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Department of Justice
Lawyers & Law Firms
Mark Twain wrote:
"I was afraid of a united church; it makes a mighty power, the mightiest conceivable, and then when it by and by gets into selfish hands, as it is always bound to do, it means death to human liberty and paralysis to human thought."
It is true, that one who is faithful has faith that one has the knowledge of the existence of ones God.
Belief in your faith is your right, and in our country we are free to believe what we wish, but we are not free to tell other people what they can or can't do simply based on our beliefs. Philosophical grounds are alone insufficient justification to disallow citizen's rights that others retain.
It is important to make a distinction between "marriage" and "holy matrimony."
Marriage is a civil contract between two people who promise to live together and look after each other. Holy Matrimony is a religious rite that is sacred in character. The Prop 8 lawsuit is about marriage, not holy matrimony.
The idea of marriage equality for all citizens means simply that any two persons can enter into a legal contract to live together. Equality before the law is an American ideal, and this lawsuit seeks to make homosexual persons equal.
What the various religious bodies decide to do about holy matrimony is their individual business and will continue to be, no matter what the court rules about civil contracts.
This is simple stuff people. Would the real libertarians please stand up?
Actually, Judge Walker said that under the Equal Protection Clause LGBT people should be considered under strict (or intermediate scrutiny) but that regardless, Prop 8 didn't stand up to rational basis review. So his ruling actually held the law to the lowest form of scrutiny and still overturned it on that basis. Learn to read.
If you read the California civil unions law it states that these unions have all the rights and privileges as a marriage. I question why the judge believes that this isn't equal protection under the law. The amount of time and money being spent on trying to change the definition of marriage is ridiculous. This will get to the supreme court because the Christian conservatives will not give up. I believe that marriage has a definition of a man and a woman but do believe that same sex couples should have all the rights and privileges as marriage with a different name for their union.
Gosh, it's hard to disagree with the other Mark. Separate but equal has a long tradition in this country. Why can't people be satisfied with second class? It's just as good.
Also, too, it's critical that government be intimately involved in defining all sacraments. If a gay-friendly church, divorce-friendly church, or pre-marital-sex-friendly church wants to have some modern interpretation of the sacrament of marriage, the government needs to step in and remind people that Leviticus is still the law of the land!
mark, if you read Californias CIVIL UNION laws you will find that there aren't any. California has Domestic Partnerships. You don't get your DP license at City Hall. You first have to move in with your DP, pick up a form at the state offices (from the same window that you get your dog's rabies tags), and then mail it in to the state so that they can put you on the list of Domestic Partners.
Anyone that claims that is "equal to marriage" needs to lay off the medical marijuana.
There is some very clever "logic" in the opinion. First, the "right to marry" is being lifted out of context from the case law. The cited cases do not support the "right to marry" in the abstract, but rather "the right to marry a person of the opposite sex." Therefore, this redefinition of the right is disingenuous.
Second, the equal protection analysis is clever but wrong. Equal protection analysis applies to a persons of a protected class, such as race and gender. In such an analysis, a person must be shown to be a member of the class, and the class must be treated in a manner that cannot be justified by a legitimate interest. Here, the decision uses a clever ploy to create a new protected class, one of "sexual orientation." It does this by creating an argument that the class of sexual orientation is really the class of gender. In particular, it says that the reason that Jane cannot marry Sally is because Jane is lesbian (i.e., because of her sexual orientation). This is false reasoning. Jane cannot marry Sally because Sally is female. Jane is in a class, which is restricted in marrying only males. Likewise, males are restricted in marrying only females.
If the opinion were honest, it would say that it is (1) attempting to create a new right, i.e., "the right to marry anyone," and that it (2) was carving out a new protected class, i.e., "the class of sexual orientation." Instead, the opinion says there is no new right and that there is no new class. Both are false.
For goodness sakes - in the face of Extreme Islam, an accelerating uneducated class (that's you children of white Yuppie trash), a Congress out of control, an impotent incompetent increasingly irrelevant Administration, more and more ruthless bad guys all over the world, more bytes are being spilled over this "issue" than any others in the papers today? What's wrong with you America? We are facing graver threats to our well-being and all you all are wringing your little hands over achieving "equality" in the "right" to be unhappy over and let down by your life partner? Wake up -- you guys have way too much money and free time. If you're not happy with what you already have, you will never have what you want.
If there is any hope at all for Californians I am certain they will get it right.
In response to the title of this blog/article "Where do we go from here"--my considered opinion is, that as a nation, we can only go "UP!" Let's face it, the last 10 years have been hell, and we will be digging out from the errors of single-minded ways for the next 20 years or so.
Of course this is going to the Supreme Court and It's all riding on Kennedy, the author of the majority opinion in Lawrence v. Texas, you know, the case that overturned sodomy laws of the states. Kennedy sided with the lefties. I have a hard time seeing him decide that states have a rational basis in regulating gay marriage, but not sodomy.
Look for a constitiutional amendment fight after Kennedy votes with the lefties again.
In 1788, Americans were not a lawless, ungoverned people. Indeed, most of them were pretty content that their state governments provided all the government they needed. But there were some problems that seemed to call for a larger scaled response., and so they put together a new kind of federal government with an enumerated list of powers to deal with those things for which they felt their state governments operated on too small a scale.
There were some topics and questions that it didn't occur to them that anybody would ever bring up, but they took that possibility into account: the ninth and tenth amendments make it clear that the individuals' rights and the rights of the states that were explicitly mentioned did not constitute exclusive lists, but that the list of powers given to the Federal government was indeed an exclusive list. In other words, if the Constitution is silent on some matter, it is not for the Congress to extend its own power to address it (and then to wield that power), nor for the Supreme Court to divine what a suitably enlightened polity would add to the Constitution if weren't simply too feckless to do it. Either the states act or an amendment is offered.
These days, two questions that they didn't think to address have arisen, and the Bill-of-Rights provision for them should come into play. One of them is the question of how foreigners who are sojourning in one or another state but are not involved in the federal government's uniform rule of naturalization should be treated by that state. The other is the question of what is to be meant by "married." Since the Constitution is silent on both these issues, the Ninth and Tenth Amendments are in play, and the questions need to get addressed in whatever way the states choose to do it. (A rule of naturalization does not deal with the accommodation of temporary workers and merchant travelers; the original ratifying generation and all succeeding generations have known that different states were likely to have dramatically different conditions in which those matters would need to be addressed. )
When the so-called "Preemption" or "supremacy" clause is invoked, it is necessary to notice that the federal laws that are the supreme law of the land are "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;" That pursuance consists in a recursion back to the powers enumerated in Article I.
Tradguy, your statements are factually incorrect. The Court found that the right to marry is a fundamental right. The Court did not state, and the cases do not support, the proposition of "the right to marry a person of the opposite sex." Regarding the Equal Protection clause, the Court did not describe sexual orientation as a protected class -- which would require a "strict scrutiny" level of review of laws that affect it -- but rather the Court applied the much easier to satisfy "rational review" standard, and found that Proposition 8 could not even survive that lowest level of scrutiny. Furthermore, the Court did not state that sex and sexual orientation are the same -- rather, the Court pointed out that Proposition 8 affects people on the basis of their sex and on the basis of their sexual orientation. To use your terms, where Jane wants to marry Sally, Proposition 8 affects Jane both because she is a woman (sex discrimination, because John is allowed to marry Sally) and because she is a lesbian. I hope you'll agree that being a woman and being a lesbian are not necessarily the same thing.
It's an emotional issue. Let's stick to the facts. I'm responding to you in the good faith hope that you are not a troll. I guess we'll see.
Judge Walker: The happiest people don't have the best of everything, they just make the best of everything they have.
You shouldn't have gotten your shorts in a twist.
I think this will ultimately go to the 14th Amendment. The "Fundamental Right To Marry" is a little iffy; supportable, but not solid.
Strict scrutiny for sexual orientation is almost certainly too much. Sex discrimination "only" warrants intermediate review; and it sounds strange that one's sexual orientation (while immutable, not necessarily apparent) would warrant more XIVth Amd. protection than one's sex, which basically powerfully influences one's social, familial, and professional identity!
If this went to SCOTUS, I see 3 possibilities. In order of MOST to LEAST probable:
1: Kennedy brings a 5-4 decision, establishing intermediate scrutiny and upholding the district court despite grave reservations.
2: The Court acknowledges Prop 8 fails Rational Basis and doesn't identify the actual level of scrutiny for sexual orientation. (Never answer a question you don't have to!)
3. The Court holds that a statutory rule "need not be perfect" and the interest in promoting procreation and preserving the traditional institution of marriage are rationally related to the ban; District Court overruled.
What's the test for what qualifies as a "legitimate state interest"? It's not like there isn't *plenty* of political contention on that matter.
California is bankrupt. California is the US capital of promiscuity and sexual perversion. California doesn't understand marriage. It is approaching a very dangerous line that has been already crossed by other states. It's in danger of testifying to the country and to the world that heterosexual marriage relationships serve society no more than a homosexual relationship. If God exists, He weeps at the sight of His people bowing to a force that seeks to crush the very heart and life force of our society.
The rest of the nation lies on the brink of a total collapse: economically, governmentally, socially, and spiritually.
