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The Prop 8 Revolution Will Be Televised (And Why It Will Be a Blast for Everyone)

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Vaughn Walker, the federal judge overseeing the Prop 8 trial Perry V. Schwarzenegger, will likely preside over the 9th Circuit’s first televised trial, thanks to a decision by the Judicial Council of the 9th Circuit to allow cameras in the courtroom. Which means that when Ted Olson and David Boies face down against Protect Marriage’s Charles Cooper on January 11, we might just have a live feed. (UPDATE: Or not. See below.) This is awesome. Allow us to explain.

It’s a first! “The 9th Circuit currently allows cameras to televise appellate arguments, as does the 2nd Circuit,” reports Law.com. “A private vendor has also recorded a handful of district court proceedings in New York. But under the 9th Circuit’s new experimental program — in which only civil, nonjury trials would qualify — district courts would be likely to use their own camera equipment.” This means we’re in uncharted territory, which is perfect for a case that’s in uncharted territory.

Ted Olson and David Boies are performers. Well, Olsen a little bit more so. Both have seen plenty of face time with the U.S. Supreme Court’s justices, and they know how to put on a great show. Except until now, their best shows have been relegated to transcripts and first-person reports, since cameras aren’t allowed in. No, these guys won’t be performing acrobatics, but their sharp wit is about as enthralling as real-life courtroom drama gets.

Protect Marriage’s Charles Cooper is prone to gaffes. Okay, maybe just small ones, but we have a feeling where this is going: Cooper’s briefcase will rip open and private papers will fly through the air. He’ll spill his water glass as Walker makes a grand pronouncement. He’ll wear mismatching socks, and be torn up by the fashion press. Alright, we’re stretching.

Vaughn Walker is serious. And fun! The maybe-gay judge overseeing this trial is not short on diabolical statements. Nor is he afraid of pissing off Prop 8’s supporters — or their opponents. He will frustrate both sides throughout the trial, and we want Camera 2 squarely trained on his brows to see how many times they raise and lower per minute.

UPDATE: The new rules, which take effect just as Perry goes to trial, may provide only short-circuit camera feeds, and not live television broadcasts.

By:           editor editor
On:           Dec 18, 2009
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  • 69 Comments
    • Flex
      Flex

      We don’t know how Vaughn Walker’s sexuality would impact the trial. Carol Corrigan, the California State Supreme Court Justice who is a confirmed lesbian, was among the dissenting minority in the marriage cases in 2008. What ever Walker’s sexuality is it won’t indicate how he will rule. That is a right wing republican myth that gay judges are automatically activists, and disregard the president of law.

      Conversely, I understand that this article is a bit snarky.

      Dec 18, 2009 at 11:49 am · @ReplyReply to this comment ·
    • Bill
      Bill

      Televising this trial is about as vulgar as the heterosexuals who voted to strip their gay children of their civil rights.

      This is meant to be nothing but a spectacle.

      Dec 18, 2009 at 12:15 pm · @ReplyReply to this comment ·
    • Richard Cortijo
      Richard Cortijo

      Funny how they are so concerned about people finding out that they are pro prop 8…if they were so “on the right side” as they say…why would they fear back lash or fear being recognized?? Interesting that the pro equality side is not afraid at all to stand up for equality and be recognized??? why is that I wonder??? hmmmmm

      Dec 18, 2009 at 1:07 pm · @ReplyReply to this comment ·
    • Richard Cortijo
      Richard Cortijo

      Televising this trial will only HELP the gay rights movement. Everytime people that no nothing of our cause get to see and hear why we deserve equal rights and that there is nothing to fear….it can only help. Plus they will hear and see this from very smart well thoguht out people/lawers…str8 lawers that will clearly explain why discrimination should not be in any constitution and why a majority should not vote on a minoirities rights. Even if we lose this we have won…at least the hearts and minds of some. I say roll ‘em!

      Dec 18, 2009 at 1:13 pm · @ReplyReply to this comment ·
    • PopSnap
      PopSnap

      I cant wait to see. We’re going to WIN.

      Dec 18, 2009 at 3:05 pm · @ReplyReply to this comment ·
    • James
      James

      Walker’s only intent is to establish a record on the issue in federal court since there is essentially none. He has acknowledged that his court won’t be the final say on the issue- which is his acknowledgment that he can’t rule on the issue since he is bound by existing precedent from the Supreme Court (Baker v Nelson). Walker will allow the trial to proceed, but in the end is obligated to dismiss it, essentially for lack of a federal issue to be answered (as was Baker). The case will then be appealed to the next level and work its way back up to the Supreme Court where eventually Baker may be overturned… but until it reaches the Supreme Court, no lower court can rule contrary to Baker. Walker knows this, and the Supreme Court knows this. Walker will be the laughing stock of the judiciary if he tries to overrule the US Supreme Court.

      Dec 18, 2009 at 3:37 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @James: you are wrong if you think that Baker v. Nelson is controlling. As is explained in Wikipedia:

      “When dealing with precedents like Baker, lower courts may have to guess at the meaning of these unexplained decisions.[16] The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions:[17]

      * The facts in the potentially binding case must not bear any legally significant differences to the case under consideration.[18]
      * The binding precedent encompasses only the issues presented to the Court, not the reasoning found in the lower court’s decision.[19]
      * Of the issues presented, only those necessarily decided by the Court in dismissing the case control.[20]
      * Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.[21]”

      Perry v. Schwarzenegger (the federal Prop 8 challenge) has numerous legally significant differences to Baker. First of all, Baker was a constitutional challenge based on sex discrimination; Perry is a constitutional challenge based on sexual orientation discrimination.

      The reasoning in Baker does not apply to the reasoning in Perry. See the PLAINTIFFS’ AND PLAINTIFF INTERVENOR’S JOINT OPPOSITION TO DEFENDANT-INTERVENORS’ MOTION FOR SUMMARY JUDGMENT
      at pages 7-11.

      The issues presented in Baker are not the same issues as those presented in Perry.

      Subsequent developments of the Court on the relevant doctrines have made Baker no longer good law as it applies to Perry. See for example, Lawrence v. Texas and Romer v. Evans. Romer was a constitutional amendment which took away gay rights from Colorado gay citizens. The US Supreme Court said that you can’t do this. Prop 8 takes away gay rights from California gay citizens.

      Moreover, the Prop 8 proponents filed a Motion for Summary Judgment claiming Baker controlled. Judge Vaughn denied the Motion and allowed the case to go to trial. Obviously, he doesn’t believe that Baker controls.

      I hope this explanation clarifies the issue for you.

      Don Gaudard
      Professor of Law Emeritus

      Dec 18, 2009 at 11:13 pm · @ReplyReply to this comment ·
    • James
      James

      Wikipedia? Are you serious?

      Baker dealt with a challenge to state laws forbidding same-sex marriage, same as the current case, and argued equal protection violations of the Constitution, same as the current case. The Supreme Court has already indicated, through Baker, that this is not a federal issue (meaning there is no violation of the US Constitution).

      Your attempt to distinguish a different kind of discrimination between the two cases is absurd. They are identical, both dealing with same-sex couples attempting to marry where state laws forbid it.

      The reason Baker does apply is because Perry brings the same argument (exact same challenges to the exact same parts of the Constitution), and the Supreme Court has not altered the Baker ruling. The motion for summary judgment you reference has no legal standing- it is just a lawyers opinion. That lawyer does not overrule the Supreme Court.

      The Lawrence and Romer decisions have no bearing on marriage law. The Colorado amendment that was thrown out was FAR more reaching than the narrow scope of the California amendment. The two do not compare, and Romer does not even come close to addressing the issues in Baker. Lawrence does not either, as it dealt specifically with sodomy laws, not marriage.

      Just because Walker denied the motion and is allowing the case to proceed does not mean that Baker is not controlling. Walker has clearly stated that he wants to establish a federal record on the topic. He will allow the sides to argue their points, but in the end he can not rule contrary to Baker.

      Other courts in recent years have been bind by the same precedent, though they dismissed without holding any kind of trial. Wilson v Ake is a rather prominent and recent one, and there are others. Surely, if Romer and Lawrence had altered Baker in some way, the courts would not be citing it as controlling precedent. Read up on Wilson v Ake for a thorough explanation.

      Also, read Justice Kennard’s opinion in the Lockyer case. She does a good job of explaining the control that Baker has over the issue.

      In short, your argument that the Baker precedent is no longer controlling has been made repeatedly already, and the precedent has prevailed. There is not a single case yet where a court has ruled against the Baker precedent and found a legitimate violation of equal rights under the US Constitution.

      Dec 19, 2009 at 1:31 am · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @James: I made reference to Wikipedia for 2 reasons. First, I did not know if you were a lawyer (and I still don’t). Secondly, this is being read by numerous others who are not lawyers, and Wikipedia is a chance to read non-legalese explanations of what is happening. I forgive you for your put down even if it was intended.

      You start out by saying that “Baker dealt with a challenge to state laws forbidding same-sex marriage, same as the current case, and argued equal protection violations of the Constitution, same as the current case.” You are wrong! Have you read Baker? It was a challenge to the Minnesota marriage statute based on a sex discrimination claim. Baker was decided before sex was held to be a quasi-suspect class. This case (Perry) is a challenge to the California constitutional amendment based on a sexual orientation ground. Sex and sexual orientation are two different animals. Statutes and constitutional amendments are two different animals. Rational basis and “quasi-suspect” status are two different animals. No marital rights (Minn.) and previously granted marital rights (California) are two different animals. As you may recall, the U.S. Supreme Court’s summary dismissals are binding on lower courts only “on the precise issues presented and necessarily decided” by the Court.

