Court: CA gay-marriage ban is unconstitutional

[EagleKeeper]

I'm not sure what you mean; and I'm interested in what the basis for the one who voted to overturn the ruling was. Only the majority were quoted, and sounded quite correct.

Also, who was the dissenting judge?

And who appointed him? Bush got some anti-gay bigots on the courts.

I think that the objectors are hoping that with a different makeup on the USSC vs the 9th; that the attitudes may lean more in their direction against the gay marriage.

The three-judge panel on the 9th U.S. Circuit Court of Appeals released its decision more than three years after Californians voted in favor of Proposition 8 – banning same-sex marriages that had been legalized by a state Supreme Court ruling.
Reinhardt, appointed by President Jimmy Carter, was affirmed in his decision by Bill Clinton appointee Michael Daly Hopkins. N. Randy Smith, who was appointed by George W. Bush, dissented.

Read more: http://www.politico.com/news/stories/0212/72559.html#ixzz1liwD64a2[/quote]

Document on the ruling is 128 pgs
Link

 

[Craig234]

I think that you can say that 'activist' is a judge that goes against the people (e.g., the legislature or referendum) so maybe you can say that this was an activist opinion. Of course that also makes issues like the above mentioned Citizens United a bunch of activist judges.

Anyways, I don't think that being activist is necessarily wrong. The judiciary exists for a reason.

You don't understand how the word 'activist' is misused.

What if the people are a mob who want something uncostitutional and the courts say no?

That's clearly the courts enforcing the constitution against public opinion, which is what they're supposed to do.

You understand that issue, but not the misuse of 'activist'.

When they say activist, they're *claiming* - likely falsely - that the judge has some personal agenda they're enforcing by violating the constitution.

It's a claim these right-wingers immediately embrace, because it fits... their agenda.

Rather than deal with the legal issues, they just say 'the judge is activist'.

Their logic is sort of, 'they love the constitution; they hate gay marriage and gay marriage hasn't existed for 200+ years as legal, if the constitution guaranteed it then it wouldn't have been illegal all this time; so thisi proves that this is just judges who want to make gay marriage legal and are violating the constitution to claim it makes gay marriage legal.'

They are terrified of these 'activist judges' because they'll ignore the constitution robbing it of its power to be a protection against the government behaving badly.

It's a wonderful phrase for getting their votes and money. So they hype a phrase like 'wise Latina' and it's great for stirring up their base.

I wonder if at some point a clever right-wing leader will suggest a law saying 'if rights haven't been discovered in the constitution after 225 years, they're not there, so the courts are banned from finding any new rights after this period.' It's legally nonsense, but I bet a lot of their base would cheer it.

 

[SolMiester]

Oh God, more friends of Dorothy!....

 

[JEDIYoda]

Totally shocking, that the 9th would issue another terrible decision......

Perhaps the scotus will correct their error, maybe they won't, but either way, it's clear the will of the people doesn't matter, only the will of the activist judges.

It should never be the will of the people to violate civil rights!

 

[Fausto]

The will of the people to force the oppression by the majority can be flawed

If GA put "Deport anyone with brown skin" to a vote, it would probably pass. The "will of the people" is absurd at times.

 

[Ausm]

As if we didn`t know the ban was totally unconstitutional~!!!
It`s a victory for same sex marriage. My feeling is this will not be settled until the Supreme court of the land hears the case -- if they dare!!

http://news.yahoo.com/court-ca-gay-marriage-ban-un-constitutional-175942895.htmlSAN FRANCISCO (AP) — A federal appeals court has declared California's same-sex marriage ban to be unconstitutional, paving the way for a likely U.S. Supreme Court showdown on the voter-approved law.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled 2-1 Tuesday that a lower court judge interpreted the U.S. Constitution correctly in 2010 when he declared the ban, known as Proposition 8, to be a violation of the civil rights of gays and lesbians.

The measure, which passed with 52 percent of the vote in 2008, outlawed same-sex unions just five months after they became legal in the state.

Lawyers for Proposition 8 sponsors and for two couples who sued to overturn the ban have said they would appeal to the Supreme Court if they did not receive a favorable ruling from the 9th Circuit.

If it goes to the Supreme Court progressives will be fucked I am afraid.

 

[JEDIYoda]

When has being able to marry whoever you want ever been a right?

Thats is a very lame and weak response!

 

[fskimospy]

When has being able to marry whoever you want ever been a right?

Since 1967 in Loving v. Virginia. Why do you ask?

 

[OrByte]

BOOYAH

A real win for "We The People" of America

god bless the USA!

I have to question if the SCOTUS will actually take up this case/issue. The lower Federal Courts seem to be in agreement with the law of the land.

 

[Craig234]

I think that the objectors are hoping that with a different makeup on the USSC vs the 9th; that the attitudes may lean more in their direction against the gay marriage.