Evil minds try to remove God from schools, public places, and government. In its place, they establish a new state religion called secularism, and command everyone to bow to it. Rather than worship the timeless laws of God, people will be forced to worship men who make the laws that keep them in power.
People have been taught to maximize the boundaries of the law to find competitive edges and monetary success. When this is done, the spirit of the law goes ignored. As cunning and selfish people find ways around the edges of the law, more laws are put into place to ensure the spirit of the law. Governmental policies were put into place in the name of fairness to ensure the collapse of our economy. It forced Wall Street to sell the nation an economical house of cards. Any challenges were called racist, hateful, and unfair - general terms America's children were taught by society's educators to fear and avoid at all costs without question.
The government has quickly expanded and grown in power to the extent that it overthrows the voice of the people as America's official voice of morality. It steals from American industry and pours it into the promotion of laziness and injustice. Even as industry shrinks, the government squeezes the economy tighter and tighter with oppressive taxes. It assumes an ever-increasing hold on people's lives - medical, industrial, food, and parental responsibility. What freedoms are left become inundated with regulations, fees, and red tape. Socialism is alive and well in a country that fought so hard, and that lost so many lives in previous wars - and nobody is standing up to it.
I have heard people question how the Jews allowed themselves to fall into slavery and bondage during Hitler's rule. They suggest that the people should have risen up and revolted - or even moved away before being locked in prison camps. The answer is that they fell into transgression and stopped being ever watchful. They doubted that anything so horrific could happen to them. The citizens of our nation are in the same position, due to the same reasons - owing their lives to foreign creditors and oppressive governments.
The sexual revolution is the handiwork of the devil himself. The movement has been largely successful in changing the definition of sex from procreative copulation to any sexually pleasurable act. The focus has shifted from life and joy to an undue emphasis on pleasure and carnality. It has raped parents of their parental virtue. It has taken the burden of sexual responsibility and the power of life and has placed it on mere children. Can a child get an abortion or birth control now without parental consent or knowledge? Lifestyle preserving abortions are granted, which kill millions of potential children and further encourage sexual freedom without consequence. Marriage is being questioned and mocked. What was once procreative, selfless, and society promoting is being redefined to include selfishness, lust, and property based.
This same attitude has been sparked within our economy - the thought that money itself holds value without being supported by productivity. Money holds no value without productivity. Our economy will completely fall with this attitude.
This has all been promoted in the name of fairness, equality, freedom, and open-mindedness - and yet at its heart, it is none of those things. These are the chains and chords that slowly bind us down and steal our freedoms. These are the worshipped objects that make a nation weak, and that cause nations to stumble. Bracelets become chains, and shoe laces become cords. Freedom becomes bondage. Health and livelihood becomes sickness and death.
If America does not wake up and repent, darkness will prevail and its bonds will be made sure. God will cease to bless the captive, and repentance will require the now seemingly extreme law found in the Old Testament. Many nations seek to possess this land - and it will be theirs. All of this would happen because you refused to hate sin and question fairness, because you tried to reap where you didn't first sow, and because you oppressed the righteous and sought to cast out God.
A voice will cry from the dust in that day. You will hear his words, and they will no longer be hidden from your understanding. "There is a law, irrevocably decreed in heaven before the foundations of this world, upon which all blessings are predicated- and when we obtain any blessing from God, it is by obedience to that law upon which it is predicated." Homosexual relationships holding the title and societal reverence afforded by "marriage" hide the true law given from God. It would be the blinds that shut out the light of God and that curse our country.
@anonymous, a "legitimate state interest" is anything that the state says it is so long as the state doesn't infringe a fundamental right. once a fundamental right is infringed, a compelling state interest is required (and almost never found). that's why it's called "strict scrutiny." Under the more lenient rational basis test, applicable when a fundamental right is not involved, any coherent rationale will do. The final section in Walker's opinion simply holds that the proponents of prop 8 weren't able to come up with a coherent rationale.
Scripture Power -
Thanks for your concern but maybe you should pick up a trade, employ some people or give more to charity rather than arrogantly judging people you know nothing about. Let he with no sin cast the first stone right?
Scripture Power: Fred? Is that you? Mr. Phelps?
Mike -
"Any society that would give up a little liberty to gain a little security will deserve neither and lose both"
So you're saying if it were up to you, the force of the state should compel all gays and lesbians to remain both single and chaste. For life. Could you stop for a second and imagine that unnatural state of affairs being forced upon you? The damage that would have on your life? And you think that's an appropriate role of government?
You're insane. I look forward to the day when people like you are figuratively beaten into the place you belong: the closet. Slowly but surely it's happening.
gotta love this decision -- my be bullet proof. homo no.
So much for elections. Why fool with legislators? let's just turn things over to a bunch of left wing judges who can tell us what we should believe.
Marriage Is Between A Man And A Woman.
First of all scripture power.....God does exist....even if people say they don't believe in Him...he is evident in our very surroundings each day. Think about this...what if homosexuality ruled from the very beginning...like in the garden....none of us would be here today....reproduction would not have taken place. Woman was made for man to be his help meet and his partner only in the sacred bonds of marriage. Homosexuality is an abomination unto the Lord...He did not intend for it to be this way. Wake up people please and let God take over your life before it is too late. He loves you!!!!!!
Despite occuring in what is arguably the most liberal state in this country, the voters spoke clearly and without any semblance of confusion. They voted to ban gay marriage, and the law should stand. Gays have never been able to prove scientifically that their lifestyle is anything more than that, a lifestyle, a choice. They couldn't convince the voters of California otherwise, and the law that legitimized their behavior was rightfully struck down as it should have been.
The State should have no interest in secular marriage. However, the State grants benefits based on Civil marriage. All people including gay people should have the option of wedding their loved one in a civil ceremony. Look carefully at your marriage laws today. The civil marriage filed with the governing body is what counts for recognition of benefits. The State has no interest at all in your Church ceremony. It's time to return to a separate Church and State as our founders designed.
The obvious corollary from this decision is that polygamous, incestuous and other forms of marriage must be legal too. That's nuts. There is no "individual right to marriage". If marriage can be definied as anything anyone wants, it's loses meaning completely. As usual this is a lib judge creating a new right that doesn't exist and that legislatures have refused to accept.
Tom from Ohio got it right. What is the state doing mucking around with religious ceremonies and social engineering in general? Life is too short, there is enough leaky state plumbing(in fact, simply that there is way too much of it) to worry about the happiness of others as they define it. On all matters religious -- including all matters related to the religion social scientology -- a secular government in a truly free nation would respond "Religion? What the hell is that? Feel free."
I say let them marry..only they ALL have to be married in the muslim faith....this makes it legal and we pretty much wont have to worry of them coming out in a rain of rice......perverts are perverts...its the definition of who they are....I didnt make it up...its from the start of time....no hate here ..just facts...
incrementalism at work again. constitutional rights were violated? they have no right in this area. whats next? i can manufacture any right and then sue if i don't get it...hoping for alib judge to agree?
well lets see .....same sex marriages...BUT.....we cannot carry a firearm here in chicago to protect ourselves from THE THUG......SECOND AMENDMENT ...LETS GO GET THESE LIBERALS/RADICALS...
These homosexuals look ridiculous. "his husband" ... what a fail! All these fruits want is access to the children. It's going to get a whole lot uglier if they don't knock this crap off! We the people don't want these homosexuals anywhere near our children. Like it or not, there's a whole lot more of us than there are of them. They can cry "mob rule", but it's we the people, and we ARE the rule. Sorry libkooks, A judge with a vested interested in his own decision? Tell me you think the strikedown will stand. It won't.
Tom from Ohio doesn't get it...the intent of separation of church and state by our founding fathers was NOT to remove religion from government, but, vice versa. The country was founded on THE REJECTION OF GOVERNMENT INTERVENTION not the other way around.
If you are a statist and prefer to live in a socialist country then immigrate to one!!! The last thing America needs is activist judges trying to play God. The people spoke via Prop 8,,,move on.
Some here think that being gay is a "lifestyle choice" - nothing could be further from the truth. Being gay is an internal disposition that one has no control over; one merely can choose how to act on it externally. Perhaps those opposed to gay marriage would prefer that gays instead hide, entering into straight - and doomed - marriages, as those would somehow uphold the sanctity of marriage? Or repress their true nature until it can no longer be contained and erupts in unwholesome ways - as George Rekers or the Catholic church are so adept at illustrating. God, above all, values honesty and abhors hypocrisy, and to uphold these values gays need to be open and loving members of our society, and not hide and repress their true selves.
Gay marriage should be societal development that is welcomed by those of true faith. It means gays have progressed from the "free love" spirit that embodied their culture when I came out in the 70s to one of seeking committed, life-long partnerships. What could be a greater testament to the sanctity of marriage than for a group to fight to be married and commit to such unions vs. those who seem to too often feel obligated to marry by society even if they're not really ready for such a commitment?
It seems to me that gays are trying to make themselves JUST LIKE heterosexuals - but... two men (two women) CANNOT MAKE A BABY. Gays can manipulate everything up to that point. Two men (or two women) being married will NEVER be accepted as being JUST LIKE a man and a woman. Gays now intend to change the meanings of words that have been in place for centuries upon centuries. What is more bizarre than two men "married" and one referring to the other as his "husband?" Is he then, the wife? These words are in our language with set meanings. Gays should have stuck with Domestic Partners. That gave them dignity. Marriage? It's now silly.
