Civil Liberties

Prop. 8 Supporters: We Don't Need Evidence

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To give you a sense of why U.S. District Vaughn Walker felt comfortable in concluding that there is no rational basis for Proposition 8, California's ban on same-sex marriage, here is his summary of the evidence presented by the measure's supporters:

Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the "central purpose of marriage, in California and everywhere else,…to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation."…

At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was "not the legally relevant question," but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know."…

Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would effect some twenty-three specific harmful consequences. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony…provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that "responsible procreation is really at the heart of society's interest in regulating marriage." When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, "you don't have to have evidence of this point."

Walker's opinion is here (PDF).

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  1. Vaughn Walker for Supreme Court Justice.

    1. Ugh, no. Leave aside what you think of the decision, or the two sides, if you watched the trial, you saw him abuse the Prop 8 side by disallowing witnesses, etc. He allowed personal bias to hinder his job.

      Jerry Brown was bad too, refusing to properly defend Prop 8 as he is legally reequired to.

      1. The prop 8 side disallowed their own witnesses with bullshit whining about their lives somehow being at risk.

      2. Jerry Brown deferred to the Prop 8 supporters in defending Prop 8. You can’t blame him for what appears to be a feeble defense of it.

        As the argument says, the proponents declined to bring most of their witnesses to the stand–and their star witness, Blankenhorn, basically agreed with the plaintiffs when questioned.

        1. Those supporters were crying like a bunch of sissy fags after the decision.

          1. Love you.

      3. http://articles.sfgate.com/201…..mpic-games

        lolrony. Back in the day Pelosi thought he would be anti-gay rights. What a perceptive women.

  2. Black people’s lawyers do tend to suck.

  3. Evidence? We don’t need no stinkin’ evidence.

    1. When the ground zero mosque opens, will gay couples be married there?

  4. Wow. It sounds like the defense just gave up.

    1. Didn’t the prop 8 supporters have an Intervener?

      Are Interveners allowed in California?

      1. “Defendant-intervenors, the official proponents of Proposition 8 under California election law (“proponents”), were granted leave in July 2009 to intervene to defend the constitutionality of Proposition 8.”

  5. Was it that dude’s first day on the job or what? WTF?!?! Just MAKE something up, for Christ’s sake!!!

    1. This reminds me of a law school professor admitting to the class that, years earlier, when pressed for legal authority (of which she had none) in a point she was urging before a Texas criminal court, she calmly replied “State v. Gonzalez, your Honor,” the judge nodded and ruled in her favor.

  6. Why didn’t he just pull out the oh-so-convincing “queers can get married, just to people of the opposite sex” argument? It’s just so logical and effective!

    1. Interesting. Haven’t heard that particular line of thinking before.

    2. It is logical. Ironclad.

      1. You keep on telling yourself that. It’ll be true one day…really.

        1. You’re holding out for polygamy, aren’t you?

          1. Bestiality.

            “Sex with animals?!? There’s no time, man!”

            1. Of course. I’m a fool for not realizing that.

              Let me speak for all the commenters here when I say that I hope you find the right beast (or beasts) to meet your incredible, yet justifiable, needs.

              1. Charlie: I think, maybe, I was a centaur in my past life.

                Buster: Well, something tells me you probably were never half man, half horse, but hell, what do I know? All I know is, you got a great attitude. So come on, you old son of a gun, and?and let Buster do a line off your boner.

                1. Yes. YES.

    3. Why didn’t he just pull out the oh-so-convincing “queers can get married, just to people of the opposite sex” argument? It’s just so logical and effective!

      The anti-bigamy laws did not forbid Mormons from marrying; they still had the right to marry one person of the opposite sex like Protestants do.

      1. What the fuck do bigamy laws have to do with same sex marriage?

        You’re like a retarded robot caught in a loop.

        “You’re wrong! Jackson Roykirk, your creator, is dead. You’ve mistaken me for him. You are in error.”

        1. Epi, you’re the one who’s been saying that the state needs to get out of the marriage business. The judge’s ruling, while not quite as broad as that, is very much in that direction.

          So, when the state’s out of the marriage biz, why wouldn’t polygamy make a comeback?

          1. why wouldn’t polygamy make a comeback?

            Since when did it leave?

          2. What would be the problem with polygamy “making a comeback”? Or polyandry? Or group marriages? I have no issue with any of these.

            1. Check out some other countries that allow the practice. It’s problematic. Financial success changes ‘market share’ into a whole different meaning.

              Sure, Hefner can have multitudes passing through the Credit Card distribution network, but giving it state sanction is another matter.

              1. The state’s role in marriage should only be ensuring that all involved can properly give consent – thus you can’t marry a child, a goat, or a real doll. If Bill Hendrickson can get consent from every one of his wives, why should I care?

      2. They can currently marry as often as they like without state licensing. Just like everybody else.

  7. I had a friend go to several days of the trial and while he was biased being a married gay man living in San Francisco he was shocked how bad the Pro-Prop 8 arguments were – ‘honey I could come up with better arguements against us gays getting married’ is almost a quote from him…

    1. You had me at “honey”.

    2. The married guys I know are always coming up with arguments why straights shouldn’t get married.

    3. I felt the same way about the oral arguments at Lawrence v. Texas.

      1. You had me at “oral”.

        1. should have waited for my Texas.

