the proper perspective
 

as only Jon Stewart / the Daly Show can...

http://www.thedailyshow.com/watch/th...lifornigaytion

Really! But the mid-terms are coming up. Dems arn't going to touch giving praise. The GOP is hot on the tax-cut trail and wanting to scare everyone about the deficit. Neither wants to deal with this now.

Obama has always stated he opposes same-sex marriage (he's a man and a woman only, rather Christian kinda guy) and has only spoken support for civil/domestic partnerships for gays and lesbians.

I kind of like the quiet. Feels more like this is starting to be viewed as a non-issue in many ways, as in [I]sort of normal[/I].

While Obama has not supported same sex marriage specifically, he is for some very fundamental protections with regard to property rights, federal benefits, etc. for same sex civil unions. It's not perfect, but it's a far cry better than we've seen before now. Maybe I'm settling, but I'd take it....

Here's a link to a good summary.

I think I shall print this out and make a t-shirt to wear when I am facing bigots who say that *our* quest for equal civil rights being compared to the civil rights movement is shameful.

That was fantastic- LMAO

Colbert was hilarious too:

http://www.huffingtonpost.com/2010/0..._n_673097.html
:rainbowAfro:

That is just not true and I posted earlier (Post 317) about his unequivocal PUBLIC support for same sex marriage when he was running for Senator.

He, unfortunately, changed his position b/w his time as Senator and his Presidential run.

He also belonged, when living in Chicago, to the United Church of Christ which, in 2005, "became the first mainline Christian denomination to support same-sex marriage officially when its general synod passed a resolution on Monday affirming "equal marriage rights for couples regardless of gender."


http://www.nytimes.com/2005/07/05/na.../05church.html

http://www.huffingtonpost.com/2010/0..._n_672836.html


Marcus@huffingtonpost.com | HuffPost Reporting

Obama's Opposition To Gay Marriage: Genuine Or Political Calculation?

First Posted: 08- 6-10 04:45 PM


Yesterday's ruling overturning California's ban on gay marriage and the White House's mixed response revived a question that has long frustrated gay Americans -- why doesn't President Obama support gay marriage?

Soon after the decision by District Court Judge Vaughn Walker, the White House issued a statement condemning Proposition 8 as "divisive and discriminatory" without elaborating further. On Thursday morning, presidential advisor David Axelrod told MSNBC that "the president does oppose same-sex marriage, but he supports equality for gay and lesbian couples, and benefits and other issues, and that has been effectuated in federal agencies under his control."

And certainly, the president has pushed through some major reforms benefitting gay couples such as extending hospital visitation rights for same-sex partners and he has asserted his intention to repeal Don't Ask, Don't Tell. He has long expressed his opposition to the Clinton-era Defense of Marriage act, which defines marriage as a union between one man and one woman and states that no states needs to treat as a marriage any same-sex relationship considered a marriage in another state. But his Department of Justice has defended DOMA in federal courts, arguing that it is appropriate and justified.

When Obama ran for the Illinois State Senate in 1996, he gave statements to a Chicago paper that expressed "unequivocal support for gay marriage."

But since then, and during his later emergence on the national political stage, four words have been missing from his often-stirring rhetoric: "I support gay marriage."

Obama even hinted at that possibility in a 2004 interview with Tracy Baim, the publisher of Chicago's largest chain of gay and lesbian publications. He told her that he opposed gay marriage, explaining:

I think that marriage, in the minds of a lot of voters, has a religious connotation. I know that's true in the African-American community, for example...


What I'm saying is that strategically, I think we can get civil unions passed. I think we can get SB 101 passed. I think that to the extent that we can get the rights, I'm less concerned about the name. And I think that is my No. 1 priority, is an environment in which the Republicans are going to use a particular language that has all sorts of connotations in the broader culture as a wedge issue, to prevent us moving forward, in securing those rights, then I don't want to play their game.

Some gay marriage proponents are skeptical that Obama personally opposes gay marriage.

"Every thing we know and admire about President Obama makes the claim that he doesn't support the freedom to marry very unconvincing," says Evan Wolfson, the director of the nonpartisan group, Freedom to Marry, adding that the president's public statements are more important than what's in his heart.

Wolfson says Obama is falling short of his promise because of his unwillingness to embrace what his professed support for equality requires, which he says is the equal right of gay couples to marry. Noting the president's opposition to DOMA, he asks: "If he's willing to be against 'against marriage', why can't he just be for marriage?"

