Judge’s ruling in gay-marriage case was shrewdly calculated

Vaughn Walker, the U.S. District Court judge who ruled California’s ban on gay marriage unconstitutional, seems to be a wily sort.

As the New York Times observes:

“The ultimate outcome of the California case cannot be predicted, but appeals court judges and the justices at the highest court in the land could find themselves boxed in by the careful logic and structure of Judge Vaughn R. Walker opinion, legal experts said.

…Andrew Koppelman, a professor at Northwestern Law School, said “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.”

The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference.

“They are supposed to take as true facts found by the district court, unless they are clearly erroneous,” he said. “This opinion shows why district courts matter, even though the Supreme Court has the last word.”

And to that end, Judge Walker’s 136-page opinion lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial.”

Walker heard 13 days of testimony and argument, much of it dominated by attorneys arguing on behalf of gay marriage. And they weren’t just any attorneys. Theodore Olson, a former U.S. solicitor general and the lead attorney for George W. Bush in Bush v. Gore, was joined by David Boies, who argued Gore’s side before the Supreme Court.

Dahlia Lithwick at Slate agrees that the impressively fact-based nature of Walker’s work and the failure of gay-marriage opponents to anticipate his approach will makes his conclusion hard to attack:

“It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn’t much of a fight.”

She also notes that Walker’s opinion was “written for a court of one — (Justice Anthony Kennedy) —the man who has written most eloquently about dignity and freedom and the right to determine one’s own humanity.”

Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count—in his opinion today—seven citations to Justice Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law). … Walker trod heavily on the path Kennedy has blazed on gay rights: “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,” Walker notes, with a jerk of the thumb at Kennedy.”

1,038 comments Add your comment

Dave R.

August 5th, 2010
10:43 am

“what really won out today was science, methodology, and hard work.”

If only the proponents of man-made climate change could say the same . . . :)

Sorry for hijacking so early, Jay. I actually agree with the judge on this one.

Balance Our Budget

August 5th, 2010
10:43 am

What’s the point of having a voting electorate when one measly judge can overthrow what the voters want.

USinUK

August 5th, 2010
10:43 am

“fire up their big, gay boogeyman screensaver for two straight weeks”

I wonder if it’s this:

http://popwatch.ew.com/2009/04/22/gay-storm-ad/

USinUK

August 5th, 2010
10:44 am

“What’s the point of having a voting electorate when one measly judge can overthrow what the voters want.”

to protect from the tyranny of the majority.

but I guess you missed that day in civics class.

I Report :-) You Whine :-( mmm, mmmm, mmmmm! Just sayin...

