Same-Sex Marriage Update

[Soon]

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

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

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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.

[christie]

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.

[Soon]

That was a fantastic op-ed.

Thanks, Christie.

[Greyson]

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
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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/

[Soon]

Originally Posted by Greyson

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?

[/url]

Love this rhetorical question.

[Soon]

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