What Judge Walker didn’t talk about
Sherlock Holmes once famously said, “Watson, I call to your attention the curious fact of the dog barking in the night.” “But Holmes, there was no dog barking in the night.” “That is the curious fact.”
It is a curious fact that Judge Walker did not discuss any of the previous cases that deal with the constitutional questions before him. Chuck Cooper puts it this way, in his Emergency Motion seeking a stay of Judge Walker’s judgement invalidating Prop 8:
“Given that the district court did not cite a single case that had addressed these issues, one might think the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth.
Indeed, though the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, evey state or federal appellate court to address the issue, including the Supreme Court in Baker v Nelson, and this Court in Adams v Howerton—has consistently rejected this conclusion.
The district courts conclusion that strict scrutiny applies to classifications based on sexual orientation likewise stands in stark conflict with binding authority from this Court and the unanimous conclusion of ten other federal circuit courts (all that have addressed the question) that such classifications are subject only to rational basis review.
And again, contrary to the district court’s conclusion below, the Court and the overwhelming majority of other courts, both state and federal, to address the issue have concluded that the opposite-sex definition of marriage rationally serves society’s interest in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by the mothers and fathers who brought them into this world.
The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well-established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them. ”
As I said in my previous post, Chuck Cooper knows what he is doing. The curious fact, is that Judge Walker ignored all relevant binding precendents on this question. Why? Only he knows for sure. But the fact that he did not confront this body of case law will surely increase the chances that he will be overturned on appeal.
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Maybe this will help put the role of “Baker” in context:
“But Judge Walker found several ways in which Baker differs from the Perry case. As USC’s Roithmayr explained, Walker found important and different facts in the two cases. “In Baker, there was a statute neutral on its face but interpreted to prohibit gay marriage,” she said. “In Perry, he said he was looking at a statute that expressly prohibits gay marriage. In addition, that statute strips gays and lesbians of their right to marry, a right that had been accorded to them by a prior court.”
Walker also pointed to doctrinal developments since Baker, she added, that push the analysis toward finding there are constitutional interests at stake in legislation that could be interpreted as anti-gay. Those developments include Supreme Court decisions striking down laws that criminalize consensual sodomy and a state constitutional amendment denying protection from discrimination on the basis of sexual orientation.
Amar said he could “easily see” a 9th Circuit that didn’t want to decide the same-sex marriage issue saying Baker is on the books and, until the Supreme Court chooses another case to revisit the issue, Baker is binding.
“Even if the 9th Circuit expansively affirms Walker, it’s conceivable the Supreme Court could reverse on the narrow ground it should have followed Baker and the time is not ripe to revisit this issue,” he added.
Baker should not be dispositive, argued Yale’s Eskridge, because “it is 40 years old; the whole social understanding of gay marriage could not be further from the social understanding in the 1970s, and Supreme Court precedents have undergone a sea change.”
law.com
It seems like that now, all judicial decisions should be discusses will ALL judges in the same district. This way, things like this or activist judges won’t be allowed to impose gay marriage on us.
Sean,
So you are arguing that constitutional precedents should have a statue of limitations?
Let’s say that the Walker decision becomes the new precedent. Would you object if it were overthrown four or forty years from now because the court has moved to the right?
Eskeridge is wrong. Even the SSM proponents, in their argumentation, display a profound lack of understanding of marriage and even of their own confused mess of an SSM idea. There is nothing “gay” about SSM and since the SSM idea is really just a subset of nonmarriage there is nothing marital about it either. That was so 40 years ago and, as per the comments of SSMers at this very blogsite, it remains true today.
Meanwhile, with the CA marriage amendment, the people of CA merely reaffirmed what they had previously affirmed in 2000 when they enacted the a clarification of the marriage statute against the prospect of an abuse of judicial review. That abuse occured just months prior to the election that saw the marriage amendment victorious. So the interim was an aberration with the social understanding of marriage in California. And in the rest of the country, too.
Pointing to a few other places in the country where abuses of judicial review have been instrumental in imposing SSM on society really undermines Eskeridge’s rather crude assessment of the country. National opinion surveys show that of those decided on the marriage issue, about 60-65% do not favor merging SSM with marriage. That has held steady for decades.
Dr J, Cooper’s legal team has made Olson-Boise look ridiculous. Yet it is a measure of the corruption of identity politics that the newsmedia has churned out a fictional account of the trial. I am quite sure that Walker knew that he could count on that and this is his motivation for holding a policy review, rather than a legitimate judicial review, of the SSM issue in his courtroom. His long policy paper (in the guise of a judicial opinion) is almost as politically useful to the SSM campaign as live coverage of the trial would have been. That he did not forthrightly deal with binding precedent is the first hop in his hop-skip-and-jump approach to his role as a district court judge on this particular issue.
