A Step Forward for Equality
Evan Manvel
It’s long past time to post a basic open thread to celebrate the judicial finding that California’s anti-gay Prop 8 is unconstitutional.
Judge Walker’s conclusion from his decision:
"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."
Basic Rights Oregon is celebrating and starting to promote their upcoming 2010 Basic Rights Oregon 28th Annual Dinner & Auction at the Hotel Vintage Plaza in Portland right now.
The tide is turning toward equality, far faster than many of us dared hope. I think some 26 countries now allow same-sex marriage – Argentina coming in as the latest. My favorite chart on how the tide is turning is at FiveThirtyEight.com.
The San Francisco Chronicle has some interesting tidbits about Judge Walker – he was first nominated by Reagan, first successfully appointed by the first President Bush, and his appointment had been opposed by Rep. Pelosi who was worried he’d be an anti-gay judge (despite being gay himself).
This case will go up the appeals chain, likely to the U.S. Supreme Court. But today we celebrate a step toward equality for our friends in America's most populous state, brought about by an honest reading of one of our country's most treasured documents.
What are your thoughts? Discuss.
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6:16 p.m.
Aug 4, '10
Here is the key part from the ruling:
That is what will eventually make same-gender marriages legal nationally (and rightly so). This tees it up squarely for the same arguments that held in Loving v. Virginia.
Very glad this was ruled on 14th equal protections grounds. This is a broad ruling as well. Not just because it fully embraces the equal protection argument, but also because it rules it as:
This ruling aims it squarely to go right back down Scalia's throat and he knows it. Even in his dissent in Lawrence v Texas, Scalia said that if the courts find that equal protection on a suspect class (i.e. non-heterosexuals) is set, then it would logically lead to the 14th compelling the government to recognize same-gender marriages as well.
Not that Scalia isn't above completely contradicting himself when needed (witness his finding a 14th equal protection argument in order to grant cert in Bush v. Gore).
But that is why this ruling is so damn good (even if it does render bisexuals invisible again). It drives right at the rock-solid argument of equal protection and the anti-gay side has nothing that can counter it because they are simply in the wrong on this one.
7:39 p.m.
Aug 4, '10
Love this post. Thank you Evan.
9:01 p.m.
Aug 4, '10
Tonight, I toast both Ted Olson and David Bois
Said Bois: "I think that one of the messages that Ted and I working on this case sends is that this is not a Republican or Democratic issue... not a conservative or liberal issue... it's a human rights, a civil rights issue... it's a great victory for ALL Americans"
Said Olson: "We've got to stop thinking in of equality in terms of conservative or liberal.. it's a liberal value; it's a conservative value."
Well done gentlemen; I happily toast you both and Judge Vaughn Walker, who, in this meticulous opinion has set an extremely solid foundation that should allow his ruling to stand the ultimate test (and YOU, informed readers, know what test THAT is!!) Of course, I will not place bets on the Roberts SCOTUS.
But today, WE TOAST!!
(Quotes from Rachel Maddow, 8/4/10 - which you should really see because she goes into great detail about the 2 witnesses the PRO-8 people put forward)
8:06 a.m.
Aug 5, '10
At this great moment in our nation’s history let’s make sure we recognize who is helping move us forward and who is holding us back.
As usual it is primarily conservative/right-wing people/groups/institutions etc. who have been working to deny others the same rights they themselves enjoy. They want to be able to fire people for being gay, they want to deny them marriage rights, many even support criminalizing being gay.
However, the most important determining factor here is religion. Religion has brought many Democrats/liberals together w/ conservatives to work on the anti-gay agenda. This is almost exclusively a case of faith-based lunacy. Like the opposition to stem-cell research, contraception, sex education, the crusade to take away women’s reproductive rights, etc. this is also a faith-based problem.
Millions of Americans have spent countless hours along w/ millions of dollars working to deny gay people the right to marry. Imagine if these people were actually working on solving real problems, actually improving the quality of life rather than destroying it?
As progressives, it is in our best interests to reject superstition, no matter how popular, and advocate for evidence-based approaches to understanding the world.
8:10 a.m.
Aug 8, '10
The last time I checked I didn't have the right to marry another guy either Joshua. I think a federal court judge who is also a homosexual telling the State of California who can and can't get married after over 7 million Californians soundly rejected allowing gays to hijack the institution of marriage the same way they jumped on board the civil rights bandwagon. (much to the dismay of anyone who knows the difference).
