Proposition 8 Ruling Today

[JLTucker]

For those who want to wonk out, here's the full ruling.

I'm reading it now.

There's some great shit in there.

"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. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.” Id at 23.

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. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he 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.” Tr 3038:7-8. 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.” Tr 3037:25-3040:4.

[Alyrium Denryle]

For those who want to wonk out, here's the full ruling.

I'm reading it now.

There's some great shit in there.

"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. Doc #228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.” Id at 23.

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. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he 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.” Tr 3038:7-8. 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.” Tr 3037:25-3040:4.

You're telling me. All of the Proponent's expert witnesses were considered unreliable by the court and their arguments given Zero weight. The judge lays out the reasons for this in excruciating detail.

[KlavoHunter]

If they were truly for responsible procreation, they would be all FOR gay marriage, and then adoption of otherwise-familyless children by those gay couples.

[Terralthra]

Laws getting overturned on Rational Basis alone are few and far between. That's pretty staggering in and of itself.

[CaiusWickersham]

If this gets upheld at the top, I so wish I can be the guy bringing up a case to the Ohio Supreme Court declaring that line item in the whiteboard that is the state constitution invalid.

[Gil Hamilton]

Looks like Church of Latter Day Saints... er... an Organization That Has No Official Affliation With An Church With Tax Free Status had better get busy rustling up the masses for that appeal.

[Pelranius]

Considering how badly the Proposition 8 people mishandled their side of the trial (even if they were walking on nonexistent legal grounds), it makes me wonder if they were trying to throw this case so they could have a giant "WAW! Activist judge!" bullshit speaking point to take home to the base for November. Though that thought probably is going too far into conspiracy theory territory.

[Kodiak]

Looks like Church of Latter Day Saints... er... an Organization That Has No Official Affliation With An Church With Tax Free Status had better get busy rustling up the masses for that appeal.

I'm not really sure the Church will do anything about the appeal, officially or otherwise. The membership of the church was much more divided about this than many expected, especially in California where many of us have friends and coworkers in same-sex relationships. Granted, there were scant few who went to the mat to oppose prop 8, a large minority of members sat on the sidelines and did nothing.

Right now I expect Church leaders to talk a lot about "Obeying the laws of the land" ie deferring to the courts and waiting for a decision. It there's another ballot initiative about it you'll see action, but I don't anticipate much from the LDS church during the appeals process.

[JME2]

Just read the good news. Thank god.

[Gil Hamilton]

I'm not really sure the Church will do anything about the appeal, officially or otherwise. The membership of the church was much more divided about this than many expected, especially in California where many of us have friends and coworkers in same-sex relationships. Granted, there were scant few who went to the mat to oppose prop 8, a large minority of members sat on the sidelines and did nothing.

Right now I expect Church leaders to talk a lot about "Obeying the laws of the land" ie deferring to the courts and waiting for a decision. It there's another ballot initiative about it you'll see action, but I don't anticipate much from the LDS church during the appeals process.

Are you kidding? The Church of Latter Day Saint was one of the biggest financial backers and pusher for the Prop 8 campaign. They BARELY skirted around losing their tax exempt status (like their employees were campaigning "on their off hours" using the offices but without official LDS letterheads and large monetary donatings coming from "individuals who are part of but not acting on the behalf of the LDS") as it was. Of course they are going to get involved in this now because the organization sunk alot of money into Prop 8 in the first place.

Besides, I've never seen ONE shred of evidence that anyone in the LDS was against Prop 8. If you can point to any two news stories about ANY Mormons speaking out against it or any action whatsoever, I'll back off on that. By sitting on the sidelines and doing nothing, they were giving Prop 8 their 100% full support with their actions. They could have stood up to the LDS and made their voices heard, but they did not. After all, if they spoke out against the church on the issue, I'm sure the LDS would respect their free speech and the diversity within their community and not shun them or anything.

[Superboy]

I'm not too sure of the exact positions of the Supreme Court Justices but I know the court has a conservative lean at the moment. What are the chances that this ruling will be upheld if it gets that far?

It sure is telling that, when forced to provide actual evidence instead of relying on ignorant fear mongering, the prop 8 side had virtually nothing to bring to the table. The details of the actual case and the evidence, or lack thereof, that was provided is fascinating.

[eion]

Well this would be the first same-sex marriage case to go before SCOTUS, so we are in untested waters. However as I posted above, the two lawyers in the case seem to believe that Scalia thinks you can't legalize same sex behavior (Lawrence v. Texas) without legalizing same-sex marriage.

