Proposition 8 Overturned by Federal Judge

**zraver** · 11 Aug 10,, 14:03

Originally Posted by Genosaurer

1. "I agree with the outcome of the ruling, therefore it was right."
2. "I agree with the outcome of the ruling, but that outcome was reached by bad jurisprudence, therefore it was wrong."
3. "I disagree with the outcome of the ruling, therefore it was wrong."

As someone who falls into category two, in a political climate where almost everyone falls into either category one or category three, this places me in the uncomfortable position of trying to debate both sides of the issue at once.

I don't think Perry violates baker because of the fundamentally different issues that exist. In Nelson the Court was asked to find a right 9gay marriage) that had not previously existed. In Perry the right of gay marriage had existed and some 18,000 gays would continue to enjoy the state of marriage even after Prop 8 went into effect. Thus prop 8 amounted to a disenfranchisement of rights, not the creation there of. On top of that the massive revisions to tax set up new issues under the 14th. With a highly mobile society and insurers and employers who may not be in the same state as the person they employ may be forced by various state laws to recognize or not recognize various laws creating full faith and credit issues. Especially since DOMA is failing in the courts. Finally Lawrence v Texas raises questions about the government's role in regulating what is in part sexual behavior among consenting adults. I feel substantial federal issues due exist now that may not have existed then.

**Blue** · 11 Aug 10,, 15:13

Originally Posted by crooks

Z deal with this rather well, but I'll give it a lash as well:

1 - the right to be treated equally under the law, seperate (a 'civil union') is not equal, as well as the many benefits and legitimacies one gets from marriage, and solely marriage.

As JAD, noted, a separate but equal clause would be fine. I honestly did not know what the proposition struck down, or that the civil union was not the equal of marriage. I was not well informed on the subject of the california civil union. I assumed from info (which I happened to get from the MSM btw) that a civil was the equal of marriage, just a different terminology.

2 - Marriage isn't, equality is, and denying someone of a marriage based on their sexual attraction is, because it's using the law to enforce inequalities, and imply that homosexuality is inferior.

I really don't think it is as simple as that, this is a very complex issue. However, equality is paramount, but wouldn't you think it impossible to defeat by votes such a prop in such a liberal state as CA? This supports the fact that this isn't just about thier sexual orientation, its political as well.

3 - In not allowing such marriages.

It has been supported by case law here that marriage is a right.

**Blue** · 11 Aug 10,, 15:26

because I have read through many of the post's, provoking thoughts have arisen.

Z points out that marriage has been desecrated by heteros enough that it is not sacred. Given the atrocious divorce rates, mutiple married and divorced again people and the cheapening of the sanctity of the oath, I say OK, fine, the idea of marriage has been casualized, bastardized and tromped upon enough by the populace, I say, do whatever feels good America! Who gives a crap!

Marriage doesn't seem to mean a thing to the cheater or the person who "just can't hack it" so lets just walk away from a commitment, leaving children with broken families. It is absolutely indicative of the problems we face today anyway. Fewer and fewer people can hold up to a commitment.

So I say, let the gays get married so they can set thier own divorce and re-marry record. Fvck it! Lets allow mutiple partner and interspecies marriages as well! I mean, does not a man have the right to marry his favorite sheep? Does that woman not have the right to marry her dog? Its all about the pursuit of happiness, right? I mean ITS YOUR RIGHT!!! ....................RIGHT?!

**zraver** · 11 Aug 10,, 15:29

Originally Posted by 7thsfsniper

However, equality is paramount, but wouldn't you think it impossible to defeat by votes such a prop in such a liberal state as CA? This supports the fact that this isn't just about thier sexual orientation, its political as well.
It has been supported by case law here that marriage is a right.

California is two states, a minority white mixed liberal/conservative class and a majority conservative Hispanic class. Things that play well to conservative religious stereotypes will do well in Southern California.

**zraver** · 11 Aug 10,, 15:37

Originally Posted by 7thsfsniper

because I have read through many of the post's, provoking thoughts have arisen.

