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If Judge Vaughn Walker Lets Prop 8 Stand, Is He a Gay Traitor?

As we await the ruling of Judge Vaughn Walker in the Prop 8 trial, we’re being treated to sample attacks by conservative extremists, who will be ready to pounce on the judge if he knocks down the voter-approved law as unconstitutional. But lost in this debate is the other side of the coin toss: What happens if Walker, and openly gay judge, lets Prop 8 stand?

The immediate aftermath: utter disappointment from the gay community, Gay Inc. struggling to find its footing (and someone to blame), Ted Olson and David Boies wondering what went wrong, and blogs like this one pointing fingers, because that’s what we do.

But Walker’s sexuality will, without question, be part of that debate in the second phase of the news cycle. And if he rules against the plaintiffs in Perry v. Schwarzenegger, it won’t be the zealots supporting Prop 8 whom attack him, but the gay community going after one of their own.

As Walker’s gayness was confirmed (anonymously! through the media! reluctantly!), both supporters and opponents of Prop 8 took turns analyzing what it would mean come decision time.

On the far right, it meant pointing to Walker’s alleged courtroom activism; striking down Prop 8 would only represent yet another “legislating from the bench” move in favor of a demographic he’s a part of. But gay marriage supporters also worried aloud whether there could be a measure of “overcompensating,” where in the interest of appearing fair, Walker would ultimately uphold Prop 8 because it’s something voters decided. Throw in Walker’s history of arguing against gay causes (see: Gay Olympics), and there’s really no way to nail down how his sexuality will play a role in his decision.

Except that it almost certainly will not. At least not the way the peanut gallery thinks.

The same way Sonia “Wise Latina” Sotomayor, as a woman of color who grew up in a less-than-middle-class environment, is arguably better equipped to understand the everyday concerns of the populous her decisions will affect, so too can Walker, as a sixty-something gay man who grew up with anti-gay discrimination first-hand, know that laws like Prop 8 actually do affect Americans in ways no voting bloc, court, or elected official should ever support. Such personal experience and awareness does not make him biased; it makes him competent.

We’ve already shot down arguments using Walker’s sexuality as a chip should he rule against Prop 8. That same reasoning stands if he supports it: Walker is no more qualified to rule on Prop 8 as a homosexual or a heterosexual.

But should he decide to uphold Prop 8, it won’t be that Walker is a traitor to gay Americans. It’s that he is a traitor to the promise of life, liberty, and the pursuit of happiness.

(Photo via)


  • 55 Comments
    • Nelson G
      Nelson G

      If Judge Walker does rule in favor of Prop 8, no doubt the people to accuse the Judge of being a traitor will be those who define equality as being white, republican and hold lavish parties featuring gay for pay porn stars and Alec Mapa.

      Feb 13, 2010 at 1:19 pm · @ReplyReply to this comment ·
    • Steve
      Steve

      I think, honestly, the man should do what he’s going to do, and no one (At least on our side) should really give 2 cents what his decision actually is. Remember, no matter what happens, this thing is getting appealed to the supreme court. Through his judging, he has built a trial record that is very positive for us. That is really the contribution he makes. His final decision, either way, is pretty much irrelevant. So let him uphold prop 8 – if that’s what it takes to make things fair and impartial, then so be it. Like I said, no matter what he decides, it will be John Roberts et al whose opinion really counts regardless.

      Feb 13, 2010 at 1:30 pm · @ReplyReply to this comment ·
    • Nicholas
      Nicholas

      Rarely do I leave comments but this is a great article. Well spoken. Wow, those last three paragraphs hit the nail on the head.

      Feb 13, 2010 at 1:39 pm · @ReplyReply to this comment ·
    • Brian NYC
      Brian NYC

      I believe the Christians are preparing to ask for a Mistrial. They will suggest he had “an undisclosed conflict of interest” and the case will have to be re-heard. That will then be appealed to the Supreme Court, not the actual merits of the case. In any event, it will stall the process for another year or two.

      Perhaps this explains why they never really defended themselves in the first place. They knew they were going to stop the process because of his apparent conflict.

      Feb 13, 2010 at 1:50 pm · @ReplyReply to this comment ·
    • Bussy
      Bussy

      As far as i know or care. Prop 8 is unconstitutional for the fact that it puts a question that can affect the ability of tax paying citizens to adequately protect themselves and their loved ones to vote. Prop 8 should not have happened in the first place. The pro gay marriage side should have handled their activist judges better but alas…here we are.Now that it has however gone into vote..the voters decision should stand. You had your chance to sway your public but so did the opposition. They won and you lost. This trial is an insult to the democratic process. The people have spoken. If the case had been reversed and prop 8 lost, i am not sure you would be so quick to dismiss the people. THE PEOPLE DO MATTER. If you did not believe so, you would stop harping on and on about the polls.Judge Walker should do the right thing or the Supremes will do it for him

      Feb 13, 2010 at 1:55 pm · @ReplyReply to this comment ·
    • Brian
      Brian

      If sexuality is to be taken into account because it biases the outcome, then gay people have been the victim of countless biased judges. The rule is usually that heterosexuals decide what slice ( or scrap, if any ) of the American pie gay people get.