          1. You know that means you are second biggest since ’58.

  8. How about this for an argument:

    What is the likelihood that there is a right for guy to marry a guy that no one ever noticed in 223 years?

    1. Well, since it’s based on the 14th Amendment’s equal protection and due process clauses, it’s 142 years.

      And, given that just 9 years ago merely being a gay couple was a criminal act in many states, I’d say the likelihood is overwhelmingly high.

      1. The 14th just incorporates federal protections to the state… so yea, 223 years.

    2. Think of it less as a right to cornhole and more as a freedom to cornhole and you might see it differently.

      Or heck, look at it as the freedom of contract.

    3. There wasn’t a right to free speech for upwards of 14 billion years until enlightened humans created it.

      1. What exactly was stopping the first lifeforms from communicating with signals or sounds in any way they were physically capable?

        1. An organism higher on the food chain?

          1. How could you possibly be in favor of this? Isn’t this just another case of judicial activism which thwarted the will of the majority?

            1. Moi? I like judicial activism when it protects equal rights for minorities against the will of the majority. Don’t you?

              1. Of course I do. But I know I’ve seen you rail against judicial activism thwarting the will of the majority (specifically in regards to healthcare legislation). I guess I just forgot that you make no claim to logical consistency.

                1. That being said, this should be a religious issue. The state shouldn’t be dictating what constitutes marriage in the first damn place.

                  1. Correct answer:

                    “I don’t. I like it when judicial activism limits the size of government, and thus the ability of majorities to use the strong arm of government to fuck with minorities. What majorities do to minorities in the bedroom is their business.”

                    1. While I like your answer, I fail to see how it makes mine incorrect. There’s only a conflict there if you believe in positive rights.

                2. Of course I do. But I know I’ve seen you rail against judicial activism thwarting the will of the majority (specifically in regards to healthcare legislation). I guess I just forgot that you make no claim to logical consistency.

                  You can not expect that from Tony.

      2. The first fairly complex lifeforms, anyway. Obviously not amoebas and such.

        1. Singlecellophobe!

    4. Some dude|8.4.10 @ 6:34PM|#
      “How about this for an argument:
      What is the likelihood that there is a right for guy to marry a guy that no one ever noticed in 223 years?”
      Uh, hope I’m not missing sarcasm, but that argument fails on two issues:
      1) Gays have wished to marry, but ‘noticing’ that desire wasn’t real popular.
      2) Do you think “rights” are granted by some government?

  9. When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.

    Given that it is currently California law, who is arguing in favor of Proposition 8 in front of the court, the state? It sounds like the Solicitor General’s office went out and either found their newest attorney, their worst attorney or they have told the attorney to throw the case.

    1. It’s the official proponents of the initiative – that is, the ones who organized the Yes of Prop 8 campaign. They moved to intervene once the named Ds (government officials) signaled they wouldn’t defend it.

  10. At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest.

    Why is this the issue? I think that government can do something that promotes an interest without having to do another thing that doesn’t promote that interest, regardless of whether it impairs that interest.

    Let me use an example. A state can set up a welfare program to provide income assistance to impoverished persons affected by a natural disaster. However, that doesn’t mean that the government also has to give the same amount of money to the all poor people unless it can show that doing so would “impair” its interest in assisting poor victims of a natural disaster. It’s enough that the latter, whether a meritorious thing to do or not, simply doesn’t serve the same interest.

    I think that the attorneys should have argued this better, but the question itself strikes me as ill-founded.

    1. In the example you gave, the state has a “compelling interest” to treat the disaster victims separately. Namely, one class experienced a disaster.

      States must have a compelling interest to discriminate between citizens. Equal protection, and all that.

      This case is about whether California has a “compelling interest” in differentiating same-sex from opposite-sex couples.

      Survey says…. no.

      1. Good answer, except that the state does not have a “compelling interest” in providing aid to the disaster victims.

        Compelling state interest is just three words for tyranny.

        1. I’m arguing in the context of current law, not libertarian-fantasy law.

          Which doesn’t mean I don’t approve of the latter.

          1. That would be a good point if this were a case based on race, religion or national origin. But this was a case based on sexual orientation, which under current supreme court precedent requires a the law rationally related to a legitimate government interest. Arguably state support and recognition of opposite sex marriage rationally promotes procreation, which is a legitimate state interest. The fact that homosexuals feel shame or complication because of their inability to marry or receive the state benefits of marriage is not part of the analysis. Granted most gay rights litigation has been been more scrutinizing of the state’s basis. But unlike Romer, which appeared to institutionalize gay discrimination and Lawrence v. Texas recognized that the expanded right to privacy had rendered the government’s interest in prohibiting certain sexual illegitimate. For the court to say the several states, which retain the general “police power,” have no interest in procreation is absurd. If the state can sterilize someone, Buck v. Bell, it damn well can create incentives for people to make babies.

