CA Federal Judge Strikes Down Prop 8 as Unconstitutional

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Today, Judge Vaughn Walker struck down California’s Proposition 8 as unconstitutional. Proposition 8 is an amendment to the state’s constitution and defines marriage as between one man and one woman. It was passed by popular vote. In his ruling, Judge Walker, who is himself gay, stated:

“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” the judge wrote. “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” (Source: Los Angeles Times)

A full version of the judge’s opinion, in PDF format, can be obtained here.

Naturally, this decision is being praised by gay marriage advocates across the country. Similarly, gay marriage opponents are outraged at activist judges and the will of the people being thwarted. Legal teams for both the plaintiff and the defendants in this case had already vowed to appeal the court’s decision, so the next step for this case is the 9th Circuit Court of Appeals and then to the Supreme Court, if that lofty bench decides to hear the case.

First off, let’s deal with the activist judge claim. Vaughn Walker was appointed by George H.W. Bush. He was originally nominated by none other than Ronald Reagan, but his nomination was stalled over the fact he represented the United States Olympic Committee in a suit over use of the term “Gay Olympics.”

That’s right. He was representing the USOC, who was against the term “Gay Olympics” being co-opted by a non-affiliated group.

If he’s an activist judge, we can blame the most lauded conservative president in history for his appointment.

Now, on to the merits of the case.

This isn’t about the will of the people, really. I’ve heard both conservatives and liberals use the “will of the people” argument any time it comes down to legislation they support. I’ve also heard both groups point out, correctly, that the Constitution is there to protect the minority against a tyrannical majority.

So what’s it about?

According to Judge Walker, there is a “fundamental right to marry.” This right being denied to gay couples creates an “irrational classification based on sexual orientation.” I’m not sure I buy that. First, as a Libertarian leaning conservative, I’m not really happy about the role the government plays in any marriage. If one is religious, then marriage is a sacrament ordained by God, not by man. If one is secular, marriage is between the people involved.

Government is involved in marriage, though. This is a bitter pill to many social conservatives, who would like to dictate morality – their morality – from the bench as much as many leftists would. When we start letting the government get involved in our personal lives, this is exactly what happens. One group petitions for redress on this issue. Another group on that issue. Before you know it, there are over 1,o00 laws governing the taxation of people based on their marital status alone.

This is what concerns me most about Proposition 8 and Judge Walker’s decision to overturn it. I’ve already seen tweets demanding an amendment to the US Constitution protecting marriage. From a conservative against big government no less. And who is he running to to protect his private relationship? The government! It’s maddening.

Both sides are pushing a progressive agenda here. Can’t people see that? Both sides are leaving it up to the government to legitimize what should be a private matter.

Aside from that, we are leaving it up to the government to legitimize the traditional “nuclear” family. Excuse me, but the traditional family needs no government legitimizing, thank you very much. One man, one woman. That will always be the primary composition of parenthood, because that’s what biology dictates. If one believes in God, it is what God dictates. We can’t change that through government intervention because the government doesn’t have that kind of power, nor should we ever believe it does.

Judge Walker isn’t wrong because he wants gay people to have due process and equal protection. He’s wrong because he wants everyone to be treated the same. Equal opportunity and equal protection are not the same as an equal outcome.

Years ago, when the gay marriage issue first raised its ugly head, most of the gay men I knew were against it. To sum up a friend: “I don’t want to get married. What’s the point of doing that? I’m not a breeder. I don’t want to act like one.” His vulgarity, not mine. Pushing the gay marriage agenda isn’t about thwarting the will of the people. It’s about manifesting a social construct on a community that didn’t even want it until they were told they couldn’t have it.

We are not all the same. Nor should we want to be. How can the gay community “celebrate diversity” while at the same time trying to eradicate it?

Finally, on a personal note. I am a gay conservative. I know I point that out too much, but I do so to counter the gay agenda, not to push it. I define my relationships, not Judge Walker. I define my values, not my orientation. I define my goals, my aspirations. I am responsible for my achievements. Not the court. Not the Human Rights Coalition, not a pride parade. Me. I am a minority of one, just like everyone else. And this is what the gay marriage debate is trying to take away from me.

(This post cross-posted at NewsReal Blog. Join the discussion!)

Comments
12 Responses to “CA Federal Judge Strikes Down Prop 8 as Unconstitutional”
  1. Joseph Veca says:

    I only have one concern, Elizabeth Scalia of The First Things Blog hit the nail on the head about this.

