Same-Sex Marriage Update

[Corkey]

Originally Posted by SuperFemme

we are headed to a rally in a few hours.

Help!

I need sign ideas.

Equal Rights = Equal Justice

[Toughy]

Originally Posted by softness

I am crying...I am so delighted its been termed unconstitutional to deny us the benefit of marriage!Congrats to your state...

It's not really about CA. This is the Federal Courts. Should the 9th Circuit up hold Judge Walker's ruling and then SCOTUS upholds it, same-sex marriage will be legal in all 50 states.

[Soon]

[Gayla]

Originally Posted by SuperFemme

we are headed to a rally in a few hours.

Help!

I need sign ideas.

All I can come up with is -

"You Can't Ban Love" and/or
"You Can't Ban Family"

[Cyclopea]

"Love Triumphs Over H8te"

[Cyclopea]

AN ANALYSIS OF THE PROPOSITION 8 RULING

ARI EZRA WALDMAN

Judge Walker's decision runs 138 pages. It is well-reasoned, exhaustively cited and drafted with one eye on its Main Street ramifications and another eye on the judges of the Ninth Circuit Court of Appeals. In other words, this Order establishes a comprehensive factual record for review. And that, as any appellate lawyer knows, is going to be the source of our salvation or the harbinger of our defeat.

When the decision of a trial judge like Judge Walker goes up on appeal, his legal conclusions are reviewed by the appellate court de novo, or "from the beginning." That means that Judge Walker can conclude that Prop 8 violated the Equal Protection clause and the Due Process clause for this or that reason, but appellate judges are not bound by his conclusions. However, Judge Walker's factual findings -- such as the effect of same-sex marriage in Massachusetts or statistics on thriving children of same-sex couples -- must be accepted by the appellate court unless they are "clearly erroneous." A clearly erroneous finding of fact is looking up at the sky, seeing it is blue and having a weatherman tell you it's blue, but concluding that the sky is, indeed, red. We do this because it was Judge Walker who heard the evidence and evaluated the trustworthiness of the witnesses with his own two eyes.

Judge Walker's factual findings are breathtaking, if only for their sheer depth. From page 54 to 109, Judge Walker lays out his findings, eviscerates the testimony of anti-marriage equality experts and emphasizes the long list of statements where Prop 8 opponents conceded their factual case. In my years as an appellate litigator, I have never seen a factual record as detailed and well-documented as this. My compliments to Judge Walker and his clerks.

Let me highlight a few striking points here:

1. This case is about civil marriage. Religious belief has no place here.

Right off the bat, Judge Walker found that "[m]arriage in the United States has always been a civil matter" (p. 60, para. 19). The pen is indeed mightier than the sword. We watched with dismay, anger and frustration as Prop 8 supporters screamed that marriage equality laws would forces churches and synagogues to cosecrate relationships contrary to their liturgy. In one line, Judge Walker does away with this nonsense. What we are dealing with here, he states, is civil marriage. After all, it is the "[c]ivil authorities [who] may permit religious leaders to solemnize marriages but not to determine who may enter to leave a civil marriage." (p. 60, para 19). The supremacy of civil marriage takes this conversation out of the church and onto the town square.

2. Marriage is a state of commitment, not a construct in which to have children.

Just as important is Judge Walker's findings about the nature of marriage. "Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents" (p. 67, para. 34). Absent from this definition, based on extensive citations to evidence offered at trial, is marriage based on procreation or gender-specific roles. A marriage is a partnership based on deeply held emotional love and, as an institution, channels benefits to the married couple, their dependents and society at large. What's more, each of those benefits -- facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors -- exists irrespective of the gender and sexual orientation of the married couple (pp 67-71).

3. Same-sex couples are just like opposite-sex couples.

The entree to these appetizers came later. Judge Walker found that "[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love to do not differ depending on whether a couple is same-sex or opposite-sex" (p. 77, para. 48).

And on the seventh day, he rested.

Seriously, though, this profound description of equality is at the heart of the marriage equality movement. Judge Walker cites Prop 8 supporters' admissions at trial that gay partnerships are loving and commitment and that the capacity to commit and love "does not depend on the individual's sexual orientation" (p. 77, para. 48(d)). We are all the same and we all deserve to be treated as such.

4. Domestic partnerships insufficiently recognize those relationships.

Since marriage is not merely an economic union, or a procreative one, for that matter, domestic partnerships that assign certain economic benefits of marriage to nonmarried cohabitants is a separate, unequal and insufficient substitute. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States" (p. 80, para. 52).

Judge Walker recognizes that we do not want to marry the loves of our lives for the joint tax return or the propsect of doubling our wardrobes. That might be part of it, but it's not the whole story. Citing expert testimony about the cultural importance tied to marriage, Judge Walker finds that marriage is greater than the sum of the economic rights associated with it. And, since same-sex couples are no different in their love and commitment than opposite-sex couples, there seems to be no reason to exclude them from this institution.

In the end, it is hard to accept these facts and not conclude as Judge Walker did. Nothing here is clearly erroneous and any appellate court will be hard-pressed to upset any of these factual findings.