Judge Walker's ruling also makes great use of citations from Justice Kennedy, the "swing vote" on the court. The Gay Rights cases that come before the court in recent memory have all depended on Justice Kennedy as the deciding vote, and he has been adamant and eloquent in his support for upholding gay rights.

[The Defenestrator]

My favorite part: The pro-8 people only presented one expert witness who had actual relevant expertise, named David Blankenhorn. Here's a paragraph about him from the decision:

Blankenhorn was unwilling to answer many questions
directly on cross-examination and was defensive in his answers.
Moreover, much of his testimony contradicted his opinions.
Blankenhorn testified on cross-examination that studies show
children of adoptive parents do as well or better than children of
biological parents. Tr 2794:12-2795:5. Blankenhorn agreed that
children raised by same-sex couples would benefit if their parents
were permitted to marry. Tr 2803:6-15. Blankenhorn also testified
he wrote and agrees with the statement “I believe that today the
principle of equal human dignity must apply to gay and lesbian
persons. In that sense, insofar as we are a nation founded on this
principle, we would be more American on the day we permitted same-sex
marriage than we were the day before.” DIX0956 at 2; Tr
2805:6-2806:1.[emphasis added]

[Kodiak]

Besides, I've never seen ONE shred of evidence that anyone in the LDS was against Prop 8. If you can point to any two news stories about ANY Mormons speaking out against it or any action whatsoever, I'll back off on that. By sitting on the sidelines and doing nothing, they were giving Prop 8 their 100% full support with their actions. They could have stood up to the LDS and made their voices heard, but they did not. After all, if they spoke out against the church on the issue, I'm sure the LDS would respect their free speech and the diversity within their community and not shun them or anything.

2 stories? I can direct you to their website: http://mormonsformarriage.com/

And news article from today

As well as from the 2008 campaign season-

Steve Young's wife against prop 8

A member excommunicated for opposing prop 8

Right now there's not really a "Campaign" to rally behind like there was in 2008, so I predict (read- no evidence, just an insider opinion) that the church leadership will keep its head down until it either goes to SCOTUS or shows up as an issue on a ballot.

[Stravo]

I've read a lot of anxiety about the more conservative SCOTUS but frankly if they rule for Prop 8 they would be flying in the face of bedrock foundation of the Equal protection clause line of cases. In essence everyone must be treated equally and there are certain minority groups that have been identified as protected classes that extra scrutiny is provided whenever anything may infringe upon their rights such as women, minority groups and homosexuals. The SCOTUS would be flying in the face of established precedent stretching back decades to the Civil Rights movement when the equal protection clause really came to the fore. Precedent the SCOTUS essentially set in the first place BTW.

I would imagine they know better than to fuck with such an established principle especially in light of the clown car of evidence that the proponents pulled out. One expert witness actually cited to "the internet" as his sole source for the claim that gays molested children at a much higher proportion than straights. There simply is no escape from the view that this amendment infringes on the rights of a protected class.

As to the whole will of the people angle - I think the judge said it best when he said to the effect that rights can't be voted on. They are a given no matter what a majority wants. Bravo to an extremely well thought out and well written decision.

[Crossroads Inc.]

As to the whole will of the people angle - I think the judge said it best when he said to the effect that rights can't be voted on. They are a given no matter what a majority wants. Bravo to an extremely well thought out and well written decision.

That right there is what I was impressed with, and predictably what the right has been Howling about since the decision. The conservative blogs have been on fire with "Activist Judges overturns the Will of the people!"
"The will of the people" can go shove its head up its butt, if history shows us anything its that if we always followed "the will of the people" we would still have slaves, women couldn't vote, abortion would be illegal and Gays would still all be in the closet.

But hey, for some people thats paradise.

[Lizzie]

I've been watching this topic since last night after hearing the news but my optimism is dragged down by intense pessimism due to having no idea how well the fight will go once it goes higher up on the appeals ... or if it goes to a ballot again. I doubt the Mormon church will sit quietly while something they worked so hard to establish gets torn apart, as much as I wish they would.

I want to feel good about this, I really do ... but for some reason I feel like this victory may be short lived.

(And yeah I know this is my first post, but eh... I'll make a "hi I'm new!" post later. This is more important.)

