Why California’s Proposition 8 Would Make Jesus Weep (2 Viewers)

[dparker713]

"The federal lawsuit was brought by two same-sex couples who said the ban violates their civil rights under the Equal Protection Clause of the U.S. Constitution. Presiding over the trial was Vaughn Walker, one of only two openly gay federal judges."

Are you kidding me?? Did i read that right? They had a gay judge presiding over this? Gee, I wonder what his decision will be?

The judges sexual preference is not really relevant to me. This case is going to the Supreme Court, everything that happens between now and then is just procedural.

If the 9th reverses, I doubt that cert is granted. You need 4 Justices to vote yes, and you have to figure atleast 1 liberal Justice looks at the landscape and decides this is the wrong Court for this case.

 

[videoguy505]

CONCLUSIONProposition 8 fails to advance any rational basis insingling out gay men and lesbians for denial of a marriage license.Indeed, the evidence shows Proposition 8 does nothing more thanenshrine in the California Constitution the notion that oppositesexcouples are superior to same-sex couples. Because Californiahas no interest in discriminating against gay men and lesbians, andbecause Proposition 8 prevents California from fulfilling itsconstitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

 

[MongoL3]

"The federal lawsuit was brought by two same-sex couples who said the ban violates their civil rights under the Equal Protection Clause of the U.S. Constitution. Presiding over the trial was Vaughn Walker, one of only two openly gay federal judges."

Are you kidding me?? Did i read that right? They had a gay judge presiding over this? Gee, I wonder what his decision will be?

Horrible logic. Extrapolate your argument further, and men couldn't rule in child custody cases.

riiiiiiight

You're not good with logic, are you?If your assertion is that a gay man would be likely to expand rights to include himself, wouldn't it also be likely to assume a straight person might deny an expansion of rights to protect his class superiority? There is no one unaffected by the law in one way or another, therefore, no one has no bias. Every judge would be equally able to make the ruling.

Im pretty good at seeing things how they are. The contest was rigged imo. Sorry

 

[dparker713]

CONCLUSIONProposition 8 fails to advance any rational basis insingling out gay men and lesbians for denial of a marriage license.Indeed, the evidence shows Proposition 8 does nothing more thanenshrine in the California Constitution the notion that oppositesexcouples are superior to same-sex couples. Because Californiahas no interest in discriminating against gay men and lesbians, andbecause Proposition 8 prevents California from fulfilling itsconstitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Seriously? Rational basis? Good luck with that.

 

[Trey]

CONCLUSIONProposition 8 fails to advance any rational basis insingling out gay men and lesbians for denial of a marriage license.Indeed, the evidence shows Proposition 8 does nothing more thanenshrine in the California Constitution the notion that oppositesexcouples are superior to same-sex couples. Because Californiahas no interest in discriminating against gay men and lesbians, andbecause Proposition 8 prevents California from fulfilling itsconstitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Awesome.

 

[KCC]

"The federal lawsuit was brought by two same-sex couples who said the ban violates their civil rights under the Equal Protection Clause of the U.S. Constitution. Presiding over the trial was Vaughn Walker, one of only two openly gay federal judges."

Are you kidding me?? Did i read that right? They had a gay judge presiding over this? Gee, I wonder what his decision will be?

Horrible logic. Extrapolate your argument further, and men couldn't rule in child custody cases.

riiiiiiight

Hi is right. Judges are not excluded from ruling on cases that pertain to a group they are a member of. It's a lock that this will go before the Supreme Court, so his justification for the ruling will be thoroughly scrutinized, but there's nothing about him being gay that plays into it.

Oh ok, if you say so...

It's the law that says so, and it isn't irrelevant simply because you don't understand it.

 

[dparker713]

138 pages? I really hate judges that can't write.

 

[videoguy505]

"The federal lawsuit was brought by two same-sex couples who said the ban violates their civil rights under the Equal Protection Clause of the U.S. Constitution. Presiding over the trial was Vaughn Walker, one of only two openly gay federal judges."

Are you kidding me?? Did i read that right? They had a gay judge presiding over this? Gee, I wonder what his decision will be?

