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[AtLast]

Originally Posted by Laerkin

Prop 8 Ruled Unconstitutional:

http://www.huffingtonpost.com/2010/0..._n_670739.html

WOOT! More to come, but this is very good news!

[Greyson]

Yes!!!!!!!!!!!!!!!!!

[Leigh]

Good for California overturning Prop 8 ~ thats fanastic

[MsMerrick]

Equality actually being held to mean.. Oh yeah..Equal ! What a concept
Thank you Founding Peeps, and all those that created our Constitution

[AtLast]

Originally Posted by MsMerrick

Equality actually being held to mean.. Oh yeah..Equal ! What a concept
Thank you Founding Peeps, and all those that created our Constitution

Been thinking about that perhaps the fact that one of the lawyers arguing the case is a conservative (the Bush rep for Bush v. Gore) might be advantageous when this gets to the federal SC. He ought to know how to frame things in ways that all the conservative justices can understand.. actually hear. So, even Alieto and Scalia might be able to make the jump to what the framers did mean! And those that wrote the Bill of Rights! A little legal strategy to consider. Would love to hear from any lawyers here that have something to say about this.

Hummm.... this probably won't reach the SC for a couple of years (and all the appeals will happen in the interim)... My guess is that another SC nomination will come up within this time frame. OK, so, it is extremely important that Obama is a two-term president! Not that his appointments have been far left or progressive thus far, but, I really would not want a Republican making the appointment if another vacancy arises prior to the end of Obama's current term! Especially since that next vacancy may very well be Ruth Bader-Ginsberg.

Just thinking’…. projecting and being hopeful!

I am bummed with the stay imposed, however. It would have been better for more couples to just be able to marry now, perhaps adding to the 18000 folks in CA that were able to retain legal marriages after the … Hummm… second appellate decision post Prop 8 passage. I just feel that the more same-sex marriages recognized as legal goes to the equality position more deeply in terms of the 14th Amendment that this decision will rise or fall on. But, I may be totally wrong in this thinking.

[Zimmeh]

Now if Florida could get their happy butts in gear and pass a same-sex marriage law here...

Have a good night,

Zimmy

Originally Posted by AtLastHome

Been thinking about that perhaps the fact that one of the lawyers arguing the case is a conservative (the Bush rep for Bush v. Gore) might be advantageous when this gets to the federal SC. He ought to know how to frame things in ways that all the conservative justices can understand.. actually hear. So, even Alieto and Scalia might be able to make the jump to what the framers did mean! And those that wrote the Bill of Rights! A little legal strategy to consider. Would love to hear from any lawyers here that have something to say about this.

Hummm.... this probably won't reach the SC for a couple of years (and all the appeals will happen in the interim)... My guess is that another SC nomination will come up within this time frame. OK, so, it is extremely important that Obama is a two-term president! Not that his appointments have been far left or progressive thus far, but, I really would not want a Republican making the appointment if another vacancy arises prior to the end of Obama's current term! Especially since that next vacancy may very well be Ruth Bader-Ginsberg.

Just thinking’…. projecting and being hopeful!

I am bummed with the stay imposed, however. It would have been better for more couples to just be able to marry now, perhaps adding to the 18000 folks in CA that were able to retain legal marriages after the … Hummm… second appellate decision post Prop 8 passage. I just feel that the more same-sex marriages recognized as legal goes to the equality position more deeply in terms of the 14th Amendment that this decision will rise or fall on. But, I may be totally wrong in this thinking.

[atomiczombie]

This ain't over yet, but I give a big thumbs up to the Judge who handed down this decision today.

[Nat]

"A state’s interest in an enactment must of course be
secular in nature. The state does not have an interest in
enforcing private moral or religious beliefs without an
accompanying secular purpose."

Amen

"At oral argument on proponents’ motion for summary
judgment, the court posed to proponents’ counsel the assumption
that “the state’s interest in marriage is procreative” and inquired
how permitting same-sex marriage impairs or adversely affects that
interest. Doc #228 at 21. Counsel replied that the inquiry was
“not the legally relevant question,” id, but when pressed for an
answer, counsel replied: “Your honor, my answer is: I don’t know.
I don’t know.”"

heee

Proponents’ procreation argument, distilled to its
essence, is as follows: the state has an interest in encouraging
sexual activity between people of the opposite sex to occur in
stable marriages because such sexual activity may lead to pregnancy
and children, and the state has an interest in encouraging parents
to raise children in stable households. Tr 3050:17-3051:10. The
state therefore, the argument goes, has an interest in encouraging
all opposite-sex sexual activity, whether responsible or
irresponsible, procreative or otherwise, to occur within a stable
marriage, as this encourages the development of a social norm that
opposite-sex sexual activity should occur within marriage. Tr
3053:10-24. Entrenchment of this norm increases the probability
that procreation will occur within a marital union. Because samesex
couples’ sexual activity does not lead to procreation,
according to proponents the state has no interest in encouraging
their sexual activity to occur within a stable marriage. Thus,
according to proponents, the state’s only interest is in oppositesex
sexual activity.