    “My first thought: the churches–any of them who wish to remain free to practice their faith in relative freedom–will have to seriously consider getting out of the business of acting as “duly recognized” agents of the state in legalizing marriages. The alternative will be inevitable lawsuits charging “discrimination” for disallowing church weddings, a diminution of our constitutional right to free worship, and a further emptying of church coffers as settlements and fines are levied.”

    And considering the animosity the progressive left have towards Christianity in general, don’t think for one minute they haven’t factored this ruling as a way to harass conservative Christianity in general and the Roman Catholic Church specifically.

    • ChrisIsRIGHT says:

      Joseph,

      That would be a sad day, indeed. And I can’t deny it’s a possibility. There certainly is animosity against all branches of Christianity, and the RCC seems to be a specific target, not only of secular people, but of other Christians.

      However, is the Catholic Church now forced to marry non-Catholics? I personally know of Catholic priests who have refused to perform baptisms because the baby’s given name wasn’t a name of one of the Saints.

      I get the slippery slope argument. I really do. However, from a perspective that is entirely personal, many conservatives – and Christian conservatives in general – only find this sticking point when it involves gay people. Ask the average Conservative Christian whether they should be allowed to discriminate in the workplace against blacks. Then ask the same person whether they should be allowed to discriminate against gays. When it comes to any other group, it’s “equal rights.” When it comes to gay people on the exact same issues, it’s “special rights.”

      I am concerned about how the gay marriage issue is being pushed, and by whom. I am concerned about the rights of Christians being trampled upon by leftists in this country. And the rights of Jews, too, for that matter. So, I really do see your concern. But I am equally concerned by the push for legislating morality, which also leads to big government and the subjugation of individual and state rights to the feds. I’m not suggesting you are doing that, just that I see people doing it, and it is part of the same problem.

      • Joseph Veca says:

        To be brutally honest, I am like the comedian who stated, “Let them get married then they can discover the joys of Divorce and be as miserable as the rest of us.” i.e. it really doesn’t matter to me. But, like you, I am concerned about the rights of not just Christians, but anyone professing a religious faith being trampled on by the progressive left.

        • Joseph G. Mitzen says:

          This has nothing to do with religion, and one can’t sue a church because you don’t like their dogma. I know of one case in the Orthodox Jewish community where someone did try to sue a congregation to get them to do something and the case was thrown out because the government has no standing. The idea that religions will be affected by this is a giant red herring. The government issues licenses. They can’t compel someone (not a government employee) to perform the ceremony. If that was the case, divorced people would have sued to get married in the Catholic Church quite some time ago. This is an argument that’s frankly irrational and being advocated by certain ill-informed or deceptive people to scare them into opposing gay marriage.

          • Joseph Veca says:

            Joseph with all due respect, you are wrong. There are a number of House Rep.s and Senators, and a President who believe that the Federal Government can do anything it pleases and the Constitution doesn’t matter.

            Secondly, what I stated has nothing to do with opposing same sex-marriage. It has to due with unintended consequences of a ruling.

            Secondly, Churches do get sued, admittedly the cases are usually dismissed, but even the process to get a dismissal cost time and money that could be better spent elsewhere.

            Take a look again at what Ms. Scalia wrote

            the churches–any of them who wish to remain free to practice their faith in relative freedom–will have to seriously consider getting out of the business of acting as “duly recognized” agents of the state in legalizing marriages.

            It is the ““duly recognized” agents of the state in legalizing marriages.” is where the whole possibility of a law suite against a church becomes possible. The reason being, when acting on behalf of the government, the ‘equal protection under the law‘, and the ‘separation of church & state‘ doctrine come into play. The rest I will leave as an exercise for the student to figure out what is going to happen next.

  2. Joseph G. Mitzen says:

    “Judge Walker isn’t wrong because he wants gay people to have due process and equal protection. He’s wrong because he wants everyone to be treated the same. Equal opportunity and equal protection are not the same as an equal outcome.”

    Could you elaborate on this please, because I don’t follow it at all and nothing that comes after explains it either. To be honest, my impression is that it’s more a play on words than anything else.Are you suggesting that Judge Walker wants to force gay people to get married? Judge Walker found that there was no rational compelling state interest in violating the 14th amendment rights of homosexual people. This was not a hard conclusion to reach given that the defense couldn’t produce any and had to keep almost all of its own witnesses off the stand when they confessed there was no compelling state interest in depositions.

    ” Pushing the gay marriage agenda isn’t about thwarting the will of the people. It’s about manifesting a social construct on a community that didn’t even want it until they were told they couldn’t have it.”

