Analysts who followed the trial anticipate that Chief U.S. District Court Judge Vaughn R. Walker is likely to rule for the challengers of Proposition 8.We shall see.
Walker, a Republican appointee with libertarian views, made it clear from the start that he wanted a full-blown examination of the social and political controversies surrounding [neutering] marriage.The real question the court is supposed to be deciding is "Does the California Marriage Amendment violate the federal Constitution?" To violate the Constitution, it would have to violate one of the rights listed in the Constitution (enumerated), or one of the rights the Constitution doesn't list but is covered as follows:
Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth Amendment:
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.
Now, the Supreme Court of the United States has made rulings over the years that Walker (and the appeals court, and the sitting SCOTUS) may consider essentially a part of the Constitution. But precedents have been overturned, and where they violate the actual Constitution, they ought to be.
Reading the Constitution, it looks to me like the people of a given state retain the right to set conditions for state-issued marriage licenses, as that responsibility is not assigned to Congress, the President, or SCOTUS.
Under equal protection and due process, laws that have discriminated against people based on their skin color or ethnicity have been ruled unconstitutional. However, sex (male or female) is not treated on same level as these other conditions of birth – note that women aren't required to register for the draft. Furthermore, people have to be treated equally by the law only if they are equally situated. Laws can treat people differently based on what they do, and that is exactly what all law does. Different kinds of voluntary associations are treated differently under the law all of the time. Marriage is different from a bridless association or a groomless association.
Whether they want to exercise access or not, each and every homosexual person has the exact same access to state-licensed marriage as any heterosexual person. A homosexual person can marry another, or can marry a heterosexual person. A heterosexual person can marry another heterosexual person, or a homosexual person. This is a fact, no matter how irritating it may be to some.
So the marriage neutering advocates argue that the CMA is an animus-filled attack on homosexual people.
Saying that we have a bride+groom requirement in state marriage licensing just to show disapproval of homosexual people is like saying we have a standing military just to spite Jehovah's Witnesses. While JWs can conscientiously object to military service, no government agency is even asking a homosexual person to find someone of the opposite sex and get married. Marriage is a voluntary association. (And you know, what is our proof that keeping conscientous objectors out of the military is better for the country, anyway? You can't cite any studies, can you, you bigot! Time to award them medals and veteran benefits.)
[More after the jump - click below.]
Whatever Walker decides, the ruling almost certainly will be appealed to the U.S. 9th Circuit Court of Appeals and probably up to the U.S. Supreme Court.Of course.
The lopsided trial included 16 witnesses for the challengers and two for the defense.Most trials, even civil ones, are "lopsided". The plaintiffs have to prove their case with a majority of evidential strength. The defendants are not required to prove anything, but rather, if the plaintiffs have made a convincing case, the defendants need to raise enough doubt in that case.
Theodore J. Boutrous Jr. said they showed that the marriage [amendment] was irrational and that the November 2008 vote was tainted by prejudice and "hateful and erroneous messages."How is it irrational to value the inclusive union of a bride and groom? It certainly isn't irrational to note the differences between men and women, or what it takes to naturally produce new citizens.
I can't help but think that if the California Marriage Amendment could be considered unconstitutional, the state Supreme Court, the very same one that threw out Proposition 22 (California’s DOMA law, which was not a constitutional amendment), would have tossed it out or found some way around it. Even though they are supposed to be instructed by the California constitution, even with the "it's an amendment, not a revision", state courts constantly refer to the federal Constitution, which is supposed to be considered the highest law in the land.
The bottom line is that Walker will justify his ruling either way. Whether that justification will be solid remains to be seen, and I agree that this will go all the way to SCOTUS.
PW: Now, the Supreme Court of the United States has made rulings over the years that Walker (and the appeals court, and the sitting SCOTUS) may consider essentially a part of the Constitution.
ReplyDeleteThe controlling precedent in this case is Baker v. Nelson, which held that same-sex marriage was not required by the U.S. Constitution. This precedent can be overridden, but not by a lower court. That is why cases like Goodrich and the anti-8 case in front of the California Supreme Court were all carefully crafted not to appeal to the U.S. Constitution.