I’m still studying the decision today in Perry v. Schwarzenegger, which strikes down Prop 8 on both due process and equal protection grounds. I like a lot of the language, and the arguments, as a matter of rhetoric, common sense, and policy. There are some interesting twists on familiar arguments and, overall, the opinion is a pretty good compendium of a policy brief for SSM.
But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws.
Walker is the first federal judge to hold that states must recognize same-sex marriages. By doing so, he eschewed a potentially narrower ruling striking down only Proposition 8, which had been suggested by some commentators. Such an alternative ruling would have focused on what critics regarded as the “animus” behind the passage of Prop 8. In theory, it would have left states free to retain traditional definitions of marriage not reinforced by passion-driven plebiscites. I think a narrow, strictly anti-Prop 8, decision would have tried to thread too thin a needle, but it was an option. Walker mentions anti-gay sentiment in the Prop 8 campaign, especially highlighting the shameful and misleading ads supporting it, but that is not the basis for his decision.
Instead, finding a federal right to same-sex marriage itself, Walker leans on not one but two prominent constitutional arguments. First, he says that the fundamental right to marriage protected by the Due Process Clause includes the right to choose the sex of one’s mate. That’s because, he writes, sex-based classifications in marriage have long since been stripped away. The ban on same-sex marriage is the vestige of discredited and long-abandoned sex discrimination in marriage.
Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights. If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent. A minimalist decision for SSM by Walker could have left this matter undecided and thus would not have forced a higher court’s hand.
Second, Walker held that the ban on gay marriage violates the Equal Protection Clause. The interesting question is why. In part of Walker’s opinion, he accepts the case for heightened scrutiny of classifications based on sexual orientation and asserts that denying marriage to same-sex couples is a form of sexual-orientation discrimination (and sex discrimination, which is related).
But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.
Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?
The decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat.
Judge Walker, I am sure, would deny that his decision is maximalist. SSM, he assures us, is not a “sweeping” change. Furthermore, his decision is couched in the lop-sided evidence presented at trial about marriage and the potential consequences of recognizing SSM. By my count, he uses the word “evidence” 54 times in the “Conclusions of Law” section alone. This evidentiary reliance will be used to try to insulate the decision from meaningful appellate review. The evidence just leads us, inescapably, to the conclusion that SSM is a neutral or even good thing. What’s more, the evidence is so one-sided that judges are entitled to say so as a matter of constitutional law. But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous.
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).
Hank says:
I see two problems with Mr. Carpenter’s concerns.
1–a higher court could easily duck the maximilist parts of the decision by saying the only holding necessary to the decision was the most narrow, the rational basis scrutiny, the remaining discussion was dicta, find that the law was rationally related to a governmental interest, and then ignore the rest of the decision.
2–even if Walker eschewed the animus route, appellate courts can affirm a decision if they think the result is right, even if they disagree with the reasoning. Thus, the animus argument might still reappear if it is one that appeals to say, Justice Kennedy, and it would allow the Court to strike the opinion, leave the big questions unanswered, but affirm the actual decision, which is that Proposition 8 is overturned.
I think appellate courts may well take a narrow tack with this issue, notwithstanding the broad language employed by Judge Walker. I suspect Justice Kennedy would not sign on to a broad pronouncement either in favor of or against gay marriage, but will cast his vote, should one arise, in the most narrow way he feels he can get away with.
DC responds: Of course a higher court *could* do whatever it wants, but Judge Walker has made a ruling reversing him more difficult — especially with his conclusion that there is a fundamental right to marriage that includes same-sex couples. As for a narrow ruling from a higher court striking down Prop 8, that’s also possible, but it’s not the end-result I’m hypothesizing (and think is most likely) in this post.
August 4, 2010, 8:03 pmptt says:
Count me among those who think this comes too soon, but as to “too much”, I have trouble imagining that a rejection of the right to SSM from the SCOTUS would be an exercise in restraint if the vote went that way, regardless of the case brought before the Court.
We’re fighting for the whole enchilada. Might as well be upfront about it.
August 4, 2010, 8:10 pmChris Travers says:
That was my first thought as well. Yes, the higher court has to decide what to do with it, but they can just as easily set those questions aside for another day.
August 4, 2010, 8:13 pmMike S. says:
I don’t know anything about the tactical aspects. But this is (at least) the third court ruling that there is no rational basis for limiting the speed of change of social institutions. In short, Burkean conservatism is now officially irrational in several jurisdictions. I cannot imagine that this result is either correct or tenable in the long run. Can anyone whose Utopian scheme is rejected by a legislature or plebiscite now sue to have it implemented anyway? Almost all such schemes can be described in terms of equality. How will society function if so?
August 4, 2010, 8:16 pmTranx says:
An appeal to the 9th Circuit (sure to happen) requires that the Circuit Court review the case anew. They will typically accept lower court’s findings of fact (unless there is a clear error), but will consider the legal reasoning with a clean slate. Walker has more or less transcribed the court proceedings in his findings of fact, making it difficult to come to any other conclusion except Proposition 8 is unconstitutional.
By presenting as many arguments as possible in the third section, Walker has given the 9th Circuit as much information as possible. While not necessary, he has concluded gays and lesbians are a suspect class because the question was presented in court.
August 4, 2010, 8:20 pmKamal says:
Interesting analysis from someone who disagrees with the effect of the ruling (inferred from your use of language regarding this).
Judging by their “activism”/”originalism”, I expect Supreme Court will overturn this in a way that will really mobilize the pro-marriage movement, and help the Democrats in 2012 immensely. Insofar as the government is involved, this particular form of discrimination is disgraceful, and will be defeated eventually.
August 4, 2010, 8:25 pmDon de Drain says:
Walker is very intelligent. He understands that, by using a “maximalist” approach, he will force the hands of all Supreme Court Justices on the constitutional issues if/when the case gets there. And surely he understands that it is likely that the Supremes, as currently constituted, are likely to reverse him.
I suspect that the Scalia/Alito/Roberts/Thomas crowd can’t wait to get their hands on the case (again). But, whether you agree with the result of today’s ruling or not, that ruling is no more “maximalist” than the Supreme Court’s ruling in Citizens United.
Just thought of a question. If Walker does not issue a stay pending appeal, and the plaintiffs get married before the 9th Circuit rules on a stay motion, does that raise procedural issues that could scuttle the appeal (mootness, etc.)? I would think not, but don’t have time to think it through.
August 4, 2010, 8:25 pmAnton Sirius says:
Don, I think it’s clear that Walker wrote his decision with the SC in mind – there are turns of phrase that read as a deliberate echo of Scalia’s dissent in Lawrence, for instance.
August 4, 2010, 8:33 pmRonald C. Den Otter says:
Am I only one who thinks that (a) the SCOTUS will eventually hear the case (b) the vote will be 4-4. Scalia, Alito, Roberts, and Thomas on one side and Kagan, Sotomayor, Ginsburg (assuming that she’s still around by then), and Breyer on the other. It will then come down to Kennedy. (c) Kennedy will decide that there is a constitutional right to ssm on fundamental rights or equal protection grounds (that a ban on ssm fails rational basis standard of review. Most likely the latter. Granted, I’m most tenative about (c). But Kennedy is the author of the two most pro-gay rights SCOTUS decisions ever, Romer v. Evans and Lawrence v. Texas. More importantly, I think, he cares about his place in American constitutional history.
August 4, 2010, 8:35 pmjrose says:
The oddest part of the maximalist ruling is the bewildering argument that sexual orientation and sex discrimination are two sides of the same coin, and sexual orientation is a suspect classification even though sex is only quasi-suspect under precedent.
That’s a thumb in the eye of higher courts.
August 4, 2010, 8:36 pmLior says:
Wouldn’t it be Schwarzenegger v. Perry from now on?
August 4, 2010, 8:39 pmDon de Drain says:
Just read Hank’s comment. Agree that such a result is possible. It is also possible that there will be some provocative concurring opinions from Scalia and others if they reverse today’s rulings.
I agree with Kamal regarding the political effect of a future reversal of today’s ruling by the Supremes.
August 4, 2010, 8:40 pmJohn Howard says:
What happens if before it gets to SCOTUS, a federal law prohibits same-sex procreation, and prohibits states from stripping procreation rights from marriage by giving marriage licenses to couples prohibited from procreation together?
August 4, 2010, 8:42 pmInstapundit » Blog Archive » FEDERAL JUDGE FINDS CALIFORNIA PROPOSITION 8 unconstitutional. Copy of the decision at the link. (… says:
[...] MORE: Dale Carpenter: A Maximalist Decision, Raising The Stakes. “There are some interesting twists on familiar arguments and, overall, the opinion is a [...]
August 4, 2010, 8:47 pmOrin Kerr says:
This is a superb and extremely insightful post, Dale.
August 4, 2010, 8:48 pmShea Levy says:
I understand why activists should be concerned about the chance of a damaging reversal here, but isn’t the proper role of the judge be to apply the law as far as he sees it applicable? That is, why is it a judge’s station to determine how wide or narrow he wants to be?
August 4, 2010, 8:51 pmRKV says:
The majority of Americans disagree with this ruling. There really is no fundamental right at stake here in their eyes (nor mine for that matter – despite the protestations of several of the “conspirators” here). For the last several thousand years of Western history heterosexual monogamy has been the cultural imperative. Once you follow this judge’s line of reasoning to prevail, anyone or any number of individuals can marry a gerbil. Or two camels. Or a tree. The institution of the judiciary has been brought to absurdity. Codevilla’s “ruling class’s” days are numbered, and this decision is proof.
Flame on. I am just the messenger. Get it or don’t.
August 4, 2010, 8:52 pmjrose says:
I don’t think so. If a higher court determines the Proposition survives because of rational-basis scrutiny, it will have to hold that higher levels of scrutiny do not apply (or the law survives those higher levels).
August 4, 2010, 8:55 pmDale Sheldon-Hess says:
“What happens if before it gets to SCOTUS, a federal law prohibits same-sex procreation”
I assume you mean ‘adoption’. Otherwise, there’s something I need to tell you about biology…
Anyway; perhaps an interesting question/exercise, but not something that’s, in any way, likely to occur.
August 4, 2010, 8:58 pmWilliam Woody says:
I don’t think Walker had a choice but to use a “maximalist” approach–after all, this is overturning a California State Constitutional Amendment. Unless you find a U.S. Constitutional Amendment right to gay marriage, the bar for overturning parts of a state constitution should be pretty bloody high.
It does set the stage for a showdown at the Supreme Court–and it makes me wonder if, on finding a fifth and fourteenth Amendment right to gay marriage in California, that it should be found in the other 49 states as well.
In other words, this strikes me as a double-down: either you find a federal Gay Marriage right in the Constitution, or you allow the California State Constitutional Amendment to stand.
August 4, 2010, 9:00 pmRonald C. Den Otter says:
“Once you follow this judge’s line of reasoning to prevail, anyone or any number of individuals can marry a gerbil. Or two camels. Or a tree.”
Non-human animals and plants cannot form contracts, including marriage contracts.
August 4, 2010, 9:02 pmwallace says:
Kennedy went to great lengths to exclude marriage from the holding in Lawrence. He had no reason to do so, unless he had doubts about the concept. I suspect that Kennedy is likely to hold that same-sex ‘marriage’ is a bridge too far. Carpenter is right… this decision is one that would give Kennedy pause, even if he wanted to find a ‘right’ to same-sex ‘marriage’.
August 4, 2010, 9:03 pmgrendel says:
dale,
don’t feed the troll ….
we really don’t need another thread completely side railed by John and his bizarre paranoia
August 4, 2010, 9:03 pmSteveMG says:
With the risk of being a bit cute here, Professor Carpenter says several times that SSM is “banned”. How so?
Nowhere in America is a same sex couple banned – again, banned – from marrying one another a la mixed race couples in some states prior to Loving. States will not legally recognize that SSM and turn that informal marriage into a formal one. But if the states got out of the marriage business completely and didn’t legally recognize any marriages at all, they wouldn’t be banning marriage.
Not recognizing an act for legal purposes is not the same thing as banning that act. Correct?
What am I missing here?
August 4, 2010, 9:06 pmwallace says:
The evidence just leads us, inescapably, to the conclusion that SSM is a neutral or even good thing. What’s more, the evidence is so one-sided that judges are entitled to say so as a matter of constitutional law.
The ‘evidence’ only reads that way, because Walker stacked the deck and because the social-’sciences’ have been hijacked by homosexuals and their allies. Given Walker’s incredible bias, the manner in which he acted during the trial, and the slap down that he received in an opinion written by Justice Kennedy, one would have to assume that the appellate Courts will look with great suspicion at the propaganda disguised as ‘evidence.’
August 4, 2010, 9:06 pmDave M. says:
You’re assuming that the Court won’t try to avoid the consequences of any decision they reach on election polls. We have no reason to be certain that this would even reach the Court before the 2012 election, or that if it did, it would be decided before then.
