Quote from: Butterflyhugs on February 08, 2012, 07:31:45 PM
I find it mildly amusing that you're here quoting a website with the likes of Ann Coulter and Michelle Malkin as regular contributors.

The guilt by association ad hominem fallacy.

The question is, whether the lawyer is correct in the recitation of her history and the facts.  She is.  And from that history and those facts, she has drawn a reasoned conclusion.

Compare the shenanigans the gay lobby in California has resorted to, versus the democratic process we see happening in Washington State and elsewhere.  It has been divisive.

Quote from: Slanan on February 08, 2012, 09:14:06 PM
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.

We'll see where the process ends up.  My guess is that the 9th Circuit will be overturned again.

This is the issue that should go to the United States Supreme Court
some day.

The people that we`re representing and others like those people are
not asking for anything special. They are asking for the right to be
treated with decency and respect and dignity and afforded the same rights
we afford other citizens in this country. They are not asking for much,
just equality...

Marriage is a conservative value, no conservatives own it or liberals own it -- but the loving
relationship between individuals that want to be respected by their society
and treated as equals is a conservative value. It involves liberty and
privacy and association and identity.

Marriage is a building block of our society. Young people get it.
Older people are still getting it.

But all of the polls are changing. People more and more are
understanding that these are our American citizens, these are our brothers
and our sisters, and we have got to treat them right, we have got to treat
them decently, and we have got to give them the same freedom and justice
that we give to other people...

It not a conservative or liberal issue, or Republican or Democrats,
when David Boies and I came together on this, our mission was to persuade
the American people that this is an issue of American justice, American
freedom, American equality. These are the principles all men are created
equal in this country. We have got to get there.

^Theodore Olsen.

"W's" Solicitor General.

And I hope "ya'll" will click on this article,  https://www.susans.org/forums/index.php/topic,115321.0.html  , coming on the heels of the Prop 8 ruling.

SJ

You're right, SandraJane.  The article is well worth reading.  In Washington State the process has been democratic.  That certainly was not the case with the Prop 8 litigation.

Quote from: Jamie D on February 08, 2012, 09:29:46 PM
We'll see where the process ends up.  My guess is that the 9th Circuit will be overturned again.

Perhaps, but, at the same time, to uphold Prop 8 it there will need to be some plausible government purpose to be served by the law and the law has to have some sort of effect related to that purpose.

It's hard to say that just naming the relationship differently (since that's *ALL* Prop 8 does) serves any purpose other than othering gay people because gay people's relationships are morally disapproved.  That's not a valid reason for a law, even if a majority of people would vote for it.

It's hard to see even a conservative Supreme Court, as we have today, being able to find a legitimate government reason to enshrine in law a different label for gay relationships while still allowing gays all the state rights of marriage.  Now if the law actually protected the kids, banned gay sex (oh, nevermind, they tried that elsewhere), forced people to procreate responsibly, etc, then that's different.

We can hope they'll go further.  The court could also rule - as they have previously - that marriage is a fundamental right.  Or that gays are a suspect class that needs protection from abusive legislatures in the same way that religions, races, and disabled people do. But they don't have to even go that far in this case to rule against Prop 8.  They could do none of those things and still support the appeals court's ruling, which are basically Justice Kennedy's words thrown back at him.  Of course such a ruling would likely not accomplish much - except in states that have civil unions and marriage, and grant exactly the same rights to both; I'm not sure any do, since even states with same-sex marriage typically have inequalities (*1).

*1: For instance, in New Hampshire, which allows gay marriage, 13 year old girls and 14 year old boys (yes, different ages) can become legally married.  But only so long as they marry an opposite sex spouse.  If they marry a same-sex spouse, both have to be 18.  It's interesting that they felt the need to protect kids from gay marriage, but not child marriage, when they revised their laws.  These types of differences in the laws are not uncommon between heterosexual and same-sex marriage laws.  (I'll add that a 13 year old girl married to a 45 year old guy in New Hampshire would be recognized as married by all 50 states and the federal government; I guess as long as we expect the 13 year old girl to be having vaginal sex rather than oral or anal, it's okay to the people of New Hampshire and the rest of the 50 states that would recognize that marriage as legal).

Minors are difficult as they are one group that the law clearly and distinctly carves out for all kinds of special treatment (both good and bad, and depending on your values) as a set class.  So - and it's really freaky weird because it involves taking about sexual practices and 13 and 14 year olds - you have that rather strange set of crossing classes (gays and minors) regarding laws governing sexual behavior.  Wee!

