Landmark gay marriage trial starts today in California

You are quite correct.In summary, these are the holdings of the opinion:

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Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as the right to same-sex marriage would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy namely, marriage. Rather, plaintiffs ask California to recognize their
relationships for what they are: marriages.

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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 couples.

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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.

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Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

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The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

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The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8.

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Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.

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None of the interests put forth by proponents relating to parents and children is advanced by Proposition 8; instead, the evidence shows Proposition 8 disadvantages families and their children.

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Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children. See In re
Marriage Cases, 183 P3d at 451-452. Californians are prevented from distinguishing between same-sex partners and opposite-sex spouses in public accommodations, as California antidiscrimination law requires identical treatment for same-sex unions and opposite sex marriages. Koebke v Bernardo Heights Country Club, 115 P3d 1212, 1217-1218 (Cal 2005). The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.

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rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California
law, exactly the same. FF 47-50. The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests not provide a rational basis supporting Proposition 8.

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Under precedents such as Craig v Boren, administrative ease and convenience are not important government objectives. 429 US 190, 198 (1976). Even assuming the state were to have an interest in administrative convenience, Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples. See FF 53. Domestic partnerships create an institutional scheme that must be regulated separately from marriage. Compare Cal Fam Code 297-299.6 with Cal Fam Code 300-536. California may determine whether to retain domestic partnerships or eliminate them in the absence of Proposition 8; the court presumes, however, that as long as Proposition 8 is in effect, domestic partnerships and the accompanying administrative burden will remain. Proposition 8 thus hinders rather than advances administrative convenience.

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Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.

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Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief
that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

No, it has to do with the Free Exercise Clause. One is free to argue that we shouldn't have a Free Exercise Clause, but as long as it's there, the State cannot require anyone to do anything that violates their religious dictates without a compelling interest, and then it must do it in a way that intrudes on religious beliefs in the least possible manner.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

Judge Walker has refused to stay the effect of his ruling during appeal, but will maintain the temporary stay currently in effect until August 18 to give proponents of the ban an opportunity to apply for a stay from the Court of Appeals. Story here.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

I have now seen a copy of the Order that Judge Walker issued denying Proponents' request for a stay of his ruling declaring Proposition 8 unconstitutional. In that Order, one of the reasons Judge Walker cites for refusing to continue the stay is that Proponents have failed to show that they have the right to appeal the ruling.One of the key requirements to any federal lawsuit is called "standing." Basically, that means that a person must show that the action they are objecting to harms them in some way. Before Proponents can appeal, they have to establish that they have standing to appeal. (At this point in time, I am assuming that the State will not appeal. Because the Governator and the Attorney General both realigned at trial to side with the Plaintiffs, this seems a safe assumption.) Judge Walker concluded that it's unlikely that Proponents will be able to establish standing. If they in fact cannot, and I think that Judge Walker is correct, they will not be able to appeal, and Judge Walker's Order will not be overturned.This means that Proposition 8 will be dead, gay marriage will be allowed in California, but there will be no federal precedent binding on any other jurisdictions.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

Not necessarily. The Proponents of Prop 8 have the opportunity to ask the Court of Appeals for a stay, and I'd be surprised if they didn't ask. However, I think it unlikely that the Court of Appeals would grant that stay because it's unlikely that the Proponents have the right to appeal.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

The Ninth U.S. Circuit Court of Appeals has granted the Proponents' request for a stay pending appeal, at the same time establishing an expedited schedule for briefs and set oral argument for the week of December 6. The court also ordered both parties to brief the issue of whether Proponents have standing to appeal, citing Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). In that case, the Court discussed the standing of a group of citizens who sponsored the ballot initiative that was at issue.A copy of the Order in Perry can be found here.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