      Feb 13, 2010 at 2:00 pm · @ReplyReply to this comment ·
    • Brian
      Brian

      “Bussy” : rights of minorities should never be left to a popular vote… if that were the case women would never had gained the right to vote, blacks would still be slaves and there would be no interracial marriage. I can just imagine how your attitude would have been received during any of those times with your pompous “the people have spoken” crap…

      Feb 13, 2010 at 2:04 pm · @ReplyReply to this comment ·
    • Steve
      Steve [Different person #1 using similar name]

      @Steve:
      (Apparently, there is another “Steve” who has recently started posting on this site. He is not me.)

      I don’t agree.

      The trial court has not yet published its decision. The decision matters. It will contain a section titled “findings of fact” which, as far as the appeals and Supreme courts are concerned, IS the facts of the case. The appeals don’t inspect the evidence or read the transcript of the testimony. They read the “findings of fact” from the trial courts decision, and accept those findings as the facts of the case. The appeal reviews only the finding of law, not the findings of fact.

      For example, if the trial court makes findings of fact that: G&L have been subject of discrimination; G&L are a discrete or insular minority; being gay is an immutable trait; and that G&L minority cannot protect themselves in the political process; then those FACTS might trigger the LAW established by several precedents. In that case, G&L would be a “suspect classification”, and laws that target G&L people for unequal treatment would be subject to “strict scrutiny”.

      The facts matter. And, the “findings of fact” ARE the facts of the case, as far as the higher courts are concerned.

      Feb 13, 2010 at 2:18 pm · @ReplyReply to this comment ·
    • linkinbarby
      linkinbarby

      Hmm honey the people matter. R u kidding me?
      My question…absolutely no gay person has responded…if prop 8 lost what would the argument be

      Feb 13, 2010 at 2:22 pm · @ReplyReply to this comment ·
    • David Ehrenstein
      David Ehrenstein

      @Steve: That may be true in the legal sense, Steve. But as we should know this is all about power. And power makes its own “legality.” Walker could rule in our favor with a heap of “findings of fact” to back it up and Fat Tony Scalia and his lawn jockey Uncle Clarence Thomas could simply irnore them.

      Don’t forget, Clarence has never commented on anything from the bench EXCEPT this case — even though it hasn’t been decided yet.

      Feb 13, 2010 at 2:26 pm · @ReplyReply to this comment ·
    • Bussy
      Bussy

      Thank u Linkin

      Feb 13, 2010 at 2:28 pm · @ReplyReply to this comment ·
    • romeo
      romeo

      If he rules for Prop 8, it will be on technical issues, but I think it’s more likely the facts will prevail in regard to California’s Constitution, which is the real issue here.

      “Bias” I don’t think will be an issue at all, however much the fundies would like to play that game. The Supremes are hardly in a position to go that route.

      Feb 13, 2010 at 2:40 pm · @ReplyReply to this comment ·
    • Mr. Dawson
      Mr. Dawson

      Let him act on the merits of the case before we are so quick to judge. We were to quick to judge Tim Tebow’s super bowl ad before we saw it. Granted endorsing Focus on Family is offensive to our community yet the ad said nothing about FOF view of Gay America. Hateful group though.

      Let’s wait to hear his reasoning whether it be pro or con. My concern is that we are falling into the trap the all gay people must think the same and once we deviate we cast stones. We risk becoming a group that says that gay judges must act a certain way. Do we expect straight judges to do the same? What nexts, gay cops verses straight cops? Gay teachers verses straight teachers?

      It is the factual merits of the case that we want to learn from. If it is to our favor good but if it is against us let’s see what we can learn to correct this opinion.

      I am optimistic but I was optimistic about Prop 8 being defeated. If a small group of straight America wants to be stupid enough to say that a gay judge loses his objectivity because he is gay let them. It is a stupid arguement. Let’s not go down the same road.

      Feb 13, 2010 at 2:46 pm · @ReplyReply to this comment ·
    • Same Crap
      Same Crap

      Queety, you are becoming more and more retarded with each post. Stop posting. I know traffic must be down lately, but posting stupid shit like this demeans us all.