Obama's deputy campaign manager during the 2008 race, Steve Hildebrand, who is openly gay, decried the tendency of prominent Democrats to support civil unions rather than gay marriage, calling it a "cop-out. Most politicians aren't going to have the courage to be that strong."

He especially decried the use of religion by Obama and others as a basis to explain their decision not to support gay marriage, blaming the media for not pursuing that line of questioning. "Where have you seen a reporter call him on that? He uses his religion to explain his views but he was a member of the United Church of Christ, which fully supports marriage for same-sex couples."

But in the end, the president's personal views (Hildebrand says Obama has "come close" to supporting gay marriage) don't matter as much as his public policy positions. And he takes issue with the administration's actions, pointing out that the president's public opposition to Prop 8 and DOMA clashes with his Justice Department's defense of DOMA in the courts. "I would love to see the president campaign vigorously against those discrimination attempts but I haven't seen it with any president yet."

Obama and other Democrats' position on the issue stands in contrast to other political figures who made the transition from gay marriage opponents to supporters.

Most prominently, Bill Clinton, who opposed DOMA when it was passed during his administration but opposed gay marriage, poignantly described in 2009 how he changed his position:

"I realized that I was over 60 years old. I grew up in a different time ... and I was hung up about it," Clinton said. "I decided I was wrong."

Of course, Clinton was long out of office at that point. Similarly, Laura Bush expressed her support for same-sex marriage this past March, over a year after her husband left office. And Cindy McCain joined the campaign to oppose Prop 8 a year after her husband lost the presidential election to Obama.

Certainly, it is possible that these conversions involve real changes of heart and not political calculation. Roberta Achtenberg, trustee of California State University who served on Obama's transition team, says that she is not of the opinion that all leaders expressing some equivocation about gay marriage are doing that out of political expedience."

She says that when President Obama says he opposes gay marriage, she takes him at his word. And she notes the real regional and generational differences on the issue, noting that while Congress is largely against gay marriage, most Democrats in California's legislature support it.

Those politicians who have taken a view on the issue out of political expedience may wind up regretting their decision, says Freedom to Marry's Wolfson: "If they are making a political calculation, it's a very costly one for them and the country because it's not appeasing any of their opponents and it's disappointing and impeding the strength of their base." He adds, "People may respect people they disagree with but not inauthenticity and pure political calculation -- that doesn't ring true... I don't think there's a single voter that Obama would lose because he openly embraced freedom to marry instead of everything but marriage."

The White House did not return a request for comment by the time of publication.

With his opposition to gay marriage and support for civil unions and just about every other aspect of civil rights for gay couples, Obama joins a long line of politicians including almost all of his 2008 Democratic primary competitors such Hillary Clinton, Joe Biden, Chris Dodd, John Edwards and Bill Richardson.

Their unwillingness to support gay marriage strikes some observers as an act of political calculation that may clash with their personal tolerance for such unions. The sense is that they fear their open support will rebound politically and inspire a backlash from conservative voters.

Schwarzenegger urges resumption of same-sex marriages
(AFP) – 26 minutes ago

LOS ANGELES — California Governor Arnold Schwarzenegger weighed into the same-sex marriage legal battle Friday, filing a motion demanding gays and lesbians be allowed to resume tying the knot immediately.

Schwarzenegger's legal bid came as a federal judge who overturned the state's ban on same-sex marriage mulled a request by supporters of the ban to bar further homosexual weddings until the appeals process had been exhausted.

"The Administration believes the public interest is best served by permitting the Court's judgement to go into effect, thereby restoring the right of same-sex couples to marry in California," Schwarzenegger's motion said.
"Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect.

"As the Court has pointed out, California has already issued 18,000 marriage licenses to same-sex couples without suffering any resulting harm."

It was not immediately clear when Judge Vaughn Walker would rule on when same-sex weddings would resume, having initially indicated that a decision could be made on Friday.

thought this was cute :)

http://gothamist.com/attachments/art...06gaypride.jpg

photo credit: Ira Monko

Huff Post article on the Fox News poll. :)

Heh. I voted a few (50) times. :P

I may have told a few people in my office about it. They may have told their friends about it. Some of those friends may be in other countries that think we're way behind the times. One of said friends is personally taking responsibility for like 5 of those percentage points. :)

My same friend that helped with the Faux News poll, just sent me this.

http://www.huffingtonpost.com/2010/0..._n_673313.html

Not really same sex marriage focused but I never know where to post stuff. Do we have an "Interesting But Not Breaking News" thread that I haven't found yet?

dang...........

gotta love those lame ducks...............