Remember: Brown v. Board I was argued in 1953, set-over for re-argument and decided in 1954, and the Brown v. Board II opinion was announced in 1955.
SCOTUS has tools to delay…
August 4, 2010, 9:10 pmMarkie Mark says:
I just don’t see how it can be intellectually honest to claim a constitutional right for gay marriage, but continue to prosecute people for polygamy. Unless “constitutional rights” are apportioned by popularity alone. I live in a western state that has a considerably amount of voluntary, volitional polygamy. I defy anyone to show how it differs in principle from gay marriage (except for the obvious….).
Remember, you can’t make reference to the “historical” argument because you just crapped all over that one. Besides, there is a MUCH greater historical precedent for polygamy/polyandry than for gay marriage.
August 4, 2010, 9:11 pmRKV says:
Well Justice Douglas did rule that trees have “standing” so who the hell cares about capacity, legality of subject matter (a moot point I’ll admit, but if we are to have representative government, then you have to leave that to the people, not to the government employees), mutuality, consideration, etc. Call marriage any damn thing you want. My very simple point, is that a judiciary which decides it can write laws, is going to be put out of business sooner or later. I hope sooner personally.
August 4, 2010, 9:13 pmBill Brock - Chicago says:
It’s not just about biological males and biological females. Something like 2 in 10,000 people are intersex.
So maybe there’s 60,000 Americans (30,000 of the age of consent) who’d be forbidden to marry? (Or, more perversely, allowed to marry, but forced to arbitrarily choose one gender or the other?)
I’d be curious to see how the USSC addresses this.
August 4, 2010, 9:16 pmKamal says:
Despite this, I’m guessing you’re more a supporter of a Republic than a direct Democracy, yes? If so, this should be irrelevant, if your being honest with yourself.
August 4, 2010, 9:22 pmRonald C. Den Otter says:
“Once you follow this judge’s line of reasoning to prevail, anyone or any number of individuals can marry a gerbil. Or two camels. Or a tree.”
Non-human animals and plants cannot form contracts, including marriage contracts.
August 4, 2010, 9:23 pmDucatista says:
I’ll preface my question with the standard disclaimer, I am a regular reader but not a lawyer.
I saw a comment in a twitter feed earlier that suggested that the 9th Circuit may find that Yes on 8, the defendant-intervenors, do not have standing for appeal. I’m hoping that someone here can explain why they wouldn’t have standing. It makes no sense to me that they would have standing at the trial level and not have it at the appeals level.
Thank you in advance!
August 4, 2010, 9:27 pmtomemos says:
“I just don’t see how it can be intellectually honest to claim a constitutional right for gay marriage, but continue to prosecute people for polygamy.”
If you’re genuinely curious, I’d be happy to explain it to you. “Homosexuals” are a class of people subject to discrimination, in that their sexual orientation is (all credible research shows) innate, permanent, and immutable. Homosexuals by and large can only find meaningful sexual relationships with people of the same sex. There is no such thing as a person who can only find meaningful sexual relationships with multiple partners. Or to put it more succinctly: homosexuality is a state of being, whereas polygamy is an act.
August 4, 2010, 9:29 pmKamal says:
This issue brings out the crazy in the right. They won’t think strategically. I could be wrong, but doubt it.
August 4, 2010, 9:30 pmChris Travers says:
I disagree.
I think the 9th Circuit will uphold the ruling on the basis that the state just didn’t prove it’s case and state that rational basis review applies. I am willing to bet a sentence like this will appear somewhere in it:
“Given the evidence submitted by the plaintiffs and the distinct lack of evidence submitted by the state, it cannot be said that the state met its burden under the rational basis review test, and this burden is hardly substantial.”
I am willing to further suggest that the circuit opinion will only rule as to whether Prop 8 meets this standard, not as to whether all same sex marriage bans do, and that it will leave the door open for future laws or initiatives to re-enact the ban.
August 4, 2010, 9:30 pmLevi says:
Proponents of Proposition 8 did a horrid job finding expert witnesses who were actually experts. Judge Vaughn basically said that both the testimony of Blankenhorn and Miller should be given essentially no weight, and relied heavily on the testimony and literature which favored the opponents. Nearly 10 pages of the opinion was devoted to challenging Blanknhorn’s testimony and credentials.
I have excerpted some of it here: http://titcr.blogspot.com/2010/08/excerpts-and-analysis-of-proposition-8.html
August 4, 2010, 9:31 pmbadlaw says:
I think we’re still conveniently leaving out Baker v. Nelson, like Judge Walker did. Baker is binding precedence, meaning lower courts cannot reach an alternate decision. It’s left out of Walker’s decision, but…how? The court dismissed that case “for want of a substantial federal question”. And it was a matter involving two people who wanted to marry in a state that doesn’t recognize gay marriage, appealed to the SCOTUS on 14A grounds.
If anything, the Plaintiffs in Perry have even less standing than those in Baker, because at least in this case, there’s significant protections for homosexuals, and their relationship is recognized under a different (yet distinction-less) scheme in the state. The Plaintiffs in Baker had none of that.
We’re assuming this is headed to the Supreme Court, but not if the 9C does its job and strikes it down under Baker.
August 4, 2010, 9:38 pmColin says:
Justice Douglas didn’t “rule” anything of the sort. He wrote a (quite-eloquent) dissenting opinion in Sierra Club v. Morton that such was his belief, but it wasn’t even close to becoming law. If such a thing did become law, I guarantee you Congress would act to limit the jurisdiction of Article III courts to reverse the effect.
August 4, 2010, 9:39 pmKamal says:
It would be as difficult to find credible scientists who think that the earth is 12,000 years old, or that CO2 doesn’t retain heat. It would be impossible. Not because they aren’t credible, but because they wouldn’t be scientists.
August 4, 2010, 9:39 pmGuy says:
I agree that a “prop-8 only” resolution would have been tactically preferable, but it would also have been more legally questionable, a law can’t fail the rational basis test just because of the subjective intent behind the legislation, and that approach is often viewed with skepticism by some judges even in the strict scrutiny context.
August 4, 2010, 9:49 pmRandy says:
Perhaps he took a maximalist position so that SCOTUS could uphold the unconstitutionality of Prop 8 but reverse all the other stuff and look like they were splitting the baby.
Wallace: “The ‘evidence’ only reads that way, because Walker stacked the deck and because the social-‘sciences’ have been hijacked by homosexuals and their allies.”
Actually, it was NOM’s chief witness, David Blankenhorn, who admitted that marriage would be beneficial for gays, among other things. They also failed to enter into evidence all the usual crazy arguments about gays that we usually see by the anti-gay crowd. So your beef is really with NOM.
August 4, 2010, 9:52 pmGuy says:
The whole doctrine of standing was invented by courts to begin with, so I’m not sure how saying trees have standing, which may indeed be ridiculous, is any more an act of law-making than saying that they don’t have standing.
August 4, 2010, 9:55 pmtomemos says:
badlaw: But doesn’t the precedent of Lawrence v. Texas, which Walker cites extensively in his opinion today, mean that there *is* now a federal question? Do correct me if I’m wrong about that.
August 4, 2010, 9:58 pmLaura(southernxyl) says:
There are plenty of people – plenty – who still assert that homosexuality is a choice and that there’s no law that says a gay person can’t marry; of course he (she) can, as long as it’s someone of the opposite sex. I would be very shocked to fast forward fifteen or twenty years and not find polygamy seriously put forward as not only an acceptable lifestyle, but one that certain people require for their fulfillment.
August 4, 2010, 9:59 pmLevi says:
Point well taken. But they could have at least found a couple people with experience in the realm of psychology who probably agree with them. Instead they rely upon testimony from two individuals who don’t even have a facade of expertise in this area. The opinion said that several of their “experts” declined, so maybe I am not giving them adequate credit.
August 4, 2010, 10:00 pmArthur Kirkland says:
It has been dark for a couple of hours on the East Coast, and no flaming bolts from the sky have been observed yet, so maybe we will be OK.
August 4, 2010, 10:01 pmMichael Ejercito says:
Not exactly true.
Judge Joseph Battailon struck down Nebraska’s ban in 2005. (PDF format) Eugene Volokh gave a critique of the decision here . The Eighh Circuit overturned the decision, and the Supreme Court has yet to hear the appeal.
It was not a viable option.
The reasons offered for the law would have to seem “inexplicable by anything but animus toward the class that it affects” (Romer v. Evans) This would mean that the plaintiffs would have had to show that every law like Proposition 8 was based on animus, and in this case, such laws existed as early as 1912. A ruling based on animus would thus invalidate all bans on same-sex “marriage”. This is why Judge Walker avoided this.
Animus was cited as a reason by Judge Battailon in his decision Citizens for Equal Protection v. Bruning, a decision the Eighth Circuit overturned.
And of course, laws that were based on animus can still be upheld if another rationale exists for such laws. (Reynolds v. United States, Davis v. Beason)
Sex-based classifications in marriage persist to this day.
For someone who wanted a factual record, how can he be so incorrect in his ruling?
And there is no case law that just because something is good means that there is a constitutional entitlement to it.
This was strictly a matter of law.
In 1874, the Supreme Court upheld laws denying suffrage on the basis of sex (Minor v. Happersett) And yet, it did not stop states from allowing women to vote, nor ratification of the 19th Amendment.
A Supreme Court ruling that the Constitution does not protect any right for same-sex couples to have an officially recognized family relationship, let alone have it called a marriage, will have no effect on the likelihood of states adopting same-sex “marriage”, nor the ratification of a constitutional amendment requiring legal recognition of same-sex “marriage”.
The animus route has its own problems, noted above.
That was not his conclusion to make, since the Ninth Circuit had previously denied suspect classification to gays and lesbians.
Only the Ninth Circuit or the Supreme Court can overrule Ninth Circuit precedent.
That would be correct. (Although I would be hard pressed to interpret such a protection from the original public understanding of those constitutional provisions)
You can not, at least if the basis is the Fourteenth Amendment.
August 4, 2010, 10:04 pmDon de Drain says:
Arthur Kirkland–
I am sure that someone, probably Pat Robertson, will attribute the next large California earthquake to Judge Walker’s ruling.
August 4, 2010, 10:07 pmptt says:
Pity that Rekkers fellow was on vacation in Europe…
August 4, 2010, 10:08 pmbadlaw says:
I wouldn’t think so. Lawrence dealt with sodomy as a matter of Due Process; Baker dealt with the denial of a marriage license as a matter of Due Process and Equal Protection, as is the case with Perry. The merits considered in the Baker case don’t vary much from the merits in this one.
August 4, 2010, 10:11 pmFirst Chair says:
Depends on the meaning of “function” in our “Woulda-Coulda-Shoulda” world.
August 4, 2010, 10:13 pmRKV says:
“this should be irrelevant, if your being honest with yourself.”
August 4, 2010, 10:14 pmNot really. What you’ve said is not an argument. It’s an assertion. One I disagree with.
Why? simply put the continuity of our society is based on the nuclear family. That is a rational statement, and not a religious one, btw. For my part, what people do in their beds a night is none of my business (nor particularly of the governments). What they do when they invoke state power to enforce contracts (and particularly in the course of family law) does involve me, because I pay for said state power. A majority of Americans concur with the existing definition of heterosexual monogamous marriage (at least as a legal institution, I make no comment on the actual practice which includes high rates of infidelity and divorce). This ruling is judicial interference with the legislative process plain and simple, and does our country no service. Those in favor of this change in policy don’t have the votes to amend the Constitution and applaud an end run around Article V. I don’t.
Anti Pinto Hate Must Stop says:
WTF Dale?!?!?!?
Pintos are not unreasonably dangerous!
Outrageous statement to include.
August 4, 2010, 10:15 pmjoe in nc says:
At what point will enough of us realize we are no longer citizens but subjects and our government is no longer legitimate?
August 4, 2010, 10:19 pmExpect massive tax evasion and an underground economy that will make Italy look like Iowa.
It is coming and it will be horrible. The loony Left is sowing terrible seeds.
Michael Ejercito says:
It was tried in the 19th century.
The U.S. government put a stop to that.
Funny how the equal protection clause was insufficient to overturn a law imposing adverse consequences for advocating breaking laws against polygamy (Davis v. Beason)
August 4, 2010, 10:25 pmMichael Ejercito says:
No.
August 4, 2010, 10:36 pmMax Power says:
Again with you and the Baker v. Nelson! If you are pinning your case for victory on the “binding” nature of an unreasoned one-sentence dismissal that predates not only Lawrence and Romer, but also Craig v. Boren and the very concept of intermediate scrutiny for gender-based classifications, well, I think you will be disappointed. SCOTUS may yet reverse this, but it will not be a simple decision that Baker v. Nelson controls, end of story, settled law, thank you for playing.
August 4, 2010, 10:37 pmMax Power says:
Dale: I think someone else already pointed out that the petitioner’s name would come first in the SCOTUS caption, so Perry, assuming she wins at the CA9 level, would come second. Moreover, the petitioner by that point would no longer be Schwarzenegger; it would be Brown or Fiorina or whoever wins the governor’s race.