      Feb 13, 2010 at 3:02 pm · @ReplyReply to this comment ·
    • Jadis
      Jadis

      Let the man do his job. He’s a judge first, and should rule according to his understanding of the law.

      I would be very, very surprised if he ruled in favour of the defendants, given their embarrassingly half-arsed defense.

      Feb 13, 2010 at 3:02 pm · @ReplyReply to this comment ·
    • Paul Davis
      Paul Davis

      It’s highly unlikely that this case will go to the supreme court. It will be appealed to the 9th circuit. They will most likely rule against Proposition 8. Irregardless, the supreme court will likely not want to touch it until there are conflicting rulings regarding ‘gay marriage’ coming from different circuit courts.

      The supreme court would have to come up with something seriously clever if they want to deny marriage rights to gays and lesbians without setting precedent to upsetting prior precedents like Loving v. Virginia.

      Feb 13, 2010 at 4:01 pm · @ReplyReply to this comment ·
    • J. Stone
      J. Stone

      If Judge Walker upholds Prop. 8, it won’t mean that he is a traitor to anyone or anything, including “the promise of life, liberty, and the pursuit of happiness.” Federal District Court judges are required by law to follow precedent set by higher-level courts. What that means is Judge Walker may have no say in the matter, because ultimately he doesn’t get to decide what the law is. That said, a loss in Judge Walker’s court is no reason to jump off a bridge, or to string up Boies/Olson, for that matter. The case would be appealed to the higher level courts, where bad precedents CAN be overturned.
      My point is, regardless of which way Judge Walker rules, please understand that his hands are largely tied. It would be a shame if the gay community ostracized him due to a misunderstanding of the role of a trial judge.

      Feb 13, 2010 at 5:02 pm · @ReplyReply to this comment ·
    • ROB
      ROB

      @16

      ‘Irregardless’?! *shudder*

      I agree with your post, however.

      Feb 13, 2010 at 5:12 pm · @ReplyReply to this comment ·
    • J. Stone
      J. Stone

      @Steve:

      Steve, you’re mostly right, but not entirely. Appellate courts defer to the judgement of trial courts on matters of fact, but that is not to say that appellate courts accept findings of fact blindly. If an appellate court decides that there is insufficient evidentiary basis in the record to support a finding of fact, well then that “fact” no longer exists.

      Now, I read the transcripts of the Prop. 8 trial, and I must say that there would seem to be plenty of evidence to support the sorts of conclusions you mention in your post. I’m just saying, don’t expect Antonin Scalia to accept an adverse finding of fact without a fight.

      Feb 13, 2010 at 5:12 pm · @ReplyReply to this comment ·
    • Ray
      Ray

      Walker is going to most definitely uphold Prop 8. There is no way of denying that as a Conservative gay man, he is incredibly conscious of appearing unbiased and solidifying his cred among his Republican colleagues. He will literally bend over backwards to prove he is a ‘true conservative’ (in his own mind). That is why NOM is not worried.

      Feb 13, 2010 at 5:24 pm · @ReplyReply to this comment ·
    • BW
      BW

      Prop 8 must and will stand. The people of California have spoken.

      Feb 13, 2010 at 5:26 pm · @ReplyReply to this comment ·
    • Flex
      Flex

      Carol Corrigan, the California Supreme court justice is allegedly a lesbian. She ruled against us in 2008. Conversely, in my opinion, Walker doesn’t have a choice in this federal trial. The evidence is on our side, and proposition 8 will be struck down! There won’t be one hint of his sexuality in this ruling. Every human being has a sexuality!

      Feb 13, 2010 at 5:34 pm · @ReplyReply to this comment ·
    • Flex
      Flex

      @BW: Witness the annihilation of proposition 8. Loud and proud!

      Feb 13, 2010 at 5:35 pm · @ReplyReply to this comment ·
    • RS
      RS

      @linkinbarby: You wrote, “My question … absolutely no gay person has responded … if prop 8 lost what would the argument be”

      I’m trying to understand your question. Are you asking that if Prop 8 was defeated at the ballot, would the pro-Prop 8 people go to court, and under what grounds?

      If that’s your question, then my answer is that I have a hard time conceiving of any legal arguments for which they’d have standing in court. At best, they might argue some technical point (say, regarding the Attorney General’s title and summary) that could conceivably allow it to automatically be placed back on the ballot (though that seems to be a remote possibility), but would never automatically allow it to pass.

      All of the court cases to date have centered around either whether or not there is a constitutional right for same sex couples to marry. Some may have also sued on procedural grounds regarding whether or not the public have a right to vote on the matter. In the states where the courts have required allowing it, some have attempted to sue on the grounds that the courts over-stepped their authority. But no one has attempted to argue that the US Constitution prohibits same sex marriages or that states don’t have the right to enact it on their own.