It's not just the fact that it's the gays once again running to most liberal homosexual judge they can find everytime the public soundly rejects their attempt to derail marriage, and their lifestyle choices...it would disturb me just as much if they had finally won an election and it was the anti gay marriage people trying to overturn the resounding will of the people. Please don't give me the "everyone used to think slavery was okay too " crappola...this isn't slavery, this isn't about skin color or any other outward feature gay people can't change (except possibly some way bad butch haircuts) this is about marriage...not even on the same page or chapter as real civil rights isues..sorry!
What bothers me about the whole gay agenda and their assault on organized religion and the sacrament of marriage is their motive...which for most of them isn't to get married and live happily ever after ...it's to destroy marriage and attempt to further blur the lines between right and wrong. What they are doing by trying to nullify the expressed will of over 7MM people (a large majority) runs against everything that made this country great... and sickens and disgusts me. Think what you want but this is definitely a big step backwards for us all. Thank God the Supremes aren't Gay!
8:41 a.m.
Aug 8, '10
Bobby, are you off your meds again?
9:13 p.m.
Aug 8, '10
Those silly monogamists hijacked the institution of marriage when they said you couldn't marry as many wives as you wanted. Those silly Spanish hijacked the institution of marriage when they brought in community property laws. Those silly lawmakers hijacked the institution of marriage when they said you couldn't marry a 10 year old. Need I go on? Are you married? Did you give a goat as a dowry?
Further, the "gay agenda" (I am snickering at that as I don't understand how a supposed agenda can act on its own) did not "[run] to [the] most liberal homosexual judge they[could] find." As an attorney, I only wish I got to pick the judge of my choice on any case. A suit gets filed, the court assigns a judge. That is how it works. Granted, as chief judge of the court, he may have taken it upon himself to hear the case. Further, he isn't "liberal" by any means - he is a Reagan and HW Bush nominee.
Finally, I think someone else hit on the head better than I can how the whole canard of "a gay judge can't sit on this type of case" is exactly that, a canard. Judge recusal is very rare for a reason and this is not a reason that supports it. The lawyers on the other side know this and that is why they didn't move for recusal. Had they done so, because this was in federal court, faced stiff sanctions for a frivolous motion for recusal.
1:28 p.m.
Aug 9, '10
So would having a heterosexual judge decide not also be just as suspect?
BTW, should the courts have not ruled in 1967 that laws barring interracial marriage were unconstitutional?
BTW, there is no assault on religion in this debate either. There are churches who perform same-gender marriages, though they don;t carry force of law in most states. So technically it is the anti-equality Prop 8 folks assaulting religious sacraments of marriage by dictating to other churches their discriminatory limitations on marriage, not the other way around. Furthermore, this ruling will not force a single church to perform or recognize a marriage it doesn't want to. Just the same as before this ruling. The Catholic Church for example can continue to deny same-gender marriages being recognized or performed in Catholic Churches, just like they do with regards to divorcees getting remarried, or mixed faith marriages, etc.
Your comment, like the Prop 8 arguments have zero rational basis. and are, to put it bluntly, crap.
9:22 a.m.
Aug 5, '10
For those wishing for more analysis and coverage, I recommend Andrew Sullivan's blog. He's got scads of fascinating info, including analysis about the ruling and how Judge Walker crafted it to stand up on appeal.
10:13 a.m.
Aug 5, '10
I just hope it can withstand the appeals.
11:18 a.m.
Aug 5, '10
Another victory for those who wish to perpetuate the Juristocracy; another blow against democracy in the United States.
I remember when the Democratic party actually supported democracy..........
That was before the Democratic party slid left out from under me. Now I don't even recognize it anymore.
10:33 p.m.
Aug 5, '10
Yeah, lets put inter-racial marriage and slavery back on the ballot. Majority rules right Ken?
(shakes head)
8:16 a.m.
Aug 8, '10
if you aren't able to figure out the differencs betweenthis and a bona fide civil rights issue Mitchell you should go back and repeat that grade. I have faith in the people of Calif. to decide for themselves what and who can get married over the opinion of a Federal Court Judge, who as a homosexual himself is hardly the objective voice of reason we look for whenever they expressed will of over 7,000,000 people is overturned and their votes and their voice is taken away from them ...this is one of the most irresponsible decisions I have seen especially since it comes from a judge who should have recused himself from this case immediately.
11:43 a.m.
Aug 9, '10
Actually, as Ted Olson said on Fox News Sunday with Chris Wallace, the US Supreme Court has found that marriage is a fundamental right under the Constitution, and has done so at least 18 times.
Voters don't get to decide to abridge basic civil rights.
1:35 p.m.
Aug 9, '10
Of course in Robert Summers world, we should still have anti-miscegenation laws in force, because when the Loving v. Virginia case was ruled (outlawing bans on interracial marriage) 97% of the public did not approve of interracial marriage.
