Federal Court Rules Prop 8 Gay Marriage Ban Unconstitutional


Saying that it unfairly targets gay men and women, a federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.

[. . .] "Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause," wrote Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, who heard the case without a jury. "Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest."

The decision ((PDF).

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    likin the sound of this (5.00 / 1) (#1)
    by Capt Howdy on Wed Aug 04, 2010 at 04:50:33 PM EST
    Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause

    and it's so true (5.00 / 1) (#5)
    by CST on Wed Aug 04, 2010 at 05:09:37 PM EST
    honestly I've never heard a legal argument for prop 8 being constitutional.

    There's the whole "gay marriage is just plain wrong" cry.  But that's not really much of a legal leg to stand on.  I haven't seen anyone even really attempt to make a good case.

    There is a reason it has been struck down pretty much every time it sees a court.

    Has any court in the U.S. ruled in favor of a gay-marriage ban?


    so (none / 0) (#38)
    by Capt Howdy on Wed Aug 04, 2010 at 06:48:45 PM EST
    I am reading that the judge is gay.  interesting.
    that will give the right something to talk about.

    already talking (none / 0) (#39)
    by Capt Howdy on Wed Aug 04, 2010 at 06:56:38 PM EST
    Openly so. (none / 0) (#42)
    by KeysDan on Wed Aug 04, 2010 at 08:24:05 PM EST
    Appointed by George HW Bush, Initially nominated by Ronald Reagan, but stalled due to opposition by Nancy Pelosi for his role in stopping use of "Gay Olympics".  Probably has a cabin in Tahoe made of logs.

    I think (none / 0) (#44)
    by Capt Howdy on Wed Aug 04, 2010 at 08:25:56 PM EST
    Im in love

    but you have to admit its red meat


    honestly (none / 0) (#45)
    by Capt Howdy on Wed Aug 04, 2010 at 08:27:50 PM EST
    I am surprised to be surprised.  I mean I would think I would have heard this already.  I am surprised it has not already been made an issue of.

    and of course it has but I have not seen it and I am not the most uninformed person on earth.  but I have been busy


    For those just joining us (5.00 / 3) (#2)
    by andgarden on Wed Aug 04, 2010 at 04:50:50 PM EST
    The opinion is here. It hits all of the right notes.

    Now to appeal.

    does this mean (5.00 / 1) (#3)
    by jondee on Wed Aug 04, 2010 at 05:01:55 PM EST
    that I can now expect to have a sudden, overwhelming desire to marry a man at any moment through the power of suggestion?

    Is my marriage crumbling (5.00 / 2) (#8)
    by waldenpond on Wed Aug 04, 2010 at 05:19:57 PM EST
    as I type?  What about my children?  They are both adults now but what about my children?

    the prophetic voices (5.00 / 1) (#17)
    by jondee on Wed Aug 04, 2010 at 05:30:26 PM EST
    reverberating in that over-stuffed closet on the right side of the aisle say yes!

    What is the collective wisdom here on Polygamy? (1.00 / 2) (#41)
    by BTAL on Wed Aug 04, 2010 at 08:17:16 PM EST
    Is it as protected as gay marriage?

    collectively (none / 0) (#43)
    by Capt Howdy on Wed Aug 04, 2010 at 08:24:52 PM EST
    I have no idea but afaiac as long as they are all of legal age, pile um on.



    Whiskey For My Men, Beer For My Horses (none / 0) (#46)
    by BTAL on Wed Aug 04, 2010 at 08:54:10 PM EST
    and condoms for anything else.

    probably (none / 0) (#47)
    by zaitztheunconvicted on Thu Aug 05, 2010 at 09:43:41 AM EST
    I am formerly LDS (Mormon) and so I have thought about this a little more than most.

    Back in the 1880s, it was the US government versus the church in Utah.  Now it is usually a few states against smaller local groups.  There are people who have religious beliefs (convictions?) that it is proper, and there are others who believe that polyamory is normal and best, without having a religious belief from a church that leads to their polyamory.

    The actual main problem arising with the fraction who currently practice is that they then often depend on the state to support their kids.  

    There are also Muslim and a fraction of Muslim men have up to 4 wives.

    I think that the state has no compelling or legitimate reason to forbid plural marriage or polyamory, with the exception of not supporting a dozen kids, and a provision be made for hospital visits and the like.  Also, the state makes things worse, I think, by criminalizing the conduct some believe is morally right.


    well said (none / 0) (#48)
    by Capt Howdy on Thu Aug 05, 2010 at 10:59:44 AM EST
    I agree.  I see no reason why the state should be able to tell anyone of legal age who or how to marry.

