Prop 8 Has Been Overturned

[wuapinmon]

Ya know, I'm feeling pretty damned good about these old posts today:

http://www.cougaruteforum.com/showpost.php?p=68860&postcount=181

http://www.cougaruteforum.com/showpost.php?p=68819&postcount=171

[OrangeUte]

This, I think, is a very poor point. If counsel had made this argument in front of a jury it would certainly be objected to and the objection would likely be sustained. The witnesses a party calls or does not call is irrelevant and prejudicial. It sounds, to me, as if the judge is trying to paint the proponents as a scared group trying to hide the ball. That is improper conduct for a judge, IMO.

that is how it struck me as well. i haven't been able to read much more of the opinion b/c of work, so i'm interested to see what actual analysis this point gets, if any, in the ultimate opinion.

The judge earlier in the opinion points out that the proponents (the lawsuit is Schwartznegger against eh plaintiffs, but truly it is the proponents of prop 8 defending the government - this is not unusual) made assertions in their trial brief of such proof that they would present but they failed in many instances to satisfy the promises of their own brief... so i don't know if he's going to tie the quote i included above as part of that analysis or not.

i hate really long judicial opinions. they are exhausting to read anyway, and it's hard to do it all in one sitting, unless you are in law school or billing by the hour for the work.

[Jacob]

FYI, it was a federal court, not the California Supreme Court that made yesterday's ruling.

If you read my post, you'll see that I am quite clear on that. This sentence is a dead giveaway:

Now we come to a lowly federal court district judge, who just happens to be gay. He's not an appellate court judge, he's a trial judge.

[ewth8tr]

If you read my post, you'll see that I am quite clear on that. This sentence is a dead giveaway:

It was too long to read the whole thing without falling asleep

[Sleeping in EQ]

The nutty political e-mails from ward members are coming in force.

Sunday might be a grin-and-bear-it kind of day.

[Color Me Badd Fan]

Yesterday's court decision was about whether Prop 8 is constitutional, which is an entirely different issue than has been debated before. The judge's decision is legally quite questionable (and that may be an understatement). Just wanted to note that, since everyone here is re-debating the issue of whether Prop 8 is a good or bad idea - not whether it's constitutional.

By the way, that the judge is openly gay is indeed relevant, just as it is that he was a Reagan-Bush appointee. Judge's backgrounds are always relevant. Lawyers look at that when deciding how to approach a case, or if they have any influence over which judge they get. In state court judges can be removed from a case by one party or the other, for no reason at all. (You only get one shot at that, and it's not always the smart thing to do.) This judge made every pre-trial ruling in favor of the plaintiffs, some of them quite aggressive, like his effort to get the proceedings on live TV and his ruling allowing extremely broad discovery of the Yes on 8 campaign's internal memos and e-mails. He was reversed by the 9th Circuit on the discovery issue. The judge here acted like a guy who really wanted the result that he eventually ordered. All that is relevant in evaluating his decision.

As I said before, if the judge had been a Mormon there would have been a furor over that. If he had been Mormon and had made the kinds of rulings Judge Vaughn made, he would have had to go into the federal witness protection program. (Just kidding about that last one but you get my point: it is fair to comment on a judge's background.)

I haven't read this decision but it sounds like the judge ruled Prop. 8 was unconstitutional on both substantive due process and equal protection grounds.

I will bet anyone on the board that the equal protection segment of the decision will not stand. There's no effing way the SC or even possibly the Ninth Circuit won't reverse this part of the decision. The SC will not open the "gays are a protected class" can of worms.

The significantly more narrow avenue is substantive due process. It sounds like the decision is so far out there, the judge may have overstepped things to the point that even his rationale on substantive due process will be reversed.

Just a very brief and incomplete Cliffs Notes version of substantive due process and equal protection jurisprudence on this issue:

Substantive due process is the means by which certain "fundamental rights" have been recognized and substantive due process demands that the government not infringe on these rights. Two quick examples include the government cannot ban contraception and the prison system cannot sterilize prisoners.

Equal Protection involves the recognition of "suspect classes" and any law that draws distinctions between these suspect classes and everyone else has to meet a near impossible standard to be ruled constitutional. Race is the most well-known item that creates "suspect classes." IIRC, children born out of wedlock is another "suspect class."

Awarding suspect class status to gays would create an absolute mess for the courts and they're not going to do it. Recognizing a fundamental right to marry another adult is a much easier route.

