USA Today - California's Prop. 8 ban on same-sex marriage ruled unconstitutional

[Mooka]

While I don't mind the ruling, I think it's insane that one judge (who is likely biased and is from San Francisco where a lot of the marriages took place a few years back) can just nullify the outcome of the votes of the entire state.

...

Shouldn't it at the least take a statewide panel or something?

After there is an appeal the case can be taken to a larger panel of judges, something called an en banc panel of 11 judges, unless the Supreme Court hears the case instead. (which they no doubt will)

This is what the judge ruled on your concern:

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).

[Madison Redskin]

Damn activist judge overruling the express will of the people. It reminds me of the time that damn court ruled that laws mandating school segregation were unconstitutional. Or that other time that the court ruled that laws prohibiting interracial marriages were unconstitutional. Where the hell do these judges get off determining the constitutionality of laws?!?!?!

[visionary]

After there is an appeal the case can be taken to a larger panel of judges, something called an en banc panel of 11 judges, unless the Supreme Court hears the case instead. (which they no doubt will)

This is what the judge ruled on your concern:

Hmm, that's a bit more reassuring.

But I don't think one judge should have that much say in such an important situation anyway, even if there is an appeal allowed. (for one thing, other judges might feel less free to override his decision than they would be to make their own group ruling without his ruling already on the books.)

Also this stuff about fundamental rights not being voted on feels somewhat untrue.

I'm pretty sure fundamental rights are voted on all the time.

And any one judge could simply designate something as being part of a fundamental right and then use that as an excuse to overrule a law.

For instance this seems like a pretty easy way to allow polygamy by saying that disallowing people to marry who they want interferes with a fundamental right to marry, whether it's two or three people (or more).

[skinfan133]

I've been saying this for at least two years now, the easiest way to deal with this issue is get the government out of the marriage business. Let any two people enter a civil union for all the tax benefits and junk and let the churches decide who to marry in their own church or not. Everyone wins.

[ACW]

I've been saying this for at least two years now, the easiest way to deal with this issue is get the government out of the marriage business. Let any two people enter a civil union for all the tax benefits and junk and let the churches decide who to marry in their own church or not. Everyone wins.

Works for me, but instead of any two people make it any number of CONSENTING ADULTS. Straight, gay, 2, 3, more, who cares.

[Beans]

Damn activist judge overruling the express will of the people. It reminds me of the time that damn court ruled that laws mandating school segregation were unconstitutional. Or that other time that the court ruled that laws prohibiting interracial marriages were unconstitutional. Where the hell do these judges get off determining the constitutionality of laws?!?!?!

In my opinion your examples aren't even close. Not going to get into that.

What's wrong with domestic partnership? Why do gays want to belong and participate in an institution that they claim if full of bigots? Marriage was created way back in the day so dudes wouldn't knock up chicks and shirk their responsibility in child rearing. This is just a huge attention grab circle jerk. A way to besmirch the institution.

That said, I couldn't care less. In the grand scheme of things this will just pass and I won't notice any difference in my life.

Just to play devil's advocate, judges are humans with their built in biases. By all accounts the judge ruling on this likes to smoke him some pickle. "Constitutionality" is nothing more than an opinion, and in our judicial system "constitutionality" often hangs on one person's opinion, or ultimately one panel's. Does anyone ever stop to think that maybe our almost 300 year old system is archaic?

[skinfan133]

Does anyone ever stop to think that maybe our almost 300 year old system is archaic?

present a system that protects liberty better than a constitutional republic and I'm all ears.

[mistertim]

present a system that protects liberty better than a constitutional republic and I'm all ears.

Some people here seem to favor mob rule. (As long as the mob is on their side).

[greenspandan]

I've said it before and I'll say it again. Take the government out of marriage all together.

I guy can marry his table cloth if he likes. No tax break. No anything. Marriage becomes about a person and his/her partner. If they would like to make a contract so that if they seperate, one gets something like they would in a divorce, fine. So who makes the decisions if a person is knocked unconsious, etc....make people come up with some kind of living will.

I know I don't have all the details worked out and it isn't a perfect fix but....why is government even involved in it to begin with?

well, i can't argue with that. it sounds to me like marriage is a sacred ceremony on both personal and religious levels for most people. the separation of church and state directly forbids the government from favoring one religion over others. it can't, constitutionally, favor the christian interpretation of marriage over any other belief system's interpretation. i don't really see how this can be interpreted any other way.

While I don't mind the ruling, I think it's insane that one judge (who is likely biased and is from San Francisco where a lot of the marriages took place a few years back) can just nullify the outcome of the votes of the entire state.

That doesn't really make any sense.

It seems like a really worrisome precedent.