1:33 p.m.
Aug 9, '10
Clearly you have zero concept of what is or isn't a civil rights case. This was gender discrimination pure and simple. Your side lost.
Of course, in your twisted world-view, civil rights are up for a vote right?
Swap the word Jew for gay in your arguments and see how they sound.
Let's put the rights of jews to marry up for a vote.
After all, civil rights are up for a vote, no?
So we should have put the issue of interracial marriage up for a vote too, right?
The stunning ignorance of your comment is truly breathtaking.
11:39 a.m.
Aug 5, '10
The political function of rights is precisely to protect minorities from oppression by majorities. The majority should never be allowed to vote on the rights of the minority.
2:49 p.m.
Aug 5, '10
I'm glad you feel that way. Now you understand how motorcyclists felt in 1988 when the legislature sent compulsory adult helmet use to the voters in a referendum. Right on! Let those who ride decide!
10:32 p.m.
Aug 5, '10
You are free to drive without a helmet on your private land all you like. When however you are on public roads, unless you want to have a tattoo of do not help me medically and just hose my remans off the road when you get into any sort of accident, and you self-insure so you don't cost us higher insurance rates... deal?
No?
Well until you are willing to go all kamikaze on your hog, your attempts to claim that somehow you are an oppressed minority without equal protections under the law because you are required to wear a helmet while driving on public roads (which is NOT a right but a privilege) you can go pound sand.
11:39 p.m.
Aug 5, '10
I thought that would be your response. Rights for thee but not for me. How typical.
11:44 p.m.
Aug 5, '10
Nobody has a right to drive on public roads. Sorry if that concept is difficult to grasp.
11:56 p.m.
Aug 5, '10
Oh I get the concept. I am amused by the hypocrisy of someone who probably claims to be pro-choice, but measures a different minority's rights and freedoms by an economic standard instead of a philosophical stand for liberty. How about "keep your laws off my body?" Anyway, I don't wish to play with someone who can't resist the urge to arrogantly denigrate someone who disagrees with them. Just go hang out with the sycophants and I'll ignore your hypocrisy.
9:26 a.m.
Aug 6, '10
What part of nobody has an unfettered right to drive on public roads is not clear to you?
Driving on public roads is a privilege, not a right (and subject to the rules an regulations determined by law and policy set up by our elected representatives in government). Same as why we don't allow non-motorized vehicles to go onto interstates, have speed limits, and all the other limitations and rules for use of our public roads.
If you want to drive around without a helmet on private roads, go to it.
12:55 p.m.
Aug 5, '10
Ken, before you succumb totally to the Fox talking point, it's worth noting that Walker was nominated by Reagan and opposed by Pelosi, Ted Kennedy, NAACP, NOW, and the National Gay and Lesbian Task Force. And the case was prosecuted by Bush lawyer Ted Olsen. Remind me again how this is a DemocratIC issue?
As for your interpretation of democracy, it's exactly upside down. Democracy does not mean mob rule. One of the key features is protection minority rights from bigots, and for that we have always relied on the courts.
2:47 p.m.
Aug 5, '10
Democracy is mob rule. That is why our country was founded as a Republic. That is why Senators were originally appointed by the state legislatures.
My problem with this issue is that supporters of gay marriage have a "by any means necessary" strategy. If democracy suits them, they use it. If they don't get the answer they want for Vox Populi, they go to the courts. If the courts don't go their way they go to the legislature.
In Massachusetts a court ordered the legislature to pass a law legalizing gay marriage. That is a juristocracy, and a clear violation of separation of powers.
BTW, I resent your implied assumption that if you disagree with gay marriage you are a bigot. I don't believe in gay marriage, but if someone labels me a bigot because of my belief, they are using a label to avoid having to see nuances in my point of view. But I learned long ago that liberals throw out a pejorative label when other people dare to have a different viewpoint than themselves. I will be glad when Liberals embrace diversity of thought and drop the hostile dismissal of other viewpoints.
But if the will of the people is to enshrine gay marriage, then I won't file a court decision to stop it. Sometimes in a society, the position you believe in doesn't make it in the court of public opinion. If gay people want to pay the marriage penalty in taxes like I do, and they can convince the majority of the legislature and the people to go their way, then I will tip my hat to them and move on.
4:55 p.m.
Aug 5, '10
Democracy is mob rule.
Well, I suppose you could argue that in some variant it is, but not in our Constitutional democracy. I direct you to the Bill of Rights for exceptions to mob rule.
BTW, I resent your implied assumption that if you disagree with gay marriage you are a bigot.
