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Court Rejects Same-Sex Marriage Ban in California
By JESSE McKINLEY and JOHN SCHWARTZ
Published: August 4, 2010

SAN FRANCISCO — A federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing a temporary victory to gay rights advocates in a legal battle that seems all but certain to be settled by the Supreme Court.


Jeff Chiu/Associated Press
Opponents of Proposition 8 celebrated the ruling outside the Phillip Burton Federal Building in San Francisco.

http://documents.nytimes.com/us-district...ger?ref=us

Wednesday’s decision is just the latest chapter of what is expected to be a long legal battle over the ban — Proposition 8, which was passed in 2008 with 52 percent of the vote -- and proponents were already promising to appeal, confidently predicting that higher courts would be less accommodating to the other side than Vaughn R. Walker, the judge who issued the ruling.

Still, the very existence of federal-level ruling recognizing same-sex marriage in California, the nation’s most populous state, set off cheers from crowds assembled in front of the courthouse in San Francisco Wednesday afternoon. Evening rallies and celebrations were planned in dozens of cities across California and several across the nation.

In San Francisco, the plaintiffs’ case was argued by David Boies and Theodore Olson, ideological opposites who once famously sparred in the 2000 Supreme Court battle beween George W. Bush and Al Gore over the Florida recount and the presidency. The lawyers brought the case — Perry v. Schwarzenegger — in May 2009 on behalf of two gay couples who said that Proposition 8 impinged on their Constitutional rights to equal protection and due process.

For gay rights advocates, same-sex marriage has increasingly become a central issue in their battle for equality, seen as both an emotional indicator of legitimacy and as a practical way to lessen discrimination.

“Being gay is about forming an adult family relationship with a person of a same sex, so denying us equality within the family system is to deny respect for the essence of who we are as gay people,” said Jennifer Pizer, the marriage project director for Lambda Legal in Los Angeles, who filed two briefs in favor of the plaintiffs. “And we believe that equality in marriage would help reduce discrimination in other settings because the government invites disrespect of us when it denies us equality.”

The trial, which began in January, was closely watched in the gay community, drawing large crowds to courtrooms, and inspiring re-creations by actors which were posted online. The plaintiffs offered two weeks of evidence from experts on marriage, sociology and political science, and emotional testimony from the two couples who had brought the case.

Proponents for Proposition 8, which was heavily backed by the Mormon church and other religious and conservative groups, had offered a much more straightforward defense of the measure, saying that same-sex marriage damages traditional marriage as an institution. They also argued that marriage was essentially created to foster procreation, which same-sex unions could not, and was thus fundamental to the existence and survival of the human race.

On Tuesday, those supporting Proposition 8 telegraphed their view that they had likely lost this round as the defense’s leading lawyer, Charles J. Cooper, filed a notice with the court requesting that Judge Walker keep the ban on same-sex marriage in place while they appealed his decision.

The defendants requested a ruling at the same time as Judge Walker issues the opinion, setting the stage for a quick appeal to the Ninth Circuit Court of Appeals "and, if necessary, the Supreme Court."

On Wednesday, lawyers for Ms. Perry responded with a letter of their own, requesting that Judge Walker not automatically rule on such questions without a hearing, asking that they be allowed to respond to the "obviously premature" motion before any action is taken.

The decision could also play into the state’s gubernatorial race in California though the race has been centered largely on economic issues thus far, with unemployment running more than 12 percent and a $19 billion budget gap.

Democrat Jerry Brown has been vocal in his support of gay marriage in his current role as California attorney general. Republican Meg Whitman has taken the position that marriage should be between a man and a woman – in line with the language of Proposition 8 – though she says that she strongly supports the state’s civil union laws, which afford many of the same rights as marriage.

There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Some in the gay rights community were initially upset by the case fearing that a loss at a federal level could set back their more measured efforts to gain wider recognition for same-sex marriage, which is legal in five states and the District of Columbia.

But those concerns seemed to fade as the trial began, and on Wednesday, the mood was of elation and cautious optimism that Mr. Boies and Mr. Olson’s initial victory might change the debate.

Kate Kendell, executive director for the National Center for Lesbian Rights, said that she believed that there were members of Supreme Court who “have a very deep seated bias against LGBT people,” meaning lesbian, gay, bisexual and transgender. But, she called Wednesday’s ruling “potentially game changing.”

