harmonicminer

Federal Judge Overturns California’s Same-Sex Marriage Ban

A federal judge on Wednesday overturned a California ban on same-sex marriage, ruling that the Proposition 8 ballot initiative was unconstitutional.

The ruling by U.S. District Judge Vaugh Walker, one of three openly gay federal judges in the country, gave opponents of the controversial Proposition 8 ballot a major victory.

Gay couples waving rainbow and American flags outside the courthouse cheered, hugged and kissed as word of the ruling spread.

Despite the favorable ruling for same-sex couples, gay marriage will not be allowed to resume. That’s because the judge said he wants to decide whether his order should be suspended while the proponents pursue their appeal in the 9th U.S. Circuit Court of Appeals. The judge ordered both sides to submit written arguments by Aug. 6 on the issue.

Supporters argued the ban was necessary to safeguard the traditional understanding of marriage and to encourage responsible childbearing.

California voters passed the ban as Proposition 8 in November 2008, five months after the state Supreme Court legalized gay marriage.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” the judge wrote in a 136-page ruling that laid out in precise detail why the ban does not pass constitutional muster.

The judge found that the gay marriage ban violates the Constitution’s due process and equal protection clauses.

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

Presumably current law also disadvantages polygamists and polyandrists, not to mention people who want to live in “group marriages”, “without any rational justification.”
Some comments from others:

Power Line

Conservatives have long said that the day would come when liberal judges declare the Constitution unconstitutional. That happened today, when a gay federal judge in San Francisco, relying on the opinions of mostly-gay “expert” witnesses, ruled that an amendment to the California constitution, which was adopted in perfectly proper fashion by a substantial majority of voters, is “unconstitutional.” In this context, unconstitutional means “unpopular with me and my friends.”

The “Who Decides” Election

August is off to an interesting start, with liberal elites telling large majorities of Americans that they are bigots if they oppose a mosque at Ground Zero or same sex marriage in California. These edicts to the cultural surfs from their betters in New York and San Francisco only add to the growing sense that November really is a show-down election, a conviction that was strengthened by the amazing verdict on Obamacare from the Show Me State on Tuesday.

The debates over the mosque and marriage are both being carried on at two levels.

In both cases there is a complicated legal debate underway, as there is in the case of Arizona’s 1070 and Virginia’s challenge to Obamacare. Each of these four disputes could make for wonderful hypotheticals on a final exam in any Con Law class in the country, so not surprisingly the non-lawyers in pundit land are making a hash of it. (For an example of careful analysis of the marriage decision, see Orin Kerr’s take on one small portion of Judge Walker’s opinion at The Volokh Conspiracy, which demonstrates the complexity of the arguments and why almost all non-lawyers and most lawyers are going to have as tough a time with the legal issues here as they have with the preemption and Commerce Clause issues in the Arizona and Virginia cases and the Free Exercise arguments regarding GZM.)

Here’s the all-purpose, all-weather analysis for all four controversies: Eventually Anthony Kennedy will tell us what the law is. Until then, it is all just so much dorm-room chatter. The Supreme Court is narrowly divided between “living Constitution” justices and “originalist” justices, and the four in each camp will be pretty predictable on the marriage, preemption, and Commerce Clause issues, though less so on the Free Exercise issue which would be at the heart of the case should the GZM ever reach the Court (which the Court almost certainly does not want it to do.)

This is exactly right, I think. If the words of the Constitution don’t mean what they meant to the founders, then they don’t mean much of anything other than the personal preferences of the judges making the decisions now.

What, you say that you don’t see anything in the Constitution or history to suggest that the founders (or anyone else for the first two centuries of the republic) believed that same sex marriage was/is protected by the Constitution?

Then stop voting for Democrats, who have for decades reliably (meaning almost ALWAYS) appointed judges who think that their opinion about what the constitution really means is more important than the opinions of, say James Madison, or Thomas Jefferson, or Alexander Hamilton, or, for that matter, John Jay.

Today, it seems we can forget what the Constitution actually meant to the people who wrote it and approved it, because we have Anthony Kennedy to divide the waters for us.

Pray he gets it right.