U.S. District Chief Judge Vaughn R. Walker said Proposition 8, passed by voters in November 2008, violated the federal constitutional rights of gays and lesbians to marry the partners of their choice.What if they want to marry more than one partner? What if they want to marry a brother? If they have a right to marry "the partners of their choice", and that is their choice, doesn't that mean laws preventing such things are unconstitutional?
"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment," the judge wrote. "Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."
It is homosexuality advocates that have created an irrational classification. Prop 8 doesn't mention sexual orientation. Due process was not denied. California voters duly voted for and duly adopted a valid constitutional amendment, as the state Supreme Court affirmed.
California already provided equal protection to same-sex couples through domestic partnerships, though it is valid to treat different kinds of voluntary associations differently as long as individuals have equal access to such associations - and they did.
"Plaintiffs seek to have the state recognize their committed relationships,California already does.
and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States."In what way? By this reasoning roommates are married, or any two strangers that go to the County Clerk at the same time and ask for a license.
Ultimately, the judge concluded that Proposition 8 "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.It didn’t single out homosexual people. Everyone, regardless of orientation, had (and now, still has) the very same access to marriage licenses.
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.
Both-sexes couples are demonstrably different. And as a group, they do provide more to society because of the nature of their unions than same-sex couples.
From Rong-Gong Lin II.
"California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result."Able" is an interesting word.
It's unclear, however, whether his ruling will be stayed until a higher court can hear the matter, which is expect.
So even if the state isn't compelled to issue neutered licenses, given our elected leadership, it probably will. They’ve already come out with statements praising the decision.
Given what the voters have said, and that everyone expects this to go to SCOTUS, why do we bother with having any other government leadership than SCOTUS? Let's just get rid of all of the superfluous state governments, separation of powers, and ballots, and let SCOTUS fill its own vacancies.
We happen to have a Federal Administration that would love nothing more than to further its reach as a Nanny state. Marriage and family are roadblocks along the path to socialism/communism.
ReplyDelete"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."
ReplyDeleteThis isn't an issue of superiority, but of relevancy. The basis and function of human sexuality isn't about anyone being better then anyone else, but rather addressing a need to recognize the kinship basis* that every individual has consanguinity (a biological family).
It's not something derived from a judge or legislation, it exists as is. We all exist through heterosexual activity, it's not something a judicial decree can simply erase.
-----------
* Kinship.... so are we redefining this also?
"Kinship is a relationship between any entities that share a genealogical origin, through either biological, cultural, or historical descent. In anthropology the kinship system includes people related both by descent and marriage, while usage in biology includes descent and mating. Human kinship relations through marriage are commonly called "affinity" in contrast to "descent" (also called "consanguinity"), although the two may overlap in marriages among those of common descent. Family relations as sociocultural genealogy lead back to gods[1] (see mythology, religion), animals that were in the area or natural phenomena (as in origin stories).
Kinship is one of the most basic principles for organizing individuals into social groups, roles, categories, and genealogy. Family relations can be represented concretely (mother, brother, grandfather) or abstractly after degrees of relationship. A relationship may have relative purchase (e.g., father is one regarding a child), or reflect an absolute (e.g., status difference between a mother and a childless woman). Degrees of relationship are not identical to heirship or legal succession. Many codes of ethics consider the bond of kinship as creating obligations between the related persons stronger than those between strangers, as in Confucian filial piety."
An interesting analysis of Walker's ruling from Dale Carpenter, who, of course, is pro-SSM.
ReplyDeleteA Maximalist Decision, Raising the Stakes
Dale Carpenter • August 4, 2010 7:54 pm
I’m still studying the decision today in Perry v. Schwarzenegger, which strikes down Prop 8 on both due process and equal protection grounds. I like a lot of the language, and the arguments, as a matter of rhetoric, common sense, and policy. There are some interesting twists on familiar arguments and, overall, the opinion is a pretty good compendium of a policy brief for SSM.
But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws.
Walker is the first federal judge to hold that states must recognize same-sex marriages. By doing so, he eschewed a potentially narrower ruling striking down only Proposition 8, which had been suggested by some commentators. Such an alternative ruling would have focused on what critics regarded as the “animus” behind the passage of Prop 8. In theory, it would have left states free to retain traditional definitions of marriage not reinforced by passion-driven plebiscites. I think a narrow, strictly anti-Prop 8, decision would have tried to thread too thin a needle, but it was an option. Walker mentions anti-gay sentiment in the Prop 8 campaign, especially highlighting the shameful and misleading ads supporting it, but that is not the basis for his decision.
Instead, finding a federal right to same-sex marriage itself, Walker leans on not one but two prominent constitutional arguments. First, he says that the fundamental right to marriage protected by the Due Process Clause includes the right to choose the sex of one’s mate. That’s because, he writes, sex-based classifications in marriage have long since been stripped away. The ban on same-sex marriage is the vestige of discredited and long-abandoned sex discrimination in marriage.
Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights. If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent. A minimalist decision for SSM by Walker could have left this matter undecided and thus would not have forced a higher court’s hand.
(second part of above)
ReplyDeleteSecond, Walker held that the ban on gay marriage violates the Equal Protection Clause. The interesting question is why. In part of Walker’s opinion, he accepts the case for heightened scrutiny of classifications based on sexual orientation and asserts that denying marriage to same-sex couples is a form of sexual-orientation discrimination (and sex discrimination, which is related).
But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.
Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?
The decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat.
Judge Walker, I am sure, would deny that his decision is maximalist. SSM, he assures us, is not a “sweeping” change. Furthermore, his decision is couched in the lop-sided evidence presented at trial about marriage and the potential consequences of recognizing SSM. By my count, he uses the word “evidence” 54 times in the “Conclusions of Law” section alone. This evidentiary reliance will be used to try to insulate the decision from meaningful appellate review. The evidence just leads us, inescapably, to the conclusion that SSM is a neutral or even good thing. What’s more, the evidence is so one-sided that judges are entitled to say so as a matter of constitutional law. But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous.
Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next. The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM. Premature litigation, they feared, would do more harm than good (even if there were a temporary win at a lower level). Well, nothing has changed except that the stakes have been considerably raised today in a maximalist decision, bringing us one step closer to Perry v. Schwarzenegger, ___ U.S. ___ (201_) (reversing lower court ruling for same-sex marriage on due process and equal protection grounds).
Link