I read something yesterday that puts a different slant on it that makes a certain amount of sense to me.As I described earlier, this appeal might be dismissed for lack of standing. If it is, obviously it won't go to the Supreme Court. Or, if it does, it could well be decided there on the basis of standing without ever reaching the merits of the case. In other words, there's a good chance the ruling at the district court level will remain undisturbed without an appeals court deciding whether Prop 8 is constitutional.If that does happen, we will have to wait for another case to work its way through the court system before the Supremes have a chance to rule on it. The suggestion I read yesterday was that that might not be a bad thing. If the trend is in the direction of increased recognition of gay marriage, and there is more support for it, politically as well judicially, it might make it easier for the Supremes to rule in favor of it.Although we like to think that the federal courts are insulated from politics, and to a degree they are, most judges are aware that the courts have to tread very carefully. The best example of what I'm talking about is Brown v. Board of Education. Wiki has a pretty good write up of the politics in the Court behind getting to a unanimous decision. The Justices knew that there would be widespread resistance to desegregation, and Chief Justice Warren in particular worked very hard to make sure that the opinion was unanimous to increase the force behind the decision.It goes without saying that there will be widespread resistance to acceptance of gay marriage. It will be easier for the Court to rule in favor of gay marriage if there has been more movement politically and socially in the direction of accepting it. Of course, if you don't think that we seem to be moving in that direction, then the sooner it gets to the Supremes the better.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

That's nice.Now run outside and play, the adults are talking here.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

Please.I'd really prefer not to fill this thread up with his irrelevancies.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

Wow, I take a week vacation and look what's happened to this thread. It began with one one comment relevant to gay marriage, but nothing to do with the particular topic of this thread, then degenerated into a lot of squabbling about race and racism in general.Please, before continuing in this vein, try to at least look like you're attempting to address this topic of this thread. Thank you.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- PhatIt has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

The Ninth Circuit Court of Appeals has put the case on hold pending input from the California Supreme Court. As you may recall if you've been following the case, a threshold issue on appeal is whether the proponents of the California constitutional amendment banning gay marriage have standing to appeal from the district court ruling. The appeals court has determined that they cannot answer that question without guidance from the California Supreme Court. This will push the whole thing back weeks, if not months.

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Ridicule is the only weapon which can be used against unintelligible propositions. -- Thomas Jefferson

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We see monsters where science shows us windmills. -- Phat

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It has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate

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...creationists have a great way to detect fraud and it doesn't take 8 or 40 years or even a scientific degree to spot the fraud--'if it disagrees with the bible then it is wrong'.... -- archaeologist

The Ninth Circuit Court of Appeals has affirmed the U.S. District Court ruling that Proposition 8 violates the Fourteenth Amendment.Opinion here.I haven't read the entire opinion yet, but it appears that the court drastically narrowed the issue. According to the opinion, California state law already and still allows homosexual couples to enjoy all the incidents of marriage. The only effect of Prop 8 was to deny them the official designation of "marriage" to their relationship. The court could find any "legitimate reason" for maintained the distinction in labels and so struck Prop 8.The court apparently did not rule on the broader question of whether homosexual marriage is a protected right in and of itself.Edited by subbie, : More info

According to generic forms appended to the end of the opinion, the Mandate will issue 7 days after the time has run to ask for a rehearing en banc, or 7 days after a denial on any motion for a rehearing, whichever come last. Or, the court has the discretion to stay the Mandate pending further proceedings if requested. The Mandate is the order to the state to comply with the judgment of the court, that is when it must allow gay marriages again, although I imagine there could be some slight period of delay to allow for administrative adjustments, if needed.{AbE}If the Supreme Court decides to hear the case, they can choose to stay the Court of Appeals opinion if they wish to.Edited by subbie, : As noted

Yes, that is exactly right.Because of that, I think it's less likely that the Supremes will hear the case. There's no doubt that there is a Constitutional issue. But, because of the unique circumstances of the case, I don't think the fact situation is paralleled anywhere else in the country. Although the opinion is technically binding anywhere in the Ninth Circuit, the practical effect is limited to California.Another factor that I think makes it less likely that the Supremes will take it is that I believe it's the first federal appellate court decision on the question of gay marriage. One of the things that the Supremes look for in taking a case is whether the federal appellate courts are divided on an issue. Obviously, if this is the first one, there's no division.We'll see.