In the past weeks there were two major court decisions, not handed down by the US Supreme Court, both of which struck down laws, one law enacted by the Arizona State Legislature and one by the California voters through the initiative system. Both were met by cries of overthrowing the will of the people, judicial activism, unelected judges, and more.
The cry from the right on the issue of Proposition 8 could be heard loudly and immediately. The words often rarely varied. “This decision, whatever its final resolution, serves as an undeniable reminder of the power of Federal judges. A single unelected judge nullified the will of the voters of California as expressed through the electoral process,” wrote Albert Mohler.
The problem with the argument is that it is actually ill-conceived. No conservative would argue that the people or the legislature could enact a law that banned people from attending church on Sundays. They would balk similarly at a whole host of laws that prevented people from speaking in public places denouncing government actions. They would praise a court that struck down such a law.
Given that the question is not whether the court has the right to strike down a popular vote of the people or of a legislative body, but rather a matter of which rights cannot be subjected to a vote. The dispute in American Politics takes place on the margins, where people disagree as to what is or is not a fundamental right.
Those on the right argue that the the constitution is our guide and what it is says, is what goes. But clearly a 200-plus-year-old document has not anticipated the rise of new technology and new social conventions. What might have been equal protection under the law in 1793 might not be in 2010.
What is perhaps most interesting to me is that, while Judge Walker writing for the US District Court of Northern California, ruled that the law passed by the California voters violated the Equal Protection Clause of the US Constitution, it also violated the Due Process Clause of the Constitution.
Here I think is the problem that conservatives down the line may face here, if they believe the Supreme Court will automatically overturn the decision. Judge Walker argued that the right to marry is not a “new right” as the right likes to argue, but instead it is seeking the same right that others have.
He writes, “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”
Proposition 8 is analyzed as an infringement of a fundamental right and thus invokes strict scrutiny for a Due Process analysis. As a legal analyst noted, “To overcome strict scrutiny, there needs to be a compelling governmental interest.”
Judge Walker along those lines attempts to posit possible compelling governmental interests to deny a fundamental right.
“Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting opposite-sex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest,” he writes.
And then debunks, “The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. 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.”
This is why Judge Walker adds, “Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause. Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
“The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Judge Walker continued.
“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Judge Walker wrote. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”
“Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional,” he wrote.
You can argue all you want about judicial activism and will of the people, but the question here is really quite simple: Is the right to marriage a fundamental right and is there a compelling government interest in preventing that right?
Incidentally, not only is it strong legal reasoning, but it also defeats one of the more ridiculous, but nevertheless common, strawman arguments that allowing gay marriage legalization leads to the slippery slope of promoting marriage with children or animals. In those cases there would be a clear and compelling interest of the state to step in and prevent such unions, even if they could establish that they might have a right under the equal protection clause to enter into such unions.
Likewise, the government would probably even be able to defeat such claims that laws against polygamy violate both the Equal Protection Clause and also the First Amendment’s protection of the right to practice religion, by showing the compelling government interest to protect its citizens from the kinds of tyrannical relationships that generally ensue in such relationships.
Clearly, the case will take its time getting the to the Supreme Court. However, if the court is similarly composed when it does, it comes down really to whether Judge Anthony Kennedy agrees with Judge Walker’s decision, and the Judge’s decision is pretty powerful and straightforward. It is notable that most of the responses have resorted to partisan and ideological rhetoric rather than a strong legal refutation of Judge Walker’s case.
I have said many times in the past that same-sex marriage is inevitable. It is inevitable because of the strong demographic and generational component that young people, even more conservative young people, simply do not have the same views and fears of same-sex relationships that older generations do. It would be very ironic however, if the genesis of that realization occurred due to the fallout and the legal interpretations of an effort that sought to prevent same-sex marriages from occurring.
—David M. Greenwald reporting
Its also notable that many right-wingers have toned down the rhetoric on gay marriage and it doesn’t seem to be as divisive and issue today as it was even a few years ago. Why? A few possible reasons:
1. Its the economy stupid; this election cycle is focused on the economy and republicans may see fighting gay marriage as a loser at the polls.
2. The hypocrisy factor–how many gay republican office holders, staffers, and relatives of prominent republicans are gay? A lot.
3. THe general public is more and more accepting of gays, democrats and republicans. Younger people are the most accepting.
4. Their is a libertarian streak in the tea-bagger movement. I have always been skeptical about whether most tea-baggers are really libertarian, but some are. Libertarians tend to be more pro-gay marriage. The magazine The Economist came out in favor of gay marriage over a decade ago and argued it was good for society.
The downside here is that if the Supremes go against gay marriage it will be many years till this issue is revisited by the Supreme Court.
