image Following up my earlier post on this as I have some additional thoughts.  There are a number of frustrating things outside of Judge Vaughn Walker’s arrogance in ruling against California’s Proposition 8 which amended the California State Constitution to state in Article I, Section 7.5  that only marriage between a man and a woman is valid in California.  For starters is his attempt at deconstructing marriage, unfortunately for supporters of this ruling it is doubtful the U.S. Supreme Court will take this approach.

Let me remind you that the California Supreme Court ruled Proposition 8 constitutional even though it voided an earlier ruling they made.  They obviously have no problems with gay marriage, but they stilled ruled the way they did.  Then also frustrating is how in his ruling he relied upon faulty science, even a supporter of the ruling agrees, “ In dismissing that difference, Walker was at his weakest, relying on 1960s mumbo-jumbo rather than actual scientific research.”

The Heritage Foundation also pointed out problems with his decision and his usage of “the facts” as well:

Here are just some of the “facts” Judge Walker found:

  • Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.
  • The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.
  • The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian.
  • The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes.
  • Children do not need to be raised by a male parent and a female parent to be well-adjusted.

How did Judge Walker arrive at these “facts”? By agreeing with everything the same-sex marriage proponents’ “experts” said while ruling that the traditional marriage witness was “unreliable” and “provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.” In so doing, Walker not only ignored the views of millions of Californians, but by basing his decision on the 14th Amendment, he also ignored the factual determinations of every single popular vote that has been held on the issue in the past two decades. According to Judge Walker’s reasoning every single one of these Americans is a bigot whose opinion on marriage has no place under Judge Walker’s Constitution.

Then we have the charge of bias which the media largely ignored, but The Heritage Foundation demonstrated has been pretty well documented:

From the beginning, it was clear that Judge Walker was more interested in making a political statement than upholding the rule of law. That is why after Judge Walker ruled that the trial could be broadcast live, the Supreme Court took the remarkable step of overturning his decision, writing in January: “Not only did [Judge Walker’s court] ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue.”

Then we have the failure of the State to defend its own Constitution, Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to defend it, leaving it up to the people once again.  Where have I seen that before?  Hmmm……

I am heartened to see that at least one backer of same-sex marriage understands that pursuing change through the courts is the wrong approach and will likely backfire.

Lest anyone should misunderstand, let me note that I personally support marriage rights for gay couples.  I think court decisions are a very bad way to achieve that goal, for the reasons discussed above as well as because court decisions tend to lengthen political conflicts rather than resolve them.  It is worth remembering that in 1973 there was a clear trend among the states in favor of abortion rights.  The main accomplishment of Roe may have been to make abortion formally legal, but the decades-long firestorm of controversy has made actual exercise of those rights difficult in many areas of the country.  Using the courts is a way to an emotionally satisfying quick “win” on issues where the legal elite runs ahead of broader social attitudes, but that emotional rush often leads to a big crash in the longer term.  Temporary success can lead to long-term failure that is even more firmly entrenched than it was before.

I also don’t think that every desirable social policy enjoys the status of constitutional right.

I’ll end this post with a slight digression, I wonder if President Obama will make a statement on this?  He’s in a delicate position as many who turned out in droves to vote for Proposition 8, also voted for him, and African-Americans are the only group where he still enjoys high favorability ratings.  Hmmm…

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  1. In Judge Walker’s World, an opinion that he agrees with is a “fact” and one he disagrees with is not. How comforting it must be for the majority of Californian’s to be told that their deeply held beliefs are “illogical” and therefore their votes don’t count! And how comforting to be informed by the “all-wise” Vaughn Walker that their biblical beliefs that gay and lesbian relationships are sinful “harm gays and lesbians”. But Peter and the apostles taught us, “We must obey God rather than any human authority.” — Acts 5:29 NLT. We have a lot of work to do! As John Adams said, ““Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

  2. I agree
    The whole issue should be decided by the voters.
    Right now the majority of voters are opposed to gay marriage

    However,In a couple of year , if the trend continues, proposition 8 will fall on its own as the trend towards acceptance of gay marriage continues to gain ground year after year.

    Gallup pole just finished a poll on the question of gays and gay marriage that should be an eye opener

    “There is a gradual cultural shift under way in Americans’ views toward gay individuals and gay rights. While public attitudes haven’t moved consistently in gays’ and lesbians’ favor every year, the general trend is clearly in that direction. This year, the shift is apparent in a record-high level of the public seeing gay and lesbian relations as morally acceptable. Meanwhile, support for legalizing gay marriage, and for the legality of gay and lesbian relations more generally, is near record highs.”

    So my assumption is that within 5 years many of those who once voted against gay marriage….mostly Democrats and independents, will go from anti gay marriage to pro gay marriage. And many senior citizens (who are generally more than likely to be opposed to gay marriage than be for it)…will have past from the scene.