August 4, 2010, 10:41 pmCatoRenasci says:
I think this is right, and I suspect that it will be, as wallace says, a ‘bridge to far’ for Kennedy.
This ruling will probably infuriate far more Americans than it will please. Regardless of whether one thinks homosexual marriage is a good thing or not, it is deeply disturbing to see the courts so cavalierly strike a constitutional amendment lawfully adopted. The issue should be played out at the ballot box and in the legislatures, not the courts. The consequences will likely be a diminished respect for the courts and greater divisions in the country. Do not discount the possibility that this will revive a serious movement to limit the courts’ jurisdiction in such matters and/or to override the courts by means of amending the US Constitution.
August 4, 2010, 10:43 pmMichael Ejercito says:
Lawrence did not apply to marriage.
August 4, 2010, 10:51 pmMike G says:
I don’t know nothing about legal decisions. But politically, I see two likely consequences:
1) Legislatures and presidents will be even more likely to pass the buck to courts to make the hard decisions for them. (Thus the situation today, in which the gay marriage movement will call you a nasty bigot for opposing legalizing gay marriage, unless you’re actually in a position to do something about it, in which case they give your opposition a pass.)
2) The odds of a national constitutional amendment to prevent gay marriage went up dramatically today. Having just read Daniel Okrent’s book on prohibition, it’s all too easy to see how you could get 37 states to pass something over the objections of, say, the only 7 to 10 states where gays have any political presence. That is a recipe for decades of trouble on this issue.
August 4, 2010, 11:00 pmTom T. says:
How is a same-sex marriage any more or less of an “act” than a polygamous marriage?
August 4, 2010, 11:06 pmOh My Gay Stars says:
Oh Dale, live a little! When the Supreme Court affirms the Circuit and District Court in this case, you’ll probably be all, “this ruling brings us one step closer to a constitutional amendment banning gays”
August 4, 2010, 11:13 pmmemomachine says:
Hmmmm.
Time for a Constitutional Amendment and take the entire thing out of the hands of the judiciary.
*shrug* while we’re at it might as well force a change to the 14th Amendment and eliminate birthright citizenship except in the case of American citizens. Maybe eliminate abortion as a Constitutional Right as well and leave the subject to the individual states to make their own determinations. Possibly modify the Commerce Clause and eliminate all that utter crap that has been tacked onto it. Not sure about forcing balanced budgets but throw it in for consideration.
When there is no longer any trust then you can’t leave things to the courts.
August 5, 2010, 12:00 ammemomachine says:
Hmmm.
An amusing juxtaposition.
August 5, 2010, 12:06 amJoe says:
Well Justice Douglas did rule that trees have “standing”
ultimately though it was for the interests of human that he wanted such protection:
“Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction.”
August 5, 2010, 12:12 amJames Gibson says:
Then explain bisexual people and in the process why they are aligned with the Homosexual community (the B in LGBT) in this issue since they obviously are involved in an “Act” by your definition. Further, given the number of gay men who have boasted of their multiple partners, why is this not an expression of your “Act” verses your state of being.
August 5, 2010, 12:13 amJoe says:
“Davis v. Beason”
Romer v. Evans called this ruling into question in various respects:
Davis v. Beason, 133 U.S. 333 (1890), not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it “simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it.” Id., at 347. To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. Dunn v. Blumstein, 405 U.S. 330, 337 (1972); cf. United States v. Brown, 381 U.S. 437 (1965); United States v. Robel, 389 U.S. 258 (1967). To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See Richardson v. Ramirez, 418 U.S. 24 (1974).
As to what the feds “put a stop” to, they also “put a stop” to various things now deemed protected by the First Amendment and other amendments, including sending birth control information and items thru the mail. Lawrence v. Texas noted when determining the meaning of “liberty,” the last 50 years was the better judge. Not 150 years (L’s 15 years hence would be 2025, about 150 years from Reynolds v. U.S.).
August 5, 2010, 12:18 amSonicfrog says:
What I find even more disturbing, regardless of your opinion of this particular issue, is that the citizens of California are so willing to accept a process whereby their Constitution can be amended so easily, on the whim of emotion. As a result of being able to willy nilly throw all sorts of crap into the document with a simple proposition, the California constitution as it stands, like it’s current government, is a joke. Makes me more in awe of the framers of the US Constitution, who made it very difficult to tamper with the most important document of law in the nation.
August 5, 2010, 12:22 amJohn Herbison says:
I suspect that Judge Walker wanted to provide the reviewing courts (Ninth Circuit panel, possibly Ninth Circuit en banc, possibly SCOTUS) a smorgasbord of theories to choose from, and he tied the decision closely to the factual record (including specific credibility determinations) so as to make reversal more difficult. In order to reverse, a higher court would have to show that the district court erred as to every legal theory addressed in its opinion. OTOH, a single theory favoring the plaintiffs is sufficient to affirm the result.
As four members of SCOTUS are firmly on Eric Rudolph’s side of the culture wars, Justice Kennedy (the author of Romer v. Evans and Lawrence v. Texas) stands in the breach. I suspect that Judge Walker hopes that, at a minimum, Justice Kennedy will support the result reached here, possibly on narrower grounds than the district court. That is essentially what happened in Romer. The Supreme Court of Colorado had opined that the referendum in question there burdened the fundamental right of gays, lesbians and bisexuals to participate equally in the political process, such that strict scrutiny review was required under the Equal Protection Clause. Justice Kennedy, joined by five other justices, opined that rational basis review applied, and the Court opined further that animus against a politically disfavored group does not constitute a legitimate governmental interest even for rational basis analysis.
Here, Judge Walker opined that Proposition Hate failed even the rational basis test, but his factual findings are such that a reviewing court, if it so chooses, can find sexual orientation to be a suspect classification.
August 5, 2010, 12:29 amChristian K says:
I wonder how this will affect the California gubernatorial election this year. Brown authored the brief that stated that Prop 8 was unconstitutional, which will probably be used against him. However if he wins it might significantly change the States stance on this. If the legislature passed and the Governor signed a SSM bill into state law, how would that change the proceedings?
August 5, 2010, 12:30 amCan't find a good name says:
It takes 38 states to ratify a constitutional amendment, not 37. More importantly, though, the amendment first would have to be proposed by 2/3 of both houses of Congress, and that wouldn’t be easy to achieve.
August 5, 2010, 12:32 amThrobert McGee says:
A Federal Marriage Amendment would be a good thing for pragmatic same-sex couples nationwide, as it would make it easier to challenge state-level constitutional bans on civil unions / domestic partnerships. (A major argument against establishing CU/DP laws is that such legislation will become a slippery slope or stepping stone to same-sex marriage; the FMA would theoretically make that “slippery slope” a non-issue.)
The difficulty lies in the fact that many gay people have absolutely no interest in pragmatism, because despite all the rhetoric about the umpteen thousand tangible benefits that same-sex couples are allegedly deprived of, many members of Club LGBT are chasing after the intangible feelings of being validated and sanctioned by the state, as well as the ethereal “respectability,” “dignity,” and je ne sais quoi that they perceive in the word Marriage.
August 5, 2010, 12:36 amJames Gibson says:
I believe we have to have 3/4 of the states in the union voting on or otherwise supporting a change in the constitution. Then again we have 28 states in the union that have State constitutional bans on same sex-marriage, 29 counting the California amendment which hasn’t gone away regardless of this ruling. Eight other states ban it by statute not including Iowa (which is considering a constitutional amendment whether certain people admit to it or not). Thus the potential number is 38 states right now of the required 38. And this doesn’t include New Mexico or Rhode Island which neither recognises or prohibits same sex marriage.
August 5, 2010, 12:37 amJohn Herbison says:
BTW, for those who bleat “Baker v. Nelson” as if the single sentence disposition in that case has talismanic qualities, can anyone tell me what the Appellants’ jurisdictional statement in that case said? I don’t know.
August 5, 2010, 12:37 amThrobert McGee says:
You can argue with Dale, but you can’t argue with scientific fact.
August 5, 2010, 12:46 amJames Gibson says:
As I understand it to amend the Constitution we need a minimum of 38 states (3/4) to agree. Of course we have 28 states with Constitutional amendments banning Same Sex Marriage, not counting California. We also have 8 states with statutes banning it not counting Iowa. Thus one can get to the required 38 without having to try to include New Mexico and Rhode Island, both of which neither recognize or prohibit Same Sex marriage.
August 5, 2010, 12:48 amMichael Barclay says:
On the eventual Supreme Court case caption: Assuming the Ninth Circuit affirms Judge Walker, the State of California is unlikely to petition for cert. So the intervenors, Dennis Hollingsworth et al., would do so. The SCOTUS case caption will therefore be Hollingsworth v. Perry. In fact, that was the caption when the Supreme Court ordered that the trial not be broadcast. See:
August 5, 2010, 12:53 amhttp://www.supremecourt.gov/opinions/09pdf/09A648.pdf
A. Zarkov says:
The institution of marriage was created to give a particular man exclusive sexual access to one or more designated women. Without this institution men tend to fight over women and this leads to social instability– bad for the hunt where men must cooperate. Thus marriage has a rational basis, and the institution is nearly universal. However before monogamous marriage, 80% of men did not procreate because the alpha men took nearly all the women. Women desire alpha men, and most prefer a fraction of an alpha man to all of a beta man. This is why polygamy is far more common in history than polyandry. Having 80% of men go without sexual partners also leads to instability, and that’s why polygamy is rare and generally illegal. Thus we have a rational basis for both marriage and monogamous marriage. On the other hand, we have no rational basis for homosexual marriage. Such an institution provides no benefit to the heterosexual world which is 97% of the population.
This decision is wholly political– an exercise in word games and specious reasoning. It tells the voters they don’t count for much. The 14th Amendment was all about giving rights to freed slaves, not people who choose certain behaviors.
August 5, 2010, 1:00 amohwilleke says:
The case for a maximalist decision, however, is that authoritative judicial rulings can change public opinion.
The fact that the California Supreme Court ruled gay marriage to be a constitutional right under the state constitution probably is one of the reasons that Prop 8 passed with only 52% support rather than a much larger percentage as in many other states.
This broad court ruling, even if it is narrowed or reversed on appeal, likewise undermines the legitimacy of Prop 8 in a court of public opinion that is already finely balanced. When a judge says something it has more effect than if some guy who paid for a TV ad says something. After all, at most, an overruling decision will say that strict scrutiny does not apply and that there is at least a rational basis to support the ruling, so that it isn’t quite irrational enough to be unconstitutional, not that Prop 8 is correct as a matter of policy or that the evidence presented at the trial isn’t true.
Another reason not to be too concerned about a maximalist ruling is that it isn’t obvious that the ruling has broad application in unrelated matters. The fact that the ruling is so rooted in the evidence (cf. Brown v. Board) limits the application of the legal principles to other areas of the law.
August 5, 2010, 1:22 amChris Travers says:
I have no problem with this. But recognizing polygamy by judicial fiat would raise issues that no sane court would want to enter into. With a current monogamous marriage, you can get legal advice as to the nature of marriage rights and responsibilities before you enter into one. If the judges say “polygamy is now allowed!” then the necessary changes in those rights and responsibilities become problematic. I don’t believe that a marriage contract where rights and responsibilities are not reasonably set and understandable ex ante can be valid. Consequently, judicially recognized polygamy runs into contract issues too….
In other words, you can’t even get to a rational basis challenge because the family units are not similarly situated.
Now, I predict that in another 10-20 years, Lawrence v. Texas will be interpreted as expanding to rule out de facto bigamy laws, i.e. laws criminalizing cohabiting with multiple people as if they were spouses, etc. That won’t be the same thing as recognizing polygamy, naturally, but I think its coming.
August 5, 2010, 1:35 amChris Travers says:
I think the worst thing you can say about a judge is that the judge is trying to push an agenda on the public.
You seem to be basically saying that you want judges which are activists for various causes, then.
Would that be the same if this were an abortion rights case and the judge conclusively ruled that there was no right to abortion in the Constitution?
August 5, 2010, 1:40 amKen Spreitzer says:
It seems to me that gays are the experts on whether being gay is a choice, and the burden of proof ought to be on those who claim it is a choice. Can the court declare that gays are lying when claiming that being gay is not a choice?
Also, I would hope that future decisions agree that the freedom to choose whom to marry is a critical part of the right to marry. Just because a gay man can marry a woman (legally) doesn’t mean they would want to. Besides, allowing “same-sex marriage” means that straight men could marry other men… but that right is just as useless to them!
Finally, I’m tired of the polygamy argument. That’s not what we’re discussing. Are we willing to deny marriage to same-sex couples (the actual issue being discussed) for fear of another issue not actually being voted on? When or if polygamy becomes a substantial issue, we’ll discuss it calmly and rationally then.
August 5, 2010, 1:43 amDave M. says:
Neither did Romer, for that matter.