Horrible logic. Extrapolate your argument further, and men couldn't rule in child custody cases.

riiiiiiight

You're not good with logic, are you?If your assertion is that a gay man would be likely to expand rights to include himself, wouldn't it also be likely to assume a straight person might deny an expansion of rights to protect his class superiority? There is no one unaffected by the law in one way or another, therefore, no one has no bias. Every judge would be equally able to make the ruling.

Im pretty good at seeing things how they are. The contest was rigged imo. Sorry

I'd think the lawyers arguing in favor of the ban would have been pretty good at seeing how things are, and they had no problems with a (allegedly) gay judge.

 

[videoguy505]

138 pages? I really hate judges that can't write.

The first 109 are just the history behind the arguments.

 

[scoobygang]

138 pages? I really hate judges that can't write.

The first 109 are just the history behind the arguments.

He also had to make extensive findings of fact. It's not a particularly long opinion by those standards. It's always going to be a lot longer than an appelate ruling.

 

[dparker713]

138 pages? I really hate judges that can't write.

The first 109 are just the history behind the arguments.

He also had to make extensive findings of fact. It's not a particularly long opinion by those standards. It's always going to be a lot longer than an appelate ruling.

Well, seeing as most every opinion needs editing, not being particularly long by industry standards is damning with faint praise.

 

[scoobygang]

One thing that is really clear in this decision is just how badly out-lawyered the Prop 8 proponents were. They pulled most of their witnesses (including ones who had given up deposition testimony that helped the plaintiffs, allowing that testimony to come in with no chance for the witness to cure it), offered an expert witness who was bound to get disqualified under Daubert, and just generally ignored making many factual arguments for the record.

They really made it pretty easy for the court to make a ruling under rational basis, because they were so bad about building a factual record to show a rational basis. And this is stuff they won't get a chance to cure on appeal.

 

[jdoggydogg]

One thing that is really clear in this decision is just how badly out-lawyered the Prop 8 proponents were. They pulled most of their witnesses (including ones who had given up deposition testimony that helped the plaintiffs, allowing that testimony to come in with no chance for the witness to cure it), offered an expert witness who was bound to get disqualified under Daubert, and just generally ignored making many factual arguments for the record. They really made it pretty easy for the court to make a ruling under rational basis, because they were so bad about building a factual record to show a rational basis. And this is stuff they won't get a chance to cure on appeal.

I think it's interesting that the anti-Prop 8 team had a famous Republican lawyer arguing on their side. The attorney that argued Bush's victory vs. Al Gore in 2004 is strongly in favor gay marriage rights. This kind of ideology harkens back to the time when conservatives truly supported the notion that government should not be interfering with people's lives.

 

[jonessed]

Walker made a pretty big effort to turn this into a media circus. The Supreme Court had to shut down his desire to televise the whole thing.

He wanted to make a point and I imagine he made it. It will be interesting to see where the appeals go.

 

[dparker713]

One thing that is really clear in this decision is just how badly out-lawyered the Prop 8 proponents were. They pulled most of their witnesses (including ones who had given up deposition testimony that helped the plaintiffs, allowing that testimony to come in with no chance for the witness to cure it), offered an expert witness who was bound to get disqualified under Daubert, and just generally ignored making many factual arguments for the record. They really made it pretty easy for the court to make a ruling under rational basis, because they were so bad about building a factual record to show a rational basis. And this is stuff they won't get a chance to cure on appeal.

Could make an IAC claim to try to get a remand, but that wont work. However, I think you can come up with some novel arguments for citizens of CA regarding the state AG refusing to defend the amendment. Plus, they could always bust out a de novo review.

 

[videoguy505]

One thing that is really clear in this decision is just how badly out-lawyered the Prop 8 proponents were. They pulled most of their witnesses (including ones who had given up deposition testimony that helped the plaintiffs, allowing that testimony to come in with no chance for the witness to cure it), offered an expert witness who was bound to get disqualified under Daubert, and just generally ignored making many factual arguments for the record. They really made it pretty easy for the court to make a ruling under rational basis, because they were so bad about building a factual record to show a rational basis. And this is stuff they won't get a chance to cure on appeal.

