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Wednesday, August 4, 2010

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
November!!!
Hugs and kisses,
Ace
[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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49 comments:

  1. As I understand it, Judge Walker enjoined enforcement of Prop 8, which means that gays and lesbians can marry while his decision is being appealed. Am I reading that right?

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  2. Ha! Now you have gay ads in the sidebar!

    NTTAWWT

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  3. I was pretty sure marriage was a privilege in all states. If marriage is considered a right, why can states license it? This judge holds the people of a state do not have the right to decide who can marry in their society? If marriage is a right, can I sue if a proposal of marriage is refused?

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  4. "Because California has no interest in discriminating against gay men and lesbians"
    I thought that prop 8 did show what the interest of California was. The vote showed that California was against this!

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  5. Hooray! Less pressure on fathers to take responsibility for "unintended pregnancies". More men who see "sperm donor" as a viable family role!

    The main reason I see for having different words for "marriage" and an equivalent union for same-sex couples is that very few unintended pregnancies result from same-sex relationships.

    "Non-believer" Heather MacDonald:



    "The main answer to the “Why does it matter?” question is this: The institutionalized severing of biology from parenthood affirms a growing trend in our society, that of men abandoning their biological children. Too many men now act like sperm donors: they conceive children then largely disappear, becoming at best intermittent presences in their children’s lives. This phenomenon is increasingly common among the less educated, and dominates in the black community. . . .

    

If parental status is a matter of intent, however, not of genes, absent fathers can say: 'I never intended to take on the role of that child’s parent; therefore I’m not morally bound to act as a parent.'



    . . . gay parenting creates a single-sex home as a matter of deliberate engineering, not accident or unforeseen chance.) The sole argument potentially remaining for persuading fathers that they should raise their chidren — that children need two parents in the home — is easily disposed of: My baby momma is living with her mother. . . "

    

I live in a low-income community a very large percentage of kids have fathers who have no concept of a moral obligation to act like their fathers. It's very sad to see the effect this has on kids. But not quite this sad.

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  6. From the opinion: "...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."

    It would be hard to find a better example of circular "reasoning": Where in the Consitution is there an obligation to provide marriages to all on a equal basis? Seems to me that was the whole point of Prop 8--to craft an answer to that question, since there was no controlling language in the Constitution.

    Separately, it seems to me that Elena Kagan's statement--under oath--that "there is no constitutional right to gay marriage" is easily to disregard: After she's confirmed to the court, she merely needs to add "...but now that I'm here, I just found a penumbra of an emanation that confers exactly that right."

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  7. If I understand this decision correctly, then this single federal judge has just effectively declared gay marriage to be the law of the land in all 50 states and the District of Columbia, as well as all US territories.

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  8. Elana Kagan, a Liberal, said something under oath and we are all to await with baited breath to see if she keeps her word?

    She's a Liberal. Liberals live by the Liberal creed:

    Above all, Liberalism!
    Above that, Obama!

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  9. Conservatives always win the popular votes on this one, yet liberals always find a judge beneighted enough to overtutn the popular vote. If I was a liberal, I'd be worried about the "sustainability" of this model. ;)

    http://libertyatstake.blogspot.com
    "Because the Only Good Progressive is a Failed Progressive"

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  10. I need to read the opinion. It seems like Judge Walker mixed together the test, providing Homosexuals with protected class status under strict scrutiny while at the same time only require that the government read the rational basis test. I have always considered any governmental benefits given to married couples as being a state subsidy specifically for the benefit of the child producing segment of our population. If the government does not have a rational basis for subsidizing procreation in the the USA (something that without the nation would cease to exist) then what does this say about other state subsidies? How can the government prefer any industry, individual, or group over another with regards to access to state benefits. I should sue for being denied a Pell grant because my parents made too much money. Single people should sue to receive marriage benefits. This could go on forever.

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  11. The underlying lower court Constitutional principal in recent years appears to be if it is conservative, it is unconstitutional and if liberal, constitutional.

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  12. So the arrogance of Congress and the Executive branch to defy the will of the people has now progressed to the judiciary branch.

    The opinions and values of the sovereign people no longer matter. Does anybody really believe we live in a functioning representative democratic republic?