      If I’ve misunderstood your question, can you clarify?

      Feb 13, 2010 at 5:40 pm · @ReplyReply to this comment ·
    • EQUALITY 4 ALL CALIFORNIANS
      EQUALITY 4 ALL CALIFORNIANS

      @Bussy: I agree with you to some points. I agree that prop 8 is unconstitutional for those reasons that you mentioned and because it further unequality by excluding a minority group from the right to marry. I also agree that the vote of the people matter big time, however, when it comes down to taking away rights, history have shown us that it’s not a matter of the people to be voting on. If people would have voted on women’s right to vote, people’s right to marry people of different colors,people’s right to have equal protection under the law, we would still be back more than 40 years behind because the popular vote would have been against women’s right to vote, against white people to marry black people, basically against change to allow people to be equal, and when all we want for the best of society is to reach the maximum equality for every individual who is a citizen of this great country. The problem with people voting to exclude or to take away other’s rights is that their motives are usually fueled by their prejudice, hatred and wrong beliefs against the group from whom they want to exclude or take away rights. My personal experience when I volunteered to help the No ON Prop 8, gave me a great understanding why it was wrong for people to be voting on taking away rights, and wrong for me to be there defending a minority group from loosing our right to marry. It was wrong on both sides because the power to take away rights should never fall on the hand of the people because just like I noticed in a few number of people voting for Prop 8, their motives was fuled by hatred, prejudice, and religious beliefs. When I asked a white man to vote no on prop 8 because it was unfair, wrong…he responded he was voting for Prop 8, and with anger and screaming he said that being gay is an abomination. There were others who also went to vote for prop 8 and their reasons were that they were following the bible, or that they were protecting the children….so, at the end, people’s vote was fueled by their prejudice, their religious beliefs,and also by false information because same sex marriage had nothing to do with marrying at church, or nothing to do with kids, and nothing to do with chaning their beliefs they had acquired from their Bibles. Some of the voter, two women, one hispanic and one afro-american, decided not to vote on the issue because as they pointed out they had they religious beliefs who said one thing and also their beliefs on equality who tells them the opposite. If Judge Vaughn Walker decides that Prop 8 is constitutional because it was voted on by the people, he will be saying that people’s vote is more important than the federal constitution which is there to protect people’s right, even carefuly stated to protect the minority from the will of the majority. He will aslo be stating that in the future californians will always have the power to exclude or take away rights from any group as long it is voted on. Is it fair? Is that constitutional?

      Feb 13, 2010 at 5:49 pm · @ReplyReply to this comment ·
    • Brian NJ
      Brian NJ

      He will strike it down. It is the only correct outcome.

      Feb 13, 2010 at 6:01 pm · @ReplyReply to this comment ·
    • Patrick
      Patrick

      I hate the word “traitor,” could it be any more loaded. the only traitor he could be is to his own values as a judged administering the law. As to what my reactions and the reactions of others to his ruling, especially if it rules in favor of prop 8, is what is written in his findings at the end of the trial and what arguments made him come to his conclusion.

      Feb 13, 2010 at 6:07 pm · @ReplyReply to this comment ·
    • Brian NJ
      Brian NJ

      Civil rights are inalienable; they can never be given or taken away, only recognized, BY VOTE, BY HOOK OR BY CROOK. This principle is the founding idea of our nation. Our founding fathers recognized that all men stand equal before God, as he created them equal. All men have inalienable rights, among them are life liberty and the pursuit of happiness.

      Another founding idea of the country was no taxation without representation. Gays have to pay the same money to the government as a straight person, and get less service in return. The laws have carved gays out of the protections, and the right to marriage, which the Supreme Court has ruled is an inalienable civil right. GOD BLESS THE USA!

      No one can be a good American, and not insist that everything they have, gays also have. That includes marriage.

      Feb 13, 2010 at 6:15 pm · @ReplyReply to this comment ·
    • B
      B

      QUEERTY is out of line for writing, “But should he decide to uphold Prop 8, it won’t be that Walker is a traitor to gay Americans. It’s that he is a traitor to the promise of life, liberty, and the pursuit of happiness.”

      Judge Walker will have to use his judgment to evaluate the facts of the case, including the credibility of witnesses, but he has to follow existing precedents and can’t just make up what he’d personally like the law to be. It would be a waste of time if he did make a capricious decision – that would simply be overturned on appeal.