[OrangeUte]

the judge's sexual orientation is irrelevant on appeal unless there is some argument made in the trial court proceedings to base this on. I haven't heard anything implying that this is the case, so i say irrelevant.

the judge's orientation may have relevancy in the court of public opinion, and in our discussions around the water cooler, but when this is taken on appeal to the 9th circuit or beyond, his sexual orientation will not matter.

Taking what i have read so far, the judge is, as a trier of fact, doing his job in weighing the evidence. Judge's weigh credibility of witnesses and reliability of testimony and opinion all of the time - that's their job. This judge was constrained by the evidence that the different sides put on. I have had many court decision come down where the court questions a "lack of evidence" on one side of the other. That is a fact-finder's job, and in this case that was the judge's job. So, i don't have much problem with this judge's determination that the yes on 8's one and only expert was not qualified.

apparently some of the yes on 8's experts were not called by the yes on 8 folks, but the no on 8 folks entered their depositions into evidence (again, not uncommon) and the yes on 8's experts admitted several items, such as "homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples" and that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples." opinion at pages 36-37

The court can certainly take into consideration that a particular side did not use some of its deposed witnesses who agreed with the opponent's claims at deposition. I would imagine that any judge would take this evidence that a particular side did not share as evidence proferred by that side against itself. Afterall, these were hired guns who, at least in part, disagreed with their side on some significant issues.

These are really just procedural and evidentiary issues, and i am looking forward to getting to the meat of the legal discussion, hopefully soon.

[OrangeUte]

in going through the findings of fact, i don't see much of the juge overstepping. Much of the findings come from admissions by the state/yes on 8 side of things, such as this on page 82:
"52. Domestic partnerships lack the social meaning associated with
marriage, and marriage is widely regarded as the definitive
expression of love and commitment in the United States.
a. PX0707 at RFA No 38: Proponents admit that there is a
significant symbolic disparity between domestic
partnership and marriage"

the closest to overstepping i noticedis at page 105 of the opinion:

"79. The Proposition 8 campaign relied on fears that children
exposed to the concept of same-sex marriage may become gay or
lesbian. The reason children need to be protected from samesex
marriage was never articulated in official campaign
advertisements. Nevertheless, the advertisements insinuated
that learning about same-sex marriage could make a child gay
or lesbian and that parents should dread having a gay or
lesbian child.
a. Tr 424:24-429:6 (Chauncey: Proposition 8 Official Voter
Guide evoked fears about and contained stereotypical
images of gay people.);
b. PX0710 at RFA No 51: Attorney General admits that some of
the advertising in favor of Proposition 8 was based on
fear of and prejudice against homosexual men and women;
c. Tr 2608:16-18 (Miller: “My view is that at least some
people voted for Proposition 8 on the basis of anti-gay
stereotypes and prejudice.”)"

i think that color me badd fan is right and this issue will turn on how much protection the supremes are willing to give gay and lesbian men and women as a class - i.e. make them a protected class with a right to strict scrutiny. I can't see the courts doing anything other than that, but i haven't read constitutional law in several years, absent some religious freedom issues that i have in a few cases.

[LA Ute]

in going through the findings of fact, i don't see much of the juge overstepping. Much of the findings come from admissions by the state/yes on 8 side of things, such as this on page 82:
"52. Domestic partnerships lack the social meaning associated with
marriage, and marriage is widely regarded as the definitive
expression of love and commitment in the United States.
a. PX0707 at RFA No 38: Proponents admit that there is a
significant symbolic disparity between domestic
partnership and marriage"

the closest to overstepping i noticedis at page 105 of the opinion:

"79. The Proposition 8 campaign relied on fears that children
exposed to the concept of same-sex marriage may become gay or
lesbian. The reason children need to be protected from samesex
marriage was never articulated in official campaign
advertisements. Nevertheless, the advertisements insinuated
that learning about same-sex marriage could make a child gay
or lesbian and that parents should dread having a gay or
lesbian child.
a. Tr 424:24-429:6 (Chauncey: Proposition 8 Official Voter
Guide evoked fears about and contained stereotypical
images of gay people.);
b. PX0710 at RFA No 51: Attorney General admits that some of
the advertising in favor of Proposition 8 was based on
fear of and prejudice against homosexual men and women;
c. Tr 2608:16-18 (Miller: “My view is that at least some
people voted for Proposition 8 on the basis of anti-gay
stereotypes and prejudice.”)"

i think that color me badd fan is right and this issue will turn on how much protection the supremes are willing to give gay and lesbian men and women as a class - i.e. make them a protected class with a right to strict scrutiny. I can't see the courts doing anything other than that, but i haven't read constitutional law in several years, absent some religious freedom issues that i have in a few cases.

