Thursday, August 5, 2010

Federal Judge Overrules Us California Bigots

It took him 136 pages to do it, but the windy federal judge Vaughn Walker has overturned California's Proposition 8 upholding marriage solely between one man and one woman. I'm going to touch on the highlights (or lowlights) of the case, but I do want to point out that this is a complicated and deeply-divisive issue and a lengthy opinion that cannot be covered exhaustively in one post.

If you want to read or refresh your memory about the early days of this federal case, go here to see how the feds got involved in the first place. The trial was simply a circus of witness after witness declaring undying love for a fellow human being (of the same sex), and tugging at the heartstrings of the judge who is one of only two openly gay judges on the federal bench. I won't say that this fact predisposed him to rule as he ultimately did, but it's been a rarity in any court I've been in that a judge has allowed this much cumulative and repetitive "evidence."

It's hard to glean one or two dispositive phrases from a 136 page decision, but I would single out the following two: "Proposition 8 fails to advance any rational basis in singling out gay and lesbians for denial of a marriage license," and "Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."

The Prop 8 defense did a very poor job fending off the "rational basis" argument, perhaps from oversensitivity to mindless tolerance. Of course, there's a rational basis, but while the plaintiffs put on witness after witness proclaiming "love, love, love" (hardly a rational basis for much of anything), the defense failed to put on the counter-argument of "law, history, and biology." Oh, and that pesky "will of the people." But the most important rational basis of all is that the Constitution does not either mention or refer to marriage, clearly leaving marriage as a matter for the States (the Tenth Amendment to the federal Constitution). "Two people in love" is not a rational basis for taking that power away from the States. Why not three people? Why not three people and their dog? Why not my sister and me?

As for "opposite-sex couples being superior to same-sex couples," where is superiority an issue anywhere in Prop 8? Different, yes. Superior, no. My personal opinion of the superiority of opposite-sex couples aside, the law and the Constitution aren't contests about who has the moral high ground. Tossing aside thousands of years of western civilization and mores should not be done based largely on hurt feelings or special sensitivities. It's as obvious as the perversion of the concept of "men and women are equal" into "men and women are the same." And since domestic partnerships in California have essentially exactly the same rights, privileges and immunities as traditional marriage, where's the superiority/inferiority argument? Both institutions have equal rights, and therefore have equal protection of the laws.

The opponents of Prop 8 are already trumpeting their victory. But I suggest they tone it down a bit for two reasons. First, at least for now, the judge has stayed execution of his order pending appeal. Second, once the Ninth Circuit Court of Appeals affirms the decision (as I fully expect it to do), the United States Supreme Court is not so easily swayed by emotion, declarations of love, and absolutist views on the relationship between men and women. Likewise, the Supreme Court is able to recognize a "distinction without a difference" such as domestic partnerships versus traditional marriage.

Given that the whole issue revolves around one word--"marriage"--the Supreme Court is likely to find that equal rights are not the same as equal verbiage. Without a Constitutional mandate to control marriage, the Court is likely to leave the issue to the States to work out whether a single word changes the entire relationship between people, particularly where there is no other legal distinction between those relationships.

Which I suppose creates a third reason. If I'm right about the ultimate Supreme Court ruling, there is nothing to stop the gay marriage proponents from going back to the California voters and getting them to approve same-sex marriage, word and all. Nothing, that is, except their determination to tar all same-sex marriage opponents with the label of "bigot." There is also the problem that 45 other states have statutes which define marriage as "one man, one woman." And a recent Field poll shows Californians, perhaps out of sheer exhaustion, now favor some form of gay marriage (51% to 42%) though that might not be reflected in actual votes at the polls. Still, why risk alienating people who might vote in your favor the next time? Even the national poll numbers have narrowed to 50% opposing gay marriage with 47% willing to allow it.

The successful petitioners compare the impact of the ruling to Brown v. Board of Education and Loving v. Virginia. These are false comparisons. Brown found no rational basis for distinction based on race in education and Loving found no rational basis for a distinction based on race in marriage. Race and sexual preference are hardly the same thing. Beside the obvious scientific difference, race is specifically forbidden as a basis for state or federal law separating citizens by their membership in a "suspect class" (race, creed, color, national origin or prior condition of servitude). Some States have passed laws including sexual preference as a suspect category, but it is not preempted by federal law nor forbidden to the States by the Constitution. Like gay marriage, the Constitution leaves the matter to the States.