            1. Arguably state support and recognition of opposite sex marriage rationally promotes procreation, which is a legitimate state interest.

              It is? Says who?

              1. it’s an illegitimate state interest. Of course, I only think that because I’m a (voluntarist) neo-malthusian.

            2. (1) It’s pretty clear, since sterilization laws have been restricted (Skinner v. Oklahoma) and then universally repealed (as of 1974), that sterilization wouldn’t hold up in court today.

              (2) The argument, as I understand it, is not about the state’s interest in procreation, but about whether marriage has anything to do with procreation. The ruling states (and I agree) that it doesn’t. Marriage is about two adults in a social and economic relationship, which is why fertility, etc., has no bearing on eligibility for marriage.

            3. I think that is the point of the decision. The supporters failed to produce evidence showing the rational relationship, or at least the judge so concluded.

              I could imagine this decision being affirmed on the very narrow grounds that on the record produced in this trial, the decision is right, but not answering the broader question if another record or other arguments might be sufficient to uphold a same-sex marriage ban. That would leave California with gay marriage but not definitively answer the question everywhere else.

              1. I could imagine this decision being affirmed on the very narrow grounds that on the record produced in this trial, the decision is right, but not answering the broader question if another record or other arguments might be sufficient to uphold a same-sex marriage ban. That would leave California with gay marriage but not definitively answer the question everywhere else.

                But how would the Ninth Circuit hold that the Fourteenth Amendment forbids California from denying marriage licenses to same-sex couples, but does not forbid Oregon and Nevada from denying marriage licenses to same sex couples?

      2. flugger,

        And judges get to arbitrarily decide based on their own philosophy what a “compelling interest” is? For starters, that’s not the standard under the rational basis test. Secondly, that invites a policy discussion that isn’t supposed to be handled by the courts.

    2. Also, promoting procreation is not really in the state’s mandate.

      1. Qhen they need more slaves it will be.

  11. “To give you a sense of why U.S. District Vaughn Walker felt comfortable in concluding that there is no rational basis for Proposition 8”

    I’m sure Walker being a homosexual had nothing to do with it.

    1. Would he have been accused of bias if he’d been heterosexual and ruled the opposite way? No-win situation.

  12. Every vote counts?

    LOL

  13. “it was certainly an awkward situation walking to the bank and saying, ‘My partner and I want to open a joint bank
    account,’ and hearing, you know, ‘Is it a business account? A partnership?’ It would just be a lot easier to describe the situation ?? might not make it less awkward for those individuals, but it would make it ?? crystalize it more by being able to say
    * * * ‘My husband and I are here to open a bank account.'”

    That’s the sort of thing redefining marriage is about (from the case).

    1. That’s the sort of thing redefining marriage is about (from the case).

      So the reason Proposition 8 violates the 14th Amendment was because how someone might be asked funny questions at a bank?

      What Supreme Court precedent backs this idea up?

      1. Ya, next time some asshole looks at you funny because you are a man and claim to have a husband, put his ass in jail! He has violated your civil rights!

        1. Of course, since no marriage is identical to a business partnership. Nothing about property. Just the love and emotion. Until someone dies.

          1. Or gets divorced.

  14. Equally valid headline: “Judge: Fuck consistency, since I wear the robe my personal viewpoint IS law”

    Again, I’m fine with gay marriage. But I’m not at all fine with this nonsense ruling that on one hand uses ethics and morals to support the socially-arbitrary construct of marriage as an institution, marriage as being defined between only two people, and the state being in the marriage business, but on the other hand says social and ethic morals are invalid for determining marriage is between man and a woman.

    If people want gay marriage at any cost, by any means, okey-dokey. But don’t try to peddle that Judge Walker doesn’t massively contradict himself on the very core of his basis of overturning the Prop. 8.

    1. Again, I’m fine with gay marriage. But I’m not at all fine with this nonsense ruling that on one hand uses ethics and morals to support the socially-arbitrary construct of marriage as an institution, marriage as being defined between only two people, and the state being in the marriage business, but on the other hand says social and ethic morals are invalid for determining marriage is between man and a woman.

      Not to mention abandoning precedent.

  15. Equally valid headline: “Judge: Fuck consistency, since I wear the robe my personal viewpoint IS law”

    Again, I’m fine with gay marriage. But I’m not at all fine with this nonsense ruling that on one hand uses ethics and morals to support the socially-arbitrary construct of marriage as an institution, marriage as being defined between only two people, and the state being in the marriage business, but on the other hand says social and ethic morals are invalid for determining marriage is between man and a woman.

    If people want gay marriage at any cost, by any means, okey-dokey. But don’t try to peddle that Judge Walker doesn’t massively contradict himself on the very core of his basis of overturning the Prop. 8.

  16. Double posted for some reason, sorry.

  17. And really, what could the guy say that would change the judge’s mind that “it mandates that men and women be treated differently based on antiquated and discredited notions of gender.”