August 5, 2010, 1:46 amAnti Pinto Hate Must Stop says:
Racist!
August 5, 2010, 1:52 amMike G says:
“It takes 38 states to ratify a constitutional amendment, not 37. More importantly, though, the amendment first would have to be proposed by 2/3 of both houses of Congress, and that wouldn’t be easy to achieve.”
Not easy, but do you really think you can count on more than 1/3 unequivocally standing against a constitutional amendment if it has widespread support? My point is not that I’m convinced one will pass, but we got a lot closer to a fight over one today.
August 5, 2010, 1:54 amscattergood says:
This unfortunately is the entire issue. There is zero, let me repeat, zero, evidence that engaging in homosexuality is entirely deterministic. Twin studies prove this beyond a shadow of a doubt. There is zero, again let me repeat, zero evidence of a causal relationship of any specific biological factor that makes engaging in homosexual activity entirely deterministic.
In fact the overwhelming body of evidence suggests that engaging in homosexual behavior is NOT entirely deterministic.
To state that ‘well I’ll ignore the science and trust the people who engage in homosexual behavior to tell us if they have a choice’ is beyond stupid and illogical.
I’d suggest people actually read what the APA states about sexual orientation, not even acting on that orientation:
“There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation.
http://www.apa.org/topics/sexuality/orientation.aspx (pg4)”
And this really is the crux of the issue. SSM activists can yell and scream at the top of their lungs that engaging in homosexual acts is wholly deterministic and thus discrimination related to this fact is inappropriate. Unfortunately they are lying. This may be a problem for the ruling for the judge states, as a finding of fact that homosexuality was a biological status. This is simply, completely, and provably untrue.
The SSM argument about states rights, equal protection, etc. are all a facade for the real discussion. Is engaging in homosexual activity wholly deterministic? It clearly is not, and thus one must stretch, lie, and twist reason and logic on its head in order to come to the conclusions that the pro-SSM folks come to.
August 5, 2010, 2:21 amDave M. says:
See page 3.
August 5, 2010, 2:28 amhttp://www.domawatch.org/cases/minnesota/bakervnelson/BakervNelsonJurisdictionalStatement.pdf
Dave M. says:
http://www.domawatch.org/cases/minnesota/bakervnelson/BakervNelsonJurisdictionalStatement.pdf
Questions are on page three of the brief…
August 5, 2010, 2:30 amDave M. says:
Here you go…
http://www.domawatch.org/cases/minnesota/bakervnelson/BakervNelsonJurisdictionalStatement.pdf
August 5, 2010, 2:34 amGideon says:
What bearing do our conceptions of the cause of homosexuality have on its legal standing?
Whatever it’s precise aetiology, it seems quite clearly to be something gone awry, something gone wrong. is this a rational basis for differential treatment?
What if it was caused by an infection?:
http://gc.homeunix.net/home/post/42
http://www.theatlantic.com/past/docs/issues/99feb/germs.htm
http://www.edge.org/3rd_culture/sapolsky09/sapolsky09_index.html
August 5, 2010, 2:38 amDave M. says:
http://www.domawatch.org/cases/minnesota/bakervnelson/BakervNelsonJurisdictionalStatement.pdf
It was based on the pre-1988 28 U.S.C. 1257(2):
Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States. “For the purposes of this section, the term ‘highest court of a State’ includes the District of Columbia Court of Appeals.
1970 – Pub. L. 91-358 provided that for the purposes of this section, the term “highest court of a State” includes the District of Columbia Court of Appeals.
August 5, 2010, 2:43 amJohn Herbison says:
Thank you, Dave M. That is quite helpful.
August 5, 2010, 3:03 amgary47 says:
Another possibility (more likely in my mind) is that California voters repeal prop8 (Target: November 2012) before the appellate process completes, and then the case can be tossed case moot, leaving Walker’s opinion available for a starter in a future court case when the federal issues are ripe for decision.
August 5, 2010, 3:20 amSCOTUS doesn’t want to rule in this case before more state political wrestling occurs. it should be clear to the justices that the future is legal marriage for same sex couples, no matter how Scalia and Roberts feel personally. They won’t want to end up authoring another Plessy, even if they aren’t willing to author the next Brown v Board.
John D says:
I must disagree. I looked up the text of the Federal Marriage Amendment.
Emphasis mine.
How would that be good for same-sex couples? The final sentence seems to forbid civil unions, domestic partnerships, and other flavors of that are unions “other than the union of a man and a woman.”
I’m a pragmatist about this: I want equal rights and I’d take them under another name (even though providing equal rights under another name is an unnecessary burden on the state). No such proposal has ever seriously been offered. Where is the Federal Civil Unions bill that guarantees that all state civil unions are treated like marriages by the Federal government?
If we fight for marriage, civil unions will be dangled as the bright shiny object to distract us. That’s the one they know they can keep out of our reach. So let them dangle civil unions. We’re going for marriage equality.
August 5, 2010, 3:32 amwhit says:
pintos result in another unreasonable phobia – fordaphobia
most aspects of behavior are both nature and nurture, so i am not sure why sexual orientation would be any different.
i support gay marriage, but i don’t support it BECAUSE i think it’s 100% genetic in origin.
and also, saying it’s a “choice” doesn’t really address the question.
i don’t think it’s a choice that certain women are more attractive than others to me. i don’t think it’s entirely genetic that i find ashley greene more attractive than scarlett johansen. however, i don’t think it’s correct to say that i CHOOSE to find ashley greene more attractive either. imo, it’s most likely a combination of factors. there are all sorts of genetic reasons why, for instance, men tend to favor certain waist:hip ratios and women who look young and fertile (and fertile is related to waist:hip of course)
but i *know* environment affects my perception as well. for example, when i was a Skinny Runner Surfer Dude ™ i didn’t find muscular women particularly attractive at all. having been surrounded by muscular women for over 10 yrs, my preferences have changed. that’s not a CHOICE. that aspect is environment
it doesn’t make it any less real to say it’s partly environment and partly genetic.
i think many people who are pro SSM think that — if it’s purely genetic/not a choice, that supports my cause. therefore, it is
and many who are anti-ssm think the opposite
i think it’s a bit more complex than that
August 5, 2010, 3:34 amwhit says:
most aspects of behavior are both nature and nurtute, so i am not sure why sexual orientation would be any different.
i support gay marriage, but i don’t support it BECAUSE i think it’s 100% genetic in origin.
and also, saying it’s a “choice” doesn’t really address the question.
i don’t think it’s a choice that certain women are more attractive than others to me. i don’t think it’s entirely genetic that i find ashley greene more attractive than scarlett johansen. however, i don’t think it’s correct to say that i CHOOSE to find ashley greene more attractive either. imo, it’s most likely a combination of factors. there are all sorts of genetic reasons why, for instance, men tend to favor certain waist:hip ratios and women who look young and fertile (and fertile is related to waist:hip of course)
but i *know* environment affects my perception as well. for example, when i was a Skinny Runner Surfer Dude ™ i didn’t find muscular women particularly attractive at all. having been surrounded by muscular women for over 10 yrs, my preferences have changed. that’s not a CHOICE. that aspect is environment
it doesn’t make it any less real to say it’s partly environment and partly genetic.
i think many people who are pro SSM think that — if it’s purely genetic/not a choice, that supports my cause. therefore, it is
and many who are anti-ssm think the opposite
i think it’s a bit more complex than that
August 5, 2010, 3:34 amJohn D says:
I’ve been saying that it would be best for the Yes on 8 side to start collecting signatures to repeal it. The stakes are too high. Sure, they can tell themselves that SCOTUS overturns a lot of 9th Circuit decisions if they lose there, but we all know that SCOTUS also upholds a lot of 9th Circuit decisions.
This is the moment to look at the Prop 8 supports and say, “And I’m asking you, punk, do you feel lucky?”
I’d be trying to cut my losses.
They can’t rely on the Prop 8 opponents to get them out of this one. A recent study indicated that support for marriage equality needs to poll at 57% before you can really move people to polls to strike down Prop 8. California just hit the 50% mark. Nate Silver has said that movement on this issue is about 2% a year, so you can forget about Prop 8 repeal until 2014. The big orgs just aren’t going to commit to the millions in fundraising if they’re going to lose again.
I’m sure SCOTUS would like to punt this one. I don’t think they can put it off until 2014, especially since during that time the American Foundation for Equal Rights (and their lawyers, Olson and Boies) will probably be looking for their next target. My guess is that they’ve already started laying the groundwork. Then there’ll be yet another marriage case heading toward SCOTUS.
August 5, 2010, 3:42 amohwilleke says:
Gay marriage = tax evasion = horrible?
Yeah, right. Right up there with the claim that bicycle rental stands in Denver are a U.N. plot to take over the world (per-Dan Maes, GOP candidate for Governor in Colorado)
August 5, 2010, 5:18 amThrobert McGee says:
Read it again.
“Is not required” ≠ “forbidden.”
August 5, 2010, 6:43 amjrose says:
You said, “it [the FMA] would make it easier to challenge state-level constitutional bans on civil unions”.
But the words, “this Constitution shall [not] be construed to require the legal incidents thereof be conferred upon any union other than the union of a man and a woman” means you must lose a federal constitutional challenge to a state-level constitutional ban on civil unions.
What isn’t forbidden is using the political branches to obtain civil unions. But since the federal government doesn’t have the power to define marriage (10th Amendment), the FMA would make it impossible to challenge state-level bans on civil unions (other than repealing the state-level amendment through the state’s process).
August 5, 2010, 8:17 amJohnny In Georgia says:
It wasn’t time. The writing is now on the wall; the issue splits dramatically based on age — if you’re 15-35, same-sex marriage is no big deal. In the two years it would take to get to SCOTUS there might likely be same-sex marriage in NYC, one of the most populous states. Spain, Argentina, South Africa, etc. — all facts of which Kennedy would be acutely aware. Any Justice aware of their place in history would rather author the next Brown v. Board of Education, than Dred Scott.
August 5, 2010, 8:50 amRonNYC says:
The most startling aspect of Walker’s decision is that it took to 2010 to reach it. There should be nothing new here. Loving v Virgina, hello? Procreation? What about elderly people getting married? Or sterile people? Or women past menopause? As for the children, no study (apart from those by the Family Research Council) has shown any negative effect from having both parents of the same gender. And as for the effect on the “institution of marriage” itself, no one, to my knowledge, has ever explained how my marrying my boyfriend negatively affects their heterosexual marriage. If I marry my boyfriend are you, straight, married people, going to get divorces because of that? And, to RKV and his gerbil loving friends, I say, go for it. Marry the damn gerbil already. What do I care? And as for the 2000 years of Western civilization history, uh, perhaps we should go back to slavery, as that was a part of our history, right? Or the Inquisition? Or take away the women’s right to vote, as for most of our history, women were definitely second class. The historical argument is one of the silliest.
August 5, 2010, 8:53 amAnselm says:
Ah yes, the old “lose the war to win the battle” strategy…so underutilized in today’s politics.
August 5, 2010, 9:19 amJohnny In Georgia says:
Do you even read what you link to? The only “lying” going on here is your truncating of the APA’s position on sexual orientation. It’s quite clear:
“Q: Is sexual orientation a choice? A: No, human beings cannot choose to be either gay or straight. For most people, sexual orientation emerges in early adolescence without any prior sexual experience. Although we can choose whether to act on our feelings, psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed.
“Q: Can therapy change sexual orientation? A: No; even though most homosexuals live successful, happy lives, some homosexual or bisexual people may seek to change their sexual orientation through therapy, often coerced by family members or religious groups to try and do so. The reality is that homosexuality is not an illness. It does not require treatment and is not changeable. However, not all gay, lesbian, and bisexual people who seek assistance from a mental health professional want to change their sexual orientation. Gay, lesbian, and bisexual people may seek psychological help with the coming out process or for strategies to deal with prejudice, but most go into therapy for the same reasons and life issues that bring straight people to mental health professionals.
True to form, your position is only supported by lies and mis-statements. Get a life. Or at least an education.
August 5, 2010, 9:20 amAnselm says:
This illustrates, more than disproves, why there is no rational basis for a law prohibiting SSM (or more precisely defining marriage to exclude SSM). SSM exacerbates none of the problems you say marriage sought to avoid, and deprive the state of any claim to a rational purpose in doing so.
August 5, 2010, 9:29 amKLB says:
I admit that Mr. Carpenter could run circles around me in a Constitutional Law context, but when he states he sees “little enthusiasm in this Court for expanding fundamental rights,” I have to ask: what exactly happened in Heller just last term?
August 5, 2010, 9:54 amDave M. says:
Not a problem. I just don’t like the fact that I’ve triple posted in trying to get the darn thing up. The page here kept loading to the first comment I made waaaay up the page when I would hit send.
User error, or poor blog software platform? :)
August 5, 2010, 10:12 amlosantiville says:
Since SSM was only invented as a tactical maneuver 20-30 years go, it could hardly have been approved before anyone gay/straight even contemplated its existence.