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  13. I believe the supporters of proposition 8 have a good point. If the majority of Californians voted to bar gays from becoming legally married the views of the majority should be upheld.

    Note however, that in a couple of year , if the trend continues, proposition 8 will fall on its own as the trend towards acceptance of gay marriage continues to gain ground year after year.

    Gallup pole just finished a poll on the question of gays and gay marriage that should be an eye opener

    "There is a gradual cultural shift under way in Americans' views toward gay individuals and gay rights. While public attitudes haven't moved consistently in gays' and lesbians' favor every year, the general trend is clearly in that direction. This year, the shift is apparent in a record-high level of the public seeing gay and lesbian relations as morally acceptable. Meanwhile, support for legalizing gay marriage, and for the legality of gay and lesbian relations more generally, is near record highs."

    http://www.gallup.com/poll/135764/americans-acceptance-gay-relations-crosses-threshold.aspx

    So my assumption is that within 5 years many of those who once voted against gay marriage....mostly democrats and independents, will change their votes.

    Either way gays are destined to have their way as they become a more accepted part of our society...either by votes or by the courts.

    The Mormons are praying hard that trend doesn't continue. But it seems inevitable.

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  14. @MaggotABW: "Does anybody really believe we live in a functioning representative democratic republic?"

    Our system is more commonly defined as a constitutional republic, and, yes, it's exactly this sort of thing that comes with the territory.

    Remember, Loving v. Virginia and Brown v. Board of Education went MAJORLY against the will of the people in Virginia and Kansas. But they were essential in establishing the rights that make us proud to be Americans.

    Frankly, I believe that civil rights should never be voted on. It's safe to say that the readership of this blog isn't concerned about the rights of gays; thus, there's no issue with gay rights being subject to vote -- but the next time, it might be *your* civil rights that your fellow voters are trying to restrict.

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  15. well, group rights has been declared as a legitimate right triumphing over individual rights upon which was the cornerstone of our Constitution.

    tis a sad day in the history of this nation.

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  16. The commentors like Ace do realize that Judge Walker is a Republican, right? Ronald Reagan appointed him. He's not an activist justice or even liberal. He just made the valid point that the defense couldn't pose any legitimate reasons why homosexuals were denied the right, which does violate the 14th amendment. You can't deny rights to any specific group without a damn good reason. The defense simply failed to find one. Blame them, not the judge.

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  17. I'm just a layman, but I have no idea why Prop 8 would be unconstitutional. I voted against Prop 8, and I would vote to remove it from the state Constitution, but unconstitutional?

    As I understand it, with my non-legal background, rights belong to individuals, not couples. Gays, as individuals, have the same right to marry as straight people do.

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  18. I've yet to hear a compelling argument as to why the rights of minority groups should be put up to a majority vote. The 14th amendment doesn't guarantee equal protection on the condition of a ballot initiative or public opinion. It seems to me like "constitutional conservatives" only care about conserving certain parts of the Constitution, and certainly not the part that guarantees equal protection under the law and, as we've also seen recently, birthright citizenship.

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  19. "well, group rights has been declared as a legitimate right triumphing over individual rights upon which was the cornerstone of our Constitution. tis a sad day in the history of this nation."

    You have summarized the legal defense for the anti-miscegenation laws; that denying the rights of the few was essential for the greater good. Similar arguments were made to support segregation laws; the popular opinion in the south was that denying rights to a certain class was necessary to maintain society as a whole. Your "greater good" approach was also used to prevent integration of the military.

    This reasoning is also constantly used to attempt to legislate gun ownership; the claim is that restricting a few peoples' 2nd amendment rights is necessary for the safety of the general populace.

    Contrary to your claim, the constitution does not protect the majority in ANY of these instances.

    As with Loving v. Virginia, Brown v. Board of Education, and countless municipal gun laws (San Francisco and Chicago come to mind) that were shot down (so to speak) on constitutional grounds, the constitution is doing its job.

    While you may not like the decision, that's not the point. It's the judicial branch's checks and balances working as the founders intended.

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  20. malclave, if you wish to know why the judge's reasons for ruling Proposition 8 unconstitutional, read his opinion.

