Federal Appeals Court Holds Prop 8 Unconstitutional

Discussion in 'Gay & Lesbian Rights' started by Osiris Faction, Feb 7, 2012.

  1. Osiris Faction

    Osiris Faction Well-Known Member

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    http://news.yahoo.com/court-ca-gay-marriage-ban-un-constitutional-175942895.html

    Look at that, federal appeals court rules the prop 8 is indeed unconstitutional.

    Looks like this is heading to the supreme court.

    This is it people, this is the case we have been waiting for all these years. This has the very real possibility of being the case that changes same sex marriage laws on the federal level.
     
  2. Johnny-C

    Johnny-C Well-Known Member

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    Of course!

    (Someone, please let dixon know.)
    ;)
     
  3. Wolverine

    Wolverine New Member Past Donor

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    BUWHAHAHAHAHHA!

    Beat me to it, I was about to post the same story.
     
  4. Kranes56

    Kranes56 Banned

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    Great news.
     
  5. Osiris Faction

    Osiris Faction Well-Known Member

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    I was anxiously awaiting the AFER update on the case.

    Yahoo posted the story before I got the update email. Gotta say I was and am extremely pleased with it.
     
  6. Perriquine

    Perriquine On hiatus Past Donor

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    Not so much. It's a very narrow ruling that completely avoided the larger question of whether same-sex couples have an equal right to marriage recognition. The justices relied heavily on the initial California Supreme Court decision and Romer v. Evans.

    With such a narrow ruling, and one that only applies to California, it's unlikely the Supreme Court will see any question federal of law left for them to answer in relation to this case.

    The DOMA cases are the better ones for us at this time. We need to overturn the state constitutional amendments - probably state by state - to get marriage equality nationwide.
     
  7. DevilMay

    DevilMay Well-Known Member

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    It is purposely narrow to give it the best chance of succeeding in the Supreme Court.
     
  8. Perriquine

    Perriquine On hiatus Past Donor

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    I can't help but feel you might be missing the point? Success in terms of the 9th Circuit's ruling would mean having the Supreme Court deciding not to hear an appeal by the proponents of Prop 8. That refusal would allow the 9th's ruling to stand, and would restore access to legal marriage for same-sex couples in California.

    If you mean succeed as in the Supreme Court using proponents' appeal as an opportunity to broaden the effect of the 9th's ruling by extending it to all states, then I'd have to opine that you're dreaming. That could garner valid complaints about 'activist judges' and 'legislating from the bench'.

    The bottom line is that the courts almost always seek the narrowest ruling possible in order to avoid the unforeseen consequences of making an overly broad interpretation of the law. It's why the 9th ruled as it did, and why SCOTUS won't use this as an opportunity to settle the marriage question for all 50 states in one sweeping ruling. They're going to try to avoid that quagmire for as long as they possibly can - at least until a majority of the states already have marriage equality.
     
    Colombine and (deleted member) like this.
  9. Perriquine

    Perriquine On hiatus Past Donor

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    To DevilMay - let me address one more thing. Your original statement was:

    This case is about state law, not federal law. It won't have any direct effect on the federal DOMA, for instance. The power to regulate marriage isn't one reserved to the federal government by the Constitution. That makes it a power belonging to the states, or to The People. This is what's at the heart of the cases targeting section 3 of DOMA.

    Getting rid of that part of DOMA won't create recognition of marriage in all 50 states. It would only potentially force the federal government to recognize same-sex marriages that have the force of state creation & recognition already in their corner.

    Now compare that to Prop 8. It's not actually about federal treatment of marriage. It's also not a case that challenges the ability of states to enact bans on legal recognition of same-sex couples' marriages.

    The Prop 8 case has a unique set of facts. These facts render it a case challenging a state's power of removing legal recognition from one class of people, absent any compelling government interest or legitimate purpose. As such, it can't be applied to other states without getting into the question of whether same-sex couples have a right to legal recognition of their marriages. The 9th didn't go there, presumably because they knew that such a broad interpretation of the law would not be sustained by the SCOTUS.

    So I have to respectfully disagree. This case doesn't present us with an opportunity to change laws prohibiting same-sex marriage recognition on the federal level. It won't change DOMA. It won't change the law in states other than California. The only thing that makes this a federal case is the issue of whether California's enactment of Prop 8 violated the 14th amendment. IF SCOTUS takes this case, we could see that examined - but NOT in broad application to other states, and not under strict scrutiny. They'll instead deal with whether or not the 9th circuit was correct to apply a heightened level of scrutiny against the facts unique to California.

