Prop 8 Overturned

Carcharodon

http://www.huffingtonpost.com/2010/08/04/prop-8-overturned-gay-mar_n_671018.html

"In a major victory for gay rights activists, a federal judge ruled on Wednesday that a voter initiative banning same-sex marriage in California violated the Constitution's equal protection and due process rights clauses.

After a five-month wait, 9th Circuit District Court Judge Vaughn Walker offered a 136-page decision in the case of Perry v. Schwarzenegger, firmly rejecting Proposition 8, which was passed by voters in November 2008.

"Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect," Walker ruled.

"Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as "the right to same-sex marriage" would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

"Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society."

The judgment was the first offered by a federal court with respect to laws banning gay marriage at the state level and it promises to have massive reverberations across the political and judicial landscape. The decision is now expected to head to the Ninth Circuit Appeals Court, also based in San Francisco, for appeal, and from there to the Supreme Court. (Gay marriages will not resume immediately in California; the decision has been stayed until August 6 to consider arguments regarding an appeal.)

In the interim, however, Walker's ruling gave gay-rights activists a second occasion to rejoice in less than a month. In July, a federal judge in Massachusetts ruled that the federal Defense of Marriage Act (DOMA), which defines marriage as one man and one woman, was also unconstitutional.
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"Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people," said Gov. Arnold Schwarzenegger in a statement.

A White House official emailed reporters, "The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans."

"It is not only a home run, it is a grand slam," said Jon Davidson the legal director at Lambda Legal, the country's largest and oldest LBGT legal organization. "This decisions is not going to be the end of this fight, the proponents have already said they will appeal. But I think the factual findings that the judge has made and his clear and detailed analysis will be important to frame the case as it goes up on appeal."

"This is part of an educational process that is going on in this country. When judges look outside of the political process and they go through the evidence and treat arguments as more than just sound bites they come to the conclusion that withholding marriage from same sex couples hurts them and their families and doesn't help anyone. That helps move the conversation."

Wednesday's decision came after lengthy, substantive, and at times provocative legal deliberations in which an odd-couple pairing of lawyers took on the cause of overturning the same-sex marriage ban. Theodore Olson and David Boies -- direct adversaries in the 2000 Supreme Court presidential recount battle -- made the case that Prop 8 violated both the equal protection and due process clauses of the constitution. The law, the two argued, was discriminatory on the basis of both sexual orientation and on the basis of sex in addition to violating the principle that marriage was a personal liberty.

"The Supreme Court has said that marriage is the most important relation in life. Now that's being withheld from the plaintiffs," Olson said in his closing argument. "Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, spirituality and autonomy."

Representing the defense, another Washington-based lawyer, Charles Cooper leaned heavily on the social impact of codifying gay marriage, arguing that "marriage is to channel the sexual behavior between men and women into a procreative union."

In deciding the case, Walker offered a variety of findings that may be as important as the ruling itself. Among them were the following:

* "Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person's identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents' assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."

* "Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation."

* "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex."

* "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

* "Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive."

* "The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

* "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."

Perhaps the most important political finding that Walker made was his conclusion that the fact that Prop 8 passed as a voter initiative was irrelevant as "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections."

It does not appear that Walker allowed for an immediate hold on his decision, which means that the defense must seek one from a higher court. Until then, gay couples could be legally allowed to marry in the state of California."

I think this is an important decision and may have a big impact on the political scene across the country.
I am delighted about this decision, finally we can start making social progress again.
It will be appealed I presume but for now all I can say is Suck it Mormons.

rovert

One more step away from us living in castles again. :mad:

What is there to say other than great news.

kev9100

Great! But this is only the beginning as this ruling will definitely be appealed and will probably end up in the Supreme Court eventually. Now THAT will be interesting.

Carcharodon

kev9100 wrote: »

Great! But this is only the beginning as this ruling will definitely be appealed and will probably end up in the Supreme Court eventually. Now THAT will be interesting.

Yea, I think the objective was to get this to the Supreme Court where a landmark decision will have to be made involving the constitution. Fair play to the judge for giving such a broad judgement.