    Having done that, to what in his opinion do you object?

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  21. Hmmmm.

    "The commentors like Ace do realize that Judge Walker is a Republican, right? Ronald Reagan appointed him. "

    Do you know for a fact he is Republican? A conservative or liberal? Just because RR appointed him means absolutely nothing because back in the 1980's both parties appointed judges from the other side in horse trading.

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  22. Perhaps I'm just dense, but how can a judge declare that a constitutional amendment, which by its definition is something that changes a constitution, be contrary to the constitution that it changes? By that logic, you can find the 21st amendment unconstitutional, because it is directly contrary to the 18th amendment (Prohibition). Or declare 16th amendment (allows for income tax) void because it is directly in conflict with the text of the Constitution.

    Next thing you'll hear is the Constitution is invalid, because it clashes with the Articles of Confederacy. (but that would not advance their advocacy of a powerful central state, so that probably won't happen)

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  23. Welcome to my world (Arizona) where the rule of law is decided by those who have no Earthly reason to hold the responsibility they hold.

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  24. "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."

    ===========================

    Huh? Prop 8 wasn't about "equality of couple-dom" it was about MARRIAGE. Marriage involves a HUSBAND (male- always) and a WIFE (female- always). The concepts of "marriage", "husband", "wife", are well understood and predate the British common law on which our laws are founded, by centuries. I don't think our Judge Walker can legally redefine those terms just because his heart bleeds for the "inequality" and "unfairness" gays have to endure here in the USA.

    If the judge insists on corrupting the well-understood meaning of the word "marriage", I propose the sane part of our country should redefine "judge" as "self-important a$$hole who is grounded neither in law NOR in reality".

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  25. well, group rights has been declared as a legitimate right triumphing over individual rights

    So this is about group marriage? Who knew?

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  26. ThomasH, I don't have either the education or the background to "object" to the judge's ruling. I'm just trying to grasp how Prop 8 deprived individuals of "life, liberty, or property".

    I didn't read the whole document, just the "Conclusions of Law" sections. I guess if I want to understand I'll have to read the cases cited in the opinion for background.

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  27. Your "greater good" approach was also used to prevent integration of the military.

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  28. Very interesting that a constitutional amendment has been ruled..unconstitutional. How can an amendment be declared against itself? There is no discrimination since any gay could choose to marry someone...of the opposite sex. I get they don't want to but they aren't being told they can't get married under the definition of marriage.

    I think the gays have ultimately shot themselves in the foot on this one there only hope is more activism on the bench and that cuts both ways.

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  29. Marriage is what it is.

    "Marriage" between members of the same sex can be no more than "marriage." No court ruling or act of a legislature can change that.

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  30. zeldorf2 makes a point. You really don't have a right to marry if you can't find someone that is voluntarily willing. You cannot stay married either if you do not want a divorce. You cannot marry your daughter, son, cousin, etc. You cannot marry someone underage. There are restrictions on marriage, and concern the well being of the children. A gay man or woman can and in the past have married opposite sex people, so the right is not denied. Remember Ellen and Anne Hache? Ellen stayed gay and Anne decided she wasn't and married a man.

    Gay couples' sexual relations, no matter how loving, result in no children. It is not the adult relationship that many of us find unequal, it is the child/adult relationship of heterosexual and homosexual. There are judges that use the infertility of a couple and the subsequent adoption of a child as proof some heterosexual unions are as nonproductive as gay ones, but all gay unions are nonproductive. All gay unions that bring children result in replacing a biological parent for a legal one, no exceptions. Not true of heterosexual ones, it is still the way we reproduce.

    The problem with elites is that they tend to explore things in the abstract and don't quite convince me the logic translates to the reality.

    If you put 100 men on an island, 100 women on a different island, and 50/50 men and women on a third island, walled them in so they could not sneak out, left them isolated for 100 years, which group would survive?

    I think the word homosexual was not created until the middle of the 19th century after the framers were dead.

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  31. Perhaps I'm just dense, but how can a judge declare that a constitutional amendment, which by its definition is something that changes a constitution, be contrary to the constitution that it changes?

    You're being a little too hard on yourself. The terminology can be a little confusing when full context isn't given.