August 5th, 2010
10:44 am

Nice comment, UStink.

~~~~~

Initial claims for state unemployment benefits rose 19,000 to a seasonally adjusted 479,000 in the week ended July 31, the Labor Department said. That was the highest level in claims since early April.

Aahhh, Recovery Summer continues apace and the check is in the mail, yeah, the unemployment check.

We gonna be like Haiti before long, kewl.

USinUK

August 5th, 2010
10:48 am

whiner – :lol: are you offering blog etiquette classes???

Intown

August 5th, 2010
10:49 am

A huge victory for freedom, and a huge defeat for fear and hatred.

Kamchak

August 5th, 2010
10:49 am

Cue the zoophilia comments in 3…2…1….

Doggone/GA

August 5th, 2010
10:51 am

“What’s the point of having a voting electorate when one measly judge can overthrow what the voters want.”

To save our democracy from being “two wolves and a sheep voting on what’s for dinner”

USinUK

August 5th, 2010
10:51 am

USinUK

August 5th, 2010
10:52 am

Doggone – dammit, woman … well said!

Bosch

August 5th, 2010
10:53 am

“[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,”

I’ll give that a polite golf AND ballet clap, along with a raucous applause, and throw in a

TESTIFY.

Saul Good

August 5th, 2010
10:53 am

To have rendered his decision any other way (based upon the “facts presented before him” and the law)… it would have simply been a “political” move.

No matter what…this will be a case before the SC at some point in our near future. I heard an interesting comment made on NPR this morning as I was driving up to Woody Gap to go for a hike… a law professor said (and I forget his name)… it’s just TOO SOON for this to head to the SC… it’s only been 10 years since (in some state) men could be arrested simply for having sex with one another (not sure why he didn’t include women)… His take was that it will take MORE time for our nation to DIGEST the idea of Gay Marriage… because if we act too soon (making it the “law of the land”)… it will just end up being a dividing issue in elections like Roe-Wade… My own take on his comment? He’s probably right… except the “values voters” won’t be able to point towards ANYTHING in the future if gays can legally marry to show how THEY have been hurt. The abortion issue voters from the past few elections point towards the “sanctity of life” (but went rah rah sis boom bah for the invasion of Iraq)… it will be hard to show that MORE people are TURNING gay because of legalized gay marriage. gay is gay… always been here and always will be.

USinUK

August 5th, 2010
10:55 am

Bosch – but Walker is “teh ghey” … so he’s already a godless heathen (sorry, godless heathen)

Bosch

August 5th, 2010
10:55 am

And before the “but the voters and majority said different” folks arrive let’s not forget in 1967 – the Loving v. VA Supreme Court case 75% of Americans were against interracial marriage at the time. I think it’s safe to say we’ve moved past that and marriage is still okay.

Dave R.

August 5th, 2010
10:55 am

Actually Whiner, USinUK is right on that one.

Put it this way, if a Proposition in California, say Proposition 1865, was put in front of the voters, and it stated that people of color and white people were not allowed to marry each other, would you think that the question was un-Constitutional?

My bad. You probably would.

Just replace “people of color and white people” with “people of the same sex”, and you get something equally un-Constitutional.

Either way, the tyranny of the majority needs to be stifled when it conflicts with basic, human equality. That is the heart of the U.S. Constitution.

Doggone/GA

August 5th, 2010
10:56 am

Thanks USinUK. It’s just amazing how many people don’t realize that “the voters” are NOT, and SHOULD NOT be, the last word.

Peadawg

August 5th, 2010
10:56 am

“What’s the point of having a voting electorate when one measly judge can overthrow what the voters want.”

AMEN!

Bosch

August 5th, 2010
10:56 am

USinUK,

It appears the Mormons are gonna have to start having a few more bake sales to raise some more hate funds.

Peadawg

August 5th, 2010
10:57 am

The judge can over-rule this b/c it unconstitutional…hopefully a judge will rule that forcing Americans to buy health insurance or pay a fine is unconstitutional as well!!!!!

Bosch

August 5th, 2010
10:57 am

“Either way, the tyranny of the majority needs to be stifled when it conflicts with basic, human equality. That is the heart of the U.S. Constitution.”

