danefan wrote:Joe - do you get the impression from the decision that the State of California's attorney's really screwed themselves on this one?
And how, proceduraly, does this effect them moving forward? They're going to be bound by the evidence they presented in the district court as to the application of and historical perspective, but from a practical standpoint, do you think Kennedy will even care?
We know that Kennedy doesn't even think he's bound by US law alone, so I wonder what his take on this will be.
I haven't read the whole decision, just excerpts (it's over 130 pages), but the state itself didn't defend Prop 8. Attorney General Jerry Brown filed a non-contesting answer in which he took the position that the law was not constitutional; and Governor Schwarzenegger filed a non-contesting answer in which he indicated he had no interest in the outcome of the case.
Thus, the defendants in the case were intervenors-individuals who essentially volunteered to defend the law. I don't think that the state's positions and concessions will have any impact in appellate proceedings.
danefan wrote:Joe - do you get the impression from the decision that the State of California's attorney's really screwed themselves on this one?
And how, proceduraly, does this effect them moving forward? They're going to be bound by the evidence they presented in the district court as to the application of and historical perspective, but from a practical standpoint, do you think Kennedy will even care?
We know that Kennedy doesn't even think he's bound by US law alone, so I wonder what his take on this will be.
I haven't read the whole decision, just excerpts (it's over 130 pages), but the state itself didn't defend Prop 8. Attorney General Jerry Brown filed a non-contesting answer in which he took the position that the law was not constitutional; and Governor Schwarzenegger filed a non-contesting answer in which he indicated he had no interest in the outcome of the case.
Thus, the defendants in the case were intervenors-individuals who essentially volunteered to defend the law. I don't think that the state's positions and concessions will have any impact in appellate proceedings.
Makes sense. Thanks for the clarification.
You can really just read page 109 and on to get the complete reasoning. Its relies heavily on Kennedy's reasoning in Lawrence v. Texas and also takes O'Connor's concurence and applies directly as Scalia warned it would be applied in his Lawrence dissent.
Scalia said in his dissent in Lawrence that O'Connor's application of the Equal Protection Clause would lead to same-sex marriage bans being unable to withstand an application of the rational basis test. O'Connor replied to that in her opinion saying that a state law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to preserve traditional marriage, and not simply based on the state's dislike of homosexual persons.
Judge Walker said essentially that Prop 8 was based on nothing more than the "state's dislike of homosexual persons."
Interestingly, I think this case stands a greater chance in the Supreme Court without O'Connor on the bench then it would have otherwise.
I'm overjoyed the Prop 8 is overturned. Party like it's 1999!!
This wouldn't be an issue if the government wouldn't put marriage on a high pedestal, especially when it comes to taxes. I absolutely love my single status, why should I be punished because of it. If gay and lesbians want to marry they shouldn't get punished because they found a life partner of the same sex.
I have 176 reasons to be happy.
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JoltinJoe wrote:
I haven't read the whole decision, just excerpts (it's over 130 pages), but the state itself didn't defend Prop 8. Attorney General Jerry Brown filed a non-contesting answer in which he took the position that the law was not constitutional; and Governor Schwarzenegger filed a non-contesting answer in which he indicated he had no interest in the outcome of the case.
Thus, the defendants in the case were intervenors-individuals who essentially volunteered to defend the law. I don't think that the state's positions and concessions will have any impact in appellate proceedings.
Makes sense. Thanks for the clarification.
You can really just read page 109 and on to get the complete reasoning. Its relies heavily on Kennedy's reasoning in Lawrence v. Texas and also takes O'Connor's concurence and applies directly as Scalia warned it would be applied in his Lawrence dissent.
Scalia said in his dissent in Lawrence that O'Connor's application of the Equal Protection Clause would lead to same-sex marriage bans being unable to withstand an application of the rational basis test. O'Connor replied to that in her opinion saying that a state law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to preserve traditional marriage, and not simply based on the state's dislike of homosexual persons.
Judge Walker said essentially that Prop 8 was based on nothing more than the "state's dislike of homosexual persons."