I think it's interesting that the anti-Prop 8 team had a famous Republican lawyer arguing on their side. The attorney that argued Bush's victory vs. Al Gore in 2004 is strongly in favor gay marriage rights. This kind of ideology harkens back to the time when conservatives truly supported the notion that government should not be interfering with people's lives.

Wasn't the Gore attorney of Bush v. Gore on his (Ted Olsen's) side as well? CA government didn't even support the side that was for the ban. Those who wanted to ban gay marriage had to pay out of their own pocket. The Governator sent no one to help.

 

[Chaka]

"The federal lawsuit was brought by two same-sex couples who said the ban violates their civil rights under the Equal Protection Clause of the U.S. Constitution. Presiding over the trial was Vaughn Walker, one of only two openly gay federal judges."

Are you kidding me?? Did i read that right? They had a gay judge presiding over this? Gee, I wonder what his decision will be?

Horrible logic. Extrapolate your argument further, and men couldn't rule in child custody cases.

riiiiiiight

You're not good with logic, are you?If your assertion is that a gay man would be likely to expand rights to include himself, wouldn't it also be likely to assume a straight person might deny an expansion of rights to protect his class superiority? There is no one unaffected by the law in one way or another, therefore, no one has no bias. Every judge would be equally able to make the ruling.

Im pretty good at seeing things how they are. The contest was rigged imo. Sorry

Is that you Wilt Chamberlin?

 

[jaybebo]

First, I think the amendment should never have been introduced for a vote by the citizens of California. This is a waste of taxpayer money and poor use of government resources. However, I do not believe homosexual couples should be given the same rights as heterosexual couples in the marriage realm.

 

[scoobygang]

One thing that is really clear in this decision is just how badly out-lawyered the Prop 8 proponents were. They pulled most of their witnesses (including ones who had given up deposition testimony that helped the plaintiffs, allowing that testimony to come in with no chance for the witness to cure it), offered an expert witness who was bound to get disqualified under Daubert, and just generally ignored making many factual arguments for the record. They really made it pretty easy for the court to make a ruling under rational basis, because they were so bad about building a factual record to show a rational basis. And this is stuff they won't get a chance to cure on appeal.

I think it's interesting that the anti-Prop 8 team had a famous Republican lawyer arguing on their side. The attorney that argued Bush's victory vs. Al Gore in 2004 is strongly in favor gay marriage rights. This kind of ideology harkens back to the time when conservatives truly supported the notion that government should not be interfering with people's lives.

Wasn't the Gore attorney of Bush v. Gore on his (Ted Olsen's) side as well? CA government didn't even support the side that was for the ban. Those who wanted to ban gay marriage had to pay out of their own pocket. The Governator sent no one to help.

Yes, David Boies was co-counsel. Boies is a great trial lawyer (Olsen has mostly done appelate litigation).Proponents of Prop 8 from within California might rightly feel aggrieved at the decision of the state to not defend the initiative. I've finished the opinion. Walker takes a few shortcuts, IMO, but it's a pretty good opinion. The intervenors made this a much easier case than it should have been. They seemed to be arguing for a far broader propostion (one that essentially comes out against civil unions as much as gay marriage) than they needed to. That's violating a cardinal rule of advocacy.

 

[GDogg]

One thing that is really clear in this decision is just how badly out-lawyered the Prop 8 proponents were. They pulled most of their witnesses (including ones who had given up deposition testimony that helped the plaintiffs, allowing that testimony to come in with no chance for the witness to cure it), offered an expert witness who was bound to get disqualified under Daubert, and just generally ignored making many factual arguments for the record. They really made it pretty easy for the court to make a ruling under rational basis, because they were so bad about building a factual record to show a rational basis. And this is stuff they won't get a chance to cure on appeal.

I think it's interesting that the anti-Prop 8 team had a famous Republican lawyer arguing on their side. The attorney that argued Bush's victory vs. Al Gore in 2004 is strongly in favor gay marriage rights. This kind of ideology harkens back to the time when conservatives truly supported the notion that government should not be interfering with people's lives.

