Court: CA gay-marriage ban is unconstitutional

[Brovane]

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.

I understand what you are saying. However since the 9th courts rulling is very narrowly tailored that it would only apply to CA there rulling if left to stand. It wouldn't all of a sudden start making gay marriage legal in other states. This means that SCOTUS could elect to pass. Sometimes on highly charges cases like this if given the oppurtunity SCOTUS will sometimes will try to stay out the issue. Basically let me more case law build up before coming down with a ruling that could piss a lot of people off.

 

[JEDIYoda]

I understand what you are saying. However since the 9th courts rulling is very narrowly tailored that it would only apply to CA there rulling if left to stand. It wouldn't all of a sudden start making gay marriage legal in other states. --that is a true statement!
This means that SCOTUS could elect to pass. Sometimes on highly charges cases like this if given the oppurtunity SCOTUS will sometimes will try to stay out the issue. Basically let me more case law build up before coming down with a ruling that could piss a lot of people off.

But it would set a precedent and possibly make other states decide to go against those who would oppose gay marriage!

 

[sactoking]

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

According to the dissenting opinion the anti-Prop 8 people brought forth several studies that there was no difference and the pro-Prop 8 people also brought forth several studies that said there was a difference. The dissenting judge said the fact that the literature is not in agreement, especially in light of the fact that none of the anti-Prop 8 cited studies directly compared hetero- and homosexual parents, by definition meant that the anti-Prop 8 group had not met the standard required under a rational basis review.

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.

I believe that the dissenting judge actually dismissed the pro-Prop 8 argument dealing with procreation. He said there were two theories under which Prop 8 might stand under a rational basis review: the procreation argument and the "optimal parent" argument. In a somewhat rambling fashion he dismissed the procreation argument but said that based on existing case law and the pro-Prop 8 group's ability to show lack of consensus on the "optimal parent" argument the anti-Prop 8 group had not met the standard required under a rational basis review.

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

According to the dissenting judge his analysis hinged on the fact that Prop 8 sought only to limit the use of the term "marriage". In other cases where anti-gay marriage initiatives were shot down the measures sought to affirmatively deny the affected group certain legal benefits. In California, those who are granted a civil union are afforded all of the state-sponsored rights as a married couple. Since Prop 8 did not seek to deny or remove any of those rights, it sought only to limit the use of the label, the standard for review under Baker is different: the Plaintiff must show that the only plausible reason for Prop 8 was animus. Since the dissenting judge thought that there was at least one plausible reson for Prop 8 not couched in animus (the disagreement over the "optimal parent" theory) Plaintiffs failed to meet the burden for judicial review.

*Note: these are not my beliefs but are presented only as discussion on the dissenting opinion

 

[Craig234]

I understand what you are saying. However since the 9th courts rulling is very narrowly tailored that it would only apply to CA there rulling if left to stand. It wouldn't all of a sudden start making gay marriage legal in other states. This means that SCOTUS could elect to pass. Sometimes on highly charges cases like this if given the oppurtunity SCOTUS will sometimes will try to stay out the issue. Basically let me more case law build up before coming down with a ruling that could piss a lot of people off.

The constitutional interpretation for this case would make all laws banning gay marriage nationally subject to similar lawsuits - a classic reason for the Supreme Court.

A case in Virginia went to the Supremes ending laws against interracial marriage nationally. A case in Texas went to the Supremes ending sodomy criminalization nationally.

 

[sactoking]

But it would set a precedent and possibly make other states decide to go against those who would oppose gay marriage!

Eh, I'm not sure about that. I haven't read the majority opinion yet since it is considerably longer than the dissenting opnion, but even the dissenting justice says that anti-gay marriage laws that seek to deny right and/or opportunities have often been stricken under equal protection arguments.

In this case the dissenting justice was careful to point out that Prop 8 sought to limit only the use of the term "marriage" and did not actively seek to repeal any rights or privileges granted. I believe this is what makes it such a limiting decision.