The CA Supreme Court recognized, in its first decision, that the issue was the denial of the use of the word, “marriage” to distinguish man-woman unions from same-sex unions as well as unequal SUBSTANTIVE rights. They did reject that the societal/cultural weight of the traditional definition of marriage was sufficient to deny the demand for its redefinition but only in a close 3-2 decision. They did recognize the significance of the word issue by offering the remedy to the Legislature of removing the word “marriage” from their government documents and replacing it with “civil-union”. IMO, contrary to Judge Walker’s opinion, denial of the use of a word does not rise to the level of strict scrutiny. Judge Walker’s quoted “side-comments’ that to deny same-sex couples the right to be included in the definition of “marriage” automatically means that societal opinion is holding this group to be inferior is not only his own speculation but doesn’t appear to recognize that society’s opinions are not the province of his court.
Civil Unions are entitled to ALL the substantive civil rights of Marriage Unions. Challenging any perceived denial of these SUBTANTIIVE civil rights
is the province of the courts.
Dr. Wu: I just think that it’s just not quite as scary to people as it was before.
Dr Wu: “Their is a libertarian streak in the tea-bagger movement”
Since you have the Dr. preceding your name, therefore you must be learned, I’ll take that “tea-bagger” comment as a slip of the keyboard and give you the benefit of doubt that you meant to write “Tea Party movement”.
The opinion floating around the judicial community is that those appealing Judge Walker’s ruling will be denied standing and the US Supreme Court will let the lower courts’ rulings stand… leaving intact and unchallenged the laws and constitutional amendments defining marriage as between a man and a woman that exist now in 40+ States.
dmg: “Those on the right argue that the the constitution is our guide and what it is says, is what goes. But clearly a 200-plus-year-old document has not anticipated the rise of new technology and new social conventions. What might have been equal protection under the law in 1793 might not be in 2010.”
This is an argument over the definition of “marriage”, and the question: “Is it necessary for states to redefine the term “marriage” to include gay marriage to achieve equal protection and due process rights for all citizens?” If the answer is “no”, bc states can create civil unions that supposedly offer its citizens equal protection and due process, then the states MUST ensure that a civil union does provide equal protection and due process.
It is one thing to say social mores and technology have outstripped the underlying meaning of the constitution, which should be “reinterpreted” to fit today’s current society. That can be a slippery slope. It has allowed pornography to become “art”, cow dung on canvas to become “art”, strip dancing to become “art”. Some of us fervently believe that some judges have left their common sense at the court house door in their “new interpretations” of constitutional law… And quite frankly if the founding fathers could see us now, I believe they would be rolling over in their graves in indignation, notwithstanding the fact that they were guilty themselves of some pretty rotten “interpretations of the law”, e.g. only white men had the right to vote.
In short, the pendulum swings back and forth, and law is a very fluid thing… but be careful how you newly “interpret” the Constitution…it may have unintended consequences…
Note: art – and the right for it not to be censured as obscene…
[quote]This is an argument over the definition of “marriage”, and the question: “Is it necessary for states to redefine the term “marriage” to include gay marriage to achieve equal protection and due process rights for all citizens?” If the answer is “no”, bc states can create civil unions that supposedly offer its citizens equal protection and due process, then the states MUST ensure that a civil union does provide equal protection and due process. [/quote]
Ironically if the court ruled that way, it probably be more devastating to the institution of marriage than allowing gays in.
I think the very fact that those on the right argue for the exclusivity of marriage necessarily implies that marriage offers something that civil union does not and from that you still get into the equal protection problem.
“And quite frankly if the founding fathers could see us now, I believe they would be rolling over in their graves in indignation, notwithstanding the fact that they were guilty themselves of some pretty rotten “interpretations of the law”, e.g. only white men had the right to vote. “
I’m not sure they would be. In fact, I think they would be stunned by how much their document has survived and evolved.
“In short, the pendulum swings back and forth, and law is a very fluid thing… but be careful how you newly “interpret” the Constitution…it may have unintended consequences… “
I’m perfectly comfortable with that.
dmg: “I’m perfectly comfortable with that.”
You are perfectly comfortable with unintended consequences? Unobstructed/unfettered porn over the internet has led to all sorts of pedophilia…think about it.
“Unobstructed/unfettered porn over the internet has led to all sorts of pedophilia… “
I don’t think you could possibly prove that.
“Unobstructed/unfettered porn over the internet has led to all sorts of pedophilia…think about it. “
I’m not sure exactly your point here. Pedophilia is already and remains illegal. Are you objecting to the internet, that’s what has made it accessible. I’m not in favor of getting rid of the internet just because it facilitates sexual predators and hate groups.
ref the title of this article: Tell that to people the DA calls gang members. They have their rights taken away and you don’t even have to commit a crime, all you have to do is be seen with another gang member and then you are classified by the DA as a “Gang Associate”. Wonder if classified gang members are allowed to marry?
