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

[Pork_Roll]

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.

The fact that only 52% of the people supported marriage is depressing. We have already lost the war if we have to argue this kind of thing in court. Makes you realize that once you separate sex from its procreative function with widespread contraception use, all sorts of evils and distortions will degrade society.

Proof positive that the catholic church is the only church that faithfully proclaims the laws of God.

 

[OrdinaryMelkite]

Oh yes, it can be changed over time. That’s what amendments are for. But one can’t simply decide that after a certain period of time, the constitution or some part of it simply means somethiing different than what it meant when written!

Because if that’s the case, the Constitution is simply as meaningless as a blank piece of paper. The words mean nothing. Judges can simply draw out of their own minds whatever they wish it to be.

If the nation wants gay marriage in the constitution, put it there the correct way–by amendment. If the nation wants abortion as a right, don’t just draw it out of nebulous penumbras, legislate it.

:clapping::bounce::dancing:

 

[OrdinaryMelkite]

The majority’s opinion is very poorly written and does not adhere to a rigorous constitutional analysis. In contrast the dissenting opinion is very thorough and utilizies a very detailed review of U.S. Supreme Court decisions to support the conclusion that Prop 8 does not violate the 14th Amendment. I believe that the Supreme Court will uphold Prop 8.

As an aside it really doesn’t matter too much for the citizens in California as the reason for the ruling is due to the fact that it was possible for homosexuals to marry, and claim to be married, prior to the encatment of Prop 8. All that Prop 8 does is limit a homosexual coulple’s use of the word, “married”. Therefore if gay marriage isn’t legal in another state, then the issue raise by this ruling in other states is severally limited.

I agree with this.

 

[lucky4075]

Sigh, this is how the moral fabric of our society is destroyed- to the applause of the liberals and those people who blindly follow them and call them ‘courageous/revolutionary.’ The founding fathers would be absolutely ashamed of what people have made the US into. God will have His vengeance.

 

[blaskoman]

It’s inevitable that a gay couple will request to be married in a catholic church. And when the catholic church refuses, the couple can claim the church is violating their constituational rights. What happens then?? Will the government revoke the catholic church’s tax exempt status? (a bit of topic)

 

[Langdell]

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.

Eugene Volokh, a (non-Catholic) constitutional-law scholar, has a good analysis posted on his blog: volokh.com/2012/02/07/thoughts-on-the-ninth-circuits-same-sex-marriage-decision/

Some excerpts:

1. This is going up to the Supreme Court. I suspect that the backers of Prop. 8 won’t even ask for en banc review by the Ninth Circuit, since they’re unlikely to win there. Depending on how quickly they file their petition for certiorari, the Court will either decide in late September to hear the case, or will decide this late this Spring. Either way, the Court will hear the case next Term, though probably not before the election. Though, for reasons I describe below, the decision only applies to states, like California, that recognized civil unions but not same-sex marriages, it’s still a conclusion of national importance, one on which the Supreme Court is likely want to speak. And even if, as described below, the decision is limited just to California, I think the Court will still think it’s important for it to resolve the question.

1. The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label “marriage” is no longer rationally related to a legitimate government interest. The court did not decide whether the general constitutional right to marry that applies to same-sex couples, or whether opposite-sex-only recognition rules are generally unconstitutional on the grounds that discrimination based on sexual orientation requires “strict scrutiny” or “intermediate scrutiny” and fails that scrutiny. It only applied the rational basis test, and held that the regime of civil unions but not same-sex marriage lacks a rational basis.

Note that, if the decision is upheld, this means that the arguments that civil unions are a “slippery slope” to same-sex marriage were absolutely right: The recognition of civil unions changed the legal landscape in a way that made it more likely for courts to also conclude that same-sex marriage must be recognized, too.

 

[Digitonomy]

1. This is going up to the Supreme Court. I suspect that the backers of Prop. 8 won’t even ask for en banc review by the Ninth Circuit, since they’re unlikely to win there…And even if, as described below, the decision is limited just to California, I think the Court will still think it’s important for it to resolve the question.