    This simply isn't a case that will give us equal marriage recognition in every state or by the federal government. The facts of the case don't lend themselves to that.
     
  10. Perriquine

    Perriquine On hiatus Past Donor

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    One last thought on this notion that the court has ignored the will of The People:

    From a legal standpoint, this becomes a matter of which is greater - the will of the voters in California, or the will of the people of the United States. Here's where I remind you that the latter group adopted a Constitution and its amendments - supreme laws whose application could very well end up thwarting the will of one state's people - a will that seems focused on using the law to express disapproval, rather that enacting a sound law with a legitimate purpose.

    So the idea that the court's are ignoring the will of The People is utter nonsense. They are in fact expressing the will of The People through their interpretation of laws The People adopted and accepted.

    A referendum is not sacred and untouchable, merely because people voted for it. If their actions pit one expression of the people's will against another such expression of that will, a conflict is created that must be resolved through the careful interpretation of the law - something that is the purview of the courts - a system that is also an expression of the people's will through their adoption of the Constitution and its establishment of the judicial branch of government.

    You may not like the court's interpretation of the law. I certainly often don't. But it's the system we have, the system we adopted for ourselves.
     
  11. Colombine

    Colombine Well-Known Member Past Donor

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    I'm inclined to agree with this post.
     
  12. DevilMay

    DevilMay Well-Known Member

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    That would be the easiest route to success as far as SSM in California is concerned, yes. Defendants of Proposition 8 have now two weeks to either appeal to the full 9th Circuit Court or to the USSC, else same-sex marriage will be resumed in CA. Given the composition of the 9th they would probably be wasting their time appealing there, and have indicated they intend to go directly to the Supreme Court.

    The ruling was conceived in such a way that highlights California's unique case - that it is the only state where same sex marriage has been granted and subsequently rescinded by voters. It relied heavily on Romer Vs Evans, the 6-3 decision which struck down a Colorado voter-approved referendum which invalidated local anti-discrimination laws; of which Justice Kennedy wrote the majority opinion. The whole case, as well as Judge Walker's decision before it, has been crafted to speak directly to Kennedy using his own precedent.

    You seem to be under the assumption that SCOTUS cannot apply a similarly narrow ruling and apply it only to CA. It is possible. In the same way that the 9th hasn't applied their ruling to all the states under its jurisdiction, so too can the Supreme Court using the merits of the case and the aforementioned "uniqueness" of California's case.

    In all likelihood however they probably will refuse it since the 9th has established there's no real federal question involved, and if that happens the Proposition 8 case has succeeded in what it set out to do.

    I completely agree. My point is that the USSC hearing the case doesn't mean they can't apply the same limited scope as the 9th did. But it may be a good thing them hearing it as it establishes precedence that would help with future cases.
     
  13. DevilMay

    DevilMay Well-Known Member

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    Yeah, you know your stuff. :)

    The original statement wasn't mine but Osiris's.
     
  14. Perriquine

    Perriquine On hiatus Past Donor

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    We're in agreement. I do in fact believe the Supreme Court could make a narrow review of the case. I just don't think they'll bother, since I don't think they'll see themselves as being presented with a question of law to answer that the 9th hasn't already effectively dealt with - easier for them to just refuse to hear the case.
     
  15. Perriquine

    Perriquine On hiatus Past Donor

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    Ah, okay. Sorry for making you the target then.
     
  16. Osiris Faction

    Osiris Faction Well-Known Member

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    I do agree that the narrow scope of the suit wouldn't change bans on the national level all at once after a SCOTUS ruling against prop 8.

    However it would set a powerful precedent, over turning a state constitutional amendment banning gay marriage.

    Would go a long way in future state constitutional bans being lifted.
     
  17. Silhouette

    Silhouette New Member

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    Did that precedent include setting a vaguely and incompletely-defined group of behaviors as "class" or "race"?

    No?

    You mean like allowing other types of people with compulsive behaviors to apply for "class" or "racial" status and gain "equal rights" to do other things denied to them before? Like say maybe compulsive gamblers could gain rights to not be descriminated against for loans based on their credit ratings? After all, theirs is a compulsion, a behavior that is their natural predisposition, even if aquired after birth, but they cannot change. Can we legally descriminate against them if other behaviors have gained a "class" distinction and privelges therefore?