Shouldn't it at the least take a statewide panel or something?

don't be ridiculous. one of the judicial branch's primary functions is to interpret the constitution and the law. striking down unconstitutional laws is one of its most vital roles. the founding fathers did not want mob rule any more than they wanted a dictatorship.

[Mooka]

And any one judge could simply designate something as being part of a fundamental right and then use that as an excuse to overrule a law.

I think you're moving in the wrong direction. I don't think that's how it works.

The judge didn't declare marriage as a fundamental right, it was established as such during the trial on both sides if I'm reading it right.

I could see how a Polgamyst could sue their state for a violation of their civil rights the same way these gay couples are doing. I think they have a case. They just don't really exist at the moment.

[mjah]

What's wrong with domestic partnership?

Nothing. That's what ALL marriages of any kind should be recognized as, by the government.

Why do gays want to belong and participate in an institution that they claim if full of bigots?

Why do "straights" want a bunch of government bureaucrats to regulate, license, and charge for an institution which they believe is sacred to the church?

Let government handle the legal aspects of domestic partnership, while the various churches, synagogues, mosques, and temples handle the sacred-institution part of marriage. Then your problem will immediately disappear -- assuming the institutional issue is your real objection to gay marriage, of course.

This is just a huge attention grab circle jerk. A way to besmirch the institution.

Exactly the same thing could be said for the knee-jerk "Nooooo get your government hands off my government-approved marriage!" reactionary response. "It's just a huge attention grab circle jerk; a way to besmirch our genetic code." Blah, blah, blah. Hot air on both sides. Sure, there are plenty of opportunists out there. But there are also sincere feelings and good-faith beliefs at play on both sides. The question is, what is the government's role? To uphold the best contemporary understanding of the Constitution, or to enforce one particular set of religious restrictions upon secular, civil partnerships?

As for your question about our three-branch, federal/state/locally shared representative republic being archaic: what do you specifically propose to replace it? I've seen nothing in the world that seems to work any better.

[visionary]

The judge didn't declare marriage as a fundamental right, it was established as such during the trial on both sides if I'm reading it right.

.

Hmm, ok.

I wasn't so much thinking that he declared marriage as a right, just that he decided on his own that this particular situation fell under that category.

(which I admit would seem kind of obvious, if marriage was/is already legally considered a fundamental right).

I still don't know how true it is that fundamental rights are never voted on or that the votes are usually not counted in the long run.

[visionary]

don't be ridiculous. one of the judicial branch's primary functions is to interpret the constitution and the law. striking down unconstitutional laws is one of its most vital roles. the founding fathers did not want mob rule any more than they wanted a dictatorship.

I don't think my concerns are exactly ridiculous.

So if a single judge from a city (in the same state) where most people are very anti-gay marriage or even hostile to gay people overruled a law voted into place by the entire state that said it was ok for gays to marry, you wouldn't have any concerns?

[twa]

I think you're moving in the wrong direction. I don't think that's how it works.

The judge didn't declare marriage as a fundamental right, it was established as such during the trial on both sides if I'm reading it right.

I could see how a Polgamyst could sue their state for a violation of their civil rights the same way these gay couples are doing. I think they have a case. They just don't really exist at the moment.

Declaring SS couples fit within the norms opens the door to removing most marriage restrictions by judicial decree.

Here is the Judge's conclusion:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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.

Don't think his reasoning will hold up,though it will be interesting how SCOTUS reconciles the East vs West coast conundrum:silly:

This ruling rests on fundamental rights,whereas the Mass ruling rested on States right to determine what constitutes marriage.

added

http://volokh.com/2010/08/04/a-maximalist-decision-raising-the-stakes/

But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws.

Walker is the first federal judge to hold that states must recognize same-sex marriages. By doing so, he eschewed a potentially narrower ruling striking down only Proposition 8, which had been suggested by some commentators. Such an alternative ruling would have focused on what critics regarded as the “animus” behind the passage of Prop 8. In theory, it would have left states free to retain traditional definitions of marriage not reinforced by passion-driven plebiscites. I think a narrow, strictly anti-Prop 8, decision would have tried to thread too thin a needle, but it was an option. Walker mentions anti-gay sentiment in the Prop 8 campaign, especially highlighting the shameful and misleading ads supporting it, but that is not the basis for his decision.

Instead, finding a federal right to same-sex marriage itself, Walker leans on not one but two prominent constitutional arguments......

..

Judge Walker, I am sure, would deny that his decision is maximalist. SSM, he assures us, is not a “sweeping” change. Furthermore, his decision is couched in the lop-sided evidence presented at trial about marriage and the potential consequences of recognizing SSM. By my count, he uses the word “evidence” 54 times in the “Conclusions of Law” section alone. This evidentiary reliance will be used to try to insulate the decision from meaningful appellate review. The evidence just leads us, inescapably, to the conclusion that SSM is a neutral or even good thing. What’s more, the evidence is so one-sided that judges are entitled to say so as a matter of constitutional law. But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous.

