Prop 8: The Final Round?

The 9th Circuit Court of Appeals, a darling among those of us who enjoy the Constitution, has overturned California’s horrible Proposition 8. This means that, in theory, gay marriages are on again in the state. Realistically, they’ll probably be on hold while an appeal is filed with the Supreme Court. Jeffery Toobin, legal analyst for CNN, expects that, given the narrow wording of the ruling, the court probably won’t take the case. If they don’t, that’s fine. But I do look forward to the day they rule that states don’t have to allow gay marriage, but do have to recognize any marriages legally performed in other states.


Prop 8: The Bullshit Continues

So now the supporters of California’s Proposition 8 (it overturned gay marriage), are complaining that the ruling that overturned it last year should be thrown out because the judge who made the ruling, Vaughn Walker, is gay. They are treating this as though it is something he concealed (though I could swear I knew about it last year when the ruling is made, but I can’t find any proof of it), and that he should have recused himself since he had a vested interest in the outcome of the case.

Well, ok, let’s think about this for a moment. On the surface they appear to have a legitimate complaint. He is gay and in a relationship, the case is about gay relationships, therefore he shouldn’t have been involved. Now I don’t agree with this, but that’s fine. Let’s pretend this is a valid point. So let’s assume then that the judge who would have taken up the case instead was a married straight judge.

But the problem is that wouldn’t work either. The anti-gay marriage people like to talk about how gay marriage is a “threat” to straight marriage. Therefore a straight person wouldn’t be allowed to preside over the case either, right? I mean, they’d obviously have a vested interest, too, perhaps even more so. After all, if gay marriage is a threat to straight marriage, then a married straight judge could find their marriage falling apart if gay marriage were allowed. Clearly they’d have an interest and so couldn’t be allowed to preside over the case. I’m sure the Prop 8 supporters would agree with that position, right? Right?

The real problem here is that we can’t always expect judges to step aside just because they might have a personal interest in the outcome. There’s some cases where clearly we should expect them to, like if it’s a judge who owns 20% of a company that’s appearing as a defendant in her court, or if one of the people in a case is a friend or family member of the judge. But something like sexual orientation? No. That’s like saying no black judges can preside over a civil rights case. Or that no female judges can preside over a sex discrimination case. Or that religious judges should be barred from any case where religion is an issue.

Actually that last one is kind of tempting…

But as you can see this is a very slippery slope. I’m sure the courts will throw out this complaint because they will be loathe to allow a precedent like this, and well they should be. This is not something that had a bearing on the case, and we really don’t want it to affect future court cases down the road.

Strange Bedfellows

Following a recent court ruling that overturned the hideous Proposition 8, California Governor Arnold Schwarzenegger and Attorney General Jerry Brown are petitioning the courts to allow marriages to resume immediately. This is required since the presiding judge in the case put a hold on his own ruling.

Initially I thought this was a reasonable course of action on the judge’s part. Clearly he was thinking about the possibility of his ruling being overturned and didn’t wanna deal with a whole new set of people who get married and then have marriage made illegal. That’s what happened when Prop 8 was first enforced back a couple years ago and it created all sorts of messy situations.

But then I read this quote from the legal brief:

“The Administration believes the public interest is best served by permitting the Court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” read the brief from Schwarzenegger. “Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect.”

You know, it’s a good point. We don’t need to wait. Why wait? Sure, there may be problems down the line, but those can be sorted then. What’s the line? “Justice delayed is justice denied?” Let’s stop denying justice in California.

A Victory in California

Image from

Damn that 14th Amendment! Republicans must really hate it these days. Not only does it enable anyone born in the USA to be considered a citizen but it was also cited in a court ruling that overturned California’s Prop 8, the hideous little thing that illegalized gay marriage in the state.

This was a great ruling, and well-reasoned by the judge (a George H W Bush appointee, btw), who held that making gay marriage illegal because you hate t3h gehys is not just not allowed. He nicely shot down every single argument in favor of the proposition and made it clear that equality is for everyone, not just straight couples.

Now the case is bound for the Supreme Court where I predict one of two rulings: either they’ll overturn all gay marriage bans on the basis of the 14th Amendment and make it clear that gay marriage is equal to straight, requiring all states and the federal government to recognize it, or they’ll make a much more narrow ruling that holds that gay marriage doesn’t have to be legal in every state, but that all states and the federal government must recognize any legal marriage performed in the country. I think the second ruling is more likely, but I’ll hope for the first.