      This is only the first example of where you are wrong. I would, once again, refer you to the PLAINTIFFS’ AND PLAINTIFF INTERVENOR’S JOINT OPPOSITION TO DEFENDANT-INTERVENORS’ MOTION
      FOR SUMMARY JUDGMENT, located at:
      http://www.scribd.com/doc/24184246/Selected-Filings-in-Perry-v-Schwarzenegger-Updated-12-16-09

      I refer you specifically to pages 7-11 where attorneys Ted Olsen and David Boies specifically discuss why Baker does not apply. In a future posting, I hope you can tell my why these 2 noted constitutional scholars are wrong. Best wishes.

      Don

      Dec 19, 2009 at 3:55 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @James: I took your advice and read Wilson v. Ake. I don’t believe you made reference to this case. First of all, it is a district court opinion in Florida. District Court opinions are not binding on out-of-state district courts or any other district court. The Perry court is in the 9th Circuit, not the 11th Circuit as Wilson is. In fact, if you want to cite a district court opinion, I would refer you to a 9th Circuit district court opinion which held that Baker was NOT binding. See: In re Kandu, 315 B.R. 123, 138 (W.D.Wash. 2004), that Baker is NOT binding precedent. http://www.domawatch.org/cases/9thcircuit/InreKanduBkrDecision.pdf at pages 13-14.

      In addition, I would refer you to Smelt v. County of Orange, 374 F.Supp.2d 861, 873 (C.D.Cal 2005) in which a California District Court held that Baker had been undermined in its entirety by subsequent jurisprudential developments (both Romer and Lawrence which you stated have no bearing on this case).

      In Romer v. Evans, the US Supreme Court struck down on equal protection grounds a Colorado constitutional amendment prohibiting governmental action to protect gay and lesbian individuals against discrimination because Prop 2 (passed by Colorado voters by 62%) “withdr[ew] from homosexuals, but no others, specific legal protection” and “impose[d] a special disability upon those persons alone.” This is precisely what California’s Prop 8 does. Prop 8 took away previously held marital rights from gays but from no one else. Hence, Romer applies to the federal Prop 8 case.

      Lawrence v. Texas explicitly recognized that the Constitution “afford[s]… protection to personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing” and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Hence, Lawrence applies to the federal Prop 8 case.

      As you can see, there is ample evidence that Baker v. Nelson is no longer good law, and that Romer and Lawrence apply to the federal Prop 8 challenge. Have a happy holiday!

      Don

      Dec 19, 2009 at 4:50 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      In the article, you spelled Ted Olson’s name wrongly. “Well, Olsen a little bit more so.” When he and Mr. Boise win this trial, their pictures should go up in every gay household, much like Kennedy’s and King’s did. I would also like to acknowledge Gavin Newsom in this struggle. We were married during that first round of marriages back in 2004. We waited in freezing rain for hours and slowly, throughout the day, worked our way into the Court House. It was an eleven hour day. People fed us, gave us coffee, preached the Bible to us, honked in excitement for us, filmed us, wrote about us, and if it wasn’t for the uncanny, politically suicidal, bravery of Mr. Newsom, we wouldn’t have what we have right now. Thank you Mr. Gavin Newsom, Mr. Ted Olson, and Mr. David Boise.

      Dec 19, 2009 at 5:06 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      Dear Prof. Donald Gaudard, I sure do appreciate how you explain these things to the group. Thanks you for putting your noodle to work for our cause. Any support from anyone is greatly appreciated and I especially enjoyed how you had said, “@James:…. Secondly, this is being read by numerous others who are not lawyers, and Wikipedia is a chance to read non-legalese explanations of what is happening. I forgive you for your put down even if it was intended.” Very stylish and interesting, so thank you too.

      Dec 19, 2009 at 5:20 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @!EqualityUSA: Thanks for reading what I write and letting me know that you understand it. I am a 70-year-old, gay, retired law professor who has not taught now for 20 years. Also, I have been involved in gay rights issues since 1970. I wrote the first gay rights ordinance which was passed in this country in 1972 in East Lansing, Michigan.

      At the time, I had been fired from 2 jobs for being gay and was interested in protecting the gays in East Lansing, Michigan from experiencing what I had gone through. I had no idea it would spring into something like this.

      Thanks again.

      Don

      Dec 19, 2009 at 6:23 pm · @ReplyReply to this comment ·
    • Wen
      Wen

      I hope I can watch it online somewhere, from Europe. Im happy they are gonna televise it, everyone should see and understand what it’s about and why prop8 and any voting on others rights is wrong, and for more reasons. Cant wait.

      Dec 19, 2009 at 6:45 pm · @ReplyReply to this comment ·
    • James
      James

      Baker v Nelson was argued over a state marriage law that limited marriage to a man an a woman, simply by the common understanding of the definition of “marriage”. The new California amendment does the same thing, though more clearly. In Baker, plaintiffs argued 14th and 9th Amendment violations- which the state Supreme Court rejected and the US Supreme Court essentially affirmed when it found no federal issue to resolve and dismissed. Perry v Schwarzenegger is making the exact same 14th Amendment claim, that the state law violates equal protection. The distinction you try to make between sex discrimination and sexual orientation discrimination is insignificant. Federal law does not recognize sexual orientation as a suspect class. The California courts did choose to do so, heard the case, and already rejected the claims. In federal court, the question still hinges on the 14th Amendment, which has not changed since 1972, and still applies in the same manner that Baker did at that time. Romer (which was a discriminatory amendment designed to limit rights and protections of homosexuals) and Lawrence (which was regarding state statutes that criminalized sodomy for homosexuals but not for heterosexuals) do not in the least bit alter marriage laws or in any way change the standing Baker precedent. Neither of those cases remotely addressed the issue of marriage and have no effect on Baker. Romer and Lawrence did show a shift in treatment of homosexuals under the law, but they clearly did not address marriage, and con not be reasonably construed to do so.

      While you are correct that Kandu found that Baker did not apply, it was because of bankruptcy laws, not marriage. The issues involved with Kandu were significantly different than Baker, so it clearly did not apply.

      The Smelt court decided that Baker did not apply largely due to the federal DOMA challenge. Baker is precedent over state marriage laws, not the federal DOMA… and that was a reasonable distinction as well.

      Perhaps I should have been more clear and requested that you identify a case in which Baker was found not to apply to a state marriage law that was challenged under the 14th Amendment.

      In the Perry case, the California amendment defining marriage is at issue. Sexual orientation is not the issue. Marriage, what marriage is, and the people’s right to legally define it is the issue.

      I mentioned Wilson v Ake simply because it cited Baker as controlling precedent in its dismissal and is a recent case. I never suggested that Wilson v Ake is binding on any other court- I said that Baker is since that precedent came from the US Supreme Court.

      Judge Walker, when he recently denied the Baker motion, stated that he believed there had been subsequent rulings that altered Baker. Perhaps he does believe this, but it seems more likely he ruled that way to continue with his stated intent of creating a federal record on the issue. Sure, he can rule that way- but ultimately it will be for the Supreme Court to decide if Baker still stands or not. I don’t believe Walker cited the cases that he believes changed Baker, though Romer and Lawrence are the usual cases cited and many judges before Walker have said that they don’t apply.

      Though she is not a federal judge, I will leave you with a quotation from Justice Kennard of the California Supreme Court who has been a proponent of same-sex marriage.

      From Lockyer v San Francisco (2004)-

      “In restricting marriages to couples consisting of one woman and one man, California’s marriage laws are not plainly or obviously unconstitutional under either the state or the federal Constitution. Neither Constitution expressly prohibits limiting marriage to opposite-sex couples, and neither Constitution expressly grants any person a right to marry someone of the same sex. Nor does any judicial decision establish beyond reasonable dispute that restricting marriage to heterosexual couples violates any provision of the California Constitution or the United States Constitution.

      “Indeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. After the Minnesota Supreme Court held that Minnesota laws preventing marriages between persons of the same sex did not violate the equal protection or due process clauses of the United States Constitution ( Baker v. Nelson (1971) 291 Minn. 310 [191 N.W.2d 185]), the decision was appealed to the United States Supreme Court, as federal law then permitted (see 28 U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high court later dismissed that appeal “for want of substantial federal question.” ( Baker v. Nelson (1972) 409 U.S. 810 [34 L. Ed. 2d 65, 93 S. Ct. 37].)

      “As the United States Supreme Court has explained, a dismissal on the ground that an appeal presents no substantial federal question is a decision on the merits of the case, establishing that the lower court’s decision on the issues of federal law was correct. ( Mandel v. Bradley (1977) 432 U.S. 173, 176 [53 L. Ed. 2d 199, 97 S. Ct. 2238]; Hicks v. Miranda (1975) 422 U.S. 332, 344 [45 L. Ed. 2d 223, 95 S. Ct. 2281].) Summary decisions of this kind “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” ( Mandel v. Bradley, supra, at p. 176.) Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution.

      “The binding force of a summary decision on the merits continues until the high court instructs otherwise. ( Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. ( Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision.”

      Dec 19, 2009 at 7:45 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @#!% James: You still haven’t explained how noted constitutional scholars Olson and Boies are wrong in their analysis of why Baker v. Nelson does not apply to this case. Attorney Olson has argued 55 cases before the US Supreme Court, and Attorney Boies has argued 10 cases before the US Supreme Court. With their expertise, could they be wrong? If so, please point out the error of their ways.