Homosexuallity is not normal its a choice between 2 people. If all people choose homosexuallity then the human race would die out. Its just not normal, period!!! We respect the people but not their homosexual behavior.
Our constitution does not allow the people to make law. Hence the vote for prop 8 was against the 14th amendment. Anonymous "We the people, we are the rule" your a moron maybe if you nut jobs actually read the constitution, we the people don't make laws. "All these fruits want is access to the children." Yeah, that's what gay people want. Your an Idiot, I believe most pedifiles are white middle age heterosexual men. Trust me Anonymous there are more gay people than you think. I recomend Constitution for dummies for you, I think you can buy it on Amazon for $12.95, may be the best investment you ever made.
Why isnt anybody reporting that the judge that is spitting in the voters face is openly gay? How can we get this guy out of his federal seat? He alone has decided we are no longer a democracy.!
Pedophiles have been silently massing for years, hot on the heels banking on the same arguments put forward by their emotionally disturbed predecessors here. We all know it's the next sexual taboo line to be erased. Sexual perversion, protected by a single Federal judge, has gone beyond a slippery slope, it's a cannonball dive right into Hell for America.
"CANNOT MAKE A BABY" ??? So we get to deny all marriages that don't/can't produce children?
villates the constitution??? Where in the constitution does it grant the right to marriage??? Please don't use the pursuit of happiness; that has nothing to do with homosexual marriage. So according to this so-called judge, ANY pursuit of happiness is a right?? The founding fathers must be spinning in their graves at how warped this nation has become. Think things are getting worse?...wait.
so what's next; marriage between people and animals? Its coming.
I have a question that no one, on the forums I've visited so far, seems to be able to answer.
Didn't the Supreme Court already ruled that defining marriage as a union between a man and a woman is NOT unconstituitonal, in "Baker v. Nelson"?
The very heart of the "Perry v. Schwarzenegger" case seems IDENTICAL to that of the 1971 Minnesota marriage law case. The MN court ruled that there was no violation of the 1st, 9th, or 14th amendment of the U.S. Constitution. The gay couple appealed to the US Supreme Court, which dismissed their appeal on its MERITS.
Unless I'm mistaken, when the USSC dismisses an appeal of a lower court ruling on its merits, it's the same as if it ruled in favor of the lower court; thus, it is binding on all lower court. IF that's true, "Baker v. Nelson" is legal precedence and the other courts (including that of Judge Walker) must abide by it.
The way I see it, Walker got it dead wrong. Though I wouldn't bet the farm on it, I wouldn't be surprised if the 9th Circuit Court overturned Walker. Plus, we've already seen this happen before with Nebraska's marriage amendment. A judge, like Walker, overturned the state's marriage amendment; the 8th Circuit Court overturned that judge and restored the amendment.
this is what you get with lib dems. The chickens from the sixties have come home to roost and we deserve what is coming.
Those of us who do not choose to endorse, approve of or support sexual deviance are being made out to be bigots, religious fanatics and legally (and generally) ignorant by those who seek to impose their "alternative" lifestyle on us. Personally, I have no issue with civil unions, recognition of same sex partners for benefit purposes, etc., but I do believe that marriage is between a man and a woman. For years now, and in an accelerating manner, we have seen appointed judges twist and pervert the meaning and intent of our laws and even Constitution to suit their progressive agenda. Many hold out hope that the upcoming election will provide a change in the direction of government and allow for some relief from the assault on our way of life. Those people will be disappointed. Only the most severe overhaul and re-orientation of our government and institutions can hope to return the portions of this country to a governmetn of, by and for the people. We're headed in the same direction that the former Yugoslavia went in.
You see this is whats wrong with America. But be as it may thank god im as old as I am. Your flushing yourselves down the pot hole. Them people need help alright and not from being married.
Didn' the people of the state vote on this - they voted against Gay Marriage or am out in left field on the left coast? IF this is what they want, then the state can pay for the additional cost of supporting this law. We are turning inot the United States of Europe.
Pray for our country
Please! Look your gay brothers, sisters, aunts, uncles, and your doctor and countless other gays in the eye and tell them that they have no right to life, liberty, and the pursuit of happiness. And then add, oh yes, we want you to continue paying taxes.
Why do all those who supposedly support smaller government care what others do? Why is it anyone else's business?
So, one judge can turn over what the people voted for??? Why ask the people what they want in the first place? Politicians/Judges seem to do as they please. To @#$ with what the majority of the people vote for!! Amazing.
people in the south voted for the Jim Crow laws. i bet several could pass them even today. guess we haven't been the United States in a long time if calling a law unconstitutional make us Europe. Rights are never to be voted on, it was unconstitutional to even bring Prop 8 up for a vote. what a great country we live in, one where all people all guaranteed equal protection under the law. our great constitution is alive and well!! with liberty and justice for ALL!! USA! USA! USA!
As long as we're "redefining marriage", why not allow polygamy?
And who determines what rights people have? THE PEOPLE!!
That's why we have constitutional amendments.
Just a question. For or against Prop 8 is not the issue here. What happened to the will of the people? If prop 8 was voted down and a justice vetoed that vote I would still be wondering why vote at all. Why put a referendum on the ballot and get the people to vote yes or no on it and then have ONE individual overturn the will of the people. Could one judge over rule the voting power of the people in a general election. If not then, then why with prop 8? Again one way or the other is not the question here. What if a referendum was placed on the ballot to outlaw the death penalty in a state that had the death penalty, could a judge say no, to the vote of the people and return that state to killing people? Just a question? I hope to receive a well thought out answer.
As long as we're "redefining marriage", why not allow polygamy?
-I'm pretty sure that polygamy has been shown to be exploitative and sexist. Gay marriage only hurts those who catch gay germs from being close to it.
.So, one judge can turn over what the people voted for??? Why ask the people what they want in the first place? Politicians/Judges seem to do as they please. To @#$ with what the majority of the people vote for!! Amazing.
-The majority can vote for a lot of things, and a lot of them are not constitutional(i.e. the majority votes that the minority should not be allowed to vote). 51% of people don't get to make whatever laws they want.
Just a question. For or against Prop 8 is not the issue here. What happened to the will of the people?
What about the president vetoing a bill that passed congress? Isn't that the same thing?
This judge is part of the process- there is a system of appeals to make sure that one guy doesn't have absolute power. It will go on until no appeals are made or the Supreme court decides.
As to your question. Yes- and it would probably be appealed.
In Obama time we are going in gay planet. Congratulations....
Homosexuality is an evolutionary step backwards for the entire human race. What's next, acceptance and "normailization" of civil unions between a 75 year old man and his dog Scruffy? Beyond religion, politics, money, power, and rights we are ALL human beings and what we should be asking ourselves is what do positions like supporting homosexual relations do to improve our species? Eat, purge waste, reproduce, and sleep are the only things a human being, and thus the human race, needs to survive. The divergence of homosexuality from those pillars of survival exists in the reproductive aspect, homosexuals cannot reproduce without assistance and their behavior is selfish and self centered in that it only serves the individual(s) and not humanity as a whole. Homosexuality is mentaly defective behavior and should be looked upon with simpathy and compassion for those who suffer from it but it should not be accepted as normal, intelligent, cognicent, or even human behavior. Whether a person is born homosexual or acquires homosexuality through various circumstances the end result is still the same, humanity does not benefit from homosexuality and it is a stain on our evolutionary ascent.
For those that oppose Gay marriage based on "the votes of the people", please remember 2 things. 1) The job of the courts in this country, are to protect the rights of those who are underrepresented (this is constitutional - actually read something people), and 2) The populous vote is not always the RIGHT vote. If left to populous vote, we would still have slavery, asians, blacks, whites, hispanics and whites would not be able to marry one another, and women would not be allowed to vote.
One persons moral and religious beliefs should not be imposed on another - unless they happen to fall under constitutional law. Otherwise, we have Sharia Law, much like Islam. Which is what the so-called "Christians" in this country really seem to want. The freedom to share the same civil rights in marriage is a fundamental right. This is being proven over and over again. Equality will always trump bigotry and hatred.
The state voted on this! The judge shouldn't not have the power. Judges get appointed- maybe that is the issue as well? No one is denying their rights. They can vote, they can assemble, they are pursuing their right to happiness. They can do what ever they want to do now, can't they? I have nothing against gay people. BUT, morality is woven into the constitution and into the fiber of this country. What if I want to marry two women or two men, or one man and one woman, it's my right!
It is going to happen. Will the gay community be supportive of that? If so, then we are going to get what we vote on(most of the time:-)) and what we deserve.
Pray for our children. . .
Yes they do get to make laws, if they live in a referendum state. Prop. 8 was scrubbed by the state AG and the CA Supreme Court. Neither found any federal constitutitional violations or it wouldn't have been on the ballot in the first place.
Considering that, as stated earlier, a federal judge struck down Nebraska's marriage amendment only to be overturned by the 8th Circuit Court, I'd say the people of California got it right.
