California Marriage Definition Held Unconstitutional
In anticipation of the issuance on August 4, 2010, of a decision on the constitutionality of a provision of California’s Constitution defining marriage as solely between one man and one woman, gay rights activists scheduled protests or celebrations (depending on the ruling) for the Bay Area and elsewhere. Judge Vaughn Walker, the chief judge of the U.S. District Court for the Northern District of California, issued his 138-page opinion holding the California marriage definition unconstitutional at approximately 2:00 p.m. California time, so celebrations seem likely. There has been such intense interest in the decision that the court’s principal site for posting important decisions was very busy and a mirror site was made available for it.
In a nutshell, Judge Walker held that the California definition of marriage as solely between one man and one woman adopted as an amendment to the California Constitution via Proposition 8 violates the guarantee of equal protection of the laws under the Fourteenth Amendment to the U.S. Constitution and is, therefore, unconstitutional. He rejected the notion that “traditional views” of marriage are a valid basis for limiting the status of marriage to that between a man and a woman. For what little if anything it may be worth, Judge Walker was nominated by President George H.W. Bush and confirmed by the U.S. Senate on November 21, 1989, on unanimous consent.
Judge Walker’s decision in Perry v. Schwarzenegger is available here. It was issued following many days of hearings as well as legal arguments in support of and against the constitutionality of California’s marriage definition. The proponents of Proposition 8 offered very little substantive evidence, and the opponents offered lots. Judge Walker rejected nearly all of the testimony of the proponents’ witnesses as not credible or as beyond the limits of their expert competence. Such determinations by a trial judge are customarily given very substantial weight on appeal because the trial judge heard the witnesses and the appellate court will not. Judge Walker concluded that the proponents failed to meet “the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest.”
Judge Walker based his ruling on the following:
An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.
He concluded that religious perceptions are not constitutionally significant and that “religious leaders may determine independently whether to recognize a civil marriage or divorce” but that recognition or lack thereof has no effect on the relationship under state law. In addition, “marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.” However, individuals do not generally choose their sexual orientation and “marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” In addition, a 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.
Accordingly, he decided that Proposition 8 stigmatizes gays and lesbians as inferior to heterosexuals and accordingly undeserving of the full recognition of society. Further, the “relationship between sex and sexual orientation makes Proposition 8 discrimination based on sex”; and Proposition 8 “was premised on the belief that same-sex couples simply are not as good as opposite-sex couples, which is not a proper basis on which to legislate.” In conclusion, he held that
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. 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.
Judge Walker held that freedom to marry is recognized as a fundamental right protected by the Due Process Clause and accordingly Proposition 8
unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.
Consistently with the tenor of his opinion, Judge Walker did not stay the effectiveness of his decision pending appeal.
One thing is for sure, from now on, it will be harder for opponents of same-sex unions to continue mouthing canards such as the procreation argument (basically garbage). The public as well as the courts have had an opportunity to hear the facts. The debate over same-sex marriage will never be quite the same again.
And one other thing, for the love of GOD I wish the right-wing bigots would stop with the “pretty soon a man can marry a horse” lines? You’re embarrassing yourselves.
What part of “consenting adults” do you not get? Either make a cogent argument or SHUT UP.
So, you must be ok with polygamy. Consenting adults, right?
Also, to take the man v. horse argument further, you must be against pet ownership and spaying and neutering. Since pets can’t “consent”, then pet ownership is kidnapping and spaying/neutering is torture/mutilation.
And, why stop at “consenting adults”? If man/woman is arbitrary, so is “consenting adults”. Civilization/history/religion/society has supported adult/child marriage FAR, FAR more than homosexual “marriage”, which has never been sanctioned until this generation. Most of the great religious traditions have sanctioned adult/child marriage. But, then again, such quaint notions as religion and tradition probably mean nothing to you, as they mean nothing to Judge Walker. Praetorian wants what he wants, Judge Walker wants what he wants and history/tradition be damned.
Praetorian waves his magic wand and now draws the line at “consenting adults”. Good for you.
Praetorian, What if two adult siblings wish to marry? Should they be allowed to?
You can’t stop them from having children, if that’s what you’re worried about.
If you actually read the opinion you would already have an answer to your silly question. They should not be allowed to marry. A state has a rational reason for not allowing siblings to marry. That is that incest is bad. For both disease and genetically bad offspring.
Brian, like most pro-gay marriage activists, dodges the issue here.
In an age of genetic testing and access to abortion, the “deformed offspring” argument simply would not hold.
If the sole determinate for “marriage” is that it must exist between consenting adults — itself an arbitrary line, as Bob ably points out — then you MUST allow multiple adults to marry (ie. polygamy) and relatives to do so as well (ie. incestuous relationships).
This is not the argument of “bigots” but rather “rationalists”. You activists are asking to redefine an institution, and we are rationally asking “to what?” and “what is the basis for stopping there?”.
The fact that you want to either dodge the question or simply cannot provide adequate justification for your position speaks volumes. You simply want us to shut down thinking, feel cowed by the term “bigot”, and radically overturn a fundamental institution of our culture.
So, brave defenders of gay “marriage”: Why would the redefinition STOP at only two consenting non-related adults?
Each part of the equation — two, consenting, non-related — would be called into question by any vocal, well-funded fringe group with support from the media.
When you ask “how does gay marriage affect heterosexual marriage”, this is how: by changing the definition to include everything (as this logically will necessitate), it will mean nothing.
The answer is that even though there is genetic testing available, those children will likely have the recessive genes, and that is a rational reason for denying the children. All that is required is a rational basis. It is also clear that there is harm to the family unit from multiple wives. i.e. there is no one structural family unit. That is also rational. The problem is there is no rational reason for preventing two people from the same sex from getting married. I do not care if you are homophobic or not the law does not change.
But, who decided that incest was bad? Isn’t that merely a matter of opinion? Quite frankly, those participating in incest, if consenting adults, don’t believe it’s bad. Also, where do you draw the line? Can the State also have a compelling interest in not letting two mentally handicapped people marry because the offspring may also be handicapped? Honestly, if you want to criticize others, that is your right, but there certainly is a basis to disagree with this Judge’s very broad decision which may have severe unintended consequences.
Then shouldn’t two brothers be allowed to marry?
This is in response to Brian N.’s comment (posted August 5, 2010 – 2:15 pm).
Brian,
Don’t you see that you have answered nothing? All you’ve done is dodged the question. No doubt you feel like you have the luxury to do so, as you don’t have a vocal, well-funded fringe group demanding an answer everywhere you turn. But dodged it you did.
I broached the notion of family members marrying and cited that genetic testing would allay any concern about offspring.
Your response? Sure they might have genetic testing, but those kids might have recessive genes. So to get around the issue of genetic testing you point to…..genes. You’ve answered nothing, only kicked the can down the street.
For polygamy, you reference “harm to the family unit”. Sound familiar? You’re now marshaling an argument sometimes used against gay marriage to prohibit polygamy. If that argument doesn’t hold water for you or your fellow activists now, why do you imagine it will when confronted with the polygamy argument.
In short, your side is asking us to redefine marriage but have no sustainable rationale for why the process of redefinition will need to stop where you say it will. It will have to include all these other formulations as well — at least if we continue with your assumptions that marriage is a “right” and not related to procreation or the socialization of a child between one man and one woman.
So it will need to incorporate all configurations.
And in signifying everything, it will mean nothing.
This is what we mean when we say “gay marriage” will weaken the institution of marriage.
Call all things the “Ivy League” (even the high school down the street) and the term means nothing.
The state cannot mandate genetic testing for couples. Once they are married the state could not keep them from procreating. The state has no right in the bed room. Also siblings are not a classified group like gender, sexuality, race, age ect… Thus they do not enjoy the same protection from the court. 14th and EP are for protecting groups. Such as minorities from majorities. Siblings would only be protected if the state passed a law that only effected siblings. There is no way for incest to come under the EP or 14th, as the courts currently analysis it. However, when you have a heterosexual couples granted different rights from homosexual the EP and 14th can be argued. What would be the opposite of sibling incest. You do not really understand how courts analysis the constitution and you have been brainwashed into thinking other things could be protected in the same way, but they are not equivalent under the law. If you have multiple wives or husbands there is no one family unity, and the stability of just a couple would not be there. A gay couple is still just two people hence the family unit. If you need more information on how our courts work, I will be happy to expand.
