What it comes down to: Is same sex marriage a new right, or equal access to an existing right?

Excellent analysis by Lyle Denniston:

When judges have ruled that gays and lesbians must be allowed, constitutionally, to marry, they have done so on the premise that this would not be the creation of a new right – that is, not a new-found right special to same-sex couples, but a right to join in equally in the existing, traditional right to marry. Those judges have accepted the argument of the same-sex couples that they want nothing more than equal access to the legal opportunity to wed. That, in essence, is the marriage equality argument. 

When judges have resisted (most often, these days, in dissenting opinions) the idea that same-sex couples’ choice to marry must be constitutionally protected, they have argued that this would be creating a new and special right, and they have noted that the Supreme Court has actively discouraged the crafting of new rights by constitutional fiat, rather than by constitutional amendment or by the acts of legislatures. That, in essence, is the argument against minting a new right. 

Both sides in this exchange can enlist some Supreme Court decisions on their side. After all, the Supreme Court has been working on its interpretation of just what marriage rights encompass for decades – indeed,at least since the late 19th Century. Little by little, the Justices have moved steadily toward the conclusion that, constitutionally speaking, the right to marry is fundamental to the civic order, a right of the highest constitutional rank. 

But yet to be decided, at least for gays and lesbians, is this: just what is the nature of that fundamental right? Is it a sweeping right to choose one’s life mate without interference by government? Or is it a right that is fundamental only because it has deep roots in the traditional definition of one-man, one-woman marriage?

From a legal point of view

The estimable ScotusBlog is continuing its online symposium on same sex marriage, with legal scholars both pro and con weighing in.  Steven Sanders points out that "mini DOMAs" (the state Constitutional amendments like Prop8) are an interference in the democratic process and inevitably will demand federal court action.

For what amounts to a question of family law affecting a small minority of the population, this is not how the political process is supposed to work.  Respected conservative Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit has condemned mini-DOMAs as a “tragedy” that offend the “American constitutional tradition” and “risk trivializing” constitutions by burdening them with “essentially statutory provisions.”  As Wilkinson wrote presciently in 2006:

[I]t is legislative bodies that broker compromises among opposing beliefs and zealous factions, and it is legislatures that adapt to changing public preferences and circumstances. It is impossible to predict what views electoral majorities may entertain five, ten, twenty, or fifty years hence on same-sex relations. It is the job of legislatures, not constitutions, to reflect evolving standards and to register change from whatever direction it may arrive.

Mini-DOMAs also offend due process and federalism, I have argued, by purporting to nullify the valid same-sex marriages of couples who migrate from states where such marriages are legal.

It's an excellent article about the problem of amendments, in an era where views are changing quickly.

Same sex marriage is NOT a "new right"

From The Richmond TImes-Dispatch:

[J]udges who recognize the right of gay couples to marry are not creating a "new right." Rather, they are extending a right that is already recognized for all other adults. "Marriage" is legal for all adults, except those who are gay or lesbian. To recognize that being gay or lesbian is no impediment to marriage is no more creating a "new right" than to say that 18-year-old adult citizens of Mississippi should be able to marry today rather than wait three years. There may be compelling arguments, on policy grounds, to continue to prohibit gay marriage. Seven states, the District of Columbia, Canada, several European countries, and South Africa (among other governments) have rejected those arguments, if they exist. But one argument that does not stand up to scrutiny is that same-sex marriage is a "judge-created right."

Are Conservatives coming around about equal protection?

As you may have noticed, it's a trend of the conservatives particularly on the Supreme Court to trumpet their fidelity to the "original intent" of the writers of the Constitution. This allowed the gob-smacking conclusion that women weren't covered by the Equal Protection of the 14th Amendment--because they weren't equal, back then.

But apparently, they are coming around to realize the Equal Protection applies to everyone, after all.  And this is relevant, because the main challenge against DOMA right now is on equal protection grounds.... and the main challenge to Prop8 is also on those grounds.