    Isn't financial support an interest? (none / 0) (#50)
    by waldenpond on Thu Aug 05, 2010 at 11:31:21 AM EST
    Isn't financial support a compelling state interest?

    Well, good for now anyway... (none / 0) (#4)
    by inclusiveheart on Wed Aug 04, 2010 at 05:06:39 PM EST
    Until it is challenged further in front of the Roberts court.

    I Cant See This Surviving Scutus (none / 0) (#6)
    by msaroff on Wed Aug 04, 2010 at 05:16:52 PM EST
    With Scalia having publicly stated his bias against this, Alito and Roberts chomping at the bit to throw red meat to the "cultural conservatives," Thomas wanting to find an ethnic group to crap on, and Kennedy being of an age where the whole thing probably squicks him out, that is 5 votes against.

    The only chance for anything like a victory is to get Scalia to recuse himself (as he should, but won't except under enormous pressure).

    I'm talking about going full Scientology on him. (except, of course for the whole drowning his dog bit)

    You could make the same argument about Thomas, that he should recuse himself because his wife is a paid operative of an organization that lobbies on this matter.

    What worries me is that the Roberts won't make a narrow decision, but a sweeping one that will brush aside the precedents already on the books, much as they did with gun control and corporate campaign donations.

    My guess is that their decision, in addition to banning gay marriage, will also reverse Lawrence v. Texas, recriminalizing the gay community in a number of states.

    Kennedy wrote Lawrence (5.00 / 2) (#7)
    by Big Tent Democrat on Wed Aug 04, 2010 at 05:18:47 PM EST
    This decision could survive.

    I'd be more worried about Kagan than Kennedy.


    I worry about them all (5.00 / 1) (#10)
    by andgarden on Wed Aug 04, 2010 at 05:25:20 PM EST
    but I'm pretty confident that Kennedy is more of a concern than Kagan.

    And I do think this could get past Kennedy.


    Well (none / 0) (#15)
    by Big Tent Democrat on Wed Aug 04, 2010 at 05:28:12 PM EST
    On their public statements, Kagan is clearly the bigger worry.

    She has publicly stated there is no constitutional right to marriage (will she adopt the EPC argument forwarded by Walker, which tracks LAwrence?)

    Kennedy wrote Lawrence.

    Kagan is, on the public record, the bigger risk.

    Hell, in theory, Sotomayor is also. But the reality is we have seen Sotomayor for a year now. If Kagan turns out like Sotomayor, then obviously there is no problem with her vote.

    I think she will. for the record on social issues.

    She'll be more like me on war issues.


    Regarding Lawrence (none / 0) (#19)
    by andgarden on Wed Aug 04, 2010 at 05:32:09 PM EST
    the majority opinion was based on SDP. O'Connor's 6th vote concurred on EP grounds.

    IMO, if Kagan is a worry, then so is Breyer. I don't think either of them are willing to be the 5th vote against this, so it comes down to Kennedy, as usual.


    Shows how closely I read Lawrence (none / 0) (#22)
    by Big Tent Democrat on Wed Aug 04, 2010 at 05:35:41 PM EST
    I'll have to read all this closely now I guess.

    Did Walker rule on SDP?

    At least I won't go on Countdown and spout about it without lknowingmy a** from my elbow.


    Walker ruled on SDP and EP grounds (none / 0) (#23)
    by andgarden on Wed Aug 04, 2010 at 05:37:20 PM EST
    As a matter of SCOTUSology, Kennedy seems to be more receptive to SDP claims.

    You write the analysis (none / 0) (#24)
    by Big Tent Democrat on Wed Aug 04, 2010 at 05:38:36 PM EST
    of this one, and I'll post it.

    I do not have the time to read 130 pages.


    Well, it's hard to summarize (none / 0) (#26)
    by andgarden on Wed Aug 04, 2010 at 05:50:58 PM EST
    but with loose editing, the findings of law could easily have served as the plaintiff's motion for summary judgement.

    Walker's master heading for "Conclusions of Law" is:

    Plaintiffs challenge Proposition 8 under the Due Process Protection Clauses of the Fourteenth Amendment. Each is independently meritorious, as Proposition 8 both and Equal challenge unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

    Regarding due process, he says:


    Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. 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). Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Carey v Population Services International, 431 US 678, 686 (1977). Because the government defendants declined to advance such arguments, proponents seized the role of asserting the existence of a compelling California interest in Proposition 8.
         As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs' due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs' fundamental right to marry; proponents stipulated that "[t]here is a significant symbolic disparity between domestic partnership and marriage." Doc #159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

    From the EP section:

    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).