August 5, 2010, 10:16 amphilwynk says:
Somebody has not been keeping up with the research. There is no strong evidence supporting any one of these characteristics. Simply adding “all credible research shows” does not make it so, particularly because it’s pretty clear that your standard of credulity is political rather than scientific.
August 5, 2010, 11:05 amphilwynk says:
And human males cannot marry each other. Only, since the inherent rights of the (invented, illusory) protected class supersede all laws to the contrary, laws declaring this are being struck down, as in this case, in order to facilitate what previously was not possible.
So if I can posit an inherent right to seek happiness by marrying the birch tree in my front yard, those lesser statutory limits (like the inability of a tree to form a contract) have to give way as well, and will be overturned by judicial fiat.
Right?
August 5, 2010, 11:11 amphilwynk says:
And human males cannot marry each other. Only, since the inherent rights of the (invented, illusory) protected class supersede all laws to the contrary, laws declaring that “males cannot marry males” are being struck down, as in this case, in order to facilitate what previously was not possible.
So if I can posit an inherent right to seek happiness by marrying the birch tree in my front yard, those lesser statutory limits (like the inability of a tree to form a contract) have to give way as well, and will be overturned by judicial fiat.
Right?
August 5, 2010, 11:19 amA. Zarkov says:
Given the assumption as to why we have marriage, what’s the rational basis for SSM? We don’t have a problem with homosexuals fighting other homosexuals over sexual access. Even if we did, homosexuals are so few in number, it would still not be a problem. Not so in the heterosexual world. If we outlawed marriage then men would fight over women in large numbers. Thus there is no reason to have SSM. We don’t need it.
August 5, 2010, 12:05 pmmemomachine says:
Hmmmmm.
From National Review Online about marriage, gay movements, “chopping men to bits” and other such zaniness in Sweden.
The stuff about chopping men to bits might have been a bit much.
Judge Walker found that gay marriage had no negative effects. Just how good was his “research”? Which was most likely done by clerks.
I think pro-traditional marriage groups might have a substantially different set of researched results when it comes to a SCOTUS decision.
August 5, 2010, 12:13 pmSteve P. says:
I’m surprised I have yet to defend my weak, defenseless, unmarried girlfriend from the predations of brawling single men.
Maybe Interpol is involved.
August 5, 2010, 12:21 pmNatan Press says:
I don’t think the OP or most of the commenters here are reading the same case I’m reading.
There is no “fundamental right to same sex marriage.” Walker found a fundamental right to marriage in prior case law. None of the evidence presented by either party suggested that the government had any rational basis for restricting that right in any way.
Even under the lowest standard of scrutiny, there is no reason for the government to restrict choice (of any sort) in marriage. Given that previous SC rulings have found a fundamental right in marriage generally, the scrutiny is more strict, but it’s unnecessary in this case. Proponents failed to show any evidence at all.
My own thoughts follow:
The institution of marriage as commonly/historically understood is arguably best protected by preventing same sex marriages. But the institution of marriage as commonly/historically understood is a religious tradition, and therefore one that cannot ever Constitutionally be recognized as such in any legal framework. It must be secular to be a legal issue. Walker spent some time pointing that fact out and using it to his advantage. Given the secular definitions of marriage in prior case law, Walker is doing nothing but following through to the logical conclusion.
If you want marriage to be “a man and a woman,” if you want marriage to be respected as a religious tradition, then take it out of law. Otherwise, as previous case law shows, the only way we can talk about it in this political context is as a secular agreement between equals. That is to say, legally, marriage is understood in a way that is arguably as damaging, or probably more damaging, as same sex marriages would be to the institution.
Gays don’t have a fundamental right to marry. Government is prevented by the Constitution (religion) and by prior case law from defining marriage. Everyone has a fundamental right to define marriage as they see fit. This isn’t a shocker (or shouldn’t be to anyone who reads this blog) and to me it doesn’t seem “maximalist” or in any way strange that a judge would come to this opinion.
If this is seen as “activist,” it is so because it stands in the way of a decision by a democratic majority, which is the purpose of the judiciary as far as I’m concerned. I imagine with that, at least, most people reading this blog would agree.
August 5, 2010, 12:35 pmMartinned says:
Too bad they won’t get to present them. That’s what Trial Courts are for: deciding facts.
No, they’re too busy promoting bicycles in Denver.
August 5, 2010, 12:40 pmoxr says:
Steve P: “I’m surprised I have yet to defend my weak, defenseless, unmarried girlfriend from the predations of brawling single men.”
The inference (not made by me, I hasten to add) appears to be that she’s unattractive; otherwise surely your fellow men would constantly be sneaking up behind you and hitting you over the head with rocks. (However, in that scenario, the moment they saw you were sporting a wedding band they would recoil like vampires from sunlight.)
August 5, 2010, 1:16 pmJohn Howard says:
So, what happens to cases that are on their way to the Supreme court if new laws are enacted that clarify and change the facts? Would the court use the new laws and facts in deciding the case, or would it choose not to hear it, now that it is moot?
The new law I have in mind is a federal law that would prohibit people from attempting to create a person by any means other than joining the sperm of a human male with the egg of a human female.
And surely the Supreme Court wouldn’t need this reminder of what marriage means, but I also propose a law that would affirm that all married couples have a right to conceive with their own genes.
And as a bonus, the third part of The Egg And Sperm Civil Union Compromise is a federal law to recognize state Civil Unions as if they were marriages for federal purposes, provided they were defined by the state as “marriage minus conception rights”.
All this time we are wasting, spending billions of dollars and wasting oil and resources, when it will all be irrelevant when we have to address the question of whether to allow same-sex couples to attempt to conceive together. And all the families that are being harmed by not having any recognition… Enact the Egg and Sperm Civil Union Compromise and resolve this now! It is a crime that people choose instead to stick with the status quo.
August 5, 2010, 2:38 pmSteve says:
Seeing that they FAILED in the court of public opinion, as they have in every other state that has voted on gay marriage, the promoters of gay marriage take it to the courts as usual in an attempt to override the will of the people. The judge in this case just so happens to be gay himself. How convenient! This ruling has as much credibility as a Fundamentalist Mormon judge voting to legalize polygamy. This ruling will ultimately be shot down as it should be. Judges do not make law, and need to be slapped down when they attempt to do so.
August 5, 2010, 2:53 pmMichael Ejercito says:
I would only hope such a constitutional amendment simply retains the status quo. I would support an amendment reading like this:
This would permit states to limit marriage to opposite-sex couples, or even extend marriage to same-sex and polygamous couples.
Of course, the Congress and the states might go overboard and actually officially define marriage constitutionally, instead of reserving the power to the states. That would be almost as bad as a district court judge interpreting the 14th Amendment in a manner that would have been rejected in 1868, and was rejected in 1972.
And the Supreme Court upheld those laws?
And anyway, while the scope of Davis was limited, it was never overruled.
Except that judges have engaged in de facto amendments to the Constitution.
Note the many judges who upheld handgun bans prior to McDonald v. Chicago. Note the dissent in McDonald v. Chicago.
A judge that interprets a constitutional provision in defiance in original public understanding, or in a manner that rejects an earlier interpretation, is de facto amending the Constitution.
Or they could refuse to consider his factual findings.
Appeals courts have excluded findings of fact.
Denial of a marriage license to a same-sex couple violates the due process and equal protection clauses of the Fourteenth Amendment. ( PDF format )
The reason that the polygamy argument is brought up is because the Supreme Court upheld anti-bigamy laws. Davis, in particular, rejected an equal protection challenge.
Even so, their duty is to interpret the Constitution according to original public understanding and relevant case law.
Heller recognized a right listed in the Constitution.
The problem is that the right to marriage had never been understood, either by the general population or the Supreme Court, to encompass same-sex couples. And in fact the Supreme Court had described marriage as a “union of one man and one woman” (Murphy v. Ramsey)
They will get to present them if there are other suits in other states.
August 5, 2010, 2:58 pmMichael Ejercito says:
It is not just overriding the will of the people who voted for Proposition 8, but overriding the will of the people who ratified the 14th Amendment.
This decision conflicts with the original public understanding. The idea that the 14th Amendment protects a right to “marry” someone of the same sex would have been rejected by the people who ratified the amendment, and indeed the Supreme Court rejected this interpretation in 1972. By using an interpretation the Supreme Court rejected, Judge Walker de facto amended the Constitution.
August 5, 2010, 3:02 pmSteve says:
That’s why his ruling will be slapped down, as it should be.
August 5, 2010, 3:12 pmwhit says:
or sparkle…
August 5, 2010, 3:22 pmStewart says:
Is it possible that this ruling could be appealed, and overturned or sent back to the lower court on the basis of the statute’s defenders being incompetent or derelict? It seems hard to believe that they could have put up so few arguments, such irrelevant and non-expert witnesses. Is it simply that when the SSM oponents can’t use their religious arguments they just don’t have much to say? Lots of people are complaining about the ruling; but, I don’t see actual legal arguments being made. There must be some or SSM would always win in court.
August 5, 2010, 3:47 pmA. Zarkov says:
It’s not your girlfriend that would need defending, it would be you. This of course assumes your girlfriend is really hot.
August 5, 2010, 3:58 pmTim says:
If there is anything in Judge Walker’s reasoning that would allow a state to bar marriage among siblings over the age of consent, I’m missing it. Or, parents and adult children?
August 5, 2010, 4:46 pmMichael Ejercito says:
The ruling itself is inconsistent and has fatal errors.
While race restrictions were not part of the historical core of marriage, gender most certainly was. The summary and analysis of DOMA quoted Murphy v. Ramsey (“union for life of one man and one woman in the holy estate of matrimony.”)
And then he cited a quote from Justice O’Connor’s concurring opinion in Lawrence v. Texas. But there is another quote, “Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”
If O’Connor’s opinion were accepted as precedent, Proposition 8 would meet scrutiny.
August 5, 2010, 4:58 pmwhit says:
and with that, i must say… JPEGS plz
tia
August 5, 2010, 5:18 pmKen Spreitzer says:
And you have zero, let me repeat, zero, evidence that I chose to be gay.
I refuse to accept the idea that you have somehow divined the truth about my life and the burden is on me to disprove your claims. Sorry, but I’m the expert on my sexuality.
You claim I’m lying? Prove it.
You can yell and scream at the top of your lungs that we choose to be gay, and that we are lying. Fortunately, you are wrong.
August 5, 2010, 5:21 pmwhit says:
that’s a question i’ve often asked. one argument i hear about prohibiting marriage between people who are related (within the bounds of consanguinity i think is the term used in some states’ laws) is the risk of birth defects, etc. which of course assumes what is being rejected here – that the purpose of marriage is procreation. note also that SAME SEX SIBLINGS have exactly zero risk of conceiving a child, so it certainly shouldn’t apply to them. but then if it doesn’t apply to them, wouldn’t prohibitions against complementary/opposite sex sibling marriage/sex be unconstitutional?
frankly, i think the only REAL reason we criminalize siblings from schtupping each other is the “ick” factor. we just don’t like to admit it
and using the same arguments that SSM advocates do vis a vis marriage… why should their schtupping have any effect on who you schtup?
fwiw, i support same sex marriage. i just don’t see any legitimate reason why the state can criminalize incest (amongst adults) based on the same logic used by SSM advocates
August 5, 2010, 5:22 pmrobert lewis says:
Judge Walker’s decision leaves appellate courts with a simple decision: Does the 14th Amendment and its provision with respect to due process and equal protection under law apply to gays or not.
Not that some criminally immoral weasel like Scalia is likely to be unable to cobble together some lame excuse argument for why equal protection does not mean equal protection.
As for the original intent of the 14th amendment as applied to marriage, in the 19th century when a woman married, she lost the right to sue except through her lord and master, er, husband. As Judge Walker said, that was then and this is now.
August 5, 2010, 5:27 pmJohn Herbison says:
Why do you ask, Tim? Are you hot for your sister?
If you and sis are able and willing to spend well into seven figures litigating the question and producing the appropriate evidentiary record, who knows what a court may rule?
Courts rule on questions that are before them. They do not issue advisory opinions.
August 5, 2010, 5:46 pmwhit says:
jesus, that’s such a typical weasel and evasion. this is a legal blog. we discuss legal issues, tangents to decisions, etc. all the time. this is the kind of stuff i hear all the time from SSM advocates (and fwiw, i support SSM) that i really find distasteful.
these legal principles and decisions have ramifications beyond the issue of SSM and addressing them is entirely appropriate.
it’s also an implied ad hominem attack “are you hot for your sister”. i support gay marriage. it doesn’t follow that i am gay. (not that being gay or i guess being hot for your sister are “attacks’ but that is how you are using it, since let’s admit it – being hot for your sister is something most people find distasteful). if somebody opines about the relevance to incest laws, it doesn’t mean they are hot for their sister. we can advocate and discuss positions that doesn’t mean it relates directly to us
i totally disagree with the state actions to prohibit cigarette smoking in bars, etc. it doesn’t follow that i smoke. quite the opposite. i LOATHE cigarette smoke. it doesn’t mean i support bad law because it benefits me or even involves me
August 5, 2010, 5:56 pmSteve says:
That’s right. Anybody who supports gay marriage should also be in favor of ANY two adults being able to marry each other, whether blood relatives or not. To do otherwise is to engage in discrimination based on their own personal biases. And when you get right down to it, isn’t it also unfair that 3 men, 2 men and a woman, 2 women and a man, 3 women, etc can’t get married. Just bring it in front of the right judge and who knows.