From Slate:

[A] significant reassessment of the meaning of the Equal Protection Clause ... is transforming the debate over the Constitution. This debate, which is happening in conservative legal and academic circles, could have a dramatic impact on the outcome of critical cases—including Perry v. Brown, the challenge to California’s Proposition 8 and the denial of marriage equality to gay men and lesbians. ... 

What conservatives such as Olson and Calabresi have slowly been recognizing is that it is inappropriate to look to the intentions of the Framers of the 14th Amendment to trump the actual text they wrote, the cardinal sin in constitutional interpretation if ever there were one. It is the text that guides and binds judges, and the text of Section 1 of the 14th Amendment broadly supports protection of fundamental rights and equality under the law for all persons, not just former slaves. In ratifying the 14th Amendment, the American people redeemed the Constitution from the sin of slavery by adding to our foundational charter a universal guarantee of equality, covering every person in the United States. As Calabresi emphasizes, under the original meaning of that text, all systems of caste and subordination violate the 14th Amendment. 

... Calabresi’s (and Ginsburg’s) central argument is that the 14th Amendment prohibits states from enacting legislation treating any persons as a subordinate caste. That’s precisely the argument Ted Olson has advanced and the district court accepted in Perry: States violate the Equal Protection Clause when they treat gay men and lesbians as second-class persons, unworthy of having their loving relationships recognized by the law. Calabresi’s account, unwittingly perhaps, make a powerful case for marriage equality as a matter of fundamental constitutional principle. 

Second, the emerging consensus and embrace of originalism by Justice Ginsburg reflects just how rapidly the debate over constitutional interpretation is shifting. Her willingness to acknowledge that fidelity to constitutional text leads to greater equality is a signal that originalism isn’t the sole province of conservatives anymore. The inevitable result: One by one, the shibboleths of the right about the “original” meaning of the Constitution are being discredited, while progressives increasingly embrace the Constitution’s text and history. This methodological meeting of the minds is what allows liberal/conservative partnerships possible, such as the pairing of Ted Olson with the far more liberal David Boies on the Perry litigation team.

What's with all these court cases?

If you are getting confused about the DOMA and Prop8 legal cases,you are not alone. Here's a great summary covering the various state and federal legal challenges around marriage equality.

These cases fall into two broad categories: challenges in federal courts to the Defense of Marriage Act (DOMA) of 1996, and challenges in state courts to state marriage laws. Here is an overview of both categories.

There are 8 DOMA cases in federal courts now. This site also gives a great overview of what has happened in individual states regarding marriage equality.

Military families mount legal challenge to DOMA

From the WaPo:

Gay and lesbian troops and veterans plan to file suit Thursday challenging the constitutionality of the federal ban on gay marriage and federal policy that defines a spouse as a person of the opposite sex....

The suit also challenges provisions of federal code regarding spouses that lawyers said bar gay couples from accessing a range of benefits provided by the Pentagon and Department of Veterans Affairs, including military identification cards, access to bases, recreational programs, spousal support groups and burial rights at national cemeteries.

Massachusetts Army National Guard Maj. Shannon McLaughlin, 41, and her wife, Casey, 34, are serving as lead plaintiffs in the suit, which also includes five other troops and two career Army and Navy veterans. ...

Pentagon spokeswoman Eileen Lainez said Wednesday that officials are “engaged in a careful and deliberate review” of whether some benefits could be extended to same-sex partners.

“Service members continue to have some benefits for which they may designate beneficiaries, regardless of sexual orientation,” Lainez said in an e-mail. But eligibility for other benefits is restricted by DOMA, she said.

At Veterans Affairs, spokesman Josh Taylor said department lawyers plan to review the case once it is filed.

Once DADT finally fell (and there wasn't much noise when it finally went), it made the repeal of DOMA inevitable. You cannot expect someone to risk their life for the country while refusing support to their families.