    The thing to understand is that Proposition 8 was a state ballot measure, and thus modified the California constitution. The judge ruled that the law violated the United States constitution. At the risk of over-explaining, these are two separate documents. States are not allowed to pass laws that violate the U.S. constitution, even if those laws result in amending the state's constitution.

    I hope this helps.

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  32. When you say "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." you ahve it wrong. Walker went to great, and correct, lengths to say that there is no "new constitutional right for same sex marriage." Rather, there is a fundamental right to marriage that all people, regardless of sex or sexual orientation, are able to express and use. There was no creation of rights at all in his opinion.

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  33. Marriage reflects the natural moral and social law evidenced the world over. As the late British social anthropologist Joseph Daniel Unwin noted in his study of world civilizations, any society that devalued the nuclear family soon lost what he called "expansive energy," which might best be summarized as society's will to make things better for the next generation. In fact, no society that has loosened sexual morality outside of man-woman marriage has survived.


    Analyzing studies of cultures spanning several thousands of years on several continents, Harvard sociologist Pitirim Sorokin found that virtually all political revolutions that brought about societal collapse were preceded by a sexual revolution in which marriage and family were devalued by the culture’s acceptance of homosexuality.


    When marriage loses its unique status, women and children most frequently are the direct victims. Giving same-sex relationships or out-of-wedlock heterosexual couples the same special status and benefits as the marital bond would not be the expansion of a right but the destruction of a principle. . If the one-man/one-woman definition of marriage is broken, there is no logical stopping point for continuing the assault on marriage.

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  34. When folks talk about checks and balances here, they are presupposing that the Constitution actually gives the judiciary the power to determine the constitutionality of laws. Article III does not provide that. Rather,the Supreme Court in Marbury vs. Madison gave itself that power in an exercise of circular reasoning.

    As far as whether a federal court should even be involved in this matter, where does the US Constitution give a federal court the right to determine what is essentially a domestic relations matter?

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  35. "Marriage" between members of the same sex can be no more than "marriage." No court ruling or act of a legislature can change that.

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  36. You can pin Perry v. Schwrazenegger up with other liberal BS decisions like Loving v. Virginia and Brown v. Board of Education. Don't people understand that the conservatives of California paid good money to have Prop 8 instituted as law and now some guy with a judgeship thinks he understands the Constitution better than those blinded by homophobia and using tradition as a legal argument?

    A quick question for those opposed to gay marriage: do you support outlawing divorce, or are the queers the only ones capable of ruining the sanctity of marriage?

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  37. BTW, how were men and women of same sex orientation discriminated against anyway? Up to this point of time, marriage was never defined as a relationship based on who someone wants to have sex with. Further, homosexual men have the same right as heterosexual men to marry a woman. Homosexual women have the same right as heterosexual women to marry a man. Where is the discrimination?

    Now that homosexuals have their way here, there is no logic in outlawing polygamy or polyandry or incestuous relationships or having an arbitrary age limit on who can get married. After all why should monogamous couples whether they be homosexuals or heterosexual be allowed to receive special status and benefits?

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  38. I really can't imagine that the opinion of a competent, non-comatose law professor on Judge Walker's decision is that the outcome was based on judicial activism. The case presented by the supporters of Prop 8 was an utter failure. The witnesses were unprepared for cross examination, the veracity and authority of witness testimony hadn't been honestly assessed.

    More importantly, the defense of Prop 8 didn't engage the subject of civil rights at all. They didn't acknowledge in their preparation that their opponents had any rights at stake in the trial at all.

    The outcome would be the same before any honest judge, and it will continue to be the same when honestly contested precisely because the social right won't acknowledge that there are legitimate competing interests.

    How a law professor can't see what a decent high school debate coach could is beyond me.

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  39. Matt Kane, where in Prop 8 does it claim that it is premised on homophobia and tradition? Or is that your own little presumption? The purpose of marriage is to provide the most stable environment to propagate and raise children. When a gay man can have anal or oral sex with another gay man and can make a baby pop out of those orifices 9 1/2 months later, come back and make the argument you are making. Brown and Loving were premised on immutable characteristics; whether one chooses to do so or not, a gay man can have sex with a woman and vice-a-versa.