[Larry]

Hmm, ok.

I wasn't so much thinking that he declared marriage as a right, just that he decided on his own that this particular situation fell under that category.

(which I admit would seem kind of obvious, if marriage was/is already legally considered a fundamental right).

I still don't know how true it is that fundamental rights are never voted on or that the votes are usually not counted in the long run.

FWIW, the USSC already ruled that the right to marry the person of your choice is a fundamental human right. When they ruled that the 14th Amendment prohibited laws banning interracial marriages.

[Hubbs]

I've said it before and I'll say it again. Take the government out of marriage all together.

I guy can marry his table cloth if he likes. No tax break. No anything. Marriage becomes about a person and his/her partner. If they would like to make a contract so that if they seperate, one gets something like they would in a divorce, fine. So who makes the decisions if a person is knocked unconsious, etc....make people come up with some kind of living will.

I know I don't have all the details worked out and it isn't a perfect fix but....why is government even involved in it to begin with?

Ding.

Incentivizing marriage via taxes is a ludicrous notion in the first place. If the difference between a couple getting married vs. not getting married is a freaking tax break, do we really want them to get married? Really? That seems healthy? That seems like a good recipe for success?

[greenspandan]

I don't think my concerns are exactly ridiculous.

So if a single judge from a city (in the same state) where most people are very anti-gay marriage or even hostile to gay people overruled a law voted into place by the entire state that said it was ok for gays to marry, you wouldn't have any concerns?

if the law is unconstitutional, absolutely not.

[twa]

FWIW, the USSC already ruled that the right to marry the person of your choice is a fundamental human right. When they ruled that the 14th Amendment prohibited laws banning interracial marriages.

No, they ruled race could not be used to deny the right to marry the opposite sex.

Person of your choice is a very broad interpretation that is not supported in practice (nor law),they did however find the right to marry is a right.

It like other rights are subject to limits.

[greenspandan]

It like other rights are subject to limits.

man i can't wait to quote you on this the next time gun control comes up here.

[twa]

man i can't wait to quote you on this the next time gun control comes up here.

Feel free, I support reasonable gun control for the greater good.

Defining reasonable limits is the tricky part.

I'm curious if you support the right to all arms for all?

added

Another question .....do you support my right to self defense and defense of property (as defined by my state)being a inherent right that should follow me to other states?

(DOMA related for the curious)

[r3dsk1ns4L1fe]

Just let the damn people get married. who gives a ****. I will never understand why gays guns and god are such a big deal in this country.

[twa]

Just let the damn people get married. who gives a ****. I will never understand why gays guns and god are such a big deal in this country.

Because of the limits we try to impose.....Freedom is a messy business.

[Larry]

Ding.

Incentivizing marriage via taxes is a ludicrous notion in the first place. If the difference between a couple getting married vs. not getting married is a freaking tax break, do we really want them to get married? Really? That seems healthy? That seems like a good recipe for success?

Pointing out that I don't think there are any tax breaks for getting married, exactly.

I think that for most folks, the only effect that marriage has on their taxes is that the two people are permitted to file jointly. In effect, their deductions can to to whichever partner is in the higher bracket.

There are some other effects, like the ability to transfer property between themselves without taxes.

Mostly, AFAIK, the tax effects of marriage is simply that the government treats the two people as a single couple, as opposed to two separate people.

[December90]

Deviants win one in California... Is there anyone surprised?

What is next, sibling marriage or bigamy?

If Greenspandan can marry his boyfriend, then why not his brother? Why not his brother and his boyfriend?

Are the gay activists working on removing the Sodomy laws as well?

[Thiebear]

Damn activist judge overruling the express will of the people. It reminds me of the time that damn court ruled that laws mandating school segregation were unconstitutional. Or that other time that the court ruled that laws prohibiting interracial marriages were unconstitutional. Where the hell do these judges get off determining the constitutionality of laws?!?!?!

You have a point...

Though a Gay Judge ruling on a Gay issue seems biased?

The Judge that had 'some' oil stocks was villified by the same people that ignore it in this case..

I personally don't believe being able to be married it considered equal protection under the law.

Power of attorney, Hospital visits, death benefits and all of the accessories of a civil union are.

Religious marriages should be in the church based on the basic requirements of the Govt-Church.

Civil marriages should be basic requirements of the Govt.

Why do we keep making it so difficult and confusing.

I don't care if you have 8 wives/husbands as long as they are of age and consent.