Open thread: Federal judge’s ruling on Proposition 8 coming soon; Update: Prop 8 struck down

posted at 4:45 pm on August 4, 2010 by Allahpundit

It’s set to drop sometime between 4 p.m. and 7 p.m. ET, and since it’s sure to be the story of the day, let’s get a thread up now for rapid reaction when it does. The suspense mounts: Will Judge Vaughn Walker hand conservatives a legal victory by upholding Prop 8 against Ted Olson’s and David Boies’s equal protection challenge? Or will he hand conservatives a political victory by striking the law down, thereby irritating the (decreasing) majority nationwide that opposes gay marriage and giving the GOP an irresistible midterm talking point about “activist judges”? Heads you win, tails they lose. Unless of course you’re noted gay-marriage opponent Barack Obama, who I’m betting will be oddly downbeat if Walker vindicates his ostensible position by upholding the law.

While we wait, you can read Olson’s opening statement at the trial here. The key line for legal purposes is “There is no rational justification for this unique pattern of discrimination.” In any equal protection case, there are three levels of scrutiny: (1) strict scrutiny, which applies to laws that discriminate based on race or religion; (2) intermediate scrutiny, which applies to laws that discriminate based on gender; and (3) rational-basis review, which applies to all other forms of discrimination, especially economic. Basically, a law that falls into the first category is always unconstitutional, a law that falls into the second is sometimes unconstitutional (it depends on the specifics), and a law that falls into the third is almost always constitutional. Because the Supreme Court has never held that gays are a “suspect class” and therefore deserving of the special protection of strict scrutiny, Olson had a choice of how to approach this. Either he could argue that they should be a suspect class, in which case Prop 8 would inevitably be struck down, or he could forget the suspect class stuff and argue that even under the lowest level of scrutiny — rational-basis review — Prop 8 should be struck down because denying marriage rights to gays serves no rational purpose. He apparently went the latter route, which is smart insofar as the Supremes will be reluctant to extend “suspect class” status any further than it already is and because Anthony Kennedy has already written two landmark decisions striking down anti-gay laws — one of which was explicitly based on rational-basis review. In other words, Olson already has his eye on this case landing in the high court and he’s playing for a 5-4 win with Kennedy as the deciding vote, figuring that if AK was willing to call discrimination against gays irrational once before, he’ll be willing to do so again.

So there’s the legal posture, and there’s your explanation why this case will assuredly be appealed to the (gulp) Ninth Circuit no matter which way it goes. Stand by for updates.

Update: My timing was perfect: Just as I hit publish on this post, the news broke that Walker has torpedoed Prop 8. No surprise. Waiting for the opinion.

Update: Okay, here’s the decision. The law was struck down on two grounds, both due process (page 109) and, as expected, equal protection (page 117). And as expected, the EP ruling is that there’s no rational basis for limiting marriage to straights.

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.

Update: The LA Times notes that even the witnesses who testified on behalf of Prop 8 made important concessions:

Backers of Proposition 8 contended that the legal burden was on the challengers to prove there was no rational justification for voting for the measure. They cited as rational a view that children fare best with both a father and a mother.

But defense witnesses conceded in cross-examination that studies show children reared from birth by same-sex couples fared as well as those born to opposite-sex parents and that marriage would benefit the families of gays and lesbians.

Update: Gabe Malor has another key excerpt from the opinion the lack of compelling witness testimony in defense of the law.

Update: CNN has a handy dandy guide to how this will make its way up to the ladder to the Supreme Court. First comes the three-judge hearing in the Ninth Circuit, then comes an en banc hearing of the entire court, and then presumably the Supremes will grant cert. Possibly … just in time for the 2012 election?

Update: A good point by Marc Ambinder on why the evidentiary portions of the ruling are arguably more important than the legal conclusions. Appellate courts can overrule the latter but they’re usually bound by the trial court’s findings of fact. So Walker’s finding, based on the testimony, that “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union” should in theory also guide the Supreme Court.


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It just means decided without a clear standard or determination.

Also decided on a whim, or by fiat, or by personal preference, or without a clear standard or determination.

Since there is a standard, particularly within our own nation for age of consent, I’m not understanding what the problem is here.

How do you measure biological/emotional readiness?

tom on August 5, 2010 at 1:46 PM

How does one study human development at all? There are entire branches of science devoted to this.