    As far as the sanctity of marriage and sinfulness of violating that covenant are religious concepts that should play no role in this discussion. But since you asked, there is nothing that in the Scriptures that absolutely prohibits folks from divorcing; it is the remarrying part that is adulterous. Of course, since two men or two women can never enter into a sacramental marriage regardless of whatever they get a court to label their sin, such sexual acts between them are always adulterous and sinful.

    You can get a court to change its mind, but you will never get God to change His. So the challenge to Prop 8 is a waste of time in the eternal scheme of things.

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  40. Paul Hoffer:

    The main legal argument of the proponents of Prop 8 in this case was tradition and they even insinuated that allowing gays to marry would hurt the chances of the future existence of humankind itself. As for the homophobia, I'll claim that as my own presumption.

    I pose a quick question for you: if procreation is the main goal of marriage, do you propose precluding those unable to procreate (including sterile heterosexuals) to marry? And the vows I've heard at weddings include the phrase "until death do us part." Divorce seems to go against that.

    I respect your right to believe what you want and praise whichever god you want to; the First Amendment of our glorious Constitution allows this for you. But to try to use that right to deny others their rights based on the same document (14th Amendment) is wrong. Homosexuality is not a choice, just as being black is not a choice. If you feel that challenging Prop 8 is a waste of time in the eternal scheme of things, then challenging the challenge to Prop 8 should be equally futile.

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  41. From Citizens for Equal Protection vs Bruning, 455 F. 3d 859 (8th Cir. 2006):

    "As we have explained, Appellees' attempt to isolate § 29 from laws prohibiting same-sex marriage because it is a state constitutional amendment fails. If there is no constitutional right to same-sex marriage, that is, if a statutory prohibition satisfies rational-basis review, then § 29 likewise survives rational-basis review. We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States."

    If it doesnt violate the Constitution in the 8th Circuit, it doesnt in the 9th Circuit either.

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  42. Why did the Republican Party let a make-up wearing left-coast mommy's boy actor like Ronald Reagan force his gay agenda on the people of California? After all, he was the one who appointed homosexual activist Judge Walker to our courts!

    http://www.cato-at-liberty.org/2010/08/04/reagan-appointed-judge-strikes-down-gay-marriage-ban/

    Reagan was a "close, personal friend" of Rock Hudson, and the Republican Party has long been known as the closeted homosexual party in this country.

    Thankfully, godfearing Catholics like Ted Kennedy and Nancy Pelosi opposed Judge Walker! The only solution to this problem is to vote the Republicans out, and put more patriots like them in office!

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  43. Joe said: "If it doesnt violate the Constitution in the 8th Circuit, it doesnt in the 9th Circuit either."
    ============

    Just to make sure I correctly understand your thinking:

    You actually believe the 9th operates under the same Constitution (assuming it operates under a Constitution rather than a Manifesto) as does the remainder of the free world???

    R E A L L Y ????????????

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  44. Commenting on some of Paul Hoffer's points:

    When folks talk about checks and balances here, they are presupposing that the Constitution actually gives the judiciary the power to determine the constitutionality of laws.

    Perhaps some are. Perhaps others are sufficiently familiar with Marbury v. Madison and the profound precedent it set. Either way, that water went under the bridge about 200 years ago. We can discuss the trivia about how the modern judiciary's powers came to be, but it's not germane.

    Now that homosexuals have their way here, there is no logic in outlawing polygamy or polyandry or incestuous relationships or having an arbitrary age limit on who can get married. After all why should monogamous couples whether they be homosexuals or heterosexual be allowed to receive special status and benefits?

    Very similar slippery slopes were imagined by defenders of anti-miscegenation laws, so I suspect you're being disingenuous. Some 40-odd years later, we see same-sex marriages becoming more prevalent, so perhaps the slippery slopers angry over Loving v. Virginia were right, in a way.

    Anti-polygamy laws are, of course, challenged from time to time in various countries; the last time I believe it was seriously challenged in the US was in 2004.

    However, I'm having a hard time connecting the findings of the Walker decision to a legal defense of polygamy. Can you give an example?

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  45. 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.

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  46. 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.

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  47. 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.

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  48. 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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