That Dave R. can be alright sometimes.

Bosch

August 5th, 2010
10:58 am

And USinUK,

Walker has “the gay?”

USinUK

August 5th, 2010
11:00 am

Saul – “His take was that it will take MORE time for our nation to DIGEST the idea of Gay Marriage… because if we act too soon (making it the “law of the land”)… it will just end up being a dividing issue in elections like Roe-Wade…”

I was watching my boxset of Mad Men Season 3 over the weekend – I love hearing the audio commentary of the writers and the actors to hear what they were thinking and their take on the action … at any rate, the episode had Carla (the Draper’s maid) listening to MLK Jr’s speech about the Birmingham church bombing when Betty pipes in that, “maybe it’s just too soon for civil rights” …

the actors who were doing the commentary compared it to the gay marriage issue and said that there is no “good time” for it – you can’t wait for people to “be ready for it” – you’re talking about people’s lives. NOW is the time for civil rights – not later.

Bosch

August 5th, 2010
11:00 am

And when is some judge gonna rule that me not being able to buy liquor on Sundays is unconstitutional? Dammit!!

arnold

August 5th, 2010
11:00 am

It’s to save the minority from the tyranny of the majority.

USinUK

August 5th, 2010
11:01 am

Dave – 10:55 – thanks, Dave the Brave Knave!! :-)

Redneck Convert (R--and proud of it)

August 5th, 2010
11:01 am

Well, this constitution stuff got to stop. We know what we want and it ain’t two big hairy men getting hitched and sticking their middle fingers up at us decent folk. You can take the constitution too far and this judge done it. I always thought the majority ruled. But no, this judge says the majority don’t count. This is Judicial Activism. We don’t need no stinking judges. Except maybe to approve the laws us Conservatives pass.

And now we got another Activist Judge that looks like a wrestler about to go on the SC and stick her finger up at us.

I’m just disgusted. Have a good day everybody.

Matti

August 5th, 2010
11:02 am

EQUALITY! It’s the right thing to do.

arnold

August 5th, 2010
11:03 am

USinUK…you’re talking about people’s lives. NOW is the time for civil rights – not later.” Rabbi Hillel said it best, “If not now, when? If not me, who?”

Kamchak

August 5th, 2010
11:03 am

USinUk

Holy crap! I read this story the other day about Man U. on the market for £1.5 billion, but the Glazer’s family business had run up debts to £1.1 billion.

Same with Real Madrid.

Staggering.

jewcowboy

August 5th, 2010
11:03 am

For those who were not following the trial…here is the trial from the bigots points of view…boiled down to a 2 minute video:

http://www.youtube.com/watch?v=rSRFdV65u1I

USinUK

August 5th, 2010
11:03 am

Doggone – would love-love-LOVE to have the people who “amen” that kind of sentiment (yes, i’m looking at you, peadawg) to be on the receiving end of people trying to limit their civil rights by majority vote.

Bosch – re: mormon bake sales – grrr … I wonder how people of GA would like it if the Unitarian contingent in Alabama tried to influence what happened in Georgia.

and yes, Walker has “the gay” … we’ve already seen Scout say that he should have recused himself … expect more of the same …

getalife

August 5th, 2010
11:04 am

Legal weed is next.

Dave R.

August 5th, 2010
11:05 am

Thank you, Bosch and USinUK!

Now if I can just get you two past that whole “The Constitution is a living document” crap, then I’ll feel as if I’ve accomplished something. :D

USinUK

August 5th, 2010
11:05 am

arnold – 11:03 – ZACKLY!!!

Kam – could you imagine if Liverpool went the way of Portsmouth into administration??? :shock:

USinUK

August 5th, 2010
11:06 am

Dave – but this is actually proof that it is a living document – the FFs never specifically said anything about “teh ghey”, but, as we can all see, it still applies. :-)

Guy Incognito

August 5th, 2010
11:06 am

Who has the numbers on the percentage of white voters who oppose gay marriage, as compared to other demographics. It seems to me that most ethnic minority groups overwhelmingly disapprove, but I highly doubt that the Pink Mafia will protest the NAACP or La Rasa. If memory serves, 83% of AA voters in ‘08 agreed with Prop 8.

Not so?

Dave R.

August 5th, 2010
11:06 am

“to be on the receiving end of people trying to limit their civil rights by majority vote.”

