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lawrocket

Ninth Circuit Finds Prop 8's Banning of Gay and Lesbian Marriage Unconstitutional

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This will be interesting, and both sides will appeal, so it may not be the end of the story. I'm hoping that the court finds an equal protection issue with banning gay and lesbian marriages. But I also hope they go about it in an apolitical way with some Constitutional justification to it.

I'll post a link to the decision when I can.


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I also hope they go about it in an apolitical way with some Constitutional justification to it.




that's a cute statement - regardless of whichever way it turns out

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

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What I mean is that I hope it doesn't appeal to "natural law" or something of that sort. I want to see a holding that gays and lesbians are a suspect class, then see whether intermediate scrutiny (which I think I would find) or strict scrutiny applies, and analyze Prop 8 that way.

Note - I can't even refresh the Ninth Circuit website right now.


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What I mean is that I hope it doesn't appeal to "natural law" or something of that sort. I want to see a holding that gays and lesbians are a suspect class, then see whether intermediate scrutiny (which I think I would find) or strict scrutiny applies, and analyze Prop 8 that way.

Note - I can't even refresh the Ninth Circuit website right now.



I know what you meant and I appreciate your point. I'm just being my normal cynical self.


I believe they overruled the ban.

I believe the point of your comment is whether they follow written law and the right process to come to the right conclusion, rather than rewriting law to come to the right conclusion.

One is the law, the other is political requiring the judicial to be unconstitutional in usurpation of the legislative duty.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

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As you say, the devil is in the details that we don't currently have available (i.e. justification). However I do have to admit being happy with at least the result. Think there's any chance of some first amendment arguments in there to go along with the fourteenth?

Blues,
Dave
"I AM A PROFESSIONAL EXTREME ATHLETE!"
(drink Mountain Dew)

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However I do have to admit being happy with at least the result.



that's really the issue, isn't it

no matter how important a person, or a group, or a party, or society as a whole wants to be machiavellian about their pet causess, the rule of law cannot be hijacked for any reason - any highly emotionally and politically charged case like this has to be examined for judical sincerity

(I am not intending for anyone to infer that I personally claim a hijack - keep your strawmen. I just appreciate LawRocket's position that it's important to cleanly be able to identify decisions that are lawful vs activist)

I hope the underpinning is well justified by law. That's the result that should make everyone happy. (and if we are sincere, it's supposed to at least 'satisfy' everyone regardless of their position - for or against.)

If not, then perhaps we can finally note that this is not a matter for the courts, but that the legislative branch has to stop hiding from the issue and fix the laws directly.


this applies to so many issues in multiple states and the federal level....not just a couple pet issues of high visibility

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

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Do you believe that this decision will withstand a challenge at the SC? The Federal standards are defined and have been restated as to what is a "miniority" or a "class".



Legal arguments notwithstanding, I believe there is also value in a common sense, "red face" perspective. Does Proposition 8 fundamentally deprive same-sex couples of one or more rights enjoyed by their heterosexual peers?

Blues,
Dave
"I AM A PROFESSIONAL EXTREME ATHLETE!"
(drink Mountain Dew)

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The 9th did an interesting thing. They did not hold broadly on the issue. They exercised restraint in NOT ruling on the issue of gay marriage as a whole. Rather, they took a narrow view of the issue. In a few words (on the substance and not the procedural issues) the court found:
(a) Gay marriage was not allowed in California
(b) Gay marriage was then allowed in California
(c) Then gay marriage was not allowed in California.

The 9th focused on (b) and (c). Gays and lesbians, for a brief time, enjoyed the same rights as everyone else. Then, these rights were taken away from gays and lesbians. Once a right is given to all it cannot be taken away from some, and marriage is considered to be a very important right.

So, the court finds, had the right for gays and lesbians to marry not been given before then the 9th would have had to make a much broader decision. But since the right existed for a time (and 18,000 gay marriages occurred, then the taking away of a right once given violates due process under the 14th Amendment and applied the Romer case. The court stated that Prop 8’s only effect was to withdraw the right to call their union “marriage” and thus deprive them of the societal status that “marriage” brings. (personal opinion: In this, the Prop 8 proponents shot themselves in the foot. The word is really important to the proponents. Therefore, it’s a big deal to take it from gays and lesbians).

The dissent took an interesting approach. Justice Smith pointed out that there is a long history of law that states that states have the absolute right to prescribe the conditions to be met for marriage. Justice Smith then wrote that the SCOTUS has not held that gays and lesbians are a suspect class, and thus only “rational basis” scrutiny can be applied. Did California have some rational basis for passing Prop 8? Note that “rational basis” review is typically death for any challenge to Constitutionality. And Justice Smith did what a rational review standard required him to do – speculate on some possible rational basis for the law.

Justice Smith’s dissent was exactly the analysis I was looking for. It’ll be up to the SCOTUS to make a finding of suspect class for gays and lesbians.