Resent away. You have every right to your opinion--even if it's in the minority! But our country has a long history where the fears of the bigoted mob have removed rights from a minority group. No doubt those in the mob would have been resentful to have their bigotry pointed out, too.
But sometimes it's useful in a discussion to shelve the niceties. LEt's not let politeness interfere with what's happening. There isn't a single reason to oppose gay marriage except because it offends you. Granting gay marriages in no way deprive anyone of their own freedoms. People may hold bigoted views, but they have no right in this democracy to deprive others their rights. Individual liberty trumps being offended. (I might like to prevent NY Yankess fans from marrying so they don't spawn and create more, but my offence at the Yankees is hardly a reaons to deprive them of their rights.)
Here's Webster on the word "bigot":
"a person obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance"
Although the etymology of the term isn't well-documented, one theory is that it comes from a rendering of "by God." Given that most objections to gays marrying are religious, it's especially appropriate.
4:58 p.m.
Aug 5, '10
Oh, and as to the "marriage penalty," this is a pretty clear crock. The advantages afforded to married couples--especially ones with kids--are manifold. This isn't about performing some ritual in a church, it's about real rights and the lack thereof.
11:49 p.m.
Aug 5, '10
Call it a crock all you want. Our taxes went up when we got married vs. what we paid individually.
Labeling something a crock doesn't make it so. Just like labeling someone a bigot doesn't mean they are one. Your Webster description of bigot doesn't apply to me, at least the part about hatred and intolerance. I might concede the obstinate part. I have been known for that.
Sometimes people will disagree with you Jeff. It doesn't make them bigots.
8:26 a.m.
Aug 8, '10
calling smeone (or inferring ) that people who do not wish to open up something as important to them as marriage is a bigot is very intellectually dishonest Jeff. If this issue is so black and white (so to speak) then why aren't the Gay agenda people able to get their message out there without totally mischaracterizing their movement and without all of the BS name calling that kicks in after people reject it? It's astounding that you are able to see gay marriage as a right that is hidden deep in the constitution somewhere but aren't able to recognize a persons right to have guns which is prominently displayed and has it's own amendment dealing with that issue specifically
1:39 p.m.
Aug 9, '10
Please tell us what the "gay agenda" is if you can. I am very interested to learn about this agenda.
BTW, given that there are pro-gun gay groups like the Pink Pistols, I am a bit confused as to why you think that marriage equality has anything to do with the anti-gun advocacy. Can you please explain why you make the ignorant assumption that to be in favor of equality means you are against gun ownership?
3:08 p.m.
Aug 5, '10
Umm Ken the court held that marriage is a FUNDAMENTAL RIGHT.
Under due process analysis if a right is fundamental the state has a high burden to prove in upholding restrictions on it; they have to prove the restriction is narrowly based and upholds a compelling state interest.
Here the Judge found the ban failed.
Just like popularly/legislatively enacted gun control laws have been struck down recently because the court found they violated the 2nd amendment
And mandatory helmet use is equal to consenting adults being denied marriage?
(mind blows)
8:32 a.m.
Aug 8, '10
They have always had the right to get married Michael ...just not to each other...but guess what? neither have I. No on has ever said they couldn't get married ...if marriage to anyone and anything we choose is a right where do you draw the line? The bottom line is the union of two men or two women is NOT equal to the union of a man and a woman. After that the conversation is over and nothing else matters. Unless of course you happen to be an activist judge who is a homosexual
1:48 p.m.
Aug 9, '10
More intellectual bankruptcy. Your argument is no different than the anti-mixed race marriage cretins claiming that mixed race couples could be legally married, just not to each other.
The Henry Ford argument that you can buy a Ford in any color you like as long as its black is laughable.
Really?
On what basis do you make the claim that my friend Mark and Rick's union of over 15 years is not "equal" to Britney Spears' marriage which lasted 55 hours?
Perhaps you are right on that last point. Mark and Rick's commitment to each other is not equal to Brittany's 55 hours or matrimonial bliss, it is MORE substantial. Mark and Rick's is a damn sight more than many "straight" marriages statistically speaking.
3:11 p.m.
Aug 5, '10
BTW gotta love the fox news types claiming the Judge should have recused himself because he is gay.
What next? Requiring the 6 catholic justices recuse themselves when litigation vs the catholic church over pedophilia reaches the court?
11:46 p.m.
Aug 5, '10
Of course to employ the lunacy "logic" of the Fox News crowd, any judge who hears this case who is heterosexual should recuse themselves as well, since they would be biased because they are straight. So only bisexual judges should hear these cases (wry grin).