In a crude analogy it's similar to a law stating only Japanese people can call themselves ninjas (Prop 8) versus a law that says only Japanese people can study martial arts (Colorado's Amendment 2). One limits labels and the other limits actions.

 

[Rainsford]

...
According to the dissenting judge his analysis hinged on the fact that Prop 8 sought only to limit the use of the term "marriage". In other cases where anti-gay marriage initiatives were shot down the measures sought to affirmatively deny the affected group certain legal benefits. In California, those who are granted a civil union are afforded all of the state-sponsored rights as a married couple. Since Prop 8 did not seek to deny or remove any of those rights, it sought only to limit the use of the label, the standard for review under Baker is different: the Plaintiff must show that the only plausible reason for Prop 8 was animus. Since the dissenting judge thought that there was at least one plausible reson for Prop 8 not couched in animus (the disagreement over the "optimal parent" theory) Plaintiffs failed to meet the burden for judicial review.

*Note: these are not my beliefs but are presented only as discussion on the dissenting opinion

I'm not a lawyer, but I feel like the "label" impact of prop 8 removes much (or all) of the argument for plausible reasons like "optimal parent". If proposition 8 was strictly intended to reserve the word "marriage" for heterosexual couples without denying homosexual couples any existing rights in civil unions (which seem legally equal to marriage under CA law), it wouldn't seem to support "optimal parenting" at all since it did nothing to change the status of homosexual parents.

In other words, it seems like because proposition 8 was ONLY intended to deny homosexual couples the use of the term marriage, it would be hard to support a plausible reason for prop 8 besides animus.

 

[jackstar7]

Religion needs to get out of the business of marriage.

 

[woolfe9999]

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.

I don't think that following the Constitution is judicial activism. Judicial activism is when a judge ignores or spins the law to fit his or her own political bias. Big difference there. The issue here is whether these justices are correct in their interpretation of the Constitution. The question of "activism" can't be answered until that question is answered first.

 

[OrByte]

According to the dissenting opinion the anti-Prop 8 people brought forth several studies that there was no difference and the pro-Prop 8 people also brought forth several studies that said there was a difference. The dissenting judge said the fact that the literature is not in agreement, especially in light of the fact that none of the anti-Prop 8 cited studies directly compared hetero- and homosexual parents, by definition meant that the anti-Prop 8 group had not met the standard required under a rational basis review.

I believe that the dissenting judge actually dismissed the pro-Prop 8 argument dealing with procreation. He said there were two theories under which Prop 8 might stand under a rational basis review: the procreation argument and the "optimal parent" argument. In a somewhat rambling fashion he dismissed the procreation argument but said that based on existing case law and the pro-Prop 8 group's ability to show lack of consensus on the "optimal parent" argument the anti-Prop 8 group had not met the standard required under a rational basis review.



According to the dissenting judge his analysis hinged on the fact that Prop 8 sought only to limit the use of the term "marriage". In other cases where anti-gay marriage initiatives were shot down the measures sought to affirmatively deny the affected group certain legal benefits. In California, those who are granted a civil union are afforded all of the state-sponsored rights as a married couple. Since Prop 8 did not seek to deny or remove any of those rights, it sought only to limit the use of the label, the standard for review under Baker is different: the Plaintiff must show that the only plausible reason for Prop 8 was animus. Since the dissenting judge thought that there was at least one plausible reson for Prop 8 not couched in animus (the disagreement over the "optimal parent" theory) Plaintiffs failed to meet the burden for judicial review.

*Note: these are not my beliefs but are presented only as discussion on the dissenting opinion

Thank you for the summary/breakdown.

it just seems to me that if the Prop8 issue boiled down to only the use of the term "marriage" then why would any other argument outside of the animus argument be allowed in the first place (meaning "optimal parent" theory?)

The dissenting opinion seems to be contradicting?

