the attorneys who practice there. As far as whether survival of the species qualifies as an insinuation or simple biological fact, ask a Shaker that question~oops you can't because they all died out because they didn't propogate.

    As far as you analysis of marriage vows, "till death do us part," that vow signifies that the couple promises will live not live with any other person as man and wife. A person getting a divorce doesn't necessarily have to go out any marry another person.

    As far as sterile people getting married, miracles do happen. I have seen many occasions where a married couple who thought they could not have children end up having them. My own family is an example of that.

    Finally as for your question begging notion that homosexuality is not a choice: perhaps it is not, perhaps it is. But that is not really relevant to the discussion, is it?

    Your argument is fallacious category error as whether you choose to have sex at all and with whom you choose to have sex are choices regardless of orientation. Thus, I implied that that the judge's equal protection analysis is flawed because he failed to recognize that the law did not bar homosexual men or women from marrying a person of the opposite sex. They have the SAME rights as heterosexual men and women. Perference is not the same thing as a "right." There is no 14th amendment issue here.

    While I sincerely appreciate your recognition that I have the right to follow the dictates of my own religious faith, please note that I am not basing my argument on those views. I am looking at the matter from a legal standpoint only. There will be many unintended consequences from this ruling~taxation, property, legal obligation to support, etc. that have not been considered at all. Don't think for a minute that our cash strapped gov't hasn't salivated over the prospect of imposing the "marriage penalty" type tax burden that it imposes on "Traditional" married couples now on these new relationships.

    notmynose, You wanted a legal defense of polygamous marriages, Islam permits a man up to marry four women. Consent of the bride is not required. Various judicial luminaries in our country are already flirting with allowing Sharia law or making us "Sharia compliant" as an accomodation to Muslims living here. OT Scriptures permit likewise. It has already happened in Europe. Given this ruling, what is the legal justification of barring Muslims from practicing this aspect of their religious faith in this country or from someone who follows the OT from demanding the same rights now accorded to homosexuals to marry another person of the same sex. True, polygamy has been banned in the US in the past, but if this ruling stands, the grounds used to ban polygamy are no longer applicable as well.

    Paul Hoffer:

    Thank you for your response. The reason I bring up that homosexuality is not a choice is because when I compared Perry to Loving you said that it was different because being black was an immutable characteristic. I was simply trying to state that homosexuality is equally immutable.

    I also believe that the comparison between Perry and Loving is valid. Just as a man can choose to have sex with a woman even if he is gay, a white man can choose to have sex with a white woman, even if he is attracted to a black woman. If the 14th Amendment argument is invalid in Perry, it ought to be invalid in Loving, too, because pre-Loving a black or white man could still get married and thus they had equal rights under the law using your logic.

    I think on this one we will have to agree to disagree. We are coming from very disparate viewpoints, though I have enjoyed debating with you. So often internet commenting is laced with vulgarities or personal attacks and it was refreshing to not engage in that here.

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