August 5, 2010, 6:00 pmJohn Herbison says:
Whit, have you ever tried a lawsuit involving the constitutionality of a state statute? I have, on more than one occasion.
My rejoinder to Tim was snarky, but I did not discern that his hypotheticals were posed in good faith. Red herrings stink. That is where the metaphor comes from–a red herring is dragged across the trial to mask the scent that bloodhounds are tracking.
Constitutional law does not exist in a vacuum. The evidentiary record matters. Judge Walker recognized that, and he tied his ruling closely to the evidence, including makine appropriate and comprehensive factual findings.
And frankly, if Tim wants to get in his sister’s pants, that is none of my business (unless he wants to hire me to litigate the constitutionality of the prohibition).
The Apostle Peter listed busybodies alongside murderers, thieves and evildoers. I take that grouping seriously.
August 5, 2010, 6:10 pmwhit says:
except that marriage as a union of two people IS distinct from polygamy, which brings about a host of other issues in terms of property distribution in a divorce, etc. that don’t apply to two person marriage
i am not saying this does or doesn’t say prohibitions against polygamy are/aren’t constitutional, just saying polygamy adds a whole bunch of stuff.
August 5, 2010, 6:59 pmwhit says:
what do you want? a cookie. not sure how that’s revelant except maybe as some sort of weird argument from authority.
except it IS all of our “business” if one accepts that an injustice against one is an injustice against all, and in a legal blog, questions like this ARE our business. i mean, gay marriage has no relevance to ME, so i shouldn’t opine on it, because it’s none of my business? i see this as , again, a tactic that people who don’t have an actual response like to use to avoid the issue
except it’s not about his hypotheticals being in good faith or not. it’s a CLASSIC tactic of the proSSM people (and i am pro-SSM, i just don’t believe in these tactics) and a classic tactic in general of people who have no argument on the FACTS, is to attack the motive of the person making the argument or asking the question.
i would hope people can be above attacking people’s motives when they can’t properly address the question
“The Apostle Peter listed busybodies alongside murderers, thieves and evildoers. I take that grouping seriously”
spare me. this is just a weak argument you are using.
i guess because those wishing the legalization of incest are such a small group, and those wishing the legalization of SSM are such a (relatively) bigger group, that any questions about the former aren’t valid or are “being a busybody?”
or that you then have to attack the motives?
i at least gave my theory. we criminalize incest, apart from all the rationalizations, because we think it’s “icky”. and frankly, that was the same reason many people don’t support SSM, all rationalizations aside.
so, i think the parallel is there.
and people like you who make snarky responses in regards to these questions about incest, and who attack the questioner are acting REMARKABLY similar to SSM opponents in the way they attack others.
August 5, 2010, 7:06 pmDesiderius says:
Dale convinced me to support SSM. Walker leads me to want to reconsider.
What an utterly dehumanizing decision for the people of California. Really breathtaking.
I think, therefore I am. Deny rationality, deny humanity.
August 5, 2010, 10:04 pmChris Travers says:
Regarding sibling marriages:
I note that the legends of old are replete with examples of heroes whose first claim to fame is that their parents were brother and sister. And it’s not that the issue wasn’t taboo either.
Heck, in the Volsung Saga (a prose rendition of the older Sigurd Lays), Signy has a sexual affair with her brother for the sole purpose of conceiving someone to avenge her father.
I’ve often thought that part of the issue is that the heroes were superhuman because they were the product of the breaking of such a strong social taboo.
So much for an historical argument there though.
August 6, 2010, 2:16 amSharky says:
Walker wrote this opinion in such a way that any judge who overturns it will look like a raving douchebag. Whoever the unlucky soul is that writes the opinion overturning this decision will be laughed at by law students 50 years hence.
August 6, 2010, 6:30 amDarren Shupe says:
Would you be good enough to explain to me why “polygamy” is a problem? If three, four, or eight people choose to love one another and formalize their relationship, why would there be a problem with that as long as they’re all consenting adults?
It strikes me as extremely odd that we’re still discussing what should be a simple thing… legalizing, and giving validity to, the right of gay people to form relationships and maintain them. Why would this be an issue for anyone?
As a San Franciscan, I was proud of Judge Walker’s decision. I expect and hope that it will carry over to the rest of the nation, and that gay people will never again have to worry about governmental intervention in their private lives. Let’s simply be done with this, get it over with, and move on.
August 6, 2010, 12:06 pmDarren Shupe says:
Laura, homosexuality is not a choice. You don’t wake up in the morning and decide you’d be happier not only because you’d love to be sexually active with other men/women (depending on your gender), but that you’d be thrilled to be a social pariah in most regions. Thankfully, where I live, that isn’t as much of an issue. But I have two cousins who are gay, and life has been difficult for them. People who oppose basic civil rights for gay people are making their lives even harder. All Judge Walker was trying to do was (a) apply basic precedent to an issue that was bound to make its way through the courts in any event; and (b) make life a little easier (as should be the American way) for people who don’t share your romantic persuasion.
I don’t know where you live, but Judge Walker’s opinion was almost universally applauded where I am. I’ve been a practicing attorney for almost twenty years, so I think I have some credibility when I characterize that opinion as effective.
The tide of history is turning, and this opinion reflects that, just as the Loving case did in 1967. It’s time to stop fighting that, and begin to realize that gay men and women are human beings, and deserve the same rights that the rest of us enjoy.
August 6, 2010, 12:22 pmKen says:
tomemos:
The biological sciences have rendered no verdict that supports your claims of innate, permanent, and immutable, and the social “sciences” are incapable of rendering such claims, so on what science are you standing?
August 6, 2010, 2:04 pmMichael Ejercito says:
We do not know what causes people to be gay.
The cause may have genetic factors, or life experience factors which could include behavioral choices.
Note choices, not choice. There is no evidence that people become gay by a single choice. But life experiences shape our identities, and our life experiences include behavioral choices.
The “ick” factor is germane to laws going beyond marriage laws.
Every law restricting behavior that does not involve protection of individual rights from third-party infringements is based on moral disapproval of said behavior. Laws against gambling, prostitution, sex in public places, statutory rape, are all motivated by moral disapproval of said actions. Ted Frank pointed this out . And as Frank pointed out
I should add that there were judges who had ruled that the Second Amendment does not protect an individual right to keep and bear arms, prior to D.C. v. Heller and McDonald v. Chicago.
Judges that ignore original public understanding and relevant case law are a greater threat to gay rights than calling same-sex unions by a different name.
Protects gays as a class?
Does the original public understanding of the 14th Amendment extend protection to gays as a class?
A criminally immoral weasel who authored an opinion that the Sixth Amendment entitles criminal defendants to cross-examine those who authored scientific reports (Melendez-Diaz v. Massachusetts) This ruling will lead to many criminals, even death row inmates, getting their convictions overturned. Is that why he is a criminally immoral weasel? For ruling to protect the rights of criminal defendants, even those who are homosexual?
And anyway, Scalia already read Davis v. Beason.
Not necessarily.
One could support legal recognition of same-sex “marriage” on the belief that it would lead humanity to a Golden Age (a belief without supporting evidence, but at least an internally consistent belief). Such support based on such a belief need not lead to support for redefinition of the other factors of marriage.
The activists hitched their campaign on equal rights. They should also be in favor of ANY two adults being able to marry each other, whether blood relatives or not.
And an opposite-sex union is distinct from a same-sex union, in that people in same-sex unions do not have to deal with the possibility of unintentional reproduction. They could choose the time and place of when to adopt, or when to use in vitro fertilization or artificial insemination.
How so?
In any event, a decision that claims that gender was not part of the historical core of marriage is a decision that would be laughed at by law students fifty years hence.
Because such things “destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment.”
Now, you may not think this is a good enough reason. But the Supreme Court did (Davis v. Beason) and they did not even cite any evidence or case law in making that assertion.
It was a flawed ruling, as others have pointed out.
And Ted Frank already explained that “Judge Walker is a judge, inferior in the constitutional structure to the Supreme Court, who does not have the authority to create a new constitutional paradigm.” and that judges that “act lawlessly to create rights” can also “act lawlessly to take away rights they don’t like”.
Because they like the result.
But the results do not justify the ruling. It does not justify Walker creating new constitutional paradigms, refusing to “follow the case which directly controls” (Rodriguez de Quijas v. Shearson/American Express, Inc.) refusing to leave “to this Court the prerogative of overruling its own decisions” (De Quijas)
But it is never the time to reinterpret the Constitution (as opposed to amending it), to deviate from original public understanding and relevant case law.
The constitutional protections that people of any sexual orientation have ultimately depends on judges sticking to the original public understanding and relevant case law. Judges reinterpreting our Constitution threatens the rights of people, including homosexuals.
Have you asked Tiger Woods, John Edwards, or John Ensign about that?
And so were polygamists.
On one final note, B. Daniel Blatt makes an excellent analysis of the decision. And he pointed out.
August 6, 2010, 3:06 pmKen says:
Do you realize the answer(s) provided do not address the question?
Furthermore, the unsupported “no” answer given is refuted by those (see Exodus International) who have left the homosexual orientation.
August 6, 2010, 3:29 pmChipoliwog says:
The Federal Marriage Amendment would suffer the same fate as Prop 8 if Perry survives. The doctrine espoused in Perry recognizes gays and lesbians as a suspect class and that they are entitled to the fundamental right of marriage. Any law or even amendment to the constitution must conform to the 14th amendment as long as that amendment survives. So, expect the next line of attack to be at the heart of the 14th amendment. That fight will truly be for the heart and soul of this country.
August 6, 2010, 5:08 pmMichael Ejercito says:
The 14th is not some super-amendment that trumps all amendments enacted afterward. The 14th can theoretically be repealed through the Article V process, same as any other amendment.
August 6, 2010, 7:30 pmMichael Ejercito says:
Leaving the orientation is not so simple since it required therapy.
Sexual orientation seems to be something that develops over time. It may be influenced by genetic factors or life experiences. But it is not the result of a single choice.
August 6, 2010, 7:31 pmKen Spreitzer says:
It’s true that the exact combination of factors is not fully understood. But we do know that it is not a choice. And just because an exact combination of factors is not understood doesn’t mean that it must therefore be a choice. Heterosexuality is not fully understood, yet no one claims it’s a choice.
You’re falling prey to the little games Exodus likes to play. They consider “gay” to be something you do, not something you are. Exodus promises “freedom from homosexuality” as soon as you stop taking any homosexual actions. But that just makes a celibate (or repressed) gay person, not a straight person. Exodus doesn’t promise to change a gay orientation. They never promise that people will actually become straight. The best they can offer is to encourage a lifetime of choosing not to act on your natural instincts. I support a person’s choice to live that way if they want (although I find it incredibly sad and unhealthy). It’s certainly nothing the state should enforce.
It doesn’t seem to be the result of conscious choices at all. I can tell you that I never made any such choices. Don’t you find your sexuality to be a deep, core part of who you are? Why would mine be any less strongly defined? Do you really think there some choices you could make which would change that part of you? Is your heterosexuality so weakly defined?
For me, my being gay is an natural as breathing; it’s just there. (Interestingly, there’s research that shows that sexual stimulation resides in the same deep part of the brain that also controls other unconscious acts such as breathing… sexual attraction is just “automatic” for most people it seems.)
August 6, 2010, 9:33 pmDesiderius says:
Ken,
“The best they can offer is to encourage a lifetime of choosing not to act on your natural instincts. I support a person’s choice to live that way if they want (although I find it incredibly sad and unhealthy).”
If I followed my natural instincts, I’d have sex with (at least) three (different) women a day. Civilization seeks to improve upon nature. We do have choices here. It’s not orgasm uber alles.
August 7, 2010, 11:15 amKen Spreitzer says:
Hi. Yeah, I understand. But here’s the difference. You have a choice: you can remain single and sleep with as many women as you want, thus fulfilling those particular natural instincts, but at the cost of giving up other benefits (marriage, commitment, companionship, etc). Or, you can choose one woman and marry her, and get to have sex with her. You’ve chosen the latter, which is probably the right choice. Good for you! I hope that you are happy. :)
What I was objecting to was the suggestion by some “ex-gay” groups that all gay people should always suppress their natural desire and never have any intimate contact with anyone they’re attracted to. Basically, repression and forced celibacy. That does not seem a more “civilized” way to treat people. Good heavens, would you want to be told by someone that you could never have sex with a woman, because it violated their own personal theory of the universe? I suspect you wouldn’t honor their request. :)
August 7, 2010, 12:50 pmzuch says:
That would be Schwarzenegger [or whoever is governor] v. Perry.