 

[cybrsage]

I think they should simply create a new name for the new type of civil union. A pine and an oak are both trees, but they have different names because they are not the same thing. Related, yes, the same, no.

Homosexual and hetersexual civil unions are related, but not the same, so they should simply have different names and be done with it. A new style of civil union is created and everyone wins.

 

[fskimospy]

I think they should simply create a new name for the new type of civil union. A pine and an oak are both trees, but they have different names because they are not the same thing. Related, yes, the same, no.

Homosexual and hetersexual civil unions are related, but not the same, so they should simply have different names and be done with it. A new style of civil union is created and everyone wins.

I don't think anyone is interested in separate but equal.

 

[cybrsage]

Religion needs to get out of the business of marriage.

It is the other way around, government needs to get out of the business of marriage. They should only ever issue civil unions. Let religions keep marriage for themselves.

 

[cybrsage]

I don't think anyone is interested in separate but equal.

Remember that next time you walk past the women's restroom at the mall...

 

[Rainsford]

I don't think that following the Constitution is judicial activism. Judicial activism is when a judge ignores or spins the law to fit his or her own political bias. Big difference there. The issue here is whether these justices are correct in their interpretation of the Constitution. The question of "activism" can't be answered until that question is answered first.

In theory you're right, but in common usage people almost always define "judicial activism" as making a decision "against the will of the people". Questions about legal reasoning or constitutionality are hardly ever mentioned. The implication seems to be that popular laws are ALWAYS constitutional...maybe even by definition. So the ONLY way a judge would overturn those laws is if he or she is being an activist.

 

[waggy]

Remember that next time you walk past the women's restroom at the mall...

wait..what?

 

[sactoking]

I'm not a lawyer, but I feel like the "label" impact of prop 8 removes much (or all) of the argument for plausible reasons like "optimal parent". If proposition 8 was strictly intended to reserve the word "marriage" for heterosexual couples without denying homosexual couples any existing rights in civil unions (which seem legally equal to marriage under CA law), it wouldn't seem to support "optimal parenting" at all since it did nothing to change the status of homosexual parents.

In other words, it seems like because proposition 8 was ONLY intended to deny homosexual couples the use of the term marriage, it would be hard to support a plausible reason for prop 8 besides animus.

The dissenting judge's published reasoning was this:

Under the "optimal parent" theory the courts have held that a "Woman + Man" married unit is the optimal parenting unit. Absent a traditional "Woman + Man" married unit the most typical parenting unit is "Woman" alone. A single woman often relies upon gov't assistance to a greater degree than any other parenting unit. If granting homosexual couples the ability to use the term marriage causes biased heterosexual individuals to eschew marriage it could lead to to more single-woman parenting units. The government has a legitimate interest in reducing single-woman parenting units in order to reduce government assistance. Since the pro-Prop 8 contingent can show that a legitimate government interest is involved, then under the standard for rational basis review no Federal equal-protection cause can be forwarded even if the basis for the government interest is itself fueled in animus.

In this judge's opinion it is a critical distinction. To say "Homosexuals can't marry because I hate homosexuals" isn't a legitimate government interest because it is fueled solely in animus. To say "Homosexuals can't marry because homosexuals are 1,000,000,000 times more likely to be pedophiles" may be a legitimate government interest (preventing pedophile parents) if the underlying assertion were at least debateable (it does not have to be proved) even if the motive behind the assertion is fueled solely in animus.

In this case the USSC has said marriage is solely up to the individual States. In order to intervene under the guise of equal protection the Plaintiff must show the Proponent's motives are solely biased. If a bigot is fueled by bigotry but can make at least one cogent argument based in fact then the gov't must defer to the State based on USSC precedent.

My take on it is that the majority opinion was that the Proponents arguments were 100% fueled in animus and that the minority opinion was that there was at least a shred of argument to be made and so the burden of proof was not met.

 

[cybrsage]

wait..what?

I don't think anyone is interested in separate but equal.