    Please don’t use that weasel word “agenda”. It’s used today by those claiming a “gay agenda” the way McCarthyites talked of Communist plots in the 1950s. You seem here to be really, seriously, arguing that gay people don’t want to get married and it’s being forced on them. You commit a logical fallacy by believing that “most of the gay men” you knew constitute enough statistical evidence to draw conclusions on a whole group of people. You yourself go on to identify as a minority of one, which makes this more puzzling. This case was filed by real gay people who really wanted to get married and really had that right taken from them. Did you not see footage of the first gay couple to get a marriage licence when SF began giving out licenses for a period in 2004? Del Martin and Phyllis Lyon were 83 and 79 years old and had been together 51 years and tearfully recounted how they never really believed it would be possible in their lifetime. Please, as a self-defined minority of one, please don’t suggest that gay people don’t love or form relationships like heterosexuals and they’re having gay marriage forced upon them by some insidious liberal plot to produce a uniform socialist utopia. At least, try running that by Del and Phyllis first.

    “We are not all the same. Nor should we want to be. How can the gay community ‘celebrate diversity’ while at the same time trying to eradicate it?”

    I think you’re sadly so committed to a worldview of leftist plots you can’t even really be happy when a Judge tells you your relationships are just as real and valid as anyone else’s and he strikes down the attempt by irrational bigots to revoke your civil rights. Just as gay marriage isn’t a threat to straight marriage as it won’t force straight people to marry the same sex, it’s not a threat to gay singles either. Please don’t be so wedded to attacking liberal people that you have to make the gay community the villain here. Ted Olson is a conservative pure enough and brave enough to see that those on the other side of the aisle are quite correct on this issue. He doesn’t need to see conspiracy. He’s out to protect the American dream of equal rights for all, not destroy individual freedom.

    Oh, one more thing – some people are spreading rumors that Judge Walker is gay. 90% of those are groups like the anti-gay Family Research Council, and one reporter that started the gossip. Judge Walker has never publicly addressed the issue of his sexual orientation. I’ve already had one person argue to me that Judge Walker was “biased” because of his alleged sexual orientation. I guess if he’s a heterosexual that would make him impartial and fair? Perhaps only a bisexual should have sat in judgement on this issue? :-)

    • ChrisIsRIGHT says:

      Given your analysis, I’m not going to explain anything to you or elaborate. I have used and will continue to use the words “gay agenda” because they are applicable. I used to be a gay activist. Gay pride parades are filled with non-related issues pushing the Democratic party politicians, anti-war politics and Leftist bull crap.

      Go read The Stranger’s “Queer” issue, where they write about icky gay Republicans.

      Poor sad Del and Phyllis, who lived together 51 years and never had a valid relationship until the government gave it to them. How pathetic.

      “I think you’re sadly so committed to a worldview of leftist plots you can’t even really be happy when a Judge tells you your relationships are just as real and valid as anyone else’s and he strikes down the attempt by irrational bigots to revoke your civil rights.”

      Aw. I’m not happy. You hit the nail on the head. Or, not. You suffer from the delusion liberal crap that so infects this society. That I somehow need the government to validate me, my lifestyle and my private relationships. I don’t NEED a judge to validate my relationships. That’s the point I made quite clearly in my closing paragraph.

  3. Joseph G. Mitzen says:

    “Joseph with all due respect, you are wrong. There are a number of House Rep.s and Senators, and a President who believe that the Federal Government can do anything it pleases and the Constitution doesn’t matter.”

    With all due respect, my matter of legal fact is not trumped by conjecture with no evidence presented. The idea that a legal ruling will unleash some sort of attempt at an Obama dictatorship is not sustainable. The purpose of the courts is to provide a check against executive and legislative abuses of power… see rulings against the previous administration regarding Guantanamo detainees, etc. In fact, we didn’t need any court verdicts to initiate overreaches of authority in past administrations (Watergate coverup, Iran-Contra, warantless wiretapping, etc.) so it doesn’t follow that this court ruling would be needed to trigger such now.

    “Secondly, what I stated has nothing to do with opposing same sex-marriage. It has to due with unintended consequences of a ruling. ”

    I’m going to go out on a limb here and assume you haven’t read the actual 138-page finding or followed any of the trial. Allow me to quote one of Judge Walker’s statements of fact:

    ——-
    b.
    Marriage in the United States has always been a civil matter.
    Civil authorities may permit religious leaders to solemnize
    marriages but not to determine who may enter or leave a civil
    marriage.
    Religious leaders may determine independently
    whether to recognize a civil marriage or divorce but that
    recognition or lack thereof has no effect on the relationship
    under state law.
    a.
    Tr 195:13-196:21 (Cott: “[C]ivil law has always been
    supreme in defining and regulating marriage. * * *
    [Religious practices and ceremonies] have no particular
    bearing on the validity of marriages. Any clerics,
    ministers, rabbis, et cetera, that were accustomed to
    * * * performing marriages, only do so because the state
    has given them authority to do that.”);
    Cal Fam Code §§ 400, 420.
    ————-

