Prop 8 Has Been Overturned

[UtahDan]

For the benefit of BlueHair and anyone else interested, here is what Judge Walker said about the idea of legislating purely from a moral and ethical (as opposed to rational) basis:

In the absence of a rational basis, what remains of
proponents’ case is an inference, amply supported by evidence in
the record, that Proposition 8 was premised on the belief that
same-sex couples simply are not as good as opposite-sex couples.
FF 78-80. Whether that belief is based on moral disapproval of
homosexuality, animus towards gays and lesbians or simply a belief
that a relationship between a man and a woman is inherently better
than a relationship between two men or two women, this belief is
not a proper basis on which to legislate. See Romer, 517 US at
633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433
(1984) (“[T]he Constitution cannot control [private biases] but
neither can it tolerate them.”).

The evidence shows that Proposition 8 was a hard-fought
campaign and that the majority of California voters supported the
initiative. See Background to Proposition 8 above, FF 17-18, 79-
80. The arguments surrounding Proposition 8 raise a question
similar to that addressed in Lawrence, when the Court asked whether
a majority of citizens could use the power of the state to enforce
“profound and deep convictions accepted as ethical and moral
principles” through the criminal code. 539 US at 571. The
question here is whether California voters can enforce those same
principles through regulation of marriage licenses. They cannot.
California’s obligation is to treat its citizens equally, not to
“mandate [its] own moral code.” Id (citing Planned Parenthood of
Southeastern Pa v Casey, 505 US 833, 850, (1992)). “[M]oral
disapproval, without any other asserted state interest,” has never
been a rational basis for legislation. Lawrence, 539 US at 582
(O'Connor, J, concurring). Tradition alone cannot support
legislation. See Williams, 399 US at 239; Romer, 517 US at 635;
Lawrence, 539 US at 579.

[LA Ute]

I hear what you are saying, but if that is the conclusion you are going to reach as a judge isn't there value in being able to say "in addition to logic and common sense, we had an evidentiary hearing and the very best evidence the Prop 8 proponents could bring to bear is extremely weak and does not at all disturb my reasoning as the record amply shows." I guess I need to go read the opinion to see whether that is what he did.

Just so everyone knows, the Protect Marriage side made a strategic decision not to put on many witnesses. They see the issue as a legal one and the case as not a factually-based one. Judge Walker obviously tried to capitalize on that with his "findings strategy." So criticize the defendants' decision on witnesses all you want, but to to claim that the "evidence" in the trial was weak and that that reflects a weakness in their case kind of misses the point and validates a straw man.

[LA Ute]

I think you're wrong here, and this is a big part of the problem I have with the Church's actions here. There are a LOT of homophobes in the Church and our support of Prop 8 gives them the at least implicit approval that they feel they have.

First, I think you are seeing this from a small-town Utah perspective. In my area homophobism is pretty rare. In most of the heavily-populated areas of California I thikn that is true.

Second, there will be extremists as part of any political movement. It's very hard (and dumb, I think) to make strategic decisions based on what the crazies who will support you might do.

[UtahDan]

Just so everyone knows, the Protect Marriage side made a strategic decision not to put on many witnesses. They see the issue as a legal one and the case as not a factually-based one. Judge Walker obviously tried to capitalize on that with his "findings strategy." So criticize the defendants' decision on witnesses all you want, but to to claim that the "evidence" in the trial was weak and that that reflects a weakness in their case kind of misses the point and validates a straw man.

I would be curious to know what the thought process there was. I assume it was that they thought they were better off arguing the law than the facts and that the facts stood to harm them. So while I can buy that we can't read too much into a record where one party chose not to put on a lot of evidence, we can at least make an inference about what they thought of their own evidence, no?

[LA Ute]

I would be curious to know what the thought process there was. I assume it was that they thought they were better off arguing the law than the facts and that the facts stood to harm them. So while I can buy that we can't read too much into a record where one party chose not to put on a lot of evidence, we can at least make an inference about what they thought of their own evidence, no?

I'm speculating, but my guess is that they wanted to avoid validating a show trial. The plaintiffs wanted (and largely got) a show trial.

BTW, the guy handling the case, Charles Cooper, is an extremely well-regarded trial lawyer from Washington, D.C.

[ERCougar]

First, I think you are seeing this from a small-town Utah perspective. In my area homophobism is pretty rare. In most of the heavily-populated areas of California I thikn that is true.

Second, there will be extremists as part of any political movement. It's very hard (and dumb, I think) to make strategic decisions based on what the crazies who will support you might do.

