District Court overturns Prop 8, sloppily kisses gay marriage by mincingbeast

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District Court overturns Prop 8, sloppily kisses gay marriage

POSTED BY: MINCINGBEAST
UPDATED: Monday, August 9, 2010 05:39
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Wednesday, August 4, 2010 11:16 AM

Prop 8 has been over turned. Well, not really, not yet.

Judge Vaughn's decision surprised nobody--it was a formality. Moreover, no sane person expects the 9th Circuit to disturb the decision. I've yet to read the damned thing in its entirety, but mention of "rational basis" is surprising, in that it is a forgiving standard of review.

Bear in mind that a District court decision does not border on finality, and that this issue will be litigated all the way to the Supreme Court. This merely controls the posture for round 2.

In any event, regardless of this non-outcome, I am one step closer to my plural homo marriage to Kaneman and Wulfy. Prepare for sodomy; it'll be romantic.

http://latimesblogs.latimes.com/lanow/2010/08/prop8-gay-marriage.html

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Wednesday, August 4, 2010 11:40 AM

GEEZER

Keep the Shiny side up

This'll be interesting if it makes it to and through the SCOTUS. If the judge's ruling is confirmed by the Supremes, this'd be precedent for someone to challange the Federal "Defense of Marriage Act", which denies thouseand of legal Federal perks of marriage to anything but a heterosexual couple.

"Keep the Shiny side up"

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Wednesday, August 4, 2010 12:12 PM

WHOZIT

And it happened on Barrys B Day! Happy B Day Barry, now you can go to L.A. and marry your boy friend Keith Olbermann!

Those arn't boobs, they're lies! - Stewie Griffin

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Wednesday, August 4, 2010 12:28 PM

MINCINGBEAST

Quote:
Originally posted by Geezer:
This'll be interesting if it makes it to and through the SCOTUS. If the judge's ruling is confirmed by the Supremes, this'd be precedent for someone to challange the Federal "Defense of Marriage Act", which denies thouseand of legal Federal perks of marriage to anything but a heterosexual couple.

"Keep the Shiny side up"

Well, DOMA is a mess, but with the Supremacy Clause it would control and pre-empt state laws. That Prop 8 is unconstitutional doesn't necessarily say much about DOMA--and I imagine there must be extant challenges.

This promises to be very a interesting and awkward bit of litigation. Everyone, pro and con, is bound to look like a deranged asshole before it is all said and done.

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Wednesday, August 4, 2010 12:36 PM

FEARTHEBUNNYMAN

SCOTUS leans to the right at the moment so I wonder if this is good for the pro-gay marriage side. That said, did you notice how much focus Walker gave to the adoption thing? wonder if that was on purpose, seeing as how Robert's children are adopted.

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Wednesday, August 4, 2010 12:45 PM

MINCINGBEAST

Quote:
Originally posted by fearthebunnyman:
SCOTUS leans to the right at the moment so I wonder if this is good for the pro-gay marriage side. That said, did you notice how much focus Walker gave to the adoption thing? wonder if that was on purpose, seeing as how Robert's children are adopted.

Good catch. Going through the decision now. District judges write their decisions with an eye on the higher courts, so its plausible that Vaughn's decision was written with an impending 5-4 split in mind.

I emotionally agree with Vaughn, but the decision seems to be a bit of moral preening. Of course, that's what Federal judges do best, aside from congratulate themselves for being so wise and so forth.

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Wednesday, August 4, 2010 12:54 PM

BYTEMITE

XD

Oh, you always make me laugh. :) But, MB, you've recently been fledged, aren't you worried about law firms that might prospectively hire you reading what you've written online?

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Wednesday, August 4, 2010 1:27 PM

MINCINGBEAST

Uhm, no. I'm proud of my work online, which is why my resume includes the line "Posts fanfic and drivel as Mincingbeast on FFF." I put that over my GPA. It'll land my a job someday!

Either that, or I just assume that my identity is secret. Like Batman. Or no identity. Like The Joker. I don't want to worK at a firm, and I have a job, anyway.

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Wednesday, August 4, 2010 1:35 PM

BYTEMITE

Good that you don't have to worry about it then. Are you clerking for someone?

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Wednesday, August 4, 2010 3:20 PM

FEARTHEBUNNYMAN

Well I finally finished reading the whole thing. Granted I'm not a student of law (just logic, when the mood strikes ;)) but I didn't see anything in his ruling that seemed unsound. Seems from my uneducated perspective that he has laid a solid foundation for when this does reach the SCOTUS.

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Wednesday, August 4, 2010 3:38 PM

NIKI2

Gettin' old, but still a hippie at heart...

Well damn! Been gone all day, just got home and heard the news, and actually came back here to go Huzzah!!! And I find I'm late. Oh, well, doesn't take the joy out of it.

From what I've heard/read, it's a pretty solid decision, well thought out and sound. We'll have to wait and see.

Gawd, I wish they'd get rid of DOMA! That would be truly great.

