Court: CA gay-marriage ban is unconstitutional

Hicup said:

The plaintiffs in prop 8 needed to show that gender was the basis of discrimination, and in order for that to survive 14th scruitiny they needed to show that both men and women were being discriminated against. However, they failed to do that, men and women are equally restricted from marrying someone of the same sex. Now if men could marry men, and also women, and women could only marry men, then THIS would be cause for strict scrutiny and a proper 14th challenge. Another way of looking at it is to say that both men and women are being discriminted against, but the law doesn't work that way.


Tim-

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You have no understanding of the difference between "equal application" and "equal protection". I could make a law that argues that people are only allowed to marry their own race. That law would be considered "equal application" since only whites could marry whites and blacks could marry blacks. However, that law would not be equal protection since the government is arbitrarily using race to apply restrictions to civil rights. Same sex marriage bans are equal application but are not equal protection since the government is arbitrarily using sex to apply restrictions to civil rights.

Nice try though. Pretending that "equal application of the law" is the same as "equal protection of the law" is the same strategy that was used by segregationists for decades. You have certainly fallen quite a bit if that is the playbook you have decided to borrow from in this debate.

disneydude said:

WOW....either you have a serious reading comprehension problem or you are just flat out mischaracterizing the lower court holding....either way, you couldn't be more wrong.

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Blah blah..


Tim-

Deuce said:

Even evading strict scrutiny in this manner, you cannot escape intermediate scrutiny. Same-sex marriage bans are discrimination on the basis of gender, clearly, and therefore meet the standard for intermediate scrutiny.

I've yet to see someone successfully demonstrate an "important state interest" served by such a ban. Yes, they talk about all that "destroying families" business and "someone PLEASE think of the CHILDREN," but actual study universally proves them to be wrong.



Which traditional definition? The one where women are literal property?

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No, the actual studies are categorically flawed. Nowhere has a study been done that pits SS couples against married in tact well established heteroseuxal marriages. Despite the methodologies, the sample size for Male SS parents is strikingly low. Most SS couples raising children in these "studies" are well off lesbians, not prototypical of society in general. We already know what kids are like without a Father, and these studies you cite are fundamentally lacking that control.. Period!

We've been down this street a thousand times already..

Tim-

CriticalThought said:

You have no understanding of the difference between "equal application" and "equal protection". I could make a law that argues that people are only allowed to marry their own race. That law would be considered "equal application" since only whites could marry whites and blacks could marry blacks. However, that law would not be equal protection since the government is arbitrarily using race to apply restrictions to civil rights. Same sex marriage bans are equal application but are not equal protection since the government is arbitrarily using sex to apply restrictions to civil rights.

Nice try though. Pretending that "equal application of the law" is the same as "equal protection of the law" is the same strategy that was used by segregationists for decades. You have certainly fallen quite a bit if that is the playbook you have decided to borrow from in this debate.

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No, not at all as I have stated earlier when you brought it up. race, gender are immutable characteristics, sexual orientation is most definitely not immutable. It's all in the brief there CT.

Tim-

CriticalThought said:

You have no understanding of the difference between "equal application" and "equal protection". I could make a law that argues that people are only allowed to marry their own race. That law would be considered "equal application" since only whites could marry whites and blacks could marry blacks. However, that law would not be equal protection since the government is arbitrarily using race to apply restrictions to civil rights. Same sex marriage bans are equal application but are not equal protection since the government is arbitrarily using sex to apply restrictions to civil rights.

Nice try though. Pretending that "equal application of the law" is the same as "equal protection of the law" is the same strategy that was used by segregationists for decades. You have certainly fallen quite a bit if that is the playbook you have decided to borrow from in this debate.

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Your perspective holds true only so far as it conforms to definition.

If marriage was long and traditionally established to be defined as "between people of the same race only" then it would not be discrimination to prevent a White and Black person from marrying by appeal to definition.

This entire issue broaches the question of how do we decide such definitions in society today. We can't simply arbitrarily imagine a definition is other than what it is -- such an application of fantasy does not respect reality, and reality really must be served.

The larger issue here is "how do we decided?"

The body politic is affected by social matters and when contentions arise we must accurately appeal to how and what things truly are in order to establish a point of calibration, and from there we employ an agreed upon method to decide if it is time for change.

The voters in CA were of the opinion that the popular vote was the correct method to decide societal matters.

Now they're finding out it wasn't.

We really all should be asking the question: "what is the correct method for deciding these matters?"