    Good thing we have federal judges to tell us what’s in an what’s out these days. It’s gotta be easier (not to mention more approved-of in elite circles) than actually following the law.

    1. And you are disingenuous once again.

      If a law says that ginger kids should be killed on the spot, and a judge throws it out, was the judge wrong? Maybe in the case of gingers…

      You’re awfully authoritarian. You seem to think that laws are meant to be followed no matter what their content. Personally, I find that repellent.

      1. I think bad laws need to be overturned, by judges if unconstitutional and by legislatures if not. This is one of the latter situations.

      2. If a law says that ginger kids should be killed on the spot, and a judge throws it out, was the judge wrong? Maybe in the case of gingers…

        It depends on the Constitution and relevant case law.

        1. WTF kind of answer is that?

          1. It means exactly that.

            Federal judges are to use the original public understanding of Constitution and relevant case law to determine constitutionality of laws.

  18. 1.Government-funded stem-cell research
    2. State-sanctioned marriage for same-sex couples
    3.___________________

    We are just a marijuana tax away from cosmotopia!

    1. Take your kulture war! somewhere else, plz.

    2. Its a step in the right direction toward Cosmotopia – step four is turning the Dept of Labour into vacation condos overlooking the (privately owned)National Mall – don’t hear us Cosmo’s talk about that too much – its more like a secret handshake – but its a really important goal for us!

  19. the “central purpose of marriage, in California and everywhere else,?to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.”

    So:
    1. No marriage for anyone incapable of procreation?
    2. If you don’t want kids you have to get divorced?
    3. There’s no state interest in stable families that can adopt kids and get them out of state care?

    Dumb.

    1. rational basis scrutiny does not require a strong correlation, or even correlation at all, but that a reasonable person would conclude the policy would promote the stated goal

      1. Even if one thinks that the state should promote procreation, and even if promoting different-sex marriage serves this goal, I’m afraid I still don’t see how not allowing same-sex marriage contributes to the achievement of this goal.

      2. A reasonable person concludes that opposite-sex-only marriage promotes procreation? I think children of divorce or born out of wedlock beg to differ.

  20. Wow. California did something right. Now its back to raping business and the economy in general for the next…[indefinite]

    1. Wow. California did something right. Now its back to raping business and the economy in general for the next…[indefinite]

      One appointed judge did this.

      He is no better than the judge who struck down Nebraska’s same-sex “marriage” ban five years ago (since reinstated by the Eighth Circuit)

  21. Those cheering this decision might ask themselves whether they are really confident that Vaughn Walker will stop at overturning this particular exercise of self-government.

    By the same analysis asserted in this case, Judge Walker has unlimited power to require government to do anything or deny it the right to do anything he pleases. All he needs to do is recite the policy reasons he has for requiring or forbidding something and announce that any contraray positions have no “rational basis.” What will it please Judge Walker to do next?

    Nice right to self-government you got there, shame if anything were to happen to it.

    1. Four wolves and a sheep deciding what’s for dinner, blah blah blah.

      Funny how an essentially conservative decision – that the will of the majority has little bearing on the application of individual rights – has so many conservatives in a tizzy.

      1. Many do not agree that gay marriage is a valid individual right.

      2. Baaaaaaaaaaaaaaaaaahhhhhhh all you want say the conservative wolves.

        1. There is no greater virtue than the protection of individual liberty particularly when the wovles of democracy are howling.

        2. We all know how conservative California is…

          The irony of this whole thing is that it was the incredible black turnout in ’08 that pushed Prop 8 over the hump, so to speak. The opponents try to paint this as the work of Orange County GOP, but that’s not the story.

          1. We all know how conservative California is…

            Yeah we do, SF, LA and Sacramento aren’t the only cities in case you forgot your geography.

      3. Funny how an essentially conservative decision – that the will of the majority has little bearing on the application of individual rights – has so many conservatives in a tizzy.

        And the gay “marriage” amendment was where ?

        1. Amendment 9—The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          There ya’ go

          1. Amendment 9—The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

            There ya’ go
            reply to this

            From Washington v. Glucksberg

            those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.

          2. This has nothing to do with individual rights being denied by a federal law. 9th amendment does not apply.

            1. It does, because the 9th is incorporated against the states via the 14th. Glad to see you still reside in 1858, however.

              1. The 9th is incorporated against the states? That is a nonsensical and illogical assertion. The 14th expressly was intended to make the first EIGHT amendments applicable to the states. There is no need to “incorporate” the 9th against the states, because by its plain language, it expressly says that whatever powers the peole did give to the federal government remain with the states and the people.

                Beyond that, the 9th does not clearly protect any specific rights, which is why it always has been problematic.

                This was not a 9th amendment issue.

                1. “or to the people”

      4. I’m not following your analysis here Dave. This decision has nothing to do with individual rights.

        The decision to marry is an individual one but the definition of what marriage is is a social and legal construct. That’s why (until now) you can’t marry your sister even if you want to. Of course, marriage is now unrelated to procreation so probably that limitation and others no longer applies.

        If this were an “individual rights” decision the issue would be something along the lines of “can the State of California force certain people to marry against their will?”

