Uechi-Ryu.com

http://www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL

I was concerned about how this would read given the suspicion that the judge is himself gay (messy, but should all 9 SCOTUS judges recuse themselves in matters of religious freedom?). However, it's pretty straightforward.

The Prop 8 supporters called TWO witnesses ONLY; one (the source of most of their testimony) did not possess the required credentials as a witness and agreed with Prop 8 plaintiffs that we would be "more american" the day after we allowed gay marriage than the day before. He presented no evidence that same sex marriage would endanger children, harm the state, or threaten regular marriage. He presented only opinions as to what marriage represented and even this was inconsistent. Their other witness could speak only to some narrow issues, claimed that initiatives like Prop 8 undermine democracy, and admitted proponents had supplied most of his sources and he hadn't even read many of them. Both agreed that marriage would benefit the gay families and their chidlren. Other witnesses bowed out fearing for their personal safety (?!)*

It was also established that marriage is an evolving entity, has always been a civil matter, not a religious one, and that votes for Prop 8 broke down on religious grounds, and the Prop 8 organizational effort was largely religious group's work.

In other words, no secular purpose. The ruling makes it clear that the voters are entitled to a lot of latitude with their motions, but limitations exist, namely, there has to be SOME plausible link (not just dislike of a group) between a discriminatory law and a legitimate state objective, and no data was presented whatsoever that would have guided the judge to find that Prop 8 protected marriage, kids, the economy or anything else.

In reviewing the ruling, I became quite suspicious that the Prop 8 supporters were throwing the case. Or utterly incompetent. Maybe they wanted the case shot into the spotlight, but I can't understand how this would be any different if they'd won; it would still have been appealed.

Responses of the "I READ THE RULING AND FOUND X INTERESTING" type vastly preferred to those of the "I DIDN'T READ THE RULING BUT I HAVE AN UNFOUNDED PERSONAL OPINION" type, ya dig? This is about evidentiary standards and whether the Prop 8 defenders established their case.

*As someone who's been assaulted by a gang in a hate crime and never heard of a hate crime against someone for being straight, I find this a bit of a reach.

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--Ian

Well, it's a long ruling. I read as much of it as I could stand, but it quickly became clear to me that the plaintiffs had simply overwhelmed the defense. I don't think it is so much a matter of "throwing" the case as not having a leg to stand on. Ultimately, opposition to gay marriage is religious, cultural, or simply fear-based, all of which makes good populist politics but none of which makes for a good legal argument. I think we've discussed at length the thought processes that make gay marriage a difficult cultural leap for many folks, but they're just going to have to get used to the idea. Gay marriage is an inevitability.

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Mike

I happen to be "straight"...
I happen to be "married"...
I (also) happen to be a number of other things...

But... I see no reason for "The State" to be involved in "marriage" at all. IMNSHO, marriage is something between the involved parties (and their God if they are so inclined) and from the perspective of "The State", it is really only a revenue generator. Any form of "personal contract agreement" should be fine from a purely "legal" perspective. I know people who make the argument that "marriage" is a "special term" that should only be applied in "special" cases. One of the best analogies I've heard is "separate, but equal" isn't acceptable. I don't care what you do as long as you don't willingly harm someone else... who someone "marries" only harms the parties involved! And that's by mutual consent, so... I don't care. I guess I just don't think this one is a "tough issue" the way a lot of other people seem to. I have a LOT more important "tough issues" on my mind...

Marriage? Have at it!

Mike, true, true. It was perhaps an unfair request. For interested parties, there are great sections involving the testimony of the proponent's witnesses, and their sketchy qualifications, and frequent agreement with the plaintiffs. What follows are lengthy findings of fact, and you don't need to read through about how it's annoying to plaintiff one that forms at the DMV say married single widowed only. I might skim the headers if you want to.

The real meat is at the end: this is where the judge needs to explain why citizens can't take away a right from this group, which is actually where the proponents should have focused. Afterall, they have probably at least 4 SCOTUS judges who agree with them. The issues that come up are whether gays are a protected class subject to strict scutiny standards or more usual standards, which means that if the classification is iffy and doesn't serve a legitimate state purpose, there has to be a better than usual justification for the limitation of rights. THAT issue can be argeud; Scalia wouldn't extend those protections to gays. This really comes down to: is it merely animus, or is there a legitimate interest served in blocking the marriages, and if so, what's the proof?