I think the overstepping, if any, would be in the judge's discussion of the law, wouldn't it? I have not read the opinion (136 pp!!!) and have only seen excerpts.

[OrangeUte]

I think the overstepping, if any, would be in the judge's discussion of the law, wouldn't it? I have not read the opinion (136 pp!!!) and have only seen excerpts.

absolutely right.

based on the reports i have read, i expected to see a bunch of conclusions of law that were stretches based on the cited evidence, and did not see anything like that.

[SoCalCoug]

Ya know, I'm feeling pretty damned good about these old posts today:

http://www.cougaruteforum.com/showpost.php?p=68860&postcount=181

http://www.cougaruteforum.com/showpo...&postcount=171

You must have been smoking something good that day.



(4/20 - get it?)

[beelzebabette]

(4/20 - get it?)

Creekster, have you started giving tutorials?

[Color Me Badd Fan]

in going through the findings of fact, i don't see much of the juge overstepping. Much of the findings come from admissions by the state/yes on 8 side of things, such as this on page 82:
"52. Domestic partnerships lack the social meaning associated with
marriage, and marriage is widely regarded as the definitive
expression of love and commitment in the United States.
a. PX0707 at RFA No 38: Proponents admit that there is a
significant symbolic disparity between domestic
partnership and marriage"

the closest to overstepping i noticedis at page 105 of the opinion:

"79. The Proposition 8 campaign relied on fears that children
exposed to the concept of same-sex marriage may become gay or
lesbian. The reason children need to be protected from samesex
marriage was never articulated in official campaign
advertisements. Nevertheless, the advertisements insinuated
that learning about same-sex marriage could make a child gay
or lesbian and that parents should dread having a gay or
lesbian child.
a. Tr 424:24-429:6 (Chauncey: Proposition 8 Official Voter
Guide evoked fears about and contained stereotypical
images of gay people.);
b. PX0710 at RFA No 51: Attorney General admits that some of
the advertising in favor of Proposition 8 was based on
fear of and prejudice against homosexual men and women;
c. Tr 2608:16-18 (Miller: “My view is that at least some
people voted for Proposition 8 on the basis of anti-gay
stereotypes and prejudice.”)"

i think that color me badd fan is right and this issue will turn on how much protection the supremes are willing to give gay and lesbian men and women as a class - i.e. make them a protected class with a right to strict scrutiny. I can't see the courts doing anything other than that, but i haven't read constitutional law in several years, absent some religious freedom issues that i have in a few cases.

Lawrence v. Texas was decided on due process grounds. There may have also been some equal protection grounds but homosexuals were not given any kind of suspect class designation. A law can also be struck down on equal protection grounds with a non-suspect class, it's just that the government would has to meet a lower threshold. A sodomy law is significantly more difficult to defend than Prop. 8. As far as equal protection goes, I think Prop. 8 can easily meet that standard- unless, of course, the SC awards gays suspect class status.

Since Lawrence v. Texas, the conservatives have gained a spot on the court. But Kennedy is still there and he both voted with the majority in Lawrence and drafted the opinion.

Here's the way I see it breaking down if it goes to the Supreme Court:

1. Kennedy: will affirm the decision only substantive due process grounds.

2. Sotomayor, Ginsburg, Breyer and Kagan: will concur and add that there are also equal protection grounds for overturning Prop. 8.

3. Scalia, Thomas, Roberts and Alito: will dissent

[I.J. Reilly]

I have just completed a reading of the opinion, along with a fairly broad review of literature (Loving v. Virgina, Romer v. Evans, Lawrence v. Texas, Christian Legal Society v. Martinez (which, incidentally, isn't very much on point but is quoted in Walker's decision and which is a recent decision that tangentially touches on homosexuality)). Additionally, for Robin, I ready the Slate article.