[UofMfan]

Despite the favorable ruling for same-sex couples, gay marriage will not be allowed to resume immediately. Judge Walker said he wants to decide whether his order should be suspended while the proponents of the ban pursue their appeal in the 9th U.S. Circuit Court of Appeals.

I hope he chooses to let them resume immediately.

[Rook]

I kind of like a BumperSticker I saw on the way home today

"When Religion Rules the world, we'll call it the Dark Ages"

[MsTinkerbelly]

Analyzing the Prop 8 WIN: A Few Large Points
(I want to introduce my husband, Brian Devine. He’s an attorney that practices civil litigation attorney in San Francisco. We were married back in September 2008, when marriage was legal. We are both hopeful that we’ll get to attend many more weddings. – Brian Leubitz)

By Brian Devine

Judge Vaughn Walker issued a decision today overturning Proposition 8, finding that it violates both the Due Process Clause and the Equal Protection rights in the United States Constitution. Here’s a full copy of the 138-page decision.

Most of the decision (the first 109 pages) is the “factual findings.” This is crucial, and here’s why. On appeal, Judge Walker’s conclusions of law are basically irrelevant. Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference. On the other hand, only a trial court can make factual findings. A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony. Judge Walker knows this. He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law–unlike the facts–ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court.
In a big victory for marriage equality, Judge Walker found that the “strict scrutiny” test applies to the Due Process analysis. As its name implies, this is the most stringent of the tests that can be used to determine if a law satisfies the Due Process Clause. To satisfy “strict scrutiny,” the State must show that the law is “narrowly tailored to a compelling state interest.” On the other hand, the most relaxed standard–and the one that the anti-equality crowd argued should apply–is “rational basis review.” Under “rational basis review,” the Court will uphold a discriminatory law if the State has any rational reason for having the law. Judge Walker found that the “strict scrutiny” test applies instead of the “rational basis” test because marriage is a fundamental right. When the State takes away a fundamental right, it must have a compelling reason to do so. But going even further, Judge Walker found that even if the Prop 8 proponents were right and the “rational basis” test should apply, Prop 8 still does not pass muster. Finding that Prop 8 does not even pass the “rational basis” test, Judge Walker easily found that it could not pass the compelling interest requirement of strict scrutiny.

Turning to the Equal Protection claim, Judge Walker’s analysis is essentially the same as for Due Process. First, he found it unnecessary for the Court to determine which of the three tests (rational basis, intermediate review, or strict scrutiny) should be used to conduct the Equal Proection analysis because Prop 8 cannot satisfy rational basis review, the most relaxed of these standards. Although Judge Walker finds that the evidence shows that “strict scrutiny” probably applies, he found that he did not need to reach that decision. Second, Judge Walker goes on to show in detail why each of the arguments advanced by the Intervenors fails to provide a rational basis for Proposition 8:

•Intervenors argue that maintaining the traditional notions of marriage being between a man and a woman is a rational reason for Prop 8. Judge Walker responds by citing a 1970 U.S. Supreme Court case and says: “Tradition alone, however, cannot form a rational basis for a law.” He went on to say:
Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

•Intervenors also argued that because same-sex marriage is such a sweeping social change, California has a rational basis to implement this change incrementally. In other words, it should be allowed to first offer domestic partnerships before marriage. Judge Walker rejected this argument, finding that “The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to ntegrate same-sex couples into marriage.
•Losing touch with reality, Intervenors’ next absurd argument is that the state has a rational basis to reserve marriage for opposite-sex couples because they’re better parents and the state should promote procreation within an opposite-sex marriage. Judge Walker easily dismisses this drivel by finding that the evidence proves: “(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.
•Going further afield into crazyland, Intervenors next argue that the state has a rational basis in protecting bigots rights to take away rights from people they don’t like. Holding in his laughter, Walker responds: “Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” Can we get a Hallelujah!
•Intervenors next argue that there’s a rational basis in calling different things by different names. They argue that it would be an administrative burden to have the same name for both opposite and same-sex unions. And imagine the chaos that would ensue if someone said that they were married and you later discovered they were a GAY! Judge Walker responds: “Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples.”
After rejecting each of the Intervenor’s arguments as to why a rational basis exists for Prop 8, Judge Walker went on to find that in the absence of a rational basis, it is safe to assume that Prop 8 exists because some people just don’t like gays and lesbians:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief hat a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is ot a proper basis on which to legislate.

One quote from the decision that really sums up the feelings of many who believe in equality is:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” (Quoting a 1943 U.S. Supreme Court case)

The long and well-reasoned decision concludes with this short and sweet determination that the couples who challenged Proposition 8 are correct:

REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.”