      Dec 19, 2009 at 8:55 pm · @ReplyReply to this comment ·
    • James
      James

      Of course they could be wrong- for the very reason that Kennard and several federal judges have already provided. While there have been cases addressing sexual orientation and civil rights, there have not been developments in doctrine relating to marriage laws as addressed in Baker. The Lawrence decision even specifically said that the ruling did not require recognition of relationships and clearly could not alter Baker.

      Olson and Boies brief has no more legal standing than Cooper’s. They are all lawyers trying their best to present the facts in a way that puts their case in the best light. Both sides are probably guilty of bending facts a bit to suit their needs… it is the judge’s ruling that matters.

      Walker has decided to allow the case to continue, stating that Baker was not binding on his court because subsequent rulings have altered it. So be it… but Walker has also acknowledged that his court won’t be the last stop on this issue. He knows that no matter what the result in his court is the case will continue to the next level. The next court could easily rule that Walker was wrong and Baker does apply- and strictly speaking by the numbers, more federal courts have ruled that it is binding than not (and one of those dissenting courts was addressing bankruptcy), and the odds are that Baker still applies.

      Boies and Olson provide significant arguments for how sex discrimination and sexual orientation rulings have evolved over the years, but the evidence they rely on does not address marriage at all, and that is why Baker still applies. What they call relevant ‘doctrinal developments’ (Romer, Lawrence, etc) do not address the fundamental issues of Baker and can’t possibly circumvent it. It is, in fact, this case, when it reaches the Supreme Court, that will ultimately decide whether Baker still applies. There truly are no significant developments that have changed the specific issues addressed in Baker.

      Again- Walker has an agenda. He wants a history established in federal court so that there is something to review when the case is appealed. Even though Walker is allowing the case to proceed, he still may not rule contrary to Baker. Time will tell.

      Dec 19, 2009 at 10:45 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      Now you two are making me nervous. It feels like I’m overhearing a conversation in the living room that is not fully understood. This push for equality is growing with each passing day. More and more are seeing the unfairness of discrimination, including straights. Even religious congregations are starting to wake up to our plight. Tell me that these ancient precedents cannot hold back progress, as some of these decisions were made years ago. We have changed as a Nation and have grown less intolerant of innate differences. That has to count, does it not?

      Dec 19, 2009 at 11:11 pm · @ReplyReply to this comment ·
    • James
      James

      You are right- there is a recognition of equal rights and there has been improvement. However, the issue at hand is regarding marriage, not equal rights. More states are expanding recognition of same sex couples rights…. however more than half (30+) of the states have already forbidden same-sex marriages. Only five (I think) have chosen to allow it. In terms of marriage, which way is the trend really going?
      If there is a legitimate challenge to make, it is against the federal DOMA. Marriage laws are for states to decide and the federal government has no business defining marriage in its own terms that is contrary to certain states. The federal government needs to recognize all relationships that the states formally recognize, whether marriage of domestic partnerships, and provide the same rights for each. Though California law treats marriage and domestic partners the same, the federal government restricts many privileges from domestic partners, and that is very wrong. It is an issue of states rights and the feds should not trump state law on this issue.

      Dec 19, 2009 at 11:32 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      Dear James, My partner and I are legally married. How can a two tiered set of rights exist?

      Dec 20, 2009 at 12:59 am · @ReplyReply to this comment ·
    • James
      James

      Because the California Supreme court enabled it. The court should have stayed its decision since legislation was pending on the ballot. The court goofed- but thanks to its goof you were able to get married. The Supreme Court ruled that the amendment could not be applied retroactively, and rightfully so- but that is the complicated result of not staying their decision earlier in the year.
      Honestly though, there is not a two-tiered set of rights… you have the same rights as domestic partners do… just a different label on the relationship. You don’t have any federal rights that are restricted from domestic partners either… but that is a whole different problem with the DOMA.

      Dec 20, 2009 at 2:14 am · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @1EqualityUSA: You asked: How can a two tiered set of rights exist? James answered that there is not a two-tiered set of rights.. you have the same rights as domestic partners do.. just a different label on the relationship. (So separate is equal? Didn’t we deal with that with the integration of schools?)

      Your question, 1EqualityUSA, goes to the crux of what the federal Prop 8 case is all about. Under the Equal Protection clause and the Due Process clause of the US Constitution, there cannot be a two-tiered set of rights for married couples. That is what Olson and Boies are arguing.

      By the way, as a married gay in California, you do NOT have all the same rights as a married heterosexual couple. The California Supreme Court, in In re MARRIAGE CASES, listed 8 rights that heterosexual married couples have that domestic partners do not have.

      The most important right which heterosexual married couples have that you don’t have, which the California Supreme Court failed to mention, concerns divorce. If you and your husband divorce, you cannot get married again in California, whereas a heterosexual male who divorces can get married again to a woman. Hence, if you divorce, you are forever single in California as long as Prop 8 is in effect.

      By the way, the right to marry a person of one’s choice is a fundamental right under the US Constitution. As such, any law impinging on that right (or any fundamental right), such as what Prop 8 does, is subject to “strict scrutiny” by the courts.

      Strict scrutiny is the most stringent standard of judicial review used by United States courts. The burden of proof is on the Prop 8 supporters (not on the gays) to show the following:
      First, Prop 8 must be justified by a compelling legitimate governmental interest.
      Second, Prop 8 must be narrowly tailored to achieve that legitimate governmental goal or interest.
      Finally, Prop 8 must be the least restrictive means for achieving that compelling governmental interest.

      So, ask yourself, what is the compelling legitimate governmental interest in granting marital rights to heterosexuals, but not to homosexuals? The Prop 8 supporters state that it is to preserve traditional marriage (whatever that is). Remember when black slaves were not allowed to marry at all; remember when blacks and whites were not allowed to marry each other. So what is a traditional marriage that is a compelling governmental interest?

      The Prop 8 supporters also argue that a compelling legitimate state interest is raising kids in a heterosexual environment. However, numerous psychological and sociological studies have demonstrated that kids raised by a gay couple are just as well adjusted as kids raised by a heterosexual couple.

      So, if these 2 are legitimate compelling governmental interests, is Prop 8 narrowly tailored to meet that interest? If we’re worried about kids, why are gays allowed to be foster parents? Why are gays allowed to adopt in California? If we’re truly concerned about kids, why are child abusers allowed to have kids? If we’re truly interested in protecting traditional marriages, how come we have divorces? If you really want to protect marriage, forbid divorces!

      Finally, is Prop 8 the least restrictive means to accomplish this legitimate, compelling governmental interest?

      Food for thought, huh?

      Dec 20, 2009 at 4:59 am · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @1EqualityUSA: The Prop 8 supporters claim that a legitimate compelling governmental interest it to protect traditional marriage. If that’s the case, why is it OK to have 8,000 gay marriages in California? Don’t those existing 8,000 gay marriages harm traditional marriage? Doesn’t your marriage harm traditional marriages?

      Judge Vaughn, the trial judge in the federal Prop 8 case (Perry v. Schwarzenegger) asked the attorney for the Prop 8 supporters how gay marriages harmed heterosexual marriages. The Prop 8 attorney responded, “I don’t know.” Doesn’t that say it all? You can see the absurdity of the arguments being presented by the Prop 8 supporters.

      As you may be aware, starting January 1, 2010, ANY gay marriage performed outside California prior to Prop 8 being passed is a valid marriage in California. So anyone from Massachusetts who got married there prior to the passage of Prop 8 who moves to California has a valid California marriage. If we’re protecting traditional marriage, how come we’re allowing this to happen? And aren’t some of the 8,000 couples and those coming from Massachusetts raising kids? If we’re into protecting kids, how can we allow this?

      Tell me, do you think Olson and Boies are going to win these arguments?

      Dec 20, 2009 at 5:27 am · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      My wife and I are one of 18,000 gay marriages that took place in California in 2008. Please tear these next paragraphs apart for me gentlemen, if you are willing and have the time. I’m curious if any of this holds water:
      As for harming marriage, similar arguments were shot down in Massachusetts. Your moral beliefs cannot strip others of contractual protections. We should not have any “onus” or burden, or any other hoop to jump through to justify our existence. We are American citizens and many disagree with your beliefs. There are over 1300 rights that we are being denied because of other peoples’ beliefs. This persecution has gone on long enough and we are not tolerating “outsider status” any longer, just to satisfy your comfort level. The government’s ENDORSEMENT of one group’s religious values, especially if others that don’t hold those views, is COERCION. Your unfounded fears didn’t prove to have a legitimate secular purpose and it failed, hence, gay marriage.

      Separation of church and state prohibits religious favoritism and cannot promote one religion over another.

      In regard to passing judgement in cases where separation of church and state is concerned, tests are set up.