(the above quote came from the previous Huff Post article)

I think of two things............Harvey Milk says 'ya gotta give 'em hope'............and my sonny boy says 'do the right thing no matter the consequences'

Supreme 'Double Rainbow': Two Marriage Equality Rulings Head Toward High Court
http://www.huffingtonpost.com/2010/0..._n_673653.html

Boies vs. Perkins
 

Olsen on Fox--love it.
 

Guess we'll have to agree to disagree because as I see it ( and as law will reflect), unless it is marriage, it will NOT be equal. It will always be some sort of "lesser than" law and will never cover the over 1000 rights we are denied because we can't get married.

It seems Obama tends to do a hella lot of backtracking and performing of half measures when it comes to the basic human rights that he was so very much in support of while campaigning. It's unfortunate that campaigns become more important than doing the right thing and taking care of business. Read : immigration reform which he promised to address within his first 90 days in office and now says basically he won't touch til after midterms. I don't single him out, as all politicians do this. They are merely mouthpieces for their party.

Yeah! Kinda restores faith that not EVERY white male conservative is equated to biggot supremist asshole as is too often painted.

Does anyone know when the ruling on whether or not the stay remains in place is going to be published?

I am watching this closely, even though we were already married!

Prop 8 trial tracker
 

On the Prop 8 Stay and Standing
by Brian Devine

I predict we’ll have Judge Walker’s ruling on the Motion to Stay either today or tomorrow. And I predict he’ll deny the stay, allowing same-sex couples full marriage equality for the first time since that bittersweet night in November 2008.

While we wait, let’s take a look the issue of “standing” and what it means to the stay and the appeal of Judge Walker’s opinion.

What’s “Standing”

Article III of the US Constitution gives Federal Courts the limited jurisdiction to decide actual cases or controversies. This is referred to as “Article III standing.” To have standing to bring a lawsuit or to pursue an appeal, a party must show that he or she has suffered an: “injury in fact —— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”

To appeal a decision, the Prop 8 supporters must show that allowing same-sex couples the right to get married somehow invades their rights and causes them harm. Remember, though, that Judge Walker already ruled that “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” In other words, if Prop 8 did not exist, the rights of those people who support Prop 8 would not be affected. Consistent with this holding, Judge Walker should find that the Prop 8 supporters do not have standing because they will not suffer any “concrete and particularized” harm if Prop 8 is not enforced.

The best argument that Prop 8 supporters can make is that they would be injured by the simple fact that California is not enforcing a law passed by the People. But the Supreme Court has held that “[an] asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” (Allen v. Wright, 468 U.S. 737, 754 (1984))

I think there’s a good chance Judge Walker will find that the Prop 8 supporters lack standing. The only parties in the case who do have standing (the Plaintiffs and the State) have not appealed and have affirmatively said that they do not want a stay. This means that if Judge Walker finds that the Prop 8 supporters do not have standing, he also will deny the motion to stay.

There is more, but I didn't have enough time.....sorry!

The rest....
 

Brian Devine....

There is more…

Didn’t Judge Walker Already Rule That The Prop 8 Supporters Have Standing?

No. Judge Walker decided that the Prop 8 Backers could intervene, not that they have Article III standing. To intervene in a case, a party does not need to show that they have standing. That’s because a “case or controversy” already exists. (The Plaintiffs had standing to bring the case because they were being denied their constitutional right to get married.) Since both the Plaintiffs and the Defendants already had standing, the Court had jurisdication over the “case.” From there, deciding that the Prop 8 supporters could intervene in the case was an easy call. The law of the Ninth Circuit holds that a “public interest group may have a protectable interest in defending the legality of a measure it had supported.”

But this does not mean that it has standing. To the contrary, on several occasions the Supreme Court has recognized that a party who was allowed to intervene in litigation does not necessarily have standing. For example, the Supreme Court said:

[I]f the original party on whose side a party intervened drops out of the litigation, the intervenor will then have to establish its own standing to continue pursuing litigation. (Diamond v. Charles, 476 U.S. 54, 64, (1986))

Could This End Here And Now?

Maybe at the Ninth Circuit. While the popular spin is that this case “is certain to be resolved at the Supreme Court,” that’s not entirely clear. If Judge Walker rules that the Prop 8 supporters do not have standing, that does not necessarily mean they can’t appeal. The Ninth Circuit will independently decide the issue of standing. But if the Ninth Circuit decides that the supporters of Prop 8 do not have standing, it will reach only the issue of standing, not the much harder question of deciding whether Prop 8 is constitutional.

If A Stay Is Granted, Can The State Still Issue Marriage Licenses?

Yes. All a stay does is prevent the Court Clerk from entering judgment. It does not erase Judge Walker’s decision, and it does not prohibit the defendant (the State) from voluntarily complying with the decision by issuing marriage licenses to all couples, regardless of gender. A Federal District Judge has declared that Prop 8 is unconstitutional. Even if judgment in the case is stayed pending appeal, it would be perfectly reasonable for the State to decide that it will stop enforcing Prop 8 until and unless Judge Walker’s decision is reversed by another Court.

If the State began enforcing Judge Walker’s opinion on its own, I would expect the Prop 8 supporters to file a new lawsuit (in State Court) seeking an injunction requiring the State to enforce Prop 8. This might bring back memories of 2004 when the Supreme Court held that the City and County of San Francisco did not have the authority to issue marriage licenses to same-sex couples. However, that case (Lockyer v. City and County of San Francisco) was based on California Constitution Article III, section 3.5 which prohibits administrative agencies from deciding on their own to not enforce laws based on their belief that the law is unconstitutional. However, if the Governor or the Attorney General made that decision, section 3.5 does not apply. I haven’t researched it, but I don’t know that anything would prohibit the Governor or the Attorney General from deciding to enforce a District Court’s order declaring Prop 8 invalid, even if that judgment were stayed pending appeal.

So with that, we now wait for Judge Walker order on the Motion to Stay. . . Stay tuned . . .

I have had a great deal of time to think about this since the beginning of the Federal trial, and I will share my non-legal minded thoughts.

The smartest thing that the Prop 8 supporters could do is to let it all drop with Judge Walkers ruling. Now, being the hateful bigots that they are, they will find that impossible....but just suppose they did? The matter would end in California until another State went to Federal court and had the issue decided for THEM. They might win they might lose, BUT the matter would still be at the State level and would take years/decades/forever to be country wide going to court State by State.

If our case goes to the 9th circut court of appeals, then it will most likely go to the Supreme Court. Now that doesn't mean they will take up the matter, but if they do then Equal Marriage in the United States might happen within my lifetime. That is something I never thought possible...it makes me get all teary eyed just thinking about it.

As far as Transgender rights, I suppose that equal would mean for everybody....but I've been wrong before!

I hope I've been clear!

Blessings (f)

Here's an excerpt from Towleroad that may help clarify, iamkeri:

(the whole article is great if you wish to read more)

--------

Logistics

You might be wondering how Judge Walker's well-reasoned and thorough opinion might impact our world tomorrow. In a word, it won't. While the Order allowed California to start issuing marriage licenses to same-sex couples, the relief has been stayed pending appeal to the Ninth Circuit.

The parties will prepare their briefs in the coming months and deliver oral argument before a 3-judge panel on the Circuit. Due to the high profile nature of the case, any decision by the panel will likely result in "en banc consdieration" by the entire Ninth Circuit. That means that after one round of appellate hearings before three judges, another round in front of every Ninth Circuit judge will likely take place. Then the case may be fast-tracked to the Supreme Court.

That is, unless the issue becomes moot. How? Marriage equality supporters are already gearing up for a push to overturn Prop 8 on the 2012 ballot. If current polling is accurate in suggesting that a majority of Californians now support marriage equality, a pro-equality victory at the ballot box before the Supreme Court takes the case may obviate the need for a Supreme Court hearing.

Some Substantive Questions

This decision is momentous. Do not forget that. Never before as a federal court declared that the gay community warrants special protection and never before has a federal court declared so clearly that marriage discrimination is so irrational.

But there is a legal mine field awaiting marriage equality lawyers going forward. For one thing, the Supreme Court, as currently constituted, is a conservative institution and among the most conservative Supreme Courts in our history. It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees.