For example, if gays threaten children, super, fine, restrict them; the problem is they haven't been able to show any increased risk of molestation or any phenomenon of recruiting.

As the proponents argued, the state has an interest in having more kids raised within marriages, which is pretty reasonable, but the problem is that if you marry the gays you increase their kid's advantages but if you block the marriages you are working against your stated goal by increasing the number of kids without married parents.

If gay marriage killed regular marriage fine, but facts show that it doesn't. And if you wanted to protect marriage why not make a waiting period or make divorce harder or devote resources for counseling or something? Rather than appeal to vague fears about homos?

And if DPs are as good as marriage why... aren't they? They don't extend the benefits appropriately, they don't equate in the eyes of hardly anyone, including the state. A letter involving advice from California for DP'd people to consider dissolving their unions due to law changes and tax purposes and how that never would have been sent to married couples is illustrative. California advises you to divorce for monetary reasons? Hardly.

These are all factual issues rather than legal opinions, and on these points the Prop 8 people got creamed. What they could work on is the idea that gay marriage isn't in the bill of rights, same as abortion, and they would find permission to be mean without cause. As Scalia wrote, the other judges may have "mistaken a kulterkamf for a fit of spite." They can win that way, and presumably years later that ruling would be overturned the way Lawrence v Texas killed Bowers v Hardwick (re: "sodomy").

And Panther you know I agree that we could decide marriage was private and DP's public, but America probably won't go there, and meanwhile marriage actually has been a civil matter in the USA since it was founded. Ministers officiate but they don't set eligibility. And with all the marriage rules affecting health care and inheritance and benefits, never mind seeking the concept, marriage will remain the prize until the libertarian revival occurs.

_________________
--Ian

IJ

Not sure.......would a judge that was stright, married and defender of the practice be seen as his/her background as unduly effecting their rulings?????
Judges that have dealings with banks, people, situations etc they have "interests" in are often not allowed to rule on certain cases......is this one that different than any other personal conenction to a case?

My main concern is this is yet another example of an unelected, essentially unaccountable person in a black robe deciding that their POV should trump the will of the electorate.
There are deeper and much more serious issues invloved here than just the "right" to be married....it involves questions of our basic freedoms as citizens.
If your "rights" come down to what 1 unelected and essentially unaccoutable person in a black robe say they are........then I would suggest that you have no real "rights" at all.

Or as one person put it.... in the most sarcastic tone:

"I can't understand how anyone could disagree with a politcal point of view that doesn't put ones minority status ahead of such trival issues as the Bill Of Rights."

IJ you said:

"this is where the judge needs to explain why citizens can't take away a right from this group"

Despite my personal feelings that it is a right all people should have. You can't "take away" something that does not really exsist at this time.

In terms of DP......as far as I'm aware they legally provide the same rights and responsiblities as a wedding. But if not there are legal remedies for that.

I have also heard it said that listening to people of a legally protected class all upset that things are not fully equal requires a serious bout of rhetorical gymnastics.
After all, if everyone was treated as full equals then they would not be a legally protected class with special legal protections the rest of us don't get would they?
Do you want to be treated just like everyone else.......or do you want special rights.

Then you say:

"they don't equate in the eyes of hardly anyone."

I would, softly, suggest that this is one of the root problems. The notion that "society" at large must "recognise" something to make it "legit."
For my money that gives "society" waaaayyyyy to much power. Whom are they to tell me what makes a family or a marriage?
And demanding that society "recognse" ones life choices is largely futile.....if ones happiness is depedent upon what other people think of them.......then there are a vast number of unhappy people.......gay and stright.....which their are.

IMO I'll date whomever I wish and if I get lucky enough to find someone that is willing to "marry" me, however you wish to define the term, then I'm going to get a good barrister and legally protect the people I love and the "State" can go "f" itself.....my personal life is really none of their business and acting as it was is part and parcel of the problem.

On a negative note, as I have mentioned prior......if the progressive community could wean itself from its additction of attempting to force its agenda thu the courts instead of working to change hearts and minds this would have been settled long ago.....in favor of marriage for all.

