[Vision2020] Judge OKs same-sex marriage in California

Sat Aug 14 14:55:16 PDT 2010

Greetings:

Here is a NYTimes editorial that argues that it would be a shame if Judge Walker's decision is not appealed through the federal courts and the Supremes.

Nick

August 13, 2010

In Defense of Marriage

On Wednesday, unless there is an order from the United States Court of Appeals for the Ninth Circuit, gay and lesbian couples in California once again will be able to marry. Like other couples around the world, they will be able to pledge to support each other, buy some dishes, raise families, argue about the bills, maybe sit on a park bench years from now and chuckle at the hysterical old claims that their lives together would destroy the institution of marriage.

All of this used to be possible in California but was made illegal in 2008, when 52 percent of the voters passed Proposition 8, prohibiting same-sex marriage. On Aug. 4, Judge Vaughn Walker of Federal District Court ruled that the proposition violated the Constitution’s guarantee of equal protection and due process of law, and, on Thursday, he said marriages could resume beginning Wednesday.

Because of Judge Walker’s firmly reasoned and occasionally soaring decision earlier this month, there was no reason to continue the prohibition. After a full-blown trial that gave opponents every opportunity to prove the harm caused by same-sex marriage, the court found that it caused no harm whatsoever to the state or society. But substantial harm was caused to gay and lesbian couples by depriving them of their constitutional rights.

There already are 18,000 same-sex couples in the state who were married before Proposition 8 was passed, and their presence does not seem to have damaged relationships between men and women. The State of California filed a brief with the court urging that marriages be allowed to resume immediately, making it clear that it would impose no burden and would, in fact, serve the public interest.

The most intriguing part of the judge’s order on Thursday suggested that there may be no one with the proper standing to appeal the case to the Ninth Circuit. The State of California refused to defend Proposition 8 at the trial, so Judge Walker allowed a group called ProtectMarriage.com, which organized the campaign for the proposition, to present the defense. But he said the group has been unable to show that it was harmed by his ruling, and that ordinarily only the state could appeal a case like this. Because the state supports his ruling and won’t appeal it, he said there may be no appellate hearing.

That question is up to Ninth Circuit. But even if Judge Walker’s ruling stands in California, it would be a shame if the case stopped there. Only through appeals, first at the Ninth Circuit and, ultimately, the Supreme Court, is there a chance that the principles set down by Judge Walker will apply to the entire country. Yes, there is the possibility that the judgment could be struck down, but it is sometimes necessary to take big risks to get important results, as the lawyers behind this lawsuit have demonstrated. If same-sex couples in California have the constitutional right to be part of the mainstream of society, then so should every couple in America.