But I would also love (because now we've had a freaking decade plus of all sorts of people dragging all this through the courts again and again) how are any of the people who opposed expanding the right of marriage hurt or injured?  If they can't demonstrate any sort of injury - physical? status? financial? property wise? - then on what grounds do they have standing to sue in the first place?  The people going forward with the Prop 8 fight are not doing it with the aid or blessing of the State of California.  The State of California (with its' ever changing tiny little mind) is currently is in favor of letting gays get married, hence opposing the Prop and so is against going forward - at least until the next election.  So if the State is not involved, you can't argue that the government/state has a compelling interest.  What you are left with is a bunch of right wing lawyers suing on the behalf of churches and individuals.  And other than 'not liking it to the point of irrational fear mongering' I don't see where letting this other class of people get married hurts or injures either of those groups/classes of people in any way.

The Supremes have a boat-load of these cases sitting there in the old judicial pipe-line.  I'm sure - because it's who they are - that the ones that want to rule on it (and I'm not convinced that they all do, and those that don't have different reasons for opposing hearing it) have a 'perfect storm' type ideal case that would have all the elements that that particular judge wanted to fit in.  Perhaps they'd rather do it while ruling on DOMA (a federal law, act of Congress crap) instead of one of those California Proposition deals.  They HATE the California Proposition deals.  See, because it allows rank amateurs to write potentially binding law and then encourages Californians to vote for their favorites, California Propositions (something very few states have by the way) tend to either wackadoodle or landmark (lots of work either way).  The Supremes have shown great reluctance in the past to getting into the California Proposition mess because while there is no clear instruction in the Constitution about voter/citizen driven law, everywhere where they are mentioned, these 'voters' are the ultimate authority, and that's kinda hard to get around.  Most of our Propositions - ranging from those with dubious legal standing to the outright hysterical - are left standing because the federal courts don't touch them unless they have no other choice. 

The Iowa case which as elements of the California case w/o the 'voter' thing tossed into it might be more appealing.  Or - much like your cable company, or TV insurance lizard - they can bundle a bunch of cases together and make everyone try to justify themselves at the same time.  That's always fun.  Like I said, there is a buttload of them out there and the SC gets to take its' pick on which one (if any) it hears.  AND,  that's IF the SC wants to hear it, and I keep getting this vibe off of them that they don't. 

Quote from: tekla on February 09, 2012, 10:53:27 AM
But I would also love (because now we've had a freaking decade plus of all sorts of people dragging all this through the courts again and again) how are any of the people who opposed expanding the right of marriage hurt or injured?  If they can't demonstrate any sort of injury - physical? status? financial? property wise? - then on what grounds do they have standing to sue in the first place?  The people going forward with the Prop 8 fight are not doing it with the aid or blessing of the State of California.  The State of California (with its' ever changing tiny little mind) is currently is in favor of letting gays get married, hence opposing the Prop and so is against going forward - at least until the next election.  So if the State is not involved, you can't argue that the government/state has a compelling interest.  What you are left with is a bunch of right wing lawyers suing on the behalf of churches and individuals.  And other than 'not liking it to the point of irrational fear mongering' I don't see where letting this other class of people get married hurts or injures either of those groups/classes of people in any way.

In the Prop 8 case, I believe the idea was that the proponents (the guys that want to keep prop are the people who got the thing on the ballot, so, like a legislature that writes laws, they have an implied interest in seeing the law defended.  It's not about them being hurt, but rather about representing the will of the people, who voted for Prop 8.

As for the amateurishness of propositions, I'm not sure the legislatures actually do any better.  Look at that TN bathroom bill which would have criminalized a mom changing her baby boy's diaper in a single-stall women's room!  Or Oklahoma Senate trying to remove protections for gays from hate crime laws, only instead keeping those protections while removing the protections for race and religion.  But, yes, I recognize that California's system is relatively unique and very problematic - particularly when a simple majority can strip away rights of people.

