Same-Sex Marriage Update

[Corkey]

Just found out you can vote often.......clickety click........Againnnnnn!

[Soon]

How Will the Supreme Court Rule on Same-Sex Marriage?

Adam Winkler
Professor at UCLA School of Law



Wednesday's landmark decision by a federal court that California's ban on same-sex marriage violates the U.S. Constitution begins to pave the way for an eventual Supreme Court decision on marriage equality. How will the Supreme Court rule?

When the California case was first filed by the all-star legal team of Ted Olson -- who argued Bush v. Gore for George W. Bush and then became his Solicitor General -- and David Boies -- who, ironically, represented Al Gore in the disputed presidential contest -- the leading gay rights organizations, joined by the ACLU, came out against the lawsuit. They shared Olson and Boies's goal of securing marriage equality, of course, but they feared what the conservative Roberts Court might do. A strong Supreme Court decision against gay marriage would create a precedent that would take decades to undo. With our society moving generally in the direction of more tolerance for gays and lesbians, activists wanted to wait a few more years before bringing a case to the high court.

But gay rights activists may have been too pessimistic about the current Supreme Court. It's true that the Roberts Court is conservative and that several Justices are unlikely to be open-minded about same-sex marriage, including the four most right-leaning Justices: Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito. On the other side of the bench, there are four Justices likely to be favorable to Olson and Boies's argument that the denial of marriage rights to same-sex couples violates the Constitution: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (assuming she is confirmed).

As usual in the Supreme Court these days, the swing vote belongs to Anthony Kennedy. And there are several reasons to believe that Kennedy, though conservative on many issues, will vote with the liberals on this one. The Supreme Court has issued two major decisions dealing with gay rights over the past 15 years. Both decisions came out strongly in favor of gay rights -- and both were written by Justice Kennedy.

In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do."

These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage.

Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government. This has led him to vote in ways that liberals love and conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-versa -- such as his vote against government regulation of corporate speech. But it bodes well for the liberals in the same-sex marriage case.

Of course, no one can really predict what the Supreme Court will do. The same-sex marriage case will take years to reach the high court and, in the meantime, there may be turnover among the Justices. But so long as the question of marriage equality turns on Justice Kennedy's vote, Olson and Boies -- and those in the gay and lesbian community who are depending on them to win this case -- are in good hands.

[atomiczombie]

Originally Posted by Corkey

Just found out you can vote often.......clickety click........Againnnnnn!

Voting...voting...voting.....

[Gayla]

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples," Walker wrote.

[betenoire]

Congratulations, California.

I know it feels shitty that you all are having to do this state by state, but we had to do it province by province and I promise it works. I hate that it's taking this long, believe me. But you'll all get there.

Edited to add: The funniest comment I've read on the subject so far is "Somewhere in Alaska Sarah Palin is angrily reading the wrong words off of her hand."

[SuperFemme]

san luis obispo, ca.

we'll be on KSBY news at ten or eleven tonight, because I yelled "interview a family for gods sake"....and they did. Us. It was mostly our 17 year old daughter saying how happy today is, and when asked what she has to say to the people who feel sorry for her for having two moms? She said she feels sorry that they don't have the kind of love our family does: unconditional.

sigh.

[blackboot]

I just can't stop smiling. This is such a happy day.

[Nat]

This Texan has a little more hope again finally. I was in Cali when Prop 8 happened. You know what sucks? Working with people who voted against your rights, your relationship, your existence. I just so wish this could go to the Supreme Court at some point and we could have equal rights all over the damn place.

A girl can dream anyway.

[Gayla]

Originally Posted by SuperFemme

san luis obispo, ca.

we'll be on KSBY news at ten or eleven tonight, because I yelled "interview a family for gods sake"....and they did. Us. It was mostly our 17 year old daughter saying how happy today is, and when asked what she has to say to the people who feel sorry for her for having two moms? She said she feels sorry that they don't have the kind of love our family does: unconditional.

sigh.

I tried to watch the stream but I kept getting distracted by our news and I must have missed it.

[AtLast]

California Prop 8 opinion

Full text of decision link: http://metroweekly.com/poliglot/2010/08/04/Perry%20Trial%20Decision.pdf--------------------

Article about opinion- from HOME / jurisprudence : The law, lawyers, and the court.