I should think this victory will be short lived. First, Obama doesn't support gay marriage. The majority of Americans do not support gay marriage. And Kagan has stated the Constitution doesn't support gay marriage. Finally, section 3 of the Defense of Marriage Act defines "marriage" as a legal union between "one man and one woman". Now, add to this the mid-term elections are fast approaching and Obama's popularity is at an all-time low (and by association all Dems). It is unlikely that he will address illegal immigration this year, so to gain back much needed popularity [and distract us from the crappy economy and all those massive new taxes coming our way] I'm guessing he could push for a proper Constitutional amendment that kills gay marriage once and for all. This will make 80-percent of conservatives happy, but will seriously p!ss off the far left. To placate them, he'll also kill "don't ask don't tell" as sort of a gay consolation prize.
We hold these truths to be self-evident, that all men are created EQUAL, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness! USA!USA!USA!!
Take heart all who are opposed to gay marriage. A "legal" definition of marriage does not change the true and fundamental definition of marriage.
Marriage is a sacred institution created by God between A man and A woman. Gay marriage will never be recognized in the eyes of God. I pray for God's mercy on our country as we continue down this slippery slope.
Homosexuals are sexual PERVERTS & there is no right for PERVERTS to be married.
Let's get this straight ONCE again, pick on.... evolution or creation..... EVOLUTION...Nature created two sexes in the species for one..that is ONE main purpose, to reproduce to guarantee the survival of the species. CREATION...God created man and woman to reproduce and guarantee the survival of mankind. Homosexuals serve NO purpose in the grand scheme of things, whether evolution or creation is concerned. I don't care about artificial insemination or their PERSONAL right regarding this issue, it is an issue of basic instincts or divine intervention either way, homosexuals are a mis-creation in this world.
uh uh no fair you mean gay people are Americans and have rights? what's next are they gonna outlaw slavery too? at least woman can't vote and them chinese babies won't get citizenship. hey aint there room at the Jap camps, just put the gays there. the banjo plays on...........
Morality, scripture, wired notions about allowing men to marry dogs, one persons perceived morality over another…sounds crazy if you ask me. But I can give you a real world example of how this law affect millions of Americans in the recent case of Clay Geene and Howard Scull:
After spending 20 years together a local government tore Harold and Clay apart. Harold fell down the stairs and required skilled care, as many Americans do as they age. This left Clay was left to deal with his ailing partner, as well as a system that would only recognize him as a roommate. The two men had drafted wills, powers of attorney and health-care directives. They had done everything they were supposed to do given they limitations current laws have handed them.
Sonoma County officials and health-care staff disregarded these documents, just as they disregarded Clay's place in Harold's life. They refused to allow Clay to even see his partner, and they auctioned off the couple's belongings. Then, they terminated the lease and shipped Clay off to a nursing home. With the two men in different nursing homes, Clay was not able to spend any more time with his partner. Harold died alone.
Had Harold and Clay been an opposite sex couples this would never have happened. Laws regarding marriage and property bring protections in these cases. I challenge anyone to wish that kind of scenario upon themselves or a loved one. Its heartbreaking to witness how two people together for 20 years can find all they have built together torn apart because a majority does not want to share the same protections they enjoy.
Perhaps, Prop 8 has less to do with scripture or even the term marriage and more to do with punishing gays and lesbians and re-enforcing upon them a reminder: Gays and lesbians, you are less than and deserve to be treated as sub-human. It seems like an argument I have heard before, during Jim Crowe and before, and I still do not think it holds any merit.
Wow, so many self-righteous and intolerant people.
Scripture Power,
It's called seperation fo church and state. This is a constitutional matter, KEEP your darn religion out of it.
*To jn611
I disagree with you and I think you need a little more 'straightening out'. If its ok, I'll use the same caps you did to demonstrate my point.
EVOLUTION by definition is designed to try all sorts of concepts out over time, and allows natural selection to decide which on works best. In fact, not all species have two sexes as some are hermaphrodites in nature. While there is ONE main purpose, to propagate a desired trait of a species for optimal survival, there is no ONE way to accomplish this.
CREATION… Well, that same God created those hermaphrodites, and people who are gay and lesbian for that matter. You aren't seriously suggesting that God can make a mistake, are you?
if gay rights can be voted on who's rights will be voted on next. i hate the color yellow on tuesday. there should be a vote to ban all people from getting married on tuesday, but only if they are Jewish have one leg and want to wear yellow. however they will be allowed to marry if they stand on there head and recite the pledge of allegience backwards to an evangelical minister with brown shoes. this marriage will not be called marriage it will be called a oneleg union and they only have the rights of a married couple on wednesday, if they attend a christian church and promise to read the bible everyday.
Nice one, Actually. Absolutely spot on. It's a lot about (often) religious people seeking to impose their beliefs on people who do not conform to their usually narrow 'handbook' of life.
Again, does anybody have an answer to my question, regarding the Supreme Court's "Baker v. Nelson" ruling and how that comes into play with reversing Walker's ruling?
"EQUAL PROTECTION. . . . Judge Walker ruled that Proposition 8, under this calculus, deserved the strictest scrutiny."
This is untrue.
See page 121 of the ruling: "As presently explained in detail, the Equal Protection
Clause renders Proposition 8 unconstitutional under any standard of
review. Accordingly, the court need not address the question
whether laws classifying on the basis of sexual orientation should
be subject to a heightened standard of review."
Dan, it IS true. Read a few more pages. The judge said even though Proposition 8 didn't REQUIRE strict scrutiny, since it failed to pass any standard of review, it none-the-less also required strict scrutiny, which it of course failed as well.
If marriage is not a contract between a man and a woman to live together and support each other -- what is it?
Can I marry my sister? I love her. Can I, like Oedipus marry my mother -- I love the 98-year-old?
Can I marry two women and six men, if I love them?
Can I marry my dog?
The judge says the state cannot discriminate against those who love each other because it is a violation of due process and equal protection. Every Muslim male in the country now has the right to marry 4 women because to refuse him that right would be a violation of equal protection.
Gay people are entitled to live together as they please -- life, liberty and the pursuit of happiness -- but the state has the right to determine the meaning of the contract of marriage just as it has the right to regulate other commercial contracts.
Will be interesting to watch where this goes. My opinion is...Marriage should be extremely difficult to enter into, regardless of who gets to marry, and extremely easy to get out of, should after all that effort to make sure it would work, it doesn't.
To those who think of homosexuality as an evolutionary step backward...second sons have a higher likelihood of being gay than first sons. Wouldn't happen unless there was a benefit. Like...another male who isn't procreating but is available to help provide sustenance to the family and help ensure that the first son survives to have off-spring. But this would only be an argument that people with a scientific bent would be open to...so...
I thought family law was one of those things that is the purview of the states. Doesn't this ruling throw out that precedent?
I'm going to assume that you're not just asking those questions to be inflammatory, and assume that no one has ever explained the difference to you. The difference is that there are important reasons why each of those other partnerships is very different from partnerships between unrelated adults (whether hetero or gay).
1. In the case of marrying your sister (or other relative), beyond procreative reasons there are strong reasons to support the family structure in which a related male is a non-sexual caretaker of a female (and vice versa). Allowing sexualizing of that relationship undermines the protection of the related family unit (in which related people protect each other from unrelated people).
2. In the case of marrying your dog, a dog cannot consent to marriage. Consent of an adult is a necessary element of any contract, so this one is just silly.
3. In the case of polygamy, I am actually torn. I tend to think that this is the strongest "slippery slope" argument, assuming all parties are consenting adults. However, there are certainly public policy reasons that would support a rational basis decision to support a ban on polygamy, especially based on conservation of resources and simplicity of regulation.
Also, you're right that states can decide lots of things--as long as their decisions don't conflict with the rights guaranteed in the US Constitution. The Supreme Court said in 1967 that marriage is one of those fundamental rights, so the state has to have a compelling reason to deny the rights and a narrowly tailored law. The state failed that test (and miserably, as it didn't even meet rational basis).
The flip side of that argument is that, if one judge can snatch your vote away on this issue, what other issues will be next on the table?
No really.....you people are idiots.....two men or two women marrying is not the same as incest....
WHY ARE YOU PEOPLE SO SCARED TO LET THE SAME SEX MARRY??? you think we will "create more gays" hello....heterosexuals made me and I am a gay....hate to tell you....more heteros produce gays than gay produce gays.....
get your head out the toilet and focus on your own failing marriage than trying to prevent me from marrying....
But, marriage, in that 1967 case was CLEARLY DEFINED as a union between a man and a woman, NOT two guys or two girls. That's why I've asked at least twice about "Baker v. Nelson", which occured just a few years after that 1967 ruling in "Loving v. Virginia". Two gay guys in Minnesota used virtually the EXACT SAME arguments that the plaintiffs in the Prop. 8 case did.
The MN court said that defining marriage as one-man-one-woman didn't violate the Constitution. The US Supreme Court agreed by dismissing the gay couple's appeals on its merits. So, when you say that marriage is a fundamental right, it's under the premise of marriage as one man and one woman.