      William Tam certainly showed there was animus behind the filing of Proposition Eight, at least by some of its sponsors, but not necessary all of its sponsors (some could have simply been deluded and only Tam was called as a witness). There were certainly a string of lies presented to the public to get Proposition Eight passed. There is, however, a legal question of whether animus on the part of some of the initiative’s 5 sponsors is sufficient to justify overturning Proposition Eight as it is not clear if the public that voted for it acted out of animus (people may have honestly thought they were protecting children due to falling for the “Yes on Eight” campaign’s TV ads, but being stupid or easily manipulated does not necessary imply animus unless animus is treated as being inherited in some way).

      Judges can’t overturn laws simply because the laws are stupid – there has to be a legally valid reason. So let’s not be yet another group who rants against a judge simply because the only possible decision in some case is not to our liking. Similarly, he doesn’t deserve any praise for a favorable decision either. What he should be given credit for is for fulfilling his responsibilities competently (the expected outcome as he is supposed to be highly qualified).

      Feb 13, 2010 at 6:34 pm · @ReplyReply to this comment ·
    • Rich
      Rich

      @Paul Davis…Yes, Paul..please…Irrespective or regardless, take your pick. English Majors across America twitch when they read that other word. You may be right about the Supreme Court not taking the case this time around.

      Feb 13, 2010 at 6:51 pm · @ReplyReply to this comment ·
    • EQUALITY 4 ALL CALIFORNIANS
      EQUALITY 4 ALL CALIFORNIANS

      @B: Nice B. That’s how it should be. I believe there were enough evidences/information presented to the Judge, and now is up to him to make a decision after he closely examines all those evidences. But at the end, he will have to give a very good explanation as why he decided one way and not the other. I believe his writing on the decision will clearly back him up his decision and then it will be easier for anyone to either agree with him or not at all.

      To everyone, let’s not put lavels on people just because they think different from us.

      Feb 13, 2010 at 6:54 pm · @ReplyReply to this comment ·
    • hephaestion
      hephaestion

      What happens if Walker, and openly gay judge, lets Prop 8 stand?

      He would be a traitor. There is no justification for Prop 8 other than massive ignorance and being brain-washed into thinking that gays do not deserve equal rights or justice.

      Feb 13, 2010 at 8:08 pm · @ReplyReply to this comment ·
    • B
      B

      No. 31 · EQUALITY 4 ALL CALIFORNIANS : “@B: Nice B. That’s how it should be. I believe there were enough evidences/information presented to the Judge, and now is up to him to make a decision after he closely examines all those evidences.”

      From the blogger-made transcripts I’d put the odds on Prop 8 being overturned given the evidence presented, but there may be precedents, rulings, and other legal issues that I am not aware of, so I’m not going to try to predict the outcome with any level of certainty.

      Given his reputation, I’d expect Judge Walker’s decision to be backed up by a legally solid argument, whichever way it goes.

      Feb 13, 2010 at 8:33 pm · @ReplyReply to this comment ·
    • Charles Merrill
      Charles Merrill

      Justice Sandra Day O’Connor voted for women’s rights in Roe vs Wade. Her decision was prompted by her empathy for women. If Judge Walker lets Prop. 8 stand he ought to commit suicide. He hates himself and we don’t need gay internalized homophobes to tell us we are worthless.

      Feb 13, 2010 at 8:35 pm · @ReplyReply to this comment ·
    • Same Crap
      Same Crap

      @Charles Merrill: The court was all male when Roe v. Wade was decided, though O’Connor did vote to uphold the basic right in subsequent cases.

      Feb 13, 2010 at 8:53 pm · @ReplyReply to this comment ·
    • Charles Merrill
      Charles Merrill

      @Same Crap: She was all about women’s rights. She said so in 60 minute interviews. Why can’t a gay judge be all about LGBT rights?

      Feb 13, 2010 at 9:05 pm · @ReplyReply to this comment ·
    • EQUALITY 4 ALL CALIFORNIANS
      EQUALITY 4 ALL CALIFORNIANS

      @Charles Merrill: You hit an interesting point the caught my attention. “Gay internalized homophobes” actually exist. Or at least I understand what you are trying to say with that.

      There were at least two gay friends of mine who had that problem. One of them said that gay shouldn’t marry. I guess he concluded that based on what he thinks gay people are or based on some of the gay people he has seen , but he ignored the hundreds of gay couples (gays and lesbians) who are good role models and well suited to live a life committed to each other and to create well stabled families. The other one was more like a total mess. When I asked him if he had voted against prop 8, he said he didn’t vote on that issue. I asked him why, and he started having problem to explain me why. First he explained that it was already enough with how everyone else viewed us. It was enough with the prejudice straight people had against us. That didn’t explained me anything, so I kept asking. So, he tried to give me another explanation, and said, “You know, gay people discriminate against each other. There are people who don’t want to be even friends with someone who is fat and ugly.” I kept dropping my jaw. I couldn’t believed that my friend was his own enemy at this point. I explained to him of course, that not eveyone was like that, and that we were fighting not for those people who discrimanate but for all the gay community so we could keep our rights. At the end, it boiled down that he was not happy with being gay. So I told him he had two choices, he could stop being gay or he could accept it. We laughed, he and I knew that our only choice is to accept being gay.