Step by step, new federal rules protect LGBT people

Two things of note last week. First, from ABC news:

Patients at nearly every hospital in the country will now be allowed to decide who has visitation rights and who can make medical decisions on their behalf -- regardless of sexual orientation, gender identity or family makeup -- under new federal regulations that took effect Tuesday.

The rules, which apply to hospitals participating in the Medicare and Medicaid programs, were first proposed by President Obama in an April memorandum and later implemented by the Department of Health and Human Services after a period of public review

This isn't specifically about LGBT people, but is intended to prevent hospitals from discriminating against gay and lesbian couples in the wake of cases like this.

Second, from Poliglot

Department of Housing and Urban Development Secretary Shaun Donovan unveiled new regulations being proposed by HUD that would prohibit discrimination on the basis of sexual orientation or gender identity in several of the federal agency's programs -- from government-backed mortgages to public housing.
...

Most notably, the rules would prohibit lenders from using sexual orientation or gender identity as a basis to determine a borrower's eligibility for Federal Housing Administration-insured mortgage financing.

Donovan noted that this rule would have a significant impact because the "FHA represents one-third of all mortgages in this country." HUD officials later clarified that this would mean that private lenders seeking to issue FHA-insured loans would be required to follow the new rules.

Additionally, Donovan said that the rules today proposed clarify that "the term 'family' includes LGBT families and couples" as covered individuals and families in all HUD programs….

Finally, Donovan said the proposed rule "prohibits inquiries regarding sexual orientation or gender identity" in all HUD-assisted housing, or housing whose financing is insured by HUD. …

[T]he rule made available today will be published in the Federal Register on Jan. 24, which will then put in motion a 60-day public comment period that will end on March 25. A spokesman for the department said that publication of the final rules will depend upon the volume of comments received and any necessary changes to them. He said that he expects the final rule to be published before the end of 2011.

You just KNOW what those comments will be….

Just a word? the prop8 appeal

Technically, lesbian and gay Californians who get a domestic partnership get all the rights the state provides married straight couples.

(How you get it is rather different, of course: you download your DP form from the internet, rather than go personally to the county clerk; notarize it at Kinko's, rather than have a JP, marriage commissioner, or minister perform a marriage, and then you mail in to the state with a check, rather than file with the county to be sent a proper copy. But i digress.)

So, there is really nothing that marriage in the state of California confers that is different than a DP.

And that may be the crux of the appeal. Because with Prop8, the voters did not take away any of those RIGHTS associated with marriage--the California Supreme Court ensured that. They simply took away the WORD marriage, which is freighted with symbolic meaning. As Attorney Therese Stewart argued for the plaintiffs, the only reason to do that was to deny lesbian and gay Californians access to the symbolism: they wanted them to be treated as a separate, lesser class.

The questioning by the judges in the district court suggest that this affirmative act of taking away the symbolism of the word, and not anything of substance, may make Prop8 particularly vulnerable on Constitutional grounds.

Taken further, this viewpoint would suggest that once you give LGBT people any partnership rights, then you are creating them as a second class by denying them marriage. By this argument, states with DPs may indeed be on the "slippery slope" to marriage equality, while those states that deny their LGBT citizens any protections may be inoculated.

This does not get into the thorny area of "strict scrutiny" of LGBT people as a class or equality issues overall. While that's the question Ted Olson wants to litigate (one that could have nation-wide significance to the equality movement), that may not be the question upon which these judges will rule.

Instead, it may all hinge on the fact that we had the right to get married--and 18,000 of us did. And then the voters took it away.

Marriage opponents want to ban Constitution

Part of the argument in the appeal of the Prop8 case was that the judges should not substitute their opinions for the views of 7 million Californians. Somehow, they seem to believe that if the majority of voters approve of something, it's untouchable.

I often wonder what part of the Constitution these folks read, because they clearly have missed some of the foundations of our republic.

By their logic, a majority of voters in any state could outlaw Jews from holding office, re-instate separate water fountains, or deny women the right to vote.