    Is compulsive gambling bad for you? I don't know. Do a survey at a casino and ask that culture if they think so. Is regular anal sex bad for you? Survey people at a gay pride parade or a bathhouse if they think so.

    Unwieldy precedents have a way of backfiring. And I haven't even gotten into siblings or adult consenting parent/children getting married...or polygamists.. How will you deny these behaviors?

    Behaviors are different from race. Will we turn the penal code on its end just to passify gays and lesbians and .....?
     
  18. DevilMay

    DevilMay Well-Known Member

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    Romer Vs Evans found that a constitutional amendment prohibiting protection against discrimination for gay and bisexual people did not serve to prevent "special rights", but instead imposed a special disability on them that ensured that they and they alone were completely excluded from protection in jobs, housing and other areas - the ONLY class to be officially prohibited. And the ironic thing was that the amendment itself acknowledged that being gay or bisexual IS a fact a class by enshrining the words into Colorado's constitution. Consequently it did not pass the rational basis test and was held in violation of the due process clause of the 14th Amendment.

    The parallels can be drawn by the stark similarities between Romer and Perry - the fact that it was found to further no legitimate state interest. The fact that it rescinded civil rights that already existed. The fact voters approved the amendments by referendum but the courts ruled they didn't have that right in the first place.

    The precedent is so strong I don't see how it's possible for Anthony Kennedy, the swing vote, to backtrack on a decision he championed.

    I'm not aware that gambling or the tendency to engage in it is something that has ever been shown to be on par with being homosexual/bisexual - a phenomenon that has been observed in nearly all species of animal. Has gambling?

    It's something far more innate. Acts alone define a gambler, whereas homosexuality is a state of being. A gay person is a gay person regardless of whether they've had a sexual experience, otherwise all virgins would be asexual... Someone who has a "gambling problem" doesn't develop that untill they've actually gambled and become addicted.

    Just because sexual orientation isn't as outwardly obvious as race doesn't mean there isn't a solid biological or genetic basis for it.

    ??? Anal sex has absolutely nothing to do with same-sex marriage.
     
  19. Silhouette

    Silhouette New Member

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    As to housing, no, that's not true. Compulsive gamblers cannot obtain loans to get housing. Same with jobs and so on. Who's going to hire a compulsive gambler? If you've "got that problem" you're screwed.

    Try again...

    Maybe in Prop 8's case, the Court will decide that the judge who initially & erroneously [the opposition will argue] went behind the backs of the people to "grant that right", overstepped his bounds? Does one man have the right to force an entire state to accept a vaguely-defined group of compulsive sexuals to usurp the definition of marraige in that state? Some would argue that one man does not have that right, even if he is a judge. What a precedent that would set eh? One man, a judge, in this case a gay judge [perhaps next time it will be a compulsive-gambling judge?] has the right to redefine the statutes of the Will of millions concerning behavior and consequences...on his whim? WOW.. "I J. Harvey Wallbanger declare from now on that no compulsive-gambler may be descriminated against when applying for loans or jobs". *Stamp*. Done. Supreme Court says he can.. After all, using your logic Devilmay, he was sparing a group from discrimination..

    That's just one way he could backtrack. Another way would be to recognize an Amicus Brief that spelled out the various data we have that shows homosexulaity to be an acquired behavioral trait. Giving the status of "class" to behaviors would be a precedent-setting event indeed...and you know how leery the Court is of doing that without thoroughly doing their homework.

    Like I offered before, what's next? A cop not being able to arrest a kleptomaniac because he suffers from a compulsive behavior that makes him incapable of curbing his instincts? I know this sounds outlandish to you [well to be fair, you sound intelligent and logical so far so you know that a judge would consider that but maybe you'll pretend it's absurd to sway public opinion your way..?]. That's the thing about precedents...they reach way out into unforseen corners of the future.

    A behavior, a class? Really?

    Homosexuality is no more a "state of being" than bulimia is. Homosexuality is a compulsive attraction via in imprinted behavior early in life to the same gender. Other imprinted paraphilias include just to name a few, necrophilia, bestiality and fetishes of every name and description. All of them "born that way"...no, the data says no and it's simply absurd to believe that someone was born craving sex with a donkey in a rubber suit that is urinating on him...etc.

    Redo your homework because actual scientists will be writing SCOTUS when and if the time comes to hear this case.
     