[Gil Hamilton]

2 stories? I can direct you to their website: http://mormonsformarriage.com/

And news article from today

As well as from the 2008 campaign season-

Steve Young's wife against prop 8

A member excommunicated for opposing prop 8

Right now there's not really a "Campaign" to rally behind like there was in 2008, so I predict (read- no evidence, just an insider opinion) that the church leadership will keep its head down until it either goes to SCOTUS or shows up as an issue on a ballot.

I concede that's two stories about a couple Mormons being against Prop 8. However, are those really the examples you want? The first one has the wife of the prominant Mormon being against it, while the person who's actually the celebrity very carefully stated that he refuses to venture a political opinion on the issue for or against (which is kind of a weenie chickenshit move, he's basically saying "Please don't excommunicate me over my wife"). The second is the LDS formally throwing people out of the church over the issue. That doesn't sound at all like the Mormon community was deeply divided. That sounds like there were some statistical outliers in the fold, which the LDS quashed.

That just shows how completely intolerant the Mormon establishment is here. If they are throwing people out for having a single political view that differs from official church doctrine and have already suck fairly vast amounts of money into it, why WOULDN'T they keep going?

[Terralthra]

I've read a lot of anxiety about the more conservative SCOTUS but frankly if they rule for Prop 8 they would be flying in the face of bedrock foundation of the Equal protection clause line of cases. In essence everyone must be treated equally and there are certain minority groups that have been identified as protected classes that extra scrutiny is provided whenever anything may infringe upon their rights such as women, minority groups and homosexuals. The SCOTUS would be flying in the face of established precedent stretching back decades to the Civil Rights movement when the equal protection clause really came to the fore. Precedent the SCOTUS essentially set in the first place BTW.

Sexual orientation is not a protected class, federally. Federal protected classes are sex, race, age, disability, color, creed, national origin, or religion.

[Stravo]

I've read a lot of anxiety about the more conservative SCOTUS but frankly if they rule for Prop 8 they would be flying in the face of bedrock foundation of the Equal protection clause line of cases. In essence everyone must be treated equally and there are certain minority groups that have been identified as protected classes that extra scrutiny is provided whenever anything may infringe upon their rights such as women, minority groups and homosexuals. The SCOTUS would be flying in the face of established precedent stretching back decades to the Civil Rights movement when the equal protection clause really came to the fore. Precedent the SCOTUS essentially set in the first place BTW.

Sexual orientation is not a protected class, federally. Federal protected classes are sex, race, age, disability, color, creed, national origin, or religion.

Link Just a few months ago the SCOTUS with Ginsberg writing the opinion has identified homosexuality as a class and the lawyers in the decision yesterday cited to this opinion. Another reason why I think the SCOTUS will uphold this decision since it partly rests on this very recent decision of the SCOTUS itself.

[Master of Ossus]

Sexual orientation is not a protected class, federally. Federal protected classes are sex, race, age, disability, color, creed, national origin, or religion.

This is the list of "protected classes" for purposes of employment discrimination, which is by federal statute. It's not the same as the list of suspect and quasi-suspect classes for Equal Protection purposes. Race and national origin are suspect classes; gender and illegitimacy are quasi-suspect classes. But sexual orientation and disability are not suspect classes for Equal Protection purposes, nor is age. Religion's status under Equal Protection has never been litigated, to my knowledge.

Link Just a few months ago the SCOTUS with Ginsberg writing the opinion has identified homosexuality as a class and the lawyers in the decision yesterday cited to this opinion. Another reason why I think the SCOTUS will uphold this decision since it partly rests on this very recent decision of the SCOTUS itself.

But, correct me if I'm wrong (you are the attorney, here) merely finding that sexual orientation creates a "class" does not entitle it to strict or even intermediate scrutiny under Equal Protection. Clearly parapalegics are a class, for example, but they are not entitled to strict scrutiny under Equal Protection.

[Kanastrous]

Is that because they are covered by the ADA, or is that irrelevant to a paraplegic's consideration under Equal Protection?

[Losonti Tokash]

Dan Levine, a law reporter for Reuters, thinks there's very little chance that this will get appealed:

No government entity, including California, is going to appeal this. And yes on #prop8 very well may not have legal standing to do it

[Kanastrous]

The appeal doesn't have to come from a government entity, though, does it? Anyone who can hire a lawyer can bring an appeal, is my understanding...

[General Zod]

The appeal doesn't have to come from a government entity, though, does it? Anyone who can hire a lawyer can bring an appeal, is my understanding...

I think it depends on the state? I know in some states anyone who's adversely affected by a ruling can file an appeal.