Fuck its silent in here.......

[Gilgamesh]

In reading the Perry v. Schwarzenegger decision, can I just point out the exceptional quality of the writing and the opinion?  Beyond that, this is clearly a decision designed for one person and one person only.  Anthony Kennedy.  Kennedy was the swing vote in Lawrence and will be the swing vote in this case once it makes its way to SCOTUS, barring any deaths or resignations. 

The bigger picture is how the justices will look at this case.  I think most, if not all, will view this case as probably the most significant civil rights case they'll ever hear (maybe the second amendment cases for the conservatives) and that their opinions will be judged and scrutinized for years to come.  Kennedy will probably be looking to leave some kind of legacy on the court and this would be huge.

That said, the decision's due process logic is probably the most compelling; that is, there exists no rational basis (one of the tiers of strict scrutiny) for the restriction of SSM.  I think Boies and Olsen did a phenomenal job in their presentation of the case and their organization of the witnesses.  If I were an opponent of marriage equality, I'd be looking for new legal reasons to oppose SSM.  And before anyone else notes this, Judge Walker is a Republican (said he joined the party in the Nixon era [BOOYAH!!!]) and was appointed by both Reagan and Bush the Elder.

On a personal note, it feels imminently gratifying to see that despite the demagoguery of a campaign and the inherent nastiness that democracy can produce, when the result of said democracy is challenged in court, one better have a better argument than fear and ignorance.  Because it didn't work here.

Bring it on, MikeC.

Again, I started reading the first sentance thinking Yeti wrote it and got completely confused. You might want to address that.

If you thought Yeti wrote that then you've never read a single one of Yeti's post in your life.

I had that one good post that one time, dickblick

Don't use that fine art supply company as an insult.

[Bort]

In reading the Perry v. Schwarzenegger decision, can I just point out the exceptional quality of the writing and the opinion?  Beyond that, this is clearly a decision designed for one person and one person only.  Anthony Kennedy.  Kennedy was the swing vote in Lawrence and will be the swing vote in this case once it makes its way to SCOTUS, barring any deaths or resignations. 

The bigger picture is how the justices will look at this case.  I think most, if not all, will view this case as probably the most significant civil rights case they'll ever hear (maybe the second amendment cases for the conservatives) and that their opinions will be judged and scrutinized for years to come.  Kennedy will probably be looking to leave some kind of legacy on the court and this would be huge.

That said, the decision's due process logic is probably the most compelling; that is, there exists no rational basis (one of the tiers of strict scrutiny) for the restriction of SSM.  I think Boies and Olsen did a phenomenal job in their presentation of the case and their organization of the witnesses.  If I were an opponent of marriage equality, I'd be looking for new legal reasons to oppose SSM.  And before anyone else notes this, Judge Walker is a Republican (said he joined the party in the Nixon era [BOOYAH!!!]) and was appointed by both Reagan and Bush the Elder.

On a personal note, it feels imminently gratifying to see that despite the demagoguery of a campaign and the inherent nastiness that democracy can produce, when the result of said democracy is challenged in court, one better have a better argument than fear and ignorance.  Because it didn't work here.

Bring it on, MikeC.

Again, I started reading the first sentance thinking Yeti wrote it and got completely confused. You might want to address that.

If you thought Yeti wrote that then you've never read a single one of Yeti's post in your life.

I had that one good post that one time, dickblick

Don't use that fine art supply company as an insult.

Yeti's such a Utrecht.

[morpheus]

In reading the Perry v. Schwarzenegger decision, can I just point out the exceptional quality of the writing and the opinion?  Beyond that, this is clearly a decision designed for one person and one person only.  Anthony Kennedy.  Kennedy was the swing vote in Lawrence and will be the swing vote in this case once it makes its way to SCOTUS, barring any deaths or resignations. 

The bigger picture is how the justices will look at this case.  I think most, if not all, will view this case as probably the most significant civil rights case they'll ever hear (maybe the second amendment cases for the conservatives) and that their opinions will be judged and scrutinized for years to come.  Kennedy will probably be looking to leave some kind of legacy on the court and this would be huge.

That said, the decision's due process logic is probably the most compelling; that is, there exists no rational basis (one of the tiers of strict scrutiny) for the restriction of SSM.  I think Boies and Olsen did a phenomenal job in their presentation of the case and their organization of the witnesses.  If I were an opponent of marriage equality, I'd be looking for new legal reasons to oppose SSM.  And before anyone else notes this, Judge Walker is a Republican (said he joined the party in the Nixon era [BOOYAH!!!]) and was appointed by both Reagan and Bush the Elder.

On a personal note, it feels imminently gratifying to see that despite the demagoguery of a campaign and the inherent nastiness that democracy can produce, when the result of said democracy is challenged in court, one better have a better argument than fear and ignorance.  Because it didn't work here.