  20. Colombine

    Colombine Well-Known Member Past Donor

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    Have you ever asked yourself why with all the millions of dollars spent on the original prop 8 trial those "actual scientists" didn't show up in the first place?

    If what you claim had turned out to be true we probably wouldn't be having this chat right now as the defense would have won their case.
     
  21. DevilMay

    DevilMay Well-Known Member

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    Gambling can directly affect your financial situation, so banks would be within their rights to refuse a loan to someone who probably couldn't keep up with the repayments. Being gay on the other hand has absolutely zero impact on one's financial situation, work ethic, ability to hold down a job or be responsible tenants, so any discrimination on that basis is arbitrary by comparison.

    He's a federal judge, so he absolutely has that right, and the people on either side of the case have the right to appeal if they disagree, and thr higher courts have a right to hear/refuse to hear and assuming they decide to take it up, uphold or toss out said decision. That's the way the system works whether you agree with it or not.

    The US being a constitutional republic means that the majority do not have the right to take away rights from minorities willy nilly - usually ANY attempts to do this have been defeated in court. It's the court's role to defend the Constitution and minorities from the very real phenomenon that is the 'tyranny of the majority', which is what happened in the Romer case. The high court overturned the will of the people as being unconstitutional.

    Except that homosexuality is not just behavioural; it is part of who a person is. It's possible to be fired by your employer or kicked out of your rental accommodation in states/jurisdictions without anti-discrimination laws, simply on the basis of being gay - which most reputable organisations say is an innate trait. Behaviour, at least in the sexual sense, doesn't even enter the equation here. We're talking about someone being sacked simply because they are gay and their employer doesn't like that, despite it obviously having no impact whatsoever on their ability to do their job.

    Going back to the courts though, a lot of respectable organisations would likely come forward testify that homosexuality is an innate and unchangeable quality that isn't solely defined by behaviour, if that were to be argued into this or any similar case:

    American Medical Association, American Psychological Association, American Anthropological Association, American Academy of Pediatrics, Child Welfare League of America, National Association of Social Workers, North American Council on Adoptable Children, American Psychoanalytic Association, American Academy of Family Physicians, American Association for Marriage and Family Therapy, Council on Child and Adolescent Health, American Academy of Child and Adolescent Psychiatry, American Counseling Association, American Sociological Association, American School Health Association, and the National Association of School Psychologists.

    But you're referring once again to something which is defined by adverse behaviour which can have a directly negative impact on others. It is not clear why anyone would view gay people in the same light.

    The difference between desiring sex with animals/dead bodies and sexual orientation, is that the latter is instrinsically linked to our biological instincts, and the former are social manifestations that cannot conceivably be biologically "imprinted". The majority of people are born (as I'm sure you are aware) to desire the opposite sex. You never had to think about that, did you? You didn't desire the opposite sex because you saw other people doing it, your body just inexplicably created those feelings, as it does with almost all people around puberty age. In the same way gay people everywhere grow up and go through that same process without being told what homosexuality is, without having consciously thought about who they are attracted to. Their bodies do the exact same but with the same-sex.

    You can't put it on par with necrophilia and bestiality. There's no way, biologically speaking, those things could be "imprinted" in a persons DNA or biochemical makeup in the same way sexual orientation is - it is after all a trait directly linked to gender (the vast majority of people being "predisposed" to being attracted to the opposite sex) and the possibility of something happening before birth that disturbs or affects that process is hardly beyond imagination.

    The majority of the scientific community agree that there are significant biological reasons for homosexuality, given that sexuality specific to gender is instinctual.
     
  22. dixon76710

    dixon76710 Well-Known Member

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    Because the state didnt even show up to defend its own Constitution and the court prevented any other governmental entity or other private groups to intervene in the states absence.
     
  23. DevilMay

    DevilMay Well-Known Member

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    What's that got to do with scientists (namely the lack thereof) coming forward to testify against SSM?
     
  24. Colombine

    Colombine Well-Known Member Past Donor

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    Rubbish, the defense had every opportunity to field any expert witnesses they wanted and the very best they came up with was David Blankenhorn.

    That's the David:

    Blankenhorn I'm referring to, just in case you weren't sure.
     
  25. dixon76710

    dixon76710 Well-Known Member

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    Setting up the absurd possibility where the US Constitution provides a right to gay marriage in one state, but not in another. Either because the right was not previously available for 145 days like it was in California, or because another state didnt have the same contentious debate with what could be perceived as animus towards homosexuals.
     

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