Ninth Circuit rules Prop 8 unconstitutional.

[FloridaRepublican]

One travesty after another.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Isn't it obvious? Of course a gay judge would be almost certain to rule in favor of gay marriage! In every wedge issue case like this that serves as some kind of landmark, the judge's personal opinion is of utmost importance in determining which way he will rule.

Well, yes, but that's one of the things that the appeals process is there to sort through, and on a highly charged issue like this it's not like they could have found an entirely personally neutral judge anyway, especially given that he wasn't openly gay at the time. I understand why it's relevant from a legal-psychology perspective but I still don't understand what Misha referring to him as 'the homosexual judge' is supposed to accomplish, beyond making him (Misha, not Walker) look obsessive and petty. One could make an argument that Walker should have recused himself, but then you'd have to deal with questions of whether, say, black judges should recuse themselves from civil rights or affirmative action cases.

Having this ruling restricted to California could be considered a tactical defeat but is definitely a strategic win for us. I don't think it makes sense for this ruling to legalize SSM in, say, Idaho.

I don't want universal same-sex marriage legalization going to the Supreme Court. We'd probably lose. Where we can win is on federal recognition of legal state marriages and in protection from unpopularity contests like Prop 8 in state decisions.

We've come so far in 8 years that the outcome is no longer in doubt.

Yeah, protection from certain types of setbacks in an incremental process is what I'm hoping for here.

[Brittain33]

This is why it was fortunate that the Supreme Court of 1896 was completely neutral when the Plessy case came up. Of course minority judges would have been biased and ruled in favor of equal access. Only white judges could exhibit true independence from the issue and provide justice.

(see what I did there? I'm not making a comparison on the merits, but disagreeing with the idea that being a straight, white, male makes you the default and therefore the right person to rule on any issue affecting a minority. BS.)

[milhouse24]

I don't think marriage is a Right at all.  There is no legal requirement for anyone to get married or not to get married.  Marriage is outdated and pointless.  Its another way for the government to control you and your finances.  Its another way to increase the size of bloated government. 

In addition, once all the benefits are known, there will be a widespread increase in marriage fraud.  For instance, there will be widespread marriage fraud from gay foreign international spouses that supposedly just want a green card.  This will hinder the legitimate straight couples who want green cards. 

I see the Supreme Court nullifying marriage as a legal contract. 

[Bacon King]

Overall thoughts after reading the majority opinion:

It's a fairly strong ruling, and one I think the Supreme Court would uphold if it reaches them. Reinhardt using the logic from Romer v. Evans to uphold Walker's decision makes a lot of sense. And it doesn't hurt Reinhardt's chances for this ruling to be upheld that Kennedy wrote the majority opinion there, haha. Also, on that note, I literally laughed out loud when I saw the random quotation on p.72 from a Kennedy concurrence completely unrelated to the topic at hand.

I've only skimmed through the dissent so far (I'll read it more in detail later), but I think the Baker v. Nelson argument is weak. The precedent from a summary dismissal should be taken as narrowly as possible; I don't get how he interprets Baker more broadly than Romer. I find it amusing that Smith fishes for a 58 year old case on eminent domain to find a Supreme Court quote that says states can use police power to regulate morality. Also funny that he felt the need to quote a 1888 case about divorce in the Oregon Territory to highlight the importance of marriage. I'm glad he agreed with the majority that Justice Walker didn't need to recuse himself, though.

[Gass3268]

Awesome. Take that, bigots.

[The Mikado]

I've never seen this many reported posts in a three page thread before.

[Torie]

The reasoning of the court seems to be that when the state awards the moniker "marriage" to a status,  that cannot be taken away absent changing the substantive basket of rights and duties along with the name change. But just taking away the name once conferred, and no more, is simply not rational, and meant to demean, and therefore violates some fundamental right violative of the Equal Protection clause because it's simply unadorned gay bashing (but somehow it wouldn't be if the rights attending civil unions were made lesser than that of "marriage" - I guess because Reinhardt wanted a "narrow" even if moronic decision).

I suspect SCOTUS will grant cert., and reverse. It is a pathetically weak line of reasoning - yet the result even if based on narrow facts, has national implications, as married gays in CA spread out across the fruited plain.