Amerika

Activist judges are pustules of society. The 14th amendment has nothing to do with the case, and it’s a state issue, not federal. The people of the state have spoken, just as the people of the state of Massachusetts have spoken.

BluePlanet

They are "activist judges" when it comes to gay marriage, but not when they are overturning laws on handguns right?

Amerika

BluePlanet wrote: »

They are "activist judges" when it comes to gay marriage, but not when they are overturning laws on handguns right?

7,000,000 to 1 is not activist?

I can show you where the right to bear arms is in the 2nd amendment. Show me where marriage is in the 14th.

metrovelvet

Carcharodon wrote: »

Yea, I think the objective was to get this to the Supreme Court where a landmark decision will have to be made involving the constitution. Fair play to the judge for giving such a broad judgement.

I hope not. And not because I care about gay marriage, because I don't, but because it's a victory for state control.

kev9100

Amerika wrote: »

The 14th amendment has nothing to do with the case, and it’s a state issue, not federal. The people of the state have spoken, just as the people of the state of Massachusetts have spoken.

Yes, the people of the State have spoken. But they have spoken on a Civil Rights issue where they have no right to make a judgement as the electorate has no right to deny someone's civil rights. For example, in the Loving vs Virginia ruling of 1967 the SC ended all race-based legal restrictions on marriage in the United States and stated that "Marriage is one of the "basic civil rights of man". Do you believe that ruling should have been put to the electorate as well?

MrSir

I would be against this but I'm a human being with some level of intelligence beyond six year olds so I'm all for it!

Amerika

Sorry, to me using the 14th amendment as the basis for the ruling is the work of an activist judge, when the 10th amendment clearily handles the circumstance (without flights of fancy added to the interpertation).

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

TheReverend

Sometimes the people are wrong.

sink

Amerika wrote: »

Sorry, to me using the 14th amendment as the basis for the ruling is the work of an activist judge, when the 10th amendment clearily handles the circumstance (without flights of fancy added to the interpertation).

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In your world Amerika, the 'separate but equal' clause would no doubt still stand.

Carcharodon

Amerika wrote: »

Activist judges are pustules of society. The 14th amendment has nothing to do with the case, and it’s a state issue, not federal. The people of the state have spoken, just as the people of the state of Massachusetts have spoken.

Republicans in glass houses shouldn't throw stones, even though the people spoke in a certain election, GWB still managed to find his way into office.;)

I actually think the 14th amendment has a lot to do with in my opinion, is the 14th amendment not about civil rights ?
Do normal, sane, intelligent people not think that everyone should be treated equally and gay people given the same rights as everyone else.
I can get the religious nuts going against it, sure they believe there is a man in the clouds :rolleyes:, but anyone else opposing it must have some serious moral issues.

And calling the judge a radical is a bit much, he had the courage to do the right thing and stand up for the constitution.
I think you were probably singing a different tune when Walker's original nomination to the bench by Ronald Reagan in 1987 stalled in the Senate Judiciary Committee because of controversy over his representation of the United States Olympic Committee in a lawsuit that prohibited the use of the title "Gay Olympics". Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged "insensitivity" to gays and the poor.

Amerika

TheReverend wrote: »

Sometimes the people are wrong.

Yes, a classic argument why a Republic form of government is superior to a Democracy - where rule is by omnipotent majority. In a Republic the people are ruled by an adopted set of laws… the Constitution and it’s amendments in our case.

Which form of government better protects the minority?

kev9100

Amerika wrote: »

Sorry, to me using the 14th amendment as the basis for the ruling is the work of an activist judge, when the 10th amendment clearily handles the circumstance (without flights of fancy added to the interpertation).

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

You just completely ignored what I said. The Supreme Court has identified marraige as a Civil Right and Prop 8 denied the LGBT community that right.

Amerika

Sorry, maybe I'm just thick. I don't see where you all are getting all this from the following. To me using this as the basis for the ruling is something no ordinary individual would garner from the amendment. And I'm pretty sure the Consitution was written by the founding fathers for the common man to understand.

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Carcharodon

Amerika wrote: »

Sorry, maybe I'm just thick.

You said it, not us.

kev9100

Amerika wrote: »

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

.

