Gay Marriage Ban Prop 8 Ruled Unconstitutional

[mixie]

http://www.addictinginfo.org/

[tekla]

Not exactly, they upheld the prior ruling by Walker, since it's highly unlikely that they are going to get a en banc hearing the next stop is the Supreme Court.  What's critical is that the Walker decision (and Walker was appointed by Reagan and elevated by BushI- so all the 'activist judge' people can just suck on it) found the law unconstitutional on two different and separate grounds, forcing any appeal to essentially double the costs by putting together two teams, one to do each part (due process and equal protection).  It also means that the opponents have to win a 2 for 2, in order to overturn Walker's decision.

[mixie]

Proposition 8 is unconstitutional.   Period the end.  As soon as Schwartenegger said the was going to let California vote on Gay Marriage,  I knew it would just be a matter of time in getting it to the Supreme Court.   Once it hits the Supreme Court it's going to be struck down as Unconstitutional.  And then we'll start making some progress.  This is just a repeat of Plessy versus Ferguson all the way to Brown vs the Board of Education of Topeka Kansas.  That took over 50 years.  This should be over with by next year.

[spacial]

One step at a time America. There's everything to gain.

[tekla]

One step at a time America. There's everything to gain.

The wheels of justice grind slow, but they grind exceedingly fine.  The difference between the American way of doing this - though long protracted court fights - makes it law, not a whim of elected offices, who can take away what they have given.  Legislature granted 'rights' tend to be transitory, lasting only as long as that particular power group can stay in office.  By the time all this is done it's going to be cemented as law that no legislature can overturn w/o a constitutional amendment, which is almost impossible to get.

[Jamie D]

Not exactly, they upheld the prior ruling by Walker, since it's highly unlikely that they are going to get a en banc hearing the next stop is the Supreme Court.  What's critical is that the Walker decision (and Walker was appointed by Reagan and elevated by BushI- so all the 'activist judge' people can just suck on it) found the law unconstitutional on two different and separate grounds, forcing any appeal to essentially double the costs by putting together two teams, one to do each part (due process and equal protection).  It also means that the opponents have to win a 2 for 2, in order to overturn Walker's decision.

[The decision] was narrowly hinged on whether the state had the right to withdraw the right to marry once it had been extended, as it had been in California by a state Supreme Court decision.

The federal panel sidestepped whether gays and lesbians had a constitutional right to marry, saying, "We therefore need not and do not consider whether same-sex couples have a fundamental right to marry." _Capitol Alert, SacBee

Not all it's cracked up to be.

The 9th Circuit is the most overturned Appeals Court in the nation.  This is another one that is destined for the judicial trash heap.

The way to extend political rights is to build a poitical majority.  Judicial activism short-circuits that process and, in the long run, works counter to the real goals.

Break out your umbrellas.  It's raining on your parade.

[tekla]

Math, how does it work?  The 9th has the highest number of reversals - of course it also has the largest territory, the largest number of judges (covering nine states and two territories, and with 28 judges) and does more cases, so when you look you'll find their percentage (do the math) is equal to others, in fact, last year in percentage terms they were 3rd. 

Each year, Tom Goldstein, co-founder of the widely read SCOTUSblog, compiles and releases Supreme Court statistics. Last month, Mr. Goldstein released the final "Stat Pack" for the Supreme Court's most recent October 2010 term with these results: The Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the Sixth Circuit (eighty-three percent) and the Fifth Circuit (eighty percent). The Ninth Circuit came in third at seventy-nine percent....

In the October 2009 term, the circuit courts were reversed seventy-one percent of the time. That year, while the Supreme Court reversed eighty percent of Ninth Circuit cases, three other circuits plus the grouping of all appeals taken from state courts had higher reversal rates. The year prior, during the 2008 term, the Ninth Circuit was reversed only sixty percent of the time, well under the seventy-six percent reversal rate for all cases. Seven other circuits that year had higher reversal rates than the Ninth Circuit; six of them were reversed at the one-hundred percent level.

