Prop. 8: Gay-marriage ban unconstitutional, court rules

[FromTheAshes777]

cnn.com/2012/02/07/justice/california-proposition-8/index.html?hpt=hp_t2

San Francisco (CNN) – A three-judge panel with the 9th U.S. Circuit Court of Appeals is expected to rule Tuesday on whether California’s same-sex marriage ban violates the Constitution.

After a two-week trial in 2010, Federal District Court Judge Vaughn Walker – who has since retired – overturned the voter-approved measure known as Proposition 8, saying gay and lesbian couples were unfairly denied the right to marry.

Walker’s decision came into question because he was gay and in a long-term relationship. The court is being asked to invalidate the ruling.

District Court Judge James Ware has previously upheld the ruling.

“It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings,” Ware ruled in June.

Ware, based in San Francisco, backed the original ruling by Walker that the ban on same-sex marriage in the state was unconstitutional – a violation of equal protection.

The 9th Circuit, in a hearing just over a year ago, indicated it was inclined to toss out Prop 8.

The state’s high court had allowed same-sex marriages in California, but then Proposition 8 passed with 52% of the vote in 2008. Prior to Walker’s ruling, the California Supreme Court allowed that initiative to stand, saying it represented the will of the people.

Six states currently grant same-sex marriage licenses – New York, Massachusetts, Connecticut, Iowa, Vermont and New Hampshire. The District of Columbia also does.

Five additional states recognize civil unions, providing state-level spousal rights to same-sex couples. They are Hawaii, Delaware, New Jersey, Illinois and Rhode Island.

Both sides of the dispute acknowledge the issue of same sex-marriage is likely headed to the U.S. Supreme Court, perhaps within the coming year.

 

[NewEnglandPriest]

Do Catholic judges have to recuse themselves because an issue may be related to a Church teaching? Not that I’m aware of, so I fail to see why this judge should have recused himself.

 

[FromTheAshes777]

Does anyone care to speculate what may happen if this does get to the Supreme Court this year? I’m not as educated as I should be on how this all works unfortunately.

 

[Callum]

I really dislike judicial activism.

We elect legislator to make our laws - judges should only uphold them.

I suspect this is more of a problem in the UK, where the High Court routinely rules against the government, frequently on Human Rights issues.

 

[TMC]

The opinion should cover three things: 1) recusal by Judge Walker, 2) standing of the current appellants, and 3) the validity of Prop 8 itself.

1 is a no-brainer, zero chance they will find that Walker should have recused himself. The court asked the CA supreme court for help on the standing issue, and the CA SC said they found standing under CA law. Given that, it seems to me there is little chance they will find no standing. Which leaves the real question - #3.

The three judge board is made up of a one of the more liberal appealate judges in the US, a moderate, and a conservative (who happens to be a Mormon). There was a sort-of hint yesterday that the opinion will be unanimous, which would be remarkable. FWIW, I expect a very narrowly written opinion upholding Walker’s opinion. By very narrow, I mean something that would apply only to California’s situation, and not an opinion that suggests that gay marriage must be made legal in other states. The opinion is due out in a couple hours, so we will know soon.

 

[Nimzovik]

Should not Atheist Judges recuse themselves as the the religion of Atheism precludes their objectivity?

 

[mlund]

I fully expect the 9th Circus to support gay-“marriage” in California without any regard for the law. It will then go to the Supreme Court where Prop 8 will be upheld as the 9th Circuit Court of Appeals continues its tradition of being the most over-turned Circuit Court of the United States.

• Marty Lund

 

[Digitonomy]

9th Circuit Court of Appeals continues its tradition of being the most over-turned Circuit Court of the United States.- Marty Lund

Of course, there is a chance the 9th Circuit could instead continue its tradition of being the most upheld circuit court, as it was last year (and is tied so far this year).

While everyone is talking about the Supreme Court, I think there’s at least as good a chance that the 9th Circuit will agree to rehear the case en banc.

 

[TMC]

The opinion should cover three things: 1) recusal by Judge Walker, 2) standing of the current appellants, and 3) the validity of Prop 8 itself.

1 is a no-brainer, zero chance they will find that Walker should have recused himself. The court asked the CA supreme court for help on the standing issue, and the CA SC said they found standing under CA law. Given that, it seems to me there is little chance they will find no standing. Which leaves the real question - #3.

The three judge board is made up of a one of the more liberal appealate judges in the US, a moderate, and a conservative (who happens to be a Mormon). There was a sort-of hint yesterday that the opinion will be unanimous, which would be remarkable. FWIW, I expect a very narrowly written opinion upholding Walker’s opinion. By very narrow, I mean something that would apply only to California’s situation, and not an opinion that suggests that gay marriage must be made legal in other states. The opinion is due out in a couple hours, so we will know soon.

The decision is out. Prop 8 unanimously struck down in an opinion that appears (at a very quick look) to be limited to the CA facts and not applicable to the issue in other states.

 

[Digitonomy]

A federal appeals court Tuesday struck down California’s ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.

The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.

The ruling was narrow and likely to be limited to California.