      1) the Lemon test, named after Alton J. Lemon from a Supreme Court case (1971)

      2) O’Connor’s Endorsement test

      3) Kennedy’s Coercion test

      If any of these three tests are violated, the law is deemed unconstitutional. The same sex marriage ban would be endorsing one religious view over many others, thus creating exclusionary v. Inclusive types of religious doctrine. Such a ban would coerce individuals to support or conform to a specific religions. This government entanglement is unconstitutional.
      ——————————————————–
      In applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” Although we noted in Sail’er Inn, supra, 5 Cal.3d 1, that generally a person’s gender is viewed as an immutable trait (id. at p. 18), immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. California cases establish that a person’s religion is a suspect classification for equal protection purposes (see, e.g., Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 128; Williams v. Kapilow & Son, Inc. (1980) 105 Cal.App.3d 156, 161-162), and one’s religion, of course, is not immutable but is a matter over which an individual has control. (See also Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 292 [alienage treated as a suspect classification notwithstanding circumstance that alien can become a citizen].)
      Because a person’s sexual orientation is so integral an aspect of one’s identity, it is
      not appropriate to require a person to repudiate or change his or her sexual
      orientation in order to avoid discriminatory treatment.
      Read the decision here: http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF
      Clearly, immutability is not the issue here, the central issue here is equal protection under the constitution.
      It’s a lot to go through, but I appreciate your insight.

      Dec 20, 2009 at 7:47 am · @ReplyReply to this comment ·
    • Andrew
      Andrew

      To me it seems cut and dried.

      14th Amendment:
      “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

      But this is exactly what Prop 8 did, abridged a previously granted right. Not even most Prop 8 supporters would argue that was its intended purpose: to strip gays of the right to marry. And that is effectively what it did.

      Even if you disagree that the fed constitution grants same sex marriage, it DOES inarguably prevent stripping people of a right once granted.

      It seems pretty straight-forward and inarguable to me. What am I missing?

      Dec 20, 2009 at 1:43 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @1EqualityUSA: First of all, let me apologize for assuming you were a male. Since Queerty devotes so much of its space to the semi-nude male body, I assumed that most of the readers were male. My apologies. Secondly, congratulations on your marriage–may it be long and prosperous.

      You are the type of person I always enjoyed as a law professor–inquisitive, wanting to know how the law affects you. So, I have a couple of questions for you and then a homework assignment.

      Did you want my opinion of the 2 quotes as they apply to the federal Prop 8 case, or did you want to know more about the Lemon test, the Endorsement test, the Coercion test, the Equal Protection clause and suspect classifications? I assume it is the former, but since my last assumption got me into trouble, I thought I would ask first.

      Now for your homework assignment. To help you with the first quote, I would recommend that you read the following 2 articles.

      http://www.allacademic.com/meta/p_mla_apa_research_citation/1/5/0/6/2/p150627_index.html

      http://www.allacademic.com/meta/p_mla_apa_research_citation/0/9/7/6/1/p97611_index.html

      When you get to each article, near the bottom of the page is a link where you can read the article in HTML. Click on that and it will take you to the article. One is a 24 page article and one is a 27 page article. I think these will answer whatever questions you have concerning the first quote.

      I’ll wait for your answer as to what you specifically want in your second quote before I respond. Keep in mind that the courts look to certain things before it declares that a classification is suspect. One of these is immutability. However, both religion and alienage are suspect classifications, and both can easily be changed. In addition, Olson and Boies are going to present expert testimony at trial on how sexual orientation is essentially immutable. Don’t forget, you can change your behavior, but that doesn’t mean that you have changed your orientation.

      I hope this helps. I can be reached at DonG90806@aol.com if you want to pursue these questions further. Don

      Dec 20, 2009 at 1:45 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      Dear Prof. Gaudard,
      No apology necessary. As for the semi-nudes, my posts are mainly focused on religious or political or fun articles. The rest are there for whomever to enjoy. Thank you for directing me to the 2 articles above. I have interest in them, but prior commitments will delay my response. Please don’t read into this delay as lack of interest on my part. I will savor the assignment and appreciate the time you have given to my question. Mainly, I was curious if this was on the right path, legally, or absolute twaddle.

      Dec 20, 2009 at 2:01 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @Andrew: You’re right; it is pretty cut and dried. The Prop 8 supporters frame the question: Is there a Constitutional right to same-sex marriage? They answer that question NO. That, however is NOT the question. The properly framed question is: Is there a right to marriage by same-sex couples? The answer to that question, given the Due Process clause and the Equal Protection clause, is undeniably YES.

      The US Supreme Court did the same thing when first dealing with the sodomy statutes. In 1986, the Court, in Bowers v. Hardwick, framed the question: Is there a Constitutional right to homosexual sexual relations? The Court answered NO. In 2003, in Lawrence v. Texas, the US Supreme Court said that Bowers had framed the question wrong; they said it should be framed: Is there a Constitutional right to sexual relations by same-sex couples? The Court answered YES and then overruled Bowers.

      So it’s all about how you frame the question.

      In addition, Andrew, the right to marry is a fundamental right. Any attempt to abridge that right is subject to strict scrutiny by the courts. The first test in strict scrutiny is to ask: Does Prop 8 serve a LEGITIMATE compelling state interest? (See my Comment #22 for a discussion of strict scrutiny and COMPELLING state interest.)

      In Romer v. Evans, the US Supreme Court held that singling out gays (and no one else) and subjecting them to a legal disadvantage was not a LEGITIMATE governmental interest.

      This argument is being actively pursued by Olson and Boies. At trial, they will present evidence that the reason Prop 8 was put on the ballot was to subject gays to a legal disadvantage (and no one else). Hence, Prop 8 is unconstitutional under the rationale of Romer.

      Dec 20, 2009 at 3:20 pm · @ReplyReply to this comment ·
    • Brian Miller
      Brian Miller

      Baker v Nelson was argued over a state marriage law that limited marriage to a man an a woman, simply by the common understanding of the definition of “marriage”. The new California amendment does the same thing, though more clearly.

      Uh, no.

      When B v Nelson was argued, gay marriage was a legal nullity. It didn’t exist.

      In this situation, it DID exist (and continues to in other states), and was revoked SPECIFICALLY for gay couples. The Romer case law has precedence because like Romer, Prop 8 removed rights that already existed from a specific group of people for no legitimate reason.

      Dec 20, 2009 at 4:14 pm · @ReplyReply to this comment ·
    • James
      James

      The separate but equal argument has been heard and rejected by the court. There is nothing in Brown v Board of Education that comes remotely close to addressing the issues at hand. That case was regarding racial segregation in public schools. It is entirely irrelevant here.

      Clearly, married same-sex couples in California do not have the same rights as married heterosexual couples in California, and this discrepancy is due to the federal DOMA, not any state law. As far s state laws are concerned, married couples, regardless of sexual orientation, do have the same rights, as do domestic partners. The problem is clearly in the federal DOMA.

      The right to marry the person of one’s choice has not been obstructed to anyone in any way. It is the very definition of what a marriage is that we are debating. Marriage is between a man and a woman- every man in California can marry any woman (with certain restrictions on age and relation) and every woman can marry any man. The emphasis is not on “person of one’s choice”, but rather on “marry”. Strict scrutiny does not apply, and no court has even hinted that it applies.

      The existing same-sex marriages were allowed to remain intact because the amendment could not lawfully be applied retroactively, nor can any other law. The question of how same-sex marriages harm other marriages is misstated. The question should be asking how same-sex marriages are harmful upon a healthy society. They break down tradition and established norms, grating against the social structure.

      The new legislation taking effect regarding marriages performed elsewhere is limited to the time frame that the marriages were legal in California… between June 16 and November 5, 2008. Again, because the law can not be applied retroactively.

      As for MA law, the argument for same-sex marriage was successful because MA did not have a system in place as California does that provide the same rights under domestic partnership. If California did not offer domestic partnership then the courts would have allowed same-sex marriages quite easily.

      The 1300 rights that 1EqualityUSA mentions are federal rights, restricted by the DOMA. Those rights have nothing to do with the case at hand and will still be restricted regardless of the outcome of this case. Under California state law, there is virtually no difference in rights offered to couples whether married or domestic partners… as the court noted, the difference is in name only.

      The separation of church and state argument is an absurdity, and has no basis. The voters of California defined a legal term. This is not a situation of the government endorsing one religion over another.

      Andrew- it appears you do not understand the 14th Amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” means that states can not create laws that conflict with those rights specifically given to US citizens in the Constitution, and there is extensive case law on that topic. Marriage is not a right enumerated in the Constitution, which is why marriage laws are reserved to the states (10th Amendment). It sounds like you should also read the Baker v Nelson ruling from the Minnesota Supreme Court, which the US Supreme Court essentially affirmed with its dismissal of the appeal. Also, the amendment did not strip anyone of the right to marry. The amendment defined what a marriage is. All men and all women in California had, and still have, the right to marry. Andrew, it seems what you are missing is a thorough understanding of the difference between state and federal law, and that you are also missing the part of the 14th Amendment that states “without due process of law.”

      If the issue was really cut and dried… we would not be having the debate. Truth is, existing law is on the side of the amendment. Proponents of same-sex marriage have a huge mountain to climb. Personally, if they are going to be climbing mountains, I believe they should be climbing the real beast, which is the DOMA. It has a much better chance of being defeated.

      As to the professor’s framing of questions, I would argue that the question is still wrong. The question should more appropriately be, “What is a legal marriage?” The next question should be, “Does the US Constitution protect a marriage, or is a marriage subject to state laws under the 10th Amendment?”

      Dec 20, 2009 at 4:25 pm · @ReplyReply to this comment ·
    • James
      James

      Brian-
      I would venture to say that you are not familiar with the Baker v Nelson ruling. It rather clearly dealt with the definition of marriage and the use of commonly recognized heterosexual terms such as husband/wife, and bride groom. The Prop 8 amendment is really no different than the Minnesota statute other than it more clearly stated man/woman.

      Romer is not going to cut it. Romer found that the Colorado law was too far-reaching. We are dealing here with a law specifically addressing marriage in California, not a law preventing a group of people from equal protection in any situation.

