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Proposition-8 Overturned: Additional Commentary


Please note that I do not necessarily agree or disagree with the following editorializing; these are just examples of (some of) the types of discussions that Judge Walker’s ruling (large PDF) has engendered:



The Breakdown of the Traditional Family: Why Conservative Christians Should Rethink Their Blame Game: The week of the decision on Proposition 8 was also the week of the decision on "The Bachelorette." Ali Fedotowsky said yes to Roberto Martinez, one out of 25 who competed for the chance... There could be no more perfect metaphor for the state of modern marriage this week.

Gay Marriage: What Do We Really Mean?: “…lifelong heterosexual monogamy at its best can offer something distinctive and remarkable—a microcosm of civilization, and an organic connection between human generations—that makes it worthy of distinctive recognition and support.”… I would love it if my commenters today could try to parse what Ross Douthat could possibly be trying to say.

My Fellow Conservatives, Think Carefully About Your Opposition to Gay Marriage: The potential consequence that conservatives land on the wrong side of civil rights history again is the alienation of an entire generation of voters.

Homosexuality and the law: […]There is no doubt that gays and lesbians have historically been singled out for discrimination, to the point that until relatively recently, most were too afraid of the repercussions to reveal information about their sexuality. The vitriol hurled their way during the marriage debate only adds to the evidence. As a result, they have formed a community that is, in many ways, insular and that certainly is seen as a separate, distinctive group.

Editorial: Prop. 8 ruling 'activist'? Look at the precedent: Cut through the political rhetoric and look at the law, and it turns out no less a conservative light than Justice Antonin Scalia agrees that the Supreme Court’s precedents naturally, logically lead to allowing gay marriage. Of course, Scalia loudly dissented in the key precedent-setting case, in large part precisely because of its implications. But he did not prevail.

In Defense of Judge Walker: This isn’t to say that Judge Walker is beyond criticism. A higher court might very well overturn his decision. But if a higher court does overturn Walker’s ruling it will be because of factual and legal flaws inside his 136-page decision, not because of how he lives his life outside the courtroom. Just as I think it is wrong to read things into Arizona’s immigration law that aren’t there I think it is equally wrong to read things that aren’t in Judge Walker’s ruling.

The Secular Case Against Gay Marriage: Homosexual relationships do nothing to serve the state interest of propagating society, so there is no reason for the state to grant them the costly benefits of marriage, unless they serve some other state interest. The burden of proof, therefore, is on the advocates of gay marriage to show what state interest these marriages serve. Thus far, this burden has not been met.

The Marriage Ideal: Here are some commonplace arguments against gay marriage: Marriage is an ancient institution that has always been defined as the union of one man and one woman, and we meddle with that definition at our peril. Lifelong heterosexual monogamy is natural; gay relationships are not. The nuclear family is the universal, time-tested path to forming families and raising children. […]These have been losing arguments for decades now…

Marriage and the role of the state: Ross Douthat uses his New York Times column today to put what he undoubtedly considers to be the most intellectual and humane face on the case against marriage equality. Without pointing to any concrete or empirical evidence, Douthat insists that lifelong heterosexual monogamy is objectively superior to all other forms of adult relationships: such arrangements are the "ideal," he pronounces. He argues that equal treatment of same-sex marriages by secular institutions will make it impossible, even as a matter of debate and teaching, to maintain the rightful place of heterosexual monogamy as superior: (snip)… This argument is radically wrong, and its two principal errors nicely highlight why the case against marriage equality is so misguided.

Editorial: Some Prop. 8 allies show their true goal: The ink was hardly dry on Chief U.S. District Judge Vaughn Walker's decision in the Proposition 8 marriage case before opponents started attacking the judge personally. […] Rather than critique the legal reasoning in the decision, they chose to denounce him as a gay judge.

Race And Gay Marriage In Perspective: Much worse, the comparison with interracial marriage actually understates the evil of reserving marriage rights for certain classes of people. Banning interracial marriage meant that most black people could not marry outside of their race. This was morally indefensible, but very different than a total exclusion of gays from the institution of marriage. Throughout much of America, gays are effectively banned from marrying, not simply certain types of people, but any another compatible partner period Unlike heterosexual blacks in 1960, the ban gays suffer under is unconditional and total and effectively offers one word for an entire sector of Americans--Die. For evading that ban means virtual--if not literal--suicide.




ADDED 08/13/10:

The Proposition 8 ruling: What the judge got right about morality: [...] Legal reasoning -- the way of thinking that makes lawyers so annoying to everyone else -- does very little. It cannot tell us what to value or explain what a good life is. These questions, which are moral, must be resolved outside the courtroom. But legal reasoning does do one thing very well: It exposes inconsistencies. And this is as true for laws based on morals as for other laws. In this respect the law is actually an agent of morality: It makes us treat others by the same standards we treat ourselves.


ADDED 08/16/10:


Who has standing to appeal Prop. 8 ruling? (H/T BTB): […] The appellate court may grant a stay only if it finds that the supporters of Proposition 8 have a substantial likelihood of prevailing on appeal and that there will be an "irreparable injury" if there is not a stay. […] As Walker explained Thursday, the defenders of Proposition 8 are not likely to prevail because they lack standing; also, it is impossible to see what "irreparable injury" will occur if there is not a stay of the injunction and same-sex couples are allowed to marry pending resolution of the appeal. […] But if those courts follow well-established law, they will need to dismiss the appeal on grounds that those who filed it have no standing. The outcome, then, will be that marriage equality will exist in California, at least unless and until in some other case, some day, the Supreme Court comes to a different conclusion.