Greenwald wrote:[quote]Pedophilia is already and remains illegal.[/quote]
It’s illegal to be a pedophile, but not an addict or a gangster?
I didn’t know that.
That one makes no sense.
Food for thought (can’t imagine it would come to this, but):
You say that ‘fundamental rights’ can’t be abridged by a vote. A law was passed in California to deny marriage to same sex couples. It was overturned as being in conflict with the state constitution. A state constitutional amendment was enacted, now overturned as being in conflict with the US constitution.
Are you saying that the people, directly, and/or thru their elected representatives CANNOT vote to change any relevant provisions of the US constitution to prohibit same sex marriage?
I’m saying that the state constitution cannot be amended to be in conflict with the US constitution and abridge fundamental rights.
Thanks for the clarification. On that issue, as you have stated it, we are in complete agreement. However, we will need to wait and see if higher courts agree with the current opinion, as rendered. If it was “slam-dunk obvious” that there is a US constitution conflict, I wouldn’t have expected this judge to “stay” his own ruling. But then again, I don’t pretend to be an expert in law.
I happen to agree with Judge Walker. But to claim that his decision is anything other than a political call based on his personal bias is, frankly, charmingly naive.
At some point the supreme court may write a 164 page opinion, full of expert testimony and citations, that concludes that life begins at inception rather than at birth, and that accordingly abortion is illegal as it violates a constitutional right to life. I doubt that pro-choice people would buy the kind of arguments under that scenario that are being used to justify Walker’s decision.
If we face it honestly then we see that the courts in this country have become just another political body. They still pretend to base their decisions on laws and constitution, but that pretense is increasingly discounted.
“If we face it honestly then we see that the courts in this country have become just another political body. They still pretend to base their decisions on laws and constitution, but that pretense is increasingly discounted.”
Exactly, any judge can twist their interpretation of the law to fit their political agenda. If they want a certain ruling they can always find a way to come to that conclusion.
No offense JR and Rusty, but I think you are being a bit dramatic when you say that the courts in this country have “become” just another political body. Are you conveniently ignoring things like Marbury v. Madison? I don’t think there’s ever been a time when the court wasn’t political. You get two people into a room and they have different interpretations as to what the constitution, laws, and case law says. That’s the nature of interpretation. Courts have always meandered depending on who has appointed the justices, that is why appointments have always been a big deal.
I hope that any future appeals are rejected and we can get on with other issues.I don’t know why we can’t all just say, “Mazel Tov” and lead a good life.
from the Washington Post today….”because the judge who issued the ruling is openly gay..”
If the above is true, Judge Walker was probably not the best Federal Judge choice to rule on the constitutionality of Prop 8
So Davisite, by that logic is a black man not the best Federal Judge choice to rule on the constitutionality of civil rights legislation? Is a Christian Judge not the best choice either to rule on the constitutionality of Prop 8 either? Who can by your estimation rule on certain issue.
David….your “logic” escapes me here. In making new law on controversial issues, the public perception that personal issues and bias are influencing the sole judge who is making the judicial call potentially compromises its public acceptance and sense of legitimacy.
I don’t agree. Would it be tainted that a black man would rule on a civil rights case? What about a Christian ruling on a prop 8 case? There’s a reason why we have layers of review, but my reading of his decision is that it was a fairly strong one.
We are human. We have bias, based on our education, life experiences, spirituality, etc., etc., etc….
Except for some certain types of film, there is no black & white (and before someone accuses me of being a racist on this blog, I’m talking analogy)…
This piece, David, should have the headline that CA voters cannot have the ‘right’ to supersede the US constitution…
We need to make decisions, and move on, but we need to be open about our bias and acknowledge [absent a belief in a supreme being — another matter] that the “Truth” is either a matter of popular vote, and/or a political fiat. We do not vote for Justices (except to confirm, extend terms), and they are human (and, often political and/or self-serving), also… no stronger or weaker than the rest of us…
We need to live with one another, and not solely rely on “the law” to do so…
Would it be tainted that a black man would rule on a civil rights case? What about a Christian ruling on a prop 8 case? There’s a reason why we have layers of review, but my reading of his decision is that it was a fairly strong one.
Or should any Supreme Court Justice who cast a vote for president in 2000 have recused him/herself of weighing in on Bush v. Gore?
I believe that most of the members of the Supreme Court are “openly straight” so perhaps they should recuse themselves.
“Ironically if the court ruled that way, it probably be more devastating to the institution of marriage than allowing gays in.”