Bring it on, MikeC.

Scorpion Secks Magic?

Also, too, great post.

Fuck, I'd forgotten about that. Good times.

How could you forget this?

[Oleg]

Elana Kagan, a SCOTUS judge.

With a who's who of Senate douchebags who opposed her nomination.

How's that for poke-sticking?

[R-V]

Elana Kagan, a SCOTUS judge.

With a who's who of Senate douchebags who opposed her nomination.

How's that for poke-sticking?

Why/how is Ben Nelson a Democrat? When's the last time he actually did something to help the Democratic caucus?

[Bort]

Elana Kagan, a SCOTUS judge.

With a who's who of Senate douchebags who opposed her nomination.

How's that for poke-sticking?

Why/how is Ben Nelson a Democrat? When's the last time he actually did something to help the Democratic caucus?

He fills the vital "dickhead that argues on everything role" now that Lieberman is not around?

[Internet Apex]

That Paul's got one even tan.

[World's #1 Astros Fan]

That Paul's got one even tan.

So that's what we've come to, Apex?  Stealing JD's material?

[J. Walter Weatherman]

Elana Kagan, a SCOTUS judge.

With a who's who of Senate douchebags who opposed her nomination.

How's that for poke-sticking?

Why/how is Ben Nelson a Democrat? When's the last time he actually did something to help the Democratic caucus?

He fills the vital "dickhead that argues on everything role" now that Lieberman is not around?

Hey now! Joementum's still going strong in the Dem caucus, Jon...

http://thehill.com/blogs/blog-briefing-room/news/112323-lieberman-pause-to-development-of-islamic-center-near-ground-zero

"I'd say I'm troubled by it, but I don't know enough to say that it ought to be prohibited," Lieberman said on "Imus in the Morning" on the Fox Business Network. "But frankly I've heard enough about it and read enough about it that I wish somebody in New York would just put the brakes on for a while and take a look at this."

Concern troll is concerned.

"I've also read some things about some of the people involved that make me wonder about their motivations. So I don't know enough to reach a conclusion, but I know enough to say that this thing is only going to create more division in our society, and somebody ought to put the brakes on it," he said. "Give these people a chance to come out and explain who they are, where their money's coming from."

Now, I don't know nothin' 'bout no mosque buildin', no, sir. But I done heard some things what make me wonder 'bout these things I don't know nothin' 'bout. Yes, sir.

[World's #1 Astros Fan]

Joe Lieberman and his Willy Tanner voice can go drown in a pool of dicks.

[Internet Apex]

That Paul's got one even tan.

So that's what we've come to, Apex?  Stealing JD's material?

I wasn't stealing it. I was paying homage to it. Oh-Mahj.

[J. Walter Weatherman]

The meat of the Perry decision, when addressing due process and the question of whether or not Prop 8 infringed on a fundamental right...

https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf

Marriage has retained certain characteristics throughout the history of the United States.  See FF 19, 34-35.  Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.  FF 20, 34.  The spouses must consent to support each other and any dependents.  FF 34-35, 37.  The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.  FF 35-37.  The state respects an individual's choice to build a family with another and protects the relationship because it is so central a part of an individual's life.  See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.  FF 21.  "[ I ]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse."  Lawrence, 539 US at 567.  The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship.  See Griswold, 381 US at 485-486.

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. FF 23-25.  When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change.  388 US at 12.  Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.  Id.

The marital bargain in California (along with other states) traditionally required that a woman's legal and economic identity be subsumed by her husband's upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals.  FF 26-27, 32.  As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse's role within a marriage.  FF 26-27, 32.  Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals.  Id.  Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples.  The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, FF 26-27, social disapproval of same-sex relationships, FF 74, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction, FF 43.  The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.  The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.  FF 21.  Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.  That time has passed.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.  FF 19-20, 34-35.  Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.  FF 33.  Today, gender is not relevant to the state in determining spouses' obligations to each other and to their dependents.  Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.  FF 48.  Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

...

Plaintiffs do not seek recognition of a new right.  To characterize plaintiffs' objective as "the right to same-sex marriage" would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage.  Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

[J. Walter Weatherman]

In addressing the equal protection issues, this jumped out at me...

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.  One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them.  But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed.  See Background to Proposition 8 above.

Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting opposite- sex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest.

Liberals are so quick to get up on their high horses talking about the "rights" of cry-baby minorities to live their private lives as they see fit.

But where are those hypocrites when it comes time to defend the rights of bigots to hate these minorities, huh? Talk about double standards.