    There's much more where that came from.


    There may be no legal right to marry. (none / 0) (#49)
    by Chuck0 on Thu Aug 05, 2010 at 11:13:16 AM EST
    But there is a legal right to Equal Protection and Equal Rights. I don't believe it's about "marriage," it's about one class of people having the right to do something (could be anything) and another being told they can't. That, I believe, is the crux of the argument FOR gay marriage.

    worried about them all (none / 0) (#18)
    by CST on Wed Aug 04, 2010 at 05:30:39 PM EST
    too - Kennedy more than Kagan.  But at the same time, this article on Roberts made me think we may have a better chance than I thought.

    He's still pretty unscripted on this issue.  He could surprise us all.


    Almost no chance on Roberts (none / 0) (#21)
    by andgarden on Wed Aug 04, 2010 at 05:34:51 PM EST
    Not from the way I read this (PDF).

    You are Correct. I just Googled It. (none / 0) (#11)
    by msaroff on Wed Aug 04, 2010 at 05:25:32 PM EST
    I am not sure how either Kagan or Sotamayor would rule, to tell you the truth.

    I do think that Roberts, et al, will, if given the chance, try to overrule Lawrence though.

    Note however, IANAL.


    Kagan? (none / 0) (#12)
    by lilburro on Wed Aug 04, 2010 at 05:26:21 PM EST
    What makes you say that?

    I'm guessing it's because (none / 0) (#14)
    by andgarden on Wed Aug 04, 2010 at 05:28:00 PM EST
    we don't know much about her substantive beliefs.

    If allowed a guess, mine would be (none / 0) (#33)
    by KeysDan on Wed Aug 04, 2010 at 06:12:42 PM EST
    that Elena Kagan would find a federal constitutional right to same-sex marriage, even though she did respond to Cornyn that there is (present tense) no such right.  Kagan does appreciate the changes that occur over time, and, particularly, given the set of trial facts, expert witnesses (provided by the plaintiff and the "unreliable" witness of the proponents) and the excellent precis you provided.

     Scalia in his rant, purporting to be a dissent, in Lawrence v Texas, set forth the unwelcome basis (in his mind) for a shift from past to present, expressing his ire that if moral disapprobation of homosex conduct is of no legitimate state interest, what justification could there be for denying benefits of marriage and exercising their liberty under the constitution, procreation would not work, since sterile and elderly can marry.


    The right view, adopted by judge Walker, (none / 0) (#35)
    by andgarden on Wed Aug 04, 2010 at 06:18:20 PM EST
     is that the right at issue is a general one: to marry. That right is preexisting.

    From that perspective, this case is no more about "same sex marriage" than Lawrence was about "homosexual sodomy" (remember how the majority berated Scalia over that?)


    Exactly, BTD (none / 0) (#20)
    by robotalk on Wed Aug 04, 2010 at 05:32:18 PM EST
    The more I look at it, the more it appears this case was basically invited by the SCt. and L v. Tx.  Rational basis test overruling anti-gay law.

    He also wrote Romer v. Evans (none / 0) (#52)
    by magster on Thu Aug 05, 2010 at 01:02:23 PM EST
    What basis will Scotus use to ban (none / 0) (#9)
    by waldenpond on Wed Aug 04, 2010 at 05:23:26 PM EST
    gay marriage?  Marriage is a fundamental right or not.  The State has no interest in the ban or does.  What interest?

    What prior decisions will the right on the court use to try and keep gays from having equal rights?

    They will just make crap up (none / 0) (#13)
    by msaroff on Wed Aug 04, 2010 at 05:27:24 PM EST
    See Citizens United.

    Laws don't get any more settled than that.


    You could count the votes on CU (none / 0) (#16)
    by andgarden on Wed Aug 04, 2010 at 05:29:46 PM EST
    long before it was reargued. In particular, Kennedy's position on campaign finance has long been clear (he wrote a dissent in Austin).

    Bloomberg yesterday, Walker today...it sure is (none / 0) (#25)
    by steviez314 on Wed Aug 04, 2010 at 05:42:43 PM EST
    nice for the haters to have a 2-day losing streak for a change.

    I sure hope something happens tomorrow to stretch the streak.