The gays' major argument against the one-man-one-woman marriage law is that procreation isn't a factor. If that's the case, you have NO grounds on which to claim that "two men or two women 'marrying' is not the same as incest". If it's just between two loving, consenting adults, it doesn't matter if they're related or not. They would have the "right" to have no children or kids with genetic defects.
So, you have NO room to say that incest is wrong.
I am not a lawyer but nevertheless find the legal arguments for and against interesting. As MCWAY has asked, I am curious as to how the SCOTUS Baker v. Nelson decision could be ignored by Judge Walker. Was that his prerogative? And, if not, will that alone be ground for the 9th Circuit to overrule him? Further to that, tocommenterZ made reference to a 1967 SCOTUS case that defined marriage as a fundamental right. Assuming that is correct would that not have been mooted by the Baker v. Nelson decision.
The picture that was included in the article states one person is the husband. How can you be sure it isn't the wife? I would like to know how you assigned the term husband?
What happens if someone is wired for polygamy? What is wrong with 20 wives or husbands for that matter? I am sure some neuroanatomist with a polygamy bias will find a few extra neurons somewhere.
The law has no basis, the emperor has no clothes, anything is possible as long as some judge redefines the terms. We continue on the post modern drift.
This is a clear case of the Federal government stepping on the authority of the citizens and State Government of California. States formulate and define the "institution of marriage" for legal and civil viability reasons, as they do for the requirements for getting a driver's license. They have clear jurisdiction. The Federal judge is manufacturing rights not defined by any part of the Constitution. It is also erroneous to believe the US Supreme Court has final word on the matter. Many times in history the Legislative and Executive Branches have ignored rulings, since the original idea of the court was as legal consul. The over ruling of the electorate is inexcusable. The electorate has jurisdiction over the state Legislature. This ruling clearly is an affront to the Constitution, not the electorate's vote
Vaughn Walker's ruling was wrong, he should have recused himself or at least disclosed the fact that he is gay and has a partner whom he might be wishing to "marry". This is a travesty, plain and simple. In 8000 years of recorded human history no society, not one, has sanctioned gay "marriage". Societies may have tolerated or even sanctioned gay sex, but not gay marriage. Nor do I believe that the lack of ability to "marry" by same sex couples a denial of anything. This is absurd, immoral and illogical on its face. When in God's name did people in legal profession stop being able to think and reason? Law is nothing more than codified morality. Rights come from God, not man. And good thing, since God isn't likely to take them away the way our friends in DC, otherwise known as Satan's Little Helpers continually do.
I also find it lamentable that more and more of these federal rulings are made based on no fixed legal principles, but rather mutative trendy evolving perceptions about what should be without any effort made to connect the steps. It's the "it is, because I say it is" school of jurisprudence. Law isn't a "feel good" profession, but the judiciary seems to be replete with social engineers who believe they possess the power to remake society into their own image and likeness. These questions rightfully belong to and rest with the people, not the judiciary. This judge and his ilk don't exactly give me much comfort that my affirmative rights like private property ownership, gun ownership, freedom of speech, assembly, and other rights are safe in their keeping.
As a gay man living with a partner for 12 years I say with joy - What a great day it is today! In the end, tradition and the moral beliefs of one group are not enough a compelling enough reason to deny another group their civil rights.
Read this beautiful article written by TV host Rene Syler where she compares it with the struggles of her African American heritage. http://www.goodenoughmother.com/2010/08/proposition-8-good-enough-mothers-take/
That's just it: The gay couple tried using "Loving v. Virginia" to get gay "marriage" legalized. But the MN court didn't see it that way. Per its ruling:
"Minn.St. c. 517, which governs 'marriage,' employs that term as one of common usage, meaning the state of union between persons of the opposite sex. It is unrealistic to think that the original drafts-men of our marriage statutes, which date from territorial days, would have used the term in any different sense. The term is of contemporary significance as well, for the present statute is replete with words of heterosexual import such as 'husband and wife' and 'bride and groom"'(the latter words inserted by L.1969, C. 1145, § 3, subd.3).
We hold, therefore, that Minn.St. c. 517 does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited.
2. Petitioners contend, second, that Minn.St. c. 517, so interpreted, is unconstitutional. There is a dual aspect to this contention: The prohibition of a same-sex marriage denies petitioners a fundamental right guaranteed by the Ninth Amendment to the United States Constitution, arguably made applicable to the states by the Fourteenth Amendment, and petitioners are deprived of liberty and property without due process and are denied the equal protection of the laws, both guaranteed by the Fourteenth Amendment.
These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court.....
The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that 'abstract symmetry' is not demanded by the Fourteenth Amendment.
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):
'Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.'
Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution."
The US Supreme Court effectively ruled the same by dimissing the plaintiffs' appeal of this ruling from MN on its merits. And, that ruling is binding on ALL lower courts. So, if the US Supreme Court say it doesn't violate the 14th Amendment, Walker's ruling is wrong and the 9th Circuit Court can REVERSE his ruling, based on "Baker....". I say this, because the 8th Circuit Court used "Baker.." to reverse Judge Joe Battalion's ruling against Nebraska's marriage amendment.
I beleive there is middle ground for all this controversy. The very first thing we need to get clear is that we are wasting more time in creating a definition that actually applying this definition. We need to understand that MARRIAGE and MATRIMONY are two different things. Marriage is the contractual society between two individuals that are signing to look after each other. Matrimony on the other hand, has different definitions as we go through the various religions, but the most accepted and adopted one is that it is one of the rites (sacrament) in which God is uniquely active and states the union between a man and a woman.
I am gay and I DO beleive that MATRIMONY should be according to whatever the religion dictates. After all this is a free country and we should not impose over such matters. I also beleive that being the MATRIMONY a religious act, it should stay that way. When we get baptist or circumcised, we are not entitled to social security benefits, tax breaks, proxy decisions, immigration rights etc, so.... WHY DO WE GET ALL THAT WHEN WE PERFORM THE ACT OF MATRIMONY???
I think the solution is to reivindicate the MARRIAGE to what it is meant to be: A CIVIL CONTRACT and not a RELIGIOUS CEREMONY.
Clearly there is a conflict of interests that involves religious entities in this country, not to mention that this entities enjoy privileges of being tax exemptions, which gives them more money to act on their favor and move the pieces at will, just like the Mormons ( I'm not trying to go after a particular group here, just illustrating) collected 43 million dollars for prop 8 campaigns, and then got away from the IRS by claiming that they only collected 195k. Just so everybody knows, the IRS is very strict when it comes to "non-profit" organizations and political involvement, and limitations on donations for political purposes.
I also wanted to say that the biggest leverage that conservative people have on homosexuality is that they beleive it is our choice to be gay... HA! Do you really think it was my choice? If i could choose between having a hassle-free life widely accepted and not having to worry about who will pull the cord while in comma, or beign harassed by bigots, not having rights and live as a second class citizen, do you really think i would choose to be gay? And even if it was a matter of choices, LET ME be the one who chooses who can i marry because, you don't want me to end up marrying your daughter and then sneak out and go date my 21 y/o boyfriend i found on the Yahoo chats, just like i have found many and many "straight" guys doing it.
@Scripture Power
Without question, your post was one of the most disturbing things I have ever read. I don't know where to begin.
The bible is not a divine book that ascended from the sky. It is a collection of stories created by man to explain the unexplainable and to establish a code of living that was acceptable at the time. Don't assign current society's actions to a book that is irrelevant for today. If you don't want to marry someone that is the same sex as you, don't. If you want to live in a world that supports your cultish, mind-numbing religion, move to Kansas.
Most states have voted on this issue and decided that marriage can only be defined as between a man and a woman. Only progressive activist judges have sought to flush the opinion of the American public down the toilet. Progressives love Democracy until it doesn't yield the results they wanted.
@Scripture Power
Without question, your post was one of the most disturbing things I have ever read. I don't know where to begin.
The bible is not a divine book that descended from the sky. It is a collection of stories created by man to explain the unexplainable and to establish a code of living that was acceptable at the time. Don't assign current society's actions to a book that is irrelevant for today. If you don't want to marry someone that is the same sex as you, don't. If you want to live in a world that supports your cultish, mind-numbing religion, move to Kansas.
Scripture Power
Without question, your post was one of the most disturbing things I have ever read. I don't know where to begin.
The bible is not a divine book that descended from the sky. It is a collection of stories created by man to explain the unexplainable and to establish a code of living that was acceptable at the time. Don't assign current society's actions to a book that is irrelevant for today. If you don't want to marry someone that is the same sex as you, don't. If you want to live in a world that supports your cultish, mind-numbing religion, move to Kansas.
@ Voice of Reason
I would suggest Mars! Ckearly in this Planet we are going in a different direction. I cannot beleive yet that even Argentina approved same sex marriage on a federal level and we are still living in a witch-hunt.
@ Kansas?
I can tell you've never been to Argentina (you really should get out more!) or you wouldn't make the ckear miss-assumptions that you have. I am just so sad at how snarky this issue makes everyone (on both sides!).
Or California voters could overturn Proposition 8 at the ballot, which would moot the case.
*sighs* I am not being antagonistic here ... just honest.
Seriously, wherever it goes and whatever happens to it ... the careers of the original four justices who made this decision are over. They will not survive their retention elections.