Wasn't the Gore attorney of Bush v. Gore on his (Ted Olsen's) side as well? CA government didn't even support the side that was for the ban. Those who wanted to ban gay marriage had to pay out of their own pocket. The Governator sent no one to help.

Yup. David Boies teamed up with Ted Olsen to knock down Prop. 8.

 

[Maurile Tremblay]

CONCLUSIONProposition 8 fails to advance any rational basis insingling out gay men and lesbians for denial of a marriage license.Indeed, the evidence shows Proposition 8 does nothing more thanenshrine in the California Constitution the notion that oppositesexcouples are superior to same-sex couples. Because Californiahas no interest in discriminating against gay men and lesbians, andbecause Proposition 8 prevents California from fulfilling itsconstitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Seriously? Rational basis? Good luck with that.

As far as I'm aware (just going by memory), every court that has considered the issue — there have been four or five, I think — has determined that there's no rational basis for excluding gays from marriage.It's hard for me to come up with a decent argument that there is a rational basis. It's apparently pretty hard for other people as well, since I don't ever remember seeing one (although what passes for decent is somewhat subjective).

 

[Chaka]

Still never seen a logical argument for why anyone cares who marries who.

 

[jonessed]

You're not good with logic, are you?If your assertion is that a gay man would be likely to expand rights to include himself, wouldn't it also be likely to assume a straight person might deny an expansion of rights to protect his class superiority? There is no one unaffected by the law in one way or another, therefore, no one has no bias. Every judge would be equally able to make the ruling.

I don't see how one could make the case that a heterosexual judge would benefit from ruling against same sex marriage very easily. It's hard not to see the benefit of a homosexual judge ruling for it though.

 

[timschochet]

Regarding Ted Olsen, some of you may have remembered his pretty wife Barbara, who 10 years ago was a conservative personality who appeared on most of the cable news shows- she was one of the "Three Republican blondes" which at the time also included Ann Coulter and Laura Ingraham.

She died in 9/11- she was on one the planes, and she actually called on her cell phone after the plane had been hijacked.

 

[timschochet]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

 

[MongoL3]

You're not good with logic, are you?If your assertion is that a gay man would be likely to expand rights to include himself, wouldn't it also be likely to assume a straight person might deny an expansion of rights to protect his class superiority? There is no one unaffected by the law in one way or another, therefore, no one has no bias. Every judge would be equally able to make the ruling.

I don't see how one could make the case that a heterosexual judge would benefit from ruling against same sex marriage very easily. It's hard not to see the benefit of a homosexual judge ruling for it though.

Ya think?

 

[Maurile Tremblay]

I don't see how one could make the case that a heterosexual judge would benefit from ruling against same sex marriage very easily.

Some opponents of gay marriage argue that allowing same-sex marriages destroys the sanctity of traditional marriages. (It's not a particularly good argument, IMO, but neither are any of their other arguments.) So a heterosexual judge would benefit from ruling against same-sex marriage by preserving the sanctity of his own marriage.

 

[tommyboy]

it'll just end up in the supreme court and get overturned now. kind of a hollow victory for the pro-gay marriage crowd.

 

[timschochet]

Also one question for lawyers, though I know it's hard to predict for sure: since this decision just came out, and since it has to go to the 9th circuit first, how long are talking about before we get a final decision from the Supreme Court? 3 years from now? 5 years from now?

 

[timschochet]

it'll just end up in the supreme court and get overturned now. kind of a hollow victory for the pro-gay marriage crowd.

Why do you believe it will be overturned? Because you want to be? Or do you think there is a justifiable legal reason that this judge ignored?

 

[MongoL3]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Whichever side loses you can guarrantee they will be try to get it reversed or get it into law. My kids do the same thing, they keep playing until they win.

 

[Maurile Tremblay]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Whichever side loses you can guarrantee they will be try to get it reversed or get it into law. My kids do the same thing, they keep playing until they win.