I also don’t understand why it seems you’re arguing against legal age of consent which serves to protect children from predators. How else would you want local jurisdictions or even the federal government to determine it? If it is, in fact, arbitrary how would you determine it?

Bee on August 5, 2010 at 2:04 PM

People should just stop reproducing all together

Observation on August 5, 2010 at 2:08 PM

Wait…the point of monogamy is for there to be only one male, but not one female? Tell me I’m reading that wrong.

The point of monogamy is to insure:
a) all children of the wife are fathered by the husband, so that his resources are not used without his consent on the children of other men.
b) the husband does not father children on other women, so that his resources are no pulled away from his wife and their children.
c) the prevention of the spread of STDs (a great danger with M-M sex, some danger with M-F sex, but not really much more dangerous than kissing for F-F sex.)
So, yeah. Women on women don’t count.

If a person is attracted to the same sex, what is your proposal? That they not try to be monogamous? That they marry someone they’re not attracted to?

MadisonConservative on August 5, 2010 at 12:41 PM

People have been raising normal, nuclear families for thousands of years without being particularly attracted to their partners. Why make an exception for those with homosexual tastes?

Count to 10 on August 5, 2010 at 2:08 PM

Straw man argument. Then again, you weren’t doing so well on a real argument. Better start throwing around ad hominems.

Say something about the “learning impaired” again.

I’m pointing out what arbitrary means. I said nothing about opposing age of consent or even adjusting age of consent.

tom on August 5, 2010 at 1:30 PM

Why are you arguing the point if you’re not in favor of the abolishing of arbitrary laws?

MadisonConservative on August 5, 2010 at 2:11 PM

The point of monogamy is to insure:
a) all children of the wife are fathered by the husband, so that his resources are not used without his consent on the children of other men.
b) the husband does not father children on other women, so that his resources are no pulled away from his wife and their children.
c) the prevention of the spread of STDs (a great danger with M-M sex, some danger with M-F sex, but not really much more dangerous than kissing for F-F sex.)
So, yeah. Women on women don’t count.

You appear not to understand the logistics of F-F sex. I’m not going to go into it, but yes, STDs can be spread quite easily between them. So your point C is flawed. Your ultimate point is quite unsettling. You basically state that monogamy has nothing to do with fidelity.

People have been raising normal, nuclear families for thousands of years without being particularly attracted to their partners.

…and you see this as a good thing?

Why make an exception for those with homosexual tastes?

Count to 10 on August 5, 2010 at 2:08 PM

So you’re saying homosexuals should be as unhappy and unsatisfied as you perceive heterosexuals to be.

Good lord, you’re a sad person. I’m not saying that as an insult.

MadisonConservative on August 5, 2010 at 2:14 PM

People have been raising normal, nuclear families for thousands of years without being particularly attracted to their partners.
Count to 10 on August 5, 2010 at 2:08 PM

I wouldn’t wish that on my worst enemy.

OK, I might…

Bee on August 5, 2010 at 2:18 PM

Already argued with right4life in about this issue until my brain exploded from the inanity. Here it is:

http://hotair.com/archives/2010/07/28/video-university-makes-diploma-contingent-on-supporting-gay-rights/

Bee on August 5, 2010 at 1:26 PM

I got a few laughs from your stupidity…as this ruling proves AGAIN how idiotic your arguments are.

right4life on August 5, 2010 at 2:28 PM

So you’re saying homosexuals should be as unhappy and unsatisfied as you perceive heterosexuals to be.

Good lord, you’re a sad person. I’m not saying that as an insult.

MadisonConservative on August 5, 2010 at 2:14 PM

no wouldnt’ want to upset teh gays, its why we have to eliminate freedom of religion and speech that disagrees with the gays…

you really are a fascist.

right4life on August 5, 2010 at 2:29 PM

Thirteen hundo

Inanemergencydial on August 5, 2010 at 4:01 PM

So you’re saying homosexuals should be as unhappy and unsatisfied as you perceive heterosexuals to be.

Good lord, you’re a sad person. I’m not saying that as an insult.

MadisonConservative on August 5, 2010 at 2:14 PM

Did I say anything about them being unhappy?
Happy marriages are not about being attracted to you spouse. In fact, I imagine that it would be a serious barrier to long term long term happiness.

Count to 10 on August 5, 2010 at 4:01 PM

Happy marriages are not about being attracted to you spouse. In fact, I imagine that it would be a serious barrier to long term long term happiness.

