Proposition Eight has been overturned. I will have more once I read the decision, and I am deathly afraid of what the dogmatically conservative Roberts Court will do, but this is a good day nonetheless. The state cannot treat people differently unless there is a very good reason to do so. “We like tradition” is not a good reason – -it is the same reason given for Jim Crow and Catholics Need Not Apply. Nor is “the people voted”. Democratic process cannot deny fundamental rights to people or the system is not really democratic. There is no reason beyond fear or hatred of homosexuals for this discriminatory measure.
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leanleft
Kevin
tgirsch
Kevin T. Keith
Judd
Kevin, we finally agree! The (temporary, at least) end of the embarrassing farce that is Prop 8 is worth celebrating. For the life of me I have never been able to understand how people ostensibly on my side of the ideological divide can claim to be Constitutional Textualists or Strict Constructionists and fail so epically when it comes to applying the Equal Protection clause. It does not read “equal protection of the laws unless someone is doing something which makes you feel uncomfortable.”
I don’t think this will get really hot and heavy for awhile yet. This ruling is certain to be appealed to a three judge panel at the Ninth Circus, the loser will undoubtedly demand an en banc hearing with the entire Court and from there I can’t imagine the Supremes not granting cert. The wheels of justice being what they are I figure both this (and the Arizona immigration law) will probably be ruled on around the summer of 2012 right smack tab in the middle of the presidential campaign.
The missiles are flying. Hallelujah!
I see Jim DeMint said this ruling was “another attempt to impose a secular immorality on the American people who keep voting to preserve traditional marriage,” and that “Traditional marriage has been the foundation of civil society for centuries and we cannot simply toss it aside to fit the political whims of liberal activists with gavels.”
Excuse me for just a moment.
*pukes*
Well, I know the next PDF I’m downloading…
For those who felt there should have been linkage in this post: http://feministing.com/2010/08/04/breaking-judge-rules-proposition-8-unconstitutional/
Judd is pretty much spot on as to the next steps. The chance of the Ninth Circuit overturning the District Court is approximately zero. Only four on SCotUS need to vote for cert, to it’s also a given. I’m less certain of the timing than Judd, but it’s a fair bet.
Now, I have a couple of concerns right off. The district applied rational-basis scrutiny, which is one of the weakest, so it would seem that applying anything stricter would have the same result, but (a) I’m surprised that they used such a weak standard, and if scotus confirms the use of that standard, that’s in itself a pretty big blow to civil rights, and (b) it’s a weak enough standard that it’s not too hard to imagine arguing that it’s been met. This is particularly plausible if Scalia writes and uses his usual bombast about what a giant leap it is to think that government has no interest in what genitals get rubbed together. While Roberts and Kennedy, unlike Scalia, feel a need to at least sound like they’re judges, they are often willing to vote with the bastard.
On the other hand, if Kennedy votes with the left on this, he can assign himself to write (Yikes, with Stevens gone, when Kennedy sides against Roberts, he gets to decide who writes for the left.), which he might even be selfish enough about to count as further inducement to side against the right.
The problem is that Kennedy writes bad law, because Kennedy is a bad writer. Which means he’s likely to either sanction the rational-basis test, or more likely he’ll muddle around what doctrine to apply, and his writings on substantive due process are also rather weak.
So, really the only hope for a real win once this hits the top is Ginsburg either convincing Kennedy to assign her to write or getting a weak ruling from Kennedy that would then be followed up in a couple years by another ass-hat law getting cert and Ginsburg writing then. And that’s even assuming Kennedy doesn’t have a fit of pique and let Roberts assign Scalia. Fuck.
Dan:
I don’t share your pessimism at SCOTUS, nor do I necessarily think Kennedy is the left’s only chance; I wouldn’t rule out Clarence Thomas just yet (who, if he joined Ginsberg, Breyer, Sotomayor and Kagan, would also assign writing for the majority and wouldn’t THAT be interesting.) Alito’s got a little bit of a libertarian streak in him, too, so I wouldn’t yet chalk him up as a sure vote for the bad guys.