      I just hope that Judge Walker is not one with the “gay internalized homophobes” problem. At the end, it wont matter if he is gay or straight, but on what reasons did he based his decision.

      Feb 13, 2010 at 9:11 pm · @ReplyReply to this comment ·
    • Mookie
      Mookie

      It is mostly in our best interests to have Walker uphold Prop 8, as much as I would like to get married. If he rules to uphold Prop 8 we control when the next step is taken. We can wait to appeal. Although the next court will most likely overturn Prop 8 and rule it unconstitutional…the one after (SCOTUS) is most likely not on our side. Right now SCOTUS is politicized and is not an ideal atmosphere to hear the case.

      Feb 13, 2010 at 9:13 pm · @ReplyReply to this comment ·
    • RS
      RS

      @Charles Merrill: Well, she also was very cautious about overturning precedent. But you’re right, she was very supportive of the rights of women. Ruth Bader Ginsberg once said in an interview that while she and Sandra Day O’Connor often disagreed on many issues, they invariably ruled on the same side when issues of women’s rights were before the court.

      Another good comparison is that of Justice Thurgood Marshall, one of the foremost civil rights attorneys of his time who successfully argued the Brown v. Board of Ed case before the Supreme Court before, many years later, being appointed to it in 1967. During his 24 year tenure, the court heard many civil rights cases, including many that affected African Americans, such as:

      * Jones v. Mayer Co. (1968): The Court held in this case that federal law bars all racial discrimination (private or public), in sale or rental of property.

      * Griggs v. Duke Power Co. (1971): In this case, the Court decided that certain education requirements and intelligence tests used as conditions of employment acted to exclude African-American job applicants, did not relate to job performance, and were prohibited.

      * Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977): In this case, the Court declared that proof of a racially discriminatory intent is required in claim that race was a motivating factor in a land zoning decision.

      * University of California Regents v. Bakke (1978): The Court decides that a public university may take race into account as a factor in admissions decisions.

      * Batson v. Kentucky (1986): This decision holds that a state denies an African-American defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded.

      He did not feel the need to recuse himself when those cases were before the court.

      Feb 13, 2010 at 9:17 pm · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      Judge Walker is under a magnifying glass as it is, let’s not place him under an electron microscope instead.

      Sure, it’s fun to speculate and place bets, but until his decision is reached and his rationale clearly laid out, we’re reading goat entrails and tea leaves.

      This shouldn’t be a question of his supposed “bias” in his determination, but rather the relative strength of the cases (pro and anti Prop 8) and arguments presented.

      And until legal whiz-kid Davey Wavey weighs in with his opinion, I’m not giving the case a second thought! (g)

      Feb 14, 2010 at 12:49 am · @ReplyReply to this comment ·
    • MaxH
      MaxH

      The decision SHOULD have nothing to do with his personal feelings.

      If he is a competent jurist, he’ll weigh the facts as they’re presented to him and make a decision based solely on those facts.

      His personal feelings about the matter shouldn’t influence him one way or the other.

      Feb 14, 2010 at 1:50 pm · @ReplyReply to this comment ·
    • B
      B

      No. 34 · Charles Merrill wrote, “If Judge Walker lets Prop. 8 stand he ought to commit suicide. He hates himself and we don’t need gay internalized homophobes to tell us we are worthless.”

      … if you are in the middle of a drought and a meteorologist predicts that it is not going to rain, should the meteorologist commit suicide because the weather isn’t to your liking?

      Feb 14, 2010 at 6:48 pm · @ReplyReply to this comment ·
    • KirilleXXI
      KirilleXXI

      From what I figured out (and I know it from people who claim they actually know something about how the system works, and I have no reason to doubt them), this case is not necessarily going to the Supreme Court of the United States (SCOTUS), especially if Walker rules to uphold Prop 8 and dismiss the case.

      Appeals, no doubt, will be heard by 9th Circuit panel (3 judges), and then there is the full 9th Circuit sitting en banc (all of the 9th Circuit judges). These hurdles must be surmounted first, and the whole thing may get stuck there.