If it goes to the U.S. Supreme Court, theirs will be the last word on the subject (unless there's a constitutional amendment).

 

[jonessed]

I don't see how one could make the case that a heterosexual judge would benefit from ruling against same sex marriage very easily.

Some opponents of gay marriage argue that allowing same-sex marriage destroys the sanctity of traditional marriages. (It's not a particularly good argument, IMO, but neither are any of their other arguments.) So a heterosexual judge would benefit from ruling against same-sex marriage by preserving the sanctity of his own marriage.

Seems like you would have to prove that the judge believed that "allowing same-sex marriage destroys the sanctity of traditional marriages" to show that he migh benefit from ruling for prop 8. That's not really an intrinsic trait of heterosexuals. With a homosexual judge the inherent benefit of ruling against seems a lot easier to demonstrate.

 

[MongoL3]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Whichever side loses you can guarrantee they will be try to get it reversed or get it into law. My kids do the same thing, they keep playing until they win.

If it goes to the U.S. Supreme Court, theirs will be the last word on the subject (unless there's a constitutional amendment).

I dont see either side dropping this issue regardless of what the Supreme Court decides. Do you?

 

[timschochet]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Whichever side loses you can guarrantee they will be try to get it reversed or get it into law. My kids do the same thing, they keep playing until they win.

They will try, but I don't think either side will succeed. Here is my prediction:1. If the Supreme Court rules for gay marriage, then the only option of those opposed will be to get a consitutional amendment to ban gay marriage. They will try to do this, but I don't think it will fly. I believe the public, weary of the issue, will eventually become more accepting of gay marriages, except perhaps in the Bible Belt. It will remain a moral debate for years to come, but not a legal one.2. If the Supreme Court rules against gay marriage, then those in favor will be forced to try and win over the majority of the public to accept gay marriages. It will be extremely difficult, akin to trying to convince the South in the mid 1950s to accept immigration by allowing them to vote on it. I do not believe this effort will succeed for at least one more generation.Therefore, IMO, this upcoming Supreme Court decision is of upmost importance.

 

[jonessed]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Whichever side loses you can guarrantee they will be try to get it reversed or get it into law. My kids do the same thing, they keep playing until they win.

If it goes to the U.S. Supreme Court, theirs will be the last word on the subject (unless there's a constitutional amendment).

I dont see either side dropping this issue regardless of what the Supreme Court decides. Do you?

for opponents to succeed I imagine they would have to change the constitution. A pretty daunting task. Proponents could pursue legislative means at both the state and federal level. They have a much easier path (should the SC rule against them).

 

[Winky the tunnel ferret]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Whichever side loses you can guarrantee they will be try to get it reversed or get it into law. My kids do the same thing, they keep playing until they win.

If it goes to the U.S. Supreme Court, theirs will be the last word on the subject (unless there's a constitutional amendment).

I dont see either side dropping this issue regardless of what the Supreme Court decides. Do you?

What can the losing side do (legally) once the SC issues its ruling?

 

[dparker713]

CONCLUSIONProposition 8 fails to advance any rational basis insingling out gay men and lesbians for denial of a marriage license.Indeed, the evidence shows Proposition 8 does nothing more thanenshrine in the California Constitution the notion that oppositesexcouples are superior to same-sex couples. Because Californiahas no interest in discriminating against gay men and lesbians, andbecause Proposition 8 prevents California from fulfilling itsconstitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Seriously? Rational basis? Good luck with that.

As far as I'm aware (just going by memory), every court that has considered the issue — there have been four or five, I think — has determined that there's no rational basis for excluding gays from marriage.It's hard for me to come up with a decent argument that there is a rational basis. It's apparently pretty hard for other people as well, since I don't ever remember seeing one (although what passes for decent is somewhat subjective).