I think the majority acted with some restraint. But not as much as the dissent. I think the dissent was more along the classic line of reasoning. But I can’t say that the majority got all cute and activist with its decision. Indeed, I see the logic of the majority’s case as much as I see the logic of the dissent.

From a personal viewpoint I think the majority got it right. And I see no procedural nonsense at all in how they arrived at their holding.


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Do you believe that this decision will withstand a challenge at the SC? The Federal standards are defined and have been restated as to what is a "miniority" or a "class".



Legal arguments notwithstanding, I believe there is also value in a common sense, "red face" perspective. Does Proposition 8 fundamentally deprive same-sex couples of one or more rights enjoyed by their heterosexual peers?

Blues,
Dave



Good question. Is there any right that same sex couples are denied that cannot be accommodated by a civil contract?
I do know that for every gay person you could put on the stand to swear that they are immutably homosexual, the opposition can and has put another witness on the stand to swear that they formerly were homosexual and are now either hetero or bisexual.

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the rule of law cannot be hijacked for any reason - any highly emotionally and politically charged case like this has to be examined for judical sincerity



I have long stated my position that I would much prefer to reach the wrong result the right way than to reach the right result the wrong way. Too many times I agree with the end result, but I find that the process utilized was a travesty. Unless the rules of decision making are followed consistently, the decisions of the policymakers become arbitrary and capricious.

At that time, we have no idea what it and is not acceptable conduct because what while we are on notice that something is acceptable it may be determined down the road that it wasn't acceptable or should not have been, and thus we will face a consequence.

I don't think that majority got any of it wrong this time. Nor do I think the dissent got it wrong. Both were well justified.


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Legal arguments notwithstanding, I believe there is also value in a common sense, "red face" perspective.



In politics and the court of public opinion there is an absolute value in common sense, red face perspectives.

In law, however, there is little space for it because we have to be able to predict the consequences. I may find a one year statute of limitations to be stupid as all hell. But that rule is there and a common-sense logic should have no bearing because then proceedings become arbitrary.


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Legal arguments notwithstanding, I believe there is also value in a common sense, "red face" perspective. Does Proposition 8 fundamentally deprive same-sex couples of one or more rights enjoyed by their heterosexual peers?

Blues,
Dave



Good question. Is there any right that same sex couples are denied that cannot be accommodated by a civil contract?



Last I checked, you couldn't *marry* by civil contract. But even disregarding that, imagine if interracial couples had to pay an attorney to draw up papers specifying paternity, spousal access in hospitals, and survival benefits, but white couples got each of those presumed by virtue of marriage. If it's more difficult or costly for one couple than another, it's not equal.

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I do know that for every gay person you could put on the stand to swear that they are immutably homosexual, the opposition can and has put another witness on the stand to swear that they formerly were homosexual and are now either hetero or bisexual.



I'm not sure of the relevance of this.

Blues,
Dave
"I AM A PROFESSIONAL EXTREME ATHLETE!"
(drink Mountain Dew)

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>Is there any right that same sex couples are denied that cannot be accommodated by
>a civil contract?

Here are a few (from the National Organization for Women):

Portability. You cannot just move and have your union automatically recognized.

Federal Benefits: There are 1049 federal legal protections and responsibilities that the federal government grants married couples that they do not grant to civil unions. (Partly due to DOMA.)

Taxes and Public Benefits for the Family. Primarily pension protections, insurance provisions and means-tested programs like welfare.

Government forms. Most ask "married, single, divorced or widowed" for marital status. Rights that rely on such declarations (like emergency notifications, access to children etc) are thus difficult to ensure.

>I do know that for every gay person you could put on the stand to swear that they
>are immutably homosexual, the opposition can and has put another witness on the
>stand to swear that they formerly were homosexual and are now either hetero or
>bisexual.

Yep. And you could probably find one person for each of the two you listed who says he once claimed to be heterosexual out of fear, and is now openly homosexual.

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Legal arguments notwithstanding, I believe there is also value in a common sense, "red face" perspective. Does Proposition 8 fundamentally deprive same-sex couples of one or more rights enjoyed by their heterosexual peers?

Blues,
Dave



Good question. Is there any right that same sex couples are denied that cannot be accommodated by a civil contract?



Last I checked, you couldn't *marry* by civil contract. But even disregarding that, imagine if interracial couples had to pay an attorney to draw up papers specifying paternity, spousal access in hospitals, and survival benefits, but white couples got each of those presumed by virtue of marriage. If it's more difficult or costly for one couple than another, it's not equal.

Quote

I do know that for every gay person you could put on the stand to swear that they are immutably homosexual, the opposition can and has put another witness on the stand to swear that they formerly were homosexual and are now either hetero or bisexual.



I'm not sure of the relevance of this.