IMO......which,as always, could be wrong.

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Forget #6, you are now serving nonsense.

HH

Marriage has been redefined now at the level of a federal judge. Federal involvement in marriage has now been elevated at the level of a federal judge.

The people of California have now been smacked down two (possibly three) times on this issue. What I'm seeing is a breaking down of law itself. When the courts won't respect the processes established in state and federal Constitutions, how do you expect the citizens to?

Bias. I don't see how anyone could be un-biased in this picture. Am I surprised the ruling happened in San Fran?

_________________
Life begins & ends cold, naked & covered in crap.

Ian... You know where I stand and we agree/understand fundamentally.

This is EXACTLY why this Nation was founded as a CONSTITUTIONAL REPUBLIC... The Rights of the minority can not and should not be subjugated to the whims of the majority... PERIOD.

As stated in Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Coupled with this very famous line from the DoI: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

IMNSHO, it is not up to the majority to stop a minority from their pursuit of happiness when it does no harm to anyone else. This also works wonders when people want to trash other parts of the BoR... such as the 2nd Amendment (simply because they are somehow hoplophobic and can't stand the fact that someone else would want "arms" for their own defense).

CXT, I am not sure what your statements about bias mean: do you think he was biased, or not? In any case, *I* believe that a straight person would have been at a biased viewpoint too, but the fact is this guy will catch flack for it being gay himself. As I said before, no one asks all 9 judges to recuse themselves over cases involving religion.

As for the single unelected dude deciding his "POV" trumps the will of the electorate, this illustrates why I asked people read the ruling and come at this from a legal perspective rather than some personal, Palinesque monolog about the will of the people. This isn't his "POV" as much as the result of a very long and well documented process in which it was clearly established there is no legitimate state purpose for restricting marriage to straights, and quite possibly plenty of reasons to extend it, namely, improving the number of kids with parents married, fairness/safety/security for benefits and visitation, wills, inheritances and so on. The Prop 8 proponents had no case that Prop 8 furthered a state goal.

The question then becomes whether moral disapproval is a legitimate purpose for limiting the rights of others.

CXT, the idea that "If your "rights" come down to what 1 unelected and essentially unaccoutable person in a black robe say they are........then I would suggest that you have no real "rights" at all," simply does not hold up. These unelected judges aren't destroying our government, they are a third of it: the judicial branch. And far from ruining everyone's lives and making more restrictions, it is they who recently lifted restrictions on gun control created by the legislative branch (speaking for the people!), and they who just lifted pointless prop 8 restrictions made by the people.

You want me to believe I am rightless because someone just gave me the right to marry? Only a person who hadn't been recently denied that right would hold such an opinion.

As for your claim that DP is equivalent to marriage, please read the careful findings of fact in which the lay and expert witnesses proved it was not. It's right there, in the case; you don't have to speculate.

As for your claim that "You can't "take away" something that does not really exist at this time," I am not sure what you mean--are you saying Prop 8 didn't strip a right because we didn't have it? Well, we DID have it. Prop 8 DID strip that right from us.

As for your comments about equal rights or special rights, as we've been saying for decades, we want equal rights. I have not asked for anything above what straights get, nor have I heard any of gay person ask for such things. You may not understand what a "suspect" classification is legally, but it doesn't make anyone lucky. An example would be the mentally ill with regard to research; they are vulnerable to exploitation, so a rule that put extra burdens on them would be subject to strict scrutiny. This doesn't grant them anything special.

As for your comments about how we care too much whether society approves our unions, this is very well covered in the ruling. Getting a DP doesn't prevent major hassles at banks, when traveling with kids or taking them to the doctor, or even just explaining your relationship to others. And it doesn't keep you from losing your spouses pension when s/he dies, something that would never happen to a straight vet's spouse.

As for your comments about how the gays would have won over public opinion if they'd worked on hearts and minds instead of forcing things through courts, well, you've said it often but unfortunately you have never presented any reason at all why this might be true. Prop 8 was almost completely driven by religions, and the Mormons and the Pope and the evangelicals aren't changing their teachings any time soon on this. Or to look at a parallel, how far would the slaves and slave proponents have gotten just trying to win over slave owners rather than forcing the process? THAT was a moral issue almost no one thinks is difficult today, but it wasn't clear back then.