Z points out that marriage has been desecrated by heteros enough that it is not sacred. Given the atrocious divorce rates, mutiple married and divorced again people and the cheapening of the sanctity of the oath, I say OK, fine, the idea of marriage has been casualized, bastardized and tromped upon enough by the populace, I say, do whatever feels good America! Who gives a crap!

Marriage doesn't seem to mean a thing to the cheater or the person who "just can't hack it" so lets just walk away from a commitment, leaving children with broken families. It is absolutely indicative of the problems we face today anyway. Fewer and fewer people can hold up to a commitment.

So I say, let the gays get married so they can set thier own divorce and re-marry record. Fvck it! Lets allow mutiple partner and interspecies marriages as well! I mean, does not a man have the right to marry his favorite sheep? Does that woman not have the right to marry her dog? Its all about the pursuit of happiness, right? I mean ITS YOUR RIGHT!!! ....................RIGHT?!

Boo 7th,

1, What if gay's have a lower divorce rate?
2, Animals and kids can't give consent
3, multiple partner marriages are a contract nightmare

Personally I think we should work towards making marriages last, not who can get married (within reason). Make stiffer requirements for all persons seeking to get married and for those seeking to get divorced. Honestly if there is no proof of abuse, I think divorce should be damn near impossible to get. The danger to sociwty isn't gay marriage, but the massive divorce rate in general.

**dalem** · 11 Aug 10,, 18:23

Originally Posted by zraver

A movie about a (highly fictionalized) incitement of a mob is how to best address you?

I owe no man who uses discriminatory terms for his fellow citizens an apology. Free advice, don't hold your breath.

Wow, your pucker is really wound up tight over this, huh?

Too bad. If you weren't so busy dredging up some offense you might've learned something.

-dale

**highsea** · 11 Aug 10,, 18:46

So presumably this ruling strikes down Washington State's definition of marriage as well- we fall into the 9th Circus' jurisdiction.

**Genosaurer** · 11 Aug 10,, 19:42

Originally Posted by zraver

In Perry the right of gay marriage had existed and some 18,000 gays would continue to enjoy the state of marriage even after Prop 8 went into effect. Thus prop 8 amounted to a disenfranchisement of rights, not the creation there of.

If Chief Judge Walker had referenced Baker, and explained that it did not apply for this reason... well, I still think he would have been guilty of ruling in contravention of the controlling precedent, but at least he wouldn't have outright ignored it.

Like it or not, Baker is a precedent, it was a case on constitutional right to same-sex marriage, it superceded Loving on that issue, and it has not been overturned. There is not a single mention of Baker anywhere in the opinion of Perry.

Do you really think that's acceptable behavior? What happens if the next time, it's a judge citing Bowers v. Hardwick as justification for a ruling and ignoring the fact that it was superceded by the more recent Lawrence v. Texas?

Originally Posted by zraver

On top of that the massive revisions to tax set up new issues under the 14th. With a highly mobile society and insurers and employers who may not be in the same state as the person they employ may be forced by various state laws to recognize or not recognize various laws creating full faith and credit issues.

As I pointed out earlier, marriage has never been subject to the Full Faith and Credit clause. "Public policy doctrine" is a precedent that has been in effect almost as long as this country has existed, and one that has withstood dozens of tests in the courts over that time period.

Originally Posted by zraver

Especially since DOMA is failing in the courts.

Worth noting that it has been struck down (as in Massachusetts v. United States Department of Health and Human Services) on Tenth Amendment grounds (!) - which might actually strengthen the arguement in favor of state-level bans being consitutional.

Originally Posted by zraver

Finally Lawrence v Texas raises questions about the government's role in regulating what is in part sexual behavior among consenting adults.

Inapplicable. Proposition 8 has no effect on that. Unless you're claiming that people can't have sex until they enter into a state-sanctioned marriage.

I feel substantial federal issues due exist now that may not have existed then.

Again, see State Oil Co. v. Khan for a demonstration of how a federal lower court judge should handle a precedent he feels is no longer sound because the circumstances have changed.

**zraver** · 11 Aug 10,, 21:07

Originally Posted by highsea

So presumably this ruling strikes down Washington State's definition of marriage as well- we fall into the 9th Circus' jurisdiction.

Doubtful, Perry dealt with the taking away of a right, not the creation of a new one.