The decision has been praised by gay marriage advocates as "affirming that the protections enshrined in our U. S. Constitution apply to all Americans that our dream of equality and freedom deserves protection." Aw, hooey. What equality and freedom do they have today that they didn't have the day before the decision came down? This is all emotionalism and new age happy-happy thinking. It has damned little to do with the Constitution or the law. Neither a violation of due process nor a denial of equal protection of the laws was proven in any concrete way during this trial.

People casually toss around the expressions "social contracts" and "marriage contracts," but nobody seemed to notice that the Constitution doesn't mention marriage at all but does guarantee the right to contract. Now try this reasoning on for size. If marriage gets no notice at all in the Constitution and contracts are particularly protected in the Constitution, aren't domestic partnerships (simple legal contracts) actually given superiority over traditional marriage which has zero express Constitutional mention? Straight married people should be screaming to high heaven that their rights have been infringed on by not allowing their marriage to have the same legal status as contractual domestic partnerships. Of course that's silly, but it's a logical argument, given the vitriol being spewed by the gay marriage proponents. That's how frivolous and divisive, as well as dangerous this whole gay marriage issue has become.

So much for the legal discussion for the time being. But what about the 500 pound gorilla in the room that isn't being discussed? Are gay relationships really the issue? Is marriage really the issue? I don't believe they are. I think that a lot of people of good will and great tolerance have been hoodwinked about the real purpose behind the lawsuit. I believe that the law is secondary to the goal, but the law is a useful tool for diverting attention from the real issue--the socio-political agenda of the left to remove religion from the public forum forever. How so? Follow my thinking.

If the gay marriage radicals really just wanted "equal rights and due process," they could simply have produced a ballot measure which eliminates the word marriage entirely, and equalizes all domestic relationships by requiring legal marriages to be performed by a civil authority. Currently, a religious ceremony and a certificate of marriage satisfies the California requirement for a legal marriage. So change the law and leave the legal issue to the civil authority, and the religious issue to the churches and synagogues. Current law doesn't in any way prevent any priest, pastor, rabbi (or imam?) from performing a religious ceremony if their religious institution allows it. So, cut out the religious element entirely and make all legal marriages civil matters. No more need to distinguish between a marriage and a domestic partnership, even though there's no real distinction between them now except for that one word. As for traditional marriage itself, let the First Amendment do its job, and the churches and synagogues can do their job.

But that won't happen because it doesn't damage religious practice sufficiently to satisfy the leftists. I still offer to take on any reasonable bet on how long after a final decision in favor of "gay marriage" it will be before some priest, pastor, rabbi, church or synagogue gets sued for violating California's human rights, civil rights, and rabid egalitarian legislation for refusing to perform a gay wedding. "Human rights commissions" and "civil rights commissions" are almost universally populated by anti-religion leftists. Just ask the Canadians if you don't believe me.

Phony court-created basic rights will quickly trump clearly-written Constitutional guarantees. A successful California gay marriage initiative which does not include specific religious guarantees would do the same thing. Out-of-control social justice judges already routinely ignore the clear wording and intent of the Constitution to obtain their socio-political goals. Imagine how quickly that would become the rule if the Supreme Court finds an umbra, penumbra or emanation of the Constitution which protects homosexual marriages. But don't despair, I still contend that the Supreme Court will find no such right.

For those of you who remember me in my former life as LawHawkSF, I have not entirely lost touch with San Francisco. Regarding the gay marriage decision, the Chronicle didn't disappoint. The headline didn't mention the judge's brilliant reasoning. That's largely because the people at the Chronicle wouldn't recognize reason if it jumped up and bit them on the arse. The headline: "Judge Vaughn Walker's 136 page ruling against Proposition 8 amounted to a ringing defense of the institution of marriage." Huh?


Anonymous said...

Very good read, Lawhawk and your conclusion about the thinking of these people is right on the money.

Once again the will of the people is trumped by an activist judge. What a sad comentary of our times. TJ

CrisD said...

This current attempt to destroy the family is the culmination of decades of leftys stirring up homosexuals to become activists against social order.

The old attitude of destroying marriage in the sixties and seventies "just live together" didn't work. Heterosexuals like to get married and have kids.

So..the leftys co-opt marriage and convince these poor souls that they will be happy when they join the ranks of the married.