Well, I haven’t yet read enough Alito to be truly certain, but given his behavior in CLSvHastings, in which he demonstrated piercing analytic acumen and social conscience of Scalia (He discarded procedures in order to give an incoherent defense of requiring a private school to fund and endorse a student group that had specifically updated its bylaws to disallow gays from speaking at their meetings, because otherwise all the poor oppressed Christians wouldn’t be allowed to be seen on campus, or something. Ginsburg beat the crap out of him and then Stevens pointed out that if he was going to pull shit out of his ass, he’d first have to learn enough to be able to find it with both hands.), I’m reasonably sure that Alito would not support marriage equality.
As for Thomas, the day that Thomas votes with the social progressives is the day I’ll go back to church and suck Ayn Rand’s cock.
So, with all due respect, you’re insane.
On the other hand, I can almost imagine Roberts actually recognizing equal protection.
Dan:
Perhaps my judgment is being colored by the fact the proper course of action is so clear that this should be a 9-0 decision.
When it comes to growing marijuana for your own use Thomas is in line with Dobby Kucinich and not social conservatives. Scalia had his full-blown conservative hypocrisy on but Thomas held the line. I think he’s more likely than not to uphold Prop 8 but I wouldn’t bet the balance of my student loans on it.
Why do you think there’s even a slight chance of Roberts being in the right on this one?
I hope Sen. Demint dies horribly in a fire. What a c***sucking louse of a man.
Alex and I were discussing it last night; we also think the SCOTUS would stick with the overturning of Prop 8 under the 14th ammendment.
Here’s a real monkey wrench: does it violate the 14th to give married people different protections than unmarried people? Thoughts?
Judd:
I think you’re misunderestimating *heh* the role of “Original Intent” in the reasoning of the Scalia/Thomas/Alito wing. The framers of the fourteenth amendment clearly didn’t intend for the amendment to apply to Teh Gays, therefore it doesn’t.
Barbie:
I got to thinking about DeMint’s comments later on and I came to the conclusion his priorities are really fucked up. He called traditional marriage “the foundation of civil society”. That title is a high honor. I would have thought “the foundation” would be something like “the rule of law and order.” If any of you married folks who read this think I’m above my pay grade being that I’m still single and talking about this then I’m happy to be corrected. It just makes more sense to me if we’re going to have a civil society that it’s more important we establish we’re not all going to try to kill each other and follow through on that than it is the government regulate the fucking we were going to do anyway.
Dan:
On further reflection, save me a spot on the pessimist bandwagon. I put on my conservative cap last night and came to the embarrassing conclusion that we could very well see a 5-4 Scalia-penned decision saying that Prop 8 does not violate the Fourteenth Amendment because homosexuals have the exact same equal protection that heterosexuals do to marry members of the opposite sex. Unless that notion is soundly defeated then I’m prepared for the 21st Century Dred Scott decision.
Judd:
I can’t see that notion being amenable to all of the conservatives on the bench because of the restrictions it would place on private lives. The founders probably didn’t think about the possibility of homosexual unions, and they probably even were opposed to homosexuality, too, however, I don’t think they intended for the government to play the role of matchmaker in defining what is and what isn’t an acceptable marital union for the people, either.
With respect to Thomas and cannabis, if I recall (I’m currently too lazy to look it up), that came down to an issue of (and here I suggest everyone unplug their irony meters) states’ rights to tell the federal DEA to fuck off, and it’s never too surprising for Thomas to be anti-fed.
So, I cede your point that Thomas can side with social progressives if his principles dictate it. I’ve said all along that Thomas is quite principled despite usually voting with the right wing of the court. On the other hand, that won’t help the opponents of Prop8 in the slightest, because it’s a state law(*), not a federal one.
As for Roberts, I would actually pretty surprised if he joined the left on this matter, but he’s the only one I can see having any chance of doing so. (I’m counting Kennedy as solidly left for this topic.) Roberts usually reminds me strongly of Rehnquist, and he seems to honestly think rule of law is important (unlike Scalia and I think Alito), and unlike Thomas is living in at least the 20th century, where the Fourteenth really does require equal protection of suspect classes. So, I think if Roberts were convinced that the correct test was strict scrutiny he’d confirm the quashing of Prop8.
Unfortunately, I’ve seen mixed reports now of whether the ruling relies on a rational basis test or strict scrutiny. I find the former implausible, but it’s what I’ve seen more reports claim. I myself have only gotten about 10 pages into the 138 page ruling.
