Federal Judge Declares California’s Gay Marriage Ban Unconstitutional

U.S. District Court Judge Vaughn Walker today declared California's Proposition 8 to be unconstitutional, thus opening the latest front in the gay marriage wars.

Late today, U.S. District Court Judge Vaughn Walker issued his ruling in the lawsuit challenging California’s Proposition 8 and his ruling is already reverberating across the nation:

SAN FRANCISCO — A federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing a temporary victory to gay rights advocates in a legal battle that seems all but certain to be settled by the Supreme Court.

Wednesday’s decision is just the latest chapter of what is expected to be a long legal battle over the ban — Proposition 8, which was passed in 2008 with 52 percent of the vote — and proponents were already promising to appeal, confidently predicting that higher courts would be less accommodating to the other side than Judge Walker.

Still, the very existence of federal-level ruling recognizing same-sex marriage in California, the nation’s most populous state, set off cheers from crowds assembled in front of the courthouse in San Francisco Wednesday afternoon. Evening rallies and celebrations were planned in dozens of cities across California and several across the nation.

In San Francisco, the plaintiffs’ case was argued by David Boies and Theodore Olson, ideological opposites who once famously sparred in the 2000 Supreme Court battle beween George W. Bush and Al Gore over the Florida recount and the presidency. The lawyers brought the case — Perry v. Schwarzenegger — in May 2009 on behalf of two gay couples who said that Proposition 8 impinged on their Constitutional rights to equal protection and due process.

Late reports indicate that Judge Walker has temporary suspended the effect of his order so that the parties can argue before him on the issue of whether the order should be suspended fully pending appeal, but the legal impact of the ruling remains.

There will be much more analysis and commentary to come, of course, but for, for now, it’s worthwhile to take a look at some of the important parts of Judge Walker’s decision, which I’ve also embedded at the end of this post. For example, Judge Walker notes that gender is no longer a relevant factor for the state to consider in choosing whether to give recognition to a union of adults:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

(…)

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages

Most important for legal purposes,  though, Judge Walker determines that Proposition 8 serves no rational purpose:

Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest. Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality. See FF 48-50. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. Moreno, 413 US at 534.

(…)

In the absence of a rational basis, what remains of  proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and  lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).

(…)

Moral disapproval alone is an improper basis on which to  deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

This isn’t the end of the road, of course. The case now heads to the 9th Circuit Court of Appeals and, presumably, to the United States Supreme Court. But, the decision has been made and it will undoubtedly have an impact for years to come.

From what I’ve seen of Judge Walker’s decision so far, it strikes me that he got this right. My preferred world would be one where marriage was not defined by the state at all but left to the churches, or to individuals, to decide what the institution was and how to sanctify it, if at all. As long as the state is involved in defining the institution, however, and as long as it provides special benefits to people in that status that cannot be obtained by unmarried people, then the 14th Amendment requires that people be treated equally.

Here’s the opinion, though, decide for yourself:

Perry v. Schwarzenegger – Proposition 8 Unconstitutional

FILED UNDER: Gender Issues, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Juneau: says:

    On to the US Supreme Court – and in the meantime, welcome to Judicial Activism to the nth degree.  Since when do judges determine the constitutionality of the people’s will based upon “rational purpose?”
    The time is fast approaching where the people and the courts are going to come head to head.  For those of you who like to trumpet about the ultimate authority of the judges and the courts – and I know you, Doug, are among them – I would urge you to recall Prohibition.
    There is not much you’re going to be able to do if the people decide the courts are wrong, and simply rebel.  And if you think enforcement through fines and crimes is going to do the trick, then you’re going to make criminals out f good, honest people.  Then… watch out.




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  2. legion says:

    Juneau:
    I don’t think those words mean what you think they mean. To wit:
    Prop 8: The people of CA pass a law. The judge says that law violates the Constitution – cannot haz. Still want it? Change the Constitution.
    Prohibition: The people of the US decide to change the Constitution with a new amendment. A few years later, after realizing what a suck idea that was, they change the Constitution back via the same process.
     
    If you can convince 2/3 of the states in the US to change the Constitution such that gay marriage is verboten, then go for it. Until then, quit bitching about the courts when they remind you that bigots have to play by the same rules as everyone else.