At some point in our history, a majority of Americans in one jurisdiction or another have approved of each of these. The pro-Prop8 voters in CA are no different.

"But being gay is different!" sputter the Prop8 supporters. Of course it are: is disadvantaged group is different in some way, it's why they are picked out as different. Civil rights are defined as "the rights of citizens to political and social freedom and equality." It was a civil rights battle when women fought for the vote. It was a civil rights battle when the rules against Asian immigration restriction were challenged. It was a civil rights battle to eliminate Jim Crow. And this is another civil rights battle.

The Constitution exists in part to protect the rights of the minority from the tyranny of the majority. The Courts are the final, independent arbiter of those rights and can only be so if they are free of threats.

The supporters of Prop8 may wish that their votes supersede my rights. But to do so would be to fundamentally change the foundation of our country. It would eliminate the protections associated with an independent judiciary.

Indeed, NOM and others are engaged on an attack on the judiciary--it was the foundation of their punitive campaign in Iowa, where they recalled three of the state supreme court justices in a retention campaign. This does not change anything about the pro-marriage decision in Iowa. It's just a punitive reaction and anger from a mob with the modern equivalent of pitchforks.

If NOM had their way, they would open the doors to outlawing religion. While they fulminate that that is the "agenda" of the gays, in fact what they are doing is far more dangerous to their own interests than anything our side plans. indeed, our side has taken steps to protect free speech and religious expression. Their side wants to destroy them.

The anti-equality side has become a particularly dangerous anti-Constitution campaign. That's why they are listed as hate groups. The only hope is that the more extreme they become, the more the folks in the middle realize who the extremists are--and choose instead to support the rule of law, and love.

Updated: Prop8 back in court: Appeal will be heard today

Three judges of the 9th circuit will hear the appeal of the recent Prop8 decision, in which Federal District Court Judge Vaughn Walker declared Proposition 8 unconstitutional.

Oral arguments will be held this morning at 10am. The arguments will be based on two issues.

First, given that the state of California is not appealing Judge Walker's decision (neither current nor incoming Attorney General, nor Governor, will appeal), does any other group have the right to appeal? This is the question of "standing". Prop8 supporters were given the right to intervene in the original case, but it's not clear that they suffer any harm that gives them the right to an appeal.

The second argument will be on the substance of Judge Walker's findings about equal protection and due process. These are irrelevant if the bad guys don't have standing.

Watch it on C-SPAN.

Update

• Follow live blogging at Prop8 Trialtracker
• Prop 8 Argument Day FAQ
• Viewers' guide to the arguments
• Follow on Twitter with #prop8

Judicial impartiality and Prop8

The Bad Guys argued that Judge Vaughn Walker couldn't be fair in the original Prop8 finding, because he is reputed to be gay. By their logic, only straight white Christian men can be fair.

Some on our side argued that because Judge Randy Smith, one of the three 9th circuit judges scheduled to hear the Prop8 appeal next week, might be Mormon, that he should be suspect. Fortunately this was shot down as completely inappropriate, for exactly the same reasons that the other side's protest against Judge Walker was unjustified. It doesn't matter.

But the Bad Guys don't believe that. WHile they would have yowled if our side had protested Judge Smith, they next demanded that Judge Stephen Reinhardt, another of the panel, recuse himself because his wife works for the Southern California ACLU. Judge Reinhardt said "no".

Funny how the conservatives believe such rules only apply to liberals. On the Supreme Court, Justice Clarence Thomas's wife ran the tea party group Liberty Central. More directly concerning are the actions of Justices Thomas and Scalia, who themselves attended conservative political meetings organized by the mysterious Koch brothers, and Justice Samuel Alito, who actively participates in conservative fundraising.

IOKIYAR, I guess.

Prop8 back in court next week.