Equivalent rights have already been set up. There are no badges of discrimination as in cases involving race. Therefore, there is no need to foster civil unrest.Gays are not excluded from marriage. Men are excluded from marrying other men, and women are excluded from marrying other women by the federal definition of the social construct of marriage. That the law has disperate impact on a subsection of the population is not relevant, especially since other social constructs are available.A change to the definition of marriage could lead to riots and sexual orientation based violence.The debates pump money into the economy. We exclude gays from the military and it is in our nations best interest to have as large a base for military personnel as possible. Therefore, the nation should not promote a gay lifestyle.Really, any argument used to uphold conferring ANY rights to married individuals is a source of potential rational basis arguments. At some point, the Fed defended marriage tax benefits and the million other benefits given to marriages. Sure, most of them are pretty stupid, but it only takes 1.

 

[dparker713]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Really dont think you want THIS Court deciding that.

 

[videoguy505]

http://volokh.com/2010/08/04/key-language-...alkers-opinion/

Much of Judge Walker’s opinion focus on the facts, and why he concludes that there is no rational basis on which a person can oppose same-sex marriage. But here’s a key passage from the law section of the opinion, on pages 113–14 (with citations to the record omitted):

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

 

[scoobygang]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Really dont think you want THIS Court deciding that.

Seems like a 50/50 case with the author of Romer and Lawrence as the swing vote. I don't hate those odds.

 

[scoobygang]

http://volokh.com/2010/08/04/key-language-...alkers-opinion/

Much of Judge Walker’s opinion focus on the facts, and why he concludes that there is no rational basis on which a person can oppose same-sex marriage. But here’s a key passage from the law section of the opinion, on pages 113–14 (with citations to the record omitted):

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

And here is where the intervenors got it all wrong. Take the definition of the marriage right identified. Now ask whether that right is protected by civil unions. as near as I can tell, the intervenors never make that argument. instead it's all about gay marriage hurting marriage, which, even if true, would be true of civil unions too.

 

[Maurile Tremblay]

CONCLUSION

Proposition 8 fails to advance any rational basis in

singling out gay men and lesbians for denial of a marriage license.

Indeed, the evidence shows Proposition 8 does nothing more than

enshrine in the California Constitution the notion that oppositesex

couples are superior to same-sex couples. Because California

has no interest in discriminating against gay men and lesbians, and

because Proposition 8 prevents California from fulfilling its

constitutional obligation to provide marriages on an equal basis,

the court concludes that Proposition 8 is unconstitutional.

Seriously? Rational basis? Good luck with that.

As far as I'm aware (just going by memory), every court that has considered the issue — there have been four or five, I think — has determined that there's no rational basis for excluding gays from marriage.It's hard for me to come up with a decent argument that there is a rational basis. It's apparently pretty hard for other people as well, since I don't ever remember seeing one (although what passes for decent is somewhat subjective).

Equivalent rights have already been set up. There are no badges of discrimination as in cases involving race. Therefore, there is no need to foster civil unrest.Gays are not excluded from marriage. Men are excluded from marrying other men, and women are excluded from marrying other women by the federal definition of the social construct of marriage. That the law has disperate impact on a subsection of the population is not relevant, especially since other social constructs are available.

A change to the definition of marriage could lead to riots and sexual orientation based violence.

The debates pump money into the economy.

We exclude gays from the military and it is in our nations best interest to have as large a base for military personnel as possible. Therefore, the nation should not promote a gay lifestyle.

Really, any argument used to uphold conferring ANY rights to married individuals is a source of potential rational basis arguments. At some point, the Fed defended marriage tax benefits and the million other benefits given to marriages. Sure, most of them are pretty stupid, but it only takes 1.

You can't just make up any old thing and call it a rational basis. It has to make some kind of sense (that is, be rational), and some evidentiary support may also be required.

 

[tommyGunZ]

CONCLUSIONProposition 8 fails to advance any rational basis insingling out gay men and lesbians for denial of a marriage license.Indeed, the evidence shows Proposition 8 does nothing more thanenshrine in the California Constitution the notion that oppositesexcouples are superior to same-sex couples. Because Californiahas no interest in discriminating against gay men and lesbians, andbecause Proposition 8 prevents California from fulfilling itsconstitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Seriously? Rational basis? Good luck with that.