    On first glance, I actually (none / 0) (#27)
    by dk on Wed Aug 04, 2010 at 05:54:44 PM EST
    think that Tauro's ruling in Boston sriking down DOMA was a better written decision, and was more expansive in applying law to facts, though it did confine itself to the Equal Protection argument, whereas Walker's ruling today touched on EP and substantive due process.

    Fingers crossed that Kennedy wakes up in a tolerant mood on the day he makes his decisions on these two cases.

    Totally disagree (none / 0) (#28)
    by andgarden on Wed Aug 04, 2010 at 05:58:31 PM EST
    Tauro got sidetracked with ridiculous 10th Amendment arguments. And it is very useful to have a favorable ruling on SDP and EP grounds, especially because the strongest legal argument, in my view, is that marriage is a fundamental right.

    Agree to disagree on all of that. (none / 0) (#29)
    by dk on Wed Aug 04, 2010 at 06:01:52 PM EST
    Logically, IMO, the EP argument is clearly the strongest.  I do agree though that since Kennedy favors SDP it's necessary to throw him that bone.

    What does "SDP" stand for? (none / 0) (#30)
    by caseyOR on Wed Aug 04, 2010 at 06:04:32 PM EST
    I've read these comments, and I still can't figure it out. Please give a
    little help to a non-lawyer.



    Substantive due process (none / 0) (#31)
    by andgarden on Wed Aug 04, 2010 at 06:06:42 PM EST
    In other words, the basis for Griswold, Roe, and Casey. (And Zablocki, and partially Loving).

    Thank you. n/t (none / 0) (#32)
    by caseyOR on Wed Aug 04, 2010 at 06:11:37 PM EST
    Two different clauses of the (none / 0) (#34)
    by dk on Wed Aug 04, 2010 at 06:13:17 PM EST
    14th amendment.

    I'm vastly oversimplifying here, but think of it this way.  Substantive Due Process arguments identify a fundamental right (in this case, the fundamental right to marriage is identified) and then looks to whether or not there are any circumstances that such a right can be limited/denied.

    Equal protection arguments takes any law (such as, in this instance, laws regarding marriage) and asks whether treatment of different groups of people can be justified.  


    Equal protection is more complicated (5.00 / 1) (#36)
    by oculus on Wed Aug 04, 2010 at 06:39:44 PM EST
    than that.  Protected class/strict scrutiny.  Not protected class/rational basis.

    Yup, I know. (5.00 / 1) (#40)
    by dk on Wed Aug 04, 2010 at 07:17:57 PM EST
    Just wanted to start with the basic difference between EP and SDP for the non-lawyers in the crowd in terms of the fundamental approach of both.  Didn't want to go into too much detail regarding the jurisprudence.      

    Here's the real kicker: (none / 0) (#37)
    by MyLeftMind on Wed Aug 04, 2010 at 06:44:10 PM EST
    "This legal victory profoundly changes the conversation," she said, "for folks in the legal world and the policy world who were previously unmoved by this struggle."

    No dog in this fight, but... (none / 0) (#51)
    by coast on Thu Aug 05, 2010 at 12:18:46 PM EST
    this section struck me as odd "A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION".  Aren't many of our laws based on moral principles?

    yeah, but they have to also have (none / 0) (#53)
    by magster on Thu Aug 05, 2010 at 01:06:16 PM EST
    a secular state interest to justify it.  

    who's morals? (none / 0) (#54)
    by CST on Thu Aug 05, 2010 at 01:10:54 PM EST
    Most laws are passed in order to protect/defend victims.  There is no victim in this case.

    It may be against your morals to have premarital sex or smoke or drink.  That doesn't make those things illegal.  There is an age limit, but for consenting adults we generally legalize anything that doesn't include a victim.  Drugs being the obvious exception to this - which I think you would find most people here also do not support.

    Laws are in place to prevent people from harming others.  This harms no one.  Personal moral views on the matter are completely irrelevant.


    The gray area (none / 0) (#55)
    by andgarden on Thu Aug 05, 2010 at 01:17:17 PM EST
    arises in places were individual liberty intersects with economic regulations, i.e. gambling prohibitions.

    I think that's where Lochner is still dead. At least, it should be.


    See, e.g. (none / 0) (#56)
    by andgarden on Thu Aug 05, 2010 at 01:20:39 PM EST
    You obviously have never lived in or near (none / 0) (#59)
    by coast on Thu Aug 05, 2010 at 01:50:11 PM EST
    a "dry" county or where gambling is prohibited....lucky you.