In fact this year the Chief Justice who wrote the original opinion is up for retention.
If he is voted out by the people of California -- Justice Walker will be known for his "Fellow Justices Unemployment" decision.
297.5. (a) Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses.
That is a portion of the state domestic partners law regarding equal protection. I still don't understand how this doesn't give same sex couples the same rights as married couples. Marriage - man + woman - its just a definition why can't same sex couples make their own word to describe their relationship if they don't like domestic partnership?
@ Been There Done That
I have actually been to Argentina, and i found it more progressive than U.S.A. in terms of legislation. Please don't even suggest me to move there. I am planning to stay here to defend my rights and see one day (not far away) how U.S.A. becomes one more nation in the list of countries that have equality in marriage :)
Many people have questioned the fact that Judge Walker supposedly "ignored" Baker v. Nelson and question whether this could be a possible basis for reversal. The answer is emphatically, "NO."
Baker v. Nelson was not actually "decided" by the Supreme Court. Instead, it was a 1972 summary dismissal released without opinion "for want of a substantial federal question." Of course, the summary dismissal does to some extent imply that there is not a "substantial federal question" as to whether forbidding same-sex marriage is or is not constitutional. Nonetheless, Baker v. Nelson is not a binding case.
As the anti-Prop 8 forces pointed out in their briefing, "The Supreme Court's summary dismissals are binding only to the extent that they have not been undermined by subsequent 'doctrinal developments' in the Supreme Court's case law. Hicks v. Miranda, 422 U.S. 332, 344 (1975) (internal quotation marks omitted). Baker has been conclusively undermined by the Supreme Court's subsequent equal protection and due process precedent, most notably the Court's decisions in Romer [v. Evans] and Lawrence [v. Texas]." (http://www.equalrightsfoundation.org/wp-content/uploads/2010/01/2009-09-23_AFER_opposition_to_MSJ.pdf, at p. 7 (bracketed material added).)
Moreover, "The Supreme Court's summary dismissals are binding on lower courts only "on the precise
issues presented and necessarily decided" by the Court. Mandel v. Bradley, 432 U.S. 173, 176 (1977)
(per curiam) (emphasis added). In several respects, the issues in Baker are different from the issues
presented by Plaintiffs' constitutional challenge to Prop. 8. For example, Baker presented an equal
protection challenge based only on sex discrimination and therefore cannot conceivably foreclose
Plaintiffs' claim that Prop. 8 discriminates against gay and lesbian individuals on the basis of their
sexual orientation." Because Baker v. Nelson dealt only with SEX discrimination, and not SEXUAL ORIENTATION discrimination, combined with the fact that, as a summary dismissal, it is binding on only the "precise issues presented," it has no bearing upon this case.
Finally, one posted above claimed that I was wrong when I stated that the article was incorrect in its claim that Judge Walker applied "the strictest scrutiny" to plaintiffs' equal protection claims. I was not incorrect. It is true that Judge Walker states that Proposition 8 fails the strict scrutiny test. However, he did not actually apply that test; he just observed that if Proposition 8 could not meet the rational basis test it necessarily could not meet the more difficult-to-satisfy strict scrutiny test. The article should be fixed because Judge Walker in no way applied strict scrutiny to plaintiffs' equal protection claims.
honestly I don't think that californians 7 million people who voted for proposition 8 has no baring in dictating how gays or lesbians or transgenders have the right not to marry who they truly love. they aren't hurting anyone at all to me is this the free united states of america?
I know that "Baker v. Nelson" was not decided by the Supreme Court. I pointed that out myself.
Walker did indeed ignore "Baker v. Nelson", pure and simple. He is bound by it, as are all other lower courts, until furtther notice.
"Baker" has NOT been undermined by "Romer v. Evans" or by "Lawrence v. Texas". And at least two examples of that are the rulings of "Wilson v. Ake" in Florida (2005) and "Equal Protection v. Bruning" (2006). Both cases occured AFTER the US Supreme Court ruled on "Romer..." and "Lawrence..." . The 11th and 8th Circuit Courts ruled in the those two cases respectively, that they indeed were bound by "Baker.."
Furthermore, California's Supreme Court did the same in 2004, in the "Lockeyer v. San Francisco". So, the idea that "Romer..." and "Lawrence...." have weakened "Baker.." is patently false. In fact, "Wilson v. Ake" addresses this very claim:
"The Supreme Court's holding in Lawrence does not alter the dispositive effect of Baker. See Agostini v. Felton, 521 U.S. 203, 207, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ("The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent."); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decision."). The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today. Accordingly, Baker v. Nelson is binding precedent upon this Court and Plaintiffs' case against Attorney General Ashcroft must be dismissed."
SImply put, the only court that can override a US Supreme Court ruling is the US Supreme Court, itself. Lower courts DO NOT HAVE THE AUTHORITY to assume that recent US Supreme Court rulings override older ones. So, Walker did indeed ignore "Baker v. Nelson"; whereas other federal courts have not. That's why I'm confident that Walker's ruling will be overturned. And, as strange as it may sound to some, the 9th Circuit Court may be the one to do it, as the 8th Circuit Court did to the judge that ruled against Nebraska's marriage amendment.
Furthermore, Dan,
Walker appears to have it all wrong. If Prop. 8 ("Schwarzenegger" in this case of "Perry v. Schwarzenegger) is the defendant, then why would there be a need to pass a scrutiny test? Aren't defendants INNOCENT UNTIL PROVEN GUILTY?
The burden of proof isn't on Schwarzenegger to prove that Prop. 8 is constitutional (notwithstanding the fact that the governor stood by like a punk and did nothing to defend one of the laws that he swore to uphold). It's on the plaintiffs to show that it's not. And the crux of the plaintiffs' claim is that Prop. 8 violates the 9th and 14th amendments, the SAME claim made, nearly 40 years ago, by the plaintiffs in "Baker v. Nelson".
If the US Supreme Court says that it does not, based on its ruling on "Baker.." (the aforementioned cases in the mid-2000s, regarding California, Florida, and Nebraska, all cite the US Supreme Court as making the ruling), then Walker is bound by that. It is wrong for him to ignore precedence like that (which is a reason why many suspect bias, stemming from his being gay).
"What's next, acceptance and "normailization" of civil unions between a 75 year old man and his dog Scruffy? "
Scruffy can't enter into civil contracts, so, no. Scruffy's rights are not restricted if he is restricted from entering a particular *type* of civil contract.
For everyone disgusted by gay marriage and gay sex, I advise you strongly, DO NOT ENGAGE IN IT. Not even a little bit. Please note that nowhere in the ruling on Prop 8 does it make gay marriage mandatory. It's purely optional, so feel free to go on about your business with no further worries about the gay sex.
"Homosexuals are sexual PERVERTS & there is no right for PERVERTS to be married."
Whatchootalkinbout? I'm a pervert ... a hetero pervert. At least I am according to certain Christian cults ... um, denominations. And last I checked, I'm allowed a civil marriage in any state. Now, there are certain churches that might not want to grant the sacrament of marriage to me. And that's ... okay.
I keep hearing over and over about the "will of the people" have spoken and need to be respected. Can someone please tell me how the ignorant majority can usurp the civil rights of the minority and this is considered acceptable? Why is the USA the ONLY nation on earth that has voted on gay marriage? Americans are more stupid than I originally suspected. You CANNOT put the civil rights of the minority up for popular vote, otherwise they always lose. That's the POINT of having courts. To protect the minority. Didn't you people learn anything in civics class? I repeat; voting on civil rights issues is IMMORAL.
John Adams said it well: "That the desires of the majority of the people are often for injustice and inhumanity against the minority, is demonstrated by every page of the history of the whole world"
Thomas Jefferson said: our civil rights have no dependance on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right....
(Just to distinguish my self from the other Dan on this thread)
I've been legally married to my wonderful husband here in California for two years now. If a straight person can tell me how my marriage has harmed them or their children in ANY way, we will gladly march down to City Hall and file for a divorce today. Can anyone say this?
The utter ignorance displayed on this thread is staggering to me, but I suppose I shouldn't be surprised here in Jesusland. Someone mentioned that there is no evidence the sexual orientation is not a choice. This is patently FALSE. In fact, science has known for more than two decades now that sexual orientation is not only not something we choose, but it is an innate characteristic similar to being right or left handed, male or female, Asian or Caucasian:
The Royal College of Psychiatrists states:
" Despite almost a century of psychoanalytic and psychological speculation, there is no substantive evidence to support the suggestion that the nature of parenting or early childhood experiences play any role in the formation of a person's fundamental heterosexual or homosexual orientation. It would appear that sexual orientation is biological in nature, determined by a complex interplay of genetic factors and the early uterine environment. Sexual orientation is therefore not a choice."
The American Academy of Pediatrics states:
" The current literature and most scholars in the field state that one's sexual orientation is not a choice; that is, individuals do not choose to be homosexual or heterosexual. There is no scientific evidence that abnormal parenting, sexual abuse, or other adverse life events influence sexual orientation.