Interestingly, I think this case stands a greater chance in the Supreme Court without O'Connor on the bench then it would have otherwise.
But O'Connor isn't on the court anymore -- replaced by Alito, who is likely to take a much more conservative position.
You're right, Kennedy is the key right now, but I see this as going down 5-4 unless one of those five changes soon, and that's not likely but for a sudden death.
Many gay marriage activists think this lawsuit was brought too soon and believed that it was better to fight on a state-by-state basis, to build momentum, until there was a more receptive audience on the Supreme Court.
If Alito had been on the Court, rather than O'Connor, at the time of Lawrence, that decision goes 5-4 the other way.
danefan wrote:
Makes sense. Thanks for the clarification.
You can really just read page 109 and on to get the complete reasoning. Its relies heavily on Kennedy's reasoning in Lawrence v. Texas and also takes O'Connor's concurence and applies directly as Scalia warned it would be applied in his Lawrence dissent.
Scalia said in his dissent in Lawrence that O'Connor's application of the Equal Protection Clause would lead to same-sex marriage bans being unable to withstand an application of the rational basis test. O'Connor replied to that in her opinion saying that a state law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to preserve traditional marriage, and not simply based on the state's dislike of homosexual persons.
Judge Walker said essentially that Prop 8 was based on nothing more than the "state's dislike of homosexual persons."
Interestingly, I think this case stands a greater chance in the Supreme Court without O'Connor on the bench then it would have otherwise.
But O'Connor isn't on the court anymore -- replaced by Alito, who is likely to take a more conservative position.
You're right, Kennedy is the key right now, but I see this as going down 5-4 unless one of those five changes soon, and that's not likely but for a sudden death.
Many gay marriage activists think this lawsuit was brought too soon and believed that it was better to fight on a state-by-state basis, to build momentum, until there was a more receptive audience on the Supreme Court.
I tend to agree with the timing. And I don't think Alito really matters here because I think O'Connor would have voted to overturn it anyway.
There are, of course, still the unknowns of Kagan (assuming she's confirmed) and Sotamayor. Latina Catholics aren't really big fans of same-sex marriage. So maybe Kennedy won't matter afterall.
1. The district court Judge is a Bush 1 appointee, not some "crazy SF liberal"
2. He's also reportedly (I don't think openly) gay.
3. He stayed the entry of judgment pending the outcome of the 9th cirtcuit appeal, which makes sense.
I've read a good deal of the decision. I think the decision contributes to the fundamental misframing of this issue -- which is attributable to both sides.
If we were truly being honest about this issue, it could be easily resolved.
It's a simple rights issue. No lesbian or gay who undertakes a union with a same-sex partner should be denied the same rights or privileges accorded to persons who are married under the law. Period. They are entitled to the same rights and privileges as married persons as a matter of equal protection under the US Constitution.
The battle is over a word -- what we're going to call a civil union between same sex partners. From what I can see, there is no fundamental right enshrined in the Constitution, or otherwise evident in our tradition to have a civil union between same sex persons designated as a "marriage.'
Now in truth, at civil law, marriage is defined as a civil union between spouses, so there is no difference at civil law between a "marriage" and a"civil union." A marriage is a civil union. So in this light, in the civil context, it is silly to fight over whether gay partnership is called "marriage" or a "civil union" because the words mean the same thing (again, in the civil law context).
The problem is that marriage, in a different context -- a religious context -- means something else that a civil union. It is defined as a union before God, and in many religious traditions, marriage is considered a sacrament and affirmation of love, fidelity, and support to which one attests before the church and before God. Used in this sense, marriage means a sacramental union. It is not civil union. It is not civil marriage. It is sacramental marriage, often called Holy Matrimony.
Marriage, in a sense, is an ambiguous term, because when a person tells you that he or she is married, you don't really know if that person is speaking of being married in the civil sense, or in the sacramental sense, or both.