The appeal will be heard next Monday by three judges of the 9th Circuit Court of Appeal. A good legal roundup from Poliglot:

Among the questions that will need to be answered by the judges are whether the Proposition 8 proponents have standing to bring the appeal; whether Imperial County should have been allowed to intervene in the case and now have standing to appeal the Aug. 4 ruling; whether, if a party does have standing to bring the appeal, Walker was right that Proposition 8 violates the constitutional guarantees of equal protection and due process; and whether, if no party has standing to bring the appeal, there even was standing at the district court level for Walker to have heard the case.

With Reinhardt likely to be looking for a way to affirm the ruling and Smith likely to be looking for a way to overturn it, the complexity of the standing questions could give Hawkins significant sway over the specific outcome that the court might reach to dispose of the case.

Once the three-judge panel hears the case and later rules, any party dissatisfied with the ruling could seek en banc review, which would require all the active Ninth Circuit judges to vote whether en banc consideration will be given. If a majority supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal. Further review by the Ninth Circuit or a request to the Supreme Court to hear the case could follow.

Update: Watch it on C-SPAN.

Prop8 Federal Case: Appeals arguments on Dec 6

From the Tracker:

The 9th Circuit Court of Appeals ... announced they will be hearing oral arguments for the appeal of Perry v. Schwarzenegger, and of Judge Walker’s historic ruling finding Prop 8 unconstitutional, on Monday December 6th at 10am.

This is the opportunity for friends and foes to file amicus briefs as well. From here, regardless of outcome, expect an appeal possibly to the full 9th Circuit (not just 3 judges), and eventually, to the Supremes. More on my previous post.

Judgement entered on DOMA cases: will DoJ appeal?

Remember those two cases from Massachusetts about DOMA? To summarize, a Federal District Judge found that it was illegal for the US government to discriminate against same sex married couples by denying them benefits given to married couples, and he overturned the section of DOMA that forbids federal recognition of married gay couples on grounds of equal protection and state sovereignty.

As pointed out by Chris Geidner and Lisa Keen, that judgment has now been formally entered. Which means the clock starts ticking: Obama's DoJ has 60 days to file an appeal.

I will rely on my legal friends to correct, but my understanding is that if the DoJ do NOT appeal, that section of DOMA no longer applies to Massachusetts couples. It does not affect anyone else. If they DO appeal, it could bring down section 3 of DOMA in the whole 1st circuit. And of course, if SCOTUS got to it, it could potentially have national implications.

The same ticking clock applies to the Prop8 case, of course; I do not think that judgment has been entered. But there's an election this year in CA, and if the judgment is NOT entered soon, then a new governor or attorney general could decide to appeal. So the two sides of the Prop8 debate better pay attention to the candidates and get involved in the messy business of CA state politics, because it matters.

Will the Right Yield California to keep other marriage amendments intact?

From Right Wing Watch, an interview with the Other Side.

So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."....knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.

If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.

Can they appeal?

There is much discussion in the blogsphere that technically, the defendants of the Prop8 case can't appeal the decision that went against them. This is because the Prop 8 case is addressing a state legal issue, and the state refuses to defend it. Both the Governor and Attorney General agree with the Judge's decision. The ones who DID defend the case are called "Defendant/intervenors" because they had to intervene, otherwise there would have been no defense.

The argument has been made that they lack standing, that is, aren't entitled to an appeal, because they aren't representing the state, and under some forms of appeal, private parties aren't allowed to stand in for the state.

Chris Geidner, an attorney who follows the Court, writes,

Although the argument was not fully laid out in the filing on Friday, it looks quite weak to me on the legal merits. All of the cases cited by plaintiffs appear from my review to relate only to instances where permissive intervention was granted and not intervention of right, as the proponents have here. Additionally, the cases cited appear to involve situations in which the state whose law or initiative was at issue did itself defend the law and, at some point in the appellate process, decided against appealing a lower decision. Here, of course, the intervening defendants were the only individual or entity defending the amendment even at trial.

If there were no appeal, Judge Walker's ruling would stand--but only with respect to California.