Jason, the federal government isn't more involved in marriage today. The feds have been up to their necks in it since the beginning. They define eligibility and consequences; benefits and dissolution proceedings. Judges even HIGHER up, the SCOTUS judges, have already intervened to opine that racist marriage restrictions are unconstitutional--in a ruling that NO ONE to the left of David Duke finds inappropriate today (Loving v Virginia). NO ONE complains about that ruling now, only a few years later, and it shot down the people in the same way, and "found" a new right that the founder's hadn't intended in the same way. You want Loving v Virginia overruled?? You'll be alone--as you are alone in your worry that law is falling apart in America (like it is in Somalia?). As for the ruling in San Fran, I see your point. We could have held the trial somewhere without bias, like Alabama or Utah. But this is how it happened.

Panther, thanks for sticking true to your principles. Too many people say the same things about freedom when they want a handgun and the moment someone wants to smoke some weed in their house or marry another dude, suddenly it's ok to slap all sorts of restrictions on their neighbors.

_________________
--Ian

IJ

Just asking a resonable question----conflict of interest is applied many times over a judges abiltiy to judge a case in many areas.......and if the judge was a married man and staunch defender of the marriage would people now be saying he was somehow biased?

My best guess is yes.

I disagree that "moral disaproval" has much to do with it---despite how neat it sounds when you strawman and frame statements using it.

Since when did "destroying our government" become the standard for what is right and wrong?????
Again, nice job on mis-framing what I said.

I don't want to you "belive" that you are "rightless" when unelected and largely unaccountable people get to tell you what your rights are. I'm just trying to get you to understand that getting behind such actions......even when they go "your" way is a really bad idea.
As an example----what would be saying now if the judge had ruled against you?
Somehow I doubt it would be "well lets just trust the judgement of the dude in the black robes." ;)

As I said, I'm unware of areas where DP are inferior to actual marriage---and I disagree with and don't find conviencing arguments to the contrary----and again if they are, then those shortcoming can be easily fixed through legal means.
But by all means please present specific areas and we can discuse them.

When I said you can't away something you never had.....I was of course refering to the fact that in most of the USA gay marriage is simply not legal....dispite the fact I think it should be.
We of course could split hairs all day long over various specific locations and rules there-of.......I was making general comment.

Like I said, I always enjoy the rhetorical gymnastics of folks in protected classes making demands about "equality."
Not saying that such classes are not needed---just that there exsistance makes arguements about "equal treatment" somewhat problematic.

"Doesn't prevent major hassles"

Dude, NOTHING "prevents major hassles" the ONLY question is if the people in question are worth it.
Buddy of mine was dating a women with kids, married her, but he still didn't have certain "parental rights" had to go thu the "hassle" of a formal adoption....he loved the kids, he thought the "hassle" was worth it.

BTW throwing the whole "slave" thing into the mix is exactly how you lost an important chunk of the black community during the first round of votes.
Trying to place the black stuggle for basic civil rights and your desire not to be "hassled" see above is not winning you any friends........and its losing you many.
Its simply not the same situation/parallel.....except in overheated hyperbole.

I'm telling you what I personally belive, that the progressive addiction of forcing their agenda thu the courts instead of winning hearts and minds is why gay marriage isn't legal........heck man if you (and I mean YOU in the GENERAL SENSE, not "you" specifically) had actually listened to me prior to the Prop 8 vote and stopped attacking and labeling people that disagreed as being hate filled, bigoted, religious wackos we and I say "we" in the sense that I agree with that marriage should be a right for everyone, we would be celebrating a victory instead of mourning a loss----and still fighting about it.

If you need a better example....look how you interact with me
I'm on your side!
And rather than cultivate a friend and ally your trying with all your considerable might to prove me wrong.....and belittle me in the process.
And that IJ, IMO, is one crucial factor in the whole mess that is, from my POV, just a smaller reflection of a larger problem.

_________________
Forget #6, you are now serving nonsense.

HH

IJ

Seriosuly not trying to pile on, but something occured to me I didn't think about the other day that might help narrow down some of the base problems here.