This in reply to Brian N’s post from August 6, 2010 – 9:28 am. (For some reason, the reply link is missing that that post.)
Brian,
Your analysis of why incestuous unions couldn’t be called “marriages” is fundamentally flawed and wouldn’t hold up to the scrutiny leveled by committed activists — at least if you continue to hold your beliefs that marriage is a “right” for any consenting adults.
You say there are no laws prohibiting siblings specifically; thus, there is no equal protection problem.
But you’re simply wrong on the facts. Relatives ARE currently prohibited from marrying one another. (Just search for “incest laws” in the United States.) Your equal protection argument, therefore, must be extended to incestuous unions.
On your claim that the state cannot mandate genetic testing, that’s simply inaccurate as well. A number of states *require* blood tests prior to the issuance of a marriage license. Other states require first cousins interested in marrying to prove either (A) they cannot reproduce because of age or sterility or (B) at least went through counseling to know of the risks involved. (You can search for this at CNN’s FindLaw site.)
Finally, your argument against polygamy simply declares that there won’t be family “unity” or “stability” if there are more people in the union.
But the polygamist will simply ask you: What makes you say that? Why is two better than three (or four)? Where are the studies that show two parents are more effective than three? In fact, since there are more caretakers, one could argue the home would be MORE stable, less harried. It takes a village and all that…..
In short, Brian, you’re simply asserting but not backing anything up. You declare that the two-couple union is stable and the polygamist one is not. But you can’t back up why that is so.
You imagine the state can’t mandate genetic testing for incestuous unions when it already does so via blood tests, in a number of states, for heterosexual ones.
You divert attention to the claim that there is no equal protection problem for incestuous unions because no laws prohibit them, when, in fact, they do (as any quick search for incest laws would reveal).
By your standard, by your new definition of marriage, polygamy and incestuous unions are thus “discriminated against” and your arguments are a mere species of bigotry.
These are the results of the very predicates of your own argument. If marriage is a “right” for all consenting adults, you’ve just redefined it beyond gay marriage to all these other unions as well.
You might not like the conclusion, you might wish to deny it, hide from it, or pretend we don’t have to face it. But this is what the new definition brings. You can comfortably ignore it for now, but we’ll soon have activists from other fringe groups arguing discrimination and bigotry, demanding their “right” to marry.
This is why conservatives argue that redefining marriage to mean “gay marriage” would destroy the institution. There isn’t the luxury of pretending these radical ideas have no consequence, that the rest of the panoply of fringe groups will simply accept this new definition and not play it to their advantage. In fact, such arguments are already being made.
There’s simply no reason to change the definition to where you have arbitrarily set it and then leave it at that — a fact underscored by your inability to back up your assertions that we need only go so far and no further.
Where to go from here… well simple education first…
The first and most important education that all who talk about this is the fact that no federal judge even the SCOTUS can over turn prop 8… its not within they’re legal power. So this ruling is completely bogus from the start, not to mention unconstitutional(borderline treason/insurrection).
The only way to over turn prop 8 is to argue some kind of voter fraud. The state constitutions are not law in them themselves but guidance for laws to be passed. Even SCOTUS can not over turn a state constitution… it can however legally over turn laws based on that state constitution.
In this case for this federal judges ruling to be legit it would not be targeted at prop 8 but it would void all CA marriage law as it(supposedly) violates the US Constitution. This current ruling is in every way judicial activism and clearly violates both state and federal constitutions. Much as a court ruling in CA that rewrote marriage law to include gays… that ruling was completely illegal under both state and federal constitutions. That court could have thrown out the current marriage and that would have been legal to do but the judges have no power to write new laws… which they did when they granted gays this new never approved law saying they can marry.
Much like that case this judges ruling is highly illegal and born from need to write law not judge within it as require under state and federal constitutions.
Do you have any case law that backs up your argument? I would be very interested in reading any such material.
You ask the wrong question.
The question you should ask is under what power this judge has to make this ruling… no such power can be found. A federal court can not rule on a state constitution… it amounts to a federal court revoking the 1st amendment based on the general welfare clause, because some speech can be used to hurt the general welfare of the country.
You make a poor assumption that a federal court(or any court) has the power to make a ruling on a topic.
I’m not a lawyer but this seems pretty straightforward.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Following the judge’s logic polygomy, pedophilia, and bestiality will not be far behind (after all Fido likes people, too – it would be disciminatory). Watch for NAMBLA making another attempt at lowing the age for consent, so they can marry boys. Oh, and yes, California will most certainly try to force churches into performing ceremonies.
Which parts of the judges logic are you referring too? Five states already allow for same sex marriage. None of them allow for polygamy or bestiality. You are creating a false sense of fear in yourself.
The typical disingenuous idiocy of progressives like Brian and Praetorian leaps out again for all to behold. The infantile progressive never fails to make this argument, whether it be Obamacare death panels or homosexual marriage, and always administered with an arrogant layer of contempt for the great unwashed traditionalist imbeciles who simply can’t understand some supposed limits worked into the law in some mystical fashion.
But here’s what these progressives never, never understand. It can be summed up in one question:
What part of “progressivism” do you not understand?
The most glaring, primary, quintessential aspect of progressivism is that it is PROGRESSIVE. That means that, no matter what some current abomination of a judicial ruling may say today, yet another ruling will be even more egregious in the future. It won’t be tomorrow, it won’t be next year, but probably sooner rather than later, the vile nature of progressivism will broaden, expand, and corrupt current definitions to something far worse than anyone can conceive of at the moment.
It would be amusing, if it were not so destructive to society, to see progressives like Brian not only ignore the nature of progressivism, but also attempt to make arbitrary limits based on nothing but their inner sense of self-righteousness. Exactly what gives you the right to say that limits have been reached on this or some other cultural issue? Just because you say so? And so the rest of us should simply accept your utterances as established immutable fact, based on nothing but your sanctimonious, self-serving assurances?
There are no words in the English language for the destruction people like you cause to society.
Progressives are reptiles, and Obama is the Lizard King.
BUT-
Your votes in California are not worth Shite.
Why are voters in California not protesting their vote being overturned? Twice this has come up, twice it was voted down…yet, the noisy minority gets their way..I do not understand!
California, your vote DOES NOtnotnot count..so stay home and let the libs
run the bankrupt state into oblivion..or turn it over to the illegals, that way we won’t have to pay the welfare and all the free goodies..go California!!! off into oblivion!!!!!
I have no war with gay people, so don’t even go there.. I have a problem with the will of the people being overturned time after time Overruled…seems to happen more and more..it needs to stop.
I believe they are waiting for the out of state Mormons to tell them what to do. Also, it is easier to vote for something then to actually go out, and stand up for your belief.
Speaking of Shite…..will the mosques in CA be forced to perform gay marriages> it could be worth all this trouble just to see that happen
Choices, whether good or bad have consequences. Two years ago the California Supreme Court over turned the voters who had decided to ban gay marriage in California. Within two days lightening began striking California and the state was burning from one end to the other. Homes, Lives, Property and billions of dollars were lost in those massive fires. The people flooded the Supreme Court with letters of condemnation of their decision that brought so much devastation to California.
The people re-grouped and had enough signatures to put the issue of banning gay marriage back on the ballot. The gays went to the Supreme Court to attempt to keep that proposition off the ballot. The Supreme Court refused to hear their argument.
Proposition 8 passed and the gays filed suit again. Yesterday, an openly gay judge overturned the VOTERS again. In the meantime, Seizmologist have been warning of a massive earthquake that will hit California very soon. They have been monitoring the millions of tremors that are grumbling under California with increased intensity.