Marriage, though, is just a word. So this whole issue would go away if proponents of gay marriage recognized that term "civil union" means "civil marriage" or if opponents of gay marriage just recognized that "civil marriage" is not "sacramental marriage."
All of this obscures, I think, that it is a rights issue. The government has created in favor of parties to a civil marriage certain rights and privileges and that is really the issue -- rights and privileges available to some are not available to others.
Kindly note that my marriage is both a civil marriage and a sacramental marriage -- but I get no extra rights and privileges at law because I am a party to a sacramental marriage.
Last edited by JoltinJoe on Wed Aug 04, 2010 6:15 pm, edited 1 time in total.
JoltinJoe wrote:This decision will probably be upheld by the Ninth Circuit, but it faces a 5-4 reversal before the US Supreme Court, unless something happens to Scalia, Kennedy, Thomas, Roberts or Alito before then.
I have a feeling that this decision and the timing by which it will reach the US Supreme Court renders a second Obama term unlikely. This judge just held that there is a right to gay marriage protected by the US Constitution. That is going to bring out a social conservative backlash and they will be many, many single issue voters casting votes in the 2010 congressional elections and the 2012 presidential election.
Nailed it, Joe. Reversals of the Ninth Circuit are as common as April showers.
JoltinJoe wrote:This decision will probably be upheld by the Ninth Circuit, but it faces a 5-4 reversal before the US Supreme Court, unless something happens to Scalia, Kennedy, Thomas, Roberts or Alito before then.
I have a feeling that this decision and the timing by which it will reach the US Supreme Court renders a second Obama term unlikely. This judge just held that there is a right to gay marriage protected by the US Constitution. That is going to bring out a social conservative backlash and they will be many, many single issue voters casting votes in the 2010 congressional elections and the 2012 presidential election.
Nailed it, Joe. Reversals of the Ninth Circuit are as common as April showers.
On a per case basis, 9th Circuit Court has the same average number of cases overturned than any other circuit, and in fact, less than 3 other circuits.
Because the 9th Circuit sees so many MORE cases, because of it's size, than any other circuit means more will be overturned, but any one case is not any more likely to be overturned.
Ivytalk wrote:
Nailed it, Joe. Reversals of the Ninth Circuit are as common as April showers.
On a per case basis, 9th Circuit Court has the same average number of cases overturned than any other circuit, and in fact, less than 3 other circuits.
Because the 9th Circuit sees so many MORE cases, because of it's size, than any other circuit means more will be overturned, but any one case is not any more likely to be overturned.
Another FALSE Conk talking point.
OK, dback. I realize this is a big day for you, but I'll buy you a dinner for two at your favorite restaurant if this decision survives the SCOTUS. And I'm a man of my word.
This goes way beyond the question of homosexual marriage. It is one more illustration of the problem we have with the Judiciary in this country. There is no way...none...that anybody that produced or ratified any Constitutional language at any point construed it as meaning that a State could not define marriage as it saw fit in general and certainly not as meaning the Federal government could force states to recognize homosexual relationships as "marriage."
We have a serious problem. The Judiciary is controlling the Constitution rather than the Constitution controlling the Judiciary. I can only hope that some day the People wake up and reject this oligarchical aspect of United States government. It may be a vain hope because it's been accepted for such a long time. But it's a hope nonetheless because what's going on in general with the Judiciary is wrong.
Well, I believe that I must tell the truth
And say things as they really are
But if I told the truth and nothing but the truth
Could I ever be a star? Deep Purple: No One Came
JohnStOnge wrote:This goes way beyond the question of homosexual marriage. It is one more illustration of the problem we have with the Judiciary in this country. There is no way...none...that anybody that produced or ratified any Constitutional language at any point construed it as meaning that a State could not define marriage as it saw fit in general and certainly not as meaning the Federal government could force states to recognize homosexual relationships as "marriage."
We have a serious problem. The Judiciary is controlling the Constitution rather than the Constitution controlling the Judiciary. I can only hope that some day the People wake up and reject this oligarchical aspect of United States government. It may be a vain hope because it's been accepted for such a long time. But it's a hope nonetheless because what's going on in general with the Judiciary is wrong.