Amerika

Privileges or immunities are terms determined by laws, and Prop 8 determined that law in this situation in CA. If it was wrong, it should have been stopped and not even allowed to be voted upon... not afterward becasue some just don’t like the outcome.

kev9100

Amerika wrote: »

Privileges or immunities are terms determined by laws, and Prop 8 determined that law in this situation in CA. If it was wrong, it should have been stopped and not even allowed to be voted upon... not afterward becasue some just don’t like the outcome.

Yes, but the law was constitutionally wrong. For what seems like the hundreth time, neither the legislature or the electorate have the right to deny someone their Civil Rights. Thus, the judge struck down Prop 8.

Carcharodon

Amerika wrote: »

Privileges or immunities are terms determined by laws, and Prop 8 determined that law in this situation in CA. If it was wrong, it should have been stopped and not even allowed to be voted upon... not afterward becasue some just don’t like the outcome.

Maybe, but that still doesn't make it right.

Manic Moran

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The Priviliges and Immunities clause when applying the Bill of Rights is something of a dead letter and has almost no legal effect. The Slaughterhouse case saw to that. The best chance for a reversal was in McDonald, and only one justice was interested in bringing it back. 14th applies most of the Bill of Rights through the Due Process clause, for better or worse.

If gay marriage is covered under the Federal Constitution and if it is incorporated against the States through the 14th's Due Process clause, then it by definition is no longer a matter of States Rights. The tricky bit is figuring out where gay marriage is covered under Federal Constitution, but there is precedent in SCOTUS coming up with fundamental rights which are not written anywhere in the Constitution and decreeing them covered by it. Abortion is one of them. I have not read the Judge's opinion, but I presume that he/she did find a way of doing it.

There is something to be said, in the event of a questionable issue, of erring on the side of the individual liberty.

. If it was wrong, it should have been stopped and not even allowed to be voted upon... not afterward becasue some just don’t like the outcome.

I don't believe the American legal system allows for speculative litigation. Standing will only be granted once there is something to be enforced against the plaintiff. The case could only be brought after Prop 8 passed, not before.

NTM

Mjollnir

Amerika wrote: »

Privileges or immunities are terms determined by laws, and Prop 8 determined that law in this situation in CA. If it was wrong, it should have been stopped and not even allowed to be voted upon... not afterward becasue some just don’t like the outcome.

I'm sorry, but that's not how our system works in CA.

No amount of pouting will change that.

LostinKildare

Amerika

I wasn’t aware that much of anything worked in CA. :rolleyes:

And when did marriage become a civil right? How many other civil rights do you all know of that requires a license? I do know that every state has their own individual laws regarding marriage. Are they all unconstitutional?

And under the same argument used by so many here, wouldn’t polygamy also be considered a civil right? If not, why not?

BluePlanet

So AmeriKa, what's your beef with Gay Marriage?

Amerika

BluePlanet wrote: »

So AmeriKa, what's your beef with Gay Marriage?

Show me where anywhere in this thread that I indicated I had a beef with Gay Marriage.

BluePlanet

Amerika wrote: »

Show me where anywhere in this thread that I indicated I had a beef with Gay Marriage.

That appears rather self-evident tbh.
Your the only person here pouting about the judge's ruling.

So, are you a supporter of Gay Marriage?

Amerika

BluePlanet wrote: »

That appears rather self-evident tbh.

Unsurprisingly, you sound a lot like this activist judge IMO.

Your the only person here pouting about the judge's ruling.

Do you mean the only one standing up against incorrect rulings from activist judges?

So, are you a supporter of Gay Marriage?

If a particular state says it’s okay, then it’s okay in that state IMO (as long as they don’t require other states to abide by their decisions).

BluePlanet

Amerika wrote: »

If a particular state says it’s okay, then it’s okay in that state IMO (as long as they don’t require other states to abide by their decisions).

Does that mean you would have it that a person's marriage isn't recognised by another state?
That'd create all kinds of mess.

Amerika

BluePlanet wrote: »

Does that mean you would have it that a person's marriage isn't recognised by another state?
That'd create all kinds of mess.

