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Justice vs Fear...and Justice, for this moment, prevails

Original post made by Caroline, Danville, on Aug 4, 2010

My faith in the American judicial system is, for this moment, restored. Equal rights for ALL is the foundation of our country, and I am particularly proud that today our country moved one step closer to that ideal. Please read Judge Walker's ruling on Proposition 8 for yourself. Here is just a little of what he wrote....

from the ruling on Proposition 8....
The Due Process Clause provides that no “State [shall]
deprive any person of life, liberty, or property, without due
process of law.” US Const Amend XIV, § 1. Due process protects
individuals against arbitrary governmental intrusion into life,
liberty or property. See Washington v Glucksberg, 521 US 702, 719-
720 (1997). When legislation burdens the exercise of a right
deemed to be fundamental, the government must show that the
intrusion withstands strict scrutiny...

The evidence shows that domestic partnerships do not
fulfill California’s due process obligation to plaintiffs for two
reasons. First, domestic partnerships are distinct from marriage
and do not provide the same social meaning as marriage. FF 53-54.

Second, domestic partnerships were created specifically so that
California could offer same-sex couples rights and benefits while
explicitly withholding marriage from same-sex couples. Id, Cal Fam
Code § 297 (Gov Davis 2001 signing statement: “In California, a
legal marriage is between a man and a woman. * * * This [domestic
partnership] legislation does nothing to contradict or undermine
the definition of a legal marriage.”).

The evidence at trial shows that domestic partnerships
exist solely to differentiate same-sex unions from marriages. FF
53-54. A domestic partnership is not a marriage; while domestic
partnerships offer same-sex couples almost all of the rights and
responsibilities associated with marriage, the evidence shows that
the withholding of the designation “marriage” significantly
disadvantages plaintiffs. FF 52-54. The record reflects that
marriage is a culturally superior status compared to a domestic
partnership. FF 52. California does not meet its due process
obligation to allow plaintiffs to marry by offering them a
substitute and inferior institution that denies marriage to same sex

Because plaintiffs seek to exercise their fundamental
right to marry, their claim is subject to strict scrutiny.
Zablocki, 434 US at 388. That the majority of California voters
supported Proposition 8 is irrelevant, as “fundamental rights may
not be submitted to [a] vote; they depend on the outcome of no
elections.” West Virginia State Board of Education v Barnette, 319

Under strict scrutiny, the state bears the
burden of producing evidence to show that Proposition 8 is narrowly
tailored to a compelling government interest. Carey v Population
Services International, 431 US 678, 686 (1977). Because the
government defendants declined to advance such arguments,
proponents seized the role of asserting the existence of a
compelling California interest in Proposition 8.
As explained in detail in the equal protection analysis,
Proposition 8 cannot withstand rational basis review. Still less
can Proposition 8 survive the strict scrutiny required by
plaintiffs’ due process claim. The minimal evidentiary
presentation made by proponents does not meet the heavy burden of
production necessary to show that Proposition 8 is narrowly
tailored to a compelling government interest. Proposition 8
cannot, therefore, withstand strict scrutiny. Moreover, proponents
do not assert that the availability of domestic partnerships
satisfies plaintiffs’ fundamental right to marry; proponents
stipulated that “[t]here is a significant symbolic disparity
between domestic partnership and marriage.” Doc #159-2 at 6.
Accordingly, Proposition 8 violates the Due Process Clause of the
Fourteenth Amendment.

Comments (31)

Posted by Mike
a resident of Alamo
on Aug 5, 2010 at 1:07 am

I feel the same way Caroline. It made my day.

Posted by Citizen Paine
a resident of Danville
on Aug 5, 2010 at 9:01 am

I agree -- and imagine how many days it might make for you if you are gay. This is a mighty big step in the direction of guaranteeing full civil rights/social participation to a group that deserves it as much as any other that has "traditionally" suffered discrimination at the hands of the majority.

Kudos to Walker -- and to Boies and Olson for boldly moving forward with this strategy. It echoes MLK's "Why We Can't Wait."

Posted by Realist
a resident of Danville
on Aug 6, 2010 at 10:28 am

A Sad Day in America when a radical minority judge can overthrow 10,000+ years of world culture and religious heritage (every religion in the world marries 1 man and 1 woman) to force feed culture change on the 'ignorant masses' who believe in traditional marriage.