Scalia … saying … homosexuals have the [right] to marry members of the opposite sex.**
Naw, that sounds more like Alito. You gotta grant Scalia giant brass balls that he’s trying to teabag us all with: He’ll say straight up that there’s a compelling state interest to oppress gays.
As for your observation about marriage and the foundation of civil society, I think it’s an important realization, but I also think that there’s a pretty easy explanation (which will only make you more depressed). One of the core beliefs of fundamentalist christians in the idea that their god is like the father of a family. That in itself is almost positive. The problem is that another one of their core beliefs is that the job of a father is to beat his family. As libertarians rightly point out, the ultimate basis of government is people with guns telling you want to do. This all hangs together: Fundy christians think that what trains citizens to follow the laws of the land is the early training of being beaten by their father as their mother stands by and watches.
(* There’s both a law and an amendment to the Cali. constitution, but given their insane mechanism for changing their constitution by bare majority vote, I have trouble crediting that distinction as important.)
(** I almost feel bad chopping your quote up this badly, but I don’t think I’ve changed the meaning importantly.)
Joining the Dan-Judd convo:
Up until more recent times, religion was the foundation for society. Before government laws, there were religious laws, and if you had a problem with your neighbor or your child was acting up, you probably went to the local clergy to ask for advice or ask them to settle an argument. Religion is still a way of life for people all over the world, and that’s fine and all, but it’s no longer the foundation of our society. One of the nice things about ‘Muricah is that a person can choose to live a religious lifestyle – our modern society supports that, however, we don’t condone stoning your neighbor for violating the sabbath, etc. Some religious people have difficulty making the distinction that a few of our laws are taken from older laws which have roots in religion because religion used to be the social framework, but that doesn’t mean we should be basing laws on religious diction or that our current society rests on a religious foundation. Man, a lot of people don’t grasp the difference.
I think there’s a growing amount of evidence to disprove any argument that homosexual marriages are somehow bad for society, or put society at risk in ways that heterosexual marriages are not. I think any attempts to make such an argument would ultimately lead one to claim that people should be forced to marry and mate with a member of the opposite sex. There are plenty of heterosexual couples who never marry and don’t have kids, or who don’t marry and do have kids, or who marry and divorce and inflict all kinds of emotional damage on each other and their kids; and there are plenty of homosexual couples who are together regardless of marital status and may or may not raise kids.
As far as I can tell, marriage really doesn’t factor into the success of our society anymore, but it factors into the individual’s pursuit of happiness. The theories that it is better for a child to be raised by the biological parents who are married isn’t one that can be reasonably used to support an argument against homosexual marriage. Accepting that as a reason against gay marriage, we would have to conclude that we should force individuals to marry and have children, and that no one should be allowed to divorce. While this might appeal to the biblically minded, I can’t see it passing muster in the SCOTUS.
…basing laws on religious diction…
Hehehe!
So, I’ve started reading the ruling. (PDF; there’s also a whole official site with all the documents, url in the pdf, which makes me curious what gov policy is on URIs.)
By the way, the case was brought by two same-mex couples technically against the Governator, his AG, and some other related gov’t agents. All of them except the AG immediately answered “no contest!”, and the AG officially said “Actually, you’re right, this is illegal.” So, the law enacted as a result of Proposition 8 was actually defended by the “plaintiff intervenors”, the same assholes who originally pushed the ballot question.
It turns out that for all intents and purposes, the case was decided by a pre-trial motion. The H8ers filed for summary judgement. A summary judgement means that the questions raised by the case are about what the laws are, rather than any issues of fact. When the judge denied that motion and set a date for both sides to present evidence, he doomed (and I use the word here also in its Anglo-Saxon sense) them to the pernicious effects of reality:
The H8ers even admit this. I could try to work this into some sort of clever format, but really, the comment in the ruling stands entirely on its own (citations omitted):
And it looks like the remaining 120 pages may be a bit of a slog to read, but they promise to be a pretty entertaining slog.
Damnit, I slurped in text that was a page header. s/United States District Court For the Northern District of California// in that second blockquote.
Responsible procreation? Like what Bristol Palin and Ricky Hollywood did? Christ…..