“This legal victory profoundly changes the conversation,” she said, “for folks in the legal world and the policy world who were previously unmoved by this struggle.”

Jesse McKinley reported from San Francisco and John Schwartz from New York. Malia Wollan contributed reporting from San Francisco.

http://www.nytimes.com/2010/08/05/us/05p...ml?_r=1&hp

Prop. 8 Ruling Matters Less than Judge's Findings
Posted by Marc Ambinder


(Credit: AP / CBS)

A federal judge today ruled that California's Proposition 8, which bans same-sex marriage, is unconstitutional. The landmark case could ultimately land before the Supreme Court.

However, the thing to remember here is that the ruling itself matters less than the facts Chief U.S. District Judge Vaughn Walker finds.

The appeals court can consider the law de novo - from scratch. But it owes significant deference to Judge Walker's findings of facts -- which are, from the perspective of proponents of Prop. 8, pretty devastating.

Walker seems to go out of his way to try and demolish the secular arguments against same-sex marriage:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.

2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed over time; women were given equal status; interracial marriage was formally legalized; no fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy "are well-documented in human history."

6. Sexual orientation is a fundamental characteristic of a human being.

7. Prop 8 proponents' "assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."

8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

9. California has no interest in reducing the number of gays and lesbians in its population.

10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."

11. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

12. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.

The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

13. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."

The Atlantic's Marc Ambinder is CBS News' chief political consultant. You can read more of his posts in Hotsheet here. You can also follow him on Twitter.

http://www.cbsnews.com/8301-503544_162-2...03544.html

[quote='ctipton' pid='5615213' dateline='1280964428']



There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Serious question. Since this section was highlighted as noteworthy, is the implication that this case should have been presided over by only a straight judge? What evidence was given that the judge made up his mind before the trial began?

I guess it's only fair to note the fact that Mr. Bradley is a law professor at a Catholic university whose position opposes gay marriage.

(08-05-2010 07:23 AM)BearcatsUC Wrote: [ -> ][quote='ctipton' pid='5615213' dateline='1280964428']



There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Serious question. Since this section was highlighted as noteworthy, is the implication that this case should have been presided over by only a straight judge? What evidence was given that the judge made up his mind before the trial began?

I guess it's only fair to note the fact that Mr. Bradley is a law professor at a Catholic university whose position opposes gay marriage.

What is your position on gay marriage?

(08-05-2010 07:44 AM)SuperFlyBCat Wrote: [ -> ]

(08-05-2010 07:23 AM)BearcatsUC Wrote: [ -> ][quote='ctipton' pid='5615213' dateline='1280964428']



There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Serious question. Since this section was highlighted as noteworthy, is the implication that this case should have been presided over by only a straight judge? What evidence was given that the judge made up his mind before the trial began?

I guess it's only fair to note the fact that Mr. Bradley is a law professor at a Catholic university whose position opposes gay marriage.

What is your position on gay marriage?

They're already getting married, it doesn't affect me, and it doesn't bother me at all.

(08-05-2010 07:23 AM)BearcatsUC Wrote: [ -> ][quote='ctipton' pid='5615213' dateline='1280964428']



There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Serious question. Since this section was highlighted as noteworthy, is the implication that this case should have been presided over by only a straight judge? What evidence was given that the judge made up his mind before the trial began?

I guess it's only fair to note the fact that Mr. Bradley is a law professor at a Catholic university whose position opposes gay marriage.

Notre Dame is Catholic in name only; many of its faculty speak against the beliefs of the Catholic Church so the fact that Mr. Bradley is a law professor there is irrelevant.

(08-06-2010 12:51 PM)bcat80 Wrote: [ -> ]

(08-05-2010 07:23 AM)BearcatsUC Wrote: [ -> ][quote='ctipton' pid='5615213' dateline='1280964428']



There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Serious question. Since this section was highlighted as noteworthy, is the implication that this case should have been presided over by only a straight judge? What evidence was given that the judge made up his mind before the trial began?

I guess it's only fair to note the fact that Mr. Bradley is a law professor at a Catholic university whose position opposes gay marriage.

