Wednesday, August 04, 2010

The Prop 8 case is far from over, but Governor Arnold gets it right


It was a happy day for democratic values.

"For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity."
-- California Gov. Arnold Schwarzenegger, in a statement
following the release of Judge Vaughn Walker's ruling

by Ken

My e-mailbox is stuffed with statements issued in the wake of District Judge Vaughn Walker's ruling declaring California's same-sex-marriage ban unconstitutional, saying pretty much the same thing. I have to say, I'm kind of partial to Governor Schwarzenegger's statement. (The governor, you'll recall, refused to defend the proposition, as did California AG Jerry Brown, in the legal challenge, lawyered famously by political odd couple David Boies and Ted Olson.) Here's the governor's full statement:
Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision.

For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.

Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people.

In a way, hardly anything substantive happened today with the issuance, as promised yesterday, of Judge Walker's ruling. As of now, people of the same sex still can't get married in California, and it's possible that that may remain true while the case works its way up the chain of appeals. There's certainly no assurance that the ruling will withstand that rocky ride.

We already knew that whichever way the ruling went, an appeal to the Ninth Circuit Court of Appeals, which covers California, was inevitable, and it was also all but certain that even if Prop 8 was overturned, it wouldn't go into effect immediately. Practically speaking, time had to be allowed for some sort of consideration of appeal -- if not by Judge Walker himself, then by the Circuit Court. And indeed, after the ruling was released, it was quickly discovered that Judge Walker had stayed entry of his judgment until the pro-Prop 8 Bigots 'n' Haters have an opportunity to make their case for a stay, which he has ordered them to do by Friday.

Even if Judge Walker rules against the stay application, presumably the bigots can still go to the Ninth Circuit for a stay pending appeal. And even once the Ninth Circuit has its say, whenever that is (we're going to hear much chatter about the procedures for expedited hearing), assuming it goes the same way as the District Court ruling, we know for sure that the Prop 8 Bigots 'n' Haters will appeal to the U.S. Supreme Court -- and just remember who's sitting on that court, even assuming Justice Kagan will have taken her place by then. Don't forget that the extreme right-wing savages of the Roberts Court loathe the liberal Ninth Circuit. They probably don't even think of it as a court, but as more of a socialist conspiracy.


Of course none of us knew how Judge Walker was going to rule, but he gave plenty of indication during the trial -- not, as the compulsively lying liars of the hate-mongering Right would have it, because he was prejudiced, but because, unlike the lying liars, he actually paid attention to the cases being presented. Now that we have his ruling, the only real surprise is the unequivocal sweep of it.

I certainly haven't read the full 138-page opinion, but I don't think we're misrepresenting it if we jump to the climax:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.


Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.


Again, we really shouldn't be surprised. The Prop 8 Bigots 'n' Haters will try to deny it, of course, and can be counted on to try to make a federal case of the judge's own apparent sexual orientation, but as anyone who paid even the slightest attention to the trial knows, Judge Walker conducted it as scrupulously as it could have been conducted, and did everything in his judicial power to ensure that the Prop 8 Bigots 'n' Haters produced some kind of defense for the legal abomination they engineered. However, it was obvious from the prosecution's case, and perhaps even more from the defense's pathetic noncase, that their position was utterly indefensible.

Of course it was important to the Prop 8 Bigots 'n' Haters that as few people as possible be able to see for themselves what worthless vermin they are, and how utterly devoid of even the slightest shred of legal defense, and so it was crucial that they do everything possible to prevent the televising of the proceedings for all to see -- and even to prevent Judge Walker's compromise suggestion of recording for delayed viewing, perhaps online. In a preview of the final battle that may yet play out on this issue, the Supreme Court was all too cooperative. There was no good legal reason for imposing that blackout on the trial, but of course good legal reasoning is anathema to judges of the Roberts Court's persuasion, who believe only in their primitive, savage ideology, backed by whatever bogus legal reasoning the job demands.

Now, for the Prop 8 Bigots 'n' Haters to have any hope of prevailing in the court of public opinion, it's important that people not be able to see for themselves that there was nothing to the case for Prop 8 once all that Mormon cash no longer mattered, nor the endless cascades of hate-mongering filth poured into the minds of ignorant and terrified voters by clergymen who make a mockery of the very concept of religion.


You don't have to have that long a memory to recall a time when it couldn't have been imagined that such a ruling could be delivered by a U.S. District Court judge (a Republican appointee, no less).

Of course the Bigots 'n' Haters will use this decision as a rallying point for the cause of bigotry and hatred. They have become increasingly strident and venomous as they've sensed that history is passing them by. Americans increasingly just don't care about their fellow Americans' affectional preferences. This has been almost inevitable as more and more Americans have come to know -- or rather be aware that they know -- LGBT people, who in reality are no different from anybody else. But when you threaten such people's reason for existing, they can be dangerous.

Because, after all, they know they're losing.


Check out Chris Geidner's MetroWeekly account.

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At 6:13 PM, Anonymous Linda said...

Proposition 8 Unconstitutional? You mean to tell me that Leviticus, was just the original fundamental Republican (emphasis on mental) who had not made it out of the closet (kinda like Ted Haggard)? Lets face it was not in the Ten Commandments or even addressed by Jesus the son of God, so are we surprised with this ruling, its about time.


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