---- Andreas Schou <ophite at gmail.com> wrote: 
> Ted --
> 
> My suspicion is that it's unlikely to end up in the Supreme Court.
> Article III allows only actual cases or controversies to come before
> the court. California, the defendant, has declined to appeal the
> ruling. Absent some sort of real, defined harm, here's no precedent
> which would allow the proponent of a ballot measure to step into the
> state's shoes and continue on with an appeal. There's actually a good
> deal of contrary precedent.
> 
> I seriously doubt NOM's ability to find a representative plaintiff
> who's been "harmed," in any real sense, by gay marriage. Consequently,
> I suspect the decision will have to wait for the next gay marriage ban
> to fall, and for the state to intentionally carry it to the Supreme
> Court.
> 
> -- ACS
> 
> On Thu, Aug 12, 2010 at 3:40 PM, Ted Moffett <starbliss at gmail.com> wrote:
> > This is likely to end up in the SCOTUS, and Justice Kennedy likely to be the
> > deciding vote.  But if Justice Ginsberg, the oldest SCOTUS member, steps
> > down, her replacement could be a factor.  Consider thiese quotes from the
> > article below:
> >
> > "Kennedy's name appears nowhere in a trial judge's 138-page opinion issued
> > Wednesday striking down California's Proposition 8 ban on gay marriages.
> > Nonetheless, Kennedy's previous decisions were cited 16 times in U.S.
> > District Judge Vaughn Walker's ruling that Proposition 8 violates the
> > Constitution.
> >
> > Walker's citations to Kennedy foreshadow the highly anticipated showdown
> > that's to come when the Supreme Court finally considers gay marriage."
> >
> > And:
> >
> > "Kennedy's opinion "dismantles the structure of constitutional law that has
> > permitted a distinction to be made between heterosexual and homosexual
> > unions, insofar as formal recognition in marriage is concerned," Justice
> > Antonin Scalia wrote in a 2003 dissent."
> >
> > http://www.statesman.com/news/nation/justice-kennedys-the-one-to-watch-on-gay-847477.html
> >
> > From website above:
> >
> > Justice Kennedy's the one to watch on gay marriage
> >
> > California's recently overturned ban on same-sex marriages likely to go to a
> > sharply divided Supreme Court.
> >
> > By Michael Doyle
> >
> > MCCLATCHY NEWSPAPERS
> >
> > Published: 8:08 p.m. Saturday, Aug. 7, 2010
> >
> > WASHINGTON — Supreme Court Justice Anthony Kennedy appears likely to
> > eventually tackle California's gay marriage ban and his role could be
> > crucial.
> >
> > Kennedy's name appears nowhere in a trial judge's 138-page opinion issued
> > Wednesday striking down California's Proposition 8 ban on gay marriages.
> > Nonetheless, Kennedy's previous decisions were cited 16 times in U.S.
> > District Judge Vaughn Walker's ruling that Proposition 8 violates the
> > Constitution.
> >
> > Walker's citations to Kennedy foreshadow the highly anticipated showdown
> > that's to come when the Supreme Court finally considers gay marriage.
> >
> > Four conservative justices on the Supreme Court are widely considered to be
> > unlikely to support a decision recognizing a constitutional right of gays to
> > marry.
> >
> > Four others, including newly sworn-in Justice Elena Kagan, seem more likely
> > to agree with Walker that the Constitution doesn't allow states to treat gay
> > couples differently from heterosexual ones, analysts said.
> >
> > The deciding vote, most analysts agree, likely will belong to Kennedy.
> >
> > "It seems the issue will clearly be close, and on close cases (Kennedy)
> > tends to be in the middle," said Carl Tobias, a University of Richmond law
> > professor.
> >
> > Kennedy wrote gay-friendly opinions in a 1996 case striking down a Colorado
> > ballot measure and a 2003 case striking down a Texas law that banned gay
> > sodomy.
> >
> > Kennedy hasn't tipped his hand on gay marriage, stressing that the 2003
> > Texas decision "does not involve whether the government must give formal
> > recognition to any relationship that homosexual persons seek to enter."
> >
> > However, some hope — and some fear — that Kennedy's sympathies are already
> > clear.
> >
> > Kennedy's opinion "dismantles the structure of constitutional law that has
> > permitted a distinction to be made between heterosexual and homosexual
> > unions, insofar as formal recognition in marriage is concerned," Justice
> > Antonin Scalia wrote in a 2003 dissent.
> >
> > The Supreme Court could look different by the time the gay marriage case
> > arrives, though. Some intervening steps, not all of them predictable, also
> > may shape the case's outcome.
> >
> > A randomly selected three-judge panel of the San Francisco-based 9th U.S.
> > Circuit Court of Appeals will review Walker's decision first. Eleven of the
> > 9th Circuit judges then could review the appellate panel's work, in turn, in
> > what's called an en banc decision.
> >
> > The appellate reasoning and the resulting posture of the case could nudge
> > justices one way or another, though the Supreme Court never hesitates to
> > show who's boss. During the past two years, the Supreme Court reversed 9th
> > Circuit decisions in 22 out of 31 cases.
> >
> > The 9th Circuit's briefing schedule released Thursday calls for all briefs
> > to be submitted by late December. Oral arguments will come later.
> >
> > Because the Supreme Court typically finishes setting its docket in
> > mid-January, this means there won't be time to hear any appeal before the
> > term ends next June.
> >
> > "We're talking the 2011 term," Tobias said.
> >
> > By 2011, there might be new Supreme Court justices whose views will shape
> > the outcome.
> >
> > The court's oldest member now is 77-year-old Justice Ruth Bader Ginsburg,
> > who has battled cancer several times. Although she hasn't hinted at
> > retiring, her departure during President Barack Obama's term could affect
> > the gay marriage case.
> >
> > For instance: If Democrats lose some Senate seats this November, as appears
> > likely, their weaker grip on the Senate could make Obama more likely to pick
> > a moderate replacement for the Supreme Court rather than an avowed liberal.
> >
> > Still, for the foreseeable future, Kennedy is likely to be the go-to
> > justice.
> >
> > During the court's 2009-10 term, Kennedy was in the majority 82 percent of
> > the time, according to a tally by the nonpartisan SCOTUSblog.com. This was
> > more than any other justice. Kennedy has a tradition of being part of the
> > court's winning 5-4 majority more than any other justice, though he wasn't
> > in the previous term.
> >
> > Additional material from the Los Angeles Times.
> >
> > -------------------------------------------
> >
> > Vision2020 Post: Ted Moffett
> >
> > On Thu, Aug 12, 2010 at 1:33 PM, Tom Hansen <thansen at moscow.com> wrote:
> >>
> >> Courtesy of CNN at:
> >>
> >>
> >>
> >>
> >> http://www.cnn.com/2010/US/08/12/california.same.sex.ruling/index.html?hpt=T2
> >>
> >>
> >>
> >> ------------------------------------------------------------------------
> >>
> >>
> >>
> >> Judge gives the green light for same-sex marriage in California
> >>
> >>
> >>
> >> Los Angeles, California (CNN) -- A federal judge ruled on Thursday to
> >> allow same-sex couples to marry in California, starting on August 18,
> >> handing another big victory to supporters of gay rights in a case that both
> >> sides say will likely end up in the U.S. Supreme Court.
> >>
> >>
> >>
> >> Last week, Chief U.S. District Judge Vaughn Walker in San Francisco struck
> >> down the state's ban on same-sex marriage, ruling that voter-approved
> >> Proposition 8 violates the U.S. Constitution. Walker had issued a temporary
> >> stay on his decision, which on Thursday he said he would lift.
> >>
> >>
> >>
> >> The high-profile case is being watched closely by supporters and opponents
> >> of same-sex marriage, as many say it will make its way to the U.S. Supreme
> >> Court. If it does, the case could result in a landmark decision on whether
> >> people in the United States are allowed to marry people of the same sex.
> >>
> >>
> >>
> >> Same-sex marriage is legal in five U.S. states and in the District of
> >> Columbia, while civil unions are permitted in New Jersey. The five states
> >> are Massachusetts, Connecticut, Vermont, Iowa and New Hampshire.
> >>
> >>
> >>
> >> ------------------------------------------------------------------------
> >>
> >>
> >>
> >> Seeya round town, Moscow.
> >>
> >>
> >>
> >> Tom Hansen
> >>
> >> Moscow, Idaho
> >>
> >>
> >>
> >> "If I wanted to overhear every tedious scrap of brain static rattling
> >> around in your head, I'd read your blog."
> >>
> >>
> >>
> >> - Bill Maher
> >>
> >>
> >
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