Homosexual marriage II

[Tessar]

Interesting news. Looks like a judge has overturned proposition 8, and it's on it's way back to the court of appeals, and then the supreme court. It'll be interesting to see what the people around me (at the Churches, at school, etc.) have to say, if they even notice it. It seems like not as big a deal is being made this time, but then again possibly I'm missing the outlets where it's being mentioned. I wouldn't have even known if a friend hadn't mentioned it to me.

http://latimesblogs.latimes.com/lano...-marriage.html

[GrayMouser]

Mixed feelings. Prop 8 would probably have been overturned in 2012, but this is (strictly on the merits) a great decision.

Tactically, maybe not so much. It seems unlikely that the current Supreme Court would overturn all laws (including state constitutional bans) against gay marriage, but it probably comes down to Kennedy- and Dahlia Lithwick at Slate points out that Judge Walker cites Kennedy 15 times in his decision.

http://www.slate.com/

[GrayMouser]

And I think people are going to notice it indeed.

[inked]

Wow. A homosexual judge overturns PROP 8 (http://articles.sfgate.com/2010-02-0...n-judge-walker).

__________________________________________________ _____________

This is going to the Supreme Court ...

***Citizens for Equal Protection v. Bruning, 455 F 3d 859, 8th Circuit (2006):

Indeed, in Baker v. Nelson, 409 U.S. 810 (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.) There is good reason for this restraint.

As we have explained, Appellees’ attempt to isolate § 29 from laws prohibiting same-sex marriage because it is a state constitutional amendment fails. If there is no constitutional right to same-sex marriage, that is, if a statutory prohibition satisfies rational-basis review, then § 29 likewise survives rational-basis review. We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States. ***

If it's not unconstitutional in the 8th Circuit, how is it in the 9th?
__________________________________________________ _________

"In a breathtaking and brief sentence, Judge Walker asserted: "Gender no longer forms an essential part of marriage; marriage under law is a union of equals."

Until this verdict, such language had never appeared in a decision of a Federal court. If gender is no longer "an essential part of marriage," then marriage has been essentially redefined right before our eyes.

The religious liberty dimensions of the decision are momentous and deeply troubling. While Judge Walker declared that the religious freedoms of citizens and religious bodies were not violated because no such body is required to recognize or perform same-sex marriage, the very structure of his argument condemned religious and theological objections to homosexuality and same-sex marriage as both harmful and irrational.

Beyond this, Judge Walker claimed to read the minds of California's voters, arguing that the majority voted for Proposition 8 based on religious opposition to homosexuality, which he then rejected as an illegitimate state interest. In essence, this establishes secularism as the only acceptable basis for moral judgment on the part of voters. The judge's statements condemning religious opposition to homosexuality speak for themselves in terms of animus." http://www.christianitytoday.com/ct/...0.html?start=1

I haven't read all 162 pages, (see here... http://metroweekly.com/poliglot/2010...20Decision.pdf) but I think he forgot the Dalai Lama, the Buddhists, the Hindus and the Islamics, but, hey, we all KNOW that it's only Christians who oppose this sort of stuff, right?

[Count Comfect]

"Gender no longer forms an essential part of marriage; marriage under law is a union of equals"

As you can tell by the second half of what you quoted, Inked, what Judge Walker is referring to is that states used to have laws like coverture, which resulted in the infamous legal dictum that "husband and wife are one person under the law, and that person is the husband," which explicitly defined legal roles for a man and a woman in marriage. Those sorts of gender-based laws about marriage are off the books now; marriage is, legally, a union of two equal partners, with no reference to their gender other than, in some states, the explicit requirement, as in Prop 8, that they be of different genders. As the judge points out, and I believe correctly, this implies that there is, legally speaking, no reason for that last requirement - it does not cause the fulfillment of anything else within the marriage contract.

[Comic Book Guy]

Well done people of California in a step towards civilisation. Wherever the people of America leads, the world tends to follow. Also, it's always very satisfying to see advocates of extreme bigotry riled. Well done again!

[GrayMouser]

So Judge Walker shouldn't rule on this because he is homosexual and thus might be prejudiced.

Though of course a heterosexual judge might also be prejudiced the other way.

What do you suggest? A bisexual judge? A transexual? A eunuch?


I suspect your ideal would be that just as gays shouldn't rule on isssues involving gays, blacks shouldn't be allowed to judge on issues involving racism, women shouldn't judge on issues involving women, Latinos can't judge on issues involving Latinos or immigration, non-Christians can't judge on issues involving religion- in fact that all judging should be done by straight white Christian males, because of course they are the only ones who aren't prejudiced.