I notice that above you state:

"Prop 8 was almost completely driven by religions, and the Mormans and the Pope and the evangelicals........."

Yet President Obama also has stated, for the record, that he believes that "marriage" is between a man and a women.
So either he meant it or he was saying whatever he needed to say to get elected. Either way that results multiple questions that need to be addresses.

1-Is your anger misplaced at the "religious" when the POTUS think the same thing?

2-Are you also blaming the POTUS for holding similar opinions?

3-Did you support for/vote for the guy knowing his opinion on gay marriage?
If so, why would you vote for guy that does not support what is clearly a really important issue?

4-Knowing his opinion are you going to vote for him again?

Elana Kagan is also going to be a SCOTUS judge and she also has stated:

"There is no federal constitional right to same sex marriage"

and in a March 18, 2009 letter:

"Consititutional rights are a product of constitutional text as interpreted by the courts and understood by the nations citizenry and its elected representatives. By this measure, which is the best measure I know of for determining whether a constitutional right exists, there is no federal constitional right to same sex marriage."

So again we have the same set of choices. Was she telling the truth or was she saying whatever it took to get the job? Either way we have the same general set of questions:

1-Did you call your rep and demand that he or she oppose Kagen's nomination on the grounds that she did not support marriage for all?

2-Did you protest the appointment?

3-What did you do to prevent her from being appointed?

Not trying to pile on.....seriously.

I just don't get how you can single out the "religious" while supporting a POTUS and possible SOCTUS that essentially feel exactly the same way.

True the POTUS isn't going to be voting in CA, but he is the most powerful man in the USA, and his SCOTUS pick will have tremendous power as well.

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Forget #6, you are now serving nonsense.

HH

This is precisely the kind of rambling incoherent discussion I *didn't* want to get into. I'm not sure what half your sentences mean because, as always, you seem not to proofread or spend much time on them.

Say what you want about the movement and the wisdom of using the courts, but the facts are that the courts have proved tremendously helpful to disadvantaged groups in the past and to us in the present. Go ahead and reread, for example, Romer v Evans, Lawrence v Texas, and the decisions for gay marriage in Iowa, California, and Massachusetts, for starters. You are welcome to your opinion we would be doing better if we had forgone court battles and stuck to "winning hearts and minds" but you have never presented a shred of evidence to that effect, and as I already pointed out, the organizations that lead the charge against us are conservative, consistent, and religious, and not terribly open to new ideas.

The inferiority of DP's is well addressed in the Prop 8 ruling. Instead of asking me to review all of the legal issues involved, you could do your homework and read the relevant part of the ruling. You could also hop onto google like everyone else and search "differences between domestic partnership and marriage" and find hundreds of informative pages (it took me 0.20 seconds).

Here is one example: http://lesbianlife.about.com/cs/wedding ... rriage.htm

As for Obama, no, my anger is not misplaced at the religious. First, I'm not angry at the religious, or even the religious opponents we have--just determined to fight. Second, we're also pretty irritated with and disappointed with Obama*. Third, Obama is saying that (I think, can't know for sure) largely to apease religious voters. Gotta please the base. Did I vote for him? Yes. He did / will do a lot more for us than McCain the person or the republicans the party (go check the Texas GOP platform for more evidence on that; the leaders haven't repudiated it). Who am I voting more in >2 years?? Depends on who's running!! And what happens!

How do I feel about Elena Kagan? Really conflicted. If your logic is so concrete that you think I should vigorously oppose everyone who is not completely in line with my thinking, then we have nothing to talk about. as Bismarck noted in 1867, politics is the art of the possible. Compromise is required. The best person for me as President or SCOTUS judge 1) isn't running or available, most likely and 2) not going to be voted in or confirmed. So we compromise. Bill likes to say if you can't see how a reasonable democrat would have voted for Reagan you just don't belong in politics--can you really not see how a reasonable gay person would vote for Obama or accept Kagan as a flawed but adequate or even best possible candidate? Better yet, don't reply, because I'd like to stay on topic: the ruling, its logic, its consequence, and next steps.