And he did all that bouncing without his feet touching the ground. Now we see SSMers attempting to provide him a political and rhetorical springboard and a trampoline to levitate his so-called legal opinion. They are confirming the abuse of judicial review.
No, Leo, I’m not saying anything. I posted the thoughts of a few legal scholars regarding the weight of the Supreme Court’s Baker judgment. Some scholars think Baker has been watered down significantly due to so many changes on the legal front since 1971 regarding society’s understanding of adult relationships and sexuality. And, as Judge Walker noted, the facts surrounding Baker differed substantially from what he had to consider in Perry.
So Sean, you would OK with a court that overturned the Walker decision if new “facts” were presented?
Leo, of course. If there are ever facts that come to light to say that same-sex marriage causes harm, yes, definitely, let’s weigh the good that comes with legalizing same-sex marriage with the bad that comes with same-sex marriage. It’s going to be tough, though, from a legal perspective, given the 14th Amendment’s insistence that all citizens be granted equal rights. Popular dislike of homosexuals is not a very strong argument, legally, against same-sex marriage.
Since same-sex marriage opponents so strongly rely on “the will of the people” arguments, will your side stop complaining once a clear majority of Americans favor same-sex marriage rights, as will be the case in the next few years?
I have not seen Dr. J. or anyone on this blog argue that popular dislike of homosexuals is a proper argument, legal or otherwise. The issues have been the effects on society of changing the laws and culture of marriage that would come from a radical redefinition of marriage (weighing the good and the bad as you put it) and the effect on the law of turning a blind eye to judicial overreach.
In every case state where the issue has been put to the people directly, they have decided to affirm the traditional definition of marriage. When the people in their sovereignty decide the issue otherwise using constitutional means, I will, of course, abide by that decision. If the Supreme Court goes your way, I will abide by the decision, but reserve the right to attempt to pass a Federal DOMA constitutional amendment.
Dislike of homosexuals appears to be a major motivator for opposing same-sex marriage. That, and religious beliefs, which are probably just a smoke-screen for dislike of homosexuals. I don’t think marriage is being radically redefined; rather, marriage rights are being extended to same-sex couples. Unless the concept of marriage was designed specifically to exclude same-sex couples, I don’t think letting same-sex couples marry changes marriage much.
A vote of the people cannot reach an unconstitutional conclusion, any more than a law created by the legislature can. People voting on referenda is certainly constitutional; creating a law that violates the constitution is the problem. It’s unfortunate so many Americans appear willing to accommodate unconstitutional laws, in order to support their personal or religious beliefs. This is troubling to me, but not completely surprising. That’s why we let judges determine the constitutionality of laws, not popular opinion.
Since there is no homosexual criterion for ineligiblity in the CA marriage amendment, and none in the marriage statutes, and none in the argument for the special status of marriage, Sean’s remarks are way off target.
Chairm, there need not be explicit reference in a statute to the characteristics of a group for discrimination and/or unequal protection to be found. For instance, if the government outlawed Saturday worship services, without even mentioning Jews, it would still violate equal protection and religious freedom guarantees because it would disproportionately burden Jews, who tend to go to synagogue on Saturday, the Sabbath.
Opposite-sex only marriage statutes have the net effect of denying gay people the right to marry, even without mentioning sexual orientation. In this situation, gender is being used as a surrogate for sexual orientation.
You agree, then, that there is no such criterion in the law. And none in the marriage amendment.
You are speculating that sexual orientation is in the US Constitution. It is not. And where it has been introduced in constitutional jurisprudence it invokes rational basis review and not the heightened review invoked by religion.
Meanwhile, your earlier remarks went straight to motivation and did not dwell on your speculative application of the theory of disparate impact. If you had meant the latter rather than the former, you might have said so without rushing to impute the motives of those with whom you’d disagree.
Your previous remarks remain off-target.
Meanwhile, no person is denied marital status based on his or her sexual orientation or membership in an identity group.
Sean said: “Unless the concept of marriage was designed specifically to exclude same-sex couples …”
The marriage idea was not designed for that purpose. Hence the man-woman basis of marriage law is not about that.
It is, however, about more important things that justify the special status of this social institution in our civilization. The real disagreement that SSMers keep bringing to the marriage issue is their rejection of the core meaning of marriage. That is, they reject the special reason for its special status in the law and the culture.