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  3. Michael Reynolds says:

    Legion:
    Thank you for that interpretation of Juneau.  I was wondering what the hell he was babbling about.




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  4. sam says:

    @Juneau

    On to the US Supreme Court – and in the meantime, welcome to Judicial Activism to the nth degree. Since when do judges determine the constitutionality of the people’s will based upon “rational purpose?”
     

    You know, I just have to conclude that you’re not very well-educated in the law or recent American history. Anybody with a passing knowledge of constitutional law would know that the rational basis test is used in evaluating claims relating to the equal protection guarantee in the 14th Amendment and the due process guarantees in the 14th and 5th amendments. It has a history going back to the beginning of the republic.
    What is it you teach in college?
     
     




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  5. Juneau: says:

    What I’m babbling about is the futility of passing a law that most people don’t agree with, and consequently conduct themselves in a manner that violates it regularly.  What are you gong to do about that?  You going to put people in jail because they don’t think that 1 judge has the right to thwart their wishes?  This is not like slavery, where the issue is clearly spelled out in our Constitution and Bill of Rights.
    The average American’s awareness of the difference between judicial activism and judicial responsibility is growing every day.   You folks really, really don’t realize that its reaching a point where you’re playing with fire.




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  6. Herb says:

    I ain’t gonna lie…I like this.  I consider it a victory not only for equality, but for freedom as well.




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  7. Dave says:

    What I’m babbling about is the futility of passing a law that most people don’t agree with, and consequently conduct themselves in a manner that violates it regularly.”
    What does this mean?




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  8. Herb says:

    What I’m babbling about is the futility of passing a law that most people don’t agree with, and consequently conduct themselves in a manner that violates it regularly…..You folks really, really don’t realize that its reaching a point where you’re playing with fire.

    WTF?
    I guess if you don’t like gay marriage, Juneau, you can show up at the wedding, and when the minister says, “speak now or forever hold your piece,” stand up and say something.




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  9. Juneau: says:

    @ sam
    You know, I just have to conclude that you’re not very well-educated in the law or recent American history.

    First … Bite Me.  You’re a quasi-intellectual who hides behind cotton-candy put-downs.  Second, the issue at hand is judicial activism, so please take a moment to educate yourself on the fundamentals of the legitimate  “rational purpose” review process  in Constitutional law, below.
    http://en.wikipedia.org/wiki/Rational_basis_review
    Rational basis is the default level of review; [1] however, rational basis review does not usually apply in situations where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated.
    The rational basis review tests whether a governmental action is a reasonable means to an end that may be legitimately pursued by the government. This test requires that the governmental action be “rationally related” to a “legitimate” government interest.[2] [3] Under this standard of review, the “legitimate interest” does not have to be the government’s actual interest. Rather, if the court can merely hypothesize a “legitimate” interest served by the challenged action, it will withstand the rational basis review
    Perhaps you should look at going back to get some remedial education in critical thinking.  Unless you went to an Ivy League college, in which case you probably lost your common sense during freshman orientation.




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  10. sam says:

    @Juneau

    This is not like slavery, where the issue is clearly spelled out in our Constitution and Bill of Rights.

    You really are ignorant. In the first place, the Bill of Rights is silent on slavery. Secondly, the original constitution was, if anything, slightly proslavery. The 13th and 14th amendments are usually referred to as the “Slavery Amendments.”
    Let me ask you a question, can a state pass a law saying that  black people cannot marry white people if a majority of the people in the state want that law?




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  11. DC Loser says:

    Let me ask you a question, can a state pass a law saying that  black people cannot marry white people if a majority of the people in the state want that law?
     
    That WAS the law in many states until recently.




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  12. john personna says:

    Just drove to the market … some caller on a radio talk show said the judge must be gay.
     
    (BTW, posting from iphone/safari doesn’t seem to be working with this editor.)




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  13. floyd says:

     “they remind you that bigots have to play by the same rules as everyone else”””

    Legion;
     Yeah ; you do don’cha’!  Keep that in mind. 
     




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  14. Juneau: says:

    @ Sam
    You really are ignorant. In the first place, the Bill of Rights is silent on slavery.
    The issue is covered in an ancillary fashion by both documents.  And its root issue was covered from the very first moment, in the Declaration of Independence:  “We hold these truths to be self-evident, that all men are created equal…”
    Will you also tell me that the Declaration is silent on the issue of slavery?