The next step of the Progressive Activists like Judge Walker will be to force all US Churches to perform and recognize gay marriages.

If you've not studied the downfall of the Roman Empire, you should....America is the Modern Roman Empire and is on its way to oblivion.

Posted by Patricia
a resident of Danville
on Aug 6, 2010 at 10:56 am

Realist: Very sad you feel fear that gays are a "radical" minority bent to take over the world. Your FEAR is the only sad part. As for all "US churches to perform and recognize gay marriages" - Did we "force" the catholic church hire Women as priests? This ruling does not stop YOU from practicing your own religion- I can't believe that you would not want your own children and grand children to grow up in a society which discriminates against them in the name of "fear"-

Thank God for Judge Walker!

Posted by Cookie
a resident of Danville
on Aug 6, 2010 at 12:11 pm

I agree: It's a sad day! Walker is gay and should have recused himself. Also one judge should not have the authority or the power to change what the majority of Californians voted for; Prop 8! Marriage, according to the Bible is a union between a man and a woman, not two men or two women! Gays have rights and don't need to be married to attain those rights! This country was founded on God and He is why this country has become the great country and super power it is today. Let's not destroy that!

Posted by American
a resident of Danville
on Aug 6, 2010 at 12:38 pm

Whether you agree, or disagree, with Judge Walker's opinion, I would hope most Americans would be troubled by Attorney David Boies quote that he believes his side won in the trial court "because religion does not have a place in American legislation". I thought this decision was about alleged discrimination of sexual preference, and not about religion. If Mr. Boies is correct, than discrimination based on religion is now legally acceptable. What Mr. Boies, and others like him, forget, is that the state is not suppose to favor one religion over another, and ALSO not favor secularism and lack of religion over religion. If you believe religion has no place in legislation and no legal rights, than you are favoring non-religion over religion, and ignoring over 150 years of legal precedent. May God help the Mr. Boies of the world, and may God help America.

Posted by Citizen Paine
a resident of Danville
on Aug 6, 2010 at 1:19 pm

Dear Cookie: the Founding Fathers recognized that there are some social Rights that should never be left to the possible tyranny of the majority, and they enshrined those Rights in the Constitution's Bill of Rights. Among those rights are Equal Protection of the Law, and Due Process of Law. Thus, every bill -- whether passed by the legislature or pursuant to referendum -- must be consistent with those bedrock principles. Determining that consistency is a judicial function, and has been since Marbury v. Madison in the early days of the Republic.

All Judge Walker did was preside over the trial and sift the evidence to determine whether there was at least a "rational basis" in public policy for Prop 8. Following the precedent set by another case involving exclusion of gays that was decided by the US Supreme Court (Romer v. Evans), he concluded that there was not such a basis. He is clearly right on the law, and will certainly be upheld by the Appellate Circuit and the Supremes. The pro-Prop 8 side put on a pretty paltry showing, but it was the best they had.

BTW, also contrary to your post, the FFs clearly recognized the pernicious effects of religion on statecraft, and provided that government should neither promote nor discriminate against any particular religion.

Finally, please know that Judge Walker is an eminently accomplished jurist, across a broad spectrum of issues. Would you have Justice Thomas recuse himself from every case involving race bias, or all the male Supremes decline to decide reverse discrimination issues? Judge Walker is not only "gay," but he's also "male," "bearded," "white," "near-sighted," "shortish," "brilliant" and somewhat "portly." I guess he shouldn't decide anything to do with any of those characteristics, either?

Posted by Citizen Paine
a resident of Danville
on Aug 6, 2010 at 2:09 pm


Methinks you're confusing "religion" with "morality."

History amply demonstrates that the two are verry different.

Posted by Patricia
a resident of Danville
on Aug 6, 2010 at 2:20 pm

Web Link

I love the way Prop 8 supporters use the argument that it should be reinstated because over 50% of the people agree- How often are they willing to "revote"? Somehow I can't see them accepting it when it loses popular vote? (Which based on the above statistics it eventually will be!)

Because the vote was so "close"- who knows what the result would be given the chance to re-vote on the issue, even now!

Thank god for the youth of our country, let's just hope more of them vote next time!