        1. “”Of course, marriage is now unrelated to procreation so probably that limitation and others no longer applies.””

          Which is why it’s a losing arguement.

          Even if your on the correct side. A bad argument can make you lose in court.

          1. Its only a bad argument if you have already concluded that marriage is unrelated to procreation. But the “purpose of marriage” is not a fact that can properly be determined by a court.

            Marriage is a legal social and legal construct created by society as a whole and it has whatever purpose the people or society as a whole determine it should have. Judge Vaughn lacks the ability to make a factual “determination” as to the purpose of marriage. He can only express his opinion or, more accurately, his personal preference as to the purpose of marriage. By his ruling, he has asserted the power to claim marriage is unrelated to procreation for everybody. That is tyranny.

            1. “”By his ruling, he has asserted the power to claim marriage is unrelated to procreation for everybody.””

              The judges wasn’t presuaded by the pro-8 crowd arguement that the above is true. They had the obligation to prove their point, simply stating it is not proof.

              Besides there is plenty of evidence in modern society that marriage is not soley for the purpose of procreation.

            2. “”Marriage is a legal social and legal construct created by society as a whole and it has whatever purpose the people or society as a whole determine it should have. “”

              If CA has a law that said no marriage, no babies, they might have had a point.

              1. Of course, you are correct that he was not persuaded but my point is that the issue was not properly within his sphere of competance as a Judge.

                If I (and, as it happens, a majority of the people of the State of California) believe marriage exists for the purpose of providing social and legal support for procreation and child-rearing, but the Judge believes marriage has some other purpose, how do you propose to determine which of us is correct? In a democracy, the way we determine questions like “the purpose of marriage” is by elections. Judge Walker has taken that power for himself and, given his particular bias and choice of policy, you applaude. Next time, Judge Walker, or some other Judge, may have a different bias and make a different sort of decision.

    2. So in other words, he is not over turning any precedents?

  22. So, basically, if the voters pass an initiative that politicians don’t like, they can just refuse to defend it in court so that it’s left to amateurs.

  23. They did not need evidence.

    As Justice Clarence Thomas explained in FCC v. Beach Communications :

    In other words, a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.

    1. No, Thomas is wrong. The framers guaranteed republican government for each state. One of the bedrock principles of republican governance is that courts are always free to strike legislative enactments that infringe upon the enjoyment of an individual’s natural rights. Thus, the notion that a court cannot examine the basis upon which the legislature passed a statute is repugnant to natural rights.

      The framers did not authorize the judiciary to “defer” to the legislature-that is statist claptrap.

      1. No, Thomas is wrong. The framers guaranteed republican government for each state. One of the bedrock principles of republican governance is that courts are always free to strike legislative enactments that infringe upon the enjoyment of an individual’s natural rights. Thus, the notion that a court cannot examine the basis upon which the legislature passed a statute is repugnant to natural rights.

        And yet there was no dissent in Beach Communications .

      2. No, Libertymike is wrong. In fact, you are exactly wrong. Neither the Framers, nor the republican form of government itself require that the judiciary be the final arbitor of all public policy decisions. To the contrary, if Judges decide these questions you do not have a republican form of government.

        The framers designed a system of co-equal branches each supreme in their own areas of competence. At its core, Judge Vaughn’s decision depends on his personal determination that this exercise of the legislative function has no “rational basis.” But, despite Judge Vaughn’s exclusion of a great deal of evidence, supporters of the measure presented a basis for the measure which not only existed but which was evidently convincing to a majority of the electorate. Judge Vaughn asserted that was not a “rational basis” is simply his assertion that it is not convincing to him. Doing so, Judge Vaughn has abrogated for himself a power to decide what is or is not “rational” policy. Regardless of whether you like Judge Vaughn’s policy choice in this instance or not, this is not liberty, Mike. It is tyranny.

        1. supporters of the measure presented a basis for the measure

          Since when is
          “Your honor, my answer is: I don’t know. I don’t know.”
          considered to be “rational basis”? Did you RTFA?

          1. From Beach Communications

            In other words, a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.

            1. 1) a constitutional amendment, not a legislative choice.

              2) nobody is arguing evidence or empirical data. The rational basis test has nothing to do with empiricism.

              If he’d said “the state should regulate reproduction” that would have been “a rational basis” with ZERO grounding in empiricism, but the prop 8 lawyer didn’t even bother making that argument.

              1. 1) a constitutional amendment, not a legislative choice.

                Why would constitutional amendments be treated differently than statutes for the purposes of applying the rational basis test?

          2. Yonemoto,

            The Judge, Jacob S. and you are all cherry-picking this particular moment during the trial and implying that this demonstrates that the proposition’s supporter had nothing to offer in support of the proposition. This is simply not true and it is dishonest of all three of you to pretend otherwise.

            You may claim that the assertion that marriage exists to support procreation and child-rearing is wrong or out-dated or unconvincing but you cannot rationally claim it is irrational. If that reason is rational, the “rational basis” test is satisfied and the legislation stands.