Yeah, because this limiting our rights through executive fiat garbage has got to go! ;)

Sarah Palin

August 5th, 2010
11:07 am

Gay Marriage supporters: doesn’t it stab you in the heart, as it does ours throughout the heartland? Peaceful Gheys, pls refudiate

Bosch

August 5th, 2010
11:08 am

Dave R.,

We are on the same wave length today (scary, huh) — I was just thinking to meself, now, if I can only get Dave R., to admit that there are no teacher unions in this state. :-)

USinUK

August 5th, 2010
11:09 am

now, Dave … how have your civil rights been limited by executive fiat? (me, I love the fiat 500 more than the punto …)

barking frog

August 5th, 2010
11:10 am

B.O.B.;10:43;that’s the point of having the second amendment.

Doggone/GA

August 5th, 2010
11:10 am

“would love-love-LOVE to have the people who “amen” that kind of sentiment (yes, i’m looking at you, peadawg) to be on the receiving end of people trying to limit their civil rights by majority vote”

Yes, me too. I read a story quite a while ago now, about a teacher in a (I think) middle-school who set up a scenario for teaching the students about bigotry. The set-up was that blonde, blue-eyed people were inferior and did not deserve equal treatment. The scenario got so out of hand, that the teacher had to stop it before some of those “inferior” people got HURT.

jewcowboy

August 5th, 2010
11:11 am

Did Ginsberg leave a “time bomb” in another ruling that would affect the outcome of Perry v. Schwarzenegger? With these words: “Our decisions have declined to distinguish between status and conduct in this context,” Ginsberg may have just foretold the outcome of the trial before it has even come before the Supreme Court:

http://www.nytimes.com/2010/07/20/us/politics/20bar.html

Del

August 5th, 2010
11:11 am

When this issue reaches the SCOTUS and it will, Justice Kennedy and the conservative justices will find it very difficult to overturn the peoples will and allow Prop 8 to be overturned. 5-4 in favor of upholding.

Saul Good

August 5th, 2010
11:11 am

Dave R: “Either way, the tyranny of the majority needs to be stifled when it conflicts with basic, human equality. That is the heart of the U.S. Constitution.”

Could not have said it better myself. Thanks.

To those who want to keep basic human rights at bay to ALL AMERICANS:

Not every “law” is voted upon. Besides the fact the Roe-Wade was never voted upon and is the law of the land… there are too many “laws” in our nation where the citizens simply did not vote to “pass” the law.

Did the “right to bear arms” become LAW because our nation had a vote?
Drunk driving illegal because we all took a vote?
Murder illegal because we took a vote?
etc…etc…etc….

So the excuse of “but people “VOTED ON IT” is not valid… most of all when it comes to basic human rights.

USinUK

August 5th, 2010
11:11 am

Doggone – may I suggest the movie “The Wave” – it’s something similar to that concept based on an experiment a teacher did in a school back in 1973

Normal

August 5th, 2010
11:12 am

USinUK,
I can’t tell you how it crushed me to find you graduated from high school in ‘87. I fear we must never see each other again, you are just too young and I don’t want to go to jail..This saddened Class of ‘65 man will just stumble down life’s road pondering the cruelness of it all. Adieu, my love, adieu… :D

Dave R.

August 5th, 2010
11:13 am

USinUK, the Constitution specifies the terms “person” or “persons” in very generic terms. Not men, women, blacks, whites, Christians nor Jews.

As I said, there is no need for a living document argument when it is viewed as the government limiting document it was always intended to be, not an enabling document.

USinUK

August 5th, 2010
11:14 am

Normal – it’s 1984 … does that help??

:-)

Doggone/GA

August 5th, 2010
11:14 am

USinUK – thanks. I haven’t heard of that movie before.

Bosch

August 5th, 2010
11:14 am

Normal,

I’m a year older — ya’ wanna go out? ;-) Maybe we can hook up with my pal in the blue van. He’s a babe magnet.

Dave R.

August 5th, 2010
11:14 am

“now, Dave … how have your civil rights been limited by executive fiat? ”

Now, USinUK, you’ll note I dropped the operative word “civil” in my response. I’m tricky that way.

USinUK

August 5th, 2010
11:15 am

dave – “government limiting document it was always intended to be, not an enabling document”

which is exactly what we saw today – limiting the government on what they could/could not legislate.