    Giving citizens the right to decide the issue will certainly play into the hands of the gay rights crowd in the long run. Time is on their side.

    Letting the Supreme Court decide the issue could hurt their chances permanently….or until a new court can revisit the issue

    1. Justice delayed in justice denied. In many states that passed a ‘I dislike Gays Amendment’, a vote can only be authorized with a majority vote of the legislature. That could take decades. Right now, Gay couples faces discrimination in many ways related to equal rights. For example. a Gay American who falls in love with a Gay person living outside the United States cannot gain entry for his/her partner into the USA. That issue affects
      people today, and waiting 20 years for something to change will represent a hideous creulty.

      And what is the origin of this creulty? What arguments do they have to support cruelty towards Gay Americans? It all boils down to pure hatred or dislike of Gay people or religious organizations seeking to enforce their religious dogma as a matter of public policy.

      The reason why you don’t see any big stink being raised over this ruling is because many Americans see through the lies of the organizations that oppose equality for Gays. I’d argue that brown is the new pink for those on the angry right, but I digress.

      Gays have had marriage equality in Iowa for some time now. How has this impacted straight marriages in Iowa (Massachusetts by the way – the first state to have marriage equality – has the LOWEST divorce rate in the nation)? Is there any consensus that Gay parents are worse than straight parents (I’m sure you could find something from Scott Lively or Pat Robertson – but the real answer is no)? What the anti-Gays are left with are just two arguments. 1) My religion requires me to use the law to force others to live by my religious laws and to punish those who don’t comply (Before you argue against this, please have Mr. Vanden Plaats describe his public opposition to sodomy laws prior to Lawrence v. Texas or his public support of the ruling). or 2) I just don’t like Gay people (advocating life long celibacy for people who don’t want it is NOT loving the sinner hating the sin; advocating that a Gay man marry a straight woman is not fair to either the Gay man nor the straight woman).

      And then you get the organizations and ‘experts’ opposed to Gay equality. Virtually all appear to support discrimination against Gays in employment and pay, work for Universities that do not allow openly Gay professors or in some cases students, have been censured by their respective professional organizations, and engage in a whole host of discrimination advocacy unrelated to opposition of marriage equality (which does show intent).

      And then you get the risible argument that since Gays are supposedly more promiscuous than straights, Gay monogamy (marriage) should be illegal.

      And then you get the ‘indocrination of our kids argument’. From many of the same groups and organizations that support the Texas Board of “Education”‘s imposition of mandated idolotry of Phyllis Schlafly and abuse of science for purely political purposes.

      In short, without unproven arguments or simple appeals to make religious rules with no basis in science the law affecting people outside of that particular faith, I don’t see their argument. And I’m not alone. Perhaps someone can help me see the anti-Gay argument without going to some right wing group that supported throwing Gay people in jail simply for being Gay (didn’t oppose sodomy laws) or a religous group. Or George Rekers.

  3. A couple of thoughts.

    First, the California Supreme Court decision only dealt with whether Proposition 8 comported with the California State constitution. The issue in the case was whether the process used to pass Prop 8 was appropriate under the state constitution. The California Supreme Court made no ruling about the content of the amendment and the federal constitutional standards were not in play. Attempting to use the California Supreme Court decision to show Judge Walker made a biased or mistaken decision is somewhat specious reasoning. The two cases dealt with completely different issues (California’s process for passing a state constitutional amdendment versus equal protection and fundamental right protections granted by the federal constitution).

    Second, it is important to remember that the term fact has a different meaning in the legal context versus everyday use. Every case has questions of law and questions of fact. Questions of law are determined by a judge while questions of fact are determined by the finder of fact. In a jury trial the jury is the finder of fact, but in a bench trial, such as Perry v. Schwarzanneger, the judge is the finder of fact. Questions of fact are determined only using the evidence presented at trial and essentially amount to a determination as to what the evidence proves is occuring in a case. Questions of law amount to a question of how the law deals with specific findings of fact. For instance, I worked on a fictional case in which my client suffered a stroke after being denied heart medication by a state run nursing home. The question of fact would be whether m client actually had a stroke. The question of law in the case was whether a stroke constituted a sufficiently serious harm to support the type of law suit my client had filed. Typically in a jury context the jury instructions show the intersection of these two types of questions. A judge will instruct a jury that if they found X happened then they must find a defendant guilty.

    In Perry v. Schwarzenneger one of the main issues influencing the finding of facts was that the proponents of Prop 8 only called two witnesses (ond only one of them was an expert witness) the opponents called 9 expert witnesses and an additional 7 witnesses. Because findings of fact are based on the evidence submitted at trial, I think it becomes much clearer why the factual determination went the way it did. The proponents for whatever reason did not call witnesses to rebut the opponents experts and in the face of 9 experts testifying in favor of the opponents case and one expert testifying against (and making admissions which hurt the proponents case) there probably was very little evidentiary basis to find facts which would help the proponents.

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