The need for responsible procreation is an argument that could be used if one wanted to force everyone into a heterosexual relationship AND mandate they procreate; I fail to grasp how it applies to this issue. Can anyone explain to me what I’m missing? I have a guess of my own as to how the need for responsible procreation necessitates a ban on gay marriage but it’s so stupid and convoluted that no adult (or even partially educated child) anywhere could think it, hence my request for a connection of the dots.
Judd, I fail to see what you fail to get here. The proponents of Prop 8 hate gays and want to oppress them; they know that lying is the most effectively way to achieve this, so they’re lying. Where’s the question?
Dan:
I understand the real reason the regressives oppose gay rights but “The Bible clearly says right here…..” isn’t going to stand up in court (for now, at least). What I’m hoping I don’t understand is the reasoning for the argument they did advance in court that led them from the “the government has a compelling need to ensure responsible procreation” to “gay marriage should be banned.” That’s not going from “A” to “B”, that’s “A” to about “E”; I want to know what “B”, “C” and “D” and were. Maybe it’s my paranoid libertarian streak but if I do understand the fundies like I think I do and we follow their argument out to all its logical conclusions then I think they’re asking for what will probably be the largest expansion of government power ever. If SCOTUS is going to take us down that road I’d at least like to know what’s coming.
So, this is awesome. Judge Walker cites Scalia in his decision in Perry:
Why Nino, my good man, you’re absolutely right! The fact that state has no place telling us that Teh Gay is evil does mean it should also be willing to recognize their marriages. Pity you tried making this as an argument why we should keep labelling them Evil.
Judd, I think you’re still making an error in thinking that there is a B, C, and D. On the other hand, once this gets to scotus, I fully expect Scalia to invent C, claim that it was right there all along, and yell at everybody else for thinking B and D still need substantiation. I’m also looking forward to seeing his attempted backflip on the above quote. I have a faint hope it’ll be enough to make Alito write instead of Scalia, and well, Alito’s just as full of bullshit and even less convincing sounding.
As a follow up to my own previous comment, two minutes searching (grep for ‘scrutiny’) shows that Walker applied strict scrutiny. Several things I’ve seen now give partial or out-of-context quotes strongly suggesting that Walker used a rational-basis test, and it’s not clear to me which of these sources actually think that’s accurate, as opposed to just failing to emphasize the context that shows Walker meant something else: The correct standard to apply is strict scrutiny (stronger than the heightened scrutiny asked for by the plaintiffs), but the law doesn’t even pass a rational-basis test!
Dan:
In something I have to admit I was embarrassed to say I hadn’t recalled until this morning, I remembered it was Kennedy who wrote the majority opinion striking down state sodomy laws in Lawrence v. Texas where Kennedy said the Texas law offered no good reason to justify intrusion into the private lives of individuals and something to the effect of consensual adult conduct is part of the liberty protected by the due process clause of the Fourteenth Amendment.
I’m starting to feel better about the chances of the right thing being done.
the case was brought by two same-mex couples
Now Mexicans aren’t allowed to marry one another?! Sheesh!
*ducks*
T:
Not if they’re here illegally and plan to start popping out anchor babies they ain’t!
I’m done reading Perry v. Schwarzenegger. It’s even better than it first sounded. The judge ruled that:
The Prop 8 supporters’ witnesses admitted to facts that almost exclusively supported Perry’s side.
California has no reason to differentiate couples on the basis of the sexes of the spouses.
Prop 8 relied on gender-essentialist beliefs that differentiate spouses on the basis of sex.
Marriage is a fundamental right, so restrictions on it must meet strict scrutiny under the Due Process Clause.
Homosexuals are a suspect class, so singling them out must meet strict scrutiny.
There is not even have a rational basis for Prop 8 to restrict homosexual marriage.
The popular vote on Prop 8 doesn’t matter, because civil rights are not subject to vote.
Prop 8 served no secular purpose and just tried to codify the supporters’ religious opinions.
Son of a bitch! My list formatting got stripped.
I would like to sacrifice a virtual goat to the admins so that they may transmute my invisible <li> tags into true flesh-and-pixel asterisks!
(I also offer my immortal soul, but I’m afraid that the lords of this realm will have to go looking for it for themselves.)