The SSM idea has never been marriage and for good reason. The SSM idea is indistinguishable from the vast range of relationships types and living arrangement types that are outside the bounds of marriage. The only thing that the SSM campaign brings to the issue, that was not there before, is an emphasis on sexual orientation and membership in the gay identity group.
And, since the marriage idea is not conceived on excluding people on that basis, the SSM campaign’s emphasis is misplaced. On the contrary, the man-woman basis of marriage provides the justification for drawing ineligilbity when it comes to a wide range of relationship types and living arrangemen types that are two-sexed. And the marriage law does exclude explicitly these opposite-sexed scenarios.
Sexual orientation and gay identity were not even afterthoughts. It is only the SSM campaign and its special favoritism toward the gay identity group that has brought those criteria to the fore. And even at that, the SSM idea fails to distinguish between nonmarriage and marriage.
You can leap over the core of marriage, if you insist, but then your complaint is about the false equivalence you’d hope to impose — falsely equating the SSM idea and the marriage idea.
The subject of the marriage law, and the target of the marriage law, is the social institution and societal regard for it. And that has zilch to do with the SSM idea.
Until opponents of same-sex marriage can name someone who has or would be injured by same-sex marriage, they won’t have standing in court. Gay marriage proponents gave credible testimony in the Walker case that they have been injured by their inability to marry, but the defenders of Prop 8 could offer no parallel.
Correct, Chairm, sexual orientation is not in the Constitution. But equal protection is. States with discriminatory marriage statutes and/or constitutional amendments have determined that they will not grant homosexuals the right to marry. The question becomes, what is the public purpose for this prohibition and is it constitutional?
To maintain constitutional conformity, states may either:
1. Stop granting any couple a marriage license
2. Start granting same-sex, as well as opposite-sex couples, marriage licenses.
Unless and until someone advances a public purpose for denying same-sex couples a marriage license, states are going to have a hard time with this, should they choose to keep issuing marriage licenses.
I’m sorry I didn’t dwell on the impact of prohibiting same-sex marriage. Let me do so now.
1. We dishonor our nation’s Constitution, and commitment to treat all citizens equally under the law.
2. We deny same-sex couples the opportunity to enjoy over 1,100 federal benefits afforded to married couples.
3. We imply that gay people and their relationships are less worthy than straight people and their relationships.
4. Based on extensive research by Maggie Gallagher, a prominent marriage researcher, we deny gay couples access to an institution that brings about longer life, better health and greater wealth.
5. Based on extensive research also by Maggie Gallagher, we consign the children of same-sex couples to lesser lives. Gallagher’s research shows that the children of married parents do better than the children of unmarried parents. To deny a brighter future to a child because you don’t like his or her parents (a vengeful act, if ever there was one) is a disgrace beyond description.
The “man-woman” nature of traditional marriage does not exclude a brother marrying a sister, an uncle marrying a niece, or any other male-female arrangements that appear to form a great part of your concern about same-sex marriage. If society wants to exclude related persons from marrying, and the law permits it, why would that change once same-sex marriage is universal?
Sean you proposed a false dichotomy when you said:
“1. Stop granting any couple a marriage license
2. Start granting same-sex, as well as opposite-sex couples, marriage licenses.”
On item 1, if entry to marriage is a fundamental right, as argued by Olson, then, he, as you, made a profound self-contradiction when you proposed that this fundamental right can be denied in total.
On item 2, that is the way hostage takers might talk about their terms for release of the hostages; as in, give us what we want or we will destroy what we hold captive.
What is being held captive would be destroyed, anyway, by surrendering to those terms.
Sean, the starting place is the basis for the special status of marriage in our society. You start someplace else — with the promotion of gay identity politics. Huge difference.
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We honor the Constitution by not reading into the supremacy of identity politics. We honor the Constitution by recognizing what makes marriage a fundamental right deeply rooted in our civilization. We honor the Constitution by governing ourselves according to the limitations on all three overlapping branches of government.
But SSMers would dishonor the Constitution by entrendhing the supremacy of identity politics — of the gaycentric variety. And dishonor the Constitution by detatching the fundamental right to marry from that which makes it fundamental and deeply rooted in our civilization. And dishonor the Constitution by replacing judicial restraint with an institutionalization of the abuse of judicial review.
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The “1000 benefits” canard does not justify special status based on gayness, as proposed by the SSM campaign’s gaycentric emphasis. You are trying to make the legal incidents that flow from the core of marriage into that from which marriage itself flows. You are thus thinking upside-down, inside-out, and in circles.
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You yourself are strongly implying that the gay subset of nonmarriage is more worthy than the rest of the nonmarriage category. Hence the SSM campaign’s assertion of the supremacy of gay identity politics over marriage, over the Contitution, and over much else.
