Prop 8 Gay Marriage Ban Overturned

[Conan71]

http://nymag.com/daily/intel/2010/08/judge_vaughn_walker_hands_vict.html

I'm not worried so much specifically over the issue of gay marriage, I'm perfectly fine with the legal observance of civil unions for every couple who wants to be recognized as such.  

How does everyone feel about one judge overturning the will of a majority of voters?  In a representative republic the will of the majority is demonstrated with their vote.  There are basically nearly 8 mm Californians who have just learned their vote is irrelevant, and one judge has said he is right and they are wrong.  FWIW, Judge Walker is reputedly gay.

As well, this comes on the heels of Missouri's vote agains the Obamacare mandate.  According to Robert Gibbs, the vote was insignificant.

"Gibbs dismisses Missouri vote against federal health insurance mandate
By Sam Youngman - 08/04/10 03:39 PM ET
 
White House press secretary Robert Gibbs flatly dismissed Missouri's vote Tuesday rejecting a key part of the healthcare law.

Gibbs said Missouri's vote approving a ballot initiative to exempt residents from the new law requiring individuals to buy health insurance was "of no legal significance."

Asked what it means that voters in Missouri would vote against the federal mandate, Gibbs said: "Nothing."'

It sure seems like a lot of legislation and court rulings are starting to go against the demonstrated view of the majority.

http://thehill.com/blogs/healthwatch/health-reform-implementation/112685-gibbs-dismisses-missouri-vote-against-health-insurance-mandate

[RecycleMichael]

Gays getting married? Haven't they suffered enough?

[Townsend]

I'm siding on the right for them to get married so I'm sure my opinion is skewed.

I had a problem with Prop 8 as soon as the Catholic Church and other religious concerns started spending crazy money to persuade their parishioners in order to screw with secular law.

[custosnox]

counter-majoritarism at it's best.  That is the problem, everyone assumes this is a republic, which has been tried and fail countless times.  A standard must stand against the whims of the mob.  

[Ed W]

I think the judge ruled that rights cannot be curtailed by a vote. 

[rwarn17588]

How does everyone feel about one judge overturning the will of a majority of voters?  In a representative republic the will of the majority is demonstrated with their vote.  There are basically nearly 8 mm Californians who have just learned their vote is irrelevant, and one judge has said he is right and they are wrong.  FWIW, Judge Walker is reputedly gay.

Will of the people does not trump the Constitution. If that were the case, much of the South would still have Jim Crow laws.

[Conan71]

My understanding is the judge believed the affirmative vote for the ban was a result of homophobia.  Mark Davis has an interesting analysis of the constitutionality issue

But seen through the liberal lens, preserving unique status for man-woman marriage can only be driven by homophobia. Venom drips from Walker's paragraph attacking the 7 million Californians who voted for Prop 8, whom he believes were driven by "nothing more than a fear or unarticulated dislike of same-sex couples."

As perversely untrue as that is, even if every last one of the Prop 8 voters was a raging gay-basher, it would not change the fact that the Constitution requires this issue to be settled at the state level by the legislative process.

When the Constitution is silent on an issue, the 10th amendment leaves it to the states or to the people. The Prop 8 vote did this in California. If pro-gay marriage forces had won, their wishes would deserve to prevail. It didn't, and now a judge who can't handle that vote seeks to subvert the public will with the left's tried and true tactic: the wholesale invention of rights that do not exist.

Walker is welcome to hold heterosexual and homosexual unions in identical personal regard, as many Americans do, and to hold up same-sex couples as worthy partners, parents and citizens, as most Americans do. But this does not entitle him to hijack the right of the people of California to decide which marriages to legally recognize.

http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/DN-markdavis_0806edi.State.Edition1.4b566fb.html

Yes, Davis is a conservative, but note he said that if the vote had gone the other way, the wishes of those voters deserved to prevail.

And here's a take on it from the other side:

http://www.edgeboston.com/index.php?ch=news&sc=&sc2=news&sc3=&id=108796

"Similarly, Judge Walker found that, based upon the evidence presented in court by the pro-Proposition 8 side--which only called two witnesses to the stand, compared to the 18 witnesses who appeared on the pro-marriage equality side--the ballot initiative was motivated by "animus" directed at gays, rather than a genuine compelling interest. Walker wrote that the marriage ban imposed by Proposition 8 "both unconstitutionally burdens the exercise of a fundamental right to marry and creates an irrational classification on the basis of sexual orientation."