    Marriage is a civil matter. The government is the sole decider of which marriages it chooses to recognize. Since these ceremonies don’t bear on that decision, the state has no need to dictate them, and any attempt to do so would blantantly violate the separation of Church and state. I don’t see how there could be an unintended consequence where the state (in violation of Judge Walker’s finding of fact) finds the need to compel religious ceremonies to accomplish its ends. Walker also states in another portion that every bill must have a secular, not religious purpose. Combining that marriage is a civil matter the need for bills to be secular precludes any ability to interpret this ruling as opening the door to regulating religious ceremonies, never mind the Constitution and the massive amount of other precedent regarding that.

    “Secondly, Churches do get sued, admittedly the cases are usually dismissed, but even the process to get a dismissal cost time and money that could be better spent elsewhere.”

    So, if you’re saying that people will file lawsuits even when the law isn’t on their side, how does that lay any blame at those who decide the law? This second point has no bearing on Judge Walker’s decision then.

    Take a look again at what Ms. Scalia wrote
    ————
    “the churches–any of them who wish to remain free to practice their faith in relative freedom–will have to seriously consider getting out of the business of acting as “duly recognized” agents of the state in legalizing marriages. “

    It is the ““duly recognized” agents of the state in legalizing marriages.” is where the whole possibility of a law suite against a church becomes possible. The reason being, when acting on behalf of the government, the ‘equal protection under the law‘, and the ‘separation of church & state‘ doctrine come into play. The rest I will leave as an exercise for the student to figure out what is going to happen next.
    —————–

    If this was the case, rather than simply a scare tactic, the Catholic Church would have gotten out of the marriage business decades ago to avoid having to remarry divorced Catholics. Since the state doesn’t regard the Church as necessary for the creation/recognition of marriage, there’s no obligation on the part of clergy to perform them. The Governor can marry people, but I can’t sue the Governor to force him to marry me, any more than I can compel a boat captain to show up at a time and date of my choosing and marry me.

    Simply put, nobody making this scare tactic claim can cite ANY legal precedent whatsoever to justify it, whereas if it were a valid argument it can be argued that it would have occurred decades ago. It’s the same fear tactic that was used to frighten Californians into voting for Proposition 8 in the first place… that their religions would be taken over by the state in the first place. It was, and is, legally groundless.

    • Joseph Veca says:

      Joe, stick to the subject at hand and leave the ad hominens at home. I would also suggest that you look up Rep. Pete Stark who publicly stated and I quote”

      “I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life. The basis for that would be how would it affect other people.”

      That is just one example of an elected representative, Speaker Nancy Pelosi, Sen. Ried, Rep. Barney Frank have made similar statements about what the Federal government can do.

      Next up I wasn’t talking about an Obama dictatorship, that is something I leave for the mentally diseased wishful thinking radical progressive left.

      What I was conjecturing on was the how the ruling could be construed and how the legal argument could be laid out where it could be possible for someone to sue a church for not allowing them to get married.

      As for changes in law, I would suggest finding yourself a copy of the “Anti-Terrorism Act of 1997”, signed into law by President Clinton. It was struck down as unconstitutional by the US Supreme Court. Then a few years latter of the 9/11 attacks we get the “Patriot Act” which is, for all intents and purposes, the same as the Anti-Terrorism Act, just worded differently, but they both did the same thing and the Supreme Court still hasn’t struck it down as unconstitutional.

      Another example has to do with immigration law. Up until 1982 a child born in the US to illegal aliens WERE NOT considered US citizens. As a matter of fact Sen. Jacob Howard of Michigan, the author of the 14th Amendment citizenship clause, expressly stated: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Then in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” And with that 200+ years of precedent law were thrown out.

      Just a piece of advice here, learn to read a judicial ruling, you sited the precedents for the following

      Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

      they don’t make sense without the above.

      The highlighted part is the part where the aforementioned legal theory I put forward could come into play.

      So don’t tell me It Can’t Happen Here, I am old enough to have seen a lot of things that shouldn’t of happened but did. I have had the “It Can’t Happen Here” mentality knocked out of me.

      Just because the churches haven’t been sued over this issue, doesn’t mean they won’t. Secondly, before the whole same-sex marriage issue became such a hot topic, it was considered inconceivable to to sue a church for not allowing a marriage. Now, I am definitely not so sure.

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