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  15. sam says:

    No I won’t tell you that, but that’s not what you originally said. Why don’t relate to us the antislavery provisions of the original, unamended constitution and those in the Bill of Rights.

    What is you teach in college?




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  16. Juneau: says:

    OK.  Have fun in the echo chamber.  Mataconis apparently felt that “Bite me” is too strong a pejorative to allow a previous reply through, and my references and source links to the legitimate uses of “rational purpose” in Constitutional law review is being “moderated.”   You gentlemen enjoy yourselves now, you hear?




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  17. G.A.Phillips says:

    lol, I’m just happy to know that I could have been a Judge, when I was like 13.

    ***From what I’ve seen of Judge Walker’s decision so far, it strikes me that he got this right. My preferred world would be one where marriage was not defined by the state at all but left to the churches, or to individuals, to decide what the institution was and how to sanctify it, if at all.***:)

    ya, I say we ban marriage for all non religious people, and then get the city, state  and the federal  government out of it completely.

    So then if you go to a “gay” church and they want to marry you, guess what, your gonna get married. 

    What business is it of the state any way, you and your “mates” (well some of you can try mating lol) union under your god?

    lol, so they can tax you different? Control your life?Make you pay for your offspring?make sure you get your offspring indoctrinated?Give your xwife all your s$$t?

    And then if your not religious, WTH does it matter to you any way? screw and live with who you want and leave our holy directives out of your life.




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  18. sam says:

    Time to get your meds recalibrated, GA. Though you’re on the right track with that gettin’ the gubmint out of marriage thing.




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  19. G.A.Phillips says:

    ***If you can convince 2/3 of the states in the US to change the Constitution such that gay marriage is verboten, then go for it. Until then, quit bitching about the courts when they remind you that bigots have to play by the same rules as everyone else.*** lol. talk about WT* does this mean……

    ***Time to get your meds recalibrated, GA. Though you’re on the right track with that getting’ the guvmint out of marriage thing.***

    You holding? I don’t do drugs anymore, well I do a pretty good job of not doing drugs any more, but i did get a hookup when I broke my femur a few months ago, but like the honest idiot that I am I told him(my surgeon) that I was an addict, so he weened me off as son as possible:( not good with a double spiral fracture.

    lol, but yes im sick bailing out some dudes boyfriends government union health care fund.

    And some high muckety muck lawyer called a judge should not be marring people who don’t respect the institution or have the power to.




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  20. Zelsdorf Ragshaft III says:

    I am curious.  When did marriage become a right?  What is the historical basis for this right?  If it is a right, where do states get the power to license it?  Where is the right to marry laid out?  Is it in the constitution?  Where, right next to the right to abortion?  I understand Reynolds need for interpretation, he cannot understand normal thinking.  The vast majority of Americans do not believe or want gay marriage.  You on the left are a minority, and you keep pushing the majority.  Do not be surprised if soon we start pushing back.  We are going to push back far enough to put you fools out of business.  But it will be your fault.  You cannot abide our way of life.




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  21. Sterling Crews says:

    Getting away from analysis of the actual opinion for a moment, this could be interesting when it hits the Supreme Court. I will just assume, right now, that Kennedy will be writing this opinion. And if you go back and look at Lawrence, you can just cut and paste a LOT of his reasoning for that decision and apply it to this case. I’m not sure if he’d actually be willing to go that far at this point in time (maybe in 10 years), but I’d put money on him being the deciding vote and writing the opinion. That should make backers of Prop 8 worried.
     




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  22. Michael Reynolds says:

    ZR3:
    Actually, by a slim margin Californians support gay marriage in just about every poll.  We lost the vote, but we already have public opinion.
    Here’s an ABC poll:
    In a new Washington Post-ABC News poll, 47 percent say gay marriages should be legal, with 31 percent saying they feel that way “strongly.” Intensity is stronger among opponents, however: overall, half say such marriages should be illegal, including 42 percent who say so strongly.
    Your claim that, “The vast majority of Americans do not believe or want gay marriage” is factually incorrect.




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  23. BobN says:

    What I’m babbling about is the futility of passing a law that most people don’t agree with, and consequently conduct themselves in a manner that violates it regularly.
     
