Prop 8 Has Been Overturned

[LA Ute]

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.

I am not very deeply into this, but I think the bolded language in this point may well be the battleground. Yes, marriage is a fundamental right, but to what extent is the state entitled to define "marriage?' To get to where Walker got, you have to redefine that term.

(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 it's because I have not been inducted into their brotherhood)

Stick around here. Sooner or later someone will designate you a bastard.

EDIT: I know very few here will agree with me, but the idea that something as fundamental as re-defining marriage can be decided by a single vote in a court is quite offensive to me. I think it is anti-democratic. If Prop 8had failed to pass I would have grimaced and moved on, because the decision would have been by the people. But having a court decide it is unacceptable to me.

[KillerDog]

I am not very deeply into this, but I think the bolded language in this point may well be the battleground. Yes, marriage is a fundamental right, but to what extent is the state entitled to define "marriage?' To get to where Walker got, you have to redefine that term.

A fundamental right has a very specific definition and, as you say, Walker includes marriage as a fundamental right. This is not true nor is it accurate. Marriage is not a fundamental right. I have to reread Lawrence v. Texas but I think they specifically identified marriage as within the purview of the states.

[LA Ute]

A fundamental right has a very specific definition and, as you say, Walker includes marriage as a fundamental right. This is not true nor is it accurate. Marriage is not a fundamental right. I have to reread Lawrence v. Texas but I think they specifically identified marriage as within the purview of the states.

If you're right, then this is the real jurisprudential leap Walker is asking the appellate courts to make.

[FMCoug]

I know very few here will agree with me, but the idea that something as fundamental as re-defining marriage can be decided by a single vote in a court is quite offensive to me. I think it is anti-democratic. If Prop 8had failed to pass I would have grimaced and moved on, because the decision would have been by the people. But having a court decide it is unacceptable to me.

+1

And my opinion has nothing to do with Prop 8. In fact, I am on record as saying I am glad I don't live in CA because I am quite conflicted on the point.

[Color Me Badd Fan]

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)

I looked at it again and illegitimacy is given quasi-suspect protection. I was plumbing the depths of my memory on that one and came up a little short.

[Jeff Lebowski]

EDIT: I know very few here will agree with me, but the idea that something as fundamental as re-defining marriage can be decided by a single vote in a court is quite offensive to me. I think it is anti-democratic. If Prop 8had failed to pass I would have grimaced and moved on, because the decision would have been by the people. But having a court decide it is unacceptable to me.

I am hearing that a lot this week. What is your solution? Surely you wouldn't do away with judicial review, would you?

[Indy Coug]

Is there any data to show the frequency of laws being overturned by the courts and whether or not it's becoming more commonplace than 10, 20, 30, 50 or 100 years ago?

[creekster]

EDIT: I know very few here will agree with me, but the idea that something as fundamental as re-defining marriage can be decided by a single vote in a court is quite offensive to me. I think it is anti-democratic. If Prop 8had failed to pass I would have grimaced and moved on, because the decision would have been by the people. But having a court decide it is unacceptable to me.

Well it is really decided by 5 votes. The one is being talked about becasue it is not predictable.

[FMCoug]

I am hearing that a lot this week. What is your solution? Surely you wouldn't do away with judicial review, would you?

Doesn't this come down to the whole activist judge issue? If a judge overturns a law because it is unconstitutional, that is one thing. If a judge overturns it because they think it is bad law, that is another thing entirely.

[byu71]

EDIT: I know very few here will agree with me, but the idea that something as fundamental as re-defining marriage can be decided by a single vote in a court is quite offensive to me. I think it is anti-democratic. If Prop 8had failed to pass I would have grimaced and moved on, because the decision would have been by the people. But having a court decide it is unacceptable to me.

Haven't read the Book of Mormon in a while. Were the Judges good guys or bad guys. I know what the lawyers were, just can't remember about the Judges.

[creekster]

Doesn't this come down to the whole activist judge issue? If a judge overturns a law because it is unconstitutional, that is one thing. If a judge overturns it because they think it is bad law, that is another thing entirely.

That underscores the problem with even discussing the notion of activist judges. Walker's ruling is base don constitutional analysis. Is he wrong? was he just pretending to base it on the constituion but really trying to advance the agy agenda? How can you tell? Your answer will be as likely to be based on whether you agree wiht the decision as anythign, would be my guess.

[Jeff Lebowski]

Doesn't this come down to the whole activist judge issue? If a judge overturns a law because it is unconstitutional, that is one thing. If a judge overturns it because they think it is bad law, that is another thing entirely.

I think the term "judicial activism" has been hijacked to where it is almost meaningless. In many cases it seems to be code for "judicial decisions I don't like".

Where do you draw the line between "because it is unconstitutional" and "because they think it is bad law"?

[LA Ute]

I am hearing that a lot this week. What is your solution? Surely you wouldn't do away with judicial review, would you?

Oh, stop! There are some things that ought to be left to the people and I think this is one. Reasonable people disagree on this. We are working through the process. At the end, whichever side wins, you can bet that there will be plenty of language in the Supreme Court opinions about how this is not a question that should be decided in court.

In In Re Marriage Cases, the California Supreme Court decision that found a right to same-sex marriage in the State Constitution and this prompted Prop 8, Justice Corrigan said this in her dissent. (Notably, Justice Corrigan is reportedly openly gay.)

The principle of judicial restraint is a covenant between judges and the people from whom their power derives. It protects the people against judicial overreaching. It is no answer to say that judges can break the covenant so long asthey are enlightened or well-meaning.

The process of reform and familiarization should go forward in the legislative sphere and in society at large. We are in the midst of a major social change. Societies seldom make such changes smoothly. For some the process is frustratingly slow. For others it is jarringly fast. In a democracy, the people should be given a fair chance to set the pace of change without judicial interference. That is the way democracies work. Ideas are proposed, debated, tested. Often new ideas are initially resisted, only to be ultimately embraced. But when ideas are imposed, opposition hardens and progress may be hampered.

We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root. If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.

You may disagree, but I find that approach compelling.

[FMCoug]

I think the term "judicial activism" has been hijacked to where it is almost meaningless. In many cases it seems to be code for "judicial decisions I don't like".

Agree with this. And this is what bugs me the most about this current issue. Very few (this discussion being the exception) are discussing the legal merits.

Where do you draw the line between "because it is unconstitutional" and "because they think it is bad law"?

Theoretically, this is pretty simple in my mind. Unconstitutional = there is something in the constitution that the law usurps or goes against. Bad law = the judge disagrees with the law. Great judge. Call your legislator or if it's a referendum, cast your vote. But your opinion ont the issue should have no bearing on your decision.

Of course, in practice, it's a lot messier as we all have biases.

[Jeff Lebowski]

Oh, stop! There are some things that ought to be left to the people and I think this is one. Reasonable people disagree on this. We are working through the process. At the end, whichever side wins, you can bet that there will be plenty of language in the Supreme Court opinions about how this is not a question that should be decided in court.

In In Re Marriage Cases, the California Supreme Court decision that found a right to same-sex marriage in the State Constitution and this prompted Prop 8, Justice Corrigan said this in her dissent. (Notably, Justice Corrigan is reportedly openly gay.)



You may disagree, but I find that approach compelling.

That all sounds quite compelling, but how do we go about determining which cases should be left solely to the popular vote and which should be subjected to judicial review? Give me a specific process.

Are you unhappy with the outcomes of the civil rights movement? Wasn't that largely driven by court cases early on?