More specifically, strict scrutiny is a tough sell. Supreme Courts since the 1970s have moved away from strict scrutiny jurisprudence with some zeal even to the point of contorting themselves into pretzels to create a new type of standard of review -- so-called "intermediate scrutiny" -- for gender classifications simply because the Court could not muster a majority for expanding the list of Warren Court era "suspect classifications." Whether the Court will be willing to do today what it would not do decades ago is an open question.

Therein lies the genius of Judge Walker's opinion. He touches on strict scrutiny but doesn't need it. His strategy may prove to be our saving grace in the end.

Op Ed from Margaret Hoover
 

Margaret Hoover, great-granddaughter of President Herbert Hoover, penned an op-ed urging conservatives to rethink their opposition to the freedom to marry.

Opinion
My Fellow Conservatives, Think Carefully About Your Opposition to Gay Marriage
By Margaret Hoover

Published August 10, 2010
| FoxNews.com

As a conservative Republican representing the next generation of attitudes towards gays and lesbians, I encouraged the readers of FoxNews.com last January to take a careful look at the arguments and evidence in the Prop 8 trial, Perry v. Schwarzenegger.

The case was presented by a constitutional conservative, Ted Olson, who helped found the Federalist Society, successfully argued Bush v. Gore to the Supreme Court (among fifty-five other cases), and was George W. Bush’s Solicitor General. Working with his Democratic legal partner David Boies, Olson sought to prove that marriage equality is a constitutional question, not a partisan issue.

The trial assembled a thorough record of evidence that Prop 8 unreasonably discriminates against gays and lesbians, relegating them to second-class citizenship. Their plaintiffs, Kristen Perry and Sandy Steir, Paul Katami and Jeff Zarrullo, are the face of the marriage equality movement. They wish to share in the myriad societal, economic and psychological benefits of marriage, which the Supreme Court has ruled is a fundamental right owed to all Americans. By denying them the right to marry because of their sexual orientation and gender, Olson and Boies argued that Prop 8 violates the Due Process and Equal Protection clauses of the 14th Amendment, and is unconstitutional.

Among the seventeen witnesses Olson and Boies called to the stand were experts in areas of psychology, political science, economics, socio medical sciences and history.

Economists testified to the economic harm caused to same-sex couples and their children; political scientists to their political vulnerability; sociologists and psychologists to the societal stigma associated with homosexuality; historians to the history of marriage shedding its discriminatory restrictions over time.

Other testimony included Ryan Kendal, a young gay man who failed a “conversion therapy” attempt to alter his sexuality from gay to straight and the Republican Mayor of San Diego, a former police chief, who testified that “if government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing.”

Surprisingly, the defense’s two lone witnesses also offered compelling reasons to favor of marriage equality. They testified that allowing homosexuals to marry would increase family stability and improve the lives of their children; that sexual orientation is unchangeable; that gays and lesbians have faced a long history of discrimination, including Prop 8.

Another defense witness’ testimony had to be withdrawn as it proved the discriminatory nature of the Prop 8 campaign, which the Plaintiff’s lawyers then submitted as evidence to embolden their case.

The trial testimony is available for the world to review at American Foundation for Equal Rights and demonstrates that the defense could muster no sound line of reasoning for the laws to discriminate against gays and lesbians.

Now, with a decision handed down that social conservatives despise, a judge whose sterling reputation as a conservative for twenty years on the federal bench is under attack.

On this page the day of the verdict, an article by a law professor from Notre Dame posited through conjecture that Judge Vaughn Walker’s rumored homosexuality caused him to decide the trial before hearing it.

Other conservatives howl that one judge is unjustly invalidating the will of seven million Californians and that gay rights should come to the populace through the ballot box, not the courts.

We conservatives have a well-founded narrative about judges and the courts. It is true that the federal bench is populated with liberals who view their role not as interpreting the law as it is written, but as policy makers empowered to sculpt social outcomes with which they agree.

The irony of this case is that Judge Walker is not a liberal activist judge but one whose career has proven him to be a tempered judge, true to the Reagan-Bush conservative jurisprudence that he was nominated to represent on the bench.

Conservatives cannot deny that our Founders intended the judiciary as an equal and independent branch of government purposed to ensure the protection of every citizen’s rights.

The Supreme Court has previously ruled that the right to marry is a fundamental constitutional right.

When an unpopular minority is denied the right to marry, it is indeed the role of the courts to protect the rights of that minority, especially when a majority would deny them. This is why Judge Walker’s opinion reads, “That the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.”