      “[T]he Supreme Court takes cases by getting a writ of certiorari signed by four of the nine Supreme Court Justices. They have complete discretion as to which cases they take, but I’ll send you back to my post about the Supreme Court for that.”
      via Brian Leubitz

      This means SCOTUS may never even take this case at all (if there won’t be four Justices interested in hearing the case, and we know their attitudes — they already blocked televising the trial for idiotic reasons), especially if Walker rules in favor of defendant-intervenors (in that case they can just say they are satisfied with his ruling).

      If that happens (Walker ruling against us and SCOTUS not even hearing the case), I’m sure they’ll try to minimize the damage for us (they are not idiots, they understand that the society some day will be ready to repeal Prop 8 and everything else nationwide) — nothing will really change: Prop 8 will be upheld, and no other state that currently recognizes same-sex marriages will be obliged to ban them.

      However, SCOTUS may after all hear the case, for the sake of creating a precedent to refer to in the future — why go through this over and over again state by state when you can create a precedent to show there’s no chance in hell any ban introduced after passing a ballot initiative in any other state will be struck down by SCOTUS in the nearest future?

      They just want to relieve themselves of responsibility to decide this very controversial issue now leaving it to future generations of people who will struck it down at the ballot box. I understand them — it’s a huge responsibility and a lot of people will be pissed off if they rule in our favor, but I still think that’s their job to make tough decisions, even against their own beliefs, so they should just suck it up and do the right thing!

      I think it’s best if Walker decides in our favor (let’s be honest, if you really rake through the laws, you can find something to support either decision, so it’s really not about which one will be stronger, it’s about which one he’s gonna choose and why) — that will most definitely create more attention to the subject, and this decision would have a bigger chance to be heard in SCOTUS (otherwise they’ll just have to agree with him and open the door for other bans in other states to be overturned).

      “Judge Walker will rule on both questions, but the question of fact will be given great deference, while the answers to the questions of law will be reviewed “de novo,” meaning completely anew.”
      via Brian Leubitz

      Thus, his decision (answers to the questions of law) will be reviewed anew, so, whatever he decides, it may not be as important as we hope, but, I think, most certainly, they will at least read how he explained it — one can only hope they will agree with his findings, but they don’t have to. And Scalia is not gonna make it easy, damn sure!

      Feb 14, 2010 at 6:54 pm · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      @Charles Merrill: Walker should commit sucide?

      Did you mean that?
      I hope you realize the gravity and callousness of that remark and amend or retract it. Is encouraging the suicide of people you disagree with now politically acceptable?

      Feb 14, 2010 at 7:39 pm · @ReplyReply to this comment ·
    • Charles Merrill
      Charles Merrill

      @Lukas P.: How could a gay man live with himself ruling in favor of the Christian right. Case law can be interpreted as a judge sees fit. Olson and Bois have put forth a compelling case for our side and there is no reason for the Judge not to agree with their legal argument for equality under the Constitution. I think he will. I have met him and he is a kind man.

      Feb 14, 2010 at 9:21 pm · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      @Charles Merrill: You ask a good question: “how could he live with himself…?”

      I can’t speak from a legal perspective, but based on what I’ve read from those with constitutional law backgrounds, I think we’d agree that the Prop 8 supporters had and made a lousy case, and that Olson & Boies [sp?] dismantled those arguments one by one. The people I know who are most informed and “objective” about the case DO
      believe he will find Prop h8 unconstitutional, so you and I probably don’t need to argue over whether ending his life would be a fitting conclusion to the story.

      From a psych viewpoint, I think he’d have to weigh the importance of the legal reasoning versus what we perceive as his own self interest as a “gay man.” If his legal judgement superceded his own [presumed] bias, then he would no doubt feel bad, but to suggest that this would and should be worth KILLING HIMSELF over seems to oversimplify how we humans deal with our defeats, bad decisions, and letdowns.

      Your statement was that he SHOULD kill himself. Mine is that he WOULDN’T necessarily—and OUGHT NOT TO—because his self-immolation would do none of us any good, and would discredit what I believe to be his very valuable hand in dismantling the namby-pamby arguments of those who seek to prevent same-sex marriage from becoming legal in Cal. and beyond.

      Better said, a loss in California [which we agree is unlikely] wouldn’t completely dismantle the case for same-sex marriage. A win in Cal. would be a good basis for further “wins” in other states and eventually nationally.

      Feb 15, 2010 at 12:42 am · @ReplyReply to this comment ·
    • KirilleXXI
      KirilleXXI

      @Lukas P.
      Why do you even comment on that crap by Charles Merrill?
      First he says Walker “ought to commit suicide” if he “lets Prop. 8 stand.”
      Then he says, “I have met him and he is a kind man.”

      So, what is it, man? [question addressed to Charles Merrill]
      Is he a kind man or an internalized homophobe?
      I don’t think you can really be both.