    I fully expect swarms of anti-gay Americans to REFUSE to get same-sex marriages.




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  24. BobN says:

    Hmmm… so much for the indentation function




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  25. Michael Reynolds says:

    Of course the Supreme Court may overrule this decision.  The notion that Scalia, Thomas, Roberts and Alito will even pause to glance at the Constitution is laughable.  Conservatives start by deciding what result they want, and then twist the law and the Constitution to fit.




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  26. Michael Reynolds says:

    You see here the knee-jerk thinking of the right-wing pinheads who comment here.  They go instantly to some sort of furious rejection and a vow to fight, to defy, to resist.  To resist in this case, as BobN observes, getting married to a person of the same sex.
     
    They literally cannot see this or any other issue in terms other than rage and rejection, and the eternal resentment of the victimized.




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  27. TangoMan says:

    <i>Let me ask you a question, can a state pass a law saying that  black people cannot marry white people if a majority of the people in the state want that law?</i>
    The comparison between bans on interracial marriages and same-sex marriages are fallacious.

    With respect to interracial marriages, the State was interjecting itself into a question of exogamy and endogamy. Out-group versus In-group. This dynamic was ALWAYS present in marriage across time. The State had no business in intervening in the definition of marriage by favoring in-group marriages and banning out-group marriages.

    Same-sex marriages change the definition of marriage beyond historical understanding. The issue isn’t about the State intervening between two historically valid forms of marriage and preferring one and banning the other, this is about the State adhering to a historical understanding of marriage.




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  28. TangoMan says:

    James,
     
    When are you going to fix commenting? I didn’t italicize my comment and yet the whole thing appears in italics.

    While you’re at it please look at line spacing. A single line space disappears when published and we need to use two line spaces in order to get a line space to appear between paragraphs.




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  29. anjin-san says:

    Then… watch out.
    What’s your plan? To whine until we are all suicidal?




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  30. An Interested Party says:

    “What’s your plan? To whine until we are all suicidal?”

    If such were the case, many around here would have died long ago…




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  31. sam says:

    @Tangoman
    “The comparison between bans on interracial marriages and same-sex marriages are fallacious.”
    That wasn’t the point of my question. I asked in the context of testing his, evidently nonexistent, knowledge of constitutional law, specifically the equal protection clause of the 14th Amendment.




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  32. sam says:

    @Tangoman
    “Same-sex marriages change the definition of marriage beyond historical understanding. The issue isn’t about the State intervening between two historically valid forms of marriage and preferring one and banning the other, this is about the State adhering to a historical understanding of marriage.”
    And if the state does not?




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  33. tom p says:

    I havs said many times, get the State out of the marraige bussiness. Of course, this means a whole lot of people will lose a very hefty tax break….

    wait…. wait… wait…

    NOW let the bitching begin.




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  34. TangoMan says:

    <i>And if the state does not?</i>
     
    If I’m understanding your question correctly, what happens if the State does not adhere to the historical understanding of marriage and instead chooses to recognize unions of people that never qualified as married before, then I think that’s a very interesting question.
     
    What business does the State have in validating the feelings of love one person has for another? I can’t see why the State has any business in this endeavor.
     
    What business does the State have in governing so that the population that inhabits the State replaces itself. I can see the State having business in this endeavor.
     
    The view of marriage in the first situation is love-based while in the latter situation it is seen in a conjugal light, where marriage, broadly applied, is seen as a means of people of the opposite sex coming together in order to bring children forth into this world.
     
    When we discuss marriage benefits what we’re really talking about is the government discriminating in favor of marrieds at the expense of non-marrieds. For this discrimination to exist it must be justified. I find it easier to justify those instances of discrimination based on the latter definition of marriage than on the former. If I’m a single person who now has to take up a larger share of the community obligation because two people got married, the fact that I’m asked to take on a disproportionate burden is hard to justify on the basis of the government saying that I must take on the burden because the State wants to recognize the fact that two people love each other. How does the State benefit from providing this recognition? How do the discriminated against benefit from that state of affairs?
     