            Nor is it irrational to base legislation on religious teachings or received ideas about morality or history or tradition. Most laws are based on those exact things to some extent.

            1. Nor is it irrational to base legislation on religious teachings or received ideas about morality or history or tradition. Most laws are based on those exact things to some extent.

              No they aren’t. You can’t have a law based on morality or religion if it doesn’t at least have an accompanying secular purpose.

              1. In the United States, that is.

                1. Tony,

                  Your assertion that the laws of the United States are not based, in the first instance, on received ideas of morality or religion, has no basis in history or law. It is a sad commentary on the pitiful state of our educational system, however, that so many of our people share your opinion.

                  Nothing in Constitution or any of the other founding documents of the United States provides the slightest support for your assertion that morality, tradition, history and religion are not the foundations of our present government and legal system. Quite the opposite.

    2. “”In other words, a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.””

      Yeah keep that in mind when the health care law hits SCOTUS.

  24. Some odd nuggets from the decision:

    “The evidence shows that the movement from marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an understanding of gender rather than a change of marriage.”

    “the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based on antiquated and discredited notions of gender.”

    So….a legal decision, or a class at Berkley?

    My line of opposition is still based in the complete contradiction of holding ‘social ethics and morals’ as both sacrosanct and invalid in the same argument, depending on how it suits the Judges needs. However, there a lot of material I’d kind of be nervous about vis-a-vie an appeal. Judge Walker really takes a sweeping, maximalist approach. I’m not saying it would lose on appeal (I don’t know the law nearly enough, nor do I play a lawyer on TV), but the decision seems to have left the door open for either ‘Big win or Big loss’ style outcome.

    1. The funny thing is that this judge was appointed by Reagan.

      1. Although we have never met, Judge Walker and I have intersected. If you are still alive and reading this blog Robert Abbott, Doug Mann should be getting quite a chuckle up there in Cran-Max Heaven.

        1. Although we have never met, Judge Walker and I have intersected.

          I really don’t want to know about your orgy exploits, l***mike.

    2. “The evidence shows that the movement from marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an understanding of gender rather than a change of marriage.”

      Even if the understanding of gender changes, it does not change how the 14th Amendment applies. Only the original public understanding of the 14th Amendment should be used as a guide. If the 14th is insufficient to deal with gender issues, amend the Constitution, not reinterpret the 14th Amendment.

  25. If the defense of Prop. 8 was so feeble, it is perhaps because the losing side was bound to appeal, anyway. Neither side is shy about pushing this case all the way to the Supreme Court: Both sides must be thinking, “the sooner, the better.” So why waste any more time or effort than is necessary to climb to the next rung of the ladder?

    1. One still has to preserve one’s issues for appeal. How does going through the motions assist that effort?

      1. How did going through the motions impede that effort? I suppose we’ll find out whether and how in due time.

      2. One still has to preserve one’s issues for appeal. How does going through the motions assist that effort?

        What issues should be preserved?

        1. I am simply making the point that if one is representing a party in a contested constitutional matter, one would be advised to pay attention to one’s business-like drafting compelling pleadings, obtaining a mastery of the facts, arguing with logic, reason and passion. Those kinds of things.

          1. Yeah, I’d like to see a good show too. But I’ve sat on a trial jury where advocates on both sides seemed to phone in their performances. It does happen in court and nothing forces the advocates in the appellate process to maximize effort and expense beyond that necessary to get to the next stage of the process. Perhaps they are simply saving their best material for the Supremes. I suppose you could have motivated the losing side to work harder by placing a wager on the verdict.

  26. Think about this the next time you hear someone talk about you civic duty to vote.

  27. To give you a sense of why U.S. District Vaughn Walker felt comfortable in concluding that there is no rational basis for Proposition 8, California’s ban on same-sex marriage,

    You think it might have something to do with the fact that he himself is gay?

    He also likes speech codes:

    During his time as a federal judge, Walker has ruled in at least two cases involving gay rights issues. In one, he dismissed a lawsuit by two Oakland city employees who alleged their free speech rights were violated when managers removed a bulletin board flier for a religious group that promoted “natural family, marriage and family values.”

    The city had “significant interests in restricting discriminatory speech about homosexuals. . . .(and has) a duty under state law to prevent workplace discrimination on the basis of sexual orientation,” Walker wrote in his 2005 ruling.

    1. “He once put a lien on the home of a gay-games leader who was dying of AIDS”

    2. Because straight people are inherently unbiased on the issue? Just to be safe we should only let non-gay and non-straight judges rule on this issue.

      1. If gay marriage truly doesn’t affect straights, then there’s no conflict of interest for a straight judge.

        1. If the judge is a closet fag it is a whole new can of lube.

      2. For instance, if 5% of the population holds stock in General Electric, including the judge in a civil trial where GE is the defendant, would you not expect the judge to recuse himself, since he stands to personally benefit from a finding in favor of the defendant? Or would you say “oh well non-GE stockholders are no more objective”.