“I think the very fact that those on the right argue for the exclusivity of marriage necessarily implies that marriage offers something that civil union does not and from that you still get into the equal protection problem.”
David… your replies above, IMO, reflect passionate commitment but are uncharacteristically “weak”.
In what way would giving Civil Unions and Marriage Unions equal substantive rights devastate the institution of marriage?
By choosing the word “offers” , you predetermine the equal protection argument in your favor. The majority of of those opposing same-sex marriage support equal substantive rights for civil unions and take the position that marriage ,as defined by our society/culture for as far back as we can know, MEANS something, not OFFERS something that same-sex unions do not. The meaning of words are important.
Dr, Wu says: “I believe that most of the members of the Supreme Court are “openly straight” so perhaps they should recuse themselves.”
A good point, Dr. Wu and demonstrates the problem when the court attempts to go beyond protecting substantive civil rights and considers redefining the meaning of marriage for our society.
davisite,
“from the Washington Post today….’because the judge who issued the ruling is openly gay..’
If the above is true, Judge Walker was probably not the best Federal Judge choice to rule on the constitutionality of Prop 8″
LOL @ your reasoning.
davisite,
“A good point, Dr. Wu and demonstrates the problem when the court attempts to go beyond protecting substantive civil rights and considers redefining the meaning of marriage for our society.”
Yes, a good point indeed. Is it the legal right to marry in and of itself not ‘substantive?’ If your constitutionally protected right to marry the opposite sex were removed, would that be a minor issue in your opinion? Would it be bothersome if the state disallowed a non-white from marrying a white?
Your sentiments regarding the substance of this issue fail to consider the effects of such a decision. In other words, when a law stipulates that this group of people are now to be considered as equal (ie same-sex and opposite-sex couples), which is a right that is constitutionally protected right, public opinion tends to follow. If upheld, this decision will have a tremendously positive effect on our country.
Maybe it is the “ripple effect” that you are affraid of?
dmg: “erm: “Unobstructed/unfettered porn over the internet has led to all sorts of pedophilia…think about it. ”
I’m not sure exactly your point here. Pedophilia is already and remains illegal. Are you objecting to the internet, that’s what has made it accessible. I’m not in favor of getting rid of the internet just because it facilitates sexual predators and hate groups.
Let me lay out my thinking on this issue for you more clearly. Art has been defined very broadly by the court over the years, to include things like pornography, dung on canvas, stripping, etc. In other words, porn has now become “protected” and cannot be censured legally, whereas obscenity can be censured, e.g. child porn. The unintended consequences of such a broad legal interpretation of art has been the proliferation of porn over the internet, a general decline in ethical standards with respect to sexual activity. So young girls are now lured into making porn videos posted to the internet because it is only “art” after all. Many of those young girls are underage, and sucked into prostitution and other illicit sexual activity. Another part of this phenomenon is posting sexual activity with underage girls to cell phones – where 17 year old boys are ending up as convicted sexual offenders when having sex with 15 year olds.
I strongly believe the courts having so broadly defined art to include pornography (and I’m talking about hard core porn) has been a very damaging thing to our ethical standards and morality in this country when it comes to the issue of sexual activity – and has had some very inintended and unfortunate consequences. Because the movies, television, magazines are so replete with explicit sexual activity dubbed “art”, kids are engaging in sex as casually as a handshake. This leads to adults who don’t commit to a relationship because they have had so many previous sexual encounters at so young an age.
So this is all by way of saying that overly broad constitutional “interpretations” can have unintended consequences that can be very unsettling and detrimental to society. Judges need to be extremely careful when making their rulings, and think through the possible ramifications for the future…
ERM,
“This leads to adults who don’t commit to a relationship because they have had so many previous sexual encounters at so young an age.”
One’s past sexual experiences and sheer number of sexual partners at a ‘young age’ predetermines one’s monogamous future? I don’t think so.
ERM: If your child pornography example is suppose to give an example of a slippery slope, I’m losing how that example is relevant to same-sex marriage. What kind of “slippery slope” is relevant to legalized same-sex marriage? And how would those concerns be different from ones raised at one time about mixed-race marriages?
Superfluous Man… LOL is not a particularly persuasive counter-argument.
As to what constitutes a substantive civil right,your examples of equating denial to marry someone of the opposite sex or because of racial difference with denial of the ability to redefine the meaning of marriage misses the mark as only the first two are real and tangible phenomena,i.e.substantive.
