Remember that whole "Prop 8" thing? Yeah...

[archibaldcrane]

but subverting the voting populace, and democratic process, by legislating from the bench because they voted in an unconstitutional law is what a judge is paid to do.

ftfy

[SwampdonkeyPLD]

I think this judge applied the wrong test. If anything gets reversed it will be the test not the judgment.

But if gay haters want this reversed I think they need to find some Muslim plaintiffs since everyone is afraid of offending them.

[Neosutra]

I think this judge applied the wrong test. If anything gets reversed it will be the test not the judgment.

But if gay haters want this reversed I think they need to find some Muslim plaintiffs since everyone is afraid of offending them.

Did Swampy just simultaneously argue for gay rights while stereotyping Muslim political correctness?

[Olo401]

but subverting the voting populace, and democratic process, by legislating from the bench because they voted in an unconstitutional law is what a judge is paid to do.

The question isn't about the vote itself, but whether or not the initiative should have been on the ballot at all. There was no legislating from the bench here - Prop 8 violated the state and federal Constitution before it was even approved to be on the ballot and therefore should never have had the chance to be voted upon.

[Acturus]

A huge factor in the upcoming argument will be specifically about the word "Marriage".
Like chicken vs egg, those against gay "marriage" will state that the church had defined "marriage" long before any government did, and as such should have domain over it's definition. Also, the fact that California recognizes domestic partnerships between same gender couples, allowing them equal benefits under the law. If however, "Marriage" grants something that domestic partnerships don't, then Walker's ruling should 100% be upheld.
As someone who really is agnostic towards gay marriage/unions/etc, it's a tough argument to follow. Yes, I believe the government does not have a right to say who you can be with, but subverting the voting populace, and democratic process, by legislating from the bench because you don't like what the people think is a rough road to travel.

The "church's" definition of marriage has no basis on the secular definition of marriage. Walker's opinion very clearly outlines that marriage is a fundamental right afforded by the US constitution. What's especially interesting is that Walker notes that neither party disputed this fundamental right in their arguments.

As such, denying a fundamental right under the US constitution to any group of people is unconstitutional. That's logic for you.

Religion has no play in this, nor will religion realistically come into play during subsequent appeals, since appeals deal with issues of law involved in the original or previous case, whereas only the initial ruling deals in issues of fact.

In reading Walker's opinion as he specifically addresses the issues of fact presented by the defense, I find his arguments to be sound, reasonable, and free of political or social bias (his choice of words does reflect personal bias, but even still, I consider such to simply be professional commentary on the attorneys who argued the case, and not the case itself).

And for the record, there is no subversion of the voting populace when fundamental rights granted by the US constitution come into play. Walker cites case law that reinforces this (page 116, beginning line 25):

That the majority of California voters
supported Proposition 8 is irrelevant, as “fundamental rights may
not be submitted to [a] vote; they depend on the outcome of no
elections.” West Virginia State Board of Education v Barnette, 319
US 624, 638 (1943).

[zoobernut]

I think this judge applied the wrong test. If anything gets reversed it will be the test not the judgment.

But if gay haters want this reversed I think they need to find some Muslim plaintiffs since everyone is afraid of offending them.

Lol we don't want to get attacked by gay terrorists now...

Also what do you mean applied the wrong test?

To Bingbong I would agree with the argument about the word "marriage" being invented by religions giving them domain over it except for the fact that it is now being used in a legal way which instantly gives it new meaning outside of the scope of any religion anyway. As soon as the state and federal governments used the word marriage to define the legal union between two people that word stopped belonging to religions to control the definition of.

If religious fundamentalists really want to get technical they should be arguing to change the name of legal unions for everyone.

[SwampdonkeyPLD]

Lol we don't want to get attacked by gay terrorists now...

Also what do you mean applied the wrong test?

To Bingbong I would agree with the argument about the word "marriage" being invented by religions giving them domain over it except for the fact that it is now being used in a legal way which instantly gives it new meaning outside of the scope of any religion anyway. As soon as the state and federal governments used the word marriage to define the legal union between two people that word stopped belonging to religions to control the definition of.

If religious fundamentalists really want to get technical they should be arguing to change the name of legal unions for everyone.

I think he applied the "rational basis" test, a.k.a. the "lol" test. Basically, can you make an argument in favor of the state without a SCOTUS Justice bursting out in laughter at the argument. Yes you can, the state has an interest in increasing it's tax payer base, i.e. encouraging child bearing relationships. I don't think anything has ever been over turned for failing the rational basis test.

What it seems he should have done was apply the fundamental to ordered liberty test because enabling gay marriage would fail the history and tradition test.

Very short synopsis.

[Cantih]

and in related news, Elena Kagan will now be a Supreme Court Justice.
http://www.msnbc.msn.com/id/38570191...supreme_court/

[Jefe]

Nice honker.

Just let em get married to shut them up lol. Sick and tired of the marriage crap all the time.

[Restrat]

Actually, he applied both tests, setting up why he determined strict scrutiny was necessary as well as stating he was not presented with any rational state interest that would allow banning gay marriage to pass rational scrutiny.

[Bingbong]

As such, denying a fundamental right under the US constitution to any group of people is unconstitutional. That's logic for you.

The argument is that domestic partnership offers those same rights. Again, if it doesn't 100% offer the exact same "rights" as marriage, and by rights we mean all the governmental benefits that come with marriage, then Walker is 100% correct.