All you homophobes out there can yell and scream, but as far as I'm concerned, the mentality isn't far from the day when interracial marriage was illegal. It's about individual rights, and society evolving. Rock on!

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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Wednesday, August 4, 2010 5:17 PM

MINCINGBEAST

Quote:
Originally posted by Bytemite:
Good that you don't have to worry about it then. Are you clerking for someone?

Absolutely not. I spent a semester as an extern for a judge in the Eastern District of California, and hated it. I can't feign balance; I prize my POV. I am not clerk material--they're all overly earnest types anyway.

As far as soundness of the decision, I agree with it, and that leaves me in a poor position to anal-yze it. I look forward to seeing what the Bad Guys have to say about it.

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Wednesday, August 4, 2010 5:32 PM

KWICKO

"We'll know our disinformation program is complete when everything the American public believes is false." -- William Casey, Reagan's presidential campaign manager & CIA Director (from first staff meeting in 1981)

Quote:
Originally posted by mincingbeast:

I look forward to seeing what the Bad Guys have to say about it.

You mean other than "But it will destroy the institution of marriage!!"?

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Thursday, August 5, 2010 6:20 AM

NIKI2

Gettin' old, but still a hippie at heart...

Oh, they can come up with far more colorful language than that...probably liberally spiced with obscenities and homophobia (oops, I shouldn't have used that word, should I?

).

Yes, I'm biased too so can't give an objective opinion on it; I just think it's long overdue, was pissed that those damned Mormons, right-wingers, etc., conned the Hispanics into voting for Prop. 8 and caused all this delay and hardship for those whodidn't marry before it. I also found it totally absurd that those who DID marry when it was "legal" were still married legally while others couldn't be. Talk about idiocy! NOT that I'd want their marriages to be illigitimized, but think of the hassles it caused them, their employers, etc. Just stupid.

I know its on its way to appeal; we'll have to see what happens. I take hope in the fact that segregation, interracial marriage and so many other things weren't backed by "the majority of Americans" but were accepted (for the most part!) eventually. SOMETIMES (albeit rarely), government is ahead of the people.

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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Thursday, August 5, 2010 9:03 AM

MINCINGBEAST

This is a vulnerable decision.

There are three standards of constitutional review that courts use to justify their ideological, result driven decisions: rational basis, intermediate scrutiny, and strict scrutiny. Without going too deep into legalese, strict scrutiny kills most laws, and is applied when a suspect class like race is implicated. Rational basis is impotent, and upholds most laws. The standard of review for sexual orientation is unclear; most suspected intermediate scrutiny would be applied. This decision elects to apply rational basis review on the equal protection claim, and invalidates the law anyway. So sexual orientation is not a suspect class...but prop 8 can't survive RB. A provocative position, and one the 9th Circuit will certainly approve of...but maybe not 5 members of the SCOTUS.

Anyway, that's the Equal Protection angle at least.

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Thursday, August 5, 2010 10:31 AM

KWICKO

Yes, but the opponents of gay marriage were also claiming that proponents of it were advocating for a "special" right or consideration not given to others, which is clearly untrue. Others DO have the right to marry; hence, gays were seeking to be INCLUDED in the rights that others already have, not to have any "special" rights carved out for themselves.

As it was written, Prop 8 would actually carve out special rights and considerations for OPPOSITE-SEX marriage. Overturning it is actually taking a MORE inclusive view of the Constitution, not a narrow and restrictive view.

AURaptor's Greatest Hits:

Friday, May 28, 2010 - 20:32 To AnthonyT:
Go fuck yourself.
On this matter, make no mistake. I want you to go fuck yourself long and hard, as well as anyone who agrees with you. I got no use for you.

Friday, May 28, 2010 - 18:26 To President Obama:
Mr. President, you're a god damn, mother fucking liar.
Fuck you, you cock sucking community activist piece of shit.
... go fuck yourself, Mr. President.

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Friday, August 6, 2010 6:48 AM

MINCINGBEAST

The legal reasoning is largely irrelevant, and easy for a higher court to ignore; the factual background laid out by Judge Walker is much more important, and due great deference from a higher court. Some commentators are suggesting that the opinion was drafted with Kennedy in mind--apparently it parrots the language and reasoning of Kennedy decisions I have not read.

Reading the cursed thing, I am struck by how well the anti-8 side litigated the case, and how poorly the pro-8 side did (only two witnesses, both of whom were awful, and almost no facts offered in support of their position).

The bad guys are howling that 1) the decision was contrary to the will of the people and 2) the Judge, who has an acute case of gayism, is biased. I hereby dub him Judge Fudge, marriage slayer, and I admire him. Judge Fudge was appointed by Regan, after all, and is actually quite conservative.

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Friday, August 6, 2010 6:48 AM

MINCINGBEAST

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Friday, August 6, 2010 7:54 AM

NIKI2

Gettin' old, but still a hippie at heart...