Say Utah would happen to legalize polygamy. A man in Utah legally marries 6 women. He then decides to move his family to Texas. Although he would rightly be considered crazy to have 6 wives, Texas should not be forced to recognize his marriage to 6 women becasue Texas does not allow polygamy.

metrovelvet

BluePlanet wrote: »

Does that mean you would have it that a person's marriage isn't recognised by another state?
That'd create all kinds of mess.

That's right.

kev9100

Amerika wrote: »

And when did marriage become a civil right? How many other civil rights do you all know of that requires a license? I do know that every state has their own individual laws regarding marriage. Are they all unconstitutional?

And under the same argument used by so many here, wouldn’t polygamy also be considered a civil right? If not, why not?

I'm not sure if this applies to all States, but don't you need a licence to buy a gun?

And no, polygamy isn't a civil right as marraige is a union between two people and not 10 people.

Iwasfrozen

kev9100 wrote: »

And no, polygamy isn't a civil right as marraige is a union between two people and not 10 people.

But a polygamous marraige is a marraige between 3+ people.

Amerika

kev9100 wrote: »

I'm not sure if this applies to all States, but don't you need a licence to buy a gun?

No, only a few states require a gun license, and there is no federal license (execpt if I wish to own a fully automatic gun I believe). I'm going out tomorrow to a local gun dealer because I better utilize my right to bear arms before it's taken away as Kagan is joining the Supreme Court, and we all know how these activist judges work. I'm torn between getting a Glock 19 (for the wife) and a Ruger Mini-14 (for me), I guess I'll find out what licensing requirements I might need for each then. Heck, maybe I'll get both... his and hers.

And no, polygamy isn't a civil right as marraige is a union between two people and not 10 people.

I didn't realize civil rights were limited to two at a time. No Ménage à Rights eh?

And why is marriage constitutional to be a union between only two people, and not constitutional to be a union between only a man and a woman?

Manic Moran

BluePlanet wrote: »

Does that mean you would have it that a person's marriage isn't recognised by another state?
That'd create all kinds of mess.

I believe that's the current situation as regards gay marriage as it is. Things will get more interesting as it gets to the 9th Circuit, as that will be enforceable against a number of States.

I'm not sure if this applies to all States, but don't you need a licence to buy a gun?

Not in California. Actually, most States don't. Illinois is the only one which immediately comes to mind. At a lower level, some cities have enacted registration/licensing requirements. NFA items such as machineguns and grenades can only be purchased with an ATF permit. However, at this time, licensing/registration is considered to be Constitutional. The catch is that the license is not discretionary: If an applicant meets certain requirements which are considered to meet Constitutional muster, then the license must be granted. In effect, it's just a formality. It is to be borne in mind that this is still an evolving segment of Constituional law, as the right was only clarified two years ago, and made effective against the States two months ago, so there is still some room for change.

Similar with voting. You can't just turn up and vote, you have to be properly registered to do so. It's just a formality, but still a pre-requisite to exercising that pretty fundamental civil liberty.

NTM

kev9100

Amerika wrote: »

I'm going out tomorrow to a local gun dealer because I better utilize my right to bear arms before it's taken away as Kagan is joining the Supreme Court, and we all know how these activist judges work.


And why is marriage constitutional to be a union between only two people, and not constitutional to be a union between only a man and a woman?

Fortunately for you, the SC still has a conservative majority and even though I don't like it, you have a genuine to bear arms and no politician would dare touch the 2nd Amendment.


Because banning same-sex marriage denies the LGBT community the same rights that straight people enjoy i.e, to marry the person they love.

Amerika

kev9100 wrote: »

Because banning same-sex marriage denies the LGBT community the same rights that straight people enjoy i.e, to marry the person they love.

Using your agurment... since marriage is a social union between individuals that creates kinship (and nowhere is it limited to only 2 if we are looking at the whole civil liberty thing), why can't the same argument work for polygamy? Why can't three or more people marry the people they love?

Mjollnir

Amerika wrote: »

I wasn’t aware that much of anything worked in CA. :rolleyes:

I'll mark that down, then, as one of the things you're unaware of.