      3. Tony|8.4.10 @ 9:22PM|#
        “Because straight people are inherently unbiased on the issue? Just to be safe we should only let non-gay and non-straight judges rule on this issue.”
        Yea! Tony! Can’t believe I’m agreeing, but Tony’s got the +1
        Righty fundies claimed it was a straight-vs-gay issue; would they scream if a straight judge ruled otherwise?
        Or, let’s make it *really* ‘equal’: Only bisexual judges may rule on matters of this sort….
        (BTW, for the lefty fundies who claim it’s “Bush’s Fault” ™, Walker was known to be gay when he was appointed by, yep, W.

  28. I’m surprised the politicans haven’t encouraged a private party to file suit challenging the 2/3 requirement for passing a budget, and then refused to defend it.

  29. HOMOSEXUALS ARE GAY

  30. Can we just get the whole income tax thrown out. That is about as far as you can get from equal protection. But that wouldn’t be a big fu to us red state assholes, so it’s not important. You are dude who likes dude? Well then it is wrong for your tax rate to be different. You are a dude who makes too much money? Well tough crap, some people are more equal than others.

  31. I think that using the phrase, “You don’t have to have evidence of this point” should pretty much be considered the legal equivalent of tapping out.

    1. I think that using the phrase, “You don’t have to have evidence of this point” should pretty much be considered the legal equivalent of tapping out.

      But see FCC v. Beach Communications

      1. You can keep repeating this (and your other handful of catchphrases) all you want but it doesn’t change the fact that this is not the arbitrary exercise of state police power under discussion. Because individual rights trump a general police power, to survive this kind of due process challenge, the defendants DID need to show at least a rational basis between the law and a state interest. It’s pretty clear from the actual text of the decision (go read it) that they utterly failed to do so.

        I have no doubt this will play out differently in another circuit with competent defendants, generating the circuit split that guarantees this issue goes in front of the SCOTUS.

        Which is a good thing for the anti-gay-marriage side, because woe to the sucker who has to take that side of the argument based on this finding. Remember, original courts are the exclusive finder of facts, so appeals only deal with law or procedure.

        1. Because individual rights trump a general police power,

          Until the individual exercising his right to operate his business as he sees fit is sued for his individual beliefs… then we’ll see some police action.

  32. Why would anyone oppose a gay marriage? I do not understand this, my wife and I had a great gay marriage, our marriage is still gay. I hope everyone has a gay marriage.

  33. This ruling should make for some interesting elections in California in November, as the socons turn out in droves.

  34. The opponents of gay marriage are all opposed because they feel gay relationships are sinful and against the Bible. But they can’t use that in court, so they tried to drum up some absolutely nonsensical secular arguments.

    Recognizing gay marriage has absolutely no adverse effect on normal people getting married and raising kids.

    1. Colbert covered this before he had his own show. If you allow gay marriage it decreases the value of hetero marriage (not as exclusive), and many men will have to leave there wives / families to marry a man.

    2. Not true. I’m againt gay marriage the same way I’m against 2+2=5. it doesn’t have shit to do with the bible.

    3. No, many opposed to the state recognition of gay marriage are actually all for gay people getting married to each other.

      What they are worried about is the ultimate use of the state to coerce others into acceptance.

      1. Like we’re coerced into accepting the validity of straight marriages?

        We will not stop until every heterosexual is forced to attend a gay wedding and they better fucking enjoy the canapes!

    4. The opponents of gay marriage are all opposed because they feel gay relationships are sinful and against the Bible. But they can’t use that in court, so they tried to drum up some absolutely nonsensical secular arguments.

      Then perhaps I should quote Davis v. Beason .

      Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind

      I should note that there was no evidence submitted to the Supreme Court or lower courts that the above phrase was fully true. No evidence that polygamy tends to destroy the purity of the marital relation, degraded women, or debased men. And yet, not only did the Supreme Court accept this reasoning, they upheld the law in question in Davis.

  35. Another source whom Judge Walker dismissed as irrational is former U.S. Supreme Court Justice Sandra Day O’Connor. In her concurring opinion in Lawrence v. Texas, where Justice O’Connor said that Texas’ criminal statute against sodomy discriminated against gays, Justice O’Connor added:

    “Unlike the moral disapproval of same-sex relations?the asserted state interest in this case? other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

    According to District Judge Walker, former Supreme Court justice (and gay-rights supporter) Sandra Day O’Connor is irrational.

    Just thought I’d mention that.

    1. Curiouser and curiouser – Judge Walker cites O’Connor’s concurring opinion in *Lawrence* that moral disapproval alone is not good enough to justify discrimination against gays, but fails to mention that O’Connor, in the very same concurring opinion, said that there were reasons *other than* moral disapproval to deny government recognition to same-sex marriage.

      1. Curiouser and curiouser – Judge Walker cites O’Connor’s concurring opinion in *Lawrence* that moral disapproval alone is not good enough to justify discrimination against gays, but fails to mention that O’Connor, in the very same concurring opinion, said that there were reasons *other than* moral disapproval to deny government recognition to same-sex marriage.

        That is proof that he is even more incompetent than the defense.