[GrayMouser]

"If it's not unconstitutional in the 8th Circuit, how is it in the 9th?"

Hmmm, that's a toughie...how about, because Appellate Courts often rule in different ways and that's one reason there is a Supreme Court in the first place?

(Think about the name- the Supreme Court- that's kind of a hint)

[GrayMouser]

And who is Judge Walker?

In other words, this “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for advocates of marriage equality that those forces were only able to block Walker twice.

http://www.cato-at-liberty.org/2010/...-marriage-ban/

[GrayMouser]

Beyond this, Judge Walker claimed to read the minds of California's voters, arguing that the majority voted for Proposition 8 based on religious opposition to homosexuality, which he then rejected as an illegitimate state interest. In essence, this establishes secularism as the only acceptable basis for moral judgment on the part of voters.

No, that was established by the First Amendment- you cannot ban homosexual marriage for religious reasons, any more than you can ban interracial or interspecies marriage for religious reasons- in fact, you can't ban anything for religious reasons, from sacrificing your neighbor to Moloch to passing laws against eating pork. According to the Constitution, as interpreted by two hundred years of no doubt radical lefty judges, you have to show harm to an individual or society before banning somebody's actions.

[Gwaimir Windgem]

Originally Posted by Comic Book Guy

Well done people of California in a step towards civilisation. Wherever the people of America leads, the world tends to follow. Also, it's always very satisfying to see advocates of extreme bigotry riled. Well done again!

Not "people of California," Judge Walker. The people of California are the ones who voted Prop 8 in the first place. Clearly, though, they didn't know what they really wanted.

[Comic Book Guy]

Originally Posted by Gwaimir Windgem

Not "people of California," Judge Walker. The people of California are the ones who voted Prop 8 in the first place. Clearly, though, they didn't know what they really wanted.

Well, I like to think that in any case, the vocal bigot lobbies are the ones that give the majority of Americans a lot embarrassment. At least, it makes me sleep sounder at night to believe that!

Americans really shouldn't take for granted the unalienable rights and protections their government and constitution gives to individuals. American really is the most free and liberal country in the world, socially at least. I'm quite envious myself. Ireland has an archaic blasphemy law that now apparently is being used for a model for legislation in Islamic Theocracies in the world!

[brownjenkins]

Originally Posted by Gwaimir Windgem

Not "people of California," Judge Walker. The people of California are the ones who voted Prop 8 in the first place. Clearly, though, they didn't know what they really wanted.

It was a very close vote, which speaks volumes.

It never ceases to amaze me how much people like to think that a 51/49 issue or something similar is somehow decided. In my mind, anything short of 80/20 deserves some serious introspection.

[Gwaimir Windgem]

The question is, does a unilateral veto qualify as "serious introspection."

[GrayMouser]

Hmmm...might not even get to the Supremes- which, given the 4-4 split with everything depending on Kennedy, might make both sides happy.

The compromise which everyone might be able to live with would be to find some way to keep the ruling applying to California only.

http://www.sfgate.com/cgi-bin/articl...INEO1EOV71.DTL

[inked]

judicial creationism ...

http://www.realclearpolitics.com/art...ng_106652.html


As a judge, I can make up what I wish.


That's why there are other judges and Supreme Court judges.

[GrayMouser]

Gregory "Is there any other point to which you would wish to draw my attention?"
Holmes: "To the curious incident of the dog in the night-time."
Gregory: "The dog did nothing in the night-time."
Holmes: "That was the curious incident."

One interesting thing about this is the general silence coming from Republican politicians. Right-wing commentators, yes; has-beens like Gingrinch, yes; but not so much from actual pols.

I mean they'll come out against it if asked the question, but nobody seems to be eager to be the one identified with leading the opposition. Compare this to what it would have been like even 5 or 6 years ago.

While public opinion in the US may still be against, people are uneasy about being too outspoken- it's too easy to get identified with the bigots.

Looks like Mexicans and Muslims are the new gay.

[GrayMouser]

From inked's link:

In language we might borrow from Plato's Euthyphro, the moral norms that govern marriage are embraced by the pious not because they are mysterious commands of an inscrutable divine will, but because they are rationally knowable as good in themselves, and for this reason find support in the dictates of faith as well.

I love it when conservatives arguing against homosexuality refer to Plato.

[GrayMouser]

And, yes, Gwai, I know Plato would not have approved of gay marriage.

I wonder what Matthew Frank thinks about gays in the military?

[Comic Book Guy]

Plato, yeah, because he never got anything wrong, or leave a legacy that profoundly retarded western thought for a few thousand years, or advocate ideas that now would be regarded as extreme tyranny. Nope, he's a god who rules all our opinions.