Will the immoral choice by this openly gay judge bring massive destruction to California? Like I said, choices have consequences. The gay judge did not follow the Constitution. He wants to marry his gay partner.
I am not buying your reasoning for even a second. No matter what a judge says, marriage can only occur between a man and a woman. Gay marriage is in no way comparable to marriage between a black person and a white person of the opposite sex. There are not hundreds of thousands of gay households in California, and the assumption that the gay lifestyle is not a choice cannot be proven either way.
This judge makes a lot of statements that are opinion and not fact.
In gay marriage, you are creating a catagory that never existed before. This is the tyranny of the majority by the minority. This is road to the oppression of the majority by an arrogant and decadent minority.
Oppression? How is the majority getting oppressed here?
How is the majority being oppressed? One of the definitions of oppression is the exercise of authority in a unjust manner. Forcing the majority who believe that marriage is between a man and a woman to accept the minority viewpoint is unjust. Our children are undergoing indoctrination about gay marriage in schools, and it is being mandated through laws. This forced accetance is not simply unjust; it is morally reprehensible.
Please define “man” and “woman” then.
Yes, I know, it’s just common sense. Like the Earth being flat. Which it is, locally. One doesn’t take into account the Earth being an oblate spheroid when walking to the corner store, or reading a street map. It’s only under exceptional circumstances – usually flying or sailing long distances – that the common-sense Flat Earth model doesn’t work.
There’s a series of syndromes called “Intersex”. Now while technically, 1 in 60 people are not anatomically absolutely, completely and utterly male or female, it’s only about 1 in 1000 where there’s any real issues. 1 in 500 men have 47,XXY chromosomes for example, rather than the usual 46,XY ones.
But for some of us, yes, it’s a real problem. Depending on legal definitions, our legal sex can change when we cross a national, state, or even county line. We can even be male for some legal purposes, female for others in the same jurisdiction.
From Littleton vs Prange:
“Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”
This is the law at the moment. It’s as much a legal obscenity as the laws on miscegenation used to be, where, depending on the state or county, someone’s race could change. 1/64 Black meant Black in some areas, and forbidden to marry Whites, and in other areas, White and forbidden to marry Blacks.
We’re a minority – but a minority a quarter of a million strong in the USA alone. Until now, we’ve kept a low profile, people assume that we’re what we appear to be, and we’ve faced few difficulties. No longer. Thanks to the specifically anti-gay legislation enacted in many places, we’ve been caught in the crossfire, our marriages hanging by a thread. By judicious venue-shopping, an insurance company or relative can have our marriage invalidated, no matter which sex we marry. In some jurisdictions, we’re not allowed to marry at all, not being considered either men or women.
Then there’s transsexuals – a different but related problem. Related, because some Intersex conditions, such as 5alpha-reductase-2 deficiency (5alpha-RD-2) and 17beta-hydroxysteroid dehydrogenase-3 deficiency (17beta-HSD-3) (and a few other, rarer syndromes) can cause a “natural sex change”. The genitalia you’re born with may not be the set you end up with.
To us, the “Equal Protection” clause in the US Constitution has, until now, been a sad joke. And the dire predictions of same-sex marriage opponents likewise, since some think we’re of one sex, and others the other.
Cite your sources. From my knowledge, you information is inaccurate.
Or were you referring to sources that the Earth is not Flat? Or that the Commonwealth of Virginia had a “one drop of blood” rule regarding miscegenation?
Why bother holding elections at all? Why not just have federal judges, who serve for life, decide what the voters of a state can and cannot vote for?
Didn’t we try this system once under George III?
People are quickly reaching a breaking point.
People said the same thing about interracial marriage. Also, when Brown v. Board came out. This time is really no different. Gay marriage is gaining traction and will soon be a norm of our society.
It won’t be the ‘norm’. It only concerns 1-2% of the population.
gay marriage may eventually be legal, but it will never be ‘normal’, except for the (possibly) 3% of the population that wish to practice homosexuality and the even smaller segment of the gay population that wish to marry.
far more likely will be the eventual eradication of the antiquated notion of marriage altogether.
my concern is for society as a whole and this will have a bad long term effect on society. wait and see.
This may be to much for you to handle, but the idea of marriage, like other aspects of humanity, is always changing. Do you know anyone who had a dowry? That used to be a part of the “marital institution.” People already regularly live together prior to getting married. This is also something new that would have been unheard of not to long ago. Really thought, the idea of marriage is expanding, and that is a good thing. People have issue with expanding the term marriage to include same sex couple, and seem ok with the idea civil unions. However, name one way that allowing ssc to use the term marry will cause the destruction of marriage. As is the divorce rate is 50%. I would anticipate that the rate will be much lower amongst ssc. So allowing ssc will increase the marital institution.
I could accept an argument based on the concept of the tyranny of the many over the few. That the rights of a minority, gay people, to participate fully in a societal institution should be protected against the majority passing a law that restricts those rights. Slippery slope.
Can’t accept arguments that try to cast same sex marriage as a norm for an evolving society which is the basis of your arguments. It’s societal engineering, progressive BS, and in this case the majority should be able to reject it.
(The left won’t touch the argument of the tyranny of the many over the few though, because the converse is the tyranny of the few over the many – ie the March healthcare bill).
Certainly the judge agrees with your statement, as it was in his decision. I believe that our constitution is set up to protect the minority as well. However, I was just looking at the reality of social progression. Which, is separate from a legal analysis of the situation.
Just out of curiosity, how long have you been telling yourself and each other that?
It sounds as though you’ve nearly convinced yourself that it’s actually true.
Frankly, about the most you can ever reasonably expect is how it is now, a tolerance, (albeit a mostly grudging one). It might behoove political active homosexuals and their fellow-travelers in the Gay Lobby to consider the possibility of losing what little they think they have gained.
Just sayin’
If Proposition 8 is not costitutional, then modify the Federal Costitution.
Otherwise make marriage a purely private matter that government have no interest in.
Whatever one’s views on homosexuality or homosexual marriage, the judge’s decision was purely political. The 14th Amendment has been used, yet again and wrongly, as the basis for this decision despite the fact that the 14th Amendment has absolutely nothing to do with this issue. And neither does Loving v. Virginia. For those who want a great explanation, I suggest listening to the first half hour or so of Mark Levin’s show from last night (8/4/10) at MarkLevinShow.com .
And yes, what happens when a church refuses to allow a homosexual marriage? Will the state intercede? What about the so-called separation of church and state? I suppose that’s just a one way street. What about polygamy? Can Mormons and others now claim that it is a Constitutional right based on the 14th Amendment to practice marriage as proscribed by their religious beliefs?
This decision, as well as the equally hideous decision in Arizona, sets a very dangerous precedent, continuing the shredding of our Constitution.
What happens now when a Catholic church refuses to marry someone who has been divorced?
Loving v. Virginia is an interesting precedent, for two reasons:
1. The opinion in Loving expressly makes it clear that anti-miscegenation statutes were discrimination because the law treated blacks and whites differently. A black man and a white man did not have the same options for marriage, therefore blacks and whites were not being afforded equal protection under the law. However, in California this is not the case; there is no difference with regards to who any person, regardless of sexual orientation, can and cannot marry.
2. The opinion in Loving expressly cites procreation as a justification for the federal government involving itself in the state issue of marriage. This makes me wonder how relevant it is as a precedent, especially when we can also refer to the far more applicable Baker v. Nelson.
Dane,
Your point about the Loving case explicitly mentioning procreation is REALLY good and should be trumpeted by all people interested in defending traditional marriage.
There are too many unexamined assumptions in the debate, and the activists gain ground because of it.
For instance, there’s the issue of “orientation” as a protected class. This allows activists to liken gays to African-Americans. Yet no evidence exists of a genetic component.
In fact, the idea of “orientation” runs counter to the evolutionary principle that all nature desire to pass along its genes. Why would nature “orient” something to NOT pass along its genes?
What happens next?