It's not clear cut and dry here, and the reason that the constitutionality of the whole proposition can even be argued.

Let's flip the argument, what if everything the church considered as a marriage was deemed unconstitutional because of the establishment clause, and as such any inter-gender "marriage" would forward have to be called a domestic partnership... would there even be an issue?

The question I'm dancing around is if gays can be "married" and get everything straight couples get, yet it's called a domestic partnership in City Hall, does the "gay-marriage" argument still hold water? Is it the actual word marriage that causes the argument?

[Neosutra]

The argument is that domestic partnership offers those same rights. Again, if it doesn't 100% offer the exact same "rights" as marriage, and by rights we mean all the governmental benefits that come with marriage, then Walker is 100% correct.

It's not clear cut and dry here, and the reason that the constitutionality of the whole proposition can even be argued.

Let's flip the argument, what if everything the church considered as a marriage was deemed unconstitutional because of the establishment clause, and as such any inter-gender "marriage" would forward have to be called a domestic partnership... would there even be an issue?

The question I'm dancing around is if gays can be "married" and get everything straight couples get, yet it's called a domestic partnership in City Hall, does the "gay-marriage" argument still hold water? Is it the actual word marriage that causes the argument?

Does sitting in the back of the bus really mean anything?

Does drinking from a different water fountain really mean anything?

The right to not be discriminated against by your own government (whom you pay taxes for) isnt subject to the wills and prejudices of the religious mob.

[zoobernut]

The argument is that domestic partnership offers those same rights. Again, if it doesn't 100% offer the exact same "rights" as marriage, and by rights we mean all the governmental benefits that come with marriage, then Walker is 100% correct.

It's not clear cut and dry here, and the reason that the constitutionality of the whole proposition can even be argued.

Let's flip the argument, what if everything the church considered as a marriage was deemed unconstitutional because of the establishment clause, and as such any inter-gender "marriage" would forward have to be called a domestic partnership... would there even be an issue?

The question I'm dancing around is if gays can be "married" and get everything straight couples get, yet it's called a domestic partnership in City Hall, does the "gay-marriage" argument still hold water? Is it the actual word marriage that causes the argument?

Wouldn't this basically be the separate but equal thing? If you allowed this then why aren't the Jim Crow laws still around which operated under the same principle.

Maybe I am overlooking something.

Also I don't think anyone would have any issues calling it a domestic partnership if it was called that for everyone in the eyes of the law.

Maybe that is the answer give the word marriage back to religion and have legal domestic partnerships for all.

Would anti gay marriage advocates still be against it if the word marriage was not involved?


Does their whole argument basically boil down to semantics?

[Psion]

As was mentioned in the report, marriage has a superior meaning to domestic partnership by far, making them not equal at all, and that's not counting the fact that domestic partnership doesn't give all the same rights as marriage. (hello, federal benefits)

Honestly, would you like it if you weren't allowed to call your husband or wife that, but instead, partner? Gay couples constantly have to deal with people associating the love of their life as a buisness partner. if they could just say that their love is their husband, or their wife, it carries an incredible amount of meaning to everyone. Everyone knows what a husband or wife is, and what it means. No one, however, considers a partner to be particularly special when it comes to love.

Also, if we really cared about the children, we would give them to gay and lesbian couples, as a recent study found them to be BETTER parents on average than two straight couples. Why? because it was comparing it to all straight couples, which means lots of accidental and unplanned children, whereas for gay/lesbian couples, all children are planned. This means that they have children when they know they can support them financially, and give them everything a child needs to grow up successful. If you compared gay/lesbian couples to only straight couples that planned their births, they would be on even terms as far as socially adjusted, well off physically and financially raised children.

Also, I'm convinced that ESP and psychokinesis exist, based on the sheer fact that all the conservative bigots (not that all conservatives are bigots, but we all know the type im talking about) share a hive mind. <_<

[Kuya]

Nice honker.

Just let em get married to shut them up lol. Sick and tired of the marriage crap all the time.

Not that there's anything wrong with that

[Jeryhn]

The argument is that domestic partnership offers those same rights. Again, if it doesn't 100% offer the exact same "rights" as marriage, and by rights we mean all the governmental benefits that come with marriage, then Walker is 100% correct.

And for this reason, he is. The federal government recognizes "marriage" when it comes to conferring certain rights upon couples, not "domestic partnerships".

Two members of the opposite sex can also get a "domestic partnership" and will still not be recognized by the Feds for things like tax breaks or veteran benefits. I personally know an opposite-sex couple in this situation - they're hippies basically and they don't believe in "marriage".

[Tristam]

I think the judge claimed it failed both tests, but commentary I'm drawing from is here, which is very accessible to laymen (me):

http://scienceblogs.com/dispatches/2...s_los.php#more

My favorite part was this:

At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was "not the legally relevant question," but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know."

[Restrat]

the rulling itself is very easy to read. Its 138 pages but most of that is just lists of documents cited in trial. He explains how prop8 is unconstitutional both from due process and equal protection standpoints, then he explains how sexual orientation related laws must pass strict scrutiny, and also very thoroughly describes the six rational interests that the defendants claimed Prop 8 could serve and why they we not found to be valid.

[quannum]

[Kuya]

Keep abortion legal so we can abort gay babies.