    Liberals generally are in favor of inheritance taxes. Same-sex marriage advocates are very in favor of same sex partners getting the right to transfer assets between the partners without incurring tax obligations, just as is the case between husband and wife. Why should Steve and Steve get this right to non-taxable transfer but a daughter will be taxed on the same type and degree of transaction? Steve and Steve love each other. The father and daughter love each other, so love is present in both relationships. Steve and Steve have sex but the father and daughter don’t have sex. Is that a sufficient reason upon which to base discrimination against the father-daughter transaction? How does the State benefit from Steve and Steve having sex in their relationship and why should their financial transactions be tax favored while those of the parent and child are exempt from similarly favorable tax treatment? The love aspect of marriage is an insufficient basis upon which to justify discriminatory treatment and this is the primary basis upon which same-sex marriage advocates base their arguments.
     
    So to answer the question that I think you’re asking of me, I think the long term consequence here is that the EVERYONE will eventually, in one form or another, qualify for marriage benefits. This is like the Lake Woebegone Effect, where everyone is deemed to be above average. You can’t receive a benefit unless someone subsidizes that benefit. This will eventually lead to no net benefits to married couples and that will have long term negative consequences for society, in that whatever benefit or incentive was created by state recognition of marriage (in the conjugal-family definition) will evaporate.




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  35. davod says:

    “Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.

    I must have lived a closeted life because I do not recall ever reading about same sex marriage in the history books.

    The historical core of the institution of marriage? How do you keep religion out of the historical core?




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  36. sam says:

    “I find it easier to justify those instances of discrimination based on the latter definition of marriage than on the former.”
    I’m sure you do, however your feelings in the matter are not dispositive as regards the constitutional issues. And I cannot see how any of the arguments you make in that paragraph could not have been raised in opposition to Loving. As to how the State may benefit, we’re talking about benefits accruing to individuals, not the State. (And I find it passing strange that a conservative would evince such solicitude for the State over individuals. Well, maybe I don’t.)
    As for your Steve and Steve argument, it applies equally to Steve and Stephanie. If you want to argue about the injustice of inheritance taxes, ok, but it strikes me as supremely silly to object to same-sex marriage because of said taxes.
    As for your last paragraph, pure speculation.
     




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  37. Michael Reynolds says:

    Sam:
     

    And I cannot see how any of the arguments you make in that paragraph could not have been raised in opposition to Loving.

    There’s a reason for that:  TangoBrimelow is also opposed to interracial marriage.  Don’t forget you’re talking to a confirmed white supremacist.




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  38. Gerry W. says:

    Much to do about nothing. Typical rant by the right wingers, while they complain about activist judges, they turn around and have activist judges for school prayer, religious symbols on public property, and gun rights. I am sure there was an activist judge that said women could vote in 1922.
    My worry is 500 years from now. Earthlings will be marrying Martians. And I will be turning over in my grave.




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  39. floyd says:

    I notice there are those here who apparently believe that the State should have no interest in who should marry whom, while still insisting that they license it.???

     Here’s a fun exercise…
    In some states when a married woman becomes pregnant, even when there is clear evidence of adultry, and paternity is proven to be outside the marriage, her spouse is still legally responsible for the support of that child. 
    What would be the result if a married lesbian couple were faced with this scenario?
    Could they win a paternity suite filed against the male interloper? 
     




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  40. Grewgills says:

    I must have lived a closeted life because I do not recall ever reading about same sex marriage in the history books.

    I guess you did.
    From Wikipedia.  You can follow the references at the bottom of the page or just Google history and same sex marriage.

    Ancient
    Various types of same-sex marriages have existed,[36] ranging from informal, unsanctioned relationships to highly ritualized unions.[37]
    In the southern Chinese province of Fujian, through the Ming dynasty period, females would bind themselves in contracts to younger females in elaborate ceremonies.[citation needed] Males also entered similar arrangements. This type of arrangement was also similar in ancient European history.[38]
    An example of egalitarian male domestic partnership from the early Zhou Dynasty period of China is recorded in the story of Pan Zhang & Wang Zhongxian. While the relationship was clearly approved by the wider community, and was compared to heterosexual marriage, it did not involve a religious ceremony binding the couple.[39]

    The first historical mention of the performance of same-sex marriages occurred during the early Roman Empire.[40] For instance, Emperor Nero is said to have married one of his males slaves. Emperor Elagabalus married a Carian slave named Hierocles.[41] While there is a consensus among modern historians that same-sex relationships existed in ancient Rome, the exact frequency and nature of same-sex unions during that period has been obscured.[42] In 342 AD Christian emperors Constantius II and Constans issued a law in the Theodosian Code (C. Th. 9.7.3) prohibiting same-sex marriage in Rome and ordering execution for those so married.[43]




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  41. TangoMan says:

    Doug or James,
    Please check your moderation queue.