Not to mention that conservatives have a flawed history with civil rights, a trend that began when Barry Goldwater opposed the Civil Rights Act as unconstitutional. While Goldwater was no racist there is clearly a conservative precedent for a breakdown at the intersection of ideology and reality.

The aforementioned arguments against Judge Walker’s Perry v. Schwarzenegger decision risk undermining legitimate conservative gripes about the judiciary and putting conservatism once again, on the wrong side of the latest chapter in American civil rights.

The potential consequence that conservatives land on the wrong side of civil rights history again is the alienation of an entire generation of voters. With polling definitively indicating that Americans under age 30 overwhelmingly favor gay rights, with a majority supporting gay marriage according to the Pew Millennial Attitudes report published in February this year, there are multiple reasons for conservatives to think carefully before digging in their heels against gay marriage.

Margaret Hoover is a writer, conservative commentator and Fox News contributor.

*applaudes Ms. Hoover*
 

That was a fantastic op-ed.

Thanks, Christie.

Jurisprudence
 

In Defense of the New Judicial Activists
In California and Arizona, Judge Walker and Judge Bolton are just doing their jobs.
By Emily Bazelon
Posted Monday, Aug. 9, 2010, at 6:46 PM ET
--------------------------------------------------------------------------------

The boogeyman of judicial activism is back. Federal judges last month struck down California's gay marriage ban and Arizona's aggressive immigration law. Now these divisive social issues will leap like Mexican jumping beans from the courts to the November election. The rulings are already being digested in the political arena in the usual way. Republicans say the judges overstepped. Democrats, annoyed by the inconvenient pre-election timing, mouth a tepid defense and leave the harder work to the gay marriage and immigrant advocates.

In both the California and Arizona cases, Judge Vaughn Walker and Judge Susan Bolton did indeed make activist rulings, according to the most useful definition of that much battered term. That is, they struck down two state laws. Arizona's immigration law came from the legislature, and California's Proposition 8 came directly from the voters—in response to a California Supreme Court decision legalizing gay marriage, which makes Walker's decision to strike down the voter referendum reversing that ruling even more activist. But at the district court level—the first floor of the federal system—sometimes activist is what judges are called on to be. The framers laid the foundation for this by creating the judiciary as separate but equal. And after the Civil War, Congress practically demanded that judges assert themselves on behalf of unpopular minorities at least some of the time, by passing the equal rights protections in the 14th Amendment.

The outcome does not always favor Democrats. You can see this in a somewhat different form in the Supreme Court's recent decisions about the scope of the Second Amendment. For hundreds of years, the court declined to say that the right to bear arms in the Constitution was an individual right. Then, in 2008 and this year, the justices said just that in striking down hand-gun bans in the District of Columbia and the city of Chicago. Those decisions had more popular support than Walker's or Bolton's. But they were just as activist—actually, more so, because it's the Supreme Court, at the top of the federal court system, that makes law for the whole country and that has the power to choose its cases.

Did Walker's ruling veer into the risky activist territory of shaky judicial reasoning? Andrew Sullivan and Orin Kerr are duking it out over whether the appeals courts that are likely to hear the Proposition 8 case next—the U.S. Court of Appeals for the 9th Circuit and then the Supreme Court—will defer to Judge Walker's factual findings. Kerr says no, because some of Walker's fact-finding is really a series of judgment calls about difficult social predictions—will same-sex marriage in fact weaken traditional marriage? He also points out that an appeals court could find any old rational basis for upholding the law. Sullivan says, Wait a sec: The thrill of Walker's opinion is how thoroughly he shredded the old assumption that "preserving the traditional institution of marriage" is a legitimate state interest, as Justice Sandra Day O'Connor put it in Lawrence v. Texas, the 2003 decision striking down state sodomy laws.* "Tradition alone, however, cannot form a rational basis for a law," Walker wrote, citing a 1993 Supreme Court decision which said that the " 'ancient lineage' of a classification does not make it rational."

If you can't base a gay-marriage ban in tradition or in a religious objection—because laws have to have a secular purpose—and you also can't ground it in the claim that children raised by same-sex couples are worse off, because the research shows just the opposite, than what rational-basis argument can you make? The Proposition 8 proponents are taking heat for their crappy trial record. But what evidence could they have put on instead?