That is not even just a hint in Walker’s pro-SSM policy paper. It is front and center in all that the anti-8 litigators said during the trial — in the courtroom and anywhere else that would give them the opportunity to vioice their complaint against marriage.
Meanwhile, there is nothing gay about the SSM idea as proposed. So rejection of it says zilch about gay this or gay that.
People can legitimately reject the assertion of supremacy of gay identity politics. The rejection of white racialist identity politics is a well-established precedent for doing just that.
Rejection of lousy arguments based on double-standards and a long list of false equivalencies, sure, that says something about the superficiality of the SSM campaign’s complaint against marriage law. But the gayness of the messengers, and even of the campaign itself, is really not relevant to marriage, anyway.
The content of those arguments, such as it is, stands or falls on its merits and demerits. Your trying to claim immunity because of gay identity is a rather poor way to defend the Constittuion and the rule of law.
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The research to which you referred was in the context of sex integration and responsible procreation. And the SSM idea is an outright rejection of that context.
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Societal regard for the core meaning of the social institution is precisely what justifies the boundaries, the limitations, based on relatedness.
Does the core do this on its own? Nope.
Again, it depends on societal regard for that core. Concerns about responsible procreation are legitimate concerns when it comes to the sexual basis for the special status of marriage.
But your assertion strongly implies that the line based on relatedness is arbitrary and not justifiable. Please elaborate.
Sean said: “If society wants to exclude related persons from marrying, and the law permits it, why would that change once same-sex marriage is universal?”
The SSM idea is primarily about changing boundaries by changing what the boundaries are drawn around. First, reject the core of the social institution. Second, insist on the 100% guarantee rule of SSM argumentation. Third, make consent the trump cards of all trump cards.
You are the proponent of change. If the SSM idea is imposed on all of society, as the SSM campaign demands, what woud justify the limitation based on relatedness?
You know what? I’m tired of going round the same circles with SSMers who have not thought through their arguments. Ifyou have something on-target to say, good, I’ll respond. If you merely repeat what SSMers have been saying ad nauseam — as recently as Mark’s concession about incestuous marriage — I’ll leave you to hang your viewpoint with your own words.
Until an SSMer can distinguish between the SSM idea and the rest of nonmarriage, the SSM campaign has no justification for complaining about society discriminating between marriage and nonmarriage.
Sean: as I said in another post, Chairm uses a lot of unrecognizable terms to attempt to try to justify his discrimination against same sex couples.
Chairm: as I said in another post, the difference between SSM and Nonmarriage is simple. SSM is marriage and nonmarriage is not.
Mark, that is not simple. That is simplistic and circular.
I take it as your admission that you have no actual justification for your assertion that the SSMM idea is different from nonmarriage.
Okay, we’ll print up some more labels and afix them to the rest of nonmarriage and then you can assert that there is no difference between nonmarriage and nonmarriage because nonmarriage is marriage.
I’m trying tofigure out how the heck OSM differs from non-marriage! Oh, that’s right, married opposite-sex couples get such privileges as not having to testify against each other in a court of law, or unfettered visitation rights at a hospital. I think same-sex couples could benefit from those rights, too. That’s why I support equal access to marriage. Oh, and kids are better off with married parents.
Okay, Sean, you are on the record.
You distinguish non-marriage from marriage by –
1. Spousal privilege regarding testimony (a canard, by the way)
2. Hospital visitation (another canard, by the way)
Brilliant. A short list of canards.
But supposed we take that stuff and wave your magic wand and transform it into The Decisive Factor.
Well, all that does is remind readers that there is a special status. It does not explain the special reason for that special status.
Sure, it might shed some light on the line between marriage and non-marriage, but it says little about what marraige is, before the label and the status is pinned to it.
SSMers need to state the essential(s) of the type of relationship they have in mind. No, not the products of a special status, but the source of that special status. If it does not flow from that type of relationship, due to what it actually is, then, you have failed to distinguish SSM from the rest of nonmarriage.
You have a blank slate. Forget the core of marriage. You reject it so act like the type of relationship you have in mind is all there is to “marriage”. If people form that type of relationship, then, society should grant special treatment because … ?
To describe a type of relationship one needs to specify its essentials such that it is different from other types. That difference is what the rest depends upon. If there is no difference, then, there is no marriage category in the midst of the rest of nonmarriage. Indeed the distinction becomes nothing more than a label without real meaning.
Chairm: “To describe a type of relationship one needs to specify its essentials such that it is different from other types. ”
That would be great. Tell me how an opposite sex married couple differs from an opposite couple living together.