And when did marriage become a civil right? How many other civil rights do you all know of that requires a license? I do know that every state has their own individual laws regarding marriage. Are they all unconstitutional?

I don't know how often this will have to be repeated, but it's about equality under the law. No one's asking you to like it.

And under the same argument used by so many here, wouldn’t polygamy also be considered a civil right? If not, why not?

Polygamy should be a civil right, but isn't yet.

Mjollnir

Amerika wrote: »

Unsurprisingly, you sound a lot like this activist judge IMO.


Do you mean the only one standing up against incorrect rulings from activist judges?


If a particular state says it’s okay, then it’s okay in that state IMO (as long as they don’t require other states to abide by their decisions).

Tell you what: go ahead and cite exactly where in this ruling the judge crossed over from being impartial to 'activist'. The ruling is online now.

Please be very specific when citing the text.

Amerika

I defer to someone more qualified to speak "specifically" on how he crossed over.
http://www.nationalreview.com/bench-memos/242628/walker-s-opinion-reeks-bias-ed-whelan?utm_source=twitterfeed&utm_medium=twitter

Mjollnir

Amerika wrote: »

I defer to someone more qualified to speak "specifically" on how he crossed over.
http://www.nationalreview.com/bench-memos/242628/walker-s-opinion-reeks-bias-ed-whelan?utm_source=twitterfeed&utm_medium=twitter

Ah, so you haven't read the ruling, and you're unable to actually express what the problem is except by quoting some blowhard who thinks that because Walker is gay, he can't be impartial, and uses over-the-top emotional quips like "why does this document read like the battle report of a search-and-destroy mission?" What he should really be asking is why the proponents of prop 8 made such an incredibly stupid defense (straights raise kids better? WTF?) that now gives them a very difficult time in getting it overturned.

But of course, his arguments are based on emotion, and not legal issues.

Thanks for clearing that up.

LookingFor

Amerika wrote: »

And when did marriage become a civil right? How many other civil rights do you all know of that requires a license? I do know that every state has their own individual laws regarding marriage. Are they all unconstitutional?

Sorry if already addressed but:

The Supreme Court in the US has repeatedly affirmed that marriage is a fundamental right, integral to one's freedom to pursue happiness and all that lark. Repeatedly. The judge here wasn't ploughing any new ground there.

As far as I know on the second bit, only when a judgment is made at a federal level does it apply cross state. In time if a federal court upholds the unconstitutionality of this it'll apply across all states, but this was a Californian court, and though it can make judgments about the constitutionality of legislation, its findings are only binding in California.

I think you're way off the mark regarding your characterisation of the judge as being 'activist'. Have you read his judgement? Did you follow the case? Pretty much every issue you have raised here was addressed during the case and/or in his judgment. It was really very thorough, and you diminish the examination that occurred enormously by simply dismissing it as an activist judge forcing his view. Looking at the cases presented by both sides I have huge difficulty in finding scope for anyone to come to a differing conclusion in fact (at least wrt the facts of the case as he judged them to be).

edit - sorry, to clarify, this was a judgment at a Federal District Court level, but I'm not sure that's at a stage where the judgment applies to all states. Even if it did though, there's obviously a stay on it pending further appeals.

Amerika

But the fact still remains that this one judge overturned a measure approved by 52 percent of California voters in 2008 and upheld by the California Supreme Court in a 6-1 ruling.

LookingFor

Amerika wrote: »

But the fact still remains that this one judge overturned a measure approved by 52 percent of California voters in 2008 and upheld by the California Supreme Court in a 6-1 ruling.

Which is how a constitutional democracy works. If a piece of legislation is found to be unconstitutional, it doesn't matter how much popular support it had. It is not ideal that potentially unconstitutional legislation is put to a vote in the first place, but that's how it is, the system ain't perfect. Precedent is also exceptionally clear that fundamental rights are not subject to vote or elections.

Again, also, this was all thoroughly examined during the trial and in the judgment.

This was at a court one step up from the California Supreme Court, and obviously it can and will go further still.