The Constitution is a flexible instrument meant to be adjusted to reflect the times. See voting rights for 18 yr olds. See repeal of Prohibition. See me pop you in the kisser when you come up to the Dome to see The Pokes get slaughtered in the playoffs.
The Constitution is a flexible instrument meant to be adjusted to reflect the times. See voting rights for 18 yr olds. See repeal of Prohibition.
That "flexible instrument" crap (or "living document" crap) has oft been used to justify ignoring what the Constitution says and how each element of it was understood when it was ratified. It's nonsense.
Yes, it was designed for allowing change. But it was designed with a process for doing that. And the process is the Amendment process. Both of the changes you reference were made through that process.
Having the Judiciary invent "Constitutional" requirements through fiat was not the intent. And it absolutely floors me that ANYBODY who believes in government by, for and of the people would support what is going on regardless of whether or not any particular court decision cooincides with the way they would like things to be.
If judges control the Constitution rather than the Constituion controlling the judges, we might as well not even have a Constitution. We are essentially ultimately governed by an oligarchy of unelected and unaccountable officials. I don't see how anybody can think that is a good thing. As I've typed before, supporting the current role we have allowed the Judiciary because one happens to agree with most of the decisions made to date is like supporting monarchy as a form of government because you've had a good king.
The Judiciary has too much power. Period. We should not be allowing the unelected and unaccountable branch of the Federal government to have as much power as it has now. And that was not the intent. It is clear from the Federalist papers that it was intended to be the weakest branch of government. It was made to be insulated. But it was also made to have no power to influence public policy.
Only a true idiot would establish power without accountability. And the framers did not intend to do that.
Well, I believe that I must tell the truth
And say things as they really are
But if I told the truth and nothing but the truth
Could I ever be a star? Deep Purple: No One Came
I've posted this before but this is a good place to post it again. Remember that the Federalist papers were written by proponents of the Constitution to convince those who might be resistant to ratifying it to do so by virtue of explaining what it meant. With that in mind, consider this language from Federlaist 78:
"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.
Now, are any of you going to seriously argue that the current role of the Judiciary in this society is consistent with that series of statements describing the INTENDED role of the Judiciary (or lack thereof)? Things are WAY out of whack. The idea that there was some intent back then when the Constitution was ratified to have the Judiciary functioning in this way is ridiculous on its face.
The Judiciary the "weakest" of the branches? Right now, what the Judicary does completely trumps what the other branches do. It clearly is not functioning as the weakest branch. And it is clearly intimately involved in directing the direction of society.
It shouldn't be happening. And by accepting it you are ultimately forfieting your right to government by the People.
Well, I believe that I must tell the truth
And say things as they really are
But if I told the truth and nothing but the truth
Could I ever be a star? Deep Purple: No One Came
[quote"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," the judge wrote in his 136-page ruling.
He also said proponents offered little evidence that they were motivated by anything other than animus toward gays — beginning with their campaign to pass the ban, which included claims of wanting to protect children from learning about same-sex marriage in school.
"Proposition 8 played on the a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual," Walker wrote.
][/quote]
Thank you Judge Walker. It is time someone said that, no child should have to go through the pain of feeling attractions towards the same sex while being told they're going to hell with no other alternative viewpoint mentioned.
wkuhillhound wrote:I'm overjoyed the Prop 8 is overturned. Party like it's 1999!!
This wouldn't be an issue if the government wouldn't put marriage on a high pedestal, especially when it comes to taxes. I absolutely love my single status, why should I be punished because of it. If gay and lesbians want to marry they shouldn't get punished because they found a life partner of the same sex.
You're getting close. Makes more sense to me to have government out of the marriage business. Why should government regulate any marriage? If people are willing to allow government to regulate marriage, then they have to assume some people will be left out. That's the funniest thing to me, the people wanting inclusion would be better served to ask for deregulation of government-sanctioned marriage. If people desire the government to be involved in marriage then all marriages should be called civil unions, marriages would only be in a religious context, but irrelevant to the government.