1) You're probably right about perspective. However, there are more small-town Utah Mormons (my mom's from Sandy) than cosmopolitan California ones. And really, my wards in Michigan and Indiana (admittedly not cosmopolitan centers) were no more progressive than my Utah ones, and probably even less so.
2) We're not a political movement, we're a religion. And yes, the leadership absolutely should take into account how the 'crazies' may act upon their counsel/decisions--they do this every GC (part of the reason it can get so boring).
3) Who you callin' crazies? If the cutoff line is my mom, this religion is a lot crazier than I think you suppose.

[LA Ute]

1) You could be (and probably are right). However, there are more small-town Utah Mormons (my mom's from Sandy) than cosmopolitan California ones.
2) We're not a political movement, we're a religion. And yes, the leadership absolutely should take into account how the 'crazies' may act upon their counsel/decisions--they do this every GC (part of the reason it can get so boring).
3) Who you callin' crazies? If the cutoff line is my mom, this religion is a lot crazier than I think you suppose.

I was using "crazies" generically. No offense meant. (Heck, if we want to get specific, I think most of the people who post here are crazies. )

There are 13-14 million Mormons worldwide, 6 Million or so in the USA, and maybe just over a million in Utah. Utah Mormons are not representative of the church nationwide or worldwide. That's my story and I'm stickin' to it.

[UtahDan]

I'm speculating, but my guess is that they wanted to avoid validating a show trial. The plaintiffs wanted (and largely got) a show trial.

BTW, the guy handling the case, Charles Cooper, is an extremely well-regarded trial lawyer from Washington, D.C.

I'm suspicious of law firms headquartered in DC, but no matter. I am sure he is very accomplished. For that reason I have a hard time with the idea that a good trial lawyer keeps his evidence limited for any reason other than it hurts his case. Now maybe no evidence was ever going to convince this judge, but everyone one knows that a big part of what is happening is that an appellate record is being created. If your evidence is something that helps you up the ladder, you get it on the record even where the trial judge ignores, misinterprets or misapplies the law as pertains to it.

I haven't read all of the the opinion, but if Judge Walker is doing any justice to the arguments advanced by the Prop 8 proponents, it certainly appears that they believe their arguments work better as abstractions. I don't mean that as a put down by the way.

[LA Ute]

I'm suspicious of law firms headquartered in DC, but no matter. I am sure he is very accomplished. For that reason I have a hard time with the idea that a good trial lawyer keeps his evidence limited for any reason other than it hurts his case. Now maybe no evidence was ever going to convince this judge, but everyone one knows that a big part of what is happening is that an appellate record is being created. If your evidence is something that helps you up the ladder, you get it on the record even where the trial judge ignores, misinterprets or misapplies the law as pertains to it.

I haven't read all of the the opinion, but if Judge Walker is doing any justice to the arguments advanced by the Prop 8 proponents, it certainly appears that they believe their arguments work better as abstractions. I don't mean that as a put down by the way.

I just don't know. It's important bear in mind that we lawyers all have clients, and we give advice and sometimes they take it and sometimes they don't. I am not privy in any way to what advice the Protect Marriage folks got or what decisions they made. My guess is that in light of the limited budget they had they just wanted to get the legal issues in front of a court of appeal. I may be wrong, but I do not think Judge Walker's elaborate (and overreaching, IMO) findings are going to make all that much difference at the end of the case.

[ERCougar]

I was using "crazies" generically. No offense meant. (Heck, if we want to get specific, I think most of the people who post here are crazies. )

There are 13-14 million Mormons worldwide, 6 Million or so in the USA, and maybe just over a million in Utah. Utah Mormons are not representative of the church nationwide or worldwide. That's my story and I'm stickin' to it.

Ok...so you responded to 1 (before my edit).

Carry through 2 and 3 and I win!

My point on 3 is that my mother, whom I consider to be fairly representative of your average, even slightly progressive, church member (at least through my experience in wards in Sandy, UT, Boston, MA, France, Salt Lake City, Indiana, Michigan, and Cedar City) has definite homophobic tendencies that were at least implicitly supported through the Church's support of Prop 8.

[LA Ute]

Ok...so you responded to 1 (before my edit).

Carry through 2 and 3 and I win!

My point on 3 is that my mother, whom I consider to be fairly representative of your average, even slightly progressive, church member (at least through my experience in wards in Sandy, UT, Boston, MA, France, Salt Lake City, Indiana, Michigan, and Cedar City) has definite homophobic tendencies that were at least implicitly supported through the Church's support of Prop 8.