Notre Dame is Catholic in name only; many of its faculty speak against the beliefs of the Catholic Church so the fact that Mr. Bradley is a law professor there is irrelevant.

It is not irrelevant. That's not to say there's no dissent at Notre Dame, but to say there's complete freedom to express beliefs or that the school doesn't attract those with beliefs consistent with Catholic Doctrine would be innaccurate.

In fact, I'd say Mr. Bradley is acting like a star employee for Notre Dame.

I saw a statement today that's pretty hard to argue:

"If you don't like gay marriage blame straight people, they're the ones that keep having gay babies"

(08-06-2010 02:54 PM)BearcatsUC Wrote: [ -> ]

(08-06-2010 12:51 PM)bcat80 Wrote: [ -> ]

(08-05-2010 07:23 AM)BearcatsUC Wrote: [ -> ][quote='ctipton' pid='5615213' dateline='1280964428']



There were also signs that Judge Walker’s personal life – several published reports have said he is gay -- might become an issue for those opposed to his ruling. Hours before the decision was announced, a commentator on Fox News.com – Gerard Bradley, a professor of law at University of Notre Dame – posted an editorial questioning the judge’s impartiality.

“I do not doubt that Judge Walker made up his mind about Prop 8 before the trail began,” Mr. Bradley wrote.

Serious question. Since this section was highlighted as noteworthy, is the implication that this case should have been presided over by only a straight judge? What evidence was given that the judge made up his mind before the trial began?

I guess it's only fair to note the fact that Mr. Bradley is a law professor at a Catholic university whose position opposes gay marriage.

Notre Dame is Catholic in name only; many of its faculty speak against the beliefs of the Catholic Church so the fact that Mr. Bradley is a law professor there is irrelevant.

It is not irrelevant. That's not to say there's no dissent at Notre Dame, but to say there's complete freedom to express beliefs or that the school doesn't attract those with beliefs consistent with Catholic Doctrine would be innaccurate.

In fact, I'd say Mr. Bradley is acting like a star employee for Notre Dame.

That's quite an enlightened analysis considering you didn't even bother to read his editorial.

(08-06-2010 03:06 PM)oleskl Wrote: [ -> ]I saw a statement today that's pretty hard to argue:

"If you don't like gay marriage blame straight people, they're the ones that keep having gay babies"

Is that why there are identical twins with divergent sexual orientations?

(08-06-2010 08:47 PM)converrl Wrote: [ -> ]

(08-06-2010 03:06 PM)oleskl Wrote: [ -> ]I saw a statement today that's pretty hard to argue:

"If you don't like gay marriage blame straight people, they're the ones that keep having gay babies"

Is that why there are identical twins with divergent sexual orientations?

Then, by definition, they are not identical.

As the gov of cali says, "Let them eat..."

(08-07-2010 07:04 AM)QSECOFR Wrote: [ -> ]

(08-06-2010 08:47 PM)converrl Wrote: [ -> ]

(08-06-2010 03:06 PM)oleskl Wrote: [ -> ]I saw a statement today that's pretty hard to argue:

"If you don't like gay marriage blame straight people, they're the ones that keep having gay babies"

Is that why there are identical twins with divergent sexual orientations?

Then, by definition, they are not identical.

Genetically, they are! Yet they have different sexual orientations--the obvious answer to the riddle of their divergence is......ENVIRONMENT.

So, at least in these individuals...the behavior is obviously a CHOICE.

Can't blame that on biology...sorry.

Same-Sex Marriage Judge Finds That a Child Has Neither a Need Nor a Right to a Mother
Monday, August 09, 2010
By Terence P. Jeffrey, Editor-in-Chief


(AP Photo/Todd Rogers)
U.S. District Judge Vaughn R. Walker ruled last week in federal court in San Francisco that same-sex marriage is a constitutional right.

(CNSNews.com) - U.S. District Judge Vaughn R. Walker, who ruled last week that a voter-approved amendment to California’s constitution that limited marriage to the union of one man and one woman violated the Fourteenth Amendment of the U.S. Constitution, based that ruling in part on his finding that a child does not need and has no right to a mother.

Nor, he found, does a child have a need or a right to a father.

“Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted,” the judge wrote in finding of fact No. 71 in his opinion.