  36. We’re off to the Supremes, where I think marriage will be treated as a Constitutional right. I’m thinking 5-4, although it could be 6-3.

    The two Obamatron Justices will, of course, vote for gay marriage.

    Then, the lawsuits will come from Utah asking for the logical application of this new right to polygamous marriages. I wouldn’t be surprised if some smart-ass brings a case challenging bans on incestuous marriages.

    1. Citing this case won’t help them.

      While someone is likely to do what you’re saying, it will not be sucessful in that you’re not being denied the ability to enter into a marriage contract, if you already have one.

      1. While someone is likely to do what you’re saying, it will not be sucessful in that you’re not being denied the ability to enter into a marriage contract, if you already have one.

        But what about an unmarried person who wants to marry a married person?

        1. How will citing this case help them?

        2. There is a fundemental diffence between monogamous relationships and polygamous ones. That’s a difference that I doubt would go unnoticed during judical review.

  37. regardless of what you think about gay marriage, this case is truly frightening for how it shreds any notion of neutral, dispassionate judicial decisionmaking.

    Its faults are legion — just read it — but a few things particularly jump out:

    > it was a set up. There was no defense. Oh yes, there were nominal defendants who seem to have been selected as useful idiots and who put on a terrible case. But the State of California laid down and made no effort whatsoever to defend its own State Constitution. Did the People of California get due process in this case? Did they get effective assistance of counsel? No, and the judge knew this (which is why he goes out of his way to emphasize that faux-defendants were “vigorous” in their defense of Prop 8, even has he recites that they conceded key points and didn’t bother to put on any actual evidence of their own).

    > Why is the opinion so long? Because this judge knows how to bullet-proof an opinion against reversal on appeal, and he went all out to do it. Aside from the lengthy “factual” recitations and “findings,” most of which are simply conclusory, Walker tried to bullet-proof the opinion by relying on “rational basis” review for the equal protection claim. This is the most deferential standard to the State promulgating the law and doesn’t require that he conclude that homosexuals are a “suspect class” (such as blacks) entitled to a higher degree of constitutional protection under the 14th Amendment. What it does require is that he conclude that there is no rational basis for a state to limit official recognition of marriage to unions of a man and a woman. That is, he had to conclude that no rational person could legitimately conclude that marriage should be restricted to men and women. Think about that. Whether you’re for or against gay marriage, you have to recognize that the huge majority of people believe that marriage should be restricted to heterosexual unions, and you have to recognize that for millenia, nearly every known society has arranged itself around the concept of heterosexual marriage. Yet Judge Walker decided that it is unconstitutional to prohibit gay marriage because it is IMPOSSIBLE for any rational person to believe marriage should be limited to heterosexual couples.

    Now, *that’s* hubris.

    > Judge Walker conflates morality and religion and in essence holds that states cannot legislate morality because they are establishing religion. That is a breathtaking proposition that simply cannot be true and it constitutes a finding of fact for which Judge Walker had zero evidence. States legislate “morality” all the time. No public nudity, limitations on gambling, statutory rape laws, anti-corruption laws, indecency, any law that doesn’t defend an economic or property interest or protect a third party’s physical safety. These are all forbidden forays into establishing religion?

    The bottom line is that Walker’s opinion self-servingly claims to apply rational-basis review in order to bullet-proof it on appeal, but in practice he stacks the deck against the law by (1) allowing the case to go forward without real defendants defending the law and (2) picking apart the defense arguments rather than being deferential to the proponent of the challenged law, as “rational basis” review requires. The issue isn’t whether there is in fact “evidence” that sanctioning only heterosexual marriage advances stable family life, but whether any rational person could think it does. Whatever your belief on the ultimate advisability of gay marriage, only a very bigoted person could think the answer to that last question is “no.”

    > Another scary undercurrent in this case is how the defense of the law was handicapped because people were afraid of the plaintiff’s supporters. I mean, this is right out of the Mafia handbook. And the failure of California to get out there and defend and support the law its people had passed? Utterly shameful, and this Attorney General, who completely and cravenly abdicated his official obligation to defend the law and the expressed will of the people of California presumably to curry favor with the louder, more organized constituency, now wants to be governor of these same people?

    > The US Supreme Court bears some responsibility for this. This opinion is only possible because of the complete and utter hash they’ve made of 14th Amendment law, primarily through the abortion, reproduction, gender and sodomy cases, but even going back further than that. Nobody knows what the heck it means anymore; it is truly a tabula rasa and one that will be used more and more as legislatures have come to realize they can punt on these tough issues and let some judge decide how he’s feeling that day.

    1. Utterly shameful, and this Attorney General, who completely and cravenly abdicated his official obligation to defend the law and the expressed will of the people of California presumably to curry favor with the louder, more organized constituency, now wants to be governor of these same people?

      Attorney General Brown’s conduct on this matter was shameful.

  38. “You don’t have to have evidence of this point if one court after another has recognized?let me turn to the California cases on this.”

    Check your facts. He earlier said he gave evidence, but that the court precedent was also a source of evidence.

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