ERM,One culture’s pornography is another culture’s art and literature. Take for example the Kama Sutra or Shunga. My grandmother would blush at reading the “Song of Solomon.” If the word “sex” was vocalized in her presence, she would throw her apron over her face and run from the room. Capt. Billy’s Whiz Bang and The Police Gazette would have been quickly tossed into the woodstove if she found them in her house. Her puritanical values did not prevent, but in fact led, to two of her daughters being seduced and impregnated by men of dubious character as a result of their ignorance, and a third who married only when she found a man incapable of intimate physicality. I can assure you that paedophilia existed long before the internet or any sort of mass distribution. All of this is irrelevant to the human rights issue of the Judge’s ruling.
sm: “One’s past sexual experiences and sheer number of sexual partners at a ‘young age’ predetermines one’s monogamous future? I don’t think so.”
You don’t think that having many sex partners prior to marriage makes it more likely someone who has been unrestrained in the sexual arena is more likely to be unfaithful when married? And that someone how has abstained from sexual activity until they are married is more likely to remain faithful while married? Statistics show that those who live together prior to marriage (don’t make a true commitment to each other) are more likely to divorce than those who do not live together prior to being married.
wdf1: “ERM: If your child pornography example is suppose to give an example of a slippery slope, I’m losing how that example is relevant to same-sex marriage.”
The pornography example was only used to explain that when courts embrace overly broad “interpretations” of the constitution (such as porn is “art”, essentially redefining what “art” means), to take into account new social mores or new technologies, it can have some very negative consequences. Will the reinterpretation of “marriage” to include same sex couples have a detrimental effect on society? I don’t know (don’t have a crystal ball).
Rather I just have this uncomfortable overall feeling that our moral institutions in general are being undermined at every turn in an attempt to destroy us from within. Cultures are being demonized and pitted against one another to create divisiveness – Christians vs gays; Christians vs Muslims; Muslims vs Jews; religion vs the state; left vs right; pro-life vs pro-abortion. This contempt of other people’s points of view/difference of opinion is breeding extreme intolerance, which is not good…
“After the World War II, the divorce rate in the United States suddenly increased and reached a peak from where it declined for some period. In the 1960s, it increased at a slow speed and this speed further increased in the 1970s. During the 1980s, the divorce rate had a more or less constant value and in the 1990s it dropped slightly.”
The divorce rate has continued declining slowly and steadily over the last few years. The biggest factor appears to be that people are delaying when they marry for the first time.
[url]http://www.edivorcepapers.com/divorce-statistics/divorce-statistics-in-america.html[/url]
Cultures are being demonized and pitted against one another to create divisiveness – Christians vs gays; Christians vs Muslims; Muslims vs Jews; religion vs the state; left vs right; pro-life vs pro-abortion. This contempt of other people’s points of view/difference of opinion is breeding extreme intolerance, which is not good…
The labels you use are the more obvious ones, but mask what I think is really going on. Saying “Christians vs. gas” ignores the fact that there are plenty of Christian-based churches that accept gay couples, and of course other churches/denominations that don’t (Mormons and Catholics being the most prominant in politics). It is ultra-orthodox fundamentalist Muslims that are the bigger worry to U.S. & European interests.
davisite,
“LOL is not a particularly persuasive counter-argument.”
Fair enough, but you do see how deeply flawed the reasoning behind the: ‘gay jurists shouldn’t be ruling on matters pertaining to gay issues…because gays will put their “gay agenda/gay bias” before the law, facts, etc,’ argument, right?
“As to what constitutes a substantive civil right,your examples of equating denial to marry someone of the opposite sex or because of racial difference with denial of the ability to redefine the meaning of marriage misses the mark as only the first two are real and tangible phenomena,i.e.substantive.”
Only the first two are substantive civil rights, which two? I’m not following you here.
“You don’t think that having many sex partners prior to marriage makes it more likely someone who has been unrestrained in the sexual arena is more likely to be unfaithful when married”
Personally, no I don’t. What figure corresponds with “many?” You’re associating past sexual behavior, as a teen or youth, with emotional maturity, desire to commit to a relationship and fidelity down the line, as an adult. I just don’t see that as being very sound.
I don’t think that someone who had “many” sexual partners is less likely to seek and maintain healthy and faithful relationships. I also don’t think that someone who abstained from sexual acts will necessarily be less likely to have a failed relationship or become unfaithful.
“Statistics show that those who live together prior to marriage (don’t make a true commitment to each other) are more likely to divorce than those who do not live together prior to being married.”
I’ll take you at your word that that’s the case, but what does this have to do with having many sexual partners and monogamy? FWIW, I would NEVER marry someone I had not previously lived with.
“Only the first two are substantive civil rights, which two? I’m not following you here.”
Your example of denying the right to marry those of opposite sex and denying right to marry those of different racial background. These two are substantive, real and tangible denials as opposed to denying the right to redefine what the word,”marriage” means.
