So gay!!!

[Hopper]

From a legal perspective the interesting part is that the Judge chose to apply the rational basis standard under the 14th Amendment. This means a couple of things:

1) Homosexuals are not given the same 14th Amendment protections as other protected classes such as racial minorities, women, etc. Laws targetting racial minorities have to be justified by showing that they are "necessary to promote a compelling state interest." Laws targetting women have to be shown to be "substantially related to an important state interest." Laws targetting homosexuals, however, need only be justified by showing they are "rationally related to a legitimate government interest." That is the lowest equal protection hurdle that a government has to clear. In this sense, homosexuals are not protected to the same extent as gay advocates would probably like.

2) Despite the low standard the government had to clear, they still didn't clear it. That's not a good sign if you're a Prop 8 supporter.

Let's take Kicky's summary as accurate (I'm not suggesting that it isn't). The Supreme Court can, in theory, say, "We've changed our minds. We were wrong before in not affording homosexuals more than the amount of equal protection rights given to every other average citizen. Henceforth we grant them the same degree of rights as has been given to women (or perhaps to racial and religious minorities)."

That would entitle them to a higher degree of judicial scrutiny of legislative enactments which purportedly "discriminate" against them. And that is the only hope here that I can see. I'm no bottom feeder and I could be wrong (just as a bottom-feeder could be). But they are just not going to prevail on the same "rational reason" standard that all other citizens (except those mentioned) get, if you ask me. Only the Supreme Court can elevate the standard of protection given to homosexuals. Appellate Courts can't (at least not properly).

What I'm saying is that I think it's just wishful thinking to conclude that Prop 8 has no possible or conceivable (which is the test, even though Kicky didn't say it) rational relationship to any legitmate state interest.

 

[Hopper]

I notice that no one has commented on the fact that Judge Walker lifted his stay (which, as I understand it, includes, perhaps among other things, a finding that the defendants are "not likely to succeed on appeal"). The lines at city hall were very long, with gay couples lining up to get marriage licenses. According to news reports, Gov. Schwarzenegger publicly asked the judge to lift his temporary stay. Then the Appellate Court issued an "emergency stay" for a one year period.

Why 1 year, especially if this case will soon be over because, as Judge Walker suggested, the "defendants" (intervenors, really) have no standing to appeal? Why any stay at all if success is unlikely? What does this suggest about how "unassailable" Walker's ruling is, I wonder?

 

[Hopper]

Olsen, Boies, and a bunch of their homeys (looks like about 10 bigshot bottom-feeders in all) filed a 35 page brief in the appellate court opposing the stay. It argued that the appeal was meritless because Prop 8 was unconstitutional on multiple grounds and because the appellant had no standing and that no stay should be granted on a variety of other grounds. It started out by sayin:

"...because a stay holds a ruling in abeyance pending review, it is considered an “intrusion into the ordinary processes of administration and judicial review.” Nken, 129 S. Ct. at 1757. Under Nken, the party seeking a stay “bears the burden of showing that the circumstances justify an exercise of [the court’s] discretion.” Id. at 1761.In determining whether the moving party has met that exacting burden, courts consider:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies."

https://www.ca9.uscourts.gov/datastore/general/2010/08/14/plaintiffs_opp_to_motion_to_stay.pdf


Judge Walker, who was THERE, dammit, had found that "None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED."

All of that didn't seem to persuade the appellate court not to issue a stay, for some damn reason. I guess the court found that the "applicant has made a strong showing that he is likely to succeed on the merits," among other things, ya know?

 

[Hopper]

Let me try another tactic. Say it was your job to prove to me that it is NOT "beyond serious debate" that Gay Parents produce just as healthy children as heterosexual parents (the simplified #70.)

Aint no one's job, that's the point. U.S. Supreme Court done said this here:

"A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, , and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.”

Heller v. Doe, 509 U.S. 312 (1993), with citations omitted and emphasis added

"Not subject to courtroom factfinding," see? Nice try, there, Judge Walker.

 

[billyshelby]

Aint, that quote really doesn't help someone like me. I'm not a law talker. So I can't read from that what conditions/guidelines Walker was bound by specific to his 'Findings of Fact' determinations. I mean, I basically understand what it's saying, but I have NO idea if, or how much, it applies to what he did vis a vis 'Findings of Fact.'

As a side note, however, I find it interesting that you cited that Heller case. That quote, I believe, was written by Kennedy. And Walker cited that exact case a few times in his opinion. Yet Kennedy is allegedly the guy he is appealing to with the way he wrote his opinion. So if he cited Kennedy (by way of Heller), and he's appealing to Kennedy (if you buy the punditalysis), then he's both aware of how Heller goes against what he did, but presumably isn't so stupid to have stepped into quicksand, either. In my caveman analysis, I smell smoke.

 

[Hopper]

And Walker cited that exact case a few times in his opinion....he's both aware of how Heller goes against what he did,

Well, that is indeed interesting. I may look for Walker's citations of Heller. He certainly could not have been citing it for any proposition relating to the proper application of the rational relation test, it would seem.

The quote from Heller I posted omitted citations. There were 4-5 prior Supreme Court cases involved from which Kennedy was extracting quotes, so Heller is far from the first case which state the principles involved. I did scan the few citations Walker made to the Heller case. They were very selective, as has been his approach to everything in this case it seems. He just ignores (rather than acknowledge and attempt to distinguish) controlling precedents, such as Baker v Nelson, so this is not really surprising, I guess.