They are seperate but equal and most people are interested in keeping them that way.

 

[Rainsford]

Remember that next time you walk past the women's restroom at the mall...

There are valid reasons for that kind of separation. It's much harder to come up with a concrete reason that "straight marriage" and "gay marriage" can't use the same term. I don't think courts will support "I don't like them using our word" as a compelling argument.

There's a reason legal argument isn't done by analogy 😉

 

[cybrsage]

There are valid reasons for that kind of separation. It's much harder to come up with a concrete reason that "straight marriage" and "gay marriage" can't use the same term. I don't think courts will support "I don't like them using our word" as a compelling argument.

There's a reason legal argument isn't done by analogy 😉

Yeah, but it means his statement was silly, since it could be so easily countered.


I really just want all governments in the US to get out of the business of marriage altogether and only issue civil unions. If someone wants to be married, they can go to their church. A church should be able to issue the government civil union paper as well as their own church sanctified marriage paper.

In that way, no one can complain.

 

[sactoking]

Thank you for the summary/breakdown.

it just seems to me that if the Prop8 issue boiled down to only the use of the term "marriage" then why would any other argument outside of the animus argument be allowed in the first place (meaning "optimal parent" theory?)

The dissenting opinion seems to be contradicting?

Under the dissenting judge's opinion the anti-Prop 8 crowd had the burden of proof in this case. Their burden was that they had to prove that the only plausible explanation for Prop 8 was bias. The pro-Prop 8 crowd, under that burden, only need to prove that in one instance there was an argument that was not couched in bias. The optimal parent argument had to be allowed because it was a debatable topic which showed that not all of the reasons could be bias.

It would be like if the anti-Prop 8 crowd had to prove that all swans in the world were white and all the pro-Prop 8 crowd had to do was show one black swan in all of the swans in the world.

 

[fskimospy]

Yeah, but it means his statement was silly, since it could be so easily countered.

My statement was obviously in relation to the topic of marriage, not that nothing could ever be separate ever. Silliness indeed.

 

[waggy]

[/I]

They are seperate but equal and most people are interested in keeping them that way.

..that is the dumbest fucking Comparison i have seen here for a good long time.

 

[OrByte]

Under the dissenting judge's opinion the anti-Prop 8 crowd had the burden of proof in this case. Their burden was that they had to prove that the only plausible explanation for Prop 8 was bias. The pro-Prop 8 crowd, under that burden, only need to prove that in one instance there was an argument that was not couched in bias. The optimal parent argument had to be allowed because it was a debatable topic which showed that not all of the reasons could be bias.

It would be like if the anti-Prop 8 crowd had to prove that all swans in the world were white and all the pro-Prop 8 crowd had to do was show one black swan in all of the swans in the world.

I gotcha. Thanks

 

[jackstar7]

It is the other way around, government needs to get out of the business of marriage. They should only ever issue civil unions. Let religions keep marriage for themselves.

Marriage is a contract, which is completely reasonable to keep under the purview of the law.

Get religion out of it. It's just ceremonial nonsense causing issues in a legal matter.

 

[Rainsford]

Yeah, but it means his statement was silly, since it could be so easily countered.

I just assumed the argument was that having two different legal definitions of marriage for straight and gay couples looked a lot like having two separate schools for white and black people...not that the phrase "separate but equal" could never, EVER, under any circumstances, make sense.

I really just want all governments in the US to get out of the business of marriage altogether and only issue civil unions. If someone wants to be married, they can go to their church. A church should be able to issue the government civil union paper as well as their own church sanctified marriage paper.

In that way, no one can complain.

I think you underestimate the ability of people to complain, and I think you're giving way too much credit to the statements of the folks "protecting marriage". Denying the word "marriage" to heterosexual couples would almost certainly cause WAY more noise than the current debate. Plus I honestly don't think it's about marriage for many people, considering the large number of states that have also legally banned gay couples for being recognized by civil unions either.