“The gender of a child’s parent is not a factor in a child’s adjustment,” the judge stated in finding of fact No. 70. “The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.”

Despite Walker’s claim that this “fact” is “beyond serious debate,” one of the sources he cited for it was a brochure published by the American Psychological Association (APA) that was entered into evidence in the case, which specifically stated twice: “Few studies are available regarding children of gay fathers.” Walker did not quote this part of the brochure in his opinion. https://ecf.cand.uscourts.gov/cand/09cv2...-ORDER.pdf

However, Walker did quote this same brochure as saying: “[S]ocial science has shown that the concerns often raised about children of lesbian and gay parents--concerns that are generally grounded in prejudice against and stereotypes about gay people--are unfounded.”

This quote comes from a side-bar box on page five of the six-page APA brochure. https://ecf.cand.uscourts.gov/cand/09cv2...PX2565.pdf The box purports to answer the “most common questions” about homosexual parents, posing four such questions and giving the APA’s answer to them.

The first is: “Do children of lesbian and gay parents have more problems with sexual identity than do children of heterosexual parents?”

The full answer in the brochure is as follows: “For instance, do these children develop problems in gender identity and/or in gender role behavior? The answer from research is clear: sexual and gender identities (including gender identity, gender-role behavior, and sexual orientation) develop in much the same way among children of lesbian mothers as they do among children of heterosexual parents. Few studies are available regarding children of gay fathers.”

The brochure does not explain why the APA concludes that the “answer from research is clear” that children of homosexual parents do not have more problems with sexual identity than children with mothers and fathers when in fact, as the brochure itself states, “[f]ew studies are available regarding children of gay fathers.” Nor does Judge Walker explain how his finding of “fact” that the gender of parents does not matter to children is “beyond serious debate” when in fact his own source stipulates that “[f]ew studies are available regarding children of gay fathers.”

The second question answered in the brochure is: “Do children raised by lesbian or gay parents have problems in personal development in areas other than sexual identity?”

The entirety of the answer provided in the brochure states: “For example, are the children of lesbian or gay parents more vulnerable to mental breakdown, do they have more behavior problems, or are they less psychologically healthy than other children? Again, studies of personality, self-concept, and behavior problems show few differences between children of lesbian mothers and children of heterosexual parents. Few studies are available regarding children of gay fathers.”

Judge Walker does not quote this part of the brochure in his finding that the gender of parents does not matter, nor does he explain how his finding can be “beyond serious debate” when in fact the very evidence he uses to establish this point states that “[f]ew studies are available regarding gay fathers.”

To further his case that the well-being of children is no bar to declaring same-sex marriage a right protected by the Fourteenth Amendment, Judge Walker makes a finding of fact that the state of California already legally recognizes that the gender of parents is irrelevant. As Walker reports it, California laws goes so far as to “encourage” homosexuals to acquire children whether through adoption, foster care, or artificially conceiving a child and, presumably, in the case of a male-male couple, securing a female to gestate the child until the male-male couple can take custody of it.

“California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology,” writes Walker in finding of fact No. 49. “Approximately 18 percent of same-sex couples in California are raising children.”

To support this finding, Walker notes that California’s attorney general, who is Jerry Brown, “admits that the laws of California recognize no relationship between a person’s sexual orientation and his or her ability to raise children.”

“Attorney General admits,” writes Walker, “that California law protects the right of gay men and lesbians in same-sex relationships to be foster parents and to adopt children by forbidding discrimination on the basis of sexual orientation.”

Walker’s ruling declaring same-sex marriage protected under the Fourteenth Amendment of the U.S. Constitution, if upheld by the U.S. Supreme Court, would have ramifications far beyond California, requiring states across the union to recognize same-sex marriages while wiping out any legal protection a child might have from being handed over by state governments to same-sex couples either through adoption or foster parenthood.

The Equal Protection Clause of the Fourteenth Amendment as applied by Walker would require states to grant a marriage license to same-sex couples and would-be parents, while implicitly annihilating the notion that each American child has an equal right to a mother and a father.