The elephant in the room is now the question of a stay. Yesterday, in anticipation of losing, the anti-equality Intervenors filed a motion asking the Court to stay its decision pending appeal. In other words, they argue that since an appeal is inevitable, the Judge should not enforce his ruling until after the inevitable appeal is exhausted. Judge Walker has not yet ruled on that motion. Even if Judge Walker denies the stay, the Intervenors will ask the Ninth Circuit Court of Appeal to issue an immediate stay of the decision. In a case like this, a stay is very likely. It remains to be seen whether Judge Walker will grant the stay or if that issue will be decided by the Ninth Circuit.

*UPDATE* CNN is reporting that Judge Walker issued a stay. But there is no Stay Order in the Court’s docket as of this writing, only the motion by the Intervenors. I suspect CNN may have gotten ahead of itself and is publishing unconfirmed rumors. That being said, I think a stay is likely at some point (probably by the Ninth Circuit.)

*UPDATE* The Court just entered an Order shortening time for Intervenors’ motion to stay to be heard. Plaintiffs’ must file their opposition to the Intervenor’s motion to stay Friday, August 6th. The Court will decide the motion on the papers without a hearing. I suspect an order will issue very shortly after the opposition is filed, probably by Monday or Tuesday. In the interim (i.e. in the next few days until the Court rules on the Motion to Stay), the entry of the Judgment is temporarily stayed


Bolded is the part I found mst interesting....

[Cyclopea]

Originally Posted by Rook

I kind of like a BumperSticker I saw on the way home today

"When Religion Rules the world, we'll call it the Dark Ages"

I like the one that says something like:

"A recent California vote found that there is a 52% chance you're an idiot"

[iamkeri1]

I am so happy for all you lovely Californians!!!!!!!

I want to be happy for all of us in the USA. May this decision soon be supported at the supreme court (US) level so that we all are free.

I will be there with you in spirit waving my freak flag high.
Smooches,
Keri

:fireworks :

[Corkey]

http://www.foxnews.com/opinion/2010/...tion-decision/

Go vote and show Faux nuts that we support the decision.

[Soon]

[Corkey]

Just found out you can vote often.......clickety click........Againnnnnn!

[Soon]

How Will the Supreme Court Rule on Same-Sex Marriage?

Adam Winkler
Professor at UCLA School of Law



Wednesday's landmark decision by a federal court that California's ban on same-sex marriage violates the U.S. Constitution begins to pave the way for an eventual Supreme Court decision on marriage equality. How will the Supreme Court rule?

When the California case was first filed by the all-star legal team of Ted Olson -- who argued Bush v. Gore for George W. Bush and then became his Solicitor General -- and David Boies -- who, ironically, represented Al Gore in the disputed presidential contest -- the leading gay rights organizations, joined by the ACLU, came out against the lawsuit. They shared Olson and Boies's goal of securing marriage equality, of course, but they feared what the conservative Roberts Court might do. A strong Supreme Court decision against gay marriage would create a precedent that would take decades to undo. With our society moving generally in the direction of more tolerance for gays and lesbians, activists wanted to wait a few more years before bringing a case to the high court.

But gay rights activists may have been too pessimistic about the current Supreme Court. It's true that the Roberts Court is conservative and that several Justices are unlikely to be open-minded about same-sex marriage, including the four most right-leaning Justices: Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito. On the other side of the bench, there are four Justices likely to be favorable to Olson and Boies's argument that the denial of marriage rights to same-sex couples violates the Constitution: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (assuming she is confirmed).

As usual in the Supreme Court these days, the swing vote belongs to Anthony Kennedy. And there are several reasons to believe that Kennedy, though conservative on many issues, will vote with the liberals on this one. The Supreme Court has issued two major decisions dealing with gay rights over the past 15 years. Both decisions came out strongly in favor of gay rights -- and both were written by Justice Kennedy.

In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do."

These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage.

Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government. This has led him to vote in ways that liberals love and conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-versa -- such as his vote against government regulation of corporate speech. But it bodes well for the liberals in the same-sex marriage case.

Of course, no one can really predict what the Supreme Court will do. The same-sex marriage case will take years to reach the high court and, in the meantime, there may be turnover among the Justices. But so long as the question of marriage equality turns on Justice Kennedy's vote, Olson and Boies -- and those in the gay and lesbian community who are depending on them to win this case -- are in good hands.

[atomiczombie]

Originally Posted by Corkey

Just found out you can vote often.......clickety click........Againnnnnn!

Voting...voting...voting.....

[Gayla]

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples," Walker wrote.

[betenoire]

Congratulations, California.

I know it feels shitty that you all are having to do this state by state, but we had to do it province by province and I promise it works. I hate that it's taking this long, believe me. But you'll all get there.

Edited to add: The funniest comment I've read on the subject so far is "Somewhere in Alaska Sarah Palin is angrily reading the wrong words off of her hand."

[SuperFemme]

san luis obispo, ca.

we'll be on KSBY news at ten or eleven tonight, because I yelled "interview a family for gods sake"....and they did. Us. It was mostly our 17 year old daughter saying how happy today is, and when asked what she has to say to the people who feel sorry for her for having two moms? She said she feels sorry that they don't have the kind of love our family does: unconditional.

sigh.

[blackboot]

I just can't stop smiling. This is such a happy day.