Posted by C. R. Mudgeon
a resident of Danville
on Aug 6, 2010 at 2:29 pm

Well, the original poster's opinion is at least one view on the issue. Independent of whether you agree with gay marriage or not, the judge's logic in overturning a majority vote of the people is still highly debatable.

There are obviously all sorts of situations where laws impinge on an individual's rights of "life, liberty, and the pursuit of happiness". Just a few of the ones that are "personal relationship" related include age requirements for marriage, restrictions involving blood relatives, etc. And I would submit that opinions on gay marriage are just as subjective as are opinions in other areas, as well as being more divided.

It is also very unclear as to what jurisdiction the federal government has over the issue. Marriage is never mentioned in the US constitution. Not once. And since the constitution explictly grants rights to the states to govern anything not explicitly stated as a function of the federal government, there is a fairly strong argument to be made that the issue should have been decided when the CA Supreme Court let Prop 8 stand.

It will be interesting to see what happens as this ruling is appealed to the Federal 9th Circuit Court, and then to the US Supreme Court.

Posted by Be Realistic
a resident of Danville
on Aug 6, 2010 at 2:40 pm

1. Most of the judges who have ruled in favor of gay marriage have been nominated by Republican politicians. Perhaps we should stop allowing Republicans to nominate jurists as they seem to pick a lot of activist, liberal judges. Two Republican presidents gave us Judge Walker. Maybe, just maybe, conservative jurists recognize the proper role of limited government and have ruled accordingly.

2. Gays do need to be married to access many of the rights afforded to heterosexual couples. If Cookie has a spouse who croaks, Cookie can obtain social security benefits based on her spouse. Gay couples can't. Cookie can file a joint tax return. Gay couples can't. If Cookie's spouse adds her to his insurance policy, then they aren't hit with an additional tax like gay couples are. Cookie can inherit her spouse's property tax free. Gay couples can't. They are hit with the 50% death tax. If you're going to argue against marriage equality, it does help to, at least, make your argument factually correct.

3. What does a majority vote have to do with anything? We don't even elect our President based on majority voting and on a couple of occasions the man with the most votes did not win. Study the electoral college system. Additionally, I grew up in Selma, AL. You think a majority there would have voted to allow MLK to march across the bridge or to end discrimination against blacks? I remember when the Klan would stand at traffic lights holding out bags so that folks could make a donation to them. Please, join reality before spewing ridiculous ideas about majority voting and constitutional rights.

Posted by Be Realistic
a resident of Danville
on Aug 6, 2010 at 2:58 pm

Now a note for those who support gay marriage - Please, please get a clue. You are presuming the American public is way ahead of where they actually are. Prop 8 won because 687,000 voters changed their mind at the last moment and voted against marriage equality. 500,000 of those folks have children under the age of 18 living at home. So, why did they change their vote? They believed the propaganda about same sex marriage somehow giving their kids TEH GAY. You're trying to get marriage equality when a vast number of Americans are stuck in the Anita Bryant fear of what affect gay people have on children. If you want marriage equality then have an honest discussion with people. Let them know gay people are actually less likely to molest children than heterosexuals. Introduce them to straight kids with gay parents. I have two grown children whom my partner and I raised and both are most definitely heterosexuals. There's no doubt that our younger two are also quite heterosexual. Being around gay people does not mean you will catch TEH GAY. So, if you want marriage equality, then you need to back the bus up and work with the many folks who are painfully ignorant about gay people and kids.

(Hat tip to Wayne Besen)

Posted by Derek
a resident of Danville
on Aug 6, 2010 at 4:34 pm

My lord what a vile ruling by Judge... whatizname. Why, this cuts to the very core of my existence! It affects my wife and I in such a profoundly deep way that we must immediately dissolve our marriage, and first thing Monday it's off to medical experiments for the kids. How dare they let someone who is different from us have the same rights!

Posted by Citizen Paine
a resident of Danville
on Aug 7, 2010 at 8:14 am

Folks who believe that monogamous marriage has existed in static form across the spans of history and civilizations are looking at misty water-colors of the way we weren't, as a species.

There's very good evidence that marriage is an artifact of private property, not procreation -- and that it didn't exist in any meaningful form until the invention of agriculture (itself the greatest innovation or cruelest joke ever played on homosapiens, depending on your viewpoint).