“but you do see how deeply flawed the reasoning behind the: ‘gay jurists shouldn’t be ruling on matters pertaining to gay issues…”
Superfluous Man… I was talking about the potential negative public PERCEPTION of having a sole gay jurist(Judge Walker) making the call on the constitutionality of Prop 8. In this particular case, I was troubled by Judge Walker’s quoted side-comments concerning his belief that same-sex civil unions, whatever the equality of rights with marriage, still relegates civil unions to a socially(not legal) “inferior” status. The question then arises, how much did his desire to alter his perception of societal opinion play in his ruling?
This is just another case of judge shopping. That’s what our system has come down to. Find the right judge for whatever cause you’re promoting and file a case in their district and you most likely will come out a winner. I’m conservative and not really for gay marriage but it’s not that much of a big deal to me either. There’s bigger problems to be addressed, for instance the bankrupting of America by Obama.
I’m failing to understand your point about “Judge” shopping. The bottom line is that the case has been appealed and will eventually be settled in the SCOTUS and most likely by Anthony Kennedy.
“I’m failing to understand your point about “Judge” shopping.”
Do you think it was an accident that this case was filed in a gay judge’s district?
But yes, Kennedy will make the final decision and I predict he’ll uphold Walker’s decision.
davisite,
“Your example of denying the right to marry those of opposite sex and denying right to marry those of different racial background. These two are substantive, real and tangible denials as opposed to denying the right to redefine what the word,”marriage” means.”
Is it a matter of just redefining a word or about denying same-sex couples a basic right afforded to opposite-sex couples, with no real compelling reason as to why? How is denying this right not real and tangible? I do not make the distinction between legally disallowing interracial marriage/opposite-sex marriage and same-sex marriage. It’s all wrong in my opinion.
“I was talking about the potential negative public PERCEPTION of having a sole gay jurist(Judge Walker) making the call on the constitutionality of Prop 8.”
My apologies, it sounded as though you were espousing that tired belief (re: gay judge shouldn’t be deciding this issue.)
“I was troubled by Judge Walker’s quoted side-comments concerning his belief that same-sex civil unions, whatever the equality of rights with marriage, still relegates civil unions to a socially(not legal) “inferior” status. The question then arises, how much did his desire to alter his perception of societal opinion play in his ruling?”
Admittedly, I have not read the entire ruling, but it sounds like you think portions of his decision was supported by ‘societal opinion’ and his own personal beliefs, as opposed to law, facts, etc. Is that the case?
rusty,
“This is just another case of judge shopping”
Judge was selected randomly, no one had the opportunity to seek out a gay or lesbian judge.
“There’s bigger problems to be addressed, for instance the bankrupting of America by Obama.”
Yes, ALL of our national debt is due to the policies of the Obama administration. I’m sure you were yelling at the top of your lungs when other presidents rang up the national debt. Hey, did you support the invasion and ungoing war in Iraq and the Bush tax cuts that coincided with the war? How has that worked out, any additional and unnecesaary debt there?
Blame Obama, fine, but please don’t try to put this ALL off on him, it’s intellectually dishonest.
“Blame Obama, fine, but please don’t try to put this ALL off on him, it’s intellectually dishonest.”
No, the debt is not all Obama’s, who said it was? But he’s most certainly putting fuel on the fire at a pace never seen before in the history of this country.
The total United States debt under President Barack Obama is poised to explode past the point where it “exceeds the value of the nation’s annual economic output. Total federal government debt rose past $13 trillion for the first time in June 2010 and is on track to surpass U.S. Gross Domestic Product by the year 2012, according to projections just issued by the International Monetary Fund.
Under Obama, the new spending along with the projected tax increases that will occur when he allows the Bush tax cuts to expire will lead to a decline in future federal revenues, making the new total debt–nearly half of which has been amassed under the current president alone–something that may handicap the U.S. economy for at least a generation.
rusty,
“Do you think it was an accident that this case was filed in a gay judge’s district?”
Was it an “accident?” Are you implying that there was an ulterior motive behind the complaint being filed in that district?
Was it even well known that Judge Walker was gay prior to the filing of the complaint? BTW, it’s not as though it’s HIS district, per se. The case was filed in the US District Court for the Northern District of California, of which Judge Walker is one of a number of judges assigned to hear cases that are filed. In CA, there are a total of four US District Courts.
Where do the plaintiffs reside, Bay Area…then that may explain why the case was filed in the district court that their county falls under (US District Court for the District of Northern California.)
As I mentioned before, Walker didn’t have the option of knowingly selecting specific cases. I have not heard anywhere that this district court does not randomly issue or select cases.
“No, the debt is not all Obama’s, who said it was? But he’s most certainly putting fuel on the fire at a pace never seen before in the history of this country.”