Cheers,
August 9, 2010, 11:07 amMichael Ejercito says:
Yes.
A Supreme Court decision upholding Proposition 8 would be beneficial to both sides in one way.
We would know how the Constitution applies on this issue, and we can rely on the Supreme Court to uphold stare decisis. This would mean the legal protections that we do have would be safe from judicial reinterpretation.
And then the issue becomes whether or not states should define marriage regardless of gender, and whether or not the Constitution should be amended to forbid Congress and the states from using gender classifications in marriage statutes and treating marriages differently on the basis of the gender of the partners, or even amending the Constitution to require strict scrutiny for gender discrimination claims.
August 9, 2010, 2:52 pmzuch says:
You missed my point. The appellants that would get such a reversal would be Schwarzenegger [or whoever is governor] and the appellees would be Perry. That determines the order of the parties in the case cite.
Cheers,
August 10, 2010, 1:40 amCharlie Feather says:
When are people going to understand that when gay rights activists talk about marriage being a fundamental right, they are really talking about two different things. They only think they are talking about one and the same thing. The fundamental right to marriage, as it was first established and also expressed by Judge Walker, was “the right to choose a spouse and, with mutual consent, join together and form a household.” Today, this can be done without having to obtain a license.
So, there is no fundamental right that is being infringed because people in general, including gay couples, already have “the [fundamental] right to choose a spouse [of any sex] and, with mutual consent, join together and form a household.” This is what the fundamental right to marriage really is. Nobody is subject to legal pursuit or goes to jail anymore for not obtaining a license for this.
The second thing people are talking about concerns obtaining a “marriage” license that really allows access to state entitlements. But as there is no longer a requirement to obtain a marriage license in order to exercise the fundamental right above, there is no longer a necessity to obtain one either unless it is the state entitlements one wants. So is there a constitutional right to obtain state entitlements? Must granting state entitlements to one class of persons be granted to other classes of persons when their “similar situation” may only be superficial? Is it only necessary that one walk like a duck and talk like a duck in order to be a duck? Or should one also have to lay little duck eggs to be a duck?
The modern “marriage” license is now something different from its predecessor. It is now a license that permits access to certain state entitlements and not one that is necessary to exercise the fundamental right cited above as it is no longer needed for this. It’s like qualifying to receive food stamps. And, there would be no fundamental right to receive a “marriage” license any more than there is a fundamental right to receive food stamps. The conditions of deliverance depend entirely upon the state’s goals and purpose for this, and as far as that goes, the fact that opposite-sex relationships make babies gives that classification a rational basis in law, whereas, none exists for all other relationships that are not opposite-sex ones. This would include, of course, same-sex couples.
The “marriage” license should be changed and called the “couple’s state entitlement license” or some such just to avoid confusion.
Considering the foregoing, the judge’s view that Proposition 8 “is unconstitutional because it denies plaintiffs a fundamental right without a legitimate … reason,” (pages 116-117) is yesterday’s argument. It is outdated, behind the times. Which is surprising considering the judge’s position that the conditions for marriage have changed and now the institution must be updated to a new social context.
Maybe the arguments should be updated as well.
August 10, 2010, 8:32 amRandy E King says:
In the 2006 Nebraska ruling the 8th circuit court of appeals ruled that procreation was a rational reason for limiting marriage to opposite sex couples. They went even further in this ruling in acknowledging that there is no constitutional right to same sex marriage thus reestablishing Nebraska’s ban on same sex marriage. SCOTUS refused to hear the appeal citing as their rational the absents of a constitutional question.
Walker did more then arbitrarily award suspect class status to same sex enthusiasts; he also declared same sex attraction immutable in addition to arbitrarily eliminating the 1st amendment immutable classification of religion.
August 12, 2010, 4:15 pmMichael Ejercito says:
That reasoning seems to imply that Proposition 8 is unconstitutional because the conditions for marriage have changed, which in turn implies that laws like Proposition 8 were not unconstitutional in 1869 (a year after the 14th Amendment was ratified).
August 12, 2010, 5:21 pmMichael Ejercito says:
Such a new constitutional paradigm should only be decided by the Supreme Court.
And it seems illogical that sexual orientation would be a suspect class, if sex, the class from which it is wholly derived, merits ony quasi-suspect classification.
August 12, 2010, 5:22 pmJeff Gagnon says:
To blatantly ignore
The absurdity of RKV to suggest this ruling could even partially open the door to a new legal precedent, which will establish rights of humans to marry gerbils or two camels marrying each other, is insulting to the judiciary and to the intelligence of the American people. These incendiary comments are at the root of true ignorance surrounding the perception of same-sex marriage, that gay and lesbian couples fight each and every day in America.
Furthermore, RKV ignores documented history of same-sex marriage in Ancient Rome, and Ancient Greece by suggesting it has never ‘existed’ in the past. And finally, RKV fails to acknowledge the establishment of same-sex marriage in CA, CT, IA, MA, NH, VT & WDC. And if the Justices of the Supreme Court are truly concerned with the “potential negative” affects of same-sex marriage on society, and they refuse to look to the states that have already approved it as an indicator, they can simply can look to the north, south, east or west. Canada, parts of Mexico, Iceland, Norway, Sweden, The Netherlands, Spain, Portugal, Switzerland, Nepal, Tibet, South Africa and Argentina are shining examples of how same-sex marriage has only served to strengthen society.
“Majority consent” as never been a litmus test for the granting of civil rights to any minority class in American History – why, all of a sudden, is it now, the appropriate “test” to determine the legitimacy of same-sex marriage rights, for gays and lesbians?
President Thomas Jefferson wrote, in 1802, of his concerns when a tyrannical majority imposes its will onto a minority – now, 208 years later, we all know exactly what he was referring to.
August 13, 2010, 4:45 pmSteve says:
According to that “logic”, “Majority consent” is not required for the granting of marriage rights to polygamists, bigamists, blood relatives (two cousins, a brother and sister, etc) underage couples, or any other two or more people who want to get married. This is not make believe. There are real people out there who are being denied marriage rights. Polygamist homes are regularly raided by the authorities, and their children are taken from them. Do we hear any supporters of gay marriage speaking out against THAT discrimination? Hell no! It’s funny how the gay marriage supporters are against marriage rights for all of those people listed above, and would vote against those being legalized, yet they will do anything and everything for their own cause. Hypocrites.
August 13, 2010, 5:49 pmAnd what other countries laws are is irrelevant to our laws. Polygamy is legal in more countries than is gay marriage. Again, according to your “logic”, legalized polygamy is even more justified in the US than is gay marriage.
http://en.wikipedia.org/wiki/Legal_status_of_polygamy
Let’s get down to it. Why is marriage limited to one man and one woman in the first place? Because that is the way people want it, and they voted for legislators who made it law. Gay marriage has acheived a majority vote of support in exactly ZERO States. The only reason it is occurring is because mentally ill unelected judges have taken it upon themselves to ram it down peoples throats. Do you want a judge ramming polygamy down YOUR throat? Didn’t think so
Jeff Gagnon says:
Steve,
Your argument that same-sex marriage will open the flood gates to other variations, all of which have documented victims, is old, tiresome, and proven wrong – by history.
It’s unfortunate your apparently deep seeded bigoted views are once again clouding your judgment, as you are ‘filled’ with rage — and assumptions that simply don’t add up.
1. It is illegal in the US to engage in polygamy or bigamy. Before any group can even begin to endorse marriage rights for those groups, their legality must be addressed first. As for age limits, they will continue, but can be broken with parental consent.
2. You automatically assume you KNOW the opinions of ALL same-sex couples related to your litany of other groups. We both know same-sex couples attitudes toward these groups would vary, just like heterosexual couples attitudes would vary. Hence – your point about same-sex couples only caring about their own fate is pointless, at best, and ridiculous, at worst. To take it one step further, it’s clear, that you, as an apparent heterosexual, obviously hold NO REGARD for same-sex couples.
3. Polygamy and bigamy often have victims, those, who are forced into and become trapped the marriage, and why would you even consider same-sex marriage with other marriages that promote, endorse and support abuse? Those polygamist raids, are usually sparked by a complainant, seeking assistance from the authorities.
4. Your claim: “that is the way people want it” as a justification to promote, endorse and condone a practice of discrimination is simply NOT GOOD ENOUGH in America, and if you don’t like it, you’re free to relocate – perhaps somewhere in the middle east, where you views are EXTREMELY RESPECTED.
5. Hundreds of studies show attitudes are changing toward same-sex marriage, and in many states, like CA, current statistics show a dead heat, with voters 50/50 on the subject. When it comes to Civil Rights – majority rule simply doesn’t apply. And when the majority finally supports same-sex marriage, and it now does in some states, the “popularity” vote still isn’t the right ‘vehicle’ to make the determination, providing equality to all law abiding citizens is!
6. The ONLY way a judge could RAM polygamy down my throat is to FORCE ME into a polygamous marriage. Making polygamy available to others isn’t ramming anything down my throat … but you’d know this if you had even the most remote ability to look at the subject with an ‘open mind’.
August 13, 2010, 7:09 pmJeff Gagnon says:
I’m suspecting the only reason you believe it’s illogical to include sexual orientation as a suspect class is because you simply do not support homosexuality.
The day to day discrimination that gays and lesbians face, is not unlike the discrimination your parents, or grand parents dealt with, in America, in the 1940s. I would think that anyone, who has relatives that were subject to a marriage ban, based on outdated and irrational discriminatory views from the past, you – of all people would REJECT that kind of thinking today.
It’s so easy to allow our biases to cloud our own personal judgment.
Conservatives argue same-sex marriage is a slippery slope to other less desirable marriages … and out of ‘fear’, they say no. Even though same-sex marriage is now legal in ALL, or part of 17 countries, none of which have slid to polygamy, pundits still wage their irrational campaign of fear of the ‘what-if’.
Gays and Lesbians have families. Those families include children. Same-sex couples should be afforded the same rights as heterosexual couples. Procreation has NEVER been a litmus test for marriage, and to suggest same-sex couples can’t procreate through typical means, doesn’t warrant the denial of marriage.
Marriage is now considered an institution based on love. Economic benefits and child raring are by-products of “love”. If same-sex couples possess the same LOVE heterosexual couples posses, it’s cruel – and unusual – and irrational to deny marriage to same-sex couples.
August 13, 2010, 7:26 pmJeff Gagnon says:
This comment reminds me of the fallacious argument put forth by the Proponents of Prop H8. Condoning Bigotry NEVER serves the general population, even when the bigoted views are held by a majority. Remember the Civil War? Remember the Civil Rights Protests in Selma, AL – and how innocent protesters were ‘washed’ off the sidewalks with high powered water-hoses? The “majority” supported quashing the protests, and today, that same behavior is viewed as a STAIN on our nations history.
You have an opportunity, to stand up, and support equality. Do you really want to take a position that may be popular today, but will CERTAINLY be viewed as a stain, tomorrow?
Please Think – before you respond!
August 13, 2010, 7:35 pmSteve says:
Jeff Gagnon……………
Steve: First of all, you need to write without all the personal insults and bullshit. It just makes you look desperate.
Your argument that same-sex marriage will open the flood gates to other variations, all of which have documented victims, is old, tiresome, and proven wrong — by history.
Steve: WRONG. I did not say that. I merely pointed out that there are many people out there who are denied marriage rights, alongside your gays and lesbians.
It’s unfortunate your apparently deep seeded bigoted views are once again clouding your judgment, as you are ‘filled’ with rage — and assumptions that simply don’t add up.
Steve: Blah, blah, blah
It is illegal in the US to engage in polygamy or bigamy. Before any group can even begin to endorse marriage rights for those groups, their legality must be addressed first.
Steve: I thought you just said that they are illegal. Make up your mind.
As for age limits, they will continue, but can be broken with parental consent.
Steve: Really? 12 year olds can get parental consent to marry? NOT.
You automatically assume you KNOW the opinions of ALL same-sex couples related to your litany of other groups.
We both know same-sex couples attitudes toward these groups would vary, just like heterosexual couples attitudes would vary.
Steve: Really? Or is that just YOUR personal opinion?
Hence — your point about same-sex couples only caring about their own fate is pointless, at best, and ridiculous, at worst.
Steve: Your -hence- is based on your personal opinion – hence it is irrelevant.
To take it one step further, it’s clear, that you, as an apparent heterosexual, obviously hold NO REGARD for same-sex couples.
Steve: They can do whatever they like EXCEPT ram THEIR rules onto a society that does not want their rules.
Polygamy and bigamy often have victims, those, who are forced into and become trapped the marriage, and why would you even consider same-sex marriage with other marriages that promote, endorse and support abuse?
Steve: Sounds like a lot of “deep seated bigoted views” to me.