It's also a function of the cases they get.  The West has the largest amounts of federal land - hence making more federal cases - and because of the intensity of industry in California in high tech, creative industries, and intellectual property areas, gets some of the most interesting cases too.  They are seen as 'making new law' because so many of the things they are adjudicating are new problems.

And it's hardly activist, when all other courts when asked (including the Supreme Court of Iowa, not exactly your flaming radical bunch) have found that such laws are in violation of due process and/or equal protection (though this is the first finding that it violates BOTH of those at the same time).  And exactly who is supposed to rule on Constitutional questions?  Your favorite blog editor?

And if that is true, then we need to stop electing Republicans who put people like Walker in the federal judgeship in the first place (Ronald Reagan) and further elevated him to the 9th (G.H.W. Bush).

[Jamie D]

Proposition 8 is unconstitutional.   Period the end.  As soon as Schwartenegger said the was going to let California vote on Gay Marriage,  I knew it would just be a matter of time in getting it to the Supreme Court.   Once it hits the Supreme Court it's going to be struck down as Unconstitutional.  And then we'll start making some progress.  This is just a repeat of Plessy versus Ferguson all the way to Brown vs the Board of Education of Topeka Kansas.  That took over 50 years.  This should be over with by next year.

Plessy v Ferguson (1890) is universally recognized as one of the worst Supreme Court decisions, which was rightfully set aside.

The Plessy decision was clearly a bastardization of the 14th Amendment "citizenship" and "equal protection" clauses.  The 14th Amendment was proposed as a response, in part, to the dreadful Dred Scott (1857) case, in which the Supreme Court opined that blacks were "... beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."

The decision in Brown v Board of Education (1954), setting aside Plessy, was a truer interpretation of the meaning and intent of the 14th Amendment, which was designed to ensure equal political rights for the former slaves and people of color.

The 9th Circuit ruled, essentially, that the people of the State were not allowed, through the state constitutional amendment process, to "overrule" the State Supreme Court, even though the State Supreme Court subsequently acknowledged the validity of the Proposition.  The decision is, on its face, a sort of judicial tyranny.

[tekla]

The 9th Circuit ruled, essentially, that the people of the State were not allowed, through the state constitutional amendment process, to "overrule" the State Supreme Court, even though the State Supreme Court subsequently acknowledged the validity of the Proposition.

Yeah, so what?  The 9th Circuit Court is a FEDERAL COURT, it's responsibly is to enforce the U.S. Constitution which the State of California agreed to accept as superior to its own laws in any and all cases as part of becoming a state in the first place.  Civics?  How does it work?


BTW, State Supreme Courts are overruled close to 100% of the time.

[Jamie D]

Math, how does it work?  The 9th has the highest number of reversals - of course it also has the largest territory, the largest number of judges (covering nine states and two territories, and with 28 judges) and does more cases, so when you look you'll find their percentage (do the math) is equal to others, in fact, last year in percentage terms they were 3rd. 

Each year, Tom Goldstein, co-founder of the widely read SCOTUSblog, compiles and releases Supreme Court statistics. Last month, Mr. Goldstein released the final "Stat Pack" for the Supreme Court's most recent October 2010 term with these results: The Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the Sixth Circuit (eighty-three percent) and the Fifth Circuit (eighty percent). The Ninth Circuit came in third at seventy-nine percent....

In the October 2009 term, the circuit courts were reversed seventy-one percent of the time. That year, while the Supreme Court reversed eighty percent of Ninth Circuit cases, three other circuits plus the grouping of all appeals taken from state courts had higher reversal rates. The year prior, during the 2008 term, the Ninth Circuit was reversed only sixty percent of the time, well under the seventy-six percent reversal rate for all cases. Seven other circuits that year had higher reversal rates than the Ninth Circuit; six of them were reversed at the one-hundred percent level.

It's also a function of the cases they get.  The West has the largest amounts of federal land - hence making more federal cases - and because of the intensity of industry in California in high tech, creative industries, and intellectual property areas, gets some of the most interesting cases too.  They are seen as 'making new law' because so many of the things they are adjudicating are new problems.

And it's hardly activist, when all other courts when asked (including the Supreme Court of Iowa, not exactly your flaming radical bunch) have found that such laws are in violation of due process and/or equal protection (though this is the first finding that it violates BOTH of those at the same time).  And exactly who is supposed to rule on Constitutional questions?  Your favorite blog editor?