OK. Of course they are hoping for it, but as I mentioned many expect a 5-4 ruling.

That's why the lawyers for ending discrimination aimed the case directly at Kennedy.

Read more: http://www.politico.com/news/stories/0212/72559.html#ixzz1liwD64a2

Document on the ruling is 128 pgs
Link

I'll take a look later.

Guess there's no quick summary.

I note though, that my suspicion the odds were not bad the dissenter was a Bush appointee was shown correct - the two 'yes' were not Bush, the dissenter was.

Some more checking, though - Bush first tried to appoint the really bad William G. Myers to the same seat, and the Democrats filibustered him. Three of the filibustered appointees - the worst of a lot of bad ones - were approved in the 'gang of seven' compromise, not Myers who withdrew.

Smith was the 'compromise' appointment, and received a 94-0 vote.

Smith was born in Utah and got his degree from BYU, suggesting high odds he is Mormon; Mormons were perhaps the leading backers of Prop 8, sending millions into CA.

I'm not saying he shouldn't have been allowed to rule - I'm more concerned with who appointed him - but it is interesting to note.

There is an effort to create a major presence of judges with a 'conservative viewpoint' - i.e., often a radically different one than conventional - led by the 'Federalist Society'.

There was another 'conservative' law school, Pat Robertsen's Regent, which was a large source for Bush appointees (150 served in the Bush administration), including Monica Goodling, at the center of the scandal where applicants were illegally given political litmus tests and several US attorneys were fired for political reasons.

Unlike many such schools, this one has been improved and produces competent attorneys; they're just with that 'conservative', often radical different view of the law.

As Bill Moyers reports - there's a lot more good info in the link:

BILL MOYERS: The school is proud of its progress and makes no apologies about the blending of Biblical principles and American law in practice. Law School dean, Jeffrey Brauch:

DEAN BRAUCH: It's one thing to have an institutional separation between church and state, which is very important, but it's another thing to say there should be a separation between faith and law or faith and policy. I'm pleased that some of our graduates are going to go and impact public policy through their careers.

BILL MOYERS: The dean has reason to be pleased. Just consider the missionaries Regent has already sent to what the religious right once considered the heart of darkness - the government in Washington. Their website boasted that 150 of the university's students have worked in the Bush administration since 2001.

Many have this woman to thank: Kay Coles James. For four years she ran the Office of Personnel management for President Bush.

Her reach stretched across the entire Executive Branch.

Before her White House assignment, she had been vice president of the Christian lobbying group known as the Family Research Council and dean of the Robertson School of Government at Regent University.

Throughout the Bush administration, the Regent network has spread — offering jobs, mentoring and promotions to bright young religious conservatives in the Department of Labor, Health and Human Services, USAID, Homeland Security, The Drug Enforcement Agency, The Office of the Special Counsel, Senate and House staffs, Commerce, Education, Defense Veterans Affairs, The Air Force, The Army, The CIA, NASA and the Department of Justice.

For the Christian Right these doors open on the promised land, where Biblical law can influence the law of the land.

SPIRO BALLAS: It's not so much that Christianity is in the class, it's really the history and where the law comes form and when you start studying the law it's hard to separate I think that Christian base from the law.

CARLY GAMMILL: The importance to me of having the Biblical foundation in the law is because of my belief that God's law is the highest law. And not that earthly law and you know the law of this world is necessarily supposed to be exactly the same, but just to understand what God's law and what the word of God does have to say about the different issues that affect our culture.

JOSHUA BLAKE: Instead of promoting the individual's liberties necessarily, we are looking at what's good for people as far as these values that are found in the Bible.

http://www.pbs.org/moyers/journal/05112007/transcript1.html

 

[Pens1566]

Totally shocking, that the 9th would issue another terrible decision......

Perhaps the scotus will correct their error, maybe they won't, but either way, it's clear the will of the people doesn't matter, only the will of the activist judges.

^ This is why we can't have nice things.

 

[sactoking]

The dissenting judge said that there are "legitimate state interests" in blocking gay marriage.. I'd be curious to read what these are.

I reviewed the dissenting opinion and will try my best to summarize:

In determining a 14th amendment issue under a rational basis review the onus lies on the Plaintiff to show that the only conceivable ends to a measure are animus or bias. In other words the Plaintiff must show that the measure was fueled unequivocably by bias and no possible interest could be served. The Proponent need only show that the existence of a govermental interest is arguable to have the equal protection claim thrown out under USSC precedent. The dissenter said that since Prop 8 didn't remove any legal rights or protections it was not subject to a different standard. Given the standard it was subject to, the existence of legitimate goverment interests (the "optimal parenting rationale") is at least open for debate. If the optimal parenting rational is debatable then Plaintiff loses under the rational basis review standard and Baker v Nelson, 409 U.S. 810 (1972).