Whether Walker chooses to acknowledge it or not, Heller, and the cases it cites, are controlling precedents. If he wants to ignore them, he can, but he shouldn't expect favorable reception on appeal.

 

[billyshelby]

Yeah, but if you believe he has an endgame, and that endgame involves singing to Kennedy, then there is likely some purpose to what he's doing. The alternative is he's an idiot or a reckless gambler. I don't know the law. I'm an outside spectator who sees puzzle pieces. If you play the smart angle, then he thinks what he wrote will get past the 9th to the Nine. And if he figured that out, then the game changes to how what he wrote will appeal to his basic belief this is a 14th amendment issue.

I have no idea what's in his head. Maybe he's like Sean Connery in Hunt For Red October and thinks he has "one chance in three", but he's hoping they "grab the boat." But probably he thinks that if he gets it passed inspection there are things he wrote that will swing Kennedy who most say is the crucial vote. I don't ultimately care because gay marriage will be a national reality before I'm dead whether it's sanctified in the Constitution or not. But I like the gamesmanship of it all in the now.

 

[Hopper]

For what it's worth, I see that quite a few legal scholars agree with me on the point about article III I was making and about which two law school graduates in this forum were giving me grief and trying to suggest I was clearly wrong. For example:

"If the Ninth Circuit concludes that the Proposition 8 sponsors lack standing, then what? Although the answer is complicated, my initial sense is that if these sponsors are not appropriate parties on appeal, they also lacked standing to defend in the trial court. Which means the trial itself should not have occurred, because there wasn't the constitutionally required concrete and adverse advocacy on both sides. So we would be left with a situation in which plaintiffs sued the state defendants properly, but the state defendants (the Attorney General and Governor) admitted all the relevant facts and did not contest the legal theory of the plaintiffs. My instinct is that, in such a situation, the district judge was wrong to conduct a non-adverse trial....all the reliance he placed his "factual findings at trial" -- a reliance that has been noted by many commentators -- would go away." (Vikram Amar)

https://writ.news.findlaw.com/amar/20100813.html

"Vikram David Amar is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure."

As I have already noted, what strikes me most about this question is the utter hyprocrisy and solipsism shown by Walker. He conducts a "show trial" with parties who he will later contend have no standing to appeal him. Fundamental fairness and logic seem to be far removed from whatever his motives are and his thinking is, if ya ax me. A zealot will generally say and do almost anything, however dishonest, unreasonable, illogical, or unfair to advance his cause. More and more that's exactly how Walker comes across to me.

 

[Hopper]

I have no idea what's in his head. Maybe he's like Sean Connery in Hunt For Red October and thinks he has "one chance in three", but he's hoping they "grab the boat." But probably he thinks that if he gets it passed inspection there are things he wrote that will swing Kennedy who most say is the crucial vote.

I have no idea what's in his head either, but I think he made major mistakes here. He tried to play both sides of the fence, and did very poorly at it, I think. He wants to have his cake and eat it too. He wants to use the "power" he seems to think he has (contrary to Heller, and other cases) to decide and determine facts and thereby control (he thinks) the appellate courts. He wants to act like he respects precedent by applying the rational relation test, and then "find" as a matter of supposed "fact" that there is no rational relation. To do this, he has to acknowledge and apply both the law and the supposed "facts" in a HIGHLY SELECTIVE fashion. In the process he loses all credibility that he might otherwise have had a chance to maintain, had he approached it differently.

Without having given it much thought, if I were him I might have simply said:

"I realize that the Supreme Court has NOT given gays more equal protection rights than are afforded other citizens, but I think they should have. Gays are *special* and deserve more rights than the average bear. I am therefore going to ignore the "rational relation" standard and impose a heightened standard (say strict scrutiny) in these proceedings, and evaluate all claims accordingly. If the Supreme Court thinks this was improper, they can rule against me."

At least his ruling might have made some sense that way, and he was ignoring (and therefore violating) all relevant precedent anyway, so what does he have to lose by revealing his agenda up front?

 

[billyshelby]

Lawyers might excoriate Walker, but at worst he's the guy who poured gasoline on himself to make a political statement which will eventually be borne out as self evident fact when the world catches up to the obvious truth of gay marriage. He'll be one of history's winners that only the unsexy legal world doesn't recognize. At best, he'll actually win. His case will make it past CERT and he'll be the hero as the guy who launched the 14th Amendment revisions that brought the United States further into the future.

So save the dishonest, illogical, solipsistic legal crap. The whole legal system has an illustrious history of depriving people of their basic rights until suddenly, out of nowhere, those rights become apparent. If Walker is shot down, he'll just be the guy doing the right thing the wrong way the best way he knew how. Law is gamesmanship. When we're lucky, it stumbles onto truth. Fortunately, it's mostly made steady progress that arena, however slow it takes.

 

[Hopper]

Heh, spoken like a true zealot, Biley. Those Buddisht monks who torched themselves to "protest" the vietnam war sure accomplished a lot, ya know?

Just guessin, of course, but I spect that feelin of burnin alive wasn't nuthin nice. Whoever was in the crowd, watchin, eggin them on, and cheerin got a big-*** kick outta seein it though, I betcha. I KNOW I wudda!

 

[billyshelby]

Heh, spoken like a true zealot, Biley. Those Buddisht monks who torched themselves to "protest" the vietnam war sure accomplished a lot, ya know?

Just guessin, of course, but I spect that feelin of burnin alive wasn't nuthin nice. Whoever was in the crowd, watchin, eggin them on, and cheerin probably got a big-*** kick outta seein it though, I betcha. I KNOW I wudda!

Uh, yeah aint, that's a perfