Wednesday, August 4th, 2010

Things To Gleefully Anticipate: Prop 8 In the Ninth Circuit

LOCAL GAYS DESTROYING SOCIETY"California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result."
-The big unsurprise: Prop 8 bites it in latest decision. Great news! This means it is off to the fun-loving Ninth Circuit, where they will literally laugh in the faces of the anti-gay-marriage folks! And possibly write a decision in the form of a sissy bounce video or something.

16 Comments / Post A Comment

oudemia (#177)

OK, I am thrilled. I do, however, need to be talked down from the idea that the SC will make a horrible, terrible ruling that will ruin everything for the entire country. Kennedy I guess was key in overthrowing Bowers v Hardwick, so maybe good things?

I share these sentiments.

lawyergay (#220)

Kennedy wrote the majority in Lawrence v. Texas, the S.Ct. decision that finally made it illegal for cops to bust into your bedroom while you were engaged in some serious anal action and arrest you for it. I'm keeping my fingers crossed for both Kennedy and Kagan, about which we know next to nothing except that she backed down from her righteous stance while she was Dean of Harvard Law that the U.S. government couldn't recruit there because of DADT.

oudemia (#177)

@lawyergay: Right. And a lawyerfriend is making me feel better by telling me that the opinion today quotes Lawrence copiously and surely that cannot be a coincidence. (And another friend is scaring me by saying that the SC will severely limit the ability of gay people to make due process or equal protection claims under the US Constitution.)

Br. Seamus (#217)

@oudemia, @lawyergay: I had drafted a really long, painfully-well thought out response, but auto-refresh eated it. Essentially, when this inevitably gets to the Supremes, expect Scalia to come up with something akin to "But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best" from Lawrence, Roberts and Alito to join him. I'm thinking, for some reason, that Thomas surprises everyone on this and it winds up 6-3; Kennedy's libertarian streak makes this feel like a no-brainer. But perhaps I'm reading too much hope into Thomas's separate dissent in Lawrence. No matter what happens, Walker's opinion feels almost airtight, and it would take some serious judicial shenanigans to screw up a win for Boies and Olson.

Scum (#1,847)

Walkers opinion feels 'airtight'? There is hardly anything in the opinion which can be seriously described as legal reasoning.

So obvious is the constitutional question that I could even envision a 7-2. Ginsberg and Stevens dissenting on the grounds that they dont give a shit about the law.

Br. Seamus (#217)

For one thing, Stevens will have a very hard time getting a vote in on the matter, what with the retirement and whatnot. Second, I don't think you know what "legal reasoning" is: setting forth facts and applying existing law to them to reach a conclusion supported by both. If a judge sets forth 80 findings of fact, based exclusively on the evidence presented during the trial, and applies the law as he knows it, well that's pretty much "legal reasoning." Did you read this opinion? "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

If "tradition" – which appears to me to be an enormous part of proponents' support for Prop 8 – constituted an acceptable basis for applying the law unevenly to different groups of people, we'd still have segregated railroad cars.

wb (#2,214)


cuiveen (#370)

As one who is a married gay in CA, I'm glad I'm (sorta) no longer part of a special protected class. As an unemployed depressive, it's nice to cry tears of joy for a change. YYYYYYYYYAAAAAAAAAAYYYYYYYYYY!!!!!!!!!

lawyergay (#220)

Well…but you are part of a special protected class (and that's good!), per Judge Walker.

All "protected class" means is that crazy Mormons and bigots can't vote away your rights…

cuiveen (#370)

With our three digit AWL #s, we're both really part of a special class.

melis (#1,854)

My thrilled-ness is outweighed only by my fear for the worst. Either way, I'm not going to get any real work done today.

ShanghaiLil (#260)

I'm really hoping there'll be an analysis from Balk's Cock on this.

KarenUhOh (#19)

Tony Scalia just came.

Scum (#1,847)

I think long term that there probably will be established a legal right to gay marriage but this will be achieved through the legislature.

It is just so obvious that there is no such existing legal right that you cant win going this route. I don't think there are enough judges as politically motivated and unprincipled as Walker for you to do it.


I don't believe "it is just so obvious" is a rational basis for an argument. Much in the same way there is no rational basis for banning same-sex marriage, actually! If it is so wildly obvious to you, perhaps you can spell a little of it out? The Prop 8 lawyers were unable to do so…

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