Source

The explicit scope of this ruling may be limited to Prop 8, but I don’t think it would be hard for activists in other states within the 9th Circuit to argue that the reasoning applies to laws in their own states.

 

[mlund]

Um, no. They upheld Judge Walker’s insane pronouncements that the 14th Amendment (Federal Constitution) prohibits excluding same-sex pairings from getting marriage licenses.

Next stop is the full Circuit Court appeal, followed by the Supreme Court. Assuming Obama doesn’t get to do any more damage there the 9th Circuit will be rebuked again - albeit probably not in a signature 9-0 reversal humiliation they are known for receiving.

• Marty Lund

 

[ValPal]

This is a clear example that the U.S. is not a democracy. In a democracy, this would be a dead issue, since the majority of people have spoken on the matter. The minority seek to overturn the opinion of the majority.

 

[mlund]

It really doesn’t matter. This will be appealed to the full circuit, upheld, and then appealed to the Supreme Court for a real fight. Assuming President Obama isn’t allowed to do any more damage on that level the 9th Circuit will be handed yet another rebuke.

Judge Walker’s ruling rested entirely on his interpretation that the 14th Amendment (Federal Constitution) prohibits excluding same-sex couples from marriage licenses.

If that’s true in California it is true across the whole union. Qualifications to the contrary are just dissembling.

• Marty Lund

 

[maplebug55]

I am in support of Prop 8, I feel that marriage should be between one man and one woman.
What will happen to our country?

 

[garn9173]

Considering the 9th Circuit is the most liberal circuit in the country, this is no big surprise. This is the same circuit that ruled the phrase “Under God” of the Pledge was an evil thing.

 

[TMC]

The decision is out. Prop 8 unanimously struck down in an opinion that appears (at a very quick look) to be limited to the CA facts and not applicable to the issue in other states.

I see now that Justice Smith dissented in part. I don’t have time right now to carefully the 113pg opinion to figure out the scope of his dissent, but the opinion was not 100% unanimous.

 

[gilliam]

The Court essentially used a bootstrap argument — that since there was a prior right to samesex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 — the taking away of that right without justification violated the 14th Amendment. Judge N.R. Smith filed a 35 page dissent from this finding.

The Court also held that (i) the supporters of Prop. 8 did have standing to defend the law, deferring to the Certified Opinion of the California Supreme Court, and (ii) trial court Judge Walker did not have to recuse himself based on his own longterm samesex relationship. These two findings were unanimous.

From: professor William Jacobson at Legal Insurrection.

legalinsurrection.com/2012/02/9th-circuit-holds-prop-8-violates-14th-amendment/

Link to the full decision

Yes, this decision was expected
Yes, this is the most liberal circuit
Yes, now that standing is established, it is likely to be heard at the SCOTUS
No, gay marriages will probably not begin again until after the SCOTUS rules (probably next year)
Yes, if Obama gets to replace a conservative justice this year or early next, it will likely have an deciding effect on this case

 

[Publisher]

This is a clear example that the U.S. is not a democracy. In a democracy, this would be a dead issue, since the majority of people have spoken on the matter. The minority seek to overturn the opinion of the majority.

The “majority” do not decide to whom civil rights are to be extended to…and while you may not believe this is a civil rights issue…the courts do…one cannot discriminate and pass laws that curb the civil rights of individual groups or persons.

 

[Anathama_Sit]

So please put this simply because the article is a bit too much for me to try to comprehend when scanning it.

Is Prop. 8 rules for or against?

 

[mlund]

The “majority” do not decide to whom civil rights are to be extended to

Actually, that’s exactly how a Democracy works.

As a U.S. citizen I happen to live in a Constitutional Democratic Republic.

Through Democratic elections we establish Representation which then creates and ratifies Laws - of which the Constitution is the highest.

The Constitution is subject to repeal and amendment by the same Representative Democratic process.

So indeed, a sufficient majority DOES define what constitutes “Civil Rights” (note the word “civil” there) and therefor where, when, why, and to whom they apply.

…and while you may not believe this is a civil rights issue…the courts do

Um, actually a few crazy yahoos think so, not “the courts” as a body. Prior to a grotesque violation of jurisprudence in a split decision in Massachusetts there was no “civil rights issue” of same-sex “marriage” in the courts. There was no such legal right and there is not now and nor will there ever be any Moral or Natural Right to such.

one cannot discriminate and pass laws that curb the civil rights of individual groups.

To the contrary - under the 14th Amendment we can not create or modify laws to create privileges (marriage is a license in civil law and a privilege) for groups that do not meet the criteria of Public Interest in their conduct.

It is a violate of Equal Protection to give everyone named “Ralph” $1,000,000 because being named “Ralph” does not meet any Public Interest.

The Public Interest met in civil marriage is procreation and generational succession in a particular environment (mother and father) that best contributes on an institutional level to the upbringing of subsequent generations of civil society.

Same-sex couples do not meet this Public Interest in any way that distinguishes them from siblings or business partners or any other class of partnership that is already excluded from the privileges of Civil Marriage.

So same-sex “marriage” judicial mandates and laws actually violate the 14th Amendment and the Civil Rights of all U.S. Citizens - Q.E.D.

• Marty Lund