Prop 8 Goes the Way of the Dodo

Remove all ads!

I don't know how I missed this, but a federal judge struck down California's Proposition 8, which banned gay marriage. However, the Judge, expecting that his ruling would be appealed, said that he would not require the state to stop enforcing Prop 8 during the appeal process

Link.

EDIT: Better Link IMO.

Judge Walker wrote in his statement: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license ... 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.”

The plaintiffs in the case argued that Prop 8 violated the US Constitution's Equal Protection Clause, and the judge agreed. This is definitely headed to the Supreme Court at some point, although not before 2011 - the SC has already decided on it's case load for the remainder of 2010.

Here's an interesting point though - the judge, Vaughn Walker, is himself gay. I'm sure we're going to hear a chorus of people saying that his decision was biased.

 

It really makes you wonder who decides who will see what cases? Even the judge knows it was going to be sent to a higher court, but it really makes you wonder why they would give it to a judge where there will be a built in argument against his decision. If a married judge with four kids came to the same ruling it would have a much greater effect.

 

Gays can become judges in the US?

WHAT THE HELL KIND OF COUNTRY DO YOU PEOPLE HAVE DOWN THERE?!?



Edit: But seriously, I agree with Snook. It's pretty hard to avoid the appearance of bias in a situation like this.

 

So it wouldn't be bias if the judge had been heterosexual?

 

I don't think the judge was biased - I agree with his decision. However, even though his ruling seems sound, Judge Walker gives the impression of bias because he is gay i.e., if he has an interest of getting married (and I don't know if he does or not), then he has something to gain by ruling against Prop 8.

On the other hand, if the judge had been heterosexual, he would stand to gain nothing by ruling against Prop 8. So if he were heterosexual, the Judge would simply be labelled a "liberal activist judge" whereas in Walker's case he's a "liberal activist judge with an agenda".

EDIT: And out of curiosity, what happens if you live in a state like Iowa, get married to someone of the same sex, and then move to somewhere else where gay marriage is not recognized? Are you then unmarried?

 

Under the full faith and credit clause other states would have to uphold their marriage, just like when same sex couples adopt and move to states that don't allow homosexuals to adopt. http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause

 

They don't 'give a case to a judge'. They don't sit there and debate: Eh, this is going to be fun, you're gay, you like to try prop8?

Usually in a larger court there is a plan which judge will be responsible for claims, say, from A-F. It is made well in a advance. In order to be your legal judge he is this way to be specifically appointed to hear and rule over your case (and who is if he is sick or dead etc.pp.). If then the judge appointed for W-Z hears you, that's a violation of proceedings, and an appeal can be based on that alone. The pre-determination of judges in advance is meant to ensure neutrality. Simplified and according to German law, but I doubt it is much different in the US. In a sentence: It was simply this judge's turn.

You may perhaps have wished he'd recuse himself, but why? Does his sexuality warp his legal arguments, in a gay way? Expecting him to recuse himself is like expecting female judges to recuse themselves from hearing cases filed by woman about domestic violence. Eh, she's too close to that group - woman! Or think about divorced judges not recusing them hearing divorce cases. Eh, he's biased against divorcing wives!

I can readily understand why he didn't recuse himself: (a) He would have stalled the case when it is in everybody's interest to see it resolved quickly, (b) he would have, in a sense, humiliated himself (by implying that his gender would make it a problem for him to rule rationality over this case - very understandably he refused to do that), and lastly (c) there is a reasonable argument for unconstitutionality, and you don't need to be gay to see that.

Anti-gay crusaders would reliably appeal a ruling against prop8 anyway. As part of their legal activism they do that habitually in order to provoke precedents (on gay marriage, and also creationism, abortion etc. pp. - pick your wedge issue).

And prop8 opponents would do the same. Because they IMO rightfully, see laws like prop8 as legal discrimination (unlike the largely abstract threat post by gay marriage to American society [starting with the erosion of traditional marriage ... and ending with making God mad so he'll send hurricanes and earthquakes], laws like prop8 pose a very concrete problem for gays who choose to live together).