The media trumpet this as a Great Leap Forward
And they will be absolutely dumbfounded by the reaction in November.
All societies are based on rules to protect pregnant women and young children. All else is surplus, excrescence, adornment, luxury or folly which can–and must–be dumped in emergency to preserve this prime function. As racial survival is the only universal morality, no other basic is possible. Attempts to formulate a “perfect society” on any foundation other than “women and children first!” is not only witless, it is automatically genocidal. Nevertheless, starry-eyed idealists (all of them male) have tried endlessly–and no doubt will keep on trying.–
Robert Heinlein
Hear! Hear!
Well played.
Risking the Wrath of Holy Heinlein, I must respectfully disagree;
The two main purposes of marriage are raising children and conserving
capital, both of which contribute to social survival.
No need to argue the point; Simply watch carefully over the next few
years, as the Hard Times arrive, and you will find out more than you
wanted to know about survival, both social and individual.
The fed judge is Massachusetts says gay marriage must be allowed because only the states may regulate it.
The fed judge in California says gay marriage must be allowed because it is protected by the feds.
Our schools and society are producing judges that are not interested in laws or justice or commonsense but by praise at cocktail parties.
No, your law schools are turning out judges who are tacitly implementing the Humanist Manifesto 2, tenet by tenet. This falls under Tenet 6.
These scum are destroying the Constitution because it was based at inception upon Judeo-Christian ideals and principles. HM 2 states that all religions which teach salvation and an afterlife are outdated and irrational.
Except for the fact that I’m sick of the English language being abused and the rest of us losing perfectly good words with specific meanings, I just don’t care anymore.
What has really happened here is that the courts have once and for all determined that no matter what the voters want the judiciary really makes the laws.
The real reason was the openly gay Federal Judge just wanted to get married. Good for him.
NOT
Several points.
One more example of how we are subjects and not citizens. How have we allowed ourselves to be ruled by judicial fiat?
How can polygamy, polyamory(sic?), brother marrying sister, etc. not be legal now, given the same logic this “judge” used?
I do not think you understand his logic. However, please elaborate on what logic you are talking about. Do not forget the term rational basis.
This is typical. The Humanist Manifesto 2 explicitly states the following:
SIXTH: In the area of sexuality, we believe that intolerant attitudes, often cultivated by orthodox religions and puritanical cultures, unduly repress sexual conduct. The right to birth control, abortion, and divorce should be recognized. While we do not approve of exploitive, denigrating forms of sexual expression, neither do we wish to prohibit, by law or social sanction, sexual behavior between consenting adults. The many varieties of sexual exploration should not in themselves be considered “evil.” Without countenancing mindless permissiveness or unbridled promiscuity, a civilized society should be a tolerant one. Short of harming others or compelling them to do likewise, individuals should be permitted to express their sexual proclivities and pursue their lifestyles as they desire. We wish to cultivate the development of a responsible attitude toward sexuality, in which humans are not exploited as sexual objects, and in which intimacy, sensitivity, respect, and honesty in interpersonal relations are encouraged. Moral education for children and adults is an important way of developing awareness and sexual maturity.
Allow me to interpret if you will. “We, the godless, do not give a rodent’s rectum what you narrow minded and bigoted religious freaks think. We will pursue our proclivities whatever they may be as we so desire without respect for or fear of your God/gods. If we want to be homosexual, so be it. The kid next door, the family dog, the neighbor’s cat and so forth and so on ARE ALL FAIR GAME. We will enact laws in your country wish reflect this and we will also most gladly GET RID of any laws which reflect YOUR bigoted and narrow minded concepts.”
“This article is intended to reflect only my views as a (retired) attorney, and I advocate no personal position; I have no personal views, religious or otherwise, on whether homosexual marriage is good or bad.”
Yet you state earlier…
For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.
Today’s decision is by no means California’s first milestone, nor our last, on America’s road to equality and freedom for all people.
Beautiful double-speak Danny.
The language in italics in your comment appears in blockquotes in the article and, as stated there, quotes what Governor Schwarzenegger said about the ruling. I quoted it as indicating that he — the principal named defendant in the case — is unlikely to appeal the decision, not as suggesting that I agree with all that he said. I don’t, but my personal views have, and I think should have, absolutely no relevance to an attempted legal analysis of the decision.
The language in italics in your comment appears in blockquotes in the article and quotes what Governor Schwarzenegger said about the decision. I quoted it as suggesting that he, the first named defendant in the case, is not likely to appeal. I did not quote it as suggesting that I agree with everything he said. I don’t, but my personal feelings have, and should have, no bearing on an attempted analysis of a legal decision.
to Don in Atlanta….
those quotes were from Schwarzenegger, not the author.
You are inaccurate in your description of the role of a Ninth Circuit en banc panel. First, the en banc panel consists of 11 judges, not 9 (10 circuit judges plus the chief judge, see Cir. Rule 35-3). Second, there is only en banc review after a 3 judge panel issues its decision & the losing side requests & is granted en banc review. That is, if the 3 judge panel overturns Walker’s decision thus making the opponents of Prop. 8 the losers (in the appellate court), the opponents could seek en banc review. (You incorrectly state it is only the Prop. 8 proponents who could ask for en banc review.) Moreover, en banc review is not necessary for supreme court review. And most requests for en banc review, even in cases that the supreme court ultimately decides to review, are denied.
Finally, while it is “possible that no appeal will be filed” (after all, anything is possible), isn’t it highly likely that the losing side will appeal? Prop 8 is a very contentious issue, with emotions running high on both sides. Walker’s decision invalidates a state law supported by 52% of the voters (and perhaps more if a recent LA Times analysis is to be believed). Hard for me to believe that there will be no appeal. Hence, the next big step I expect to see is the losing side will seek a stay of Walker’s decision, by immediately petitioning the Ninth Circuit. Then everyone will await the decision by the 3 judge Ninth Circuit panel reviewing the merits of Walker’s decision. That will take about 18 months to 2 years, possibly more.
Mr. Miller:
“Judge Walker held that freedom to marry is recognized as a fundamental right protected by the Due Process Clause and accordingly Proposition 8
unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”
Uh-huh. What “fundamental right to marry” is this clown talking about?
Before you get married, you have to get a license from the state. What “right” exists when you need to secure a license first?
Furthermore, the Feds only RECOGNIZE the licensed marriages of the states…so where does ass-hat get off now dictating to the majority of the citizens of California what shall and shall not constitute a marriage under their state laws?
Homosexuality was a mental illness until 1973, when the APA Board of Directors decided to remove it from the DSM. Think about that for a minute…it was only the decision of a small group of pshrinks under intense political pressure that changed the game altpgether.
The fact is that these people may not be in need of marriage vows, but rather of psychiatric care.
And judging by recent rulings of the Federal courts, America’s a GREAT place to be if you are an impoverished Black homosexual illegal immigrant.
If you are not one of these, you’d better get your ass out and vote come election day.
cedarhill,
That’s nice, but the fact that the judge is openly gay raises all kinds of uncomfortable questions about Judge Walker’s impartiality, doesn’t it? Indeed, Walker did everything he could to stack the deck against the Prop. 8 folks. And don’t even try to deny it, because we all know he did.
Enjoy your champagne and end-zone dance while you can, because this decision will have ramifications this November. And, old man, my money says the morning after Election Day you’ll awaken to find America to be a very cold and cruel place.
Good for the rest of us.
The definition of words are unconstitutional? Wouldn’t the truth be more that redefining words at the whim of those not included in the definition be unconstitutional.
The word “marriage” does not give special rights, privileges, responsibilities, or protections to anyone. It is the United States Law that takes the definition and affords it rights, privileges, and responsibilities. In my opinion that would be an argument that could be put forth but then one could say that the definition of minority is unconstitutional be cause it gives special rights to a group of people and excludes others.
Homosexuals are given special rights and protections under the law. Should the word be redefined because it does not include heterosexuals? The words African American is given special rights, protections, and privileges under the law should they be redefined because it does not include other races?