ADDED 08/18/10:

Timothy Kincaid at BTB has an interesting opinion on why he thinks the pro-Prop-8 side will not be granted standing by the 9th Circuit: Tea Leaves: Prop 8 Proponents will not have standing.
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4 Comments On This Entry

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Editorial: Some Prop. 8 allies show their true goal: The ink was hardly dry on Chief U.S. District Judge Vaughn Walker's decision in the Proposition 8 marriage case before opponents started attacking the judge personally. […] Rather than critique the legal reasoning in the decision, they chose to denounce him as a gay judge.


Because there was very little "legal reasoning" in the decision, and the judge was clearly showing his personal bias. I've read through the decision. He took 100+ pages to say it, but basically the judges decision was, if distilled down to one sentence, "I like the anti-8 expert witnesses, I dislike the pro-8 expert witness, gay marriage is a good thing, therefore prop 8 is overturned" The judge spent the majority of the ruling restating the appellants case for them; in short, he was acting like a lawyer for the appellants and making their case for them rather than acting like an appellate judge. Appellate court should be a forum for examining technicalities and trial errors, not a forum for giving the plaintiffs a 'second bite at the apple' for re-arguing their original case, yet the judge turned it into exactly that.

The judge also erred in attacking the anti-8 "expert witness" the way he did. Granted, the guy wasn't the most prolific 'expert witness' that's ever taken the stand but he was at least 'good enough' to be considered an expert. The judge erred in discarding his 'expert' testimony and i think this error alone may be enough to get this ruling overturned.

I will contrast this with another high-profile and divisive ruling: Roe v Wade. Now, as a SoCon I dislike abortion as much as I dislike the idea of gay marriage. I'll make no bones about it: Morally, I think that allowing either is ruining this country. But when I read through Roe, as much as I abhor the outcome, I am forced to agree with the legalities. The plaintiffs in Roe made their case legal point by legal point. I dislike that the original texas law was sloppily written and gave Roe grounds to challenge it. I dislike that the US constutitions lacks a better definition of personhood. But it is what it is, and as much as I dislike abortion I cant disagree with Roe; To me it just gives us a 'to do" list of what needs to be changed in the laws and the constitution.

But this ruling was nothing like Roe. If it was, I'd be forced to admit that the decision was proper. But unlike Roe, when I read through this decision all I saw was a mishmash of personal opinion, and personal likes or dislikes of the expert witnesses. There were few legalities and constitutionalities debated, which is what an appellate ruling is supposed to be about. The judge was clearly biased from the get-go. He might as well have been waving a rainbow flag from the bench.
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Adam Smithee, on Aug 11 2010, 04:19 PM, said:

Because there was very little "legal reasoning" in the decision, and the judge was clearly showing his personal bias. I've read through the decision. He took 100+ pages to say it, but basically the judges decision was, if distilled down to one sentence, "I like the anti-8 expert witnesses, I dislike the pro-8 expert witness, gay marriage is a good thing, therefore prop 8 is overturned" The judge spent the majority of the ruling restating the appellants case for them; in short, he was acting like a lawyer for the appellants and making their case for them rather than acting like an appellate judge. Appellate court should be a forum for examining technicalities and trial errors, not a forum for giving the plaintiffs a 'second bite at the apple' for re-arguing their original case, yet the judge turned it into exactly that.

The judge also erred in attacking the anti-8 "expert witness" the way he did. Granted, the guy wasn't the most prolific 'expert witness' that's ever taken the stand but he was at least 'good enough' to be considered an expert. The judge erred in discarding his 'expert' testimony and i think this error alone may be enough to get this ruling overturned.

I will contrast this with another high-profile and divisive ruling: Roe v Wade. Now, as a SoCon I dislike abortion as much as I dislike the idea of gay marriage. I'll make no bones about it: Morally, I think that allowing either is ruining this country. But when I read through Roe, as much as I abhor the outcome, I am forced to agree with the legalities. The plaintiffs in Roe made their case legal point by legal point. I dislike that the original texas law was sloppily written and gave Roe grounds to challenge it. I dislike that the US constutitions lacks a better definition of personhood. But it is what it is, and as much as I dislike abortion I cant disagree with Roe; To me it just gives us a 'to do" list of what needs to be changed in the laws and the constitution.

But this ruling was nothing like Roe. If it was, I'd be forced to admit that the decision was proper. But unlike Roe, when I read through this decision all I saw was a mishmash of personal opinion, and personal likes or dislikes of the expert witnesses. There were few legalities and constitutionalities debated, which is what an appellate ruling is supposed to be about. The judge was clearly biased from the get-go. He might as well have been waving a rainbow flag from the bench.

Adam, this is the trial court level, not the appellate. The case was filed at the federal level; this did not come up from the state courts. The trial over which Judge Walker presided was its first airing. The next level is federal appellate and SCOTUS after that.

As the “entry level” trial, a primary purpose is findings of fact; something which Walker seems to have done exhaustively. (Although that’s not entirely his fault since the plaintiffs presented mounds of evidence.)

I appreciate your message but before I respond in more detail, perhaps you’d like to revisit your response? It’s well thought out and presented, you’re just a little off on the premise. Are there any things you would say differently?

Thanks.

:P
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I'll have to double-check that.

I was under the impression that this federal hearing was an appeal of Strauss v Horton, the original challenge to prop 8 that went to the California Supreme court. Under Article III of the constitution, federal courts have appellate jurisdiction over state supreme courts.
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That's understandable.


Additional documents are available here:

Perry et al v. Schwarzenegger et al

Due to the level of interest in this case, this site has been created to notify the media and public of procedures and rules for admission to proceedings, as well as access to case information.
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