It has been an interesting evolution of attack but I am old enough to see this as a sick tactic.

My hope is not just that it will fail legally but it will fail as a deceitful ploy and manipulation of a group of folks who need personal acceptance, not false promises.

StanH said...

Hey Lawhawk! Are Olson & Boise still involved? Or are they stepping aside, and letting their underlings walk it up until it arrives at the Supreme Court?

No surprise for me with the judges ruling.

AndrewPrice said...

This sounds to me like a biased judge who bent over backwards (no pun intended) to help a side with which he sympathized, with an assist from a defense team that really didn't do a good job at all. In fact, the word "malpractice" comes to mind -- from the little I heard during the case, they really put on no evidence whatsoever.

As you know being a former judge and as I know from being a litigator (in both federal and state courts), those two factors often lead to bad decision, which rarely survive on appeal. I don't doubt the Ninth Circuit will uphold this because that's what they do, but I don't see the Supreme Court upholding this in either event.

If they can get 5 justices to agree -- and I do think there are 5 on the court right now who would agree -- they will overturn this on the basis that there is no constitutionally protected status for gays. If they can't quite get to five, then I would bet they will send this back on a procedural ground to get more evidence.

I can't see the Supreme Court upholding this decision on this record.

Notawonk said...

law: "The opponents of Prop 8 are already trumpeting their victory. But I suggest they tone it down a bit..."

OMGOSH! you will be *so* proud of me because yesterday i DIDN'T get hysterical AND i advised wonk readers today to REMAIN CALM as well. whew. you're rubbing off on me and not in a creepy i-live-alone-in-the-woods kinda way.

and we (husband and i) have been saying for some time now, that the gay's anger and wanting to "marry" has nothing to do with marriage. a legal contract will do the job. this is about attacking religion. one that they hatefully disagree with.

who's the bigot now?!

Notawonk said...

law: i've just edited today's Wonk post to include your post. thank you for analysis. well done.

Unknown said...


Unknown said...

TJ: Thanks. It is a sad thing when a judge overrules the will of 7 million people without any sound constitutional grounds for doing so. We are not a direct democracy, and sometimes it is necessary to strike down a law because it conflicts with the US Constitutional guarantees of basic rights. This was not one of those cases, and the will of the people should not have been infringed.

Unknown said...

CrisD: I'm unhappy about the fact that so many people who ought to know better and have no innate animosity toward traditional religion have been sucked into this clever ploy to attack religion by changing the definition of traditional marriage. Many have unwittingly become accomplices to the dismantling of the First Amendment.

Unknown said...

Stan: I don't have any information about the two lawyers. It would be unusual for them to walk away from a victory and risk letting underlings and associates blow it at later stages. They probably won't be doing much at the Ninth Circuit Court of Appeals since it's unlikely that it will do anything more than rubber stamp the lower court decision. But who can resist a chance to win a case at the Supreme Court? Certainly not any lawyer I know.

Unknown said...

Patti: I think I may have overdone it. A little hysteria is in order on special occasions.

Remember, I subscribe to the Kipling Courage Corollary: "If you can keep your head when all about you are losing theirs, perhaps you don't understand the situation." LOL

Unknown said...

Andrew: Couldn't agree more. The last time I saw an overhyped legal team snatch defeat from the jaws of victory this badly was the OJ Simpson prosecution at the murder trial. The defense in this case seemed to think it could just rely on the obvious ludicrousness of the petitioners' case. They couldn't have done any worse if they had just submitted on the pleadings.

The worst thing they did was allow this to turn into a soap opera trial on unrelated testimony about love rather than a trial on the merits with heavy emphasis on law, the Constitution and precedent. Love is a many splendored thing, but that wasn't the issue being litigated. Yet the defense team allowed it to happen anyway. The Supreme Court is not so easily fooled.

Notawonk said...


Unknown said...

Patti: Most gays would be perfectly happy to be allowed to marry under state sanction and the use of the word "marriage." But the issue has been hyped unmercifully. Many gays felt that this push was way too much, and that their personal relationships didn't need anyone's imprimatur with the word "marriage" stamped on a document. They had the domestic partnership laws and churches and synagogues willing to perform religious ceremonies. So this fight has never really been about gay marriage. Many of the organizers are not gay and most of the real gay opponents of Prop 8 are radical activists.