Judge Walker's analysis is authoritative because he had months to write his opinion and a full-blown trial to drawn on. Judge Susan Bolton's decision to temporarily block the Arizona immigration law is necessarily sketchier: She acted at a preliminary stage in this suit. The Obama Justice Department asked Bolton to block Arizona from asking anyone whom the police arrest on suspicion of being an illegal immigrant to prove otherwise before the law went into effect. And the DoJ rooted its argument in the lawyerly problem of pre-emption rather than a clarion call to respect individual rights. So Bolton talks a lot about the "comprehensive and detailed framework" of federal immigration law, which she found Arizona to be meddling with. But she also noted the problem of "increasing the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up by this requirement"—meaning the requirement to prove their status. Arizona will get another chance to defend its law. And since the polls are running at 60 percent or higher in favor of the state's tough form of border control, Bolton's decision may be the one that proves out-of-sync with public opinion for longer, though the supporters of Arizona's tactics have the growing Latino population to contend with.

Support for same-sex marriage, meanwhile, could move past the halfway mark faster. Some polls show that it's already hit 50 percent in California, a marked shift since Proposition 8 passed just two years ago with 52 percent of the vote. The persuasive reality that's the underpinning for Walker's opinion may sink in deep enough to alter the political picture fundamentally. "The pattern we're seeing in the polls of growing support for same-sex marriage follows other equality issues rather than liberty issues," says Columbia law professor Nathaniel Persily, who studies the dynamic of popular opinion and court rulings. "It's closer to the pattern for interracial marriage than it is for, say, abortion," about which people's views have remained entrenched. "Within five years, there will be a majority in the U.S. supporting same-sex marriage. I have no doubt about that," Persily argues that rulings like Walker won't change the inevitable trajectory—and, in fact, haven't done so, never mind all the claims about how the 2004 Massachusetts court decision legalizing gay marriage helped elect George W. Bush.

But there's a caveat here, Persily says: Opponents of same-sex marriage feel much more intensely than supporters do. They're more likely to act on their beliefs. "That's likely to be true for a long time. So we'll have a slow but largely apathetic growing majority in favor of same-sex marriage but intense opposition."

It's not the job of the courts solely to mirror public opinion. But increasingly over time, since the beginning of the 20th century, they have come into line with it, as Barry Friedman showed in his book Will of the People. Once same-sex marriage has majority support, it will harder to see court decisions supporting it as judicial activism. And it will be easier for the judges in the middle to move to the left. Ultimately, of course, that means Justice Anthony Kennedy. In the endless speculation about how Kennedy will treat the Proposition 8 case if it reaches him, timing may matter most. Gay rights groups held off challenging Proposition 8 because they didn't think Kennedy was ready to strike down a same-sex marriage ban. Ted Olson and David Boies charged ahead, anyway. What if they'd waited five years? In that time, more states will probably join the handful that have already made same-sex marriage legal. More older opponents of gay marriage will die and the polls will count more younger supporters. That's not the only way to influence Kennedy or any other justice. But it helps.


http://www.slate.com/id/2263347/

Love this rhetorical question.

Making a Supreme Court Case for Gay Marriage




/snip/
Much has been made of that factual record, and indeed U.S. District Judge Vaughn Walker spent scores of pages laying out a long list of findings that, he wrote, had been established as fact during the contentious, weeks-long trial. Among the findings was proof that rules of marriage had been fluid across history, that gender roles once held as absolute are no longer as important in understanding or defining marriage, and that gays and lesbians had been historically discriminated against to the point that laws aimed specifically at them merit additional judicial scrutiny.

Olson says he and Boies will use those findings of fact to anchor their legal arguments as they defend the case in the Ninth Circuit Court of Appeals and, if the Justices take it, before the Supreme Court perhaps as soon as the 2011 term. "We have exhaustive and comprehensive highly favorable findings of fact and conclusions of law by an experienced and respected jurist who carefully examined the evidence presented by our nine experts and eight lay witnesses, and the best arguments and evidence that skilled lawyers on the other side could present," he says. "We feel that we have a powerful and compelling record to lay before the appellate courts. We can't do more than that.


Read more: http://www.time.com/time/politics/ar...#ixzz0wEHkgzSl

I just read my first thing in the morning not much coffee answer and realized I wanted to be clear on one of the questions you asked.

snip{Since this decision has been made in a federal court, does it generalize to other (all?) states. }

Since the case in California is based on the 14th amedment to the Constitution of the United States, the answer is Yes it will affect all 50 States. It would be the same as the rulings ending the ban on interracial marriage....consistant across the country, whether the bigots liked it or not.