 

[abaez]

I reviewed the dissenting opinion and will try my best to summarize:

In determining a 14th amendment issue under a rational basis review the onus lies on the Plaintiff to show that the only conceivable ends to a measure are animus or bias. In other words the Plaintiff must show that the measure was fueled unequivocably by bias and no possible interest could be served. The Proponent need only show that the existence of a govermental interest is arguable to have the equal protection claim thrown out under USSC precedent. The dissenter said that since Prop 8 didn't remove any legal rights or protections it was not subject to a different standard. Given the standard it was subject to, the existence of legitimate goverment interests (the "optimal parenting rationale") is at least open for debate. If the optimal parenting rational is debatable then Plaintiff loses under the rational basis review standard and Baker v Nelson, 409 U.S. 810 (1972).

I thought they pulled out like 10 legit studies that said there is no difference gay or straight parents?

 

[waggy]

I don't understand how anyone can see it any other way honestly.

 

[GoPackGo]

Even in heterosexuals marriage != procreation... so then people who are of beyond child bearing range shouldn't be allowed to get married either...based on the dissenting opinion.

 

[RabidMongoose]

You don't understand how the word 'activist' is misused.

Um, my post had nothing to do with the misuse of the word 'activist.' I generally agree with your post in that people just say 'activist' for judges with rulings that those people oppose.

My point was just for a fairly objective standard for activist. In my opinion, if the judge strikes down the will of the people through acts of the legislature or referendums, then you can say that is activist. So, in that sense, perhaps this is an activist decision.

However, I think that the conservative wing of the Supreme Court would be more activist under this type of standard.

Moreover, I don't believe that merely being 'activist' is wrong. The judicial branch exists as a separate branch of our government for a reason. They may need to be 'activist' in this capacity and there is nothing wrong with it. The judiciary being activist is part of the its existence.

 

[monovillage]

Webster's:

Activist (n): Judge who rules in a way right-wing radicals don't like; instead of being honest and admitting the issue is their political bias, or discussing the actual issue, this word is used to attack the judge ad hominem and claim a conspiracy of evil 'activist judges' to explain the ruling.

This allows them to claim that the judges they disagree with are 'ignoring the constitution' without actually having to prove the claim.

Five Supremes were radical activist judges in Ctizens United; that doesn't count.

Definition 2: Word used to announce the person is too ignorant to discuss the issue.

I see what you did there, you flat out lied about what the definition of a word is and then tried to make it look like it was an actual definition.
How very progressive of you.

 

[Zargon]

I reviewed the dissenting opinion and will try my best to summarize:

In determining a 14th amendment issue under a rational basis review the onus lies on the Plaintiff to show that the only conceivable ends to a measure are animus or bias. In other words the Plaintiff must show that the measure was fueled unequivocably by bias and no possible interest could be served. The Proponent need only show that the existence of a govermental interest is arguable to have the equal protection claim thrown out under USSC precedent. The dissenter said that since Prop 8 didn't remove any legal rights or protections it was not subject to a different standard. Given the standard it was subject to, the existence of legitimate goverment interests (the "optimal parenting rationale") is at least open for debate. If the optimal parenting rational is debatable then Plaintiff loses under the rational basis review standard and Baker v Nelson, 409 U.S. 810 (1972).

I thought CA had approved it, then prop 8 removed it, so it would remove legal rights?
but I could be wrong

nice to see the 9th do something right versus all their nutbag firearms rulings

 

[Craig234]

Monovillage, you're a liar, one more reason I try to avoid reading your posts.

 

[Pens1566]

Even in heterosexuals marriage != procreation... so then people who are of beyond child bearing range shouldn't be allowed to get married either...based on the dissenting opinion.

Sterile as well. It's a failure of an argument.

 

[RabidMongoose]

Let's try to have an adult conversation here. Thanks.

 

[Brovane]

Good decision by the 9th. Some people are summarizing that because the 9th ruling was so limited, only applying to CA that SCOTUS might decline to take the case.

 

[Craig234]

All lower court rulings are 'limited' in the geography of their effect; that's not a reason for the Supreme Court not to take the case.

This is not an issue unique to California; contrary to some Republican speeches, there are gays across the nation.

 

[monovillage]

Monovillage, you're a liar, one more reason I try to avoid reading your posts.

Is your name Webster? Did you or did you not try to make it look like a definition from Webster's Dictionary? It did, you did and you are lying about it and it's so very, very progressive of you to do so. Pull the stick out.

 

[waggy]

Even in heterosexuals marriage != procreation... so then people who are of beyond child bearing range shouldn't be allowed to get married either...based on the dissenting opinion.

exactly. i had a vasectomy. so i can't get married again?