Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law!
A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA’s Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state’s majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today’s finding.
As New York Magazine was first to report…
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 opposite sex couples are superior to same sex couples.
That’s what history sounds like. Of course, before the ruling was released, lawyers for the opposing side filed a motion to stay his ruling pending an appeal to the 9th Circuit Court of Appeals.
TPMMuckraker’s Rachel Slajda reports that “Supporters of Prop 8 (that is, opponents of gay marriage) have already promised to file an appeal,” and she now offers more quotes from Judge Vaughn Walker’s landmark decision.
And just a reminder to those of you foes of equality and the Constitution: Remember, where same-sex marriage is found to be legal and Constitutional, it will still be voluntary. You will not be forced to marry someone of the same sex. Just in case that’s been unclear up until now.
UPDATE: CNN reports that, in a separate ruling [PDF], Walker grants a stay to his finding, pending appeal by the opponents of equality. If appealed, as is almost certain, the case will go to the 9th Circuit Court of Appeals and then likely to the U.S. Supreme Court.
Marcy Wheeler of emptywheel tweets a very interesting point, worth remembering, in relation to the likely inevitable hearing before the U.S. Supremes…
Could get interesting.
It’s also worth remembering that the proponents of equality (those fighting to strike down Prop 8) were represented in this case by George W. Bush’s Solicitor General Ted Olson who, in his presser following the finding, called the ruling “A victory for the American people. A victory for our justice system.”
We concur.
FURTHER UPDATE: Adam Sewer at The American Prospect speed-reads the decision and offers a smart summary:
…
But more important than the fate of same-sex marriage are the findings of fact that the judge based his ruling on. Walker intended to establish an extensive factual record from the start, and as Pema and I have noted, it’s important because higher courts can overrule a lower court on matters of law, but generally cannot challenge the trial courts’ findings of fact. Over fifty pages in the order are dedicated these “findings of fact.” The following are some of the court’s noteworthy findings:
- Sexual orientation, the judge, found, is a stable characteristic – one gays and lesbians do not choose and cannot change through therapy – and defines them as a discrete group. This is important because Prop. 8’s supporters argued that sexual orientation could be changed and because one’s sexuality was hard to pin down, gays could not possibly qualify as a protected minority.
- Civil marriage is “the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” What’s crucial here is that the judge left out procreation or the intent to procreate. This is something that Prop. 8 defenders argued throughout the trial.
- There is no credible evidence that same-sex marriage harms society or the institution of marriage in any tangible way. Harm to society was supposedly one of the reasons the state had an interest in restricting marriage to heterosexual couples.
- Proposition 8 singles out gays and lesbians and “places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.” This point speaks to the fact that the Prop. 8 campaign was motivated by anti-gay animus and religious disapproval, which are insufficient reasons for upholding the constitutionality of a law.
- Chlidren raised by gay or lesbian couples are as likely as the children of heterosexual couples to be “healthy, successful, and well-adjusted.” Concern for children was one of the stated reasons for restricting marriage to heterosexual couples.
What’s most striking about the ruling is this: Whether or not the judge’s legal arguments hold up, the 136-page document lays bare the irrational prejudice behind Prop. 8. It is telling that the judge did not agree with a single legal or factual point made by same-sex-marriage opponents. Prop. 8 defenders might say this is because Walker was biased — even though he was a conservative nominee opposed by Democrats — or say the defense did a shoddy job. But in reality, the emotional appeals of Prop. 8 supporters did not withstand legal scrutiny: Piece by piece, Walker deconstructs the arguments against same-sex marriage and shows that they are, at root, motivated either by fear or a desire to stigmatize gays and lesbians.
The real question is: Why in the world does ANYONE think that it’s the right thing to do to place the civil rights of a minority group up for approval or disapproval by an uninvolved majority? This would be like asking states in the early 1960s to decide on their own by referendum whether to allow African Americans to sit at the same lunch counters as whites. If a majority of citizens in Alabama or Georgia or South Carolina decides to not allow it then, sorry folks, majority rules, right?
Under no circumstances should issues be left up to a vote that are matters of personal choice that don’t harm or affect anyone else beyond those adults making that choice. Same with marijuana. Everyone with common sense knows that pot should be legalized for medicinal as well as recreational use everywhere in the U.S. Who cares if someone’s neighbors don’t approve of adults smoking pot in their own home? The answer to that is don’t come over to visit if you know your neighbor is smoking herb at that time but NOT to put it on a ballot and ask a majority of people who have nothing to do with the issue to decide on the civil rights of others. That’s ludicrous.