Blues,
Dave



Relevance? The creation of a special class of person is what is happening. That class is to be distinguished by a "behavior". Do you think that a type of behavior is a protected right?

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Legal arguments notwithstanding, I believe there is also value in a common sense, "red face" perspective.



In politics and the court of public opinion there is an absolute value in common sense, red face perspectives.

In law, however, there is little space for it because we have to be able to predict the consequences. I may find a one year statute of limitations to be stupid as all hell. But that rule is there and a common-sense logic should have no bearing because then proceedings become arbitrary.



I'm talking about applying such standard to the laws themselves, not their applicability to any individual case. So I agree that an argument of "the one year statue of limitations is stupid and should not apply to this case" would be bad. However "a one year statute of limitations is stupid and should be changed to three years" could be a completely viable argument. When the law itself is being challenged, a common sense appraisal could be one standard (among several) by which the law is evaluated. Look at the consequences and determine whether the goal is being achieved...if not, the law is probably stupid. If it's set aside as being stupid (read unconstitutional, or impossible to implement, or something like that), the legislators can try again, this time with less suck.

Blues,
Dave
"I AM A PROFESSIONAL EXTREME ATHLETE!"
(drink Mountain Dew)

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I do know that for every gay person you could put on the stand to swear that they are immutably homosexual, the opposition can and has put another witness on the stand to swear that they formerly were homosexual and are now either hetero or bisexual.



The mutability of sexual orientation is almost completely irrelevant in the discussion about same sex marriage.

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I do know that for every gay person you could put on the stand to swear that they are immutably homosexual, the opposition can and has put another witness on the stand to swear that they formerly were homosexual and are now either hetero or bisexual.



I'm not sure of the relevance of this.



Relevance? The creation of a special class of person is what is happening. That class is to be distinguished by a "behavior". Do you think that a type of behavior is a protected right?



I disagree that a special class of person is being created by this law, however I don't even need to address that. Religous practices are behaviors. If your church says you must wear a particular kind of hat, I can't discriminate against you for wearing that hat. If your church says you must marry your partner before having sex with them, then that's what you should do. Your choices on which church to attend, which hat to wear, or which consenting adult to have sex with are equally none of my business.

Blues,
Dave
"I AM A PROFESSIONAL EXTREME ATHLETE!"
(drink Mountain Dew)

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I do know that for every gay person you could put on the stand to swear that they are immutably homosexual, the opposition can and has put another witness on the stand to swear that they formerly were homosexual and are now either hetero or bisexual.



A) You don't know that.

B) So what?
Do you want to have an ideagasm?

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Relevance? The creation of a special class of person is what is happening.



That special class of people was created in the Western world a long time ago, when Christian fucktard Constantius banned gay marriage in 4th century or so. Homosexuality wasn't a real issue before that.

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>Is there any right that same sex couples are denied that cannot be accommodated by
>a civil contract?

Here are a few (from the National Organization for Women):

Portability. You cannot just move and have your union automatically recognized.

Federal Benefits: There are 1049 federal legal protections and responsibilities that the federal government grants married couples that they do not grant to civil unions. (Partly due to DOMA.)

Taxes and Public Benefits for the Family. Primarily pension protections, insurance provisions and means-tested programs like welfare.

Government forms. Most ask "married, single, divorced or widowed" for marital status. Rights that rely on such declarations (like emergency notifications, access to children etc) are thus difficult to ensure.

>I do know that for every gay person you could put on the stand to swear that they
>are immutably homosexual, the opposition can and has put another witness on the
>stand to swear that they formerly were homosexual and are now either hetero or
>bisexual.

Yep. And you could probably find one person for each of the two you listed who says he once claimed to be heterosexual out of fear, and is now openly homosexual.







Not every citizen gets the same benefits as the next. Look at single persons. They have to pay taxes for schools.
As far as the hetero who claimed to be afraid. A lawyer might ask " If you were lying then, are you still lying now?"
Let's see if the Supremes grant cert on the appeal.

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I do know that for every gay person you could put on the stand to swear that they are immutably homosexual, the opposition can and has put another witness on the stand to swear that they formerly were homosexual and are now either hetero or bisexual.



The mutability of sexual orientation is almost completely irrelevant in the discussion about same sex marriage.


bullshit........:D:D:D

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>Not every citizen gets the same benefits as the next. Look at single persons. They
>have to pay taxes for schools.

So do married couples without children. So do married couples _with_ children.

Heck, I pay for all those really cool Osprey V-22's that fly over my house all the time. But they still won't let me jump out of them. Unfair, I tell you. They wouldn't even have to change their flight plans.

>As far as the hetero who claimed to be afraid. A lawyer might ask " If you were
>lying then, are you still lying now?"

Why would it matter if he was lying or not? His sexual orientation should not matter. He should be able to get married no matter what his sexual orientation is, and to any consenting adult he chooses to. No "special classes."

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