They want traditional religion destroyed, and if they can't do it directly, they'll do it by back door attacks reducing all religion to some amorphous, state-approved pseudo-religion. Traditional marriage just happens to be a highly-visible symbol of traditional religion, so the statists want it to have the sanction of the state without much care for what God might think about it.

Notawonk said...

law: "back door attacks"...

~hehe~ you just couldn't help yourself, could you!

and i agree 100%.

Unknown said...

Patti: I think I'm losing my subtlety genes. Or maybe that was just a Freudian slip.

HamiltonsGhost said...

Lawhawk--Most of the gay people I know were pretty much neutral about whether they needed the state to formalize their "wedding" vows until they started to feel the attacks were becoming personal. Though I don't agree with gay marriage, I do think that the warning to the left about being overzealous could apply equally to people who oppose gay marriage simply because they hate gay people.

Joel Farnham said...


This is about thought control, not about gay marriage.

Unknown said...

HamiltonsGhost: I think that you have a very good point. There was some major vitriol coming from the far right that had little to do with gay marriage and a lot to do with unreasoning animosity toward all gay people. It likely radicalized a lot of gay couples who otherwise would have been perfectly happy within their own consciences about their wedding status and what their religious denomination might or might not think of the concept of gay marriage.

I have expressed my opposition to gay marriage (as it has been defined by its proponents) on multiple grounds. I have legal, moral and religious objections to the state defining traditional religious marriages as being the same as state-sponsored ceremonies. Which is why I support getting the state out of the "marriage" business entirely and leave domestic partnerships to the state and "marriage" to the churches and synagogues. That could be accomplished by requiring all couples to register their relationship (whatever it is ultimately called) for legal purposes, then have (or not have, if they choose) the religious ceremony separately. The legal relationship belongs to the state, the religious wedding belongs to God. What I may think about the efficacy of the religious ceremony would then be up to me and my God, and yet all would be treated equally under the law by the state.

I can understand a gay couple feeling exactly the same way I did about my marriage. It was sanctioned by God in a formal church ceremony, and though the law required it to be registered for state legal purposes, I was indeed married, whether the state registered it or not.

This "gay marriage" movement has turned that belief on its head. Instead of the church/synagogue ceremony being the real "marriage," the radical activists have determined that the church/synagogue ceremony is irrelevant to the definition of marriage, and only the state can define marriage. By making the religious ceremony irrelevant to the matter of marriage, the activists succeed once again in chipping away at religion in the public forum.

Unknown said...

LawHawk. I'm getting dizzy from the spin the Obama people are putting on the decision. Obama goes public in praise of the decision. But Axelrod ends up saying that Obama hasn't changed his views on traditional marriage. Well, Obammy, what about your support for the Defense of Marriage Act, and your statement that you didn't want to impose your religious views on others but that you personally believe that marriage is between one man and one woman? The decision says exactly the opposite--so do you applaud the decision, or condemn it?

Unknown said...

CalFed: I think it's pretty clear that Obama depends heavily on his left wing base and received a high percentage of gay votes in the last election. But he also knows that enthusiastic support and voter numbers are not the same things. Typical of his administration, he wants to have it both ways, and ends up simply dithering. His inability to take a clear public stand on any issue is as crippling as his backroom opposition to traditional religion and support for gay causes. He tries to satisfy both sides, and ends up satisfying neither.

This decision is going to be a political football in the fall elections. And I suspect the Obamists will drop the ball frequently. Over all, I don't see this as being an election-winner or an election-loser for Obama and his gang, but I do think it will cost him considerably more votes than he will gain from it. There will be no major uprising among the right because they know it's likely the Supreme Court will overrule or hamstring the lower court decision. The loss of votes will come more from Obama's waffling than on his support for the decision. Tolerance and understanding of gay people is increasing in all but the most extreme parts of the religious/political spectrum. But this decision isn't about tolerance or understanding, it's about imposing an agenda unsupported by constitutional law and opposed by a majority of the American people. People who really don't care much one way or the other what gay people do as long as they don't do it in the streets and frighten the horses become polarized when an activist judge tells them that they're bigots and oppressors for opposing gay marriage.

Unknown said...

Hey, Patti: How come you take anything I say seriously? My kids never did. LOL

Unknown said...

I chose the accompanying picture to point out what is likely to have a reverse effect from its intended purpose. It's preaching to the choir. Nobody in favor of gay marriage is going to become more in favor of it because of the sign, but some who are willing to be tolerant may change their minds upon being told they are bigots.