Redress said:

This will fail on rational basis alone, even though strict scrutiny is very possible instead. Just because people can believe things with zero evidence to back it up is not a rational basis and I cannot think of any court cases.

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If I understand you correctly, you are saying that the state has a burden to prove the value of traditional marriage. And if Smith is correct, it does not.

ln equal protection analysis, rational basis review "is not a license for courts to judge the Wisdom, fairness, or logic oflegislative choices." Heller, 509 U.S. at 319 (internal quotation marks omitted). . . Additionally, the government "has no obligation to provide evidence to sustain the rationality of a statutory classification." Id. The measure at issue "is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Id. (internal quotation marks omitted). "[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis Which might support it Id. (internal ll

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Redress said:

The arguments Smith offered are not rational and in fact have no evidence to back them, hence the comments that CT quoted.

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Smith takes exception to the majority's reliance on Romer, and his arguments are quite rational. He delineates the differences between Colorado's Amendment 2 (Romer) and Prop 8 very clearly, and concludes

The above differences between Amendment 2 and Proposition 8 indicate that Romer does not directly control here. ln Romer, the Supreme Court found that animus alone was the purpose behind Amendment 2. Here, the majority backs into its inference of animus, first determining that all other bases for Proposition 8 are constitutionally invalid. Assuming animus or moral disapproval were one of the purposes of Proposition 8, the measure would still survive rational basis review if there were also a valid rational basis behind Proposition 8. Only if there were no other basis would Proposition 8 fail rational basis review. Thus, our task is to determine whether Proposition 8 rationally relates to any independent legitimate governmental interest.

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Regarding CA law respecting child rearing and the optimal parenting rationale

The parties argue about whether this analysis subjects Proposition 8 to heightened scrutiny rather than rational basis review. ln my view, while Plaintiffs may give a correct accounting of California law, it does not necessarily follow that the optimal parenting rationale is an illegitimate governmental interest, because it contradicts existing laws on parenting and the family. For example, a posited reason offered by one lawmaking body after being rejected by another lawmaking body can "provide[] a conceivable basis" for a measure. FCC v. Beach Comm 'ns, Inc., 508 U.S. 307, 3l8 (1993). ln Beach Communications, the Supreme Court accepted a posited reason for a federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory scheme.5 Ia'. Thus, even if California's legislature previously rejected the optimal parenting rationale in its parenting laws (and Proposition 8 is inconsistent with its statutory scheme), that does not prevent the people of California from adopting Proposition 8 under that rationale.

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Regarding the appropriate level of scrutiny

ln Lawrence v. Texas, 539 U.S. 558, Justice O'Connor relied on the Fourteenth Amendment's Equal Protection Clause to invalidate a state law criminalizing homosexual sodomy. ln her concurring opinion, she stated: That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

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Then this in closing

Applying rational basis review in these circumstances also requires such restraint. As the Eighth Circuit said, in Citizens for Equal Protection, 455 F.3d at 870: "ln the nearly one hundred and fifty years since the FourteenthAmendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. lndeed, in Baker v. Nelson when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." There is good reason for this restraint

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The only question is whether or not there would be enough states to pass a Constitutional Amendment after the Supreme Court rules (either way).

Boo Radley said:

Either way, good for the courts. I would love to see this reach the SC.

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So would I, since it's unconstitutional as hell. Unfortunately, the current SCOTUS leans right and I'm very much afraid they will not use the constitution as their basis for determination.

1Perry said:

The only question is whether or not there would be enough states to pass a Constitutional Amendment after the Supreme Court rules (either way).

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A Constitutional Amendment that states constitutional protections don't apply to homosexuals?

DiAnna said:

So would I, since it's unconstitutional as hell. Unfortunately, the current SCOTUS leans right and I'm very much afraid they will not use the constitution as their basis for determination.

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Specifically, what is it, constitutionally, that makes Prop 8 unconstitutional? I'm not saying that it isn't unconstitutional, I just want to know what the specific part of the Constitution is that makes it unconstitutional.

I would think that those who brought Prop 8 to the voters would have to have their heads examined for bringing an obviously unconstitutional initiative before the people.

So I'm wondering if it ain't so obvious.

States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.

Ontologuy said:

It is inappropriate to create such a dichotomy here, especially in a country with separation of church and state.

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That statement is a contradiction. Church and State are mutually exclusive (ideally). Hence, a dichotomy.