**highsea** · 11 Aug 10,, 23:04

Originally Posted by zraver

Doubtful, Perry dealt with the taking away of a right, not the creation of a new one.

Prop 8 amended California's Constitution in the normal way, adding this text:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

As I posted previously, Washington State's law says:

"Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable."

These two things are substantially identical. If the California law takes away a right, so does the Washington law.

If Washington's law doesn't violate anyone's rights, what does California need to do to match up their "rights" with those enjoyed in Washington? Or is someone who lives in California entitled to more rights than someone in Washington? Or just gays?

This is a Federal ruling, not a State ruling. Equal protection and due process apply. I think the ruling strikes down Washington State's law as well.

**JAD_333** · 11 Aug 10,, 23:34

Originally Posted by Genosaurer

No, I meant what I wrote. I (speaking for myself) see no logical reason for us (as the voting public) to pass laws that would prevent the government from recognizing same-sex marriage. I am familiar with most of the arguments in favor of such laws, and while some of them are reasonable, in my personal calculus I do not find any of them to be sufficient justification for such a law.

I'm still not understanding you when you say there's no logical reason. There MAY be a sociological reason, but that would take extensive research to determine. The potential for abuse by same-sex, non-gay couples is also a question, although again stats over time would tell, and, in any case, legislation could close any loopholes. There IS a political reason. For example, an elected politician would consider opposition logical after looking at the following pluralities.

File:Defense of marriage amendment types US.svg - Wikipedia, the free encyclopedia

Caveat: Many of these amendments were passed when 76% of the electorate was opposed to same-sex unions/marriage. That number has declined to roughly 52% nationally, but remains high in some states.

However, given that such laws have already been passed in many states, I also understand that at this point in time such laws are not unconstitutional, and any lower court that rules otherwise is blatantly failing to do their duty. When precedent exists - good or bad - a lower court judge is bound to rule in accordance with it. If they feel the precedent is unsound, they can argue against it in the text of the opinion and urge that higher court overturn their ruling (as the Chicago State Court of Appeals did with good results in State Oil Co. v. Khan). The ruling in Perry overturning Proposition 8 is exceptionally bad jurisprudence, and I really do hope that the Ninth Circuit Court of Appeals smacks it down with a vengeance.

Good point. The cost of a change may be greater than the good gained by it.

I believe that, in the near future, the Supreme Court will overrule Baker v. Nelson, expand on where the unenumerated freedom to marry in Loving v. Virginia comes from and what it actually entails, and/or determine that the Full Faith and Credit clause applies to recognition of marriage across state lines (any one of which will open a huge can of worms). If and when that happens, it will be within the power of the lower courts to issue sweeping proclamations like the opinion in Perry - but not a day before.

The 10th Amendment will be in play when if the SC weighs in. The only door is the 14th, wouldn't you agree? If the plaintiffs frame their case as an equal rights issue and the court disagrees, game over.

As I see it, there are three common reactions people have to Perry:

1. "I agree with the outcome of the ruling, therefore it was right."
2. "I agree with the outcome of the ruling, but that outcome was reached by bad jurisprudence, therefore it was wrong."
3. "I disagree with the outcome of the ruling, therefore it was wrong."

As someone who falls into category two, in a political climate where almost everyone falls into either category one or category three, this places me in the uncomfortable position of trying to debate both sides of the issue at once.

In intercollegiate debate, we learned to go both ways.

Debated one proposition all year. Had a stack of 3x5 index cards with evidence for it on one side and evidence against on the other. Go pro one day; flip the cards and go con the next.

**zraver** · 12 Aug 10,, 02:32

Originally Posted by highsea

Prop 8 amended California's Constitution in the normal way, adding this text:

As I posted previously, Washington State's law says:

These two things are substantially identical. If the California law takes away a right, so does the Washington law.

If Washington's law doesn't violate anyone's rights, what does California need to do to match up their "rights" with those enjoyed in Washington? Or is someone who lives in California entitled to more rights than someone in Washington? Or just gays?

This is a Federal ruling, not a State ruling. Equal protection and due process apply. I think the ruling strikes down Washington State's law as well.