That said, yes, I too always find the idea that a heterosexual is harmed by same-sex marriage to be, frankly, nuts.  Meanwhile, I personally would like to see an end to the harm that these "one man, one woman" laws have done to me and my wife - ironically we are in a heterosexual marriage, the kind of marriage the right wing nuts are supposedly trying to protect.  (any marriage with one intersexed or post-op trans partner is in a marriage considered invalid in some of the US, regardless of birth certificates, DNA, sex organs, etc).  It's just plain bad law (for instance, a married couple can be responsible, in many cases, for debts entered into by one partner - but if the marriage isn't recognized somewhere, the common property might not actually be common property in that jurisdiction; So a couple conceivably could simply move to another state to protect their assets in some cases, which is one of the reasons that traditionally marriages were always recognized everywhere if they were legally entered into.

But they will continue to do stuff to try to provoke laws on the idea that they cannot have religious freedom unless gays are discriminated against.  As the Prop 8 case showed, it's basically all they have.

Their arguments are basically:

1) Well, if we let gays marry, than kids will be taught about gays marrying.  And that would mean more gays, less straight couples, so less kids.  And less kids means that eventually, once all the people are converted to gay, no future of society.  (echos of Anita Bryant)

2) Gay sex is icky.  (I guess they haven't seen what straight couples do in the bedroom and elsewhere, since there is pretty much nothing that gay couples do that straight couples don't)

3) God said so.

4) We scared a bunch of people into voting to keep/remove rights from their neighbors/family/friends/etc.  It shouldn't mater that we had to bear false witness to do so (such as the "Protect our Children" garbage in California during Prop 8 - when the law had no direct effect to protect anyone's kids, even if you somehow accepted they needed protection from gays).  It's the will of the people.

My arguments regarding Prop 8 address the process used to get where we are today.

The reason Judge Reinhart's decision will be reviewed and overturned is because he used a novel legal theorem (ie - a right, once granted, may not be rescinded).  In fact, Reinhart undercut the 14th Amendment rationale used by Judge Walker in the original case.

The Circuit Court's decision will have the effect (if it holds up after an appeal) of re-instituting a California Supreme Court decision in 2008, titled In re Marriage Cases. In that ruling, the state court declared that there is a fundamental right to marry under the California constitution, and it cannot be denied to same-sex couples.

That decision, of course, was overturned in November 2008 when the state's voters approved Proposition 8, amending the state constitution to declare that "only marriage between a man and a woman is valid or recognized in California." Under the Ninth Circuit Court's new ruling, Proposition 8 was found to violate the federal Constitution, so it no longer would control, and thus the right of gays and lesbians to marry would be restored fully under that ruling, assuming that the decision stands. It is still on hold, pending appeals.

Although that decision was based upon the guarantee of legal equality, in the Fourteenth Amendment, it did not declare that same-sex couples have a fundamental right to marry under the federal Constitution. Indeed, the court explicitly avoided deciding that question. The ruling was limited to the conclusion that it is unconstitutional discrimination for a state, once it has given gay couples a right to marry, to take it away from them when that has been done solely in reaction to the sexual orientation of those couples.

The Circuit Court thus stopped well short of what, in an earlier stage of the case, U.S. District Judge Vaughn R. Walker of San Francisco had decided. He ruled that same-sex couples do have "a fundamental right to marry," under the Fourteenth Amendment's Due Process Clause, and that California could not take away that right based on a couple's sexual identity.

Since the Circuit Court did not embrace that part of the ruling, it essentially has lost its status as a binding precedent for this case.


Constitution Check: Do Gay Couples Now Have a Constitutional Right to Get Married? - Huffington Post

Quote from: Jamie D on February 09, 2012, 04:55:59 PM
The reason Judge Reinhart's decision will be reviewed and overturned is because he used a novel legal theorem (ie - a right, once granted, may not be rescinded).  In fact, Reinhart undercut the 14th Amendment rationale used by Judge Walker in the original case.

Even if his rationale isn't used, I don't think that equals being overturned.  I would be shocked if the rationale of the SOCUS was either Walker's or the 9th's.  The Supremes usually don't take a case where they would rule in favor of the previously court's winning party, unless they are going to apply the law a bit differently.  And the same goes for trial vs. appeals court.

I don't think Walker was undermined, just that the Appeals court felt that they didn't need to go that far - sort of similar to how Amendment 2 was decided - strict scrutiny wasn't applied (unfortunately) at the SOCUS level because it didn't need to apply to throw out Amendment 2.

The standard the court used is not "Is there a constitutional right to rescind a right", although the court does recognize there is a difference between new and old rights.  The issue is, essentially, if I ask for a NEW right, I should have a higher burden of proof than if I ask to keep an already-recognized right (particularly, from a court's view, one that was litigated to obtain).