City hall must conform in a democracy to the will of the people in societal matters. There was no litmus test in CA that said you couldn't vote for the traditional definition unless you were a member of a church.

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I tried to articulate a response, but Walker summed it up better. I agree, however...

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.

Church and religion are to be excluded from the matter decided in a state vote of all citizens legally allowed to vote in CA, which is indeed what happened, as thus any reference to church/religion in the matter is inappropriate.

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Yes and No.

Church and religion are not enough. Tradition is not enough of a legal basis for discrimination--by that I mean keeping same-sex unions separate but almost equal to opposite-sex marriages.

The question remains what is the correct method of deciding the definition of marriage for Americans (Californians, in this specific issue)? Is it a democratic popular vote? Is a simple majority sufficient? Does it require two thirds majority to re-establish? Is a national vote required? Do judges decide these matters? What?

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Walker sited two supreme court cases - "the right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", citing Loving v. Virginia and Griswold v. Connecticut. He goes on to say that "[r]ace and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage".

Re: who decides and National Vote - no majority can trample the rights of the minority. The CA ballot measure was a legal process. But the outcome has to be tested against both the state and U.S. constitution. Keep in mind that 18,000 California same-sex couples remained legally married. What becomes of this status? And how do we justify denying a marriage license to the next same-sex couple. To define them is less-than would be wrong.

Also, a state's interest and therefore its laws have to be based on logic and reason - not just emotion or tradition: Appeal to tradition is a fallacy in which a thesis is deemed correct on the basis that it correlates with some past or present tradition. e.g. "this is right because we've always done it this way."

Again, I'll point out to the traditionalist, that marriage in the bible refers to an underage girl being traded by her father for land or livestock. The definition of marriage has been changing for a long time. Prior to 1967, states didn't allow blacks and whites to wed.

Loving v. Virginia

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. - SCOTUS, and they get the final word.

digsbe said:

States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.

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Well, it used to be a white man and white woman or a black man and black women - prior to 1967.

We infringed on that definition.

digsbe said:

States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.

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I know. As noted above it's terrible how we've infringed in the past. Who are people to think they know what marriage means to them. They need a major to tell them as they cna't be trusted to decide for themselves.

:coffeepap

digsbe said:

States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.

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So....by that reasoning......states should have the right to ban inter-racial marriage as well....if the voters "Chose" to define marriage that way.....correct?


What if a state's voters decided that marriage should be defined as only "a white man and a white woman"....would that be ok?

What if a state's voters decided that marriage should be defined as only between "Christians"......would that be ok.....afterall....the voters voted for it.

DiAnna said:

So would I, since it's unconstitutional as hell. Unfortunately, the current SCOTUS leans right and I'm very much afraid they will not use the constitution as their basis for determination.

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I'm actually not too afraid of this. Despite still being subject to partisan leanings, the Supreme Court is faced with a lot of other challenges. They're not appealing to constituents for reelection. They're often writing for posterity, and to maintain the integrity of the court as an institution. They can't really allow it to become very partisan, because there's no way back once they cross that line. I feel fairly confident that the Supreme Court would protect same sex marriage.

Ontologuy said:

Specifically, what is it, constitutionally, that makes Prop 8 unconstitutional? I'm not saying that it isn't unconstitutional, I just want to know what the specific part of the Constitution is that makes it unconstitutional.

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So glad you asked, Angel.

Banning same sex marriage violates the constitution because, as has been discussed in this thread, it applies the protections of marriage to some couples and not others, solely on the basis of discriminating against homosexuals. If there is going to be a law that affects the liberties of some people and not others, especially ones directly involving the government, there must be some compelling external reason. This is how the Equal Protection Clause of the 14th Amendment works. The law, both federal and state, is not allowed to arbitrarily discriminate. If it wishes to discriminate, it must prove that it has a good reason. No such reason has ever surfaced.

digsbe said:

States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.

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No, they actually don't. Not since 1868. A voter initiative to strip some citizens of their rights is no more constitutional than one to ban mixed race marriages, prohibit people from wearing the color yellow, or outlaw the practice of Jainism.

Rhapsody1447 said:

If SCOTUS upholds this ruling does that mean that all state bans on SSM will be overturned?

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Not necessarily. They tailored the ruling to be very narrow. The California Supreme Court ruled that gays have a right to marry. Prop 8 was then passed. The ruling in this case was that the right to marry was taken away and they based their ruling on that. States where SSM is not considered a right now could be unaffected by this ruling, depending on how SCOTUS rules.