I appreciate Bacon King mentioning Romer, and it is true Prop 8 would have been better worded to say that nothing in the CA Constitution protects the right of same sex couples to have their civil union called "marriage," and simply overturn the CA Supreme court decision to the contrary, rather than to take away the power of the state to pass a statute conferring the moniker "marriage" on gay civil unions.  But Romer was based on taking away the option of localities to pass anti-discrimination laws in favor of gays.  I don't think Kennedy will view a fight over the moniker game, that arose in the first instance from CA SCOTUS judicial activism, in the same light has singling out gays as a class ineligible to seek local anti-discrimination laws in their favor, while any other group can.

[The Mikado]

Is this applicable to the Maine situation?  Even granting how narrow the grounds are, the two situation seem similar.

[memphis]

http://www.theonion.com/articles/massachusetts-supreme-court-orders-all-citizens-to,1135/

[Free Palestine]

Lol I'm not even reading CaDan's posts.

[All Along The Watchtower]

I just wish people who irrationally fear/hate gay people would be more honest, and not hide behind wordy arguments that don't make any sense.

[Bacon King]

The reasoning of the court seems to be that when the state awards the moniker "marriage" to a status,  that cannot be taken away absent changing the substantive basket of rights and duties along with the name change. But just taking away the name once conferred, and no more, is simply not rational, and meant to demean, and therefore violates some fundamental right violative of the Equal Protection clause because it's simply unadorned gay bashing (but somehow it wouldn't be if the rights attending civil unions were made lesser than that of "marriage" - I guess because Reinhardt wanted a "narrow" even if moronic decision).

I don't see that sort of implication in the decision at all; it's just Reinhardt being as narrow as possible with the ruling (and a bit understandably, too, considering the Supremes unanimously gave him a smack-down twice last month for judicial overreaching). My understanding of the decision is that for Romer to not apply, Proposition 8 had to be a legitimate state interest. The court references the argued justifications of Prop 8, only to point out that they're irrelevant because all non-marriage rights are maintained for gays; the decision explicitly points out it isn't even considering the hypothetical constitutionality if it did so:

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I agree this will probably be granted cert, but I think this decision is narrow enough for Kennedy to be comfortable with it (though admittedly, you're far more knowledgeable than I with all of this stuff). I don't see the national implications, though, because it's not as if this ruling even touches on DOMA (even though it is, IMO, blatantly unconstitutional).

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I agree that the Romer case was decided over matters that were more concretely significant (legal access to remedies for blatant discrimination is important, of course) but I think that the title of marriage does have a very signficant symbolic meaning for a lot of people, and on that note Reinhardt made a pretty good argument that this case was about more than a simple moniker.

[Fmr President & Senator Polnut]

1. CaDan is well, ignore worthy, but I won't give him the trophy - "yeah typcial liberal, can't handle..." toss toss toss.

2. TJ, that's honestly pretty disrespectful, as someone with a law degree, to be told that the Judge couldn't make a legal decision on the status of Prop 8 because he's gay is offensive. Then people who have children shouldn't sit on family law cases, and on and on.

3. I'm kind of half-way with Bacon and Torie here. I don't think the legal reasoning is that weak, but nor do I think it really provides a strong legal premise. The decision is deliberately narrow, which is both its blessing and its curse. A narrow CA-only focus clearly was meant to not have an effect on states like AZ, ID and MT. But a narrow focus also makes the broader Constitutionality issue quite a lot weaker than I think it actually is.

If SCOTUS gets involved, expect probable overturning, but yes, Kennedy will be the determining factor, yet again.

[TJ in Oregon]

2. TJ, that's honestly pretty disrespectful, as someone with a law degree, to be told that the Judge couldn't make a legal decision on the status of Prop 8 because he's gay is offensive. Then people who have children shouldn't sit on family law cases, and on and on.

I never said he couldn't make a legal decision. I just said it would be rather obvious what he would decide.

[Sbane]

If the government decides to force the Church to participate or me to enter one myself, then yes, I might engage in civil disobedience but I doubt it will come to that in my lifetime.

The government forcing you to get gay married......I don't see how that would ever be possible. I don't even get how you came up with that. Lots of people, including people like me who are 110% for gay marriage, would have a huge problem with that. I dunno, it's just too silly to respond to....

On the other hand I can see a situation where a church is forced to wed a gay couple, but I'm thinking that is unconstitutional. Regardless, I would be against that. Just like I would be against forcing any church to wed a mixed race couple.