Brad, you nailed it in the first sentence. True conservatives will be overjoyed about the removal of burdensome government regulation on gay corporations(=people).
Next on the teabagger agenda?
Repeal the entire 14th amendment.
When he was running for president, William Jennings Bryan was asked by a reoporter why he was a Democrat, to which he replied, “That’s perfectly simple, because my father was a Democrat.” (Or something to that effect) The follow-up question came swiftly: “But that’s absurd; what if he had been a horse thief?” “Well, then, I would have been a Republican.”
True, this is a simplification these days, as the Democrats are (by and large) just corporatists of a slightly different stripe than their Republican counterparts. I think it’s telling, though, that the very tiny handful of Congresscritters who are worthy of any respect at all (Kucinich, Grayson…) are Democrats, testimony to great principles that were once OK in ‘murka…
IMVHO, the choice of solutions is simple: America: Save it or screw it! (Disclaimer: I, myself, decided to screw it twenty years ago, and am now living happily at an undisclosed location in Europe.) Come on over!
Brad: A correction is in order regarding the CNN report that Judge Walker granted a stay pending an appeal.
The order [PDF] merely granted a temporary stay pending an expedited hearing before Judge Walker on the proponents motion for a stay pending the outcome of the appeal.
Given that the proponents must demonstrate the likelihood of success and having now reviewed the content of Judge Walker’s decision, it appears exceedingly doubtful that Judge Walker will stay the permanent injunction against enforcement of Proposition 8 pending the outcome of an appeal.
I’ll post a second comment that will explain why.
Prediction: Both the 9th Circuit and U.S. Supreme Court will uphold Judge Walker’s decision.
Reason No. 1. Appellate courts are required to give deference to the factual determinations of a trial court.
It is this point that has led even legal scholars who supported Proposition H8 to concede that an ultimate appellate defeat is likely. See, e.g., today’s Los Angeles Times:
2. The disparity between the factual presentations of the competing parties was so great that if this epic legal battle had been a prize fight, a referee would have stopped it in the first round.
In a decision which legal scholars should regard as a masterpiece of judicial craftsmanship, Judge Walker, providing extensive citation to the record, found the testimony provided by all of the plaintiff’s witnesses, both expert and lay, to be credible and persuasive.
Judge Walker took a dim view of the Prop H8 proponents’ presentation.
Judge Walker noted that where the proponents’ legal counsel represented that his witnesses feared for their safety if their testimony was publicly recorded, “The timeline shows…proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.”
Of greater embarrassment for team Prop H8 is the fact that “Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims.”
The Prop H8 supporters produced only two expert witnesses. Political Science Prof. Kenneth P Miller provided testimony on a minor collateral issue pertaining to gay and lesbian political power. The court found that while Prof. Miller had expertise in the field of political science generally, he lacked knowledge and expertise in the area of gay and lesbian political power.
The court expressly found that the proponents’ key expert witness, David Blankenhorn, founder and president of the Institute for American Values, who “testified on marriage, fatherhood and family structure…lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent
testimony in support of proponents’ factual assertions.”
Judge Walker proceeded to set forth a litany of reasons to support that conclusion, for example:
Appellate courts are especially loath to overturn a trial judge’s credibility determinations because it is the trial judge, and not the appellate court, which has the first hand ability to observe the demeanor of witnesses.
3. Judge Walker’s Equal Protection Analysis is compelling.
Judge Walker’s factual determination of a biological basis for homosexuality would mean that it is an immutable characteristic that would trigger the “strict scrutiny” standard as applied to any legislation which sought to discriminate between heterosexuals and homosexuals. This would make Prop H8 presumptively unconstitutional.
However, he did not stop there. Even if strict scrutiny did not apply, Prop H8 would not survive the rational basis test because he found there was no legitimate state interest in preventing homosexual marriage.
Right-winger in favor of Prop H8? Go figure…
Read it and weep…
http://www.sfgate.com/cgi-bin/article/comments/view?f=/c/a/2010/08/03/BAF11EODM9.DTL&plckFindCommentKey=CommentKey:bb7d303b-9b63-4b23-8b5c-37ef8ce633cb
If only the Supreme Court had half the integrity and intelligence of Judge Walker.