Those polygamist raids, are usually sparked by a complainant, seeking assistance from the authorities.
Steve: And are often FAKE complaintants who just want to cause trouble, as in this case where 462 children were stolen by authorities based on a bogus complaint.
http://en.wikipedia.org/wiki/YFZ_Ranch#April_2008_raid
Your claim: “that is the way people want it” as a justification to promote, endorse and condone a practice of discrimination is simply NOT GOOD ENOUGH in America, and if you don’t like it, you’re free to relocate — perhaps somewhere in the middle east, where you views are EXTREMELY RESPECTED.
Steve: Elected legislators make the laws regarding who can and who can’t get married. Do you have a problem with democracy?
YOU are free to relocate to a country that has legal gay marriage.
Hundreds of studies show attitudes are changing toward same-sex marriage, and in many states, like CA, current statistics show a dead heat, with voters 50/50 on the subject.
Steve: And how many of those “studies” are done by gays?
When it comes to Civil Rights — majority rule simply doesn’t apply. And when the majority finally supports same-sex marriage, and it now does in some states, the “popularity” vote still isn’t the right ‘vehicle’ to make the determination, providing equality to all law abiding citizens is!
Steve: So you’re saying that you support the right to marry in all the situations I have outlined?
The ONLY way a judge could RAM polygamy down my throat is to FORCE ME into a polygamous marriage. Making polygamy available to others isn’t ramming anything down my throat … but you’d know this if you had even the most remote ability to look at the subject with an ‘open mind’.
Steve: Then it sounds like you are ok with a judge legalizing polygamy. Is that true?
August 13, 2010, 8:02 pmSteve says:
“Judge” Walker made a big mistake by using the US Constitution in his lame attempt to legalize gay marriage. Reason being, Prop 8 will be upheld in the US Supreme Court giving EVERY state the right to ban gay marriage if they chose to do so. Twenty states have already amended their Constitutions to limit marriage to one man and one woman, and another 8 states do the same by statute. After the US Supreme Court upholds Prop 8, that will give the green light to the other 30 states to do the same thing, including the states where gay marriage is currently legal only because of liberal judges. That’s right, once again, the people’s votes will actually matter. What a concept !
August 13, 2010, 8:28 pmMichael Ejercito says:
No, because there is no indication that homosexuals were what we would consider a suspect class in 1868.
And I fail to see how a legal definition per se is an infringement on rights.
Which police officers turned firehoses on gay people?
August 13, 2010, 8:54 pmJeff Gagnon says:
I apologize for what you considered to be insults, I was simply ‘blown away’ by your apparent gross assumptions gleaned from your erroneous comments.
I don’t have an opinion on legalizing polygamy – nor would I be presumptuous enough to “vote” on the marital rights of others. Polygamy is supported in some religions and I’m not in a position to say yes or no.
I support the right to marry when people aren’t ‘victimized’ in the process. I do not support cult marriages that force 12 year old girls to become the 5th wife of some 55 year old self-appointed profit, as evidenced by what I’ve witnessed in documentaries, and what I’ve read in the New York Times.
If you want to verify how people’s attitudes are changing toward same-sex marriage, please feel free to google the subject, and knock yourself out. It’s well documented beyond my ability to list the hundreds of sources here.
And no – they are not GAY studies. Why do you think same-sex marriage is spreading across the world? Why do you think over 17 countries now approves and / or conducts same-sex marriages, when 15 years ago, it was 0? This isn’t rocket science.
The legislatures in over a half dozen states that I’m aware of, have voted to approve same-sex marriage – yet, Republican Governor’s have consistently vetoed those legislative approvals.
(See Maine, Rhode Island, California, Hawaii and beyond)
Are you suggesting you’re just NOT IN FAVOR of same-sex marriage, no matter how many times, it’s approved? In CA, the Legislature approved it twice, as did the courts. But when a Mormon and Catholic Sponsored Campaign of Lies and Hate is launched, at a cost of $85 Million dollars, targeted at minorities, to incite fear – well, that’s just WRONG! Prop H8 wasn’t WON, it was purchased.
Back to polygamy, the 462 children who were pulled from the compound you’re referencing, not only didn’t know who their biological mothers and fathers were, the 12 year old girls were often forced into prearranged marriages. In my book, that is victimization. I’m not saying every cult treats their children that way – but those that do, should be shut down because no one has the right to victimize children, by forcing them into prearranged marriages with people 5 times their age.
And finally, same-sex couples aren’t ramming their views down your throat when “they” are granted the right to marry. Just as nothing was shoved down my throat when Armenian Marriage Bans were lifted in CA’s Central Valley. You’re not forced to enter into a same sex marriage. Your church isn’t forced to honor, or accept, or perform same-sex marriages, and for you to suggest making something available to another minority group is IMPOSING IT on you, is perhaps the largest sack of bullshit you could ever hope to carry! And if you honestly cannot understand this – I’m done here.
August 13, 2010, 8:54 pmJeff Gagnon says:
There’s EVERY indication. 1868 – homosexuality? Are you there?
Michael Ejercito:
And I fail to see how a legal definition per se is an infringement on rights.
Of course you fail to see the infringement – you’re not looking.
Michael Ejercito:
Which police officers turned firehoses on gay people?
Stonewall Riots – 1969, New York. They didn’t use fire-hoses, they used guns!
Enjoy your reading!
August 13, 2010, 9:03 pmJeff Gagnon says:
Lame attempt? Is that like the same lame attempt when twice, the CA Legislature APPROVED same-sex marriage?
Why do you call it lame? Because you DISAGREE with the ruling?
LOL – Prop H8 will be upheld? Really, Is that based on your brilliant assessment of Justice Walker’s 136 page ruling condemning it?
Or is that based on your forethought that America simply isn’t able to rise to the level of Equality in 2010.
If Canada did it, or Portugal where same sex marriage opinion was at 30%, or Spain, Norway, Sweden, Netherlands, Iceland, Argentina, Nepal, Tibet and EVEN SOUTH AFRICA, but the zealotry here gets to make the rules? I don’t think so!
Keep dreaming – your prediction isn’t going to happen because we both know same-sex marriage is just like a train rolling down the tracks, and not even you – and people who think like you, can stop it!
Equality ALWAYS rises to the top – sometimes it gets delayed, but it ALWAYS rises to the top! And we BOTH know that!!!
August 13, 2010, 9:16 pmSteve says:
That’s a fine line you’re trying to draw there…It would be ok with you if polygamy was legal, IF the law was written with Jeff Gagnon’s personal addendums included, in order to prevent YOUR definition of victimization.
“The legislatures in over a half dozen states that I’m aware of, have voted to approve same-sex marriage — yet, Republican Governor’s have consistently vetoed those legislative approvals.”
Just what I said earlier. Not one state has voted to legalize gay marriage, nor has a state government done so either. It was all done by liberal judges.
“Are you suggesting you’re just NOT IN FAVOR of same-sex marriage, no matter how many times, it’s approved? In CA, the Legislature approved it twice, as did the courts.”
Again, it was never made into law, PERIOD. Even if it did, the people still hold the final say. Thankfully the people of California have the power to amend their Constitution. As in government of the people, by the people and for the people. We the people decide on our Constitution.
“But when a Mormon and Catholic Sponsored Campaign of Lies and Hate is launched, at a cost of $85 Million dollars, targeted at minorities, to incite fear — well, that’s just WRONG! Prop H8 wasn’t WON, it was purchased.”
Please provide examples of “Lies and Hate” which you reference above. As I recall, it was the opponents of Prop 8 who were engaging in death threats, vandalism and violence.
http://en.wikipedia.org/wiki/Protests_against_Proposition_8_supporters#Death_threats.2C_vandalism_and_scare_tactics
http://en.wikipedia.org/wiki/Protests_against_Proposition_8_supporters#Anthrax_hoax
Sounds like a whole lot of hate to me.
August 13, 2010, 9:31 pmJeff Gagnon says:
APPROVAL BY A STATE LEGISLATURE
August 13, 2010, 9:54 pmMichael Ejercito says:
On the contrary, the “harm” cited in denial of social meaning.
August 13, 2010, 10:07 pmSteve says:
Steve: “Judge” Walker made a big mistake by using the US Constitution in his lame attempt to legalize gay marriage. Reason being, Prop 8 will be upheld in the US Supreme Court giving EVERY state the right to ban gay marriage if they chose to do so. Twenty states have already amended their Constitutions to limit marriage to one man and one woman, and another 8 states do the same by statute.After the US Supreme Court upholds Prop 8, that will give the green light to the other 30 states to do the same thing, including the states where gay marriage is currently legal only because of liberal judges. That’s right, once again, the people’s votes will actually matter. What a concept !
Lame attempt? Is that like the same lame attempt when twice, the CA Legislature APPROVED same-sex marriage?
YOU CAN TALK ALL YOU WANT BUT GUESS WHAT, IT NEVER WAS MADE LAW. PERIOD. GET YOUR FACTS STRAIGHT.
Why do you call it lame? Because you DISAGREE with the ruling?
YOU’LL SEE HIS RULING SLAPPED DOWN IN THE HIGHER COURTS.
LOL — Prop H8 will be upheld? Really, Is that based on your brilliant assessment of Justice Walker’s 136 page ruling condemning it?
Or is that based on your forethought that America simply isn’t able to rise to the level of Equality in 2010.
EQUALITY FOR WHO? JUST SELECT GROUPS OR EVERYBODY?
If Canada did it, or Portugal where same sex marriage opinion was at 30%, or Spain, Norway, Sweden, Netherlands, Iceland, Argentina, Nepal, Tibet and EVEN SOUTH AFRICA, but the zealotry here gets to make the rules? I don’t think so!
I REPEAT. OTHER COUNTRIES LAWS ARE IRRELEVANT.
Keep dreaming — your prediction isn’t going to happen because we both know same-sex marriage is just like a train rolling down the tracks, and not even you — and people who think like you, can stop it!
YOU MEAN TRAIN WRECK.
Equality ALWAYS rises to the top — sometimes it gets delayed, but it ALWAYS rises to the top! And we BOTH know that!!!
August 13, 2010, 10:23 pmSteve says:
Steve: That’s a fine line you’re trying to draw there…It would be ok with you if polygamy was legal,
* I have ALREADY STATED it’s NOT UP FOR ME TO DECIDE or to VOTE ON!
* Do you have ‘selective hearing’?
NO, DO YOU HAVE AIDS?
IF the law was written with Jeff Gagnon’s personal addendums included, in order to prevent YOUR definition of victimization.
* Don’t be a dill-weed, your cockiness isn’t appreciated! If you want to debate, loose the smart alec remarks!
OH, YOU’RE BACK TO NAME CALLING? WHAT A DICK!
“Are you suggesting you’re just NOT IN FAVOR of same-sex marriage, no matter how many times, it’s approved? In CA, the Legislature approved it twice, as did the courts.”Again, it was never made into law, PERIOD. Even if it did, the people still hold the final say. Thankfully the people of California have the power to amend their Constitution.
** The people of California’s will is LIMITED to their Constitutional Rights, their power is not unlimited, as proven all too well this past week!
THE PEOPLE OF CALIFORNIA REWRITE THEIR OWN CONSTITUTION AS THEY SEE FIT, REMEMBER?
As in government of the people, by the people and for the people. We the people decide on our Constitution.
** Say what you mean: “We the heterosexual people, by the people, and for the HETEROSEXUAL people.” There was NOTHING inclusive about Prop H8.
GAYS WERE ALLOWED TO VOTE. END OF STORY.
** At least be honest about retaining bigoted views! Its one thing to be discriminatory, it’s something entirely different to deny it!
ANYBODY WHO DOES NOT SHARE YOUR OPINIONS IS A BIGOT? THAT IS THE DEFINITION OF BIGOTRY.
“But when a Mormon and Catholic Sponsored Campaign of Lies and Hate is launched, at a cost of $85 Million dollars, targeted at minorities, to incite fear — well, that’s just WRONG! Prop H8 wasn’t WON, it was purchased.”Please provide examples of “Lies and Hate” which you reference above.
I SEE, YOU CAN’T BACK UP WHAT YOU SAID.
As I recall, it was the opponents of Prop 8 who were engaging in death threats, vandalism and violence.
** Your recollection is conveniently one sided — again!
CAN YOU NOT READ THE FOLLOWING PAGES? WHAT PART DO YOU NOT UNDERSTAND?
http://en.wikipedia.org/wiki/Protests_against_Proposition_8_supporters#Death_threats.2C_vandalism_and_scare_tactics
August 13, 2010, 10:36 pmhttp://en.wikipedia.org/wiki/Protests_against_Proposition_8_supporters#Anthrax_hoaxSounds
Steve says:
http://www.cnn.com/2010/US/08/16/same.sex.marriage/index.html?hpt=T2
“Judge” Walker’s ruling is put on hold by a higher court. You mean there is a chance that the people’s votes actually matter? Imagine that.
August 17, 2010, 1:24 am