Moreover, Walker, wrote, proponents of Proposition 8 relied on "unfounded stereotypes and prejudices" about gays. "Proposition 8 played on the fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual," Walker noted in his 136-page opinion."

IMO, this is the point where the judge over-reaches in assuming homophobia was the driving force behind those who voted for passage of the amendment. 

We throw around the term "judicial activism" quite a bit on here.  Could this be considered a case of that, especially coming from a more left-leaning circuit and from a judge who is reputedly gay.  Did it really get a fair hearing then?

[Townsend]

Did it really get a fair hearing then?

I think the proposition was unfairly shoved through by very powerful conservative churches with their money and the ability to get all there snake dancers worked up about something that shouldn't concern them.

That's not really all that fair either.

[rwarn17588]

I was watching the trial reports fairly closely, and the judge, by all accounts, was extremely fair to the plaintiffs and defendants and that no one could really complain about how the court was run.

Also, I read the ruling in its entirety last night, and it had more factual and legal citations than any ruling I'd ever seen. Indeed, I think Judge Walker bent over backwards to ensure that his ruling was based on facts and law. And I thought the legal reasoning behind the ruling was very sound.

The defense was charged with presenting facts of its own. That it failed to do so was not the fault of the judge. In fact, the judge asked the defense when it was ever going to present evidence to support its case. It did not. And the one defense witness simply wasn't credible because he did not present facts or science to back his assertions, just moralistic opinions.

If you're a judge -- gay or not -- and one side presents mounds of evidence for its scientific and constitutional case and the other doesn't, how are you going to rule?

I'd actually read the ruling before throwing the "activist" tag around if I were you.

(As an aside, I find it amusing that wingers are throwing around the "liberal" tag on the judge when he was a Bush appointee, was championed by Ed Meese, and had his judicial appointment held up twice by the Democratic Congress because he was deemed as too conservative.)

[Conan71]

I think the proposition was unfairly shoved through by very powerful conservative churches with their money and the ability to get all there snake dancers worked up about something that shouldn't concern them.

That's not really all that fair either.

And that's a good point as well.  I've never been a believer in legislating morality.  My understanding was that the big issue to the fundies was preventing the state from calling a same sex union a marriage.  It did not affect "domestic partnerships" I think they were afraid of the state re-defining their lock on the word "marriage".

Marriage was a spiritual and religious concept long before it became a civil concept sanctioned by government and generally was always only recognized as a heterosexual union.  I still don't believe government should be in the marriage business, but there is sound reasoning as to why it is when it comes to splitting one up and sifting through the ashes.

Oh, FWIW if Wiki can be trusted, it shows the anti Prop 8 crowd raised about $3.4 mm more than the pro crowd (sorry short on time, I'll look for something more scholarly, I was trying to get a quick summary of the issue).

[rwarn17588]

My understanding is the judge believed the affirmative vote for the ban was a result of homophobia.  Mark Davis has an interesting analysis of the constitutionality issue

But seen through the liberal lens, preserving unique status for man-woman marriage can only be driven by homophobia. Venom drips from Walker's paragraph attacking the 7 million Californians who voted for Prop 8, whom he believes were driven by "nothing more than a fear or unarticulated dislike of same-sex couples."

The ruling deals with this issue. Indeed, it was shown during the trial that the Prop 8 people did use fear and assertions in their campaign that were not based in sound science but, in fact, lies or ignorance. So the homophobia conclusion didn't come out of thin air.

[rwarn17588]

Marriage was a spiritual and religious concept long before it became a civil concept sanctioned by government and generally was always only recognized as a heterosexual union.  I still don't believe government should be in the marriage business, but there is sound reasoning as to why it is when it comes to splitting one up and sifting through the ashes.

Marriage actually was a secular thing long before it became a spiritual or religious concept. It became more of a religious thing only in the past 500 years or so.

That's not a short time, but the history of marriage goes way before that.

[Conan71]

I was watching the trial reports fairly closely, and the judge, by all accounts, was extremely fair to the plaintiffs and defendants and that no one could really complain about how the court was run.

Also, I read the ruling in its entirety last night, and it had more factual and legal citations than any ruling I'd ever seen. Indeed, I think Judge Walker bent over backwards to ensure that his ruling was based on facts and law. And I thought the legal reasoning behind the ruling was very sound.