Count to 10 on August 5, 2010 at 4:01 PM

Huh. I guess the fact that I’m still attracted to my fiancee after nine years of being together means we’re doomed.

MadisonConservative on August 5, 2010 at 4:07 PM

At least bigamy is condoned historically, and bibically. While homosexuality is condemned.

E L Frederick (Sniper One) on August 5, 2010 at 4:13 PM

Already spouted the same nonsense to right4life in about this issue until my brain exploded from the inanity.

Un-Bee-lievable on August 5, 2010 at 1:26 PM

FTFY.

Dark-Star on August 5, 2010 at 4:23 PM

Huh. I guess the fact that I’m still attracted to my fiancee after nine years of being together means we’re doomed.

MadisonConservative on August 5, 2010 at 4:07 PM

I do wonder how your spouse lives with a sarcastic dumbass like yourself. Still, there’s somebody for everybody. (supposedly)

Dark-Star on August 5, 2010 at 4:25 PM

Huh. I guess the fact that I’m still attracted to my fiancee after nine years of being together means we’re doomed.

MadisonConservative on August 5, 2010 at 4:07 PM

Nine years? Talk about procrastination. I guess you’ll join procrastinators anonymous(PA) when you get around to it.

DFCtomm on August 5, 2010 at 4:26 PM

Nine years? Talk about procrastination. I guess you’ll join procrastinators anonymous(PA) when you get around to it.

DFCtomm on August 5, 2010 at 4:26 PM

May just mean that in another 5 years s/he might be of age to marry…

E L Frederick (Sniper One) on August 5, 2010 at 4:34 PM

Nine years? Talk about procrastination. I guess you’ll join procrastinators anonymous(PA) when you get around to it.

DFCtomm on August 5, 2010 at 4:26 PM

High school and college got in the way.

I do wonder how your spouse lives with a sarcastic dumbass like yourself.

Dark-Star on August 5, 2010 at 4:25 PM

I do wonder how you manage to feed yourself with a negative IQ. I guess the world is filled with mysteries.

MadisonConservative on August 5, 2010 at 4:44 PM

May just mean that in another 5 years s/he might be of age to marry…

E L Frederick (Sniper One) on August 5, 2010 at 4:34 PM

Marvelous.

MadisonConservative on August 5, 2010 at 4:47 PM

Marvelous.

MadisonConservative on August 5, 2010 at 4:47 PM

Worked for Mohammad, who am I to throw stones…

E L Frederick (Sniper One) on August 5, 2010 at 4:53 PM

Huh. I guess the fact that I’m still attracted to my fiancee after nine years of being together means we’re doomed.

MadisonConservative on August 5, 2010 at 4:07 PM

Seriously, what happens when you just don’t find her attractive anymore, or find someone more attractive?

Count to 10 on August 5, 2010 at 5:05 PM

Breezing through the comments, I’ve noticed that no one has yet come down and stated where this will end. Will polygamy be next to be suddenly found to be constitutional? Before you claim “that isn’t the issue” isn’t it?

The question of where it ends is absolutely part and parcel of the debate. I’ll bet money that within five years of the ruling from the Supremes if they find for the idea that Gay Marriage is protected by the Constitution, we will have a flurry of lawsuits using that as the basis to find for Polygamy, Bestiality, and a host of other legally prohibited socially unacceptable behavior.

You say don’t be stupid, yet, there is no way you can guarantee that such actions would not be taken. Nor could you guarantee that using the current case as a foundation, that those cases would lose. After all, if two men, or two women have a right to marry, do two women and one man? Or three men and a woman? Why not have a large group of people living together, each married to one and all? Sleeping arrangements may be tough, and storage of clothing would be questionable, no telling what room you’ll be in the next morning when you wake, but is it any less acceptable if it concerns consenting adults, than gay marriage?

However, as I mentioned before. This is the Liberal playbook. If you don’t get your way through the legislature, or the ballot box, run to the courts. It’s how we got Abortion, and how we got a number of other really great social advances right?

I was in California in the 1980s, and I remember discussing this then. The argument from the Homosexual community was that they didn’t want to get married, they just wanted an end to discrimination in the workplace, and an end to the arbitrary Sodomy laws that made it illegal for them to enjoy a consensual relationship with their partner.

Opponents of those changes predicted that Gay Marriage was on the horizon, and it was the first time in my life I saw the Adam and Steve references. It was on billboards that opposed the Homosexual choice, and called on people to resist changes to our laws concerning workplace protections.