I hate getting into side-conversations, but this is simply not true. Both in terms of real inflation adjusted dollars and percentage of the GDP, Obama’s is not a pace never seen before in the history of this country.
“No, the debt is not all Obama’s, who said it was?”
So when you asserted “for instance the bankrupting of America by Obama” you just failed to mention all the other elected officials’ terrible decisions and policies that got us to the brink of utter disaster? Bankrupting America, BY OBAMA, really, acting alone and without the assistance of presidents past?
I just wonder how loud the tea partiers and conservatives yelled when the dude in the WH was a Republican…and piling on the debt and expanding government.
Re: screening of ballot initiatives
Seems like many state initiatives would benefit from more judicial review/input; and then possibly modified to remove constitutional conflicts or possible objections, before they are put up for a vote.
But I guess this might slow down the initiative process too much?
Don’t forget the slide into massive debt and massive bailouts started under BushCo, based on policies of Bush and prior administrations (Republican & Democrat).
Seems like Obama-man has mainly been continuing policies put in place by BushCo (war, bailouts,etc.) with a few tweaks here & there–Democrat-sounding noises come out of his mouth just as Replico-sounding noises came out of Bushes mouth; ignore the noises they make and just look at the policy decisions they make.
(I’m convinced both sides of the aisle have been more & more beholden to big money interests over the years; they’re pretty much corporate employees whose payoff in terms of fat-salary jobs will come after their little stints as political front-men/marketeers).
jimt: “(I’m convinced both sides of the aisle have been more & more beholden to big money interests over the years; they’re pretty much corporate employees whose payoff in terms of fat-salary jobs will come after their little stints as political front-men/marketeers).”
Ditto…
“Was it even well known that Judge Walker was gay prior to the filing of the complaint?”
,,,just to address your question, David, the Washington Post article described Judge Walker as “openly gay”, suggesting that Judge Walker’s homosexuality was well-known to those who knew him or of him.
,,,just to address your question, David, the Washington Post article described Judge Walker as “openly gay”, suggesting that Judge Walker’s homosexuality was well-known to those who knew him or of him.
Actually, it was me who asked that question, not David. It has been reported that Judge Walker is gay, but he has neither confirmed nor denied such claims. Still…who cares?
There are several ways to judge shop. First, a lawyer may try at the time cases are assigned to individual judges (either by timing his filing or influencing a counter clerk, for example) to see that his case goes to “the right judge.” Second, an attorney might file a motion for a substitution of judge (which in a number of states need not require a showing of
good cause). Third, an attorney practicing in a court with a master calendar system may file a series of pretrial motions before different judges, with each such motion only nominally different than its predecessor, until he or she obtains a favorable ruling.
rusty,
So you just copied and pasted the National Center for State Courts’ (NCSC) examples of ‘judge shopping’ and presented them as your own? Maybe next time indicate that it is the source’s wording and not your own…just to be forthright? (http://www.ncsconline.org/WC/Publications/KIS_JudAgnMemoPub.pdf
Anyway, in what way are the attorney’s for the plaintiffs, whose complaint was filed in a federal district court, guilty of what the NCSC has listed as ‘judge shopping?’
No, you had stated that judge assignments were random and judge shopping didn’t exist. I just did a little five minute google search and easily found ways that lawyers can get around that. So it happens, put that in your pipe and smoke it.
rusty,
“No…”
No what, no you didn’t lift that info and present as your own without a citation or reference to the source? Yes, yes you did! What you offered up was verbatim what the NCSC listed as examples of ‘judge shopping’ and you did not indicate as much.
“… you had stated that judge assignments were random and judge shopping didn’t exist.
Please direct me to the comment in which I claimed judge shopping does not exist. I did not make such a statement.
As far as I know, cases at the federal district court are randomly selected/assigned and you have not offered up any evidence suggesting this is not the case. I believe that’s a system put in place to prevent ‘judge shopping.’ What’s more, you have not put up any specific evidence supporting your assertion that the plaintiffs’ attorneys are guilty of ‘judge shopping’ in this case.
“I just did a little five minute google search and easily found ways that lawyers can get around that.”
You don’t think you should cite or refer to your source? Okay. Also, the ‘ways’ of getting around those safeguards that your Google search turned up do not address ‘judge shopping’ on the federal level, just at the state level. Oh, are they one and the same? Is that the case?
“ So it happens, put that in your pipe and smoke “
Again, show me where I said ‘judge shopping’ has never happened in any court ever.
“As far as I know, cases at the federal district court are randomly selected/assigned and you have not offered up any evidence suggesting this is not the case.”