A few notes about the decision:

1. The finding of facts are voluminous. Pages and pages and pages and more pages of them. It is my belief that Walker was very intentional and deliberate in this. As has been pointed out in this thread, findings of fact are harder for appeals courts to get around than findings of law. He goes to great lengths to discredit the defense's argument or give any validity to its witnesses. The way he writes it, it almost lead me to think that the defense had absolutely ineffective counsel. At the very least, the decision leaves the impression that they were severely over-matched.

2. This was most certainly written like a memo/love letter to Justice Kennedy. It is my guess that Walker envisions Kennedy to be his main target, as far as who will be the ultimate decider. IMO, this is a correct and fairly obvious conclusion, given Kennedy's role in the current makeup of the Court. Interestingly enough, at one point in his decision, Walker quotes Scalia in Walker's defense of his ruling. I think this is probably just a jab at Scalia (made even more obvious because he is quoting Scalia from a dissent he wrote, meaning that that opinion did not have the force of law).

3. The most compelling finding of law is that Prop 8 is a violation of the Due Process Clause. This is based on three pillars that will be hard to get around, given the finding of facts. First is that marriage is a fundamental right and that allowing same-sex marriages is in accordance with the history, tradition, and practice of marriage in the US. Second is that domestic partnerships do not afford the same status as marriages. Third, that there is no compelling (or even legitimate) state interest in limiting marriage to only heterosexual couples. Like I said, all of these conclusions are made harder to get around by the extensive findings of fact.

4. His Equal Protection finding is on much shakier ground. Again, he uses the findings of fact to prop this decision up, but, imo, not as effectively. He lays out his argument as such: discrimination based on sexual orientation is effectually the same as discrimination based on sex. Sex discrimination is a recognized basis for a heightened scrutiny of the law (as opposed to rational basis, a lower hurdle for a law to clear). Prop 8 does not pass heightened scrutiny. In the alternative, Prop 8 would not even pass rational basis. Finally, all Prop 8 has left to stand on is that it is discrimination based upon privately/religiously held moral view, and that is not sufficient to uphold a law.

I think that his "discrimination based on sexual orientation = discrimination based on sex" argument is a stretch and will not be left standing once this thing is all over. As others have noted, this is just much too troublesome to address right now. Very broad implications, and the marriage stuff already has enough administrative problems as is if it comes down on the side of allowing homosexual marriage.


In the end, my guess is that this case will ultimately be decided by what Justice Kennedy ate for breakfast on the morning that he writes his opinion. I am about 95% confident that should he be on the Court when this decision is made (and there is no reason to suspect that he won't) that he will be the one writing the majority opinion. In fact, Walker's opinion at the trial level reads very much like a Kennedy opinion, probably due to the fact that he cribbed a bunch of it from prior opinions written by Kennedy.

My final opinion is that, having read Walker's opinion and after reading the most relevant cases on the subject, this decision will be upheld based upon the Due Process considerations and the Equal Protection portion will be thrown away.

(as an aside, CMBF, I would be very interested to read an opinion where bastards are given suspect class status. As far as I know, only race, national origin and alienage are suspect classes, with sex being a quasi-suspect class. As far as I can tell, bastards are neither discrete or insular, but maybe its because I have not been inducted into their brotherhood)

[KillerDog]

Lawrence v. Texas was decided on due process grounds. There may have also been some equal protection grounds but homosexuals were not given any kind of suspect class designation. A law can also be struck down on equal protection grounds with a non-suspect class, it's just that the government would has to meet a lower threshold. A sodomy law is significantly more difficult to defend than Prop. 8. As far as equal protection goes, I think Prop. 8 can easily meet that standard- unless, of course, the SC awards gays suspect class status.

Since Lawrence v. Texas, the conservatives have gained a spot on the court. But Kennedy is still there and he both voted with the majority in Lawrence and drafted the opinion.

Here's the way I see it breaking down if it goes to the Supreme Court:

1. Kennedy: will affirm the decision only substantive due process grounds.

2. Sotomayor, Ginsburg, Breyer and Kagan: will concur and add that there are also equal protection grounds for overturning Prop. 8.

3. Scalia, Thomas, Roberts and Alito: will dissent

That seems right. The Kennedy vote is the one that will turn it. He seemed very loathe (the court in general seemed very loathe) to apply Lawrence v. Texas' reasoning to marriage and O'Connor specifically stated that it would not affect state's rights to restrict marriage to a man and a woman. I think it could go either way hinging on Kennedy.