      Either way, statements about suicide are batshit crazy.
      Would you, guys, stop paying attention to comments like this?

      Feb 15, 2010 at 6:30 am · @ReplyReply to this comment ·
    • Lukas P.
      Lukas P.

      @ Kirillexxi:
      Real answer? I wish I hadn’t responded once — not to mention twice, to his inane, repugnant and mean-spirited suggestion that Judge Walker opt for suicide. I occasionally have the ill-conceived belief that such crass statements encouraging suicide deserve rebuttal or at least comment. He proved his own lack of civility with his comment. WTF was I thinking?

      I believe there’s a saying in Russian that goes “Opinion is the mother of all suffering.” Similar expression in American: “Opinions are like assholes: everyone has one.”
      Same idea!

      Next time, I will try to bite my tongue.

      Feb 15, 2010 at 7:33 am · @ReplyReply to this comment ·
    • KirilleXXI
      KirilleXXI

      @Lukas P.

      Real answer? I wish I hadn’t responded once — not to mention twice

      I know what you mean — had the same problem with BUSSY the PUSSY.

      I occasionally have the ill-conceived belief that such crass statements encouraging suicide deserve rebuttal or at least comment.

      Suicides are a real problem in our community. We absolutely should rebut and discourage such comments. But it’s one thing when someone talks about this specific person (Walker) who, obviously, would not do such a crazy thing as ruling against us and then killing himself (this combination alone, with no regard to the suicide issue, is crazy enough); and it’s the other thing when that someone makes a statement that any self-hating gay person ought to kill oneself — it’s a very reckless comment, very dangerous… many gay people go through the self-hating phase when coming to terms with their homosexuality, and statements like this one may instill even more self-hatred (and gay-hatred towards others) and make one really consider this kind of way out. Been there, done that.

      What I’m trying to say… There is another Russian saying that goes “???????? ??? ?? ??????” (“separate flies from rissoles”) — I just thought his comments were way too crazy to even respond to them, but it doesn’t mean I don’t care about the issue of suicide — been there, done that.

      Feb 15, 2010 at 8:55 am · @ReplyReply to this comment ·
    • KirilleXXI
      KirilleXXI

      Shoot, Russian letters are forbidden here. :(
      Those question marks were Russian words.

      Feb 15, 2010 at 8:58 am · @ReplyReply to this comment ·
    • Scott
      Scott

      If Prop 8 is ruled constitutional I think the Supreme Court will refuse to hear the case and let such a ruling stand.

      Feb 15, 2010 at 10:34 am · @ReplyReply to this comment ·
    • Charles Merrill
      Charles Merrill

      @Scott: I agree. Perhaps my language was too strong. I don’t want to see anyone dead over this. Ruling in favor of Prop 8 will lower the self esteem of many in the LGBT community, giving a feeling of hopelessness and depression. We need a win to lift our spirits. It took two straight conservative guys fighting for the fairness in the Constitution to defend us. If a gay judge rules against their argument and in favor of our enemies this can do psychological damage to our community.

      Feb 15, 2010 at 11:21 am · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      #49, KirilleXXI, you can get around that by sending a link to those words with a translation. Also, B, I’m agreeing with your posts in this thread. Maturity has rewards. It’s such an emotional time right now, but the United States tends to figure things out, after much laboring.

      Feb 15, 2010 at 12:49 pm · @ReplyReply to this comment ·
    • wilypagan
      wilypagan

      @Mookie: “We” do not control anything. The Plaintiffs in the case will decide whether or not they wish to appeal. Since they decided to bring a federal case with the currently sitting Supreme Court, it appears that their judgment is not entirely intact.

      If the gay community loses on the gay marriage issue, my opinion is that we should drop gay marriage, and approach the problem by promoting laws that prevent discrimination based on marital status. This would allow us to form a broader coalition (with unmarried people who live together for economic reasons, with straights who were formerly married with kids and who don’t want to get married again, with confirmed bachelors and bachelorettes, etc).

      Marriage and community property laws are great stuff for straight, backward breeders who want to strictly perform their religiously prescribed marital roles, of provider and helpmeet. Why should gays, who are behaving in a more responsible manner, considering the current overpopulation fo the planet, emulate the straights. Let them have their “family courts” with no jury rights. Why should we even ask for this?

      Jul 28, 2010 at 2:13 pm · @ReplyReply to this comment ·
    • Eric S.
      Eric S.

      How can anyone say he had a conflict due to being gay, couldnt the same be said if a straight judge was ruling over the case.

      Anyways, I hope he makes the right decision and strikes down prop 8.

      Aug 4, 2010 at 12:22 pm · @ReplyReply to this comment ·

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