That's a very recent phenomenon, in terms of evolutionary history. Of course, the e-word may be anathema to some readers, but there's a pretty convincing scientific narrative about such "human nature" in the new book "Sex at Dawn."

In other words, marriage has never been the natural state of human existence -- it has been a means to an end. Before agriculture, children were raised communally in forager tribes just about everywhere (as they are in those tribes that still exist), presumably because that gave them the best chance of survival in the conditions of the 2+ million years before Ag. Sex was non-exclusive, and served many purposes beyond procreation.

With farming came surplus, and private property, and the perceived need to protect same. Suddenly (in terms of evolutionary history), it was important to know "who's yer Daddy," and marriage began to develop in a (mostly vain) attempt to ensure paternity.

Because marriage suits culture, rather than being some immutable natural state, it should be adaptable to the needs of the culture as it, itself, evolves. With the advent of greater understanding and acceptance of diversity within the US and certainly the CA culture, it follows, for me, that its rights should extend to same sex couples, whose needs regarding the protection and descent of property are identical to those of us breeders. If your religion condemns it, then by all means don't participate -- it seems downright un-Christian, however, to deny it to others.

Posted by Sally N.
a resident of Danville
on Aug 7, 2010 at 9:57 am

This thread has restored my faith in the Danville Express forum. I know forums tend to bring out the fringe, but it gets tiresome seeing my community's opinions represented by knee-jerk claptrap. Nice to see some substance and depth in our discussions.

Posted by Diane
a resident of Danville
on Aug 7, 2010 at 12:55 pm

Sometimes I imagine myself in a state where same gender relationships are the "acceptable norm" and my love for my husband is somehow not as worthy, and therefore I am offered a "civil union" and told it is just the same as what everyone has. I then think about raising children that we love in this environment, where in addition there are people who interpret portions of their religious doctrine to further assert that their parent's love for each other is perverted or some sort of sin, and I feel incredibly lucky that I don't live in that state.

My sister does, however. In spite of being in a committed relationship with her partner of 23 years, somehow her love is not supported by many in this state. Oddly, my brother-in-law's 4 brief marriages are somehow okay.

So glad to see the majority of comments on this forum in favor of the overturn of this hateful proposition. Can't wait for the rest to finally wake up. My love for my husband is no more special than that of committed same gender couples - and both situations beat the serial marriage that some hetero individuals demonstrate - again and again.

Posted by American
a resident of Danville
on Aug 7, 2010 at 6:07 pm

I have a question for those who favor gay marriage, and would appreciate honest and thoughtful answer: If an adult man and two adult females are truly in love and the three of them want to get married together, should they be able to? If yes, explain why. If no, explain why? I am not advocating a position one way or the other, I just think this will be an issue that will come up in the next 5 to 10 years, and maybe in a religious context, which will add another spin to the issue as well. I think some of the language in this recent gay marriage decision may end up being relevant to my hypothetical question, and we all better be ready to deal with it.

Posted by jake
a resident of Alamo
on Aug 7, 2010 at 9:42 pm

The whole "same sex marriage" argument is built on falsehood that "equal" means "the same". Once one falls in that trap, then the rest of the arguments against the same sex marriage falls apart. A man and a woman are equal as human being but are NOT the same. While I strongly support the equal right and protection for gays and their right to associate and partner with whom they choose, I find the argument for the "marriage" illogical and inconsistent with the history of mankind. We must exercise caution as to the extent that we stretch the fabric of the society! I believe the judge's opinion will be reversed based on the arguments already mentioned in this forum.

Posted by Be Realistic
a resident of Danville
on Aug 7, 2010 at 10:45 pm

Same sex marriage shouldn't be an issue. Instead, we should be demanding that government exit the marriage business. Marriage is a Church issue. All language in our state laws that reference marriage should be changed to civil unions. Less government leads to a better life for everyone.

Posted by Mark
a resident of Danville
on Aug 9, 2010 at 7:33 pm

The Equal Protection Clause is a judicial interpretation of the 14th Amendment. The Founding Fathers did not come up with it, and indeed, there was no equality for women until 1922 or for blacks until 1964. The Founding Fathers were more than happy to have the Constitution apply only to White Males.