-----

One of many other comments I could make:

You claim that nothing prevents "major hassles." Actually, being married does prevent those major hassles I was referring to, and that were well covered by multiple witnesses and the judge in the ruling. Obviously, we are not talking about "all major hassles in life," we are talking about whether it's ok to substantially burden a minority which has traditionally suffered discrimination "just because."

If your comments are as flawed as the above, replying just gets pointless.

*Remember 8/3, when I posted this: "I have been, for example, very concerned that Obama has been more appreciative of executive power now that he has it, and now that Obama settled out to the RIGHT of Bill Or'Reilly on DADT, he can go f--- himself (but, thanks for the hospital visitation rights!)." YOU read and replied to that post--and now you want to know if I'm pleased with his treatment of gay issues? I just told him to go f--- himself 5 days ago.

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--Ian

Don't harm anyone else and you should be free to do whatever you want. The latest thing I'm hearing is that this "will open the door to all kinds of definitions for marriage! Why, people could marry more than one person now! or a farm animal! or more than one farm animal! or even their brother or sister or cousin!"

My universal responses are: 1) there are viable genetic reasons for not allowing in-breeding, so that won't change; 2) if the other spouses also agree, then I don't care how many husbands/wives (or combination thereof) someone has (mutual unanimous consent required); 3) As long as the farm animal(s) have reached legal age to consent, I don't have a problem with that either (OK, there's a little bit of humor in that...); and finally 4) I'm not sure that the current "legal age of consent" laws are correct, accurate or should be controlled arbitrarily by some governmental bureaucrat. (I.E.: you can drive @ 16, vote/go to war & get killed @ 18, but you can't drink until 21? So, from an "age of consent" stand point, why is it 14 in some states (down to 12 even with "parental consent"), 16 in others, and 18 in still others? Just proves that all of those boundaries are arbitrary... and I disagree with the whole concept!

Take care...

and happiness in whatever relationship, job, life experiences you chose and have!

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==================================
My God-given Rights are NOT "void where prohibited by law!"

Everyone should feel much better knowing that under the current CA ruling, Obama can take Ian's advice and "go F*** himself!"

(Just trying to lighten up a tough issue before it gets too much more "intense"...)

We're all passionate when we post on the "tough issues" forum, but that's why they're called "tough issues". And we all tend to dig our heels in and become adamant that "we're right while you're wrong". That can all be understood and respected. Things haven't gone too far here on this thread, so I just want to put a little "check and balance" comment in to keep things going smoothly.

Thanks and be good to each other...

Ian, I don't even remotely expect us to agree on this one, and perhaps I am in the minority here. I'm fine with that. I don't need anyone to validate my choices in life, who I sleep with, or who I spend my time with, laugh with or love. When the day comes once again that people are more concerned with survival than personal gratification, the pendulum will swing the other way. By then may we all be happily in the ground, pushing up daisies.

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Life begins & ends cold, naked & covered in crap.

Jason, I'm lost. Do you think most Americans, gay couples included, aren't already more concerned with survival than "personal gratification," other than a few people who are actively using hardcore drugs?

Panther, I'm really torn about age of consent and group marriage. I have a friend who is madly in love with two others--and who knows, if this goes on for a few years, perhaps they would want to marry as a group. I don't see that as a threat to me, but it does require complicated inheritance, etc rules. On the other hand, Mormon polygamy seemed (and fundamentalist current practice seems to be) a terrible, forced, often pedophilic arrangement. People might well "consent" under terrible pressure, after indoctrination and rigid conditioning to a sheltered extremist lifestyle. For those unlucky enough to be born into it, "religious freedom" isn't exactly the word. Age of consent works the same way too. *I* was certainly ready to consent before the law thought I was; I've declined offers from others who were well beyond legal but I felt not ready at all (this was a while ago, people).... the practice varies widely, but I guess that's state's rights and the freedom of communities to decide how their culture works. I think there should be some "out" for mature younger people... maybe "consent" even if legal at 16 to a 40 year old is actually just coercion and rape-light (I'd say so) but if a minor had the ability to make a plea to a court for early emancipation to chose a partner they felt was appropriate... again not sure what the best system is. You would just eliminate age of consent? What to do with the "now I think I was molested" "she's just angry it didn't work out" disputes?

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--Ian