This trajectory would have brought the case to the higher court anyway, so what's the difference who ruled over the first case in federal court - a gay, a lesbian, a straight or a zebra judge?

In a sense it would be deliciously ironic if in appealing the decision over prop8 - meant to protect the sanctity of marriage and nothing but (irony!) - the proponents would indeed start bashing the judges gender instead of speaking on the merits of the law. Having a gay judge ruling over prop8 might just lure them out of the closet (pun!).

 

I agree with you, untill DoMA is repealed, the full faith and credit clause is out. But isn't DoMA unconstitutional considering it contradicts part of the constitution?

 

You clearly wouldn't want a straight person judging the case either, as clearly they'll be biased. So no gays and no straights is the obvious solution.

 

in my opinion the bisexual crowd seems to be getting larger and larger as time goes on and more and more people seem to see that it doesnt really matter if your male or female and falling in love with eaither a person of the same sex or the opposite sex. i seem to be running into a lot more younger people that are bi on the internet. im bi myself so to me love knows no bounds.

 

I think it's early to call it 'gone the way of the Dodo', but this is certainly a blow against it. On the case of bias, I read a review of the decision that made the arguement from a different stand. In that reviewer's opinion, the Judge took every chance to criticize the defense's arguements as groundless and their witnesses as biassed, and every option to praise the plaintiff's arguement as logical and their witnesses as unbiassed.

That itself hints at bias. Hints, mind you, not proves. He may well have judged the case honestly and fairly, and the defense was just completely incompetent.

As for the sexuality thing, it does raise some concerns, but I doubt it's enough for appeal just on those grounds. A heterosexual judge would be better, simply because you can't see any clear drive for them to be for or against gay marriage. There are plenty of heterosexuals who support each position, and plenty more who are divided. I can't say I've ever met a gay person who didn't support gay rights, though.

Anyway, we'll see what happens on appeal.

 

Allow me to explain. I am using the rules that accountants follow and maybe our rules are stricter than lawyers/judges. In my profession in order for us to audit a company's books and issue a report on the financial statements we have to be independant. We have a laundry list of rules and regulations that we have to follow to determine if we are independent. However, at the end of the day, the rule is we have to be independent in fact and appearance. It is the appearance part that typically disqualifies people from doing the work.

No matter how good and just of a judge this guy is there is no way he can appear impartial in appearance as he is someone who would be directly impacted by the decision in one way or another.

Now I've seen people chime in and try to imply that the opposite is true and that a heterosexual is in the same boat and maybe we should find some bisexuals to help out. These are ludicrous arguments as they have no basis in reality. It is not a stretch of the imagination to believe that almost 100% of the homosexual population would like the decision to go the way it did. The opposite is not true as there is no where near 100% of the hetrosexual population who are against the decision. Just looking at the people on this board it is clear that hetrerosexuals could very easily side with the judge in this case (or there are plenty of people who I assumed are straight are actually gay, and you know who you are...)

 

Actually the most ludicous argument presented so far, is that a judge, who happens to be gay, should recuse himself. Implying that a judge, because of sexuality couldn't make a just decision.
The next thing will be, that black judges can't judge on racial cases or as allready said female judges can't judge on cases involving domistic violence against women.

if we accept your ludicrous assumption, nobody could infact judge any case, because no matter what you could find some slight bias in favor of one of the sides.
Or we can accept that judges are highly trained public servants who don't let personal feelings interfere with their cases.

 

Republicans have been trained by their talking heads for about thirty years to fear bias, and use bias, real or alleged, as a reason to discount countervailing views. It's an integral part of their political absolutism (conservatives are absolutely right, everyone else is absolutely wrong, on everything). In that narrative, and it is not more than that, this ruling is a case of liberal judicial activism in which a gay judge interpreted the lay in a gay way. IMO that narrative is largely BS.