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ATrain wrote:[quote"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," the judge wrote in his 136-page ruling.
He also said proponents offered little evidence that they were motivated by anything other than animus toward gays — beginning with their campaign to pass the ban, which included claims of wanting to protect children from learning about same-sex marriage in school.
"Proposition 8 played on the a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual," Walker wrote.
]
Thank you Judge Walker. It is time someone said that, no child should have to go through the pain of feeling attractions towards the same sex while being told they're going to hell with no other alternative viewpoint mentioned.
And I applaud this ruling [/quote]
The government tells a child attracted to the same sex that he's going to hell? And, if you can show that there are laws stating as such, said laws provide no alternative viewpoint?
Isn't it a free choice to attend a church/group/organization that would say said children are going to hell?
Appalachian State Mountaineers:
National Champions: 2005, 2006, and 2007 Southern Conference Champions: 1986, 1987, 1991, 1995, 1999, 2005, 2006, 2007, 2008, 2009, 2010, and 2012
NO DOUBT ABOUT IT! WE'RE GONNA SHOUT IT! NOTHING'S HOTTER THAN A-S-U!
wkuhillhound wrote:I'm overjoyed the Prop 8 is overturned. Party like it's 1999!!
This wouldn't be an issue if the government wouldn't put marriage on a high pedestal, especially when it comes to taxes. I absolutely love my single status, why should I be punished because of it. If gay and lesbians want to marry they shouldn't get punished because they found a life partner of the same sex.
You're getting close. Makes more sense to me to have government out of the marriage business. Why should government regulate any marriage? If people are willing to allow government to regulate marriage, then they have to assume some people will be left out. That's the funniest thing to me, the people wanting inclusion would be better served to ask for deregulation of government-sanctioned marriage. If people desire the government to be involved in marriage then all marriages should be called civil unions, marriages would only be in a religious context, but irrelevant to the government.
“It’s like someone found a manic, doom-prophesying hobo in a sandwich board, shaved him, shot him full of Zoloft and gave him a show.” - The Buffalo Beast commenting on Glenn Beck
The Constitution is a flexible instrument meant to be adjusted to reflect the times. See voting rights for 18 yr olds. See repeal of Prohibition.
That "flexible instrument" crap (or "living document" crap) has oft been used to justify ignoring what the Constitution says and how each element of it was understood when it was ratified. It's nonsense.
Yes, it was designed for allowing change. But it was designed with a process for doing that. And the process is the Amendment process. Both of the changes you reference were made through that process.
Having the Judiciary invent "Constitutional" requirements through fiat was not the intent. And it absolutely floors me that ANYBODY who believes in government by, for and of the people would support what is going on regardless of whether or not any particular court decision cooincides with the way they would like things to be.
If judges control the Constitution rather than the Constituion controlling the judges, we might as well not even have a Constitution. We are essentially ultimately governed by an oligarchy of unelected and unaccountable officials. I don't see how anybody can think that is a good thing. As I've typed before, supporting the current role we have allowed the Judiciary because one happens to agree with most of the decisions made to date is like supporting monarchy as a form of government because you've had a good king.
The Judiciary has too much power. Period. We should not be allowing the unelected and unaccountable branch of the Federal government to have as much power as it has now. And that was not the intent. It is clear from the Federalist papers that it was intended to be the weakest branch of government. It was made to be insulated. But it was also made to have no power to influence public policy.
Only a true idiot would establish power without accountability. And the framers did not intend to do that.
JSO, in the words of my grizzled friend, ripped the tits off of that one....
“It’s like someone found a manic, doom-prophesying hobo in a sandwich board, shaved him, shot him full of Zoloft and gave him a show.” - The Buffalo Beast commenting on Glenn Beck
The problem with this is that it happened in the blinking 9th circuit. If this had happened anywhere else outside of New England, the appeal wouldn't even have gotten to first base.
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