Eugene Robinson: The Judge Who Slew Prop. 8

[babylonsister]

http://www.truthdig.com/report/item/the_judge_who_slew_prop_8_20100805/

The Judge Who Slew Prop. 8
Posted on Aug 5, 2010
By Eugene Robinson


The 14th Amendment is a mighty sword, and U.S. District Judge Vaughn Walker used it Wednesday to flay and shred all the specious arguments—and I mean all of them—that are used to deny full marriage rights to gay and lesbian Americans. Bigotry has suffered a grievous blow.

Walker found that California’s Proposition 8, which sought to ban gay marriage in the state, violated not one but two of the amendment’s clauses—those guaranteeing due process, and equal protection under the law. By deciding the case on constitutional grounds, and by crafting such a detailed and comprehensive ruling, Walker all but guaranteed that the issue will eventually reach the Supreme Court.

It is not irrational for proponents of gay marriage to worry how the high court will finally rule, given its recent record of conservative activism. But Walker’s ruling will not be so easy to assail. At trial, the losing side presented a shockingly weak case. By contrast, the plaintiffs’ legal team—led by two superlawyers from opposite ends of the political spectrum, conservative Ted Olson and liberal David Boies—offered witnesses and arguments that covered every conceivable base.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker concluded. “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.”

That’s the kind of language that qualifies as “sweeping.”


snip//

One decision by one federal judge does not settle the controversy over gay marriage. But Walker’s 136-page ruling lays down a formidable marker because it changes the terms of the debate. He frames gay marriage as a question involving the most basic, cherished rights that the Constitution guarantees to all Americans. In doing so, he raises the stakes sky-high: Are gays and lesbians full citizens of this country, or are they something less?

Walker stepped up to the plate and swung for the fences. He hit a home run.

[Kind of Blue]

1. Praise be that he was able to change

the terms of the debate. I was just listening to the local news and one woman says that she needs protection of her beliefs and it's going to be Sodom and Gomorah up in here. Really? Sodom and Gomorah? It's so disheartening.
I guess when the law passes through the SC, she and others will be forced to evolve.

KnR! Thanks for posting.

[Exilednight]

2. I don't think the SC is a guarantee ........

I am not even sure it will make it to the SC. It will be appealed to the high court, but I am almost willing to lay even money that they will refuse to hear it.

And, even if they do hear it, I would give it about a one in three chance that they will strike down any barriers. This court is highly conservative on social issues. Justice Kennedy, being the swing vote, is going to make all the difference in the world.

The one thing I have learned about Roberts court is that they do whatever the hell they want to do. Legal precedent be damned.

[Doctor_J]

3. It will make it to the SCOTUS, and Walker's work will be rendered for naught

This is the most reactionary and activist court in history, and they will come through mightily for the fascists they work for. They will rule, not unexpectedly, that corporations have more rights than people.

[dccrossman]

4. I can understand the cynicism, but I disagree with it, in this case

Maddow's short analysis of the ruling, in particular, showed how Walker seemed to go to lengths to use Kennedy's own past language. It'll be hard for Kennedy to deny his past self. Roberts, Scalia, Scalia's pet (Thomas) will almost certainly be for Prop 8 and make up some absurdity about the will of the people, but I actually doubt that Alito will. Even if he does, Sotomayor, Ginsberg, and Kagan are probably safe votes on this. Kennedy, as usual, would be the swing.

The real problem for them, is that if they start down that will of the people road, then they are essentially endorsing mob rule, and I think that the ladies at least will understand that and be able to express it. Part of the point of most of the amendments to the Constitution is to protect the rights of minority populations.

Maybe we'll get lucky and both Kennedy and Scalia, who are 74, will get around to retiring. Course Ginsberg is 77... Once Scalia retires, I wonder if Thomas will ever speak again.

SCOTUS Short Biographies: http://www.supremecourt.gov/about/biographies.aspx
Kagan isn't up there. Yet.

[boppers]

14. Maybe they'll rule that corporations can marry?

Then we can self-incorporate to get marriage licenses?

[66 dmhlt]

5. If the 9th Circuit narrows the Ruling ...

As it may very well do, then I'd agree that there's a decent chance SCOTUS would not grant Cert

[Exilednight]

8. If the 9th overturns the decision, then the SCOTUS will not hear this case ...............

I think this case would be hard pressed to get the rule of 4. And here is why: If the 9th overturns this ruling, the conservative justices will call it a victory and ignore it. On the other side, the liberal justices would probably decide that it's not worth risking with such a conservative make-up of the court. They would probably let it ride in the states that fall under the 9th and hold out until they believe they can get a more favorable ruling.

There's a lot of unseen politics in the Supreme Court, and one of them is the fact that many cases don't make it because some justices don't like the odds of winning or losing.

[quiller4]

12. Given the current maku-up of the 9th circuit and the careful crafting

of the ruling, I don't think the 9th will narrow or overturn.

[gkhouston]

7. She needs protection of her beliefs? Doesn't she believe in an omnipotent being?

If so, what sort of Earthly protection is she scratching around for? Couldn't she just stick her fingers in her ears and hum real loud?

[Kind of Blue]

9. Well, no, because the poor unselfish

dear :sarcasm: is not concerned for herself, but worries for the young people who have no choice but to be a witness to gay displays of affection.

[saltpoint]

6. It was a big week for common decency and common

sense out in California.

Not such a good week for the fundie nutbags and crazies.

Recommended.

[Kind of Blue]

10. I was surprised by that too. I think they are really in shock

by the audacity of Walker using irrational to describe their arguments. The preachers I heard here in SoCali seemed to take pains in keeping calm, to not look and sound crazy. And every one of them took comfort in the ordeal not being over. As one said, "The fat lady hasn't sung yet."

[saltpoint]

11. Hi, Kind of Blue. They're technically right that the

fat lady hasn't sung yet but she's backstage, looking somewhat pale and under-nourished these days, and rumored to be badly off-pitch.

[Kind of Blue]

13. ...

:rofl: wasn't expecting that visual!