jewcowboy

August 5th, 2010
11:15 am

This is rich indeed coming from a thrice married salamandridae:

“Judge Walker’s ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife. In every state of the union from California to Maine to Georgia, where the people have had a chance to vote they’ve affirmed that marriage is the union of one man and one woman. Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy.” ~ Newt Gingrich

jewcowboy

August 5th, 2010
11:16 am

Del,

“Justice Kennedy and the conservative justices will find it very difficult to overturn the peoples will and allow Prop 8 to be overturned. 5-4 in favor of upholding.”

So they will act as “activist” judges and not follow the law…curious.

Doggone/GA

August 5th, 2010
11:16 am

“when it is viewed as the government limiting document it was always intended to be, not an enabling document.”

The operative word being “viewed” – that’s how YOU view it. That doesn’t make your view correct. As for “intended” – now you’re claiming mind reading capabilities from the minds of dead men?

Personally, I don’t see it as ONLY being a limiting document…I see it as BOTH limiting AND enabling. And yes, before you jump in, that is MY “view” of it.

USinUK

August 5th, 2010
11:17 am

Dave – oooo … tricksiness!

Doggone/GA

August 5th, 2010
11:18 am

“This is rich indeed coming from a thrice married salamandridae:”

Rich…but not surprising. He’s quite in tune with playing to his audience.

Dave R.

August 5th, 2010
11:18 am

“which is exactly what we saw today – limiting the government on what they could/could not legislate.’

Agreed. Now if they’d just view it as that on every occasion, I’d be Mr. Happy! :D

Saul Good

August 5th, 2010
11:18 am

USinUK: “the actors who were doing the commentary compared it to the gay marriage issue and said that there is no “good time” for it – you can’t wait for people to “be ready for it” – you’re talking about people’s lives. NOW is the time for civil rights – not later.”

I AGREE 100%!!!
Sad that people simply can not equate what took place in our “great nation” against African Americans..and what is happening to Gay Americans…
Years ago (not so many when looking at the age of our young nation)… African Americans could not legally marry… and when they COULD…they could not marry a person of another race… they could not vote…. they were simply “classified” as “less then WE” (less then human)… which meant white Christians are BETTER.

So are STRAIGHT Americans BETTER and SUPREME in their existence compared to GAY Americans? How dare anyone even ponder such a thought…even to think it for a moment is simply wrong… so very, very, very wrong….

John Frum

August 5th, 2010
11:19 am

“what really won out today was science, methodology, and hard work.”

If only the deniers of man-made climate change could say the same . . .

Normal

August 5th, 2010
11:19 am

I saw this on the Rachel Maddow show last night and I thought then, that if there was ever a man made for the Supreme Court, it was Judge Walker…

Redneck Convert (R--and proud of it)

August 5th, 2010
11:20 am

Well, I’m giving up on USinUK too. 1984? Heck, I was already 42 years old back then. I ain’t no baby-snatcher.

USinUK

August 5th, 2010
11:20 am

“Rich…but not surprising. He’s quite in tune with playing to his audience”

which leads to the question … can you be BOTH a pander-bear and a salamander?

Gingrich seems to indicate … yes.

Normal

August 5th, 2010
11:21 am

See, I was so crushed, I couldn’t see the date for the tears…

USinUK

August 5th, 2010
11:21 am

ohnoooooooo!!! I lost both Redneck AND Normal on the same day!!

WOE!!!

jewcowboy

August 5th, 2010
11:21 am

I do find the Terminator’s reaction quite interesting, especially since his name was on the lawsuit:

“Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision. For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity. Today’s decision is by no means California’s first milestone, nor our last, on America’s road to equality and freedom for all people.”~ Gov. Arnold Schwarzenegger

Dave R.

August 5th, 2010
11:23 am

Except, Doggone, that your “view” completely ignores the writings of the people who created this government and that document – namely the Federalist papers.