And of course, the bad guys would go apoplectic about "activist judges".

And if the state government were to change...then would the state be able to mount an appeal after the fact? Whitman is doing depressingly well against Brown. Is there a statute of limitations on appeal?

As Geidner concludes,

The case laid out at trial by the legal team led by Ted Olson and David Boies was impeccable. The argument -- legally, publicly and morally -- was nearly flawless. For all of the reasons described above, however, I see fighting the decision of the intervening defendants to appeal as a potential -- and unnecessary -- misstep.

I would keep the stay, and let the appeal go forward. That's me. you lawyer types, your thoughts?

What happened to the defense?

Writing about the Prop8 Trial, Jonathan Capehart in the WaPo:

In the case of Perry v. Schwarzenegger, the plaintiffs went before Judge Vaughn Walker with the legal equivalent of the New York Yankees. The defense showed up with the Bad News Bears. The pro-Prop 8 defense single-handedly undermined just about every argument that has ever been used to justify denying gay men and lesbians entry into the institution of marriage. Thus, Walker handed down a sweeping victory for marriage equality.....

Look. I’m happy with the outcome of the case and with Judge Walker’s ruling. The consequences of it will make themselves known soon enough. But if I were the conservatives I would troop back into court -- and sue the pro-Prop 8 attorneys for malpractice.

And from PoliticsDaily:

Take, for example, the bizarre courtroom display ... by Charles Cooper, the lead attorney for defenders of Prop 8. His side presented only two witnesses during the long course of the trial, neither of whom was particularly compelling. ... When you have bad facts, you argue the law. When you've presented little evidence, or the evidence you've presented is not so hot, you say that evidence doesn't matter. That's partly why Cooper told Judge Walker during closing arguments, "Your honor, you don't have to have evidence for this."

... Later, after Cooper admitted he didn't know what effect the banning of same-sex marriage would have, Judge Walker said: "Is that enough to impose restrictions on some citizens that other citizens don't suffer?" The exchange is telling because the "effect" of Prop 8 is a factor judges must weigh in the great constitutional balancing this case requires.

Being no potted plant, Ted Olson for the plaintiffs jumped all over Cooper's remarks. Olson said: "Mr. Cooper: 'We don't know. We don't have to prove anything. We don't have any evidence.' You can't take away the rights of tens of thousands of persons and come in here and say 'I don't know' and 'I don't have to prove anything.' " This is a statement that every appellate judge who looks at Judge Walker's ruling will also ponder. ...

The sort of minimalist strategy of litigation by defenders of Prop 8 is either cocky, cynical or suicide. It's cocky if Cooper and Company believe the Constitution is so clearly against same-sex marriage that no set of facts would matter. It's cynical if Cooper believes that Judge Walker's factual findings will be irrelevant to the analyses that will spring up at the 9th Circuit. And it's close to suicide if Prop 8's defenders really believe that Supreme Court Justice Anthony Kennedy, whose swing vote will decide this whole thing a year or two from now, will be comfortable endorsing a ban on same-sex marriage based upon such little courtroom evidence supporting it. There are a lot of "ifs" in a tactic like this.

...The evidentiary record is massively skewed in favor of the plaintiffs and against the defendants. At closing, Olson told Judge Walker: "Heterosexual people are not going to stop getting married or stop having children or abandon their marriage because the next-door neighbor has a same-sex marriage." In the meantime, Massachusetts, the first state to recognize same-sex marriage, has the lowest divorce rate in the nation.

PROP8 RULED UNCONSTITUTIONAL (updated, with quotes)

Judge Walker's decision find Prop8 unconstitutional on both equal protection and due process grounds.

Some choice quotes from the decision:

Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.

The judge took apart both witnesses for the ProProp8 side, and also scolded them for withdrawing their other witnesses even after the trial was made secret. He also noted that the other witnesses for the defense basically agreed with the plaintiffs, so it's pretty clear they were withdrawn not over fears of personal safety but because they couldn't make the case.

The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.

The Judge also noted that the Prop-Prop8 campaign really played on fears and animus. As for the voters,

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

The judge also noted the slippery arguments in court were different than those made to the voters:

Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court.

Then of course there was the complete absence of any evidence that same sex marriage has any effect on anyone else.

The evidence shows beyond debate that allowing same-sex couples to marry has at leasta neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8. FF 55, 62. The contrary evidence proponents presented is not credible. Indeed, proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.

And as for religious freedom,

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.

Okay, on to the big issues: Equal protection, Due Process, and whether GLBT people are subject to "strict scrutiny" as an historically disadvantaged class.

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. ... Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

The judge takes apart the rational basis argument, and then makes this shot:

Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.

As for the endless children argument,

Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. FF 57. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. FF 49.

And as for the motivation:

The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.

And,

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.....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....Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

So, it fails on both due process and equal protection, it's not even rational, but if it were, GLBT still deserve strict scrutiny.

CONCLUSION 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 oppositesex 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

Judge Walker hits it out of the park.

What next? Nothing changes: the decision has been stayed, pending motions for appeal. The right wing is exploding over "activist judges" as this Bush-appointed conservative libertarian is clearly a disguised liberal activist.

One chip at a time....

Expert commentary at Poliglot, and Prop8trialTracker and the NY Times.

Opinion at the NY Times , LA Times and San Diego Union-Trib.

BREAKING: Prop8 decision to be released Weds

From Prop8trialtracker, the Prop8 decision will be released tomorrow, Weds Aug 4.

I will update here. Also there will be responses in the community; for sites near you look at www.prop8decision.com.

Remember: regardless of the decision, it will be appealed. This is one stage in the journey, but it is a critical one.

UpdateChris Geidner has an excellent FAQ discussing the legal issues here. As I understand it, the Big Questions are as follows:

1. Equal protection argument. Are gays and lesbians a minority that qualifies as a "suspect class"?

• If so, then any law disadvantaging us must substantially serve an important government interest. If not, then any law must only meet a "rational basis" test: a much lower standard, but still one that Prop8 fails to meet.

2. Due process argument. Is marriage a fundamental right?

• The bad guys argue that gays are "redefining" marriage which must be man-woman. The good guys argue that (as Ted Olson argued) "it isn't changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation."

Reading the Tea leaves from the Supreme Court

From The New York Times:

The sentence was resolutely bland and nicely hidden in a long Supreme Court decision issued on the last day of the term.

All it said was this: “Our decisions have declined to distinguish between status and conduct in this context.” But the context mattered. Justice Ruth Bader Ginsburg, writing for the majority, was talking about laws affecting gay men and lesbians.

Slipping that thought into a case about the treatment of a Christian student group reminded some of a technique perfected by Justice William J. Brennan Jr., whose fellow justices were wary of his “time bombs.”.....

Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.
....

The decision in which the statement appeared, Christian Legal Society v. Martinez, considered whether a public law school could deny recognition to a student group that excluded gay men and lesbians. The majority decided the case on narrow grounds that barely acknowledged the clash between anti-discrimination principles and religious freedom.

Barely, but not entirely. In her brisk aside, Justice Ginsburg put the muscle of a majority decision behind a proposition that had attracted only one vote when the court struck down a Texas law making gay sex a crime in 2003 in Lawrence v. Texas.

“Texas’s sodomy law is targeted at more than conduct,” Justice Sandra Day O’Connor wrote in a concurrence. “It is instead directed toward gay persons as a class.”

The Christian Legal Society decision was notable, too, because it was the only one in an argued case in the last term in which Justice Anthony M. Kennedy joined the court’s four more liberal members in a 5-to-4 decision. It is inconceivable that advocates for same-sex marriage can win in the current Supreme Court without his vote.

Some scholars cautioned against reading too much into very limited information culled from an inapposite decision.....

Others were prepared to go a little further.