Posted by George
a resident of Alamo
on Aug 10, 2010 at 6:47 am

Hooray for the judge! The doors are now open to have a marraige of three, four... however many. I may even decide to marry a critter. After all, I have an inalienable right to pursue happiness... and having a few "wives" of either sex, plus my hunting dog, is what might just make me happy. Enjoy it while it lasts, as the judge's ruling won't stand.

Posted by Steven
a resident of Blackhawk
on Aug 10, 2010 at 7:39 am

Leave it to "people" like George to immediately make the leap from same-sex marriage to bestiality. "Duh, gee, if you want people of da same sex to get married, then maybe I'll just marry me a critter." That's the constant whine of the Prop 8 supporters. Linking same sex marriage to every form of perversion known.

The assumption seems to be that homosexuality equals bestiality. I believe that is the same rationale that was displayed in regards to a white man marrying a black woman or vice versa. And yet now mixed race marriages are normal. And the world didn't end when the courts allowed that to happen. It is the same thing here. All of you opponents will find in five years or ten years or however long it takes to sort this out that once its said and done your marriages will be as good or bad as they were before this came along and it wil not affect your lives in any way. So get over your unreasoning hatred of a lifestyle that you can't or won't understand and stop making such hateful and disgusting remarks.

Posted by American
a resident of Danville
on Aug 10, 2010 at 11:31 am

Steven: You did not answer my question, and in fact, I do not think any supporters of gay marriage answered my question. I am not advocating a position one way or the other. I would just like an honest and thoughtful answer to my question: If an adult male and two adult females are honestly in love, and the three of them want to get married together, should they be able to? If yes, explain why. If no, explain why. Thank you.

Posted by cardinal
a resident of Diablo
on Aug 10, 2010 at 1:05 pm

Ya know, you people may choose to bury your heads in the sand, but after the recent, salacious headlines out of Livermore, I wonder whether members of certain fringe religions ought to be allowed to marry -- even once, much less concurrently.

They seem to have an 'agenda' involving sex with our children.

Posted by Citizen Paine
a resident of Danville
on Aug 10, 2010 at 1:40 pm

American, you present a semi-interesting, if off-topic question -- and even if you are asking disingenuously, as I suspect you are, I'll play. BTW, you could get a lot more creative that 1M2W -- what about 2M1W or 3M or 3W? Or more, if you wanna go all Big Love about it?

I do not get very excited about polygamy one way or the other, basically because, off-hand, I don't see a lot wrong with it. I understand that there's a fair amount of it practiced a few states over, and elsewhere probably, maybe even here -- and the Republic has not come crashing down. You Could say that it shares arguments with traditional marriage, in that it may encourage procreation (at least in the particular form you present it), and Lord knows (sorry) there just aren't enough people around.

That said, I think the legal system has it right when judges decline to decide issues that are not directly in front of them. There may be problems with polygamy that I do not appreciate, as above. The issues may need to be thoroughly vetted -- as they have been in the context of gay marriage.

So, when the country's several polygamists burst out of their closet(s) and demand equality, there will be time enough to consider the pros and cons of their claims. For now, the civil rights march mostly revolves around races, genders, various disabilities, a few religions -- and sexual orientation. Although I think we've got our societal hands pretty full, I'd like to hear the polygamist view.

Please ask your polygamist friends to stand and be counted.


BTW, jake? Did you ever notice that those who counsel caution lest we rend the social fabric are ALways on the majority side of the cloth? Methinks your focus on "differences" reflects an over-concern with plumbing, and too little regard for all the other reasons folks wed -- which DO apply "equally" between same and opposite sex couples.

Posted by Jake
a resident of Alamo
on Sep 3, 2010 at 8:18 pm

The pro same sex marriage items by Paine and others are great examples that no matter how eloquent the prose and how long the dissertation, they do not lend credence to the argument. I have no doubt they believe what they say, however, beliefs do not create rights where none exist. Wish them happiness, nonetheless.

Posted by Against all Odds
a resident of Danville
on Sep 3, 2010 at 8:38 pm

The state can grant a homosexual marriage certificate to a set of homosexuals, but a homosexual "marriage" will never be equated to that of the traditional procreative heterosexual marriage. A fruitcake by any other name remains a fruitcake, in this particular case a fruitcake marriage. When two homosexuals go to bed with each other, and one wakes up pregnant, people will then start to recognize these relationships as legitimate and not as completely perverted, until then good luck trying...