Not surprising, popular opinion shouldn't trump the rule of law.

LuckyDan said:

If I understand you correctly, you are saying that the state has a burden to prove the value of traditional marriage. And if Smith is correct, it does not.

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No, I am not saying that, and in fact this is not the case. The backers of Prop 8(the state in theory, but not actuality in this case as the state declined to support prop 8 in court) have the burden of showing that there is at least some evidence that there would be a negative impact from SSM. Simply believing it would is not enough, you have to have a rational reason to believe it.

Smith takes exception to the majority's reliance on Romer, and his arguments are quite rational. He delineates the differences between Colorado's Amendment 2 (Romer) and Prop 8 very clearly, and concludes

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Correct, and his arguments regarding whether Romer is applicable are fine, and beyond my level of knowledge of the law to comment on. The word rational is used strictly in reference to the level of scrutiny. I am not saying his arguments are irrational.

Regarding CA law respecting child rearing and the optimal parenting rationale

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I find it unlikely that SCOTUS will be swayed by this argument.

Regarding the appropriate level of scrutiny

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Rational review is the lowest possible level of scrutiny that would apply, and it is quite likely that a higher level of scrutiny would in fact apply. A large number of legal scholars believe that strict scrutiny would be appropriate in this case. If I had to guess, I would guess SCOTUS would see it as Intermediate scrutiny. SSM bans clearly fail under strict and Intermediate scrutiny, and probably fail under Rational Review. The original judge in this case rules that it should be treated as Strict scrutiny, but that the Amendment failed under rational review so did not look further. The two judges who upheld his ruling agreed, so the question of the level of scrutiny appropriate has not yet been ruled upon.

Then this in closing

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I do not know enough on the case referenced to comment.

digsbe said:

States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.

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So far the courts have disagreed with this assessment, and with very good reason. Further, the question becomes what happens when DOMA is struck down? Can a state refuse to accept another states marraige? The potential problems with that are huge.

Redress said:

Not necessarily. They tailored the ruling to be very narrow. The California Supreme Court ruled that gays have a right to marry. Prop 8 was then passed. The ruling in this case was that the right to marry was taken away and they based their ruling on that. States where SSM is not considered a right now could be unaffected by this ruling, depending on how SCOTUS rules.

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Wouldn't the SCOTUS ruling that a SSM ban is unconstitutional force all states to be accordance with the constitution? How could CA legally issue a proposition that it's own Supreme Court already deemed illegal? I'm not a lawyer, just trying to understand how this would work if the SCOTUS declared a ban on SSM unconstitutional.

If I were you pro gay marriage people I would not count my chickens on this issue. The 9th circuit court is the most liberal, left wing circuit court who have a huge portion of their decisions overturned by the SCOTUS which I predict will happen here by a 5-4 decision and all gay marriages in California will be voided.

It really is sad when the people speak activist judges can overrule their will.

Rhapsody1447 said:

Wouldn't the SCOTUS ruling that a SSM ban is unconstitutional force all states to be accordance with the constitution? How could CA legally issue a proposition that it's own Supreme Court already deemed illegal? I'm not a lawyer, just trying to understand how this would work if the SCOTUS declared a ban on SSM unconstitutional.

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Once some one has a right, it becomes harder to take it away. Whether those without that right have to be given it is a separate issue.

The California SCOTUS ruled it unconstitutional under the California Constitution, hence amending the constitution.

If the US SCOTUS rules that all such bans on SSM where illegal, then no state could have such a ban. However, that is not the only way they could rule while overturning Prop 8 and finding with the lower courts.

Navy Pride said:

It really is sad when the people speak activist judges can overrule their will.

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That's partially because we are not a strict democracy, but rather a democratic republic. There will always be challenges of this nature and need to be, the majority cannot infringe upon the rights of the minority and we review cases as such. Perchance the SCOTUS will reverse it, but that is the process we have. The majority is not king.

Navy Pride said:

If I were you pro gay marriage people I would not count my chickens on this issue. The 9th circuit court is the most liberal, left wing circuit court who have a huge portion of their decisions overturned by the SCOTUS which I predict will happen here by a 5-4 decision and all gay marriages in California will be voided.

It really is sad when the people speak activist judges can overrule their will.

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Proof once again that activist judge = one who rules in a way you don't like. Come on NP, like last time, I dare you to show me where in the ruling you disagree with the judges reasoning. Will you accept the challenge this time, or will you avoid it again.