Mincing, you do some great concise review ing of legalities, it's really great to read. You're probably right that it won't survive SCOTUS, which is a shame because if it doesn't, it really IS "activist". There's nothing in the Constitiution about marriage being a man/a woman that I'm aware of, so ruling against sme-sex marriage seems unconstitutional to me.

The argument that it goes against the will of the people seems irrelevant to me. Interracial marriage went against the will of the people at the time, as I mentioned, and I'm sure many other things have gone against the "majority" will of the people. But when they're right, they're right, and where they're A right, nobody should be excluded from that right.

I’d like to understand the difference between “intermediate scrutiny” and “strict scrutiny”, and why the latter kills most laws, and is applied when a suspect class like race is implicated. That confuses me. How inexplicably sad that “rational basis is impotent”! Shouldn’t rational basis be one of the most important things to be considered?

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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Friday, August 6, 2010 10:51 AM

MINCINGBEAST

My new gimmick is to double post everything, for emphasis. Imagine the first post in the voice of George Clooney, the second in Don Knotts'.

Nikki, I agree that the "will of the people" argument does not persuade. If a majority of the people voted to make sodomy mandatory, for example, or white slavery legal, I doubt conservatives would be overly concerned with the will of the people.

To invalidate a law on rational basis review, the plaintiff must demonstrate that there is no rational relation between the subject law and a conceivable, legitimate government purpose. The burden is the plaintiff, and the standard deferential to the government. Hence, RB is generally the kiss of death; its generally impotent, over turns nothing. RB applies in Equal Protection cases where a suspect class is not implicated. That Prop 8 died at the hands of RB is compelling--it means the Judge could find no rational relationship twixt the gay marriage ban and its stated objectives. Hurrah, I say.

Both intermediate and strict scrutiny place the burden on the government. IS requires the law to bear a substantial relation to an important state objective. Gender, for example, may be an example of a class that raises IS. SS is similar, but narrower--my Con law professor liked to frame it as a matter of no less actual, important government purpose and narrow tailoring. Think of it as a a law that requires a bullesye to be upheld. Hence, SS is like life--nothing survives it.

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Friday, August 6, 2010 10:57 AM

NIKI2

Gettin' old, but still a hippie at heart...

Ah. Well, I understood the first part, but not the second. Legalities are too complex for some of us lesser mortals. I'll take your word for it; for me, it's a simple matter of society evolving, just as it did about interracial marriage and other things. It's simply not right to deny people the right to marry based on sexuality. I MIGHT feel differently if the "sanctity of marriage" actually meant something. Or I might not. I guess that makes me simple.

I know the law has to be much more complex in its scrutiny, I'm just teasing.

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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Friday, August 6, 2010 11:14 AM

MINCINGBEAST

My hatred of con law, magnified by my natural incoherence.

Was trying to make the point that the Equal Protection part of the claim failed on a deferential standard, without recourse to fart jokes or legalese. But as in all things, I failed. I'm gonna practice, however, by explaining things I don't fully understand to my bunnies and teddy bear. Like human emotions, for example.

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Sunday, August 8, 2010 7:50 AM

NIKI2

Gettin' old, but still a hippie at heart...

Help me understand; could you expand on "defferential basis"? And what is "con law"?

And hay ho, when you can FULLY explain human emotions, DO clue us all in, wouldja?

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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Sunday, August 8, 2010 9:37 AM

MINCINGBEAST

Clarity is not my strong suit, Niki, but I shall try, because I like fail. A lot.

Deferential holds no special meaning in this context; it stands for the proposition that courts will go out of their way to avoid upsetting the determinations of another branch of government (or sometimes other court) if there are reasonable grounds to do so. The idea is that the other guy was in a better position to make the determination, and absent an abuse of discretion or clear error, it should not be revisited. Hence, if Rational Basis is applied, a court is expected to say "Our standard of review is lax and deferential; unless the reasoning behind your law was manifestly retarded, we will not invalidate it, because it is not our job to do so." So Walker essentially said to the Pro-8 "You are retarded, even if I give you the benefit of the doubt."

TLDR English translation: the starting point is that the law is valid.

Con law is short for "constitutional law", the fuzziest, least clear, most political area of the law.

Forgive my incoherent pedantry, but this is a subject that nearly makes me passionate.

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Monday, August 9, 2010 5:39 AM

NIKI2

Gettin' old, but still a hippie at heart...

Well, that was totally clear to ME. Now I understand, thank you. You don't give yourself enough credit; I've got a grasp of it now, thanx to you. It's always interesting to understand what went into a decision; usually us peons can't get any understanding of what went into it, just whether we agree with it or not for our OWN reasons.

p.s., believe me, I can understand why it makes you "nearly" passionate. I can't imagine knowing all you do about the law and then having to watch it being applied! Do lawyers have high suicide rates?

Hippie Operative Nikovich Nikita Nicovna Talibani,
Contracted Agent of Veritas Oilspillus, code name “Nike”,
signing off

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