      The California Supreme Court has already found that same-sex couples have not lost any rights under the new amendment, clearly noting that the only difference between domestic partnership and marriage is in name only- that the rights included with each are virtually the same. The argument that rights were revoked/stripped is weak.

      Dec 20, 2009 at 4:35 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      The question should be asking how same-sex marriages are harmful upon a healthy society. They break down tradition and established norms, grating against the social structure.

      First, offer proof that the society in which we live is a “healthy” one. Second, explain how “they break down tradition” or “grating against the social structure” constitutes “harm” from a legal perspective. If your theory is true, then we should have seen some indication by now that the “social structure” was in peril we’d have seen some evidence of that peril in the Netherlands, where same-sex marriage has been legal for over eight years. Yet the Netherlands seem to be ticking right along…

      The California Supreme Court has already found that same-sex couples have not lost any rights under the new amendment,

      In what decision did the CASC find that “same-sex couples have not lost any rights under the new amendment”?

      clearly noting that the only difference between domestic partnership and marriage is in name only- that the rights included with each are virtually the same.

      In fact the court found in the In re Marriage cases that the two-tiered system violated several constitutional provisions, including the right to privacy, and that the right to marry itself was fundamental in California. You acknowledge yourself that DP and marriage are not equal, noting that the rights are “virtually” identical. “Virtually” identical is not identical.

      Dec 20, 2009 at 5:26 pm · @ReplyReply to this comment ·
    • James
      James

      It was the most recent ruling in which the amendment was upheld. The ruling went on at length about it, explaining why there is no loss of rights.

      The Marriage Cases ruling is for the most part moot- the amendment made it Constitutional.

      There is still no federal violation. The inequality between marriage and domestic partnership is due to the DOMA, not any state law.

      Dec 20, 2009 at 5:45 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      It was the most recent ruling in which the amendment was upheld. The ruling went on at length about it, explaining why there is no loss of rights.

      If you’re talking about Strauss v. Horton, you’re wrong. The CASC ruled that Prop 8 carved out an exception to the constitutional right to privacy and the due process and equal protection guarantees of the state constitution. Carving out exceptions to fundamental constitutional rights is a loss of rights.

      The Marriage Cases ruling is for the most part moot- the amendment made it Constitutional.

      In re Marriage Cases are most decidedly not moot. The CASC repeatedly in Horton stresses that it is still valid law.

      There is still no federal violation. The inequality between marriage and domestic partnership is due to the DOMA, not any state law.

      The state-level inequality is because of Prop 8, not DOMA. Your comments here have not demonstrated that there is no violation of the US Constitution, just because you say there isn’t.

      I notice you’ve not even attempted to offer a legal basis for your theory about the effect of SSM on “traditional society”. In that you are much like the lead attorney defending Prop 8, who when asked point-blank how SSM did any harm to “traditional” marriage, stated that he did not know of any harm that it caused.

      Dec 20, 2009 at 8:22 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @James: I am glad someone else is taking on James. From his previous posts, it is obvious that he clearly has not had any formal legal education, he has not practiced constitutional law, he has not written any appellate legal briefs dealing with constitutional legal issues, he does not know how the judicial system works, and he simply states his beliefs without any supporting LEGAL reasoning. He repeatedly sounds like a heterosexual supporter of Prop 8. It’s really hard to deal with him because he never refutes your arguments with legal reasoning; he simply states that you are wrong. He has said that the attorneys Olson and Boies are wrong, that the California Supreme Court “goofed”, that I am wrong; he has left the impression that the Iowa Supreme Court was wrong, that the Massachusetts Supreme Court was wrong, etc. Good luck in arguing with him.

      Dec 20, 2009 at 9:32 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      James displays his lack of understanding of the law when he states: “The Marriage Cases ruling is for the most part moot.”
      Absolutely nothing could be further from the truth. For example, in the Marriage Cases, the California Supreme Court held that homosexuals are a suspect class. After Prop 8 passed, homosexuals are STILL a suspect class in California. This is only one example of many where Prop 8 remains valid law.

      James also states: “As far s state laws are concerned, married couples, regardless of sexual orientation, do have the same rights, as do domestic partners.” In re Marriage cases, at pages 42-44 and footnote 24 list examples of where heterosexual couples have rights which gay couples do not have.

      He further states: “Under California state law, there is virtually no difference in rights offered to couples whether married or domestic partners… as the court noted, the difference is in name only.” How about the situation of a gay married couple getting a divorce and wanting to remarry in California? A heterosexual can remarry; a homosexual cannot remarry in California. I love how James uses the word “virtually”, thereby dismissing all the examples of where they are not the same.

      In an amazing statement, James says: “The right to marry the person of one’s choice has not been obstructed to anyone in any way. It is the very definition of what a marriage is that we are debating. Marriage is between a man and a woman- every man in California can marry any woman (with certain restrictions on age and relation) and every woman can marry any man. The emphasis is not on “person of one’s choice”, but rather on “marry”. Strict scrutiny does not apply, and no court has even hinted that it applies. Strict scrutiny does not apply, and no court has even hinted that it applies.”

      This is wrong on numerous levels. One, in 1948, in Perez v. Sharp, the California Supreme Court held: “Since the right to marry is the right to join in marriage with the person of one’s choice,…” I don’t know how much clearer the courts can make the issue. Secondly, since marriage is a fundamental right, strict scrutiny DOES apply. Any first year law student can tell you that. As to whether or not any court has hinted that strict scrutiny applies to the fundamental right to marry, I need only cite one of hundreds of cases: In Zablocki v Redhail (1978), the Court struck down a Wisconsin law that required persons under obligations to pay support for the children of previous relationships to obtain permission of a court to marry. The Court reasoned that marriage was “a fundamental right” triggering “rigorous scrutiny” of Wisconsin’s justifications under the Equal Protection Clause. For additional cases, consult with any first year law student.

      James also states: “The question of how same-sex marriages harm other marriages is misstated. The question should be asking how same-sex marriages are harmful upon a healthy society. They break down tradition and established norms, grating against the social structure.”

      This is mind boggling. It is the proponents of Prop 8 who assert that a compelling governmental interest in maintaining heterosexual marriage is that homosexual marriages will harm society. When asked how, the attorney for Prop 8 stated: “I don’t know.” The Iowa Supreme Court, in Varnum v. Brien, in holding Iowa’s heterosexual marriage law unconstitutional, declared that tradition and established norms are not valid reasons to uphold the law. The California Supreme Court has held likewise. James gives no examples of how a homosexual marriage harms society other than claiming, erroneously, that established norms (whatever those might be) would be harmed. What established norms?

      In Loving v. Virginia, MR. CHIEF JUSTICE WARREN of the US Supreme Court delivered the opinion of the Court. He wrote:

      “This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.”

      The question posed by gays is: whether a constitutional scheme adopted by the State of California to prevent marriages between persons solely on sexual orientation classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It seems to me, to numerous legal scholars such as Lawrence Tribe of Harvard University (the foremost constitutional scholar in the US), and to Olson and Boies that such a constitutional scheme cannot stand consistently with the Fourteenth Amendment.

      Dec 20, 2009 at 10:54 pm · @ReplyReply to this comment ·
    • James
      James

      If you can’t find the legal reasoning in Baker v Nelson, that 5-6 courts have cited as controlling precedent and only two have not due to bankruptcy laws and the federal DOMA which were beyond the scope of Baker) then you aren’t trying.

      I have clearly explained why Lawrence provides a poor argument, including the specific statement in the ruling that it is not meant to address government recognition of relationships.

      I have addressed Romer, which was a very broad amendment meant to obstruct legal protections across the board from homosexuals. Romer was not ruled the way it was because of what it did- it was ruled that way because of how far-reaching it was. Moreover, it did not address marriage in any way whatsoever.

      Neither of these cases impacted the issues addressed in Baker.

      I have provided a very thorough statement from California Justice Joyce Kennard, who supports same-sex marriage, that explains the binding precedent of Baker upon lower courts, and acknowledges that it still applies. I have also referenced Wilson v Ake, only a few years old, that cited Baker as controlling precedent in its dismissal. There have been no developments in federal law since these rulings that would alter Baker.

      I have pointed out the the heart of the Perry case, the argument that the California amendment violates the equal protection clause of the 14th amendment of the US Constitution, is identical to the same argument made in Baker, where it was ruled that state laws restricting marriage to a man and a woman did not offend the US Constitution.

      I’ve pointed out that the court in Baker found that Loving did not apply, since it dealt solely with the issue of race, and even Loving assumed the male/female relationship.

      I’ve pointed out that Brown v Board of Education does not apply, as the courts had noted, because it addressed the issue of racial segregation in public schools. No court has found that the “separate but equal” discrimination argument applies here, though it is repeatedly argued.

      I have pointed out Judge Walker’s own public statements that he knows his court can’t rule on the issue, and that he only wants to establish a record in federal court so that the federal appellate court will have something to review. I’ve also explained how Walker’s dismissal of the Baker motion applies to his prior statements, and that he can still hold trial and not rule against Baker, staying within his bounds.

      I’ve pointed out that while a few states have recently allowed same-sex marriage, over the last decade more than half of the United States has passed legislation forbidding it- but at the same time extending benefits to same-sex couples through domestic partnership/civil union legislation. One of those states that recently passed legislation to allow same-sex marriage, Maine, struck it down a few months later. So which way is the trend really going? For those that have allowed it, that is there right per the 10th Amendment. However it is a pretty tough sell to argue that the trend is toward legalizing same-sex marriage.

