When Proposition 8 was overturned by Judge Walker I went and read the transcripts behind his decision and was clearly impressed. The decision was not taken lightly and was very well documented including several posts as to why Walker overturned it. I found it clearly concise, logically balanced and over all, well thought out. Which of course left me to ponder the future of prop 8.
When I found out that it was going to be appealed I immediately responded to the overwhelming cheer of proponents that it was a grave mistake. The case to be made for proponents of proposition 8 was extremely weak. This lethargic case has the least hope of surviving an appeal. The arguments for prop 8 are beyond weak. At one point a defendant of proposition 8 actually changed his view and agreed that their was no case to be made against gay marriage. Laughable at best.
So why is this such a grave mistake? Perhaps the proponents should have thought a little further then what they apparently did. Giving up the war for a win on the battlefield. You see, If the case against proposition 8 is upheld by both this court and the inevitable supreme court then the proponents of proposition 8 will have literally ushered in same sex marriage for the country. Why? Because Judge Walker argued that the passing of proposition 8 would violate the 14th ammendmant of the constitution and further continued that personal rights are not subject to majority vote.
Because, as of this moment 31 states have legislation in the state constitution banning same sex marriage. That is they define marriage as between a man and a woman. Here is the kicker. Each one of them was put into place by majority vote. So... by that logic if the United States Supreme Court rules in favor of the overturning of proposition 8 then no state in the union would be able to deny same sex marriage because they were all put into place by majority vote.
Thats right folks. Its a massive gamble. Most legal analysts agree that they are betting the farm on this poorly constructed case. Most would go as far as to agree that they should have simply let California go and move on. But alas so deprived of a victory with 5 states already allowing gay marriage in the last 5 years they are standing firm on this. So lets look at the bullet points, shall we?
- Proposition 8 was overturned on a 128 page logical ruling
http://www.afer.org/our-work/hearing-transcripts/
Making it possibly the weakest case to ever be made against same sex marriage. I have read them and I can tell you I honestly am not sure how even the most staunch conservative could find error. But I have been wron g in the past.
- Proponents of Prop 8 first have to argue that there would in fact be some sort of "harm" done to them if California was to allow gay marriage. No small task mind you as both the Attorney General and ex-Governor refused to argue that it would.
- The Judges have been announced. 2 Democrat and one Republican. I like those odds.
- The case will be televised.
- And lastly lets just stop and think about something. 3 Judges in Iowa failed to obtain a retention vote because of an ugly smear campaign simply because the voted for gay marriage rights. So one has to wonder one simple thing. If I were a judge and I were angry about the ousting of 3 judges then I might be more apt to make a point here. To prove that majority rule does not mean good government.
Something to think about. :)
Further Reading:
http://www.pfaw.org/media-center/publications/losing-their-appeal-the-real-reason-the-right-terrified-the-prop-8-case
Common sense? Anyone?
Tuesday, November 30, 2010
Prop 8 Trial on Monday!
Well its back in court again folks. Arguments are to be heard on Monday at 10:00am PST, 1:00pm EST.
The first hour will be devoted to whether or not it can be appealed.
"Legal standing issue: Not just anybody can initiate a lawsuit and appeal the decision, but courts err on the side of allowing a party to appeal. Nevertheless, a party or parties seeking to appeal must still show they are at least vulnerable to an “actual” injury because of the decision below. That injury can include an economic one but it has to be an injury more “concrete” than the fact that appellants disagree with the lower court decision. Proponents will argue that because they were allowed standing in the U.S. District Court, they should naturally have standing on appeal.
Here is more info:
http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202475432549
The first hour will be devoted to whether or not it can be appealed.
"Legal standing issue: Not just anybody can initiate a lawsuit and appeal the decision, but courts err on the side of allowing a party to appeal. Nevertheless, a party or parties seeking to appeal must still show they are at least vulnerable to an “actual” injury because of the decision below. That injury can include an economic one but it has to be an injury more “concrete” than the fact that appellants disagree with the lower court decision. Proponents will argue that because they were allowed standing in the U.S. District Court, they should naturally have standing on appeal.
The merits: Two provisions of the U.S. Constitution’s 14th Amendment are at issue, both encompassed in this language: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Concerning due process, a state cannot deny citizens a fundamental right, including the right to marry, unless it can show a compelling reason to do so. U.S. District Court Judge Vaughn Walker said Proponents failed to establish “any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.”
With equal protection, the government may not treat one group of citizens with less favor than others unless it has a reason to do so. It may not treat oppressed minorities with less favor unless it has a compelling reason to do so. Judge Walker ruled that gays and lesbians are an oppressed minority and that Proponents failed to establish evidence of even a simple, rational reason to treat them differently, much less a compelling one"
Then the second hour will be dedicated to arguments for and against.
The three judges have already been identified. And the odds are in our favor. Ironically the one Republican Judge is a alumni to Brigham Young Law School. A well affiliated institution with the Mormon Church. Chief proponents of proposition 8.Here is more info:
http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202475432549
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