Meantime, here’s a list of people who can get married in all 50 states, DC and the territories and have their marriages recognized without question as long as they are straight:

Blacks and whites
The insane
Convicted felons
Sex offenders
The mentally retarded
Second cousins (first cousins in some place)
Older/younger couples (ie: A man who is 80 marrying some 30yo woman)

They can all get married everywhere, but not the gays. Something seems wrong with that.

You Go, Ted!

I’ve never been a great fan of Ted Olson. He was Solicitor General during the early Bush years and one of the people most instrumental in the Bush v Gore ruling that put his former boss into the White House. On the plus side, those two things alone put him rather squarely in the conservative camp in a way few other things could.

It’s rather notable, therefore, that Olson is now working hard to repeal Proposition 8, the abominable voter initiative that removed equal rights for about 10% of California’s population. He’s leading the charge in the courts to overturn this horrible bit of discrimination and bring equality to all the people of this country, not just the straight ones.

He’s defending his position in the latest issue of Newsweek. Here’s some choice quotes.

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.


The explanation [against gay marriage] mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors’ prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite “tradition” as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.

The second argument I often hear is that traditional marriage furthers the state’s interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?

This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What’s more, it is pernicious to think marriage should be limited to heterosexuals because of the state’s desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.

Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.


California’s Proposition 8 is particularly vulnerable to constitutional challenge, because that state has now enacted a crazy-quilt of marriage regulation that makes no sense to anyone. California recognizes marriage between men and women, including persons on death row, child abusers, and wife beaters. At the same time, California prohibits marriage by loving, caring, stable partners of the same sex, but tries to make up for it by giving them the alternative of “domestic partnerships” with virtually all of the rights of married persons except the official, state-approved status of marriage. Finally, California recognizes 18,000 same-sex marriages that took place in the months between the state Supreme Court’s ruling that upheld gay-marriage rights and the decision of California’s citizens to withdraw those rights by enacting Proposition 8.

So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand.

Incredibly well-put. If only more conservatives held such a position life in this country might be quite a bit better for everyone.

I can’t say as though I have any real desire to get married myself, but I should have the option of doing so if that’s what I want to do. Olson is right; the current situation in California cannot stand. It also cannot stand anywhere else where people claim to cherish equality.

Two Important Legal Issues

It’s been a big day today in the realm of legaliness.

First, Proposition 8, California’s anti-equality law, was upheld by the courts. They did say that those already married are allowed to stay married, which is the only sensible outcome. That part at least is good, but the ruling itself is… well, probably correct within the narrow bounds of the court, but it does set up a troubling precedent where the majority is allowed, though the initiative process, to remove rights granted to the minority. That’s a bad thing, to be sure.

Meantime the other great legal news of the day is President Obama picking Sonia Sotomayor to be Justice Souter’s replacement on the Supreme Court. Unless you’ve been living in a box, you’ve doubtless heard her name already, since she’s a: a woman and b: hispanic, and therefore c: a Historic Choice.

You know, I really look forward to the day we can have the first person from Minority Group X to do Historical Thing Y, and the media doesn’t feel the need to comment on it. That’s a side-issue, however. I haven’t any real strong feelings one way or another on her nomination.

So there we are. Two major legal stories in the news today.

To Fight, or Not to Fight?

Andrew Sullivan, my favorite token conservative blogger, wrote up an article yesterday on the issue of taking the fight against Proposition 8 to the courts. He says:

My own view is that it should stand, and the court should decline to reverse it. We lost. They won in a fair fight.

I find that I cannot agree with this. Yes, we lost in a fair fight… maybe. The thing is there’s a chance that Proposition 8 might not be able to be enforced under California law. Apparently something that strips people of their civil rights in that state might require a revision to the constitution, which is different from an amendment.

This was a hateful, spiteful little proposition and if it’s not valid under California law, great! I think we need to fight back against it. I can understand people being leery of, say, kicking over a hornet’s nest and really pissing off the right wing on this issue, but there isn’t too much else they can do to us. As someone else points out in a dissenting view on Sullivan’s blog, this might have a short-term negative effect on the struggle for equality, but a long-term benefit. Plus I feel we’d be fools to not use every weapon in our arsenal.

So fight, by all means! But recognize that a: this is a long shot, and b: we have to keep fighting in every state until we have full equality around the country!