      I have pointed out that marriage is an issue reserved to the states by the 10th Amendment, and that the federal DOMA conflicts with state rights. I’ve acknowledged that the DOMA unfairly discriminates against married same-sex couples and domestic partners because the DOMA imposes its own definition of marriage over the states and distributes benefits unequally. I’ve pointed out that every time people talk about the 1200-1300 rights that they are not allowed, they are talking about a federal problem, not a state one. California state laws regarding domestic partnership are very good, and way ahead of most other states, if not all. Regarding STATE law, the only difference between the two is the name applied to them. Refer to California Family Code 297.5 and note how it repeatedly uses the term “the same” as it compares the two. The problems presented by the DOMA are for a different court, and require an entirely different argument that what is being made in Perry.

      I correctly identified how we ended up with our current mess of marriages in California, which was by the CA Supreme Court failing to issue a stay on their order following the Marriage Cases ruling. Yes, I call it a goof, and that is my opinion, but it is still the cause. The initiative was already in motion, and may have already been qualified for the ballot, and being such a hot issue it seems it would have been wise to wait it out rather then put people in legal limbo.

      I’ve pointed out that your continued argument of strict scrutiny does not apply. Only the California Supreme Court recognized same-sex couples as a suspect class. That does not carry over to federal court, where the standard is a rational basis. And again, no, according to Baker and the the US Supreme Court, there is no 14th Amendment violation that would apply strict scrutiny.

      I’ve explained why the existing same-sex marriages were allowed to stand- because the law can not be applied retroactively. They exist because the Supreme Court created a window and could not lawfully void those that managed to get through in time. The same reason applies to the bill that was passed later.

      I’ve stated that it is not “the fundamental right to marry the person of one’s choice” that is the specific issue- but rather what a “marriage” is that must be decided. The definition of that term effects the meaning of the phrase. If a marriage is only between a man and a woman then logically, “the fundamental right to marry the person of one’s choice” is applied with a heterosexual definition, in the traditional sense of bride and groom, man and woman. It could not be interpreted any other way.

      I’ve explained, correctly, that same-sex marriage started in other states because those states did not have a structure in place that provided the same rights and benefits to same-sex couples. California has offered domestic partnerships for over a decade and has continued to expand that legislation over the years. California was not facing the same Constitutional problems that MA and other states have.

      I have explained, correctly, that the California Supreme Court never said that restricting same-sex marriage was unconstitutional. The court only ruled that the existing statute (Prop 22) was not strong enough law to do so, and therefor Prop 8 was born, inserting the exact same language of Prop 22 into the Constitution.

      I’ve pointed out the the Marriage Cases ruling is essentially moot following the passage and upholding of Prop 8. The only significant part that stands is the recognition of a suspect class under state law.

      I’ve explained, correctly, that the 14th Amendment protection of citizen’s rights only applies to those federal rights in the Constitution, not to rights reserved to the states. I’ve also pointed out that those protected rights CAN be be taken away with “due process of law”, the part that everyone likes to leave off when they quote it.

      I’ve also noted, correctly, that the Prop 8 amendment did not take away the right to marry from anyone. The amendment defined what marriage is, as it had been defined in the statute before. Every man and woman still has the right to marry, with certain restrictions of age, relationship status, and gender. Why is the gender restriction any more significant than the age restriction? Why is it any more significant than the restriction on marrying relatives, or marrying multiple times? Not all discrimination and limitations are unlawful.

      If you want to argue that I am not providing any reasoning in my statements then you are apparently skipping the parts you do not agree with- which is probably all of it. I’ve provided plenty, and my reasoning is the same as has been provided by other recent rulings, my favorite being that of Kennard’s in Lockyer since she is a supporter of same-sex marriage. I have a lot of respect for her applying the rule of law in these cases, making note of the binding precedent of Baker, and not allowing her personal opinions to influence her judgment on the law. She voted in the affirmative in Marriage Cases, and she stood up for the Constitution in Strauss though she still noted she did not agree with the amendment.

      Too bad Judge Walker does not have the same convictions that Kennard does. Walker has an agenda. Time will tell if he has the courage to attempt to overrule the Supreme Court or not. The end effect is going to be that he allows many people to get their hopes up as they tune in to daily proceedings… and he will either dismiss the case as he should, or issue a ruling that will promptly be crushed a la Marriage Cases.

      Dec 20, 2009 at 11:13 pm · @ReplyReply to this comment ·
    • Reason
      Reason

      “I’ve also noted, correctly, that the Prop 8 amendment did not take away the right to marry from anyone. ”

      And yet, gay and lesbian couples in California are not allowed to enter into the civil contract of marraige.

      Are you lying, James, or in error?

      Dec 20, 2009 at 11:31 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      Dear Prof. Gaudard, James, and Brian,
      You make me glad I administer chemotherapy for a living, rather than hashing out law. “The Paper Chase” sufficiently scared my siblings and I away from your profession. The progress you have all accomplished while I was out is truly amazing. Thank you all for sharing your views and clarifying law for us. The nuances, twists, an turns are like a ride in the foothills in an open Willys Jeep. We’re listening.

      Dec 20, 2009 at 11:56 pm · @ReplyReply to this comment ·
    • James
      James

      It is not a mistake- prior to Prop 8 and after, any man could marry any woman, and any woman could marry any man (with limitations to age, relationship status, and now gender). Nobody is prevented from marrying…. the argument is over what a “marriage” is.

      Dec 21, 2009 at 12:00 am · @ReplyReply to this comment ·
    • James
      James

      1Equality-

      We all have differing opinions- that is what the courts are for. In the end, the only thing that matters is the court’s ruling. We can all cite cases and make predictions, but essentially, all we are doing is guessing. We can’t predict the future.

      Regardless of how this case goes in the District Court, it will wind its way through the system to the Supreme Court. It won’t be until then that we really find out if Baker v Nelson still applies, if the 14th Amendment is a factor, or anything else.

      Don’t be encouraged or discouraged by anything that happens until the Supreme Court finally rules- and that will be a few years from now at the soonest.

      Dec 21, 2009 at 12:04 am · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @James: given your lack of a legal education, it is difficult to teach you how to read a court decision. Obviously, you have read a number of decisions; you just don’t know how to interpret them or to apply them to a different set of facts. For example, you state that re Brown v. Board of Education: “That case was regarding racial segregation in public schools. It is entirely irrelevant here.” The facts of the case involved racial discrimination in public schools; the holding involved the principle of separate not being the same as equal. That principle of Brown can be applied to a different set of facts; for example, you can’t have a drinking fountain for whites and a separate drinking fountain for blacks. You can’t have a restaurant counter for whites and a separate restaurant counter for blacks. Brown holds that: Separate is NOT the same as equal. Similarly, domestic partnerships are NOT the same as marriage. This was thoroughly discussed by the California Supreme Court in In re Marriage cases.

      This is what you fail to understand about court decisions and how they apply to a different set of facts. For example, you fail to understand how Lawrence v. Texas applies to gay marriage cases (incidentally, you are wrong when you state “including the specific statement in the ruling that it is not meant to address government recognition of relationships.” Lawrence provides, at pages 3-6 the following: “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

      Because of your lack of a legal education, you fail to understand how Romer applies to the federal Prop 8 challenge being brought by Olson and Boies (Perry v. Schwarzenegger). In Romer, the Court struck down on equal protection grounds a Colorado constitutional amendment prohibiting governmental action to protect gay and lesbian individuals against discrimination because the measure withdrew form homosexuals, but no others, specific legal protection and imposed a special disability upon gays alone. That is precisely what Prop 8 does; it is a California constitutional amendment prohibiting governmental action to protect gay and lesbian individual against discrimination. Prop 8 withdraws from homosexuals, but no others, specific legal protection and imposes a special disability on gays alone. Using the Equal Protection argument in Romer, you reach the same conclusion as the Court did in Romer:
      Prop 8 is unconstitutional.

      Because of your lack of a legal education, you also fail to appreciate the arguments presented in Perry or in Baker v. Nelson. You stated: “the heart of the Perry case, the argument that the California amendment violates the equal protection clause of the 14th amendment of the US Constitution, is identical to the same argument made in Baker.”

      That is patently false. You have misread Baker or else you don’t understand the case. Baker presented an equal protection challenge based ONLY on sex discrimination and therefore cannot conceivably foreclose the claim in Perry that Prop 8 discriminated against gays on the basis of their sexual orientation. The pleadings in Baker (in the Jurisdictional Statement) specifically state: “The discrimination in this case is one of gender.” (For your edification, gender is not the same as sexual orientation. Your gender is male and your sexual orientation is heterosexual. Quite a difference.

      In Mandel v. Bradley, the US Supreme Court held that the Supreme Court’s summary dismissals are binding on lower courts only “on the PRECISE issues presented and necessarily decided” by the Court. Hence, the Prop 8 challenge is entirely different from the challenge in Baker.

      Based on your lack of a legal education, you state: “I have pointed out Judge Walker’s own public statements that he knows his court can’t rule on the issue, and that he only wants to establish a record in federal court so that the federal appellate court will have something to review. I’ve also explained how Walker’s dismissal of the Baker motion applies to his prior statements, and that he can still hold trial and not rule against Baker, staying within his bounds.

      You are naive if you believe that. If Judge Walker believed that Baker was controlling and failed to grant the Motion for Summary Judgment, he would be sanctioned by the Court in a New York minute. No judge withholds a decision for the sole purpose of creating a record for review. It is against the Judicial canons of ethics for which you would be severely sanctioned by the Court.