If I were a strategist for the Prop 8 team, I would go en banc. It’s possible the outcome would be different. Even if not, it’s likely that the dissent would be even meatier with several judges contributing - giving SCOTUS more to work with in overturning it.

As to whether the Supreme Court will choose to hear the case, I’m not as certain. Given the narrow scope of this ruling, and consequently the lack of conflicting rulings from other circuit courts, I don’t think it’s quite as good a national issue - unless the justices want to pry it open to include issues the ruling didn’t decide, as sometimes happens. It’s also uncertain what the outcome would be. I think this issue, more than most, is one on which justices would like to see their own viewpoints prevail, and that may affect whether they vote to grant certiorari. The four conservative justices may choose not to do so because they’re not sure how Kennedy will vote on a case where his ruling from years ago was cited so heavily. On the other hand, one or more of the liberal justices may gamble for exactly that reason. And it’s possible Kennedy will want a chance to correct what he may see as misuse or misunderstanding of his past ruling.

 

[Geist]

It’s inevitable that a gay couple will request to be married in a catholic church. And when the catholic church refuses, the couple can claim the church is violating their constituational rights. What happens then?? Will the government revoke the catholic church’s tax exempt status? (a bit of topic)

All civil union states have conscience clauses that prohibit legal action being taken against religious institutions that refuse to marry gays.

 

[scipio337]

Eugene Volokh, a (non-Catholic) constitutional-law scholar, has a good analysis posted on his blog: volokh.com/2012/02/07/thoughts-on-the-ninth-circuits-same-sex-marriage-decision/

Some excerpts:

…2. The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label “marriage” is no longer rationally related to a legitimate government interest…

As I pointed out over a decade ago, the fight isn’t about “equal protection”, at all. It’s defacto societal acceptance.

 

[Cat]

You think today was tough, watch the rest of the 2012 election cycle. In addition to the probable Obama victory, several states will pass pro marriage equality laws. Only a matter of time before gay marriage is legal nationwide.

Church are doing a horrible job explaining to the secular world what is wrong with it. In jurisdictions where it’s legal, there’s no evidence that the fears opponents have are coming true (marrying pets, poligamy, etc.)

Personally I think we’re fighting the wrong battles here and should focus our political efforts on poverty where 99% of Americans would agree with us and follow our lead.

I think many churches, Catholic and Protestant, are trying their best to teach traditional Christian doctrine about homosexuality.

The problem is that in most workplaces, a person can be fired for voicing anything that can be construed as “bigotry” or “homophobic.”

I work in a hospital. According to the policies, most terminations must be preceded by a series of warnings, suspensions, re-education of the employee (e.g., anger mgmt classes, or substance abuse programs), etc.

But there is one thing that we can be fired ON THE SPOT for, with no warning–bigotry. Even if something we say or do is merely perceived by someone else as bigotry and we are “creating a hostile environment,” we can be fired for it.

So if I were to join in a lunchroom conversation about gay marriage, and in response to a question from someone, I explained the Catholic Church teaching about homosexuality, and someone in the room perceived my comments as “bigotry” and felt “harrassed” or “uncomfortable,” or felt that the environment was “hostile,” I could be fired that same day, in that same hour, with no warning, no suspension, and no re-education opportunties.

All my plans for paying off various debts and providing for my old age would be down the toilet. This would be devastating to our family–I really can’t afford to lose my job, especially if my words probably wouldn’t make the slightest difference–the people in the lunchroom would simply denounce the Catholic Church teachings and call me a bigot.

This type of thing is true in many workplaces. It is virtually impossible to talk about Christian teachings concerning sexuality because of the very real threat of being fired. Some Christians might say, “So what?” But when a parent, especially a father, is supporting a family with a wife and several children, they can’t just purposely lose a job for idealism.

This kind of thing also happens in volunteer situations. A very happy and productive volunteer with many friends can lose it all by simply voicing the truth about homosexuality. They will be perceived as a bigot or homophobic, and this is unacceptable in many social settings. The person will be asked to not return, and their “friends” will stop calling them. This is pretty painful.