A Brilliant Ruling: Judge Walker's decision to overturn Prop 8 is factual, well-reasoned, and powerful.
By Dahlia Lithwick
Posted Wednesday, Aug. 4, 2010, at 9:27 PM ET

Judge Walker ruled Prop 8 unconstitutionalJudge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

Kennedy? Hot sauce to go with those words?

But for all the lofty language about freedom and morality, nobody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice.

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.

Walker notes that the plaintiffs presented eight lay witnesses and nine expert witnesses, including historians, economists, psychologists, and a political scientist. Walker lays out their testimony in detail. Then he turns to the proponents' tactical decision to withdraw several of their witnesses, claiming "extreme concern about their personal safety" and unwillingness to testify if there were to be "recording of any sort." Even when it was determined that there would be no recording, counsel declined to call them. They were left with two trial witnesses, one of whom, David Blankenhorn, founder and president of the Institute for American Values, the judge found "lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponent's factual assertions." Blankenhorn's credentials, methodology, lack of peer-reviewed studies, and general shiftiness on cross examination didn't impress Walker. And once he was done with Blankenhorn, he turned to the only other witness—Kenneth P. Miller—who testified only to the limited question of the plaintiffs' political power. Walker wasn't much more impressed by Miller, giving his opinions "little weight."

Then come the elaborate "findings of fact"—and recall that appellate courts must defer far more to a judge's findings of fact than conclusions of law. Here is where Judge Walker knits together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy's brain. Among his most notable determinations of fact, Walker finds: states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child's parent is not a factor in a child's adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay. (Brand-new data show that the needle only really moved in favor of the Prop 8 camp when parents of young children came out in force against gay marriage in the 11th hour of the campaign.) He found that stereotypes targeting gays and lesbians have resulted in terrible disadvantages for them and that the Prop 8 campaign traded on those stereotypes.

And then Walker turned to his conclusions of law, finding that under both the Due Process and Equal Protection clauses:

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.

Is that the end of it? Oh, no. Judge Walker is already being flayed alive for the breadth and boldness of his decision. The appeals road will be long and nasty. Walker has temporarily stayed the ruling pending argument on a stay. (Rick Hasen argues it may be wise for him to stay the order pending appeal for tactical reasons.) Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity. The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact.
http://www.slate.com/id/2262766/
__________________

I posted this in the Breaking News thread.. thought I'd post it here, too. I'm feeling good about how Walker's opinion is getting good peer reviews. seems this is way important for all the appeals that will begin.

[AtLast]

[QUOTE=betenoire;168352]Congratulations, California.

I know it feels shitty that you all are having to do this state by state, but we had to do it province by province and I promise it works. I hate that it's taking this long, believe me. But you'll all get there.

Edited to add: The funniest comment I've read on the subject so far is "Somewhere in Alaska Sarah Palin is angrily reading the wrong words off of her hand."[/QUOTE]

This is priceless!!

It sure is a great day here in CA!!! WOOT!!!

[Manul]

I have to love this headline from USAToday.

Prop 8 judge to religious believers: It's not about you

Included in the article:

You could summarize it pretty quickly, Walker seems to be saying, "'Believers, it's not about you."

The ruling says:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. 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.

Walker also writes,

Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

He cites the California constitution that...

[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

Walker examines about how several major religious groups -- Catholics, Mormons, conservative evangelicals such as the South Baptist Convention, Lutheran Church-Missouri Synod -- condemn either homosexual identity or behavior or both, citing documents from the Vatican to denominational resolutions.

But he spells out in all capital letters in the decision:

A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION...

California's obligation is to treat its citizens equally, not to "mandate [its] own moral code."

I'm sure those with strong fundamentalist religious feelings won't see the logic of the Judge, but it's a matter of equality under the Constitution, not about religion.

[Soon]

[Linus]

Originally Posted by Manul

I have to love this headline from USAToday.

Prop 8 judge to religious believers: It's not about you

Included in the article:



I'm sure those with strong fundamentalist religious feelings won't see the logic of the Judge, but it's a matter of equality under the Constitution, not about religion.

Geez. Now all you need is a clause that says that Churches won't be forced to perform the marriages if the congregation doesn't support it and y'all will sound like a bunch of Canadians!