People who object to his ruling ought to try to explain how the judge is wrong, not how he is gay. It boils down to two questions:

(1) How does prop8 not violate the US Constitution's Equal Protection Clause? (2) How it advances a rational basis (beyond: the dictionary says marriage is between a man and a woman) for singling out gay men and lesbians for denial of a marriage license.

Anyone has a text of prop8?

 

the text is fairly short and simple

for does of you who are interrested in the actual trial progress you can find transcripts of each court sesion here http://www.equalrightsfoundation.org/our-work/hearing-transcripts/ and re-enactment of the trial here http://www.marriagetrial.com/

 

Your examples aren't the same thing. A black judge can rule on a racial case because he wasn't the one who had race used against him. A female judge can judge a domestic violence case as she wasn't the one who was beaten up. Although I believe in both cases the judge should recuse themselves if in the first case the Judge was involved in a racial case or in the second case the Judge was a battered spouse.

They don't let you sit on a jury if you have been involved in a case similar to the case on trial, why should they allow the judge to do the same thing.

In this case the judge does have something to gain by his decision. Would they allow a judge to sit in a class action lawsuit if the judge was going to end up being one of the plaintiffs? Of course they wouldn't allow that. In this case the judge clearly has the potential (I'm not saying he will) for benefit. That is why I believe it was either a stupid move for whoever put him on the case or it was a mistake in the judge's judgement to not recuse himself to avoid any hint of a lack of objectivity.

This judge may be a great guy and he may have the correct decision, but they should have found someone else do it.

I liked some of this guy's article on the subject

I think his last example is inappropriate as the Boy Scouts is a private organization that makes its own rules not a government entity/law. I believe this will be the argument used to show that the amendment doesn't violate the equal guarantee clause.

I personally feel this is what this entire issue is really about and I'm not convinced the way to go about becoming accepted is to really piss off a large section of the population. You get more flies with sugar than you do with vinegar.

For disclosure purposes- I have nothing against homosexuals as I have some lesbian cousins who I like very much. I do object to the term "gay marriage" as I'm a traditional kind of guy and if marriage meant a man and a woman for a couple of thousand years I see no reason to change it. I have no objection to "civil unions" or similar type things. I believe they can be given the exact same "rights" that married people have. In fact, considering that Obama is going to let the Bush "tax cuts" expire and the "marriage tax" will be back (I thought only people making over $250K were going to see their taxes go up) I would be thrilled to see homosexual couples have to pay the same taxes I do.

 

actually my cases was exactly the same thing and you missed the point completelly. But keep talking about how blacks and women can't be impartial in cases involving either blacks or women. The point was, which I even wrote below, that you can accusse all judges in all cases of having some form of bias or you can accept that judges generally are so well trained, that they ignore whatever bias they may have.
Sadly you have chosen the form, which is no surprise, considering you cleary are willing to deny gay people the same rights as strait people.

 

So basically you're saying it's a matter of semantics. Same rights, different terminology. This seems to be totally at odds with what you quoted earlier:

...which is saying that the rights afforded by marriage 9or whatever you choose to call it) should not be extended to gays.

Edit: I do agree with Snook on the difference between black/female judges ruling on the cases cited vs. a gay judge ruling in this case. The former have nothing to gain personally, whereas a gay judge potentially does. Whether or not bias actually exists is irrelevant; it's the appearance of bias that matters.

 

There was one line in Jay Ambrose's article that jumped at me:

That captures it in one sentence: He expects that a judge makes his legal views meet that of the majority (and incidentally, his views) - which very well can be something other than what the law says.

The will of the people means little if it is irreconcilable with the constitution. Then these 52 percent of Californians hold an unconstitutional view. That the judge dared defy the collective will of 52 percent of Californians, because he thought that this will as expressed in prop8 is unconstitutional, ought to be reassuring from a rule of law point of view - after all: If prop8 was unconstitutional negating the will of 52 percent of Californians was imperative.

---------- Added 0 hours, 47 minutes and 40 seconds later... ----------

That would perhaps be correct if the judge was gay. So far he hasn't said anything to that effect. So far his gay- or not-gay-ness is a rumour.