The definition of marriage does not afford a man and woman superiority over other couplings. That same judge should say that two sisters, two brothers, two grandparents should be included in defining marriage if they live in one household, may be raising children, and profess love and a lifetime of commitment to each other.
We are witnessing the world where judges are taking unfettered power into their own hands and interpreting “words and their definitions” as unconstitutional just because they don’t include a certain group of people and the pairings they engage in. If people can switch their sexuality and identity back and forth, or profess sexual attraction of those of their same sex, and science has enabled them to call the joining of a man and woman that has “built the nations” as a “tissue” donation, really what is there left to destroy. They are trying to diminish the importance of the union to nothing but an exchange of tissue so that they can lift themselves up. Really is that what our children are: the product of a tissue exchange? Frightening.
Being angry that the joining of a man and a woman is unique and given a word to describe it, only shows how important it is for the continuation of life on earth, and those who wish to pull it asunder and dilute it’s definition, are showing their absolute disdain for the institution and the word that describes it.
Lord I hate this postmodern nonsense where words have no meaning and can be interpreted however the hell an individual wants. Marriage is a union of a man and women; part of the very definition and essential nature of the word is the gender identity of the participants.
If you have a cat and a dog at home, you do not have a pack of dogs. Part of the definition/essential nature of being a pack is that all the members are all dogs. It is not a value judgment on your choice of pets, its the damn definition of the word.
Shouldn’t an openly gay judge have recused himself and let one of his colleages take this case? It’s obvious he has bias a personal interest in this issue.
Yes, just as black judges should recuse themselves from all cases in which the plaintiff or defendant is also black. Just as female judges should recuse themselves from all cases in which the plaintiff or defendant is also female. Because you just can’t trust anyone, can you.
Dur.
The SCOTUS decisions in Marbury and Martin both gave almost unlimited power to the judiciary.
The only way to correct this judicial over-reach is to start holding judges accountable. For instance, if a judge rules that a child pedophile should get bail or a short sentence then if the pedophile commits another crime the judge loses his/her seat, is sued by the victims family and loses their pension. If the judge over rules the will of the people (prop 8)then he/she is referred to a vote in the next election. This “independent” judiciary is a farce.
The SCOTUS is another animal. The Senate should start impeaching SCOTUS judges. If they rule using extra-national decisions(ginsburg, beyer), or UN or Hague decisions or if they over rule the will of the people they should be impeached. Ruling the people by fiat is not what the SCOTUS charter states as their duty.
That is the worst idea in the world. You would create a break down in our legal system. You would then have to hold police officers responsible for people they did not arrest, firemen for people they did not save. They are removable if they commit crimes.
Gay marriage is a make work project for divorce attorneys. You can’t referee a break up without a marriage first.
Well I guess the will of the people of California who approved of the definition of marriage is that of one between a man and a woman doesn’t really mean much. So one activist, openly gay judge has decided that he all by his own self can over rule the will of the people. So where do we go from here? Well how about marriage between two men and one woman? Well why not? Or maybe three men marrying. Heck the sky’s the limit now, isn’t it. And hey why rule out marriage to horses? I hear they’re real “studs”.
According to this article,
Good for him.
This is now the Federal Law. All state definitions of marriage are unconstitutional. This is exactly like Roe v Wade.
There are several issues here:
1. How do we define marriage? There will be a definition. Which one? Will we allow polygamy, incest, etc. If the only argument is, “Who are you to tell me…” then we can allow pedophiles. Can pedophiles marry seven year olds? “Who are you to say?”
The definition of one man one woman is universally accepted, across history and across culture. The only variation is polygamy. No cultures accept same sex as marriage. This has nothing to do with California law, US law. We have as many Mormon friends as we do homosexual friends. Not all homosexuals want same sex marriage. We like them, but the definition of marriage is one man one woman.
2. Our Constitution protects our Liberty many way. One way is “Federalism”. Almost all issues should be decided at the state level. Only the delegated powers (Article 1, Section
are to be decided by the Central.
Another way to protect our liberty is “Checks and Balances”, that our elected Legislature should write our laws. We can vote for the issues we want. We can vote them out. We cannot vote out judges. When judges write laws, they become dictators.
Who should write our laws? a. a referendum where the people vote? b. the elected Legislature? c. unelected judges. Our judges have had a terrible record. Dred Scott (blacks are not people, they can’t sue), Plessy v Ferguson (Separate but equal), Korematsu (Japanese internment), Roe v Wade (abortion)
Our Life, Liberty and Pursuit of Happiness are best protected by following our Constitution. If we want same sex marriage, pass it at your state level, by referendum or by legislation. Don’t jam it through the federal courts.
3. This is now the Federal law. This decision overturns the definition of marriage in every state. This is the same situation as Roe v Wade. It doesn’t matter what your position is on abortion or same sex marriage (or health care, etc). The issue should 1. be decided at the state level, and 2. it should be a law written by our elected legislators. This is what our Constitution clear says.
4. This is not a Christian issue. The only people forcing their opinion on others are the ones who are going to a dictatorial court to write laws that our legislatures will not write. They are violating the rights of the majority of people who voted in the referendum. They are violating the Constitution. (I think this will be overturned in the Supreme Court)
What should the court be allowed to decide next? The Constitutuion is “To Secure the Blessings of Liberty to Ourselves and our Posterity.” Do we want our children to live in a free country? Then we need to follow the Constitution.
You state,
This is now the Federal Law. All state definitions of marriage are unconstitutional.
Not so. The District Court for the Northern District of California is not the Supreme Court, and its decisions are binding only in that district, and only until overturned, should that happen, on appeal.
Advocates of SSM argue that gay and lesbian couples should have the same rights and benefits as heterosexual couples. Further, advocates of SSM are not satisfied with domestic partnership which confers the same legal benefits, but argue that there must be no distinction between heterosexual and homosexual couples.
There are financial and legal benefits to marriage- taxes, insurance, community property, etc. If those are available to same sex couples in a committed relationship. why should those same benefits not be available to other couples in other types of committed relationships? If a single mother moves back home with her mom to cut down on expenses and get help with childcare, shouldn’t they be permitted to enjoy the financial and legal benefits of marriage? What if she’s moving in with her dad instead of her mom? These types of blended families are very common, so why don’t they have the same rights as same sex couples? If we made it easier to get into and out of marriage, then lots of people could enjoy the legal and financial benefits- of course, then the institution would be pretty meaningless, so it wouldn’t create an equivalence between heterosexual marriage and same sex marriage, and then we’d have to come up with some other social construct to serve the purpose that marriage has traditionally filled.
There was a time when the word matrimony was usually preceded by the word Holy. That is no longer the case. The concept of Holiness is no longer respected, in fact, more often then not, it is the object of ridicule. What is there about marriage that is Holy? It is the awareness that when a man and woman come together they have the opportunity to partner with G-d in the creation of life. And just as The Almighty accepted the obligation to provide his children with rules that they can live by, so to parents accept the obligation to nurture and provide rules for their children. That is what produces a Just society.
There is nothing new with homosexuality. Societies have accepted homosexual practices before. I will not provide a history lesson. Those who want to can easily find the results of the widespread acceptance of homosexual behavior in previous societies.
I will not be drawn into the argument about whether homosexuality is natural or that someone has no choice in the matter. Human beings always have choice. They can rule over their desires or be ruled by them. That is a fundamental axiom of the human condition. It is what sets human beings aside from animals who only respond based on their instincts.
Usually I disdain from discussions of sexuality as they are immodest. Sexual behavior is the province of the human beings involved. I have no wish to peer into an others bedroom.
However when being ” tolerant ” becomes the epitome of good citizenship, regardless of what is being tolerated, society is making a wrong turn.
http://www.youtube.com/watch?v=RSxojYoU8k0
The proponents of Proposition 8 offered very little substantive evidence
That is because the evidence was entirely irrelevant.
What is presented is entirely a question of law, not questions of fact. The meaning of the Fourteenth Amendment, and the meaning of the word “marriage,” do not depend upon what some expert has to say about the motivations of the voters or societal attitudes on homosexuality.