They could not, and did not put intent into that document, because it was meant as a guide to be used; not as some unwieldy document that had to be poured over for every period and comma. That is the role of the Federalist papers. There is NO mind reading involved – just reading.

That you pointedly ignore what every Constitutional (note, I did not say Constitutional LAW) scholar says about the Framers intent shows your bias on this subject, and frankly, a laziness on your part to not even do elementary research.

Saul Good

August 5th, 2010
11:24 am

Wahts alls use gots againtz 1984? Vintage year to have graduated. I mean…that’s the year “Like A Virgin” came out? Best tootin’ tune that ever came out of this great nation! UGH!

But really… the 80’s were good. I got to finally vote AGAINST Reagan the first time I could vote! :)

Dave R.

August 5th, 2010
11:25 am

“I saw this on the Rachel Maddow show last night and I thought then, that if there was ever a man made for the Supreme Court, it was Judge Walker…”

I’m not willing to jump into THAT pool just yet, Normal.

[...] Legal blogger reveals how Judge Vaughn Walker’s ruling on Prop. 8 was more than just a simple legal decision. His team meticulously researched scientific facts and historic precedents to write an opinion that [...]

jasperite

August 5th, 2010
11:29 am

This case is dripping with irony.

What I find ironic is that the opinion is by a Republican judge appointed by President Reagan.

And even more ironic, his confirmation was held up 2 years by pressure from the gay community because of his successful handling of a case preventing a group of gay olympians from starting a “Gay Olympics”. He was seen as “anti-gay”.

More irony. The brains behind the constitutional argument and the plaintiff’s case are Ted Olson and David Boies, the opposing attorneys in the Bush v Gore Supreme Court case in 2000. Olson was the attorney for Bush and, of course, won the case for Bush & put him in the White House.

The fact that Ted Olson went on to serve as Solicitor General of the US under George W. Bush is even more ironic.

Is this true bi-partisanship at work?

Olson & Boies have a strong constitutional case regardless of your opinion of gay marriage.

From Article IV of the Constitution: “The Citizens of each State shall be entitled to all Privileges and Immuniities of Citizens in the several States.”

From the XIV Amendment to the Constitution: “No State shall make or enforce any law which shall abridge the priviledges or immunities of citizens of the United States;….nor deny to any person within its jurisdiction the equal protection of the laws.”

Strong legal case. The Constitution says what it says.

The question on the table is whether the Court will find a way to allow for an overriding State purpose in denying to a minority rights enjoyed by the majority.

I agree with Jay on this one, this is a Justice Kennedy case.

Gale

August 5th, 2010
11:31 am

I am happy to see the prevailing civility and “of course”ness on Bookman’s blog as compared to the group over on Tucker’s blog. I hope the cranky ones stay there.

williebkind

August 5th, 2010
11:32 am

This is a stupid topic about the ruling of a liberal in republican disguise. It is not about rights but simply gays wants us to recognize this behavior as NORMAL. It aint gonna happen.

ken R

August 5th, 2010
11:32 am

USinUK,

Since when was the whole a Tyrant, that label is usually reserved for a Tyrant, in the singular. You must be the one who missed CIVIC’S class, please check Webster if you don’t believe me.

I personally think it’s a shame when 1 judge can overrule thousands of voters, why the hell vote?

Dave R.

August 5th, 2010
11:32 am

Isn’t almost EVERY case a Justice Kennedy case? :)

Gale

August 5th, 2010
11:33 am

Oh, and I can’t wait to read the decision. At 136 pages, I am afraid it will have to wait until tonight.

Saul Good

August 5th, 2010
11:34 am

jasperite,
Need I add that some on the “right” are now saying that Judge Walker made up his mind BEFORE the case? Why? Because they are saying that HE’S gay! (not that there’s anything WRONG with that)…

Here ya go:
http://articles.sfgate.com/2010-02-07/bay-area/17848482_1_same-sex-marriage-sexual-orientation-judge-walker

“The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.

Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise – or advertise – his orientation. “

Jay

August 5th, 2010
11:34 am

Dave R., correct me if I’m wrong here:

1) You believe Judge Walker’s ruling is constitutionally correct, not because the Constitution is a living document, but because Walker’s ruling is consistent with original intent.

Am I right so far?

2. You thus must believe that in 1796, if this case had come before the Supreme Court headed by John Marshall, that court would have ruled that gay Americans had a constitutional right to wed. You must also believe that James Madison and other Founding Fathers who drafted the document would also have backed the constitutional right to wed.

If I understand you correctly, that is the implication of your argument. Am I missing something?

TGT

August 5th, 2010
11:34 am

SUCK ON THIS, MORMONS!!!

Cute. Maybe you have a similar message to California Blacks:

According to Colby Cash on nationalpost.com, “traditionalist churches needed help to pass Proposition 8—and that help came from black voters brought to the polls by Barack Obama. The measure lost outright among white and Asian voters; it won by more than two to one amongst blacks, who mostly belong to deeply conservative evangelical churches and who turned out on Nov. 4 (2008) in unprecedented numbers.”

Anyway, if necessary this will be settled by an amendment to the U.S. Const. 30 states already have amended their state const. Only 8 more are necessary for an amendment to the U.S. Const. According to this: http://en.wikipedia.org/wiki/File:Samesex_marriage_in_USA.svg
in addition to the 30 aforementioned states, there are 9 additional states that ban same-sex marriage by statute. Given that whenever this issue is put on a ballot it passes with about 68% of the vote, it would probabaly be not much of a leap for these 9 states to amend their const.

Gale

August 5th, 2010
11:34 am

willibkind, Homosexuality is Normal. It is more common for humans and other species to be heterosexual, but it is normal.

Doggone/GA

August 5th, 2010
11:35 am

“That you pointedly ignore what every Constitutional (note, I did not say Constitutional LAW) scholar says about the Framers intent shows your bias on this subject, and frankly, a laziness on your part to not even do elementary research”

Well, it’s hard to ignore that the Constitution is a LEGAL document…so why would you exclude the opinions of Constitutional LAW scholars? And I do not think it’s necessary, either, to pore over every “period and comma” – the document speaks for it’s own “living” status by it’s very openess and lack of specificity on most subjects.

It was written (I make no judgement, as you have, about intent) as an “open” document. And that is why it has survived so long – precisely because it CAN be interpreted as covering subjects that may not (note I did not say “did not”) occur to the framers.

Dave R.

August 5th, 2010
11:35 am

Ken R, Please read my 10:55 as to why, and then ask your question again.

And williebkind, who gets to decide what is NORMAL or not? You?

Don't Forget

August 5th, 2010
11:35 am

Amazing to think that as recently as 1967, 16 states had laws against inter-racial marriage. As I recall the proponents of those laws regarded inter-racial marriage as “unnatural” as well. Freedom and liberty march forward.

Saul Good

August 5th, 2010
11:36 am

Dave R. “Isn’t almost EVERY case a Justice Kennedy case? :)

Almost… but….. (I’ll leave it there…suspended in “mid-air” and to linger)… we’d go on and on all day if we took it on a case by case basis….

USinUK

August 5th, 2010
11:36 am

ken – first of all, civics is a plural, not a possessive … you might want to go back to english class while you’re at it.

Tyranny isn’t limited to one person. “Arbitrary or unrestrained exercise of power” “a similarly oppressive and unjust government by more than one person” “any harsh discipline or oppression”

“I personally think it’s a shame when 1 judge can overrule thousands of voters, why the hell vote?”

so, if GA were to vote to reinstate slavery, then they should be allowed to … hey, the majority rules!

lovelyliz

August 5th, 2010
11:37 am

Prop 9: Marriage shall be restricted to those who can pass a virginity test, men & women, and who have never participated in the Old Testament abominations of eating shellfish & pork products nor ever worn mixed fabrics. I almost forgot. Al…l divorces will be nullified and Newt Gingrich must go back to ex-wife #1.

Please note heavy use of sarcasm.

Where's Jay?

August 5th, 2010
11:38 am

@Jay. Overall good work on the APS story. As they said in Field of Dreams, “Go the distance,” Jay. You’ve certainly laid out enough evidence to call for her resignation. Go the distance.