And if that is true, then we need to stop electing Republicans who put people like Walker in the federal judgeship in the first place (Ronald Reagan) and further elevated him to the 9th (G.H.W. Bush).

Judicial analysts attribute the high reversal rate at least partly to the 9th Circuit's reputation as a liberal-dominated bench, even though more recent conservative appointments have diluted that influence. Experts, including former law clerks, say the Supreme Court justices are inclined to look over the shoulders of the 9th Circuit judges they suspect of favoring the underdog....

But the 9th Circuit's record this term [2009, 15 of 16 cases overturned], with 94 percent of its cases reversed at least in part, extends a long-running trend of being disproportionately overturned. The appeals court -- the only one where a majority of judges were appointed by Democratic presidents -- has had a larger-than-average share of its cases overturned in eight of the past 10 years.

- Los Angeles Times, July 05, 2009

[Jamie D]

The 9th Circuit ruled, essentially, that the people of the State were not allowed, through the state constitutional amendment process, to "overrule" the State Supreme Court, even though the State Supreme Court subsequently acknowledged the validity of the Proposition.

Yeah, so what?  The 9th Circuit Court is a FEDERAL COURT, it's responsibly is to enforce the U.S. Constitution which the State of California agreed to accept as superior to its own laws in any and all cases as part of becoming a state in the first place.  Civics?  How does it work?


BTW, State Supreme Courts are overruled close to 100% of the time.

Proposition 8 was a political question.  Generally speaking, as outlined in Baker v Carr (1962), state political issues are nonjusticiable in the federal courts.

[tekla]

You know all that laughter is no longer people laughing with you.  And if it's political to deny people of their rights I kinda hope your side wins, you know you'll be among the first group of people they feel they can do without.

[SandraJane]

Gay Marriage Ban Prop 8 Ruled Unconstitutional


By Carlos Santoscoy | Published: February 07, 2012

http://www.ontopmag.com/article.aspx?id=10878&MediaType=1&Category=26

A 3-judge panel on Tuesday ruled Proposition 8, California's gay marriage ban, is unconstitutional.

The Ninth Circuit Court of Appeals handed down its long-awaited decision to the cheers of gay marriage supporters. However, supporters of Proposition 8 will most likely appeal the decision to the United States Supreme Court. That means another lengthy wait for engaged gay and lesbian couples in California.

The court upheld now-retired U.S. District Judge Vaughn R. Walker's 2010 ruling which said Proposition 8 violates the constitutional rights of gay couples who wish to marry.

____________________________________________________________________________________________

Prop 8: California gay marriage ban struck down by federal appeals court



Ninth circuit court of appeals rules Proposition 8 unconstitutional and says it 'lessens human dignity of gay and lesbian people'

     

    Karen McVeigh
    guardian.co.uk, Tuesday 7 February 2012 14.07 EST

http://www.guardian.co.uk/world/2012/feb/07/prop-8-california-gay-marriage-ban-struck-down?newsfeed=true



Prop 8 campaigners said the ruling added California to the growing list of states that have ended barriers to marriage for gay and lesbian couples. Photograph: Justin Sullivan/Getty Images


Gay marriage campaigners were celebrating a major victory on Tuesday after a federal appeals court ruled California's same-sex marriage ban unconstitutional. The long-awaited ruling could pave the way for a US supreme court decision on the voter-approved measure known as Proposition 8.

In a 2-1 decision, a three-judge panel of the ninth US circuit court of appeals in San Francisco agreed with a lower court judge who in 2010 declared the ban to be a violation of the civil rights of gay and lesbian people.