Mjollnir

LookingFor wrote: »

Which is how a constitutional democracy works. If a piece of legislation is found to be unconstitutional, it doesn't matter how much popular support it had. It is not ideal that potentially unconstitutional legislation is put to a vote in the first place, but that's how it is, the system ain't perfect. Precedent is also exceptionally clear that fundamental rights are not subject to vote or elections.

Again, also, this was all thoroughly examined during the trial and in the judgment.

It's stunning how often the forces of irrationality and meddlesome, tight-lipped prudery need to be reminded of that, over and over.

Amerika

LookingFor wrote: »

Which is how a constitutional democracy works. If a piece of legislation is found to be unconstitutional, it doesn't matter how much popular support it had. It is not ideal that potentially unconstitutional legislation is put to a vote in the first place, but that's how it is, the system ain't perfect. Precedent is also exceptionally clear that fundamental rights are not subject to vote or elections.

Again, also, this was all thoroughly examined during the trial and in the judgment.

This was at a court one step up from the California Supreme Court, and obviously it can and will go further still.

Honest question... if this goes all the way up to the SCOTUS (which it probably will), and they overturn this judge's decision (and the 9th Circut) and do in fact side with CA on Prop 8 (all depends on Justice Kennedy), will you still be singing the same tune?

LookingFor

Amerika wrote: »

Honest question... if this goes all the way up to the SCOTUS (which it probably will), and they overturn this judge's decision (and the 9th Circut) and do in fact side with CA on Prop 8 (all depends on Justice Kennedy), will you still be singing the same tune?

An overturning of it at a higher court would obviously not change my understanding of the workings of a constitutional democracy or the whys and wherefores of these kinds of checks and balances. You asked how it is that a court can overturn a popular vote - I answered and an overturning of this judgment would not change my understanding of how a court can overturn a voter-backed piece of legislation.

If you're asking if I would disagree with the judgment, yes I would. If you're asking if I think it would contradict precedent and the protections of the constitution, yes I would.

But then I'm not a judge at any of these higher courts. Whatever they come up with, I'll look at it carefully. That I'm not a judge doesn't doesn't stop me agreeing or disagreeing with them, but these judgments don't impact my understanding of how a constitutional democracy is supposed to work which was the subject of our posts.

Carcharodon

Amerika wrote: »

I defer to someone more qualified to speak "specifically" on how he crossed over.
http://www.nationalreview.com/bench-memos/242628/walker-s-opinion-reeks-bias-ed-whelan?utm_source=twitterfeed&utm_medium=twitter

I said earlier an I will say it again.....

And calling the judge a radical is a bit much, he had the courage to do the right thing and stand up for the constitution.
I think you were probably singing a different tune when Walker's original nomination to the bench by Ronald Reagan in 1987 stalled in the Senate Judiciary Committee because of controversy over his representation of the United States Olympic Committee in a lawsuit that prohibited the use of the title "Gay Olympics". Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged "insensitivity" to gays and the poor.

Manic Moran

LookingFor wrote: »

This was at a court one step up from the California Supreme Court, and obviously it can and will go further still.

That's not technically true. CSC is the ultimate arbiter of California law, and the Federal District Court and Circuit Court of Appeals are bound by its determinations on that level. Theoretically SCOTUS has override capability, but it is very rarely used and even at that, pretty much only on matters involving Constitutional or general Federal law. The question before CSC was 'Is Prop 8 legal under California Law?'

The Federal District Court is a parallel judicial system with jurisdiction on matters federal. CSC will occasionlly ask the Federal Courts their opinion on a matter before them, but they don't have to. The question before FDC is "Is Prop 8 legal under Federal Law?", a different question.

However, you are correct that the case may go to the 9th. It may not, though, depending on how the anti-gay marriage group fancy their chances. Washington DC was lambasted by anti-gun groups and governments for appealing the Heller decision all the way to the Supreme Court. Had they just cut their losses at the district or circuit levels, there wouldn't have been a chance that a negative ruling, binding nationwide, would have resulted instead of a negative ruling binding solely on the District of Columbia. If the anti-gay marriage group appeals to the 9th and loses, then they've suffered a massive setback in all the Western States, whereas the, say, Federal District Court covering Oregon could rule in their favour were it a separate filing.

NTM