USinUK

August 5th, 2010
11:38 am

TGT – hey, if the black community THAT LIVES IN CALIFORNIA funded the Prop 8 campaign, that would be bad enough … however, this was primarily funded and promoted by people who don’t even live there.

like I said earlier, I don’t think Georgians would be particularly sanguine if Alabama Unitarians were trying to limit their civil rights.

jewcowboy

August 5th, 2010
11:42 am

I do find it interesting that the general consensus for proponents of Prop 8, and their ire at this decision seems to be, “But the people voted on it.”

Well let’s just look at that argument for second. What would the reaction be if a ballot initiative passed making it illegal for people with genetic diseases such as Sickle-cell disease or Hemophilia, to marry?

What would be the reaction if a ballot initiative made it illegal for people who make under $20k a year to marry?

This argument is facile and weak, just as the defense of Prop was. That is why it lost, and that is why it is not a matter “if” gay marriage will be legal throughout the U.S., but simply a matter of “when”.

Normal

August 5th, 2010
11:42 am

Homosexuality is Normal

I never knew…Honey, I’ve got some bad news…

Dave R.

August 5th, 2010
11:43 am

Yes, Doggone, I do exclude the opinions of Constitutional LAW scholars when discussing the Constitution, because the LAW has been ba$tardized for over a century to not reflect the actual Constitution.

And again, I make no judgment about it’s intent. I READ what it’s intent was by those who wrote it.

Find me any instance in the U.S. Constitution that specifies man over woman, black over white, Christian over Jew, or straight over gay. It doesn’t. It specifies “person” or persons”.

Then tell my why it had to be amended.

Never mind – I’ll answer that for you. Because people didn’t give the deference due the Constitution and created or upheld LAWS which perverted the entire reason for that document.

buck@gon

August 5th, 2010
11:43 am

Jay,

You can’t respond to this logically, so I don’t expect you to, and I continue to believe that your logic will be seen more and more every day as failing when you publish such schlock opinion journalism that continues to bring disgrace on the once passable AJC. (In your giddy excitement over the ruling you wrote poorly too.) I’m actually surprised that everyone seems to have missed this little nugget you cite above: “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate”

Now whether or not you believe state licensing of any alternate kind of marriage is right or wrong, having the judiciary deciding FOR THE LEGISLATURE AND THE PEOPLE what is and what is not an appropriate reasoning for whatever the people or their legislators codify is dangerously anti-democracy, anti-republic and can only lead to tyranny. Herein is the mode by which all legislation (or even the constitution itself) can be replaced or caused to mean whatever a ill-tempered black-robed bureaucrat decides it to mean. Are you, proud expert journalist of Penn State, expert in historic and scientific knowledge, and winner of a $75,000 prize completely blind to this bald abrogation of power?

The opinion can only be shrewdly written because in Washington and California (and at the AJC), people seem to have forgotten the basic truth of representative republican government–three coequal branches of government. With judicial “appropriateness” of any law being the key, the judiciary is supreme, we can’t depend on our laws! The founding fathers are kneeling in their graves praying that this awful precedent doesn’t continue.

Gale

August 5th, 2010
11:44 am

USinUK

August 5th, 2010
11:44 am

buck@gon

August 5th, 2010
11:45 am

Jay,

Also:

What made the judge say anything about animus?

Is this the left-liberal temper-tantrum logic of “if you won’t agree to what I want, you must be a bigot?”

Dave R.

August 5th, 2010
11:45 am

“What would be the reaction if a ballot initiative made it illegal for people who make under $20k a year to marry?”

Marry? No.

Procreate? Hmmmm. . . :)

stands for decibels

August 5th, 2010
11:45 am

if there was ever a man made for the Supreme Court, it was Judge Walker

b. 1944. Way too old. Four years older than Clarence Thomas who, for the record, was but 43 when he became SC justice

jewcowboy

August 5th, 2010
11:48 am