A child put out for adoption or foster parenting by the state, or a child conceived through technological means and gestated in a hired womb, would have no right not to be assigned to a homosexual couple who would act as his or her father and father or mother and mother.

http://www.cnsnews.com/news/article/70722

Perfect demolition of the nuclear family. This means a child could be assigned to any conceivable group structure, as long as the prevailing state and federal rules allow such an association--this has SUPER potential consequences--especially since the current administrative aegis is to randomly generate and legislate as many of these group structures as valid family units as possible.

Bring on the polygamists, the pedophiles, and those that practice bestiality--what a great future for these kids!

Oh...and just consider this on a common sense level--don't kids copy what they see? You know this as well as I do..this is simply a way to promote and promulgate homosexuality...it has little to do with Constitutional rights.

Incidentally--Judge Walker is homosexual.

I'll keep most of my opinions on the issue to myself. But from a purely scholarly perspective, the battle between the will of the electorate and the judiciary over this topic is interesting as heck to sit back and watch.

The fact that Ted Olsen led the legal challenge alone makes it worth grabbing popcorn.

Two times its been voted on and two times its been established as the will of the people. Twice its been struck down on differing theories. while I tend to agree from a personal opinion on some of the issues in debate, objectively, this smacks of judicial activism trying to carve out a protected classification and a fundamental right where currently one does not exist.

Also interesting to see how the counties in the state voted on the issue. There is a real culture clash going on in that state.

(08-10-2010 10:11 AM)rath v2.0 Wrote: [ -> ]I'll keep most of my opinions on the issue to myself. But from a purely scholarly perspective, the battle between the will of the electorate and the judiciary over this topic is interesting as heck to sit back and watch.

The fact that Ted Olsen led the legal challenge alone makes it worth grabbing popcorn.

Two times its been voted on and two times its been established as the will of the people. Twice its been struck down on differing theories. while I tend to agree from a personal opinion on some of the issues in debate, objectively, this smacks of judicial activism trying to carve out a protected classification and a fundamental right where currently one does not exist.

Also interesting to see how the counties in the state voted on the issue. There is a real culture clash going on in that state.

This country is no longer about the will of the majority, it's about the will of the most vocal minority.

(08-10-2010 12:03 AM)converrl Wrote: [ -> ]Perfect demolition of the nuclear family. This means a child could be assigned to any conceivable group structure, as long as the prevailing state and federal rules allow such an association--this has SUPER potential consequences--especially since the current administrative aegis is to randomly generate and legislate as many of these group structures as valid family units as possible.

Bring on the polygamists, the pedophiles, and those that practice bestiality--what a great future for these kids!

Oh...and just consider this on a common sense level--don't kids copy what they see? You know this as well as I do..this is simply a way to promote and promulgate homosexuality...it has little to do with Constitutional rights.

Incidentally--Judge Walker is homosexual.

Ahh, the pedophilia and bestiality argument...because those things are relevant in this discussion. Leave it to converrl...

Ironically, it is the Mormons (the MORMONS!) who heavily funded the crusade against Prop 8. Kind of hypocritical given their history of alternative life styles.

Anyway, I suggest y'all talk to a number of gay people and ask them when they "chose" to be that way. I'd like converrl first to have that discussion and watch him get eaten alive. It would be funny. Really funny.

Having a "lifestyle" is a choice.

Being gay or having blue eyes is not.

For me, I do not like the politicizing of a human condition by the government regardless if it is Congress, the White House, or the judiciary.

I ain't a legal scholar, but the way I see it is that the 10th amendment said the Federal Government has limited powers and everything else belongs to the States or the People. The 14th Amendment extended limitations to the states. Since marriage existed as a religious sacrament before any part of the U.S. was ever considered, gay marriage, in my mind, is an issue for individual religions to decide. If there is a church that wants to sanction gay marriage, so be it. The Feds and the States should have no say whatsoever in the matter.

For me, this is another example of the government overstepping its bounds and poking its nose into something that the U.S. Constitution says that they have no basis in deciding.

(08-10-2010 04:17 PM)BearcatsUC Wrote: [ -> ]Anyway, I suggest y'all talk to a number of gay people and ask them when they "chose" to be that way. I'd like converrl first to have that discussion and watch him get eaten alive. It would be funny. Really funny.

Why are there identical twins that present divergent sexual orientations? I'm waiting on your scholarly answer...

I'm waiting on you to cite peer-reviewed literature...

All I hear are ignorant suppositions....and crickets...