The issue revolved around whether the state had a rational basis. The rational basis is determined by facts. You would know this if you understood how courts analysis due process and equal protection claims.
Interesting argument, that the federal Courts are now the arbiter of what constitutes rationality.
You’ll pardon me if I’m snorting and snickering…and if you possess an IQ above room temperature, you might even be joining me in the chortling.
This beggars the question of whether the Fed Judiciary has jurisdiction over ALL rationality, or just Federal and State rationality?
As stated many times already, there is no legitimate argument that can be made to logically identify same sex marriage as being anymore justified, or moral, than a polygamist, incestuous, or any other consenting adult relationship.
If you lower the moral bar a little more, you can also make a case for pederasts and bestiality types being justified in engaging in their relationships. Thankfully our society hasn’t slipped that far.
What this has always boiled down to is that homosexual activists want their lifestyle embraced and celebrated by the greater society, not just accepted. If they just wanted to be accepted, civil unions would be the ticket.
The big question is: does society embrace and celebrate homosexually? Clearly, the answer is still no when the issue is put to the ballot box. In spite of that, the situation for homosexuals has improved dramatically as moral decay increases. Fifty years ago, homosexuality was a crime, now it is generally accepted, at least publically. They still aren’t happy though. Homosexual activists want us to yell it from the rooftops: “homosexually is wonderful and something to strive for!” I believe they are over reaching and will suffer a severe backlash if they don’t moderate. In fact, this may be becoming the case with all leftist ideology.
I believe we have reached the pinnacle of liberal ideology in government, education and the compliant press. Americans are beginning to wake up and reject their antics. Right and center right Americans, who make up the majority, are beginning to fight back on all fronts and have become much more vocal. I think the days of being cowed by political correctness are over.
With that said, I will state for the record that two homosexuals getting married is a disgrace and I’m not even religious. Truth be told, most people I know feel that way, but are too afraid to say it.
The argument against bestiality has always been that the animal can’t consent. We don’t require their consent to kill them and eat their flesh. I would think copulating with them would cause less harm, so I don’t really see how this argument can stand. Now that the definition of marriage is up for grabs, there’s no reason not to go whole hog (so to speak).
Dan Miller: “I have no personal views, religious or otherwise, on whether homosexual marriage is good or bad. ”
That is itself a moral judgment, worse in effect and motive both, than to have an opinion either way. In is the morality of vacuity. Of the vacuum.
So when GOD destroyed Sodom and Gomorrah because of their practices of man laying with man as with a woman you do not consider this immoral (worthy of the destruction of entire populations)? I do and so do many others that have read the Bible!
To those of you who oppose same sex marriage– why do you think same sex couples DON’T have a right to marry? And why do you think opposite sex couples DO?
In the United States, we believe that rights fundamentally go along with being human. And whether you believe that those rights are derived from Divine creation, or from the reality of human existence, it doesn’t really matter.
In certain cases, we delegate power to the state to deprive people of their right to life, liberty, or property– but only after they have first deprived other citizens of THEIR right to life, liberty, or property.
Can anyone make an argument that same sex marriage deprives any other citizen of something to which he or she has a fundamental right?
I already answered you in my #21 above:
“What “fundamental right to marry” is this clown talking about?
Before you get married, you have to get a license from the state. What “right” exists when you need to secure a license first?”
You have been proselytized into using wrong English… substituting the word: “rights” when you SHOULD be using the word: “privileges”.
It’s an all too common malady nowadays.
Until you begin using the correct language to identify what it is that you want, I’m afraid that I cannot help you or explain the “why” further.
“Before you get married, you have to get a license from the state. What “right” exists when you need to secure a license first?” Let’s see, how about my gun license? When you discuss (for starters) guns, cars, marriage, liberty etc, a majority of the culture now sees them all in a gray area, where rights and privileges no longer have the bright line drawn between them. If you can lose your gun rights by breaking the law, let’s say, has it become a privilege? Most people think of having a “right” to be married. You guys are fighting a losing battle on this one, despite your attempt to draw the bright line. I’m not talking politics here, just cultural common sense.
“I’m not talking politics here, just cultural common sense.”
Understood.
If people want it, it’s a “Right”. If they want it and can’t, (or won’t), afford it, it’s a “civil right”.
And thus did deliberate public mis-education destroy our nation’s character.
Rights exist independent of any government action.
–The government may require you to get a permit before starting a business– but you still have a fundamental right to start that business. The right to make a living is an important and fundamental right.
–The government may require you to get a permit to hold a political demonstration– but you still have a fundamental right to free speech.
–The government may require you to get a permit to build a house, or to make changes on your house– but you still have a right to do more or less what you want to, since the right to private property is a fundamental right.
–So even if the government requires you to get a license to get married, it doesn’t change the fact that freedom of association (or freedom to practice your chosen religion, if marriage is a part of it) is a fundamental right.
If, Bilgeman, you’re suggesting that marriage is NOT a fundamental right and that it can be denied by the state at any time, then I’m quite frightened.
I make a very strong distinction between “rights” that are granted people by the government, and rights that are natural. The former have no place in a free society. The latter ARE the basis of a free society. Marriage is one of those fundamental rights.
Nice comment, Mr. Hoffman, well reasoned out.
All that these fundamental rights that you mentioned are also, as you yourself pointed out, infringed to one degree or another by the State, and most of these infringements are arguably,(some more than others), accepted as just part of living peaceably,(more or less), in a society and culture.
So why should marriage be any different?
OUR society and OUR culture, (even in one as peculiar as California’s), have specifically stated it’s preference that marriage licenses be restricted to persons of the opposite gender.
“If, Bilgeman, you’re suggesting that marriage is NOT a fundamental right and that it can be denied by the state at any time, then I’m quite frightened. ”
Well, that marriage is not a fundamental right is exactly what I am stating, because it is a fact.
I was married at a Roman Catholic Nuptial Mass, and in order to receive that sacrament, my fiancee and I had to meet certain obligations established by Canon Law.
If we didn’t meet those obligations…guess what? No marriage, the sacrament is denied.
Other faiths, while your mileage may vary, have to my understanding similar requirements of those who would be married under the auspices of their doctrines.
So where do you even BEGIN to presume that marriage is a “fundamental right”?
It is a construct of your mind, sir.
And in pale imitation of the church(es), the establishment of government can likewise set requirements for it’s pronouncing two people as “married” under its authority and granting them what benefits may accrue to this.
Or it may not.
Theoretically, in our democracy, this is something that has customarily been reserved to the individual States, although that doctrine of the government faith, (American Communion), seems to be at issue here.
Yes. The rule of law continues to crumble in the United States. Can anyone deny? A small, privileged and protected elite, Thomas Sowell’s “Self-Anointed,” Angelo Codevilla’s “Ruling Class,” are pressing their luck.
We have dealt with difficult divides in the past. Re-discover American history after the Missouri Compromise to the Gettysburg Address. One cannot predict how the future might unfold. Stephen Douglas, Roger Taney, John Calhoun, Jefferson Davis – Americans all, the elite of their time. How we will forget.
The profound moral divides of today will be stoked by the continuing collapse of our economy as the great deleveraging continues. Ignore, postpone, preempt, deny, refuse, restrict, impose your personal judgment and deal with the consequences. Find solace and support for your views in the NYT, the Washington Post, NPR. All is well.
The “elite” are not leading, but myopically entrenching. Their foundation turns to sand based on highly personal preference. This is not colloquy. This is diktat.
I agree with most of the comments claiming that the views of the people of California as expressed by their approval of Proposition 8 should have had substantial weight. However, I think the proponents blew it by calling very few witnesses with the requisite expertise compared with the massive “expert” testimony put on by the opponents. The testimony of the opponents’ witnesses appears essentially to have gone unchallenged. Unless the proponents objected to the testimony of the opponents’ witnesses, on the grounds of irrelevance, lack of expert qualification, bias or some other cognizable reason, they have little with which to challenge their testimony on appeal. I don’t have the voluminous transcript of the trial, but hope that the Proposition 8 proponents are going through it line by line; they should be.