However a major difference exists, in California same-sez marriage had been legal, it never was in Washington. As I have been arguing with Geno, in the case of Washington Baker v Nelson would be the controlling precedent. As I also argue, in the case of California since same-sex marriage had been legal Baker v Nelson does not apply. Instead the removal of a right and the attendant legal rights makes it a new 14th Amendment issue. I don't think Judge Walker's ruling would apply to Washington or any other state due to the unique circumstances of the case in California.

**zraver** · 12 Aug 10,, 02:46

Originally Posted by JAD_333

I'm still not understanding you when you say there's no logical reason.

There are no new issues presented by same-sex marriage that society has not already confronted with opposite-sex marriages. The only new issue is the gender question but this does not fundamentally affect contract law. All the other issues, procreation, inheritance, taxes, liabilities, power of attorney etc have already been hashed out in existing marriage contract law. The only remaining issues are either moral or religious judgments, or appeals to tradition. And while the government has a duty to moralize, Lawrence v Texas bars the government from arguing that homosexuality is morally wrong. Likewise the government has no business making religiously based decisions. This leaves tradition, but tradition is only a guide it is not canon. In fact, America's greatest moments domestically has been when we turned tradition on its head. It used to be tradition that man needed a king. We dared to turn that tradition on its head, then did it again with state religion, slavery, Jim Crow, woman's suffrage, Darwin/evolution etc.

Our fore bearers dared to tell King George that all men are created equal. Our story is the struggle towards that ideal. Giving homosexuals equal rights does not impinge the rights of anyone. Making America more free, more equal where a man or women is measured by the content of their character not their sex, color, or choice in partners is the greatest tribute to those who dared the Lobster Backs to take Breed's Hill from them. It is a far better tribute than holding to outmoded ideas that a person's value is decided by who they want to marry.

**Genosaurer** · 12 Aug 10,, 03:16

Originally Posted by zraver

As I have been arguing with Geno, in the case of Washington Baker v Nelson would be the controlling precedent. As I also argue, in the case of California since same-sex marriage had been legal Baker v Nelson does not apply. Instead the removal of a right and the attendant legal rights makes it a new 14th Amendment issue. I don't think Judge Walker's ruling would apply to Washington or any other state due to the unique circumstances of the case in California.

Chief Judge Walker explicitly stated that defining marriage by gender of the participants does not meet his version of the rational basis test and thus is unconstitutional. There was no aside saying, "this only applies in circumstances where same-sex marriage had previously been legal". Perry is a broad, sweeping ruling, and as precedent in Ninth Circuit I don't see how you can possibly interpret it as not speaking on all same-sex marriage bans currently in effect.

...unless in the future more Circuit Court judges take a page out of Walker's book, and simply ignore Perry when ruling on the constitutionality of same-sex marriage bans. That would be ironic.

Originally Posted by zraver

And while the government has a duty to moralize, Lawrence v Texas bars the government from arguing that homosexuality is morally wrong.

No. Lawrence ruled the government cannot criminalize sexual practices between consenting adults, and in particular bars the government from criminalizing those practices only between same-sex couples.

But they also say, outright:

"[The present case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

**Genosaurer** · 12 Aug 10,, 03:29

Originally Posted by JAD_333

I'm still not understanding you when you say there's no logical reason.

I suspect this is because you are not reading it in the manner I intended when I wrote it. (Maybe it wasn't clear enough?)

When I say "I see no logical basis...", I mean speaking only for myself. If I were asked to vote tomorrow on a ballot initiative to define marriage in this state as existing solely between a man and a woman, I would vote no. I have considered the arguments for and against, and I do not find the arguments in favor of such laws compelling.

Originally Posted by JAD_333

The 10th Amendment will be in play when if the SC weighs in. The only door is the 14th, wouldn't you agree?

Not necessarily, although the Fourteenth is probably the best way to do it. I think it's most likely that we will simply get an expansion of wherever the unenumerated freedom to marry in Loving came from, probably the unenumerated right to freedom of intimate association in the First Amendment's freedom of speech clause.

(Because after all, why go to the trouble of amending the Constitution when you can just find an unenumerated right to whatever you want that was hiding in there the whole time.)