[Fmr President & Senator Polnut]

2. TJ, that's honestly pretty disrespectful, as someone with a law degree, to be told that the Judge couldn't make a legal decision on the status of Prop 8 because he's gay is offensive. Then people who have children shouldn't sit on family law cases, and on and on.

I never said he couldn't make a legal decision. I just said it would be rather obvious what he would decide.

Sorry, but respectfully, that's exactly the same thing. By saying you knew what he would rule, you're suggesting he's not judging the case on it's legal merits.

If the government decides to force the Church to participate or me to enter one myself, then yes, I might engage in civil disobedience but I doubt it will come to that in my lifetime.

The government forcing you to get gay married......I don't see how that would ever be possible. I don't even get how you came up with that. Lots of people, including people like me who are 110% for gay mariage, would have a huge problem with that. I dunno, it's just too silly to respond to....

On the other hand I can see a situation where a church is forced to wed a gay couple, but I'm thinking that is unconstitutional. Regardless, I would be against that. Just like I would be against forcing any church to wed a mixed race couple.

The degree of hyper-paranoia from the religious right on this issue is quite amusing.

[TJ in Oregon]

2. TJ, that's honestly pretty disrespectful, as someone with a law degree, to be told that the Judge couldn't make a legal decision on the status of Prop 8 because he's gay is offensive. Then people who have children shouldn't sit on family law cases, and on and on.

I never said he couldn't make a legal decision. I just said it would be rather obvious what he would decide.

Sorry, but respectfully, that's exactly the same thing. By saying you knew what he would rule, you're suggesting he's not judging the case of it's legal merits.

I'll take it a step further and say that cultural wedge issues are rarely every judged by their legal merits but rather by the ideology of the judge. That should exactly be an earth shattering statement right there. Many of of the cases the Supreme Court ends up hearing are decided based on ideology. Bush v. Gore anyone? Gonzalez v. Carhart? Now, I'm sure every lawyer around will be lining up to refute this statement, but anyone who really doubts that a court ends up ruling however the judge(s) want(s) on controversial political cases like this is kidding themselves.

If the government decides to force the Church to participate or me to enter one myself, then yes, I might engage in civil disobedience but I doubt it will come to that in my lifetime.

The government forcing you to get gay married......I don't see how that would ever be possible. I don't even get how you came up with that. Lots of people, including people like me who are 110% for gay mariage, would have a huge problem with that. I dunno, it's just too silly to respond to....

On the other hand I can see a situation where a church is forced to wed a gay couple, but I'm thinking that is unconstitutional. Regardless, I would be against that. Just like I would be against forcing any church to wed a mixed race couple.

The degree of hyper-paranoia from the religious right on this issue is quite amusing.

I'd like to refer you to the bolded part of that statement where I said this was unlikely to happen as you chastise me for paranoia.

[Fmr President & Senator Polnut]

To suggest the possibility at any time is paranoia.

I don't disagree that the politicisation of the judiciary is a HUGE problem - which is why I completely reject the election of Judges and pure political appointments.

[○∙◄☻¥tπ[╪AV┼cVê└]

This only applies to California. I could see the full 9th upholding this ruling and the Supreme Court declining to hear this. There is a ballot item in the signature gathering phase to repeal Prop. 8.

[Fmr President & Senator Polnut]

This only applies to California. I could see the full 9th upholding this ruling and the Supreme Court declining to hear this. There is a ballot item in the signature gathering phase to repeal Prop. 8.

Yeah, the narrowness is clearly designed to create a disincentive for SCOTUS to get involved.

[milhouse24]

What if everyone stops getting married until gay people are allowed to get married?  I'm boycotting marriage, who's with me?

[MyRescueKittehRocks]

The will of the people of California is that gay marriage be banned. The Federal Government has no right to legislate from the bench. Article One Section Eight of the Constituition says nothing regarding social issues thus the Tenth Amendment is invoked thus the Ninth Circuit was in the wrong regarding this decision. They said it (the ban) violates the 14th Amendment. If the left wants to play that game, we on the right can use that to ban ALL abortions.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

You have to determine that a fetus is a legal person first if you want to use the Fourteenth that way.

Nobody of note has ever denied that gays and lesbians are legal persons.

[greenforest32]

The will of the people of California is that gay marriage be banned. The Federal Government has no right to legislate from the bench.

http://en.wikipedia.org/wiki/Loving_v._Virginia