I don’t know what the answer is. I agree that perhaps the best thing to do is concentrate on being good and kind, and doing good works among the poor and misfortunate. In other words, putting I Peter 3: 15 and 16 into action.

 

[Skeptic92]

All civil union states have conscience clauses that prohibit legal action being taken against religious institutions that refuse to marry gays.

As an outsider looking into America, I think the HHS Mandate proves what Obama thinks of the Conscience Clause, how long do you think it will be before the Administration in America openly goes after Catholics…

 

[JimG]

The fact that only 52% of the people supported marriage is depressing. We have already lost the war if we have to argue this kind of thing in court. Makes you realize that once you separate sex from its procreative function with widespread contraception use, all sorts of evils and distortions will degrade society.

Proof positive that the catholic church is the only church that faithfully proclaims the laws of God.

This is exactly right. The process of the disintegration of marriage began with the widespread acceptance and use of artificial birth control. Every social malady that Pope Paul VI warned about in Humanae Vitae in 1968 has come to pass with a vengeance, so much so that those who have have been born since then take the current state of affairs as normal. In fact we are in an advanced state of societal decline.

Once sex was separated from procreation, marriage was doomed. “Gay marriage” was inevitable. Notice what has happened since the widespread rejection of Humanae Vitae: an explosion in pre-marital and extra-marital sex, out of wedlock births, destroyed families dependent on government, absent fathers, legalization of abortion throughout all nine months of preganancy, cohabitation, devaluation of women, an explosion of STD’s, and now gay marriage, which is not marriage at all, since the parties are incapable of the marital act.

It was organizations such as Planned Parenthood which jumped on the birth control bandwagon early, in effect promoting sex without consequences. But in fact, the consequences have been disastrous.

 

[Leon_Bloy]

It’s the Ninth Circus Court; California voters approved prop 8.

Amen. There are a lot of good people out there. The 9th Circuit Court is straight-up out to lunch with liberal activism.

 

[mattyc4]

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

Actually, this is partially true. Judge Walker certainly primarily used the 14th amendment as the vehicle for his decision, along with the fact that the proponents of Prop 8 could not produce any credible evidence supporting their side.

The 9th circuit primarily used Romer as the vehicle for their decision. This was actually a rather impressive, moderate decision as this was decided on incredibly narrow legal grounds. This DID NOT interpret whether gay marriage should be allowed under the US Constitution. What this DID decide, was that since gay men and women had the right to marry for 143 days and were then stripped from that right, that this case could only be legally decided on those narrow grounds.

For those interested, what this decision basically did, is as follows:

As gay men and women had the right to marry and were then stripped from that right–and only that right(adoption, legal services, education, etc for same sex couples remained the same) through prop 8. The judges, even the dissenting judge, came to the conclusion, that after defusing the four main arguments the proponents offered as justification for prop 8, that only animus remained. It is illegal to strip just one quasi-suspect group from rights that everyone else has based primarily on animus.
Those 4 arguments:

1. Denying same-sex couples the right to marriage encourages opposite sex couples to marry. (this was a rather ridiculous argument)
2. Children were better off with a father and a mother. (this was not relevant as prop 8 left all legal and childbearing rules affecting prop 8 in place and stripped only the right to marry. In short, they decided Prop 8 had no effect on this and hence made no judgement value.
3. That California wanted to “proceed with caution” regarding same-sex marriage. (this was discounted as same sex marriage was constitutionally prohibited–not stayed, or temporarily disallowed.)
4. To return to the traditional time, where marriage was limited to opposite sex adults. (this is illegal, as you cannot strip away rights solely because they are new.)

After crushing a few more weak legal arguments, the majority concluded that animus was the driving force behind this proposition. Basically, moral disapproval of a minority is not, in and of itself, a good enough reason to single them out and discriminate against them.