The defense was charged with presenting facts of its own. That it failed to do so was not the fault of the judge. In fact, the judge asked the defense when it was ever going to present evidence to support its case. It did not. And the one defense witness simply wasn't credible because he did not present facts or science to back his assertions, just moralistic opinions.

If you're a judge -- gay or not -- and one side presents mounds of evidence for its scientific and constitutional case and the other doesn't, how are you going to rule?

I'd actually read the ruling before throwing the "activist" tag around if I were you.

(As an aside, I find it amusing that wingers are throwing around the "liberal" tag on the judge when he was a Bush appointee, was championed by Ed Meese, and had his judicial appointment held up twice by the Democratic Congress because he was deemed as too conservative.)

But it's rulings like this on wedge issues which are getting the tag "judicial activism" from the right and left.  Most people see the decisions for what is in the headline and first two paragraphs of the filtered account of it, not reading a 138 page opinion in depth.  It's perception, not reality that sells with the voter in many cases. 

Sure Judge Walker was a Bush appointee.  Gov. Schwarzenegger, who sees this as a victory, is a Republican, so what?  There's room to say that Walker was biased if he is gay.  Had a hetero judge ruled to keep it intact, don't you think there would be room for people to call that judge biased and activism from the right?  He may well have approached it totally neutral, but this gives leverage to those who will call this activism.

Oh and Huffpo isn't too happy with the CIC's response:

"So, how did President Barack Obama, the de facto leader of the Democrats, choose to commemorate this victory? Let's go to the statement furnished by the White House to Kerry Eleveld of the Advocate:

"The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans."
Well, that's just sort of OK, as statements go. But as long as no anonymous sources at the White House gives, say, Politico some other comment that completely undermines this lukewarm support --

Nevertheless, Obama has also publicly opposed same-sex marriage, and a White House aide said the president's position has not changed.

"He supports civil unions, doesn't personally support gay marriage though he supports repealing the Defense of Marriage Act, and has opposed divisive and discriminatory initiatives like Prop. 8 in other states," said the official, who asked not to be named.

Well, that's just splendid. A key voting bloc for Democrats celebrates an important civil rights victory, and the White House heralds the occasion by coupling its enthusiasm for the victory with a reminder that it opposes the actual civil right that's at stake."

http://www.huffingtonpost.com/2010/08/05/prop-8-ruling-exposes-dem_n_671900.html

[guido911]

http://nymag.com/daily/intel/2010/08/judge_vaughn_walker_hands_vict.html
How does everyone feel about one judge overturning the will of a majority of voters?  In a representative republic the will of the majority is demonstrated with their vote.  There are basically nearly 8 mm Californians who have just learned their vote is irrelevant, and one judge has said he is right and they are wrong.  FWIW, Judge Walker is reputedly gay.

I have been in this legal business for a number of years now and I can tell you that conceptually it is very difficult to comprehend how one person can throw away the will of the people. There is some solace in knowing their is an appellate process available which does make the system a little more palatable.

[rwarn17588]

But it's rulings like this on wedge issues which are getting the tag "judicial activism" from the right and left.  Most people see the decisions for what is in the headline and first two paragraphs of the filtered account of it, not reading a 138 page opinion in depth.  It's perception, not reality that sells with the voter in many cases. 

Sure Judge Walker was a Bush appointee.  Gov. Schwarzenegger, who sees this as a victory, is a Republican, so what?  There's room to say that Walker was biased if he is gay.  Had a hetero judge ruled to keep it intact, don't you think there would be room for people to call that judge biased and activism from the right?  He may well have approached it totally neutral, but this gives leverage to those who will call this activism.

Like I care a whit what Huffington Post says. And I don't care about the fickle strands of public perception, because I'm a lot more interested in reality.

And "judicial activist" is lazy and empty-headed sloganeering, like something I would expect from jamesrage. So if people use the term, I give it the attention it deserves.

Once again, the judge stated that his ruling came from the evidence and on a constitutional basis; there's nothing I read in the ruling that indicates otherwise.

Again,

1) The defense didn't bother to present any evidence while the plaintiffs voluminously did, which indisputably tipped the balance in favor of the plaintiffs;

2) Vaughan Walker, by all accounts, is a conservative judge.

Just because you're a conservative doesn't mean you rule against gay rights (the recent gay-marriage opinions in Iowa and Massachusetts came from judges who are Republican appointees). Nor does it mean there's bias. Judges are supposed to rule on evidence and law, and there's nothing to indicate they haven't in any of these cases.