People, use your BRAIN and put down your King James version for a few minutes. Nobody chooses their sexual orientation any more than we choose to be right or left handed. Yes, it's true that there has been no gay gene discovered, and scientists don't expect to find it either. That's because sexual orientation is more complex than just a gene. There are many human characteristics that are equally complex. But, this notion that someone wakes up one day and decides to be straight or gay is completely and utter rubbish with no science behind it. We know conclusively that sexual orientation is NOT a choice, and even the Catholic church agrees with this, as they recommend gays remain celibate (works real well for their priests, right? NOT!)
More ignorance exposed:
Some writers here say that gay marriage will lead to incest, polygamy, marriage to children and to animals. Let me point out that there are reasons these forms of marriage have been banned for various reasons which are perfectly valid and have no relation to people of the same gender getting married:
1 Incest is banned for health reasons. It can lead to terrible diseases, but I'm convinced that brothers and sisters ARE getting married somewhere in the USA, and their progeny is commenting on this thread as we speak!
2 Marriage to children has been banned because children cannot consent to marry and are not mature enough to physically handle sexual relationships, although girls as young as NINE are getting married today in Yemen in 2010!
3 Polygamy was once legal and is the biblical norm. In fact, this was traditional marriage in the bible before it was changed to one man/one woman. Your guess is as good as mine as to why it was banned.
4 Marriage to animals is a no brainer. Animals can't consent to marry, so it is essentially cruelty to animals to force such a human arrangement onto them. Although, animals mate with same sex partners for LIFE, and raise the young of their species. It is well documented in 450 species of animals.
So, none of these marriages relate even remotely to gay marriage. If promoters of incestuous marriages (most of which are heterosexual) would like to take their cause to the courts, and legislatures, let them try it. I have nothing against them fighting for it.
Why do the Gays keep trying to tell us that the homosexual lifestyle is morally pure and healthy? I don't get the flawed thinking! This lifestyle leads to the colapse of great society values.
What a great week for civil rights. To all the misinformed, homophobic, bigots out there, this hate filled proposition is going to be deemed unconstitutional again when it goes to the 9th Circuit, and eventually to the Supreme Court. The truth is that the people who wish to deny equal rights to gay people are typically old, uneducated, and religious, and feel they have the right to impose their ideologies on everyone. Maybe they should move to Iran or some other oppressive country where human rights are denied to those who disagree with the leaders. I can understand the bigotry coming from elderly people. My grandma, a very loving, yet uneducated woman, sometimes used the term "colored" to refer to African Americans. She did not mean to be disrespectful, it was just a pejorative term of antiquity leftover from her generation. But unless you're over 70, your homophobia has most likely been indoctrinated into you through your parents or church, rather than society as a whole. You people should start your own society, that promotes bigotry, intolerance, hatred, etc for those who are different than you, somewhere a long ways away from me and my children. If you were able to look at empirical evidence and comprehend the fact that homosexuality is partially genetic, maybe you would have a little more compassion for all of the brave gay and lesbian people out there who are constantly faced with your hatred. And if you are a woman, ethnic minority, person with a disability or any other minority who opposes gay marriage, then you are a traitor to the fight for equality for ALL minorities. As the great civil rights leader Dr. Martin Luther King Jr. wisely noted "Injustice anywhere is a threat to justice everywhere". Thank God that a great injustice has been done away with. If he/she does exist, he/she would surely want all his/her creatures to be treated with love, and respect. I guess Christian/Catholic/other Anglo-Saxon religions care more about upholding traditions than learning to love and tolerate those who are different from them.
Dan your probly a nice guy,but your sighting mumbo jumdo studies that don't prove any thing except thoughts of the author.
Oliver, could you please define "gay lifestyle?" What is that? I'm gay, I'm married, and that is my lifestyle. when people use the term "gay lifestyle" it seems code for: "i hate fags." I need some education here. I've been gay my whole life, and have known hundreds of gay people. I simply have not been able to understand why they live a 'lifestyle" and heterosexuals don't. Can you educate me? It seems to me that saying "gay lifestyle" makes as much sense as saying "male lifestyle" or "Asian lifestyle.' There are HUNDREDS of lifestyles in each of those categories... Help me understand this better... Thanks!
I"m not sure if you're talking to me or the other Dan, but in case you're referring to the studies which confirm that sexual orientation is not a choice, there is NO dispute about this in the scientific community. The science is CLEAR: sexual orientation is an innate characteristic similar to gender, race, and handedness. it is not in doubt any longer. Would you be so kind as to supply us some proof that sexual orientation is chosen? Thanks much!
I doubt you'll get the emprical evidence you're asking for Dan. All homophobes can do to "support" their opinion is quote the bible, and most of them do not even have the Biblical knowledge to do that. The only deleterious effects that can come from same-sex marriage is caused by discrimination that gay and lesbian couples, and their children have to face from bigots. Oh, and maybe the lack of socialization into traditonal gender roles, but I suppose this is possible within a same-sex marriage.
"3. The Court holds that a statutory rule 'need not be perfect' and the interest in promoting procreation and preserving the traditional institution of marriage are rationally related to the ban; District Court overruled."
That already happened nearly 40 years ago in "Baker v. Nelson", which is why I've said that one shouldn't be that surprised, if the 9th Circuit Court reverses Walker's decision.
As for Kennedy, I say this. If there were a chance for him to rule in such a manner, it should have happened in the Nebraka marriage amendment case. However, once the 8th Circuit Court reversed the ruling of the judge that called the amendment unconstituitonal, that's where it ended.
How does California's Prop. 8 violate the US Constitution, when Nebraska's Article I, § 29 DOES NOT? Much of the same arguments made in the California case were made in the Nebraska case (as well as the Florida case, "Wilson v. Ake" and the Minnesota case "Baker v. Nelson", which went to the Supreme Court who effectively ruled in favor of Minnesota, by rejecting the appeal of the gay plaintiffs on its merits).
Here is the conclusion of the 8th Circuit Court of Appeals ruling on "Citizens for Equal Protection v. Bruning", regarding Nebraska's marriage amendment:
In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, 409 U.S. 810 (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." (Emphasis added.) There is good reason for this restraint. As Judge Posner has observed:
This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority. But public opinion is not irrelevant to the task of deciding whether a constitutional right exists … If it is truly a new right, as a right to same-sex marriage would be … [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right.
Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1585 (1997).
As we have explained, Appellees' attempt to isolate § 29 from laws prohibiting same-sex marriage because it is a state constitutional amendment fails. If there is no constitutional right to same-sex marriage, that is, if a statutory prohibition satisfies rational-basis review, then § 29 likewise survives rational-basis review. We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.
The judgment of the district court is reversed and the case is remanded with directions to dismiss Appellees' complaint with prejudice. Given our decision on the merits, Appellees are no longer "prevailing parties." The district court's award of attorneys fees is therefore reversed. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Resources, 532 U.S. 598, 604 (2001).
As far the claim of Prop. 8 being passed, just out of hatred or animus towards homosexuals, that claim was also made of the Nebraska marriage amendment in "Equal Protection v. Bruning". Here's the 8th Circuit Court's reaction to that:
Rational-basis review is highly deferential to the legislature or, in this case, to the electorate that directly adopted § 29 by the initiative process....... Thus, the classification created by § 29 and other laws defining marriage as the union between one man and one woman is afforded a "strong presumption of validity." Heller v. Doe, 509 U.S. 312, 319 (1993). The Equal Protection Clause "is not a license for courts to judge the wisdom, fairness, or logic of [the voters'] choices." Beach Communications, 508 U.S. at 313......
Appellees argue that § 29 does not rationally advance this purported state interest because "prohibiting protection for gay people's relationships" does not steer procreation into marriage. This demonstrates, Appellees argue, that § 29's only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws -- to encourage heterosexual couples to bear and raise children in committed marriage relationships. Appellees attempt to isolate § 29 from other state laws limiting marriage to heterosexual couples. But as we have explained, there is no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects. If the many state laws limiting the persons who may marry are rationally related to a legitimate government interest, so is the reinforcing effect of § 29. The barrier created by § 29 was enough to confer standing, but Appellees' equal protection argument fails on the merits.
Looking at some earlier Supreme Court decisions using race you can see that it does not depend on the law but more to society's views. Substitute "sexual orientation" for race.
In Loving v. Virginia the U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:
" Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."
Prior to Loving v. Virginia, there were several cases on the subject of race-mixing. In Pace v. Alabama (1883), the Supreme Court ruled that the conviction of an Alabama couple for interracial sex, affirmed on appeal by the Alabama Supreme Court, did not violate the Fourteenth Amendment. Interracial extramarital sex was deemed a felony, whereas extramarital sex ("adultery or fornication") was only a misdemeanor. On appeal, the United States Supreme Court ruled that the criminalization of interracial sex was not a violation of the equal protection clause because whites and non-whites were punished in equal measure for the offense of engaging in interracial sex.
The Civil Rights Act of 1875, introduced by Charles Sumner and Benjamin F. Butler, stipulated a guarantee that everyone, regardless of race, color, or previous condition of servitude, was entitled to the same treatment in public accommodations, such as inns, public transportation, theaters, and other places of recreation. An 1883 Supreme Court decision ruled that the act was unconstitutional, saying Congress was not afforded control over private persons or corporations.
In Plessy v. Ferguson (1896), the Supreme Court by 7-1 ruled that "separate but equal" facilities were constitutional. The ruling stated "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."