Posted by Citizen Paine
a resident of Danville
on Sep 4, 2010 at 1:00 pm

This is a pretty lean recent crop of objections from Jake and AaO, so I'll try to be brief.

Jake, nobody is seeking to "create" a right (creationism is for others to debate ;-) ). The right-to-marry already exists, to the point of being recognized as "fundamental" in our culture. As such, it is an important right. What is at-issue is the arbitrary denial of that important right to a defined group of citizens.

It's as if you might be denied the right-to-vote because you're left-handed (or, right-handed). If you objected, you wouldn't be seeking to create a right-to-vote, you'd just want to enjoy that right like everybody else, unless there was a damned good reason (a "compelling state interest") to deny it to you. And there just isn't one, in either case. Anyway, thanks for the good wishes.

AaO: those who lack intellectual ammunition resort to name-calling. And those who focus narrowly on sexual practices and results as the primary reasons for marrying, grossly trivialize the marriage institution.

Congratulations -- you've done both.

The only good thing I can think of about your post is that its tone has certain quality of resignation to it; it signals that you know the game is nearly over...and you're side is on the very verge of losing.

BTW, Jake -- if you want a much better example of your point about good prose disguising a crapload of lousy reasoning, check-out this mornings SRV Times Readers Forum: Web Link

We can get into that if you want.

Posted by Against all Odds
a resident of Danville
on Sep 4, 2010 at 5:29 pm

Citizen Paine: I am not in the name calling business, and if you would like to use a more polite word for sexual perversion, such as "gay partner" or "same-sex partner", that certainly is your prerogative, especially if it soothes your ego, and unruffles your feathers. However, our society as a whole will always perceive gay-sex as a perversion. Americans are though compassionate and realize that mentally/emotionally disturbed individuals (i.e., gay people, if you prefer the term) have ordinary rights, as well. Homosexuality is thus tolerated in our American society, the US Supreme Court legalized sodomy in 2003, Lawrence vs. Texas. According to the court, an individual in the United States has the God-given inalienable right to pursue his or her own homosexual sexual perversions without the risk of infringement upon personal liberty.

In my opinion though feces stinks for a reason, however if you don't mind the texture and smell of excretement, go ahead, knock yourself out.

What's in a name? That which we call feces, by any other name would smell as sweet.

Posted by Citizen Paine
a resident of Danville
on Sep 4, 2010 at 7:32 pm

AoO, I going to try to be gentle here, both because this is a family journal, and because you may actually be as blissfully ignorant of the world as it is, as your writings suggest you are. But while I'd defend your right to live privately according to that ignorance, when you misuse it to defend policies that deny legitimate rights to folks about whom I care, I just can't let it go unanswered.

You mention the USSC case Lawrence v. Texas, but appear not to realize that the gravamen of the Equal Protection problem with old state sodomy laws is as follows: although gays do Not have a monopoly on the equipment or the inclinations to share the practices you characterize as "perversions," and although every credible researcher since Dr. Kinsey has reported that those "perversions" are indulged, frequently and enthusiastically, by hets as well as homos, gays DID have a monopoly on being prosecuted for those recreations.

In other words, everyone is doing it (sodomy, in its several variations -- and yes, I do mean EVeryone, except, maybe, for You), but only gays risked legal consequences for their particular acts. So, the Court majority ruled, that's a denial of Equal Protection (and Justice Scalia wrote "Here comes gay marriage" -- and for once he was right).

So, to the extent that the Supremes ruled that gays have a right to their sodomies, they really only ruled that gays, TOO, have a right to their sodomies -- just like us breeders. Is this a great country, or what?

You also mis-characterize homosexuals as "mentally disturbed individuals." The DSM (sp), the "bible" of the psychiatric profession, disagrees with your conclusion. I think I'll go with them.

It's a very odd form of "tolerance" that brings forth terms like "fruitcake" and "perversion" under (and only under, I daresay) the cloak of anonymity.

Posted by Name hidden
a resident of John Baldwin Elementary School

on May 29, 2017 at 12:32 pm

Due to repeated violations of our Terms of Use, comments from this poster are automatically removed. Why?

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