Katami and Stier testified about the effect Proposition 8
campaign advertisements had on their well-being. Katami explained
that he was angry and upset at the idea that children needed to be
protected from him. After watching a Proposition 8 campaign
message, PX0401 (Video, Tony Perkins, Miles McPherson, and Ron
Prentice Asking for Support of Proposition 8), Katami stated that
“it just demeans you. It just makes you feel like people are
putting efforts into discriminating against you.” Tr 108:14-16.
Stier, as the mother of four children, was especially disturbed at
the message that Proposition 8 had something to do with protecting
children. She felt the campaign messages were “used to sort of try
to educate people or convince people that there was a great evil to
be feared and that evil must be stopped and that evil is us, I
guess. * * * And the very notion that I could be part of what
others need to protect their children from was just —— it was more
than upsetting. It was sickening, truly. I felt sickened by that
campaign.”

[Stearns]

Why wasn't the trial allowed to be televised? I've forgotten, so somebody please refresh my memory.

[Manul]

Originally Posted by Stearns

Why wasn't the trial allowed to be televised? I've forgotten, so somebody please refresh my memory.

Public Broadcast of the Trial in This Case Would Violate Petitioners’ Due
Process Right to a Fair Trial.

http://www.scotusblog.com/wp-content...ial-1-9-10.pdf

[Stearns]

Originally Posted by Manul

Public Broadcast of the Trial in This Case Would Violate Petitioners’ Due
Process Right to a Fair Trial.

http://www.scotusblog.com/wp-content...ial-1-9-10.pdf

Thanks, Manul!

[Manul]

Originally Posted by Stearns

Thanks, Manul!

De nada. In other words, they didn't want their faces to be seen.

[Stearns]

Originally Posted by Manul

De nada. In other words, they didn't want their faces to be seen.

I call 'smokescreen' regarding the fear of retaliation bit. I think they didn't want the compelling arguments posed by Olson-Boies to win over any potential sympathizers and to hide their own shoddy, baseless defense.

[Manul]

Originally Posted by Stearns

I call 'smokescreen' regarding the fear of retaliation bit. I think they didn't want the compelling arguments posed by Olson-Boies to win over any potential sympathizers and to hide their own shoddy, baseless defense.

Olson-Boies won over the one that matters.

[AtLast]

Originally Posted by atomiczombie

This ain't over yet, but I give a big thumbs up to the Judge who handed down this decision today.

Yep! And his opinion is quite compelling in terms of an appeal.

Now that I have been able to hear part of the decision, it is quite amazing that this judge (H.W. Bush appointee) had such clarity in the fact that our rights are not up for voting, they simply are. And his bringing to light that marriage has never been based upon a couple's ability or intention to pro-create.

Much more in the opinion about gender TODAY, not yesterday! All 3 of the key arguments presented are quite clearly determined by the opinion. A big one was that same-sex marriage does not in any fashion cause harm to heterosexual marriage.

138 page opinion..... but, oh, I want to read every word!

[AtLast]

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 RulingJudge 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/

[Jess]

Originally Posted by AtLastHome

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 RulingJudge 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/

Wanted to bump this and add a note to keep up with the Same Sex Marriage thread, as folks have been pretty diligent in posting updates regarding same sex rulings all over the world!
Thanks At Last!

[Corkey]

Kagan confirmed as Supreme Court Justice 63-37.

[Greyson]

Two consecutive days of good news. I am going to be sure and write down my thoughts and feelings of the past two very historic days.

[MsMerrick]

Given that its rare to hear me praise the Mayor of New York, I have to give him props.. For his defense of the Mosque at Ground Zero mess.. In fact, he really delivered a ringing endorsement, of separation of Church & State, etc.. noting many of the same things I lost my temper about, a week or so ago.. He delighted me for a change...

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