PURPORTED INTEREST #4: PROTECTING THE FREEDOM OF THOSE WHO OPPOSE MARRIAGE FOR SAME-SEX COUPLES

Proponents next argue that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex.  Proponents argue that Proposition 8: (1) preserves "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children"; and (2) accommodates "the First Amendment rights of individuals and institutions that oppose same- sex marriage on religious or moral grounds."  Doc #605 at 14.

These purported interests fail as a matter of law. Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children.  See In re Marriage Cases, 183 P3d at 451-452.  Californians are prevented from distinguishing between same-sex partners and opposite-sex spouses in public accommodations, as California antidiscrimination law requires identical treatment for same-sex unions and opposite- sex marriages.  Koebke v Bernardo Heights Country Club, 115 P3d 1212, 1217-1218 (Cal 2005).  The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California.  See FF 57, 62.  Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.  FF 62.

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals' moral views are an insufficient basis upon which to enact a legislative classification.

[J. Walter Weatherman]

Another money shot:

A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION

In the absence of a rational basis, what remains of proponents' case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) ("[T]he Constitution cannot control [private biases] but neither can it tolerate them.").

The evidence shows that Proposition 8 was a hard-fought campaign and that the majority of California voters supported the initiative. See Background to Proposition 8 above, FF 17-18, 79- 80. The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce "profound and deep convictions accepted as ethical and moral principles" through the criminal code. 539 US at 571. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California's obligation is to treat its citizens equally, not to "mandate [its] own moral code." Id (citing Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992)). "[M]oral disapproval, without any other asserted state interest," has never been a rational basis for legislation. Lawrence, 539 US at 582 (O'Connor, J, concurring). Tradition alone cannot support legislation. See Williams, 399 US at 239; Romer, 517 US at 635; Lawrence, 539 US at 579.

Proponents' purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something "wrong" with same-sex couples. See FF 78-80.

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. FF 79-80. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. FF 79-80; See PX0016 Video, Have You Thought About It? (video of a young girl asking whether the viewer has considered the consequences to her of Proposition 8 but not explaining what those consequences might be).

At trial, proponents' counsel attempted through cross- examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. See PX0390A Video, Ron Prentice Addressing Supporters of Proposition 8, Excerpt; Tr 132:25-133:3 (proponents' counsel to Katami: "But the fact is that what the Yes on 8 campaign was pointing at, is that kids would be taught about same-sex relationships in first and second grade; isn't that a fact, that that's what they were referring to?"). The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual. FF 79; PX0099 Video, It's Already Happened (mother's expression of horror upon realizing her daughter now knows she can marry a princess).

The testimony of George Chauncey places the Protect Marriage campaign advertisements in historical context as echoing messages from previous campaigns to enact legal measures to disadvantage gays and lesbians. FF 74, 77-80. The Protect Marriage campaign advertisements ensured California voters had these previous fear-inducing messages in mind. FF 80. The evidence at trial shows those fears to be completely unfounded. FF 47-49, 68-73, 76-80.

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

[J. Walter Weatherman]

QPD...

In reading the Perry v. Schwarzenegger decision, can I just point out the exceptional quality of the writing and the opinion?  Beyond that, this is clearly a decision designed for one person and one person only.  Anthony Kennedy.  Kennedy was the swing vote in Lawrence and will be the swing vote in this case once it makes its way to SCOTUS, barring any deaths or resignations. 

The bigger picture is how the justices will look at this case.  I think most, if not all, will view this case as probably the most significant civil rights case they'll ever hear (maybe the second amendment cases for the conservatives) and that their opinions will be judged and scrutinized for years to come.  Kennedy will probably be looking to leave some kind of legacy on the court and this would be huge.

That said, the decision's due process logic is probably the most compelling; that is, there exists no rational basis (one of the tiers of strict scrutiny) for the restriction of SSM.  I think Boies and Olsen did a phenomenal job in their presentation of the case and their organization of the witnesses.  If I were an opponent of marriage equality, I'd be looking for new legal reasons to oppose SSM.  And before anyone else notes this, Judge Walker is a Republican (said he joined the party in the Nixon era [BOOYAH!!!]) and was appointed by both Reagan and Bush the Elder.

On a personal note, it feels imminently gratifying to see that despite the demagoguery of a campaign and the inherent nastiness that democracy can produce, when the result of said democracy is challenged in court, one better have a better argument than fear and ignorance.  Because it didn't work here.

Bring it on, MikeC.

http://andrewsullivan.theatlantic.com/the_daily_dish/2010/08/prop.html

A reader writes:

What strikes me about Judge Walker's opinion is the amount of evidence he included there - numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can't say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed - as everyone knows it will be - he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.

Whether the appeals court overturns on the application of law is a different issue. But it's not going to be a fact issue that does it. And then the way that he completely flicks away Prop 8 proponents' experts' testimony. The man is smart.