      Judge Vaughn, appointed by Reagan and reappointed by Bush I in 1989, is a well-thought-of judge; he is very reputable. He has been the Presiding Judge since 2004. Believe me, he wouldn’t even think of “pretending” to rule that Baker was not controlling so that he could develop a record for appeal. I can’t imagine where you ever got such an idea; it certainly wasn’t from any formal legal schooling.

      Dec 21, 2009 at 2:47 am · @ReplyReply to this comment ·
    • James
      James

      I understand you are frustrated and it is natural to want to insult a person’s intelligence when you disagree with them, but it really does not help your argument. It is a hot topic that you clearly have a biased interest in, so I can forgive you for that.

      I suppose you think the same of everyone that opposes your point of view on this issue, including all the attorneys and judges who have successfully made these same arguments and rulings that have left us with a valid amendment to our state Constitution that defines marriage as between a man and a woman. Surely you are right and they are all wrong. Perhaps you should have been trying the case and things would be different?

      As I said above, we can argue til we are blue in the face- it does not matter. Very reputable people argue this issue on both sides, but their reputations do not matter, and do not make their arguments any more true or false. Judge Walker’s ruling will not matter. This case issue will find its way to the Supreme Court in a few years, and only their opinion will matter. The existing cases that control the outcome, whichever ones they may be, will not change between now and then. One court will continue to overrule another, and rulings will be appealed no matter what they are. There are no other cases ahead of this one that will alter its eventual outcome. We will just have to wait.

      I’ve made my points very clearly, as have you. We disagree, as do most people on this issue. Rather than start trading insults with you, I will politely back out.

      Dec 21, 2009 at 4:54 am · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      Justice Scalia is an originalist that has made it known his feelings about GLBT equality. Would he recuse himself to avoid tainting fair Supreme Court outcome in the case of equality for our community? James, I’m sorry you have chosen to back out. Historically, equality has always been the winner in this country. You have provided much needed counter point in order to sculpt Professor Gaudard’s legal stances. Has anything he has said influenced your thought processes on this matter? Do you think Justice Scalia has tainted himself? Thank you for your time.

      Dec 21, 2009 at 7:28 am · @ReplyReply to this comment ·
    • Brian Miller
      Brian Miller

      I would venture to say that you are not familiar with the Baker v Nelson ruling. It rather clearly dealt with the definition of marriage and the use of commonly recognized heterosexual terms such as husband/wife, and bride groom. The Prop 8 amendment is really no different than the Minnesota statute other than it more clearly stated man/woman.

      What part don’t you understand?

      In the Baker/Nelson case, a same-sex marriage was an abstract concept. Not a single license had every been issued.

      In the present situation, it’s different. A state court had ruled that same-sex marriage was legal (and in fact a right) under the state constitution. Marriage licenses were issued to same sex couples.

      At that point, “husband/wife” were no longer, as you put it, “heterosexual terms.”

      The law was amended — EX POST FACTO — to exclude LGBT people from a legal status that they had heretofore enjoyed.

      Your refusal to acknowledge this simple fact (which will be the pivot point for the whole case) doesn’t change the fact that you’re wrong. Period.

      Dec 21, 2009 at 7:49 am · @ReplyReply to this comment ·
    • Ozymandias
      Ozymandias

      *reads the mind-boggling posts*

      Ummm…

      *re-reads the mind-boggling posts, mind still boggled*

      Ted Olson and David Boies – I wish you guys the best of luck!

      Ouch…

      *staggers off to get some aspirin. And some coffee*

      Dec 21, 2009 at 8:51 am · @ReplyReply to this comment ·
    • Wen
      Wen

      I think James doesnt understand what he’s talking about

      ‘Honestly though, there is not a two-tiered set of rights… you have the same rights as domestic partners do… just a different label on the relationship. You don’t have any federal rights that are restricted from domestic partners either… but that is a whole different problem with the DOMA.’

      No, people in a domestic partnership dont have the same rights as married people. In Holland, where Im from, there is the option to a registered partnership (both for gay and straight) and for marriage (both for gay and straight), and RP isnt the same as Marriage. And btw, in Holland, there is the evidence that gay marriage hasnt harmed marriage, nor society.
      But apart from this, everyone knows domestic partnership isnt the same as marriage. If you cant even see that factual difference, then I dont understand how you can even debate the marriage issue.

      ‘It is not a mistake- prior to Prop 8 and after, any man could marry any woman, and any woman could marry any man (with limitations to age, relationship status, and now gender). Nobody is prevented from marrying…. the argument is over what a “marriage” is.’

      Really? So any gay Californian can marry their samesex partner now in California. Gosh, when did that happen?

      Dec 21, 2009 at 10:08 am · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @ 1EqualityUSA: I don’t believe Justice Scalia will back away from anything no matter how biased he is. But here is some food for thought for you. It concerns Chief Justice Roberts, one of the most conservative members of the US Supreme Court.

      The federal Prop 8 challenge is obviously going to the US Supreme Court in a year or two. There are 4 conservatives and 4 liberals on the Court and 1 Justice (Kennedy) who is moderately conservative. However, Justice Kennedy wrote the opinion in Lawrence v. Texas which overturned the sodomy statutes. Kennedy also wrote the opinion in Romer v. Evans in which the Court overturned a Colorado constitutional amendment which selected gays to discriminate against (it forbid the enactment of any gay rights statutes or regulations and voided the existing 3 gay rights law.) Romer overturned this constitutional amendment, with Kennedy writing that any law which picks out gays for discrimination is constitutionally suspect.

      So Kennedy seems to not be afraid to deal openly with gay issues. Also, Kennedy likes to look at what foreign jurisdictions are doing as a guide to what direction the law is evolving. With 5 countries supporting gay marriage and with Portugal coming on line in February or March, and with about 25-30 European countries supporting civil unions, I think it bodes well for gays as far as Justice Kennedy is concerned (at least he won’t be hostile).

      Here is the interesting info about Chief Justice Roberts. Roberts was not on the Supreme Court when Romer was decided; he was in private practice, working for a law firm that required its attorneys to do pro bono (free) legal work in addition to their regular work. Chief Justice Roberts worked on the Romer case, helping the gay attorneys.

      When you have a case before the Supreme Court, the attorneys have practice sessions in which they “play act” the oral arguments in order to refine their arguments and to make them sharper. In the Romer case (which protected gays from discrimination) Chief Justice Roberts pretended to be Justice Scalia and asked the gay attorneys the questions that he thought Justice Scalia would ask at oral argument. Doing this really helped the gay attorneys to make their arguments stronger and more succinct. And, of course, the gay attorneys won.

      So here’s the question: Chief Justice Roberts is a noted conservative who incidentally helped out gays to win a landmark gay ruling. So how is he going to rule on a gay marriage case? I’m sure this is one of the things Olson and Boies have considered in their planning of the federal Prop 8 case.

      This is why it is important for an attorney to know more than just the law; if you know what piques the interest of a judge or if you know how they interpret foreign legislation and court decisions, the attorney can frame his or her argument to get the judge’s attention.

      Ted Olson has argued 55 cases before the US Supreme Court, and David Boies has argued 10 cases before the Court. 99% of attorneys in the US would give their eye teeth to argue just 1 case before the Court. It is the epitome of a legal career to argue a case before the Court. So, obviously, both Olson and Boies know the inclinations and interests of all the Justices and will frame their arguments to pique the interest of the Justices. And I’m sure they already know how Scalia is going to question them at oral argument and are preparing for that even though it is a year off.

      Dec 21, 2009 at 1:12 pm · @ReplyReply to this comment ·
    • FakeName
      FakeName

      Prof., I really hope that your analysis of the current Court is correct and that we can muster at least the five votes we need to strike down marriage bans. You have more confidence in Roberts, Kennedy and Sotomayor (who was asked about Baker during her confirmation hearings and ducked it) than I do. Kennedy specifically wrote in Lawrence that the decision did not involve recognition of same-sex relationships.

      Dec 21, 2009 at 1:32 pm · @ReplyReply to this comment ·
    • Republican
      Republican

      I see no reason why Justice Scalia should recuse himself from any case in this area. Besides, his doing so would open up the possibility of a 4-4 split which just affirms the lower court’s decision without making it nationwide precedent. This is one area where I’d prefer to have a definite yes/no, even if it’s a no. It would give us something to work with. (And contrary to popular belief, a ‘no’ for SSM would not take decades to undo. One only need check out this year’s forthcoming Citizens United to see how fast a precedent can be overruled. )

      Oh, and I think those who wish he would recuse himself fail to grasp how extreme expression of a viewpoint can push a moderate, such as Kennedy, in the other direction. This has happened in cases in the past where Scalia went too far. It also happened with Thurgood Marshall and William Brennan. Some of their rhetoric pushed O’Connor and Kennedy to the right in certain cases.

      Anyway, I think at least five justices on the Court will be receptive to an equal protection argument. Call it a hunch, but I would put Alito in with Thomas and Scalia in this area. Roberts, on the other hand, will be interesting to see. I have a feeling that he would’ve joined the majority in Romer, but that doesn’t guarantee that he’s on board for marriage. (Example: Justice O’Connor’s concurrence in Lawrence.) If he is in the marriage majority, I hope he assigns himself the opinion. I abhor Kennedy’s writing.

      Dec 21, 2009 at 1:36 pm · @ReplyReply to this comment ·
    • Republican
      Republican

      “this year’s forthcoming”

      My bad. Year should be term. I wish this site had an edit function.