The dissenting judge agreed that none of the four above arguments seemed rationale or valid. He disagreed, however, by saying that even though the science and arguments presented in favor of prop 8 were laughingly ridiculous, the people of California could legitimately have believed them. He also did conclude that a portion of the proposition was primarily animus.

This decision was remarkable in the fact that it seemed incredibly narrow and written almost exclusively using the same arguments of Justice Kennedy, the swing vote, utilized in Romer.

Best,

Matt

 

[mattyc4]

As I pointed out over a decade ago, the fight isn’t about “equal protection”, at all. It’s defacto societal acceptance.

This is half correct, IMO. It is about legal protections AND the societal acceptance that comes from marriage.

 

[scipio337]

This is half correct, IMO. It is about legal protections AND the societal acceptance that comes from marriage.

So, after having the legal protections and priveledges provided by marriage through domestic partnerships in 1999, the CA gay community has sought societal acceptance through the force of the judicial branch, no?

 

[Dawnia]

What this DID decide, was that since gay men and women had the right to marry for 143 days and were then stripped from that right, that this case could only be legally decided on those narrow grounds.

Meaning - Politicians can change whatever they want regardless of the people’s wishes and the people have no recourse.

I am only about half way through the opinion, but I really dislike homosexual marriage opinons. The amount of legal gymnastics to make their opinion work is exhausting. They could have shortened it by about 100 pages if they would have just written, “because I said so, that’s why”.

If their decision stands, I really hate to see who’s next up to bat for arguing discrimination. In one of my law classes in college, I read that 7 year olds were allowed to be married in NY under common law. Do we now have to back track to allow it again because it’s age discrimination if we don’t? :whacky:

 

[JimG]

If their decision stands, I really hate to see who’s next up to bat for arguing discrimination. In one of my law classes in college, I read that 7 year olds were allowed to be married in NY under common law. Do we now have to back track to allow it again because it’s age discrimination if we don’t? :whacky:

Seems like the reasoning would be similar. Seven year olds once had the right to marry, and then it was taken away by age of consent laws, and now they no longer have that right. So they have been denied a right which they once had. Age discrimination against the young. I’m sure that NAMBLA would like to run with that argument. Maybe it will get the chance in the near future.

It’s been awhile since I read “Alice in Wonderland” but this sounds similar to her experiences.

 

[mattyc4]

So, after having the legal protections and priveledges provided by marriage through domestic partnerships in 1999, the CA gay community has sought societal acceptance through the force of the judicial branch, no?

Actually, they took the eminently reasonable route of appealing to the judiciary, claiming discrimination. They won the legal right to marry–and then it was stripped from them and only them. This is patently illegal and clearly shows animus.

Part of the beauty of the US constitution is that it allows people to appeal decisions that seem unjust. You may not like that they appealed to the judiciary, but they are certainly allowed to do so–and you should be thankful that they can. You never know when a majority is going to try to trample over YOUR rights. This is a necessary balance in our constitutional system.

Matt

 

[mattyc4]

Meaning - Politicians can change whatever they want regardless of the people’s wishes and the people have no recourse.

I am only about half way through the opinion, but I really dislike homosexual marriage opinons. The amount of legal gymnastics to make their opinion work is exhausting. They could have shortened it by about 100 pages if they would have just written, “because I said so, that’s why”.

If their decision stands, I really hate to see who’s next up to bat for arguing discrimination. In one of my law classes in college, I read that 7 year olds were allowed to be married in NY under common law. Do we now have to back track to allow it again because it’s age discrimination if we don’t? :whacky:

Actually–all people have legal recourse. They appeal to the judiciary. You may not like the fact that they did so, but they are definitely allowed to do so.

There were virtually no legal gymnastics in this decision. It was actually a great surprise that this decision was as narrow as it was. The decision was incredibly logical, coherent, and straight-forward.

What they did decide, is that the proponents of proposition 8 had virtually no credible evidence supporting their side–besides of course “i don’t like gay people, and i say they should not get married, that’s why”.

The simple fact that you disagree with their decision does not mean it was a “bad” decision.

The people do not get to decide on civil rights–the courts have long been the defender of suspect classes.