The second paragraph of the decision explains the primary reason that they ruled the way they did:

Quote
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently.  There was no such reason that Proposition 8 could have been enacted.  Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right--the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard those liberties.

That's the crux of the issue - did the law meet rational basis (I think it should have to meet strict scrutiny, but the 9th didn't think that was required, so they used the lower standard).  Justice Smith dissented because, somehow, he felt the law had a rational relationship to a legitimate state interest.  He didn't dissent because it involved a novel interpretation of law.  And he agreed with the other justices' application of rational basis except when it came to the issue of whether not allowing the label marriage to be used by same-sex couples could rationally be related to the legitimate state interest of reasonable procreation.

I think he's way off base here - there needs to be a direct relationship, not an accidental relationship (and he should have dismissed the responsible procreation argument for the same reason he dismissed the changes to curriculum argument).  But what he didn't do is say that rational basis was an inappropriate legal doctrine to use to determine if the law is valid.

Quote from: Slanan on February 09, 2012, 05:20:11 PMSNIP

That's the crux of the issue - did the law meet rational basis (I think it should have to meet strict scrutiny, but the 9th didn't think that was required, so they used the lower standard).  Justice Smith dissented because, somehow, he felt the law had a rational relationship to a legitimate state interest.  He didn't dissent because it involved a novel interpretation of law.  And he agreed with the other justices' application of rational basis except when it came to the issue of whether not allowing the label marriage to be used by same-sex couples could rationally be related to the legitimate state interest of reasonable procreation.

I think he's way off base here - there needs to be a direct relationship, not an accidental relationship (and he should have dismissed the responsible procreation argument for the same reason he dismissed the changes to curriculum argument).  But what he didn't do is say that rational basis was an inappropriate legal doctrine to use to determine if the law is valid.

Judge Reinhardt's determination on rationale basis runs contrary to the arguments in the similar 8th Circuit case, Citizens for Equal Protection v Bruning.  In that case, which dealt with the similar issue of a state initiative passed by the people, the Court found that the Federal District Court had no business even taking up the issue.

Reinhardt hung his hat and hopes on Romer, which is not an apt comparison.  The Colorado initiative sought to outlaw "... "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." The California Proposition 8 dealt only with the marriage issue.  The plaintiffs in Citizens also appealed to the Romer rationale

The 8th Circuit wrote:

If sexual orientation, like race, were a "suspect classification" for purposes of the Equal Protection Clause, then Appellees' focus on the political burden erected by a constitutional amendment would find support in cases like Reitman v. Mulkey, 387 U.S. 369 (1967), Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).  But the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes.  The Court's general standard is that rational-basis review applies "where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement."  City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 441 (1985).  As we will explain, that is the case here, and therefore Appellees are not entitled to strict scrutiny review on this ground.

Rational-basis review is highly deferential to the legislature or, in this case, to the electorate that directly adopted § 29 by the initiative process.  "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational-basis for the classification."  F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).  Thus, the classification created by § 29 and other laws defining marriage as the union between one man and one woman is afforded a "strong presumption of validity."  Heller v. Doe, 509 U.S. 312, 319 (1993).  The Equal Protection Clause "is not a license for courts to judge the wisdom, fairness, or logic of [the voters'] choices." Beach Communications, 508 U.S. at 31.

Our rational-basis review begins with an historical fact -- the institution of marriage has always been, in our federal system, the predominant concern of state government.  The Supreme Court long ago declared, and recently reaffirmed, that a State "has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved."  Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878), quoted in Sosna v. Iowa, 419 U.S. 393, 404 (1975).  This necessarily includes the power to classify those persons who may validly marry.  "Surely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an examination for venereal disease, or that no one can marry who has a living husband or wife."  Zablocki v. Redhail, 434 U.S. 374, 392 (1978) (Stewart, J., concurring).  In this constitutional environment, rational-basis review must be particularly deferential.

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in "steering procreation into marriage."  By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws "encourage procreation to take place within the socially recognized unit that is best situated for raising children."  The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale.  The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry.  But it is also based on a "responsible procreation" theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.

(Footnotes omitted)

The strength of this opinion, which had a foundation as well in the precedent, Baker v Nelson, led supporters of same-sex and others non-traditional marriages to drop any appeal to the US Supreme Court.

The 9th Circuit has pitted itself against the 8th Circuit, almost guaranteeing that the High Court will hear the appeal.