The Homosexual community and the Liberals all denounced these claims as scaremongering. Yet today, thirty years later, those predictions are all coming true, yet no one is mentioning the broken promises of thirty years ago. Those promises have been conveniently forgotten in the meantime. Swept away by the changes in societal moralities. It went from banning homosexuals, to don’t ask don’t tell, to just ignore it and we’ll pretend it’s all right.

So when we don’t believe the assurances of the Homosexual Community and the Liberals that these doom and gloom scenarios are not their intentions, you’ll forgive me for saying, I’ve heard that before.

Snake307 on August 5, 2010 at 5:19 PM

Seriously, what happens when you just don’t find her attractive anymore, or find someone more attractive?

Count to 10 on August 5, 2010 at 5:05 PM

I’ll let you know when either occurs. I will note that my parents have been happily married for over 35 years, and that my father still finds my mother attractive.

Seriously, I thought I was supposed to be the “liberal” here, arguing for gay marriage. Meanwhile you’re arguing that attraction always dies.

MadisonConservative on August 5, 2010 at 5:24 PM

http://en.wikipedia.org/wiki/Reynolds_v._United_States

The most important ruling of the case was over whether Reynolds could use a defense due to religious belief or duty. Reynolds had argued that as a Mormon, it was his religious duty as a male member of the church to practice polygamy if possible.

The Supreme Court recognized that under the First Amendment, the Congress cannot pass a law that prohibits the free exercise of religion. However it argued that the law prohibiting bigamy did not fall under this. The fact that a person could only be married to one person had existed since the times of King James I of England in English law, upon which United States law was based.

Although the constitution did not define religion, the Court investigated the history of religious freedom in the United States. In the ruling, the court quoted a letter from Thomas Jefferson in which he stated that there was a distinction between religious belief and action that flowed from religious belief. The former “lies solely between man and his God,” therefore “the legislative powers of the government reach actions only, and not opinions.” The court argued that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” The Court believed the true spirit of the First Amendment was that Congress could not legislate against opinion, but could legislate against action.

The version of Jefferson’s Danbury letter which the Court used was in fact a mistaken transcription. While the Court quoted Jefferson as writing, “the legislative powers of the government reach actions only, and not opinions”, Jefferson’s original handwriting reads “the legitimate powers of the government reach actions only, and not opinions.”

E L Frederick (Sniper One) on August 5, 2010 at 5:29 PM

Someone tell me that some pervert like FLDS “leader” Warren Jeffs wouldn’t love to see homosexual marriage legitimized so he can push right behind in the courts to have the “harmless” practice of bigamy (between consenting adults) legitimized.

You can say it won’t happen, that they are different issues, but they are not. Once the courts legitimize one deviant lifestyle, where does it end?

This is a slippery slope that has no good ending spot, soon everything under the sun will be legal and legitimized.

E L Frederick (Sniper One) on August 5, 2010 at 5:38 PM

E L Frederick (Sniper One) on August 5, 2010 at 5:38 PM

I agree, the question is where we draw the line, and how we justify that line when we reach it. If we claim that we’re going to stop with Gay Marriage, then how long before a Polygamist files a lawsuit claiming the he is being discriminated against under the equal protection clause, and uses quotes from the findings of this ruling as further justification? The next step is of course, Bestiality and then we’re headed into Necrophilia, and our dear friends at NAMBLA, and from there who knows.

Before you say that it’s impossible, or we’re scaremongering. Remember this little tidbit. Using the argument from the Prop 8 Court case, Society isn’t harmed when a man marries a computer game, so why should we oppose it?

Snake307 on August 5, 2010 at 7:13 PM

I also don’t understand why it seems you’re arguing against legal age of consent which serves to protect children from predators. How else would you want local jurisdictions or even the federal government to determine it? If it is, in fact, arbitrary how would you determine it?

Bee on August 5, 2010 at 2:04 PM

I’ve been busy the past few hours, but i did want to address this one more time. I am not arguing for changing age of legal consent. Why would I be? But I am pointing out that arbitrary doesn’t necessarily mean according to whim, that would lead to a wildly varying result. This is Merriam Webster’s definition:

Main Entry: ar·bi·trary

1 : depending on individual discretion (as of a judge) and not fixed by law

2 a : not restrained or limited in the exercise of power : ruling by absolute authority b : marked by or resulting from the unrestrained and often tyrannical exercise of power

3 a : based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something b : existing or coming about seemingly at random or by chance or as a capricious and unreasonable act of will

You’re interpreting arbitrary more or less according to definition 3b: capriciously, randomly, according to whim. But arbitrary doesn’t always mean that. It can apply, as in definition 3a, to anything ultimately based on individual preference or convenience rather than based on an intrinsic value.