I would say this was more a case of “forum shopping”…and CA was the chosen forum…
Superfluous Man… there is little question that the appointment of Federal judges is highly political, usually following the recommendations of the political power holders for that particular seat’s jurisdiction. We all recognize that the homosexual community in SF represents powerful if not unmatched local political power and this is reflected in the Federal judicial appointments. There is no question that there is judge
shopping” in this case, even though the actual selection of a particular judge was not in the hands of those making the appeal, They selected the jurisdiction that offered the highest probability of getting a “sympathetic” judge to overrule the decision of the CA Supreme Court(under Chief Justice George who personally supports same-sex marriage) that had the opportunity to rule Prop 8 unconstitutional and did not.
It is highly unlikely that a Federal judge in the other 40 States that have enacted legislation or constitutional amendments defining marriage as between a man and a woman would have ruled as Judge Walker did.
Actually, after reading about Judge Walker’s “iconoclastic” and controversial past rulings, I doubt that any other Federal judge would have handled this appeal or made some of the arguments that he presented in support of his decision.
Judge Walker’s concern for the citizen rights do not appear to extend beyond those of the homosexual community. His legal and judicial career, as a Reagan appointee, reveals a consistent inclination to rule in favor of the rich and powerful.
ERM,
“I would say this was more a case of “forum shopping”…and CA was the chosen forum…”
Chosen to attack the constitutionality (at the federal level) of the state constitutional amendment (Prop. 8) to ban same-sex marriage? What other forum could they have chosen?
davisite,
“there is little question that the appointment of Federal judges is highly political, usually following the recommendations of the political power holders for that particular seat’s jurisdiction.”
I thought they (presidents) usually follow the recommendations of senators and sometimes members of the House? Is that what you meant by “political power holders?” Is it required that the recommended judge and/or elected official be from the area in which the recommended judge is to be appointed?
“We all recognize that the homosexual community in SF represents powerful if not unmatched local political power and this is reflected in the Federal judicial appointments.”
Based on what and which federal court(s) are you referring to, 9th Cir., N.D. Cal.? You are not referring to just the one “openly” gay judge who was appointed to a district court in CA, by a republican president (GHWB), that is comprised of many counties…not just SF County? Furthermore, is it necessary that the recommended judge pass some sort of gay rights litmus test that I’m not aware of?
“There is no question that there is judge shopping” in this case, even though the actual selection of a particular judge was not in the hands of those making the appeal, They selected the jurisdiction that offered the highest probability of getting a “sympathetic” judge…”
Yes, they “judge shopped” by filing a complaint in a district court that is well know to have the most gay sympathetic judges in all the land, which is according to…
If the ruling had gone as Judge Walker ruled, in a district court that is in a conservative region of the country (as conservative as SF is gay), where the judges are known to not be supportive of gay rights and the judge was a heterosexual man who was married, would it pass muster with you then?
davisite,
“It is highly unlikely that a Federal judge in the other 40 States that have enacted legislation or constitutional amendments defining marriage as between a man and a woman would have ruled as Judge Walker did.”
How can you possible know, with any degree of certainty, the likelihood of a similar decision being handed down anywhere else in the country?
“Actually, after reading about Judge Walker’s “iconoclastic” and controversial past rulings, I doubt that any other Federal judge would have handled this appeal or made some of the arguments that he presented in support of his decision”
NO other federal judge would have heard this case? Not even any of those gay sympathizing judges in that jurisdiction?
Was it Judge Walker’s decision to handle this case?
Was this case appealed to this court or was a complaint filed in this court?
“Judge Walker’s concern for the citizen rights do not appear to extend beyond those of the homosexual community. His legal and judicial career, as a Reagan appointee, reveals a consistent inclination to rule in favor of the rich and powerful”
I see you really are not at all bothered by the sexuality of the judge in this case and it’s only “the potential negative public PERCEPTION of having a sole gay jurist(Judge Walker) making the call” that concerns you.
BTW, regarding his showing concern for the rights of the rich and powerful, is that in addition to Judge Walker’s only showing concern for the rights of gays? Therefore, his concern for citizen rights does extend beyond the gays? Are the rich and powerful not citizens and without protected rights? What is this assertion even based on anyway?
…to Superfluous Man:… Judge Walker allowed Protectmarriage to have standing before his court in the face of unambiguous precedence to the contrary of the Federal Courts on standing. Judge Walker attempted to make his trial in this case, a political “showcase” trial by requesting that it be shown on TV. No Federal Court has been permitted to televise its proceedings and Judge Walker’s request was refused. Judge Walker has publicly expressed,as a public side-comment in this case, his belief(and I believe,has ruled in a past East Bay case} that it is within his court’s authority to rule that the public expression of the belief that marriage defined as between a man and a woman is supremely beneficial to our society diminshes the relative societal value of gay unions and therefore violates gay civil rights.