"Baker v. Nelson" was less than 5 years after "Loving v. Virginia". The gay men involved tried using "Loving.." to make the case that they had a right to re-define marriage. The Minnesota Court, however, saw it differently:
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.'
Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution."
In the case involved (along with several others), marriage is CLEARLY DEFINED as a union between a man and a woman. At NO TIME is it ever defined as comprising of two people of the same gender. "Loving..." states that marriage is "fundamental to our very existence and survival. Why would marriage be essential for survival? Answer: PROCREATION (responsble PROCREATION, that is), something that two homosexuals simply cannot do. There is no way you can reproduce, without union of MAN and WOMAN, at some level. Even if you break out the test tube, at some point there MUST BE a guy and a girl involved, bottom line.
You will also note that, by the time the US Supreme Court ruled on "Loving...", less than a third of the states still had laws banning marriage between whites and non-whites (The Court even pointed out that Virginia didn't even enforce its own "Racial Purity" laws properly, since the state DID NOT punish interracial parties involving different non-white races). That scenario, however, doesn't exist with gay "marriage". Only 5 states have legalized it (California still has the ban in place, until the appeals process is done).
And, there's the matter I mentioned earlier. How do you reconcile striking down Prop. 8, with what happened in the Nebraska case, where a federal judge struck down the state marriage amendment only to be overturned by the 8th Circuit Court of Appeals?
The arguments are virtually identical. Plus, both that case and the one in Florida (Wilson v. Ake) clearly state that the US Supreme Court's ruling in "Baker v. Nelson" is standing precedence and all lower courts are subject to it (which would include that of Walker).
The point of my comment was that supreme court decisions change as as society's attitudes change.
When the appeal for Baker v. Nelson was dismissed 47 states still had laws making sodomy illegal including Minnesota, which wasn't struck down until Doe v. Ventura in 2001. Those sodomy laws made same sex relationships illegal. So any same sex marriage restriction made sense because it would have meant allowing a couple to engage in illegal activity. In 2003 the U.S. Supreme Court decision Lawrence v. Texas invalidated sodomy laws in the states that still had them.
Now the sexual activities in same sex relationships are no longer illegal in the United States. And society's attitudes are changing towards same sex relationships from what they were 40 years ago. Maybe this decision won't make it through the supreme court this time, but we're getting closer to the day when people will wonder what all the fuss was about. Just as it took many years and court fights before segregation was struck down by the courts.
You said "Why would marriage be essential for survival? Answer: PROCREATION (responsible PROCREATION, that is), something that two homosexuals simply cannot do."
Would this mean that laws forbidding a woman past menopause from marrying would be legal? After all they can't naturally reproduce without test tube help. Would a law requiring everyone to prove that they're fertile before they were allowed to marry be legal?
NOPE!! The Supreme Court covered that in "Baker v. Nelson":
The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner V. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), which invalidated Oklahoma's Habitual Criminal Sterilization Act on equal protection grounds, stated in part: "Marriage and procreation are fundamental to the very existence and survival of the race." This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), upon which petitioners rely, does not support a contrary conclusion. A Connecticut criminal statute prohibiting the use of contraceptives by married couples was held invalid, as violating the due process clause of the Fourteenth Amendment. The basic premise of that decision, however, was that the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship. Mr. Justice Douglas, author of the majority opinion, wrote that this criminal statute "operates directly on an intimate relation of husband and wife," 381 U.S. 482, 85 S.Ct. 1680, 14 L.Ed.2d 513, and that the very idea of its enforcement by police search of "the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives * * * is repulsive to the notions of privacy surrounding the marriage relationship," 381 U.S. 485, 85 S.Ct.1682, 14 L.Ed.2d 516. In a separate opinion for three justices, Mr. Justice Goldberg similarly abhorred this state disruption of "the traditional relation of the family--a relation as old and as fundamental as our entire civilization." 381 U.S. 496, 85 S.Ct. 1688,14 L.Ed.2d 522./3/
The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that "abstract symmetry" is not demanded by the Fourteenth Amendment.
Marriage, in general, is not a fundamental right in our country. If that were the case, then the following "marriages" would have been recognized throughout the history of our country as a fundamental right:
1) underage heterosexual children marrying ,
2) underage boys marrying.
3) underage girls marrying,
4) underage boys marrying gown men
5) underage girls marrying grown women
6) sisters marrying sisters
7) brothers marrying brothers
8) children marrying their parents
9) Same sex parties and
10) people marring their dogs.
So you see, it is laughable to hear the same-sex proponents argue, in their efforts to bolster the oxymoronic belief in homosexual "marriage", that marriage is a fundamental right. The only marriage to which there is a fundamental right in this country is marriage between non-familial opposite sex adults.
In cases of interracial marriage—where Olson is deriving his purported legal precedent—marriage was still between a man and a woman. The essence of marriage, as society has understood it, is not altered in the instance of a black man who marries a white woman. It is altered, however, when the definition of marriage is expanded to two members of the same-sex.
"The point of my comment was that supreme court decisions change as as society's attitudes change."
I'm aware of that, Frederic. That's why I mentioned that, with the "Loving..." case, less than a third of the states had anti-miscegenation laws, when the US Supreme Court made its ruling. And, with the "Lawrence.." case, most states had already taken out their respective sodomy laws.
The problem for gay "marriage" is that, unlike those two cases, you don't have the bulk of the states legalizing it. On the contrary, the opposite is true. 45 states define marriage as a union between a man and a woman, 30 have done so by state constitutional amendment or by a "People's Veto" (Maine).
As mentioned earlier, from the 8th Circuit Court, while public opinion/will of the people isn't the driving force in US Supreme Court decision, it isn't completely ignored, either.
And, you already have two districts courts (the 8th and 11th) that have ruled that two states' marriage laws/amendments do not violate the 14th Amendment. The 9th has to take that into consideration, particularly the 8th Circuit Court, because it ruled on a virtually identical case, when a federal judge struck down Nebraska's marriage amendment.
To say that Prop. 8 of California violated the 14th Amendment of the US Constitution but Article 1-Section 29 of Nebraska does not, makes no sense. Both define marriage as one-man-one-woman in their respective states. The arguments against them by homosexuals are virtually IDENTICAL. Either both violate the US Constitution or neither of them do. And the US Supreme Court's ruling on"Baker v. Nelson" says neither of them do.
While people like Kevin can write "Gays have never been able to prove scientifically that their lifestyle is anything more than that, a lifestyle, a choice" we can't hope for a rational debate.
Kevin, if you did a bit of reading (hint - the ruling might be a place to start) you'd discover that not only is there peer-reviewed research that shows homosexuality is not a "choice" but that the American Anthropological Association, the American Psycho-Analytic Association, the American Psychological Association, the American Psychiatric Association and the American Academy of Pediatrics all support gay marriage on the basis on scientific studies. Not knee jerk reactions, theology or prejudice. Just facts.
Prop 8 lost because its supporters couldn't muster enough facts to make it credible. Read the ruling. It's so impressive, so logical, so careful. So American.
I see endless attacks on the judge. He's a liberal lefty. Yeah, right. Check out his bio you morons. This guy is a Reagan appointee with a strong conservative history. He just happens to know a lot more than nearly anyone here about the Constitution.
And there is plenty of "peer-reviewed research" that offers the counter-argument, regarding homosexuality. The bottom line is this: The claim was that marriage was defined as a union between a man and a woman for the expressed purpose of being hurtful to homosexuals. That is utterly RIDICULOUS.
The same claim was made in the Nebraska case. The judge who struck down Nebraska's marriage amendment got overturned himself. So, it's not a stretch to suggest that the same could (and likely will) happen to Walker's ruling. And if the 9th Circuit Court does it, that's pretty much all she wrote. Notice that the Supreme Court didn't bother looking at the 8th Circuit Court's ruling, nor did it look at the 11th Circuit Court's ruling in the "Wilson v. Ake" case, regarding Florida's marriage law. Those cases occured just a few years ago.
Same sex relations has not been ruled immutable; whereas religion has, yet Walker single handedly awarded the immutable handle to same sex enthusiasts while simultaneously revoking the 1st Amendment immutable protection afforded to religion when this rogue declared faith an irrational reason for supporting a given position as a matter of law.
In the 2006 Nebraska ruling the 8th Circuit ruled that procreation is a rational basis for supporting the exclusion of same sex practitioners, but Walker ruled procreation to be an irrational excuse; that children no longer required a mother and a father.
To state it is to refute it.
That's why I said the 9th has got a lot of precedent to use, that favors reversing Walker's ruling. Again, you have the 8th and 11th Circuit Courts, using "Baker v. Nelson" in their findings that defining marriage as a union between a man and a woman DOES NOT violate the Constitution. That's all that has to be determined. Plus, you have other Supreme Court cases that do the same thing (i.e. "Murphy v. Ramsey").
Gay "marriage" advocates and those on the left are all expecting the 9th to uphold Walker's ruling and are already looking at the US Supreme Court. But, they and others could be rudely surprised, if the 9th reverses Walker. And, I don't think the US Supreme Court gets involved if that happens.
Prop 8 looks to be heading into the history books. Just in time for Christmas.
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