People who are Mormons and who hate gay people will just have to get over that. It will take time, I guess.

By the way, in the Prop 8 grassroots worker training great efforts were made to teach respect and tolerance, to avoid anything close to gay-bashing or hatred. That klind of negativity was not what it was about and you won't find any evidence to the contrary among the Yes on 8 workers, oither than perhaps isolated anecdotal reports.

[UtahDan]

I just don't know. It's important bear in mind that we lawyers all have clients, and we give advice and sometimes they take it and sometimes they don't. I am not privy in any way to what advice the Protect Marriage folks got or what decisions they made. My guess is that in light of the limited budget they had they just wanted to get the legal issues in front of a court of appeal. I may be wrong, but I do not think Judge Walker's elaborate (and overreaching, IMO) findings are going to make all that much difference at the end of the case.

I think that is probably true. But neither will I be shocked to one day be reading a Kennedy authored opinion stating that there is no rational basis where he cites the lack of evidence brought forward at trial. Don't forget that Kennedy wrote the Lawrence opinion which said that prohibitions on sodomy don't pass a rational basis test, while stating that there was no fundamental right to the same.

I've been sitting here thinking that this is a wild decision coming out of a 9th Circuit trial court that surely cannot survive. But as a read through the opinion, re-read Lawrence, look at the present make up of the court and reflect on how difficult it is to articulate a rational basis I'm not so sure. Scalia in his dissent to Lawrence complains that Lawrence sounds the death knell of all legislation supported by traditional ethics and morals alone. Could be true.

[Jeff Lebowski]

I think that is probably true. But neither will I be shocked to one day be reading a Kennedy authored opinion stating that there is no rational basis where he cites the lack of evidence brought forward at trial. Don't forget that Kennedy wrote the Lawrence opinion which said that prohibitions on sodomy don't pass a rational basis test, while stating that there was no fundamental right to the same.

I've been sitting here thinking that this is a wild decision coming out of a 9th Circuit trial court that surely cannot survive. But as a read through the opinion, re-read Lawrence, look at the present make up of the court and reflect on how difficult it is to articulate a rational basis I'm not so sure. Scalia in his dissent to Lawrence complains that Lawrence sounds the death knell of all legislation supported by traditional ethics and morals alone. Could be true.

Would you mind giving us a little summary of the Lawrence case?

[UtahDan]

Would you mind giving us a little summary of the Lawrence case?

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Give that a try, it isn't too too long.

[LA Ute]

I think that is probably true. But neither will I be shocked to one day be reading a Kennedy authored opinion stating that there is no rational basis where he cites the lack of evidence brought forward at trial. Don't forget that Kennedy wrote the Lawrence opinion which said that prohibitions on sodomy don't pass a rational basis test, while stating that there was no fundamental right to the same.

Everyone in the USA who is watching this case is wondering how Kennedy will react. (And that incudes Judge Walker, whose clerks probably studied evertything Kennedy has ever said or written on equal protection, privacy, and anything touching on gay rights.)

As for the scope of testimony at trial, we are way ahead of the game here. Let's see what the parties' briefs to the Ninth Circuit say about that. We may see in them more about what the defendants have in mind.

I've been sitting here thinking that this is a wild decision coming out of a 9th Circuit trial court that surely cannot survive. But as a read through the opinion, re-read Lawrence, look at the present make up of the court and reflect on how difficult it is to articulate a rational basis I'm not so sure. Scalia in his dissent to Lawrence complains that Lawrence sounds the death knell of all legislation supported by traditional ethics and morals alone. Could be true.

We'll see. Keep in mind just how low a bar "rational basis" is. It doesn't mean persuasive or well-thought out. In Constitutional due process/equal protection analysis, it just means there is a reason for the distinction. The question: Is a governmental action a rational means to an end that may be legitimately pursued by the government? The “legitimate interest” does not have to be the government’s actual interest. Heck, if a court can hypothesize a “legitimate” interest served by the challenged action, it will withstand rational basis review.

Of course, if the SCOTUS breaks new ground and kicks sexual orientation up to a suspect class level, all bets are off. If I recall my con law correctly, once a suspect or quasi-suspect classification is involved, or a fundamental right is implicated, you get the higher level of scrutiny. Do you see Kennedy voting to raise sexual orientation to that level?

(I know you knew all this con law but others here might not.)