There is no intrinsic measurement that tells you when someone is an adult. Since age of consent is generally determined by adulthood, it’s … arbitrary.

Having just about rode this horse into the ground, I’m jumping off now.

tom on August 5, 2010 at 8:12 PM

tom on August 5, 2010 at 8:12 PM

you’ll find aunt bee is remarkably resistant to truth, logic, history, etc.

right4life on August 5, 2010 at 9:17 PM

So when we don’t believe the assurances of the Homosexual Community and the Liberals that these doom and gloom scenarios are not their intentions, you’ll forgive me for saying, I’ve heard that before.
Snake307 on August 5, 2010 at 5:19 PM

Amen to your post, Snake. It won’t stop here, because “marriage” isn’t what homosexuals are really after. Oh, some might want the moniker so they can feel more like how they are living is normal and natural, because even they have a hard time believing it. But what they want more is total adulation and militant acceptance from the public for the fact that they have sex with members of their own gender. Wow, how proud they must be.

What everyone commenting here seems to be missing however, is that once again, an activist judge(and a homosexual one at that, I believe) just took the votes of the majority of the people of California and threw them in the trash.
This is what really ticks me off. It is like your votes don’t matter(and for this issue, I am sure they want the people who voted for Prop 8 to think they don’t matter so they will drop the subject). I never thought in a million years that the people of a state like California would ever approve Prop 8 in the first place. But they did, and surprised us all. But then, with support from homosexual groups who don’t like laws unless it applies to helping them live a self-destructive lifestyle, one person took those votes, made in democratic style, and made them useless.

Why don’t we all be like that?! Snivelling babies who run to a bully judge when they don’t get their way.
I don’t like this politician. I don’t like this law. I don’t like this moral standard.
I don’t have to follow it. I will make my own rules and laws. AND YOU WILL ACCEPT IT! Or else.

This is how anarchy begins.

If this country is pulled into anarchy, remember who did the pulling.

But of course by then it won’t matter.

Sterling Holobyte on August 6, 2010 at 1:44 AM

What everyone commenting here seems to be missing however, is that once again, an activist judge(and a homosexual one at that, I believe) just took the votes of the majority of the people of California and threw them in the trash.
This is what really ticks me off. It is like your votes don’t matter(and for this issue, I am sure they want the people who voted for Prop 8 to think they don’t matter so they will drop the subject). I never thought in a million years that the people of a state like California would ever approve Prop 8 in the first place. But they did, and surprised us all. But then, with support from homosexual groups who don’t like laws unless it applies to helping them live a self-destructive lifestyle, one person took those votes, made in democratic style, and made them useless.

Why don’t we all be like that?! Snivelling babies who run to a bully judge when they don’t get their way.I don’t like this politician. I don’t like this law. I don’t like this moral standard.
I don’t have to follow it. I will make my own rules and laws. AND YOU WILL ACCEPT IT! Or else.
Sterling Holobyte on August 6, 2010 at 1:44 AM

So you are okay with the Health care bill because it was done by the representatives picked by voters and signed into law by the lawfully elected president. The ones contesting it in court are snivelling as well?

I smell a little hypocrisy.
If people want marriage to be defined a certain way use the legislative process to amend the constitution. Since states are supposed to recognize marriages from other states this will be an ongoing issue until it is settled in the constitutionally prescribed way.

Bradky on August 6, 2010 at 9:22 AM

So you are okay with the Health care bill because it was done by the representatives picked by voters and signed into law by the lawfully elected president. The ones contesting it in court are snivelling as well?

It’s the same thing; only instead of an activist judge, you have out-of-touch politicians. The majority of people opposed the health care bill, but the ones in power(you know, the people we voted in to be OUR servants) don’t listen. They just do what they want to do. Why do you think our “lawfully elected president” ‘s ratings are in the tank, along with congress?!

this will be an ongoing issue until it is settled in the constitutionally prescribed way.
Bradky on August 6, 2010 at 9:22 AM

What planet have you been on? It WAS settled! By a majority vote from the people of California!

Sterling Holobyte on August 7, 2010 at 2:07 AM

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