The proponents had initially provided a long list of witnesses (eighteen, I seem to recall). Then, the judge announced (improperly, in my view) that the trial would be televised. This apparently caused the proponents’ witnesses lots of concern. The Supreme Court promptly slapped Judge Walker down on that point, and the trial was not televised. Nevertheless, the proponents failed to call most of their proposed witnesses; I seem to recall that the proponents called only two. I don’t know why most of the rest were not called to testify or what they might have said, but not having them testify probably didn’t help them.
When a trial judge seeks evidence one side deems patently irrelevant, that side should object, for the record; in some cases, and this may have been one of them, it should also offer written briefs articulating its legal arguments with appropriate citations to authority. If the judge is unlikely to agree it is even more important to do so. If declines to receive the briefs, so much the better on appeal. Having done so, it should offer testimony on the point (if it has any which is worth presenting at least for purposes of appeal and which won’t boomerang) while preserving the objection that such evidence is irrelevant; the trial judge is King during the trial, and making a record for appellate purposes is one of the most important things trial counsel can do, particularly in a case where there is a suspicion that the judge may be predisposed toward the other side.
Should the judge have recused himself? Was he asked to do so? I am not aware that he was; perhaps he should have been. Should Black judges recuse themselves automatically and sua sponte from every case involving Blacks v. Whites? Should White judges recuse themselves automatically and sua sponte in every case involving Blacks v. Whites? Should observant Roman Catholic judges recuse themselves from every case involving abortion? Should Unitarian judge recuse themselves from similar cases?
On appeal, the position taken by California’s governor that the decision was just peachy strongly suggests that the proponents won’t have his support or that of the state on appeal; nor did they during the trial. That probably didn’t help at trial and probably won’t help during the appeal either.
Right now, I’d give the chances of a successful appeal a less than 20% chance of success. I’m anxious to see what both sides say, but it will doubtless be months before the Ninth Circuit rules; the 9th Circuit is not known for highly conservative decisions.
Mr. Miller:
” However, I think the proponents blew it by calling very few witnesses with the requisite expertise compared with the massive “expert” testimony put on by the opponents. The testimony of the opponents’ witnesses appears essentially to have gone unchallenged.”
Why do you think that that is?
Is the burden placed upon the People to justify what was their democratically expressed will on a political matter within their own state?
To whom? Some Federal judge?
Are we ruled by a tyranny of the Federal Judiciary when elections don’t go the way one side would like, and by popular vote when it does?
Contrary to what the Gay Lobby keeps yodelling, marriage is not, and never has been a right for either heterosexuals or homosexuals.
It is licensed by the states, and is therefore open to whatever notions that the majority of a state’s voters may express.
For the same reason that some states have the Death penalty and others do not.
This is not within the Federal government’s Powers.
In a legal proceeding, the plaintiff has the burden of going forward with relevant evidence in support of his complaint. See my earlier comment on relevant evidence. Then, the defendant has the burden of rebutting the plaintiff’s evidence. As noted there, it’s up to both sides to preserve on the record any errors made by the judge for consideration on appeal. Like it or not, that’s why we have specialists called attorneys. This is true in any legal proceeding.
good grief! what is with all the apocalyptic comments here? we’ve had equal marriage rights in mass.for about what?..six or seven years now? has the sky fallen? nope. everything still hunky-dory in iowa? yep. have canada or spain, mexico city or d.c fallen into the ocean or been struck by lightning? nope. any huge outbreaks of incest, polygamy, or bestiality? not that i’ve heard of.
all you folks who rant about the-end-of-the-world-as-we-know-it because a few more loving couples can legally register their relationship are simply baring your nasty prejudices against a fairly substantial percentage of humanity. shame on you.
1 – The will of the people should trump attempted legislation from the bench. BUT, when I consider the evident lack of wisdom in a populace that could elect B.H. Obama; I am compelled to wonder about a point that once seemed so very clear.
2 – When soberly considered; ‘Separation of Church and State’; would mean that any ‘Church’ doctrine should not dictate State or Federal Laws.
3 – Also requiring sober consideration; ‘Freedom of Religion’ would mean protecting the rights of those who choose not to be religious.
Note to those who consider themselves conservative or libertarian by whatever degree: Remember the simple advice given to all new parents;
‘pick your battles’. Practice wise discernment when faced with diversions.
I agree, particularly with #3.
Homosexuals Win a Battle But not the War
Once again, a federal court has overturned, if not spat upon, the will of the people.
As in Massachusetts last month where another federal judge threw out key provisions of DOMA, the Defense of Marriage Act, saying “that it is unconstitutional to define marriage only as a union between a man and a woman,” California’s Proposition 8 was struck down by Chief U.S. District Court Judge Vaughan Walker on the same grounds.
Prop 8, passed on November 4th, 2008 by a vote of 52.5% to 47.5% in one of the most liberal states in the nation, read simply, “Only marriage between a man and a woman is valid or recognized in California.”
That date, of course, will live in infamy as the date on which Barack Hussein Obama was elected president of the United States. Californians helped elect him, apparently oblivious of the fact he forcefully opposed DOMA, the federal version of Prop 8.
Inconsistently, the pro-gay president has also said he does not support same-sex marriage.
So, the battle lines have been re-drawn just as they were before and after the Proposition 8 vote, and battle lines are not an exaggeration.
Back in 2008, the campaign by homosexuals to defeat the ballot measure was marked by threats of violence against its backers and, following passage, homosexuals launched a nationwide, virtual rampage in protest.
Their targets were primarily Catholics and Catholic churches and Mormons and their Church Jesus Christ of Latter Day Saints. When those efforts at intimidation and calls for a reversal failed, gays took to the courts as they always do to nullify the majority opinion.
(For more details on the events before and after November 4th, 2008, see “The Gay Battle against the Will of the People Parts One and Two,” http://tiny.cc/fvcwu and http://tiny.cc/6kgns)
That battle was re-joined before and during the California case, Perry vs. Schwarzenegger, and the decision was a foregone conclusion.
Governor Arnold refused to defend his own state’s law, the suit was filed in San Francisco which voted down the proposition 3 to 1, and Judge Walker agreed to have the proceedings put on YouTube against the recommendation of the U.S. Supreme Court. . .
(Read more at http://www.genelalor.com/blog1/?p=1828)
Gay marriage and its pro/con arguments aside, where does any judge get off making pronouncements from the bench like this:
An “evolution in the understanding of gender?” The “time has passed” for “genders” having “distinct roles” in marriage? Who the hell does he think he is making these assertions on behalf of society? Judge Walker should keep in mind that his little world is San Francisco where confusion about “gender” and its “reassignment” are big issues. In the wider world, we regard “gender” a function of language and concern ourselves mostly with the sexes of which there are two. And any number regard the roles of male and female as quite distinct.
The Governor and Attorney General of California have asked Judge Walker not to stay the effectiveness of his order rejecting Proposition 8 as unconstitutional. The judge has not yet ruled on the stay motion filed by the proponents of Proposition 8.
Guys, I don’t understand your reasoning at all. Pardon me for not reading all of the comments, but my impression from those arguments I did read seem to be saying the following (with my answers to why gay marriage should be allowed afterward):
1. Fear that gay marriage will lead to marriage between species: The animal can’t consent.
2. Fear that gay marriage will lead to child-adult marriage: The child cannot legally consent. Any parent that allows the marriage of their child with an adult is making a life-long decision that supersedes the child’s free will when becoming an adult.
3. Fear that gay marriage will lead to polygamy: Here I don’t have an answer. Maybe because as long as its between consenting adults, polygamy should be allowed.
4. Fear that gay marriage will lead to sibling marriages: Here, any marriage between two consenting adults that may increase the risk for deleterious effects in their offspring would have to be made illegal. Even between two people of below average IQ. And if tests are available to eliminate that risk, that fear seems immaterial.