From joemygod
 

American Bar Association Announces Support For Marriage Equality

The 410,000 member 132-year old American Bar Association, arguably the most influential legal group in the world, has announced its firm support for same-sex marriage. The Advocate reports:
In a resolution adopted less than one week after a federal judge in San Francisco struck down California's Proposition 8 as unconstitutional, the group acknowledges that same-sex couples "are only seeking to participate in an equal basis in a foundational institution of our civil life," former ABA president Tommy Wells told the organization's house of delegates. "They simply want to share in the legal blessings that we give to married couples. It can only strengthen marriage.”
The ABA's statement: "RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry."

To piggyback off you:

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ABA Passes Resolution Backing Marriage EqualityAugust 10, 2010
FOR IMMEDIATE RELEASE

August 10, 2010

Contact: Yusef Robb

yusef@equalrightsfoundation.org

ABA PASSES RESOLUTION BACKING MARRIAGE EQUALITY

Nation’s Leading Legal Organization Acts Against Inequality

The American Bar Association, the nation’s leading legal organization, today passed the following resolution:

“RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

“With this action, the American Bar Association has affirmed the principles upon which this nation was founded—that every American is vested with certain inalienable rights and that all Americans are created equal,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “The ABA’s action is significant in that it represents a broad consensus among scholars and practitioners of the law. The ABA is the nation’s leading legal organization and is the one charged with recommending judges and setting national standards for attorneys. This case is not about ideology or politics, and the ABA’s resolution underscores that. Rather, Perry v. Schwarzenegger is a case grounded in fundamental constitutional law and precedent, including equal protection under the law and due process.”

“By approving a resolution in support of marriage equality, the ABA has confirmed what the federal courts, the state’s chief executive and the state’s chief law enforcement officer have determined in Perry v. Schwarzenegger—that excluding gay men and lesbians from marriage violates their constitutional right to due process and equal protection and causes significant harm to them and their families,”

Griffin added, referring to the Governor and Attorney General.

The American Foundation for Equal Rights is the organization that launched the Perry v. Schwarzenegger case and brought together attorneys Theodore Olson and David Boies (who opposed each other in arguing Bush v. Gore) to lead its litigation. Last week, the Chief Judge of the Federal District Court, Northern District of California issued a 136-page ruling that found that California’s Proposition 8, which stripped gays and lesbians of their right to marry, was unconstitutional, citing its denial of the constitutional protections of equal protection under the law and due process, among other findings.

The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are supporting the plaintiffs’ team as co-counsel, with a specific focus on the negative impact Proposition 8 has on government services and budgets.

Okay...I could see Kern county, but Imperial????
 

Imperial County Desperately Wants to Appeal
by Brian Devine

Imperial County just filed a Notice of Appeal of Judge Walker’s ruling striking down Prop 8. Here’s a copy of its Notice of Appeal.

Imperial County decided to wait until the eve of trial before it filed a request to intervene in the case. Judge Walker denied the County’s request to intervene, finding that the request was not timely and that the County does not have standing. Here’s a detailed discussion of the concept of “standing.” Judge Walker held:

Imperial County does not have a significant protectible interest in the outcome of plaintiffs’ constitutional challenge to Proposition 8. Moreover, even if Imperial County did have an interest in the subject matter of this litigation, state law provides adequate procedures for Imperial County to protect that interest, and, in addition, the current state defendants adequately represent Imperial County’s interest as a matter of law. Accordingly, Imperial County is not entitled to intervene. . .

* * *

Imperial County’s status as a local government does not provide it with an interest in the constitutionality of Proposition 8 or standing to defend Proposition 8 on appeal. Accordingly, Imperial County’s motion to intervene as a defendant in this action . . . is DENIED.

It’s not all that surprising that Imperial County filed a Notice of Appeal. It is asking the Ninth Circuit Court of Appeal to decide for itself whether or not the County has standing to appeal. As I discussed earlier, there’s a decent chance that Judge Walker and the Ninth Circuit will find that the official proponents of Prop 8 do not have standing to appeal Judge Walker’s decision. While the arguments are different, I also think it’s unlikely that Imperial County has standing. But from the anti-equality perspective, it gives them one more argument to make before the Ninth Circuit, so it’s important to them.

This is a minor development. Stay tuned for the more significant ruling on the pending motion to stay, which hopefully will come out today.