As far as I'm aware (just going by memory), every court that has considered the issue — there have been four or five, I think — has determined that there's no rational basis for excluding gays from marriage.It's hard for me to come up with a decent argument that there is a rational basis. It's apparently pretty hard for other people as well, since I don't ever remember seeing one (although what passes for decent is somewhat subjective).

Equivalent rights have already been set up. There are no badges of discrimination as in cases involving race. Therefore, there is no need to foster civil unrest.Gays are not excluded from marriage. Men are excluded from marrying other men, and women are excluded from marrying other women by the federal definition of the social construct of marriage. That the law has disperate impact on a subsection of the population is not relevant, especially since other social constructs are available.A change to the definition of marriage could lead to riots and sexual orientation based violence.The debates pump money into the economy. We exclude gays from the military and it is in our nations best interest to have as large a base for military personnel as possible. Therefore, the nation should not promote a gay lifestyle.Really, any argument used to uphold conferring ANY rights to married individuals is a source of potential rational basis arguments. At some point, the Fed defended marriage tax benefits and the million other benefits given to marriages. Sure, most of them are pretty stupid, but it only takes 1.

All of them are stupid; none would withstand rational basis scrutiny.

 

[Maurile Tremblay]

You're not good with logic, are you?If your assertion is that a gay man would be likely to expand rights to include himself, wouldn't it also be likely to assume a straight person might deny an expansion of rights to protect his class superiority? There is no one unaffected by the law in one way or another, therefore, no one has no bias. Every judge would be equally able to make the ruling.

I don't see how one could make the case that a heterosexual judge would benefit from ruling against same sex marriage very easily. It's hard not to see the benefit of a homosexual judge ruling for it though.

Well, yeah. If you're saying there's no good reason to believe that allowing gay marriage will cause anyone any harm, you have identified one of the legal difficulties that supporters of Prop 8 face.

 

[dparker713]

You can't just make up any old thing and call it a rational basis. It has to make some kind of sense (that is, be rational), and some evidentiary support may also be required.

Sure you can. Its been done in the past, it'll be done in the future.

 

[tommyboy]

it'll just end up in the supreme court and get overturned now. kind of a hollow victory for the pro-gay marriage crowd.

Why do you believe it will be overturned? Because you want to be? Or do you think there is a justifiable legal reason that this judge ignored?

i'm not a lawyer but it seems to me the logic the judge used is thin at best. Maybe the lawyers on the pro side were inept. The judge ignored thousands of years of human common experience, what you might call Natural Law, as well as using one of the basis of his findings that the law as written was akin to heterosexuals voting that homosexuals were inferior. Now, not being a lawyer and just having a BS in psychology, my basic logic skills however primitive they may be, tells me that argument is not only wrong but irrelevant. People could vote for the law and just want to affirm that marriage is unique and still love their gay friends and neighbors, with no intent of harm. California gives same sex couples legal standing already, so the law against marriage is basically a law against a title in that state.

 

[dparker713]

All of them are stupid; none would withstand rational basis scrutiny.

Not like I spent any real time thinking these things up. Besides, it doesn't matter what people in general think, just the en banc 9th Circuit and potentially the 9 Supremes

 

[dparker713]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Really dont think you want THIS Court deciding that.

Seems like a 50/50 case with the author of Romer and Lawrence as the swing vote. I don't hate those odds.

Kennedy hardly seems to be softening with old age and I hate 50/50 odds.

 

[Maurile Tremblay]

Both sides should be glad of this decision for one reason- because it's time this issue went to the Supreme Court. We need to determine once and for all if the Constitution protects the rights of homosexuals to marry each other.

Really dont think you want THIS Court deciding that.

Seems like a 50/50 case with the author of Romer and Lawrence as the swing vote. I don't hate those odds.

Kennedy hardly seems to be softening with old age and I hate 50/50 odds.

If I had to handicap it, I think the Supreme Court is much better than 50-50 to affirm the district court's decision in this case. (Here are some of the findings of fact by the district court: "California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California." "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions." "California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology." "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals." "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States." "The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships." "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages." "The children of same-sex couples benefit when their parents can marry." Those facts aren't going away on appeal.)