    "Laws are in place to prevent people from harming others".  Some are and some are not.  Was the health care bill passed to prevent people from being harmed or because it is deemed morally correct that no one should be denied health insurance (remember this was insurance, not actual care)?


    The word "inferior" (none / 0) (#62)
    by MyLeftMind on Thu Aug 05, 2010 at 04:10:51 PM EST
    is key to why it's not a proper basis for legislation. You don't make DUI illegal because someone who drinks alcohol is an inferior person, you make the act of driving under the influence of alcohol illegal because drunk drivers are dangerous on the road.

    "Inferior" was verbage used by the judge (none / 0) (#64)
    by coast on Thu Aug 05, 2010 at 09:14:26 PM EST
    not included in the Proposition.

    So, where are the Achilles heels in this ruling? (none / 0) (#57)
    by magster on Thu Aug 05, 2010 at 01:32:25 PM EST
    My guess is that Walker's requirement of having a fact-finding hearing at all was error, as the "conduct" or "choice" of homosexuality does not confer a status or class of people as a matter of law.

    Otherwise, if the fact-findings are allowed to stand, I don't know how any judge could overturn the opinion with a straight face.  The proponents of Prop 8 were pathetic at trial.

    I can think of a few (none / 0) (#58)
    by andgarden on Thu Aug 05, 2010 at 01:38:00 PM EST
    Assuming the Court reaffirms its view that marriage is a fundamental right (not a forgone conclusion), it may still fall back on its hedge from Zablocki:

    By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.

    (Remind you of Heller?)

    Regarding equal protection, the court could just find a way to disagree with Walker that there is no rational basis for prop 8, and refuse to apply a higher level of scrutiny (leaving gays without "suspect class" status).


    What is the established method/thinking (none / 0) (#60)
    by BTAL on Thu Aug 05, 2010 at 01:51:36 PM EST
    that establishes a "class"?

    From Wiki (none / 0) (#61)
    by jbindc on Thu Aug 05, 2010 at 02:24:52 PM EST
    Protected class is a term used in United States anti-discrimination law. The term describes characteristics or factors which can not be targeted for discrimination and harassment. The following characteristics are considered "Protected Classes" and persons cannot be discriminated against based on these characteristics:

    Race - Federal: Civil Rights Act of 1964 and the Civil Rights Act of 1866
    Color - Federal: Civil Rights Act of 1964
    Religion - Federal: Civil Rights Act of 1964
    National origin - Federal: Civil Rights Act of 1964
    Age (40 and over) - Federal: Age Discrimination in Employment Act of 1967
    Sex - Federal: Equal Pay Act of 1963 & Civil Rights Act of 1964
    Familial status (Housing, cannot discriminate for having children, exception for senior housing)
    Sexual orientation (in some jurisdictions and not in others)
    Gender identity (in some jurisdictions and not in others)
    Disability status - Federal: Vocational Rehabilitation and Other Rehabilitation Services of 1973 & Americans with Disabilities Act of 1990
    Veteran status - Federal Vietnam Era Veterans Readjustment Assistance Act of 1974
    Genetic Information - Federal: Genetic Information Nondiscrimination Act

    In a nutshell, it's based on immutable characteristics - meaning something you can't change.


    Lawrence v Texas??? (none / 0) (#63)
    by BTAL on Thu Aug 05, 2010 at 05:47:50 PM EST
    Sorry to be "fashionably" late to the party but...

    Was not the net focus of Lawrence a privacy issue using SDP and EP as the rationale?  

    Does Lawrence then become a stepping stone to argue that what is protected as a private act/right now provides the foothold to public acts (obviously not the sexual ones before some here jump off the deep end)?  

    The most important parts of Judge Walker's (none / 0) (#65)
    by MyLeftMind on Fri Aug 06, 2010 at 01:53:03 PM EST
    decision are the findings of fact and the way he couched everything in terms of gays and lesbians simply joining the institution of marriage instead of getting new rights.

    Take a look at the findings of fact, which cannot be reversed on appeal. They include concepts such as sexual orientation is fundamental to a person's identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Really, this is a huge decision and will be enormously helpful over time to LGBT citizens.

    To top it off, Judge Walker argued that trial testimony proved that same-sex couples are a suspect class so on equal protection grounds, laws that discriminate against gays and lesbians must be held to the higher strict scrutiny standard. However he also concluded that Prop 8 fails even the rational basis test and completely discredited the opponents' rationales.