The same thing can be said for the fringe on the other side. Signs saying "God hates fags" won't make reactionaries any more reactionary, but it could cause some people currently neutral about gay marriage to move to the other side just because they don't want to be identified with primitive haters. This point of view is the one that allowed the gay marriage advocates to dub Prop 8 "Prop H8" with a certain amount of truth on their side.

Joel Farnham said...


I am sorry about the first post. It was an incomplete thought. It is about controlling your thoughts about marriage. This ruling opens things up. Now, who is to argue against marrying your dog? Or more than one wife. Bigamy won't be illegal any more. All it would be is polyandry or polygamy. Another marriage life choice.

Cheating on your partner is no longer cheating. It is now looking for a new partner to add to your current marriage.

Take the thought out to your own horrific conclusions.

AndrewPrice said...

Lawhawk, The comparison to OJ is a perfect one in this case. That was a case that any reasonably competent prosecutor should have won anywhere in the country. But not those guys. They were clowns.

Unknown said...

Joel: We all get a bit annoyed by judges who go off on their own tangents, particularly when it comes to things we really care about. A little righteous indignation is not a bad thing.

Sen. Rick Santorum was loudly booed, then laughed at by gay marriage/leftist activists when he suggested that the whole thing would lead to multiple party marriages. I knew then he was right. How long will it be before the first polygamist/polyandrist files suit for denial of the group's due process and equal protection rights? Not long, I'm guessing.

If the State of Utah decides it wants to return to the traditional Mormon practice of polygamous marriages, I would disagree on religious grounds but in order to be entirely consistent on my stand on marriage, I have no legal problem with it at all. I just don't want some off-kilter federal judge deciding that it's some kind of basic right that applies to all the States and imposing it on us Californians. If you follow the logic of the judge's decision in this case, why shouldn't a man be allowed to marry the twelve women he loves deeply? That concept is nowhere in the Constitution, the Founders never intended it, and marriage should remain a matter for the people of the individual States.

The federal leviathan needs to withdraw its damned tentacles back to DC and get its nose entirely out of State matters.

Unknown said...

Andrew: The worst part is I know all the attorneys involved as well as the judge in the OJ case. Lance Ito was a weak prosecutor before he got his political appointment as a judge, and both of the lead prosecuting attorneys were chosen for their political correctness, not their legal acumen. Had I been the judge, and the case had been in Ventura County rather than Los Angeles, the first time that obnoxious DNA expert Barry Scheck for the defense mouthed off to me I'd have had him cooling his heels in the Ventura County jail. Ito, however, just tried to look stern, wet his robe, and let the s.o.b. get away with it--multiple times. The prosecutors must have failed "making objections" in their evidence courses in law school.

The attorney defending Prop 8 (and it should have been the California Attorney General Jerry Moonbeam Brown who refused to represent the California voters in the suit) wasn't playing for the cameras and the publicity the way the OJ attorneys were, but other than that he was every bit as weak on defense as Clark and Darden were on prosecution in the OJ case.

Unknown said...

I'm sure that by now you all know that Kagan was confirmed to the Supreme Court, pretty much along party lines. She probably won't make much difference with the current court makeup since she's replacing another "let's make it up as we go along" constitutional re-writer. But in relation to this article, this should be fun. Kagan has said "I believe that marriage should be between one man and one woman, and I can find nothing in the Constitution which forbids the States to legislate that concept." Are we taking bets on what her opinion will be now that she doesn't have to lie anymore? And if she couldn't find it in the Constitution, Judge Walker has done that for her, and all she has to do is say, "I don't know how we missed it, but the Constitution actually does say that the States can't forbid gay marriage. Thank you Judge Walker for helping us to find that provision."

Unknown said...

It just keeps getting better. Jerry "Moonbeam" Brown, who as California Attorney General wouldn't defend the People of the State of California in the Prop 8 suit, has suddenly decided he can win all kinds of gay votes by intervening in the motion for reconsideration by requesting the judge to remove the stay so that the happy homosexuals can start getting married right away. What an asshole. He wouldn't represent the state and the people of California, but now he's going to join the other petitioners' lawyers in attempting to rub California's nose in the biased judge's decision. Just who the hell does he think the California Attorney General represents? If nothing else, this will firm up my determination to do whatever I can to make sure he is not elected governor of California in November.

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