____________________________________________________________________________________________

ADVOCATE.COM


An LGBT Law Expert's Take on Tuesday's Prop. 8 Decision


By Advocate.com Editors | Posted on Advocate.com February 07, 2012 05:49:47 PM ET


http://www.advocate.com/News/Daily_News/2012/02/07/An_LGBT_Law_Experts_Take_on_the_Prop_8_Decision/


Expert analyses of the Ninth Circuit's Prop. 8 ruling Tuesday have been legion throughout the day, though one from Williams Institute legal director Jennifer Pizer stood out as particularly thoughtful. The former Lambda Legal marriage project director wrote earlier today:

The decision breaks new ground because it's the first federal appeals court to strike down a state's exclusion of same-sex couples from marriage. But it doesn't break new ground legally. Instead, the ruling's close application of Justice Kennedy's 1996 equal protection analysis (in the Romer v. Evans, Colorado Amendment 2 case) both makes it less likely that the Supreme Court will grant review, and more likely that that plaintiffs would win if the case does go up. Justice Kennedy is generally seen as the key vote, and today's decision – looking at another state ballot measure – uses his 1996 analysis as a roadmap.

[SandraJane]

Gay marriage: U.S. Supreme Court may not hear Prop. 8 appeal


February 7, 2012 | 12:47 pm


http://latimesblogs.latimes.com/lanow/2012/02/prop-8-supreme-court-may-not-hear-california-gay-marriage-case.html





Until Tuesday, it looked like California's Proposition 8 gay marriage case would be decided by the U.S. Supreme Court. But that looks less certain now.

The narrow California-only approach adopted by the 9th Circuit means the high court might choose to steer clear of the dispute.

If so, that would leave for another day — perhaps several years in the future — a national ruling on same-sex marriage.

[tekla]

That's because the ruling specifically covered taking away a right already granted.  A situation unique to California so far.  Though it's going to be cited in lots of cases going forward.  And the Supremes have shown that they have no inclination to take on this issue, even less so this one.

[Jamie D]

You know all that laughter is no longer people laughing with you.  And if it's political to deny people of their rights I kinda hope your side wins, you know you'll be among the first group of people they feel they can do without.

The 9th Circuit passed on the main issue, as I demonstrated, above. The said that the people of California could not reverse the decision of its own courts through a state constitutional amendment.

That is preposterous.

[Jamie D]

Gay marriage: U.S. Supreme Court may not hear Prop. 8 appeal


February 7, 2012 | 12:47 pm


http://latimesblogs.latimes.com/lanow/2012/02/prop-8-supreme-court-may-not-hear-california-gay-marriage-case.html

Until Tuesday, it looked like California's Proposition 8 gay marriage case would be decided by the U.S. Supreme Court. But that looks less certain now.

The narrow California-only approach adopted by the 9th Circuit means the high court might choose to steer clear of the dispute.

If so, that would leave for another day — perhaps several years in the future — a national ruling on same-sex marriage.

When the 9th Circuit issues a ruling that quotes current-Supreme Court Justice Anthony Kennedy of California, Groucho Marx, and Marilyn Monroe, it is just begging to be overturned.

Some would call that a "lack of judicial temperament."

[Jamie D]

Shaky Grounds for Prop. 8 Ruling

Two of three judges on a 9th U.S. Circuit Court of Appeals panel on Tuesday found Proposition 8 unconstitutional. Judge Stephen Reinhardt stipulated that the ruling skirted the larger issue of whether same-sex couples have a right to marry. That's a shame, because at least an equal-right-to-marry claim makes for a clean argument.

Reinhardt praised himself for overturning Prop. 8 on "the narrowest ground." It is also on the shakiest ground. The narrow ruling is based on the fiction that Prop. 8 eliminated a right without a legitimate reason. Prop. 8 was born of "animosity toward the class of persons affected," he wrote....

Because [San Francisco Mayor Gavin] Newsom had flouted state law, there was a hiatus between the decision that allowed same-sex marriage and the decision that banned it. That allowed the judges to maintain their construct that Prop. 8 took away something that only existed because Newsom had gamed the system.

Dissenting Judge N. Randy Smith was not impressed. As he pointed out, unless given no other option, federal courts should defer to state law.

QED

[Butterflyhugs]

I find it mildly amusing that you're here quoting a website with the likes of Ann Coulter and Michelle Malkin as regular contributors.

[ToriJo]

I just find it humorous that hate voted into law as Amendment 2 (CO) is going to end up being Prop 8's downfall. It almost makes me believe in karma.