      Dec 21, 2009 at 1:41 pm · @ReplyReply to this comment ·
    • Republican
      Republican

      For the record, I disagree strongly with the idea that marriage is a fundamental right, and I think the SCOTUS was wrong to characterize it that way. However, before you jump on me, I think the Court was right to strike down Virginia’s anti-miscegination law, and I think the Court should rule that allowing straight couples but not gay couples to marry is unconstitutional under the equal protection clause. My issue is with the reasoning, not the end result.

      Dec 21, 2009 at 1:55 pm · @ReplyReply to this comment ·
    • Reason
      Reason

      “It is not a mistake- prior to Prop 8 and after, any man could marry any woman, and any woman could marry any man (with limitations to age, relationship status, and now gender). Nobody is prevented from marrying…. the argument is over what a “marriage” is.”

      So, you are lying. That’s what I thought.

      GLBTQ people are prevented from marrying someone they want to marry.

      Dec 21, 2009 at 2:02 pm · @ReplyReply to this comment ·
    • Reason
      Reason

      Republican

      “For the record, I disagree strongly with the idea that marriage is a fundamental right,”

      You’d change your mind in a millisecond if voters, or a legislature, or a court, stripped you of ability to marry the person you love, protect that person through a binding, legal contract.

      Dec 21, 2009 at 2:07 pm · @ReplyReply to this comment ·
    • Reason
      Reason

      James

      I hope you stick to your word, and keep your false claims and derogatory assumptions out of this. Odds are, though, that you won’t, most people who pull the ‘I’m taking my ball and leaving’ use it only to try to end a discussion they cannot win, and never really leave.

      It is worth pointing something out from your last post:

      “I understand you are frustrated and it is natural to want to insult a person’s intelligence when you disagree with them, but it really does not help your argument. It is a hot topic that you clearly have a biased interest in, so I can forgive you for that.”

      Your second sentence is an insult about someone’s intelligence, and so it qualifies as the very thing you complain about in the first sentence. You then repeated the technique several subsequent times.

      Reminder: If you post again on this subject, your statement “Rather than start trading insults with you, I will politely back out.” will be a lie several times over.

      Dec 21, 2009 at 2:15 pm · @ReplyReply to this comment ·
    • B
      B

      In No. 28, Prof. Donald Gaudard wrote, “In addition, Andrew, the right to marry is a fundamental right. Any attempt to abridge that right is subject to strict scrutiny by the courts.”

      It might be worth noting that the California Supreme Court decision in May 2008 that allowed same-sex marriages until Proposition 8 shut it down dealt with more than just marriage, and marriage was the only thing Proposition Eight changed. In particular, the May 2008 ruling stated that LGBT people belong to a protected class, so the strict scrutiny standard applies under California law. The ruling also stated that religious groups were not required to perform marriage ceremonies that violated their beliefs (useful to know to counter various bogus arguments that same-sex-marriage opponents like to raise).

      Dec 21, 2009 at 2:39 pm · @ReplyReply to this comment ·
    • Republican
      Republican

      “You’d change your mind in a millisecond if voters, or a legislature, or a court, stripped you of ability to marry the person you love, protect that person through a binding, legal contract”

      Uh, they’ve already done that in most places. That’s why my husband and I had to go to another state.

      My views in this area are rather extreme, I admit. I don’t think the state should be involved in the marriage business (yes, that includes joint tax filing and a host of other things). Health and wealth concerns (as well as children) could be addressed on their own through a simplified contract, which would be available to all, not just romantic couplings. Civil marriage as we know it today goes beyond that and carries with it some baggage that I don’t think is a legitimate state concern.

      However, since it IS involved in the marriage business (and that’s not going to change anytime soon), I don’t think the state can say no to gay marriage, but yes to straight marriage.

      Dec 21, 2009 at 2:57 pm · @ReplyReply to this comment ·
    • James
      James

      Reason-
      It is one thing to debate the issue, it is another to start throwing insults back and forth. I choose not to engage in that. Recognizing that a person may be emotionally entangled in the topic and forgiving them for losing a little civility is hardly an insult. Your own comments fall in the same category, and are why I don’t want to debate in this forum and let things get ugly. There are plenty of other forums where I have been able to participate for months without it getting rude.

      Dec 21, 2009 at 3:03 pm · @ReplyReply to this comment ·
    • Republican
      Republican [Different person #1 using similar name]

      James,

      Are you even gay?

      Dec 21, 2009 at 3:15 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @Republican: From a prior post James has indicated that he is a heterosexual male who believes that marriage is between a man and a woman. Why he trolls here is beyond me since he fails to understand what the issues are concerning Prop 8.

      He thinks same-sex marriage ruins traditional marriage (whatever that is) and leads to the destruction of society. He is a straight man who gets his jollies from pretending to know something about the law, even though he does not understand how to read or brief a case. He reads a case like he is reading a Perry Mason novel. He fails to understand that you can look to the rationale to support the holding, and then apply that rationale to a different set of facts.

      He is enamored (for unknown reasons) with Judge Kennard’s concurring and dissenting opinion in Lockyer v. City and County of San Francisco. A CONCURRING opinion which was not joined by any of the other 6 Supreme Court judges.

      He fails to understand the limited scope of the precedential value of a summary decision by the US Supreme Court. He fails to understand that the precedential value of the summary disposition by the Supreme Court in Baker is to be confined to the exact facts of the case and to the precise question posed in the jurisdictional statement. The jurisdictional statement in Baker said that the case was one of GENDER discrimination. As we all know, Perry is about both sexual orientation and gender discrimination–two entirely different animals. Yet he maintains that Baker is controlling.

      Keep in mind that James has read a lot of cases, but fails to understand the concept of rationale used to reach a conclusion.

      Moreover, he said that he was going to but out, but here he is again–pestering us with his ill-founded “facts” and “prior judicial decisions” which support all his arguments (while failing to name the cases).

      Dec 21, 2009 at 8:29 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      @Republican: The reason that I have faith in Justice Sotomayor is based on something that happened while she was studying at Princeton in 1976.

      “This letter to the editor, published in the Feb. 27, 1976, edition of The Daily Princetonian, was written in response to an incident six days before, when eight students ransacked the dorm room of two gay students who were members of the Gay Alliance of Princeton. The letter was signed by 39 individuals, including Sonia Sotomayor ’76, history professor Nancy Weiss (now Dean of the College Nancy Malkiel) and politics professor Walter Murphy.”

      The letter can be found at:
      http://www.dailyprincetonian.com/2009/05/15/23734/

      For a Latina at an almost all white male Ivy League university to support gay students in the 1970s says a lot, I think. So, even though there are no legal opinions indicating how she views gay issues, I believe that, given her views on privacy and women’s issues, that she would be a supporter of gay issues.

      Dec 21, 2009 at 8:55 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      “Any measurement must take into account the position of the observer. There is no such thing as measurement absolute, there is only measurement relative.”
      — Jeanette Winterson

      Dec 22, 2009 at 11:13 pm · @ReplyReply to this comment ·
    • Guest
      Guest

      James: For the record, Chief Judge Vaughn Walker has already expressly held that he is not bound by Baker v. Nelson in this case. He explicitly ruled on this issue when he rejected the Prop. 8 proponents’ motion to dismiss.

      Jan 5, 2010 at 6:42 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Prop 8 will eventually be found to have passed as the will of the people. New polls are showing an increase in Americans who identify themselves as Conservative over any other label. Numbering over 60% at this point in time there are more Conservatives then any other time in this century.

      When all is said and done states will begin to reflect the needs and desires of the majority of their constituency. New York did this New Jersey did this and as we’ll see other states will do the same.

      Jan 7, 2010 at 6:04 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Furthermore claiming that the right to marry is a fundamental right does not include marriages that fall beyond the ‘norm’ such as those who would marry an animal (as has been done in other countries), those who would marry an animated character (also done in another country), people who would marry trees and or other inanimate objects and I will include those who would marry members of their own gender.

      Such joining’s are not fundamental right, nor are they rights which should be granted. There are other unions that would be more acceptable such as domestic partnerships, commitment ceremonies and the concept of marriage free all which would be acceptable to many who defend marriage.

      Jan 7, 2010 at 6:31 pm · @ReplyReply to this comment ·
    • Wen
      Wen

      Hey Michael Letterman, please name a country where there is gay marriage ánd where people can marry an animal.

      Jan 7, 2010 at 7:09 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Wen: I love the way you carefully selected just those two items. Hopefully no country at present will allow people to marry an animal and I wish there was no country that allowed gay marriage either but several Latin countries have as has Mexico. My point has nothing to do with other countries though. It is all about what we can expect here in America if we stray from the correct path.

      Jan 8, 2010 at 4:48 pm · @ReplyReply to this comment ·
    • Wen
      Wen

      Michael Letterman, I took one example to show your erroneous ways of thinking.

      Jan 8, 2010 at 6:33 pm · @ReplyReply to this comment ·
    • Michael Letterman
      Michael Letterman

      Wen: Then you failed on two accounts.

      Wen stated:”Hey Michael Letterman, please name a country where there is gay marriage and where people can marry an animal.”

      So in effect he asked:
      1) a country where there is gay marriage
      and
      2) where people can marry an animal.

      I did my best to answer your question and I suspect there is a bit of a language barrier if you could not tell that you asked two questions.

      Jan 8, 2010 at 7:08 pm · @ReplyReply to this comment ·

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