California Marriage Amendment Update

I don't think Jimmie JJ Walker has ever said anything as funny as some of the things U.S. District Judge Vaughn R. Walker said yesterday. Maura Dolan of the Los Angeles Times reports.

A federal judge refused Wednesday to dismiss a constitutional challenge to [the California Marriage Amendment], ruling that a trial was required to resolve legal and factual disputes over the voter-approved ban on same-sex marriage.

There should be no dispute. Licenses are issued on behalf of the people of a state. The people of California have limited the issuance of marriage licenses to one man and one woman, neither of whom is married, and who are not closely related to each other. None of these criteria exclude any individuals on the basis of sexual orientation or sex. The people of California lawfully amended their constitution. This amendment does not violate the federal Constitution.

[Continued after the jump.]

The California Supreme Court ruled in May that [the California Marriage Amendment], passed by 52.3% of voters, did not violate the state Constitution. The suit before Walker says the measure violates the federal Constitution's guarantees of equal protection and due process.

How, exactly does it do that? And if it does, what about "equal protection" for groups of three or more who want marriage licenses, or close relatives? Or why can't a business partnership be treat exactly like marriage? Why? Because - it is perfectly constitutional to treat different kinds of voluntary associations differently.

During the hearing, Charles Cooper, representing the Proposition 8 campaign, argued that marriage historically has been reserved for unions between a man and a woman because only opposite-sex couples can procreate "naturally."

Walker, however, noted that not all married couples can procreate.

That response ignores the actual argument. The argument is the pairing of a man and a woman is the only kind of pairing that can procreate naturally, even if not all of them will. No same-sex pairing procreates, no matter what the ages of the individuals. One woman, three men, four men, five women... none of those relationships procreate.

In addition, only the pairing of a man and a woman provides a representative of both of the two sexes that comprise society.

The Minnesota Supreme Court had rejected an equal protection challenge of that law, and the U.S. Supreme Court, without issuing a full-blown opinion, declined to hear an appeal.

"We can't put much stock in that case, can we?" Walker told the lawyers. He described the case as "old," "very limited" and "not a considered decision of the Supreme Court."

Old? Limited? So is Loving v. Virginia. So is Brown v. Board of Education. So is the Constitution. So what?

In his ruling, Walker also noted that [the California Marriage Amendment] stripped gays and lesbians of the right to marry, which they had been given six months earlier in a historic 4-3 ruling by the California Supreme Court.

True rights are not given by state courts. True rights are recognized by courts. If a court can create a right, the people can take it away. Even though the federal Constitution has the Second Amendment, lawmakers have taken away the "right" to purchase certain kinds of arms that we once had. Most laws "take away rights", in the definition he is using, and it wasn't just "gays and lesbians" who could form a legal brideless or groomless "marriage", so they weren’t the only people who lost those "rights". We all did. There is no illegal discrimination involved. Here, as frustrating as that reality is for those who lost the vote.

"Potentially, [the California Marriage Amendment] may be invalid given the history in California, while similar actions in another state . . . may not be constitutionally infirm," Walker said.

So, which is it? Are states allowed to be different from each other, or not? Choose your side of the fence now.

The judge previously ordered the Proposition 8 campaign to disclose its internal strategy memorandums and communications, an order the campaign is appealing to the U.S. 9th Circuit Court of Appeals on 1st Amendment grounds.

Yeah, I wasn't expecting much from him, given that prior order.

Theodore Olson, representing same-sex couples in the case, told Walker that if the appeal delays the trial, he may ask for a preliminary injunction to suspend [the California Marriage Amendment].

Oh, that would be rich. A court being able to suspend the constitution?

Walker also ordered written arguments on a request by the Proposition 8 campaign to remove Atty. Gen. Jerry Brown as a defendant and make him a plaintiff in the case. Brown, who was sued in his position as the state's chief law enforcement officer, has said in court papers that he agrees with plaintiffs that the ballot measure was unconstitutional.

Brown and the plaintiffs oppose the potential realignment.

Well, of course they do. If you could choose your "opponent", wouldn't you choose someone who agrees with you?

Judge Walker, I know it is highly unlikely you will ever read this, but if you have and you feel insulted by my lack of appreciation for your reasoning, please note that we feel insulted by your lack of respect for our votes and the institution of marriage, and the value of uniting the two sexes. You may believe in your heart of hearts that a state has no compelling reason to distinguish between bride+groom pairings and other kinds of voluntary relationships, but it really isn't your place to solve everything you perceive to be a problem, even if it comes to your court. The people have spoken, and the people have a government. It isn't the other way around. Any of these couples will, as domestic partners, be treated by the state government the same way spouses are treated. It is not your job to look after their feelings, or advance their agenda. It is up to them to persuade the rest of us to their point of view.