Finally, if marriage is for the protection of mothers and children, do we have to disallow marriage between a man and a post-menapausal woman? A woman and a man with a vasectomy?
Keith,
Many of these questions have been taken up higher on the thread.
In brief, let me respond, using your same numbering system:
1. A committed activist could easily challenge your notion that an animal can’t consent to sexual relations and/or cohabitation with a human. The fact that such things happen in life free of physical restraint is enough to show that.
(As a traditionalist, I tend to focus more on gay marriage’s influence on polygamy and incest arguments, so I offer this rebuttal by way of playing the skeptic, not as my principle line of challenge. You asked, though, so I’m answering, as distasteful as it may be to discuss.)
You should note, however, that you’re assuming something way too facile — namely, that your simple declaration that “an animal can’t consent” inherently holds water. A committed activist to a particular cause, however, will challenge you on every point. It may be easy to ignore that now, as such an activist doesn’t have prominence, but to be intellectually honest, one needs to acknowledge the counterarguments.
Your rebuttal seems to hold water for now — but only for now. Why does it seem fine now? Because (1) the majority of people agree with you that bestiality should not be permitted, (2) most people have a very strong “ick factor” when even thinking about the topic, and (3) there is not a committed, well-funded fringe group with sympathy from the media demanding rights on this point.
However, all three of those things were true at one time of homosexuality, so the possibility is not beyond the realm of plausible deductive reasoning for such claims to be extended to other sexual attractions.
An important caveat: This is not to equate homosexuals with animals. It’s simply to say that if we accept the notion that sexuality is principally or exclusively an orientation rather than a choice, limits on that sexuality become (as we have seen) treated as an infringement of rights. Add charges of “specieism” (not a made up word, I’m afraid), and the problem is not as cut-and-dried as you make out.
2. In terms of children: you, again, express numerous unexamined assumptions. Why can a “child” not “consent”? Marriage throughout history frequently occurred with girls in what we now call their pre-teens. This notion of “becoming an adult” is a modern one, culturally determined, and not therefore absolute. A committed activist could easily call into question the age of 18. What is magical about that age? Why not 17? Why not 16? And so on.
3. You’re more honest than most in admitting you’d allow polygamy. I’d note here that this, though, is the very watering down of “marriage” we traditionalist have been concerned about from the beginning. It signifying everything, it means nothing.
4. First, marriage between folks of low IQ has already been expressly ruled as protected. You couldn’t limit it. As noted in earlier posts, with genetic testing marriage among family members would also have to be permitted. Again, you’re more honest than most in saying you’d be fine with incest and polygamy. But this raises the question: What does “marriage” mean if it signifies everything? Answer: it means nothing. If you have twenty “best friends” does the word still mean the same thing? No. It empties the word of its meaning.
On your last points: policing the reproductive capacities of heterosexual couples would require undue government intrusion. We can tell *immediately and without fail* that two homosexuals cannot reproduce; we can’t do the same with heterosexual couples. The dividing line asserts itself as a clear and logical choice for defining marriage.
Your additional post is flawed in that it *assumes* a RIGHT to homosexual “marriage”. At issue here, rather, is the definition of marriage itself. Everyone has a right to marry at present. The question is whether individual preferences for a different arrangement constitutes a right.
Here, I would take issue with the too-facile assumption in American public discourse with the notion of “orientation”. It seems on shaky ground to me.
If evolution tells us all nature desires to pass along its genes, why would it “orient” anyone to extinction? Further, if sexuality is solely or principally a matter of “orientation”, does it hold true for all the other forms of sexual desires (zoophilia, necrophilia, paraphilias of all sorts)? The shaky social science (made shakier by politicized universities with leftist agendas) seems uncertain ground for such radical policies).
But leaving the question of “orientation” aside, the real matter, again, is the definition of marriage, not if someone has a “right” to a particular redefined variant of that institution (a variant made out of whole cloth in the last 20 years or so).
I can’t, for instance, declare I wish to “marry” my boat and say the courts must protect me, a persecuted minority from the majority (no matter how sincere or intense my particular paraphilic orientation may be). First, we must determine if “marriage” should or must incorporate my newly devised schema — and that is where we are right now in the debate.
In short, the question at issue is “What is marriage and why is it so?”, not “How can you, the majority, keep me from being ‘married’ in whatever sense I, as a ‘minority’ of some sort, personally choose to define it?”
This is why the stakes are so high and why traditionalists are on the right side of the debate.
The nation simply cannot expect to “add” homosexuals to the marriage paradigm and expect everything to continue without serious repercussions. (That only works if one shuts down thinking and doesn’t wish to follow things out to their logical conclusions — something a sound-bite culture obsessed with gauzy notions of “tolerance” is all too willing to do.)
Oh, and one of the major responsibilities of the judicial branch is to protect the rights of the individual from the majority. So concerning the recent ruling, “will of the people” arguments don’t hold.
Keith,
I clicked reply to your #43 message, so my response to your arguments (including your #44 message) is right above.
Let me add something else, while we’re delving into issues that once were thought either unthinkable or bizarre enough not to warrant open discussion.
As noted above, I think there’s a lot of hazy thinking informing our public debates about sexuality and marriage. If it was just a question of what private citizens did in their bedrooms, I think most people — conservatives and leftists alike — would tend to leave it at that.
But the question of “What is marriage and why is it so?” gets us looking at the assumptions informing the debate. And there are a lot of muddled predicates to the whole mess.
Let me end with an illustration in the hopes of showing that the kinds of inferences we’re discussing here are no mere flights of fancy but rather real outgrowths of the kinds of thinking now common in our public discourse.
The illustration is not directly about gay “marriage”. It’s only to show how the predicates of activists’ arguments actually DO get carried out to their logical conclusions — and how building public policy on such shaky grounds in inherently fraught with trouble.
So, the illustration:
It has been increasingly fashionable in ‘educated’ circles to note that if a man feels he is truly a woman (but just born with the wrong genitalia), he is in fact “transgendered”.
(One can reasonably debate this, of course. I happen to think that if a man considers himself Napoleon, he is neither “transnational” not “transhistorical” but mentally disordered and in need of serious, compassionate care — care, that is, that takes his healing and not the indulgence of his disorder of the utmost importance.)
Since this understanding of gender identity and sexuality has taken root in some circles, it is now suggested — with all seriousness among certain folks — that some people are really ANIMALS born into human bodies. This advocacy group identifies as “furries” and receives among leftist circles the serious attention and compassionate “tolerance” given to “transgendered” folks.
See, for instance, the thread below (not from a right-wing site but from the uber-leftist site of all, The Democratic Underground). You’ll notice how the unmooring of sexual identity can lead to some preposterous conclusions. Harmless enough, perhaps, to the rest of society — until public policy is advocated based on these new “understandings”.
The point I seek to make with this illustration is a limited one. (No one is saying the “furry” movement is directly connected to gay “marriage”.)
The point of the illustration is this: Ideas have consequences. When someone advances a radically new concept, it’s rational to test it out, to think of all its repercussions, and to counter precipitous and ill-conceived ideas — especially when sophistry seems so prominent. To do so is neither “bigotry” nor “intolerance” and it’s not being outlandish. If it’s conceivable, a group will push for it. Without rational arguments to counter, it will become normalized. And, so, having one’s eyes open and exhibiting some forethought is a good thing.
Here’s the link: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=221×70717
“I happen to think that if a man considers himself Napoleon, he is neither “transnational” not “transhistorical” but mentally disordered and in need of serious, compassionate care — care, that is, that takes his healing and not the indulgence of his disorder of the utmost importance.”
Howlingly funny! Best laugh all week!
Its no one elses business whether a couple of the same sex decide to get married. If you truely are religous then you know that a christian is not to judge anyone. This is a free country and you shouldn’t have to get a license to marry. If someone believes it is the right thing to do, but it is not, then it is on them. People need to learn to mind their own business and worry about themselves, rather then how uncomfortable “equal rights” may be.