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  42. repsac3 says:

    I’ve long thought the government should get out of the marriage business, though being more of a liberal than a libertarian, my thought was to replace the word “marriage” with “civil union” in all local, state, federal laws that mention the word. (And yeah, I’d be ok with allowing any two people to “unite” for the legal benefits, including parent/child, a pair of friends, ???. I also wouldn’t object to removing some of the financial benefits, because I’m not so sure that couples need a government incentive to marry, in the first place.)
     
    Religious institutions govern the sacrament of marriage however they see fit, and the government has no role, either in telling any denomination who must be allowed to marry, or who cannot marry. (aside consent laws, of course.) But religious institutions have no role in deciding who the government can/cannot legally unite, either.
     
    Let one’s religion define marriage.
    Let the state enforce legal unions, and the contracts between the individual parties and between the “united” and the state that they create.




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  43. byl046 says:

    Marriage became a matter of the law because the state has a compelling interest in the welfare of its citizens.  Family life with a mother and father legally bound to each other creates an environment best suited for the raising and nurturing of children, who become the next generation of citizens that vote, pay taxes and so forth.  Dysfunctional citizens make for eventual burdens on the state.  Which is why there is so much family law.
    The claim made that gay marriage is popular with the majority is a dubious claim. If I can remember correctly, gay marriage issues have been on the voting ballot 33 times in various states and are…0-33.  That may have changed recently, I’m not sure.  If a sports team was 0-33 one would correctly assume they have a problem.  Gay marriage advocates like the courts because their referendums typically do not win in elections.
    Judge Walker is an openly practicing homosexual.  The media are ignoring this.  If they reported this then his decision would be tainted and the normal, non-legal people would have cried “foul”, even if his opinion is legally correct and is held up on appeal.  If one doesn’t think this matters simply imagine the screaming tumult that would certainly have occurred if the opinion had gone the other way and the judge was Mormon.
    For the record i think his opinion seems correct based upon the case presented to him.  The opposition put up a very lame case.  This will likely be turned over on appeal but not at the 9th Circuit, but at the Supreme Court.




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  44. sam says:

    “I notice there are those here who apparently believe that the State should have no interest in who should marry whom, while still insisting that they license it.”
     
    Not me, dude.  I’m with those, like repsac3, who believe the state should just get the hell out of the marriage business.
     
    “Here’s a fun exercise”…is that meant as a serious question? It’s pretty dumb.
     
    Here’s a fun exercise for all you conservatives. The freedom (right) to contract is bedrock to a free society — indeed, in conservative political theory, this principle is granitic. A restriction on the right to contract is a direct assault on one of the pillars of liberty in a free society. The state may not impede or intrude on the right to contract, subject only to the obvious caveats: contracts fraudulently based; contracts in which one of the contracting parties is not competent; contracts whose goal is the furtherance of a criminal purpose; and so forth. Marriage is a contract (at least). Give us an argument why the state may, in the case of marriage, deny the right to contract to one particular group of people.




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  45. davod says:

    The Gay/Lesbian/Transgendered/Other lobby will now target the clergy. They will sue anyone who will not marry them.  This will be quickly followed up by the Feds removing tax exempt status from the Church.

    Progress.




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  46. byl046 says:

    @sam,
    There are many arguments that deny the right of a person or group of people to marry whom they please.  Those who wish to practice polygamy are denied that right as the state believes it is not in the best interest of society.  This typically means the state believes children growing up in such a family would not have the best opportunity to become normal functioning citizens.  Siblings are not allowed to marry. Marriage has been deemed through history as being a critical contract to the welfare of the society, because in order for a society to grow and prosper it needs new citizens every generation that produce wealth, that the state can then tax to provide services. The state has a compelling interest  to not want children born into dysfunctional situations  who would then be a burden on the state instead of a contributor.
    If two lesbians can now marry then why not three?  Based upon the judges’ ruling there is no rational reason why such a union should be denied.




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  47. wr says:

    bylo46 — You seem to think it’s important that the judge who issued this ruling is a “practicing” homosexual. Ignoring the question of how you know what goes on in his bedroom, would it have been equally invalid if a heterosexual judge had made the opposite ruling? The defense’s case rested on the proposition that gay marriage somehow hurt straight marriage, so wouldn’t the straight judge have bias issues as well?

    Or do you just mean to say that fags are icky?




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  48. floyd says:

    Sam; 
     Much more sedimentary than “granitic” [lol]
    The problem is that a marriage license is  a “contract” with society  and forces many unwilling participants into the fray.
     This proposition…

     “The state may not impede or intrude on the right to contract, subject only to the obvious caveats.

     has two flaws in this application

     1] By definition, the state is a participant in this contract as such is an intruder with the right to impede.
     
    2]  This proposition may still be subject to obvious caveats.

     Now if two people were to enter into private contracts, such as power of attorney,  joint accounts, etc. there would be no such impedements.

    Marriage is licensed and is only contractural in a broader sense.

     “Assault &Pillars”  in the same sentence congers “Lots” (of) images![lol]




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  49. sam says:

    floyd, forgive me, but frankly, guy, none of that makes much sense.
     
    “The problem is that a marriage license is a “contract” with society and forces many unwilling participants into the fray.”
     
    What does that mean? A license is not a contract. And who are the unwilling participants and how are they forced “into the fray”?  What fray?
     
    “By definition, the state is a participant in this contract as such is an intruder with the right to impede.”
     
    I assume you mean via licensure. But you’re begging the question. Why should the state be able to impede or deny this kind of contract for the group designated (by denying the license, if you want)?  All you’ve done is describe the current state of affairs. The question concerns the the legitimacy of the current state of affairs.
     
    “Marriage is licensed and is only contractural in a broader sense.”
     
    In what broader sense? You’ll have to explain that a bit.
     
     
     
     
     
     
     




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  50. byl046 says:

    @WR
    The matter of Judge Walker’s sexual preference is a matter of public record.  I know nothing of what he does in his private life.  His sexuality is important to this particular decision as sexual preference goes to the very heart of the matter.  It is a clear conflict of interest.  Does Judge Walker have no personal interest at all in the outcome of this case? None? That idea does not stand the stupid test.  If a case concerning Jews and how and when they practice of Judaism were to come before a Jewish Judge he would immediately have to recuse himself.  One could not reasonably expect him to be neutral on the case.  Even if his reasoning were sound the appearance of partiality would cast doubt on any finding.  This is exactly why such conflict of interests laws exist.
    If a heterosexual judge had made donations to anti-marriage initiatives, or made any anti gay public statements then he would also have to recuse himself. That Judge Walker has publicly identified himself for many years with the aggrieved party in this case is a clear conflict of interest.
    Your last comment was in very bad taste and irrelevant to the conversation.




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  51. Dave says:

    If a case concerning Jews and how and when they practice of Judaism were to come before a Jewish Judge he would immediately have to recuse himself.
    No he wouldn’t. Marshall and Thomas didn’t/don’t have to recuse themselves from civil rights cases. O’Connor, Ginsburg, Sotomayor, and (now) Kagen don’t need to recuse themselves from gender pay discrimination cases.




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  52. Dave says:

    If a case concerning Jews and how and when they practice of Judaism were to come before a Jewish Judge he would immediately have to recuse himself.


    Also, in keeping with the religion angle, I don’t recall a single christian judge recusing himself from cases involving public displays of the 10 commandments, etc. What you say here just isn’t true.




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  53. byl046 says:

    @Dave
    Perhaps my choice of words were not correct.  I believe “should” recuse themselves vs “would’ recuse themselves might be better.  Your argument about the gender/pay and civil rights cases and members of the court is a good point.  The one about Christianity and the ten commandments is not.  Displaying the commandments is a peripheral issue and not critical to the identity of an individual the way gender and sexuality are, and therefore a judge could reasonably be expected to put aside any personal feelings he has on the subject.  There are many levels of devotion to faith or lack thereof.
    I still believe a judge that closely if not completely identify themselves with an aggrieved party in the case should recuse themselves.
    A closer reading of Judge Walkers decision reveals a fair amount of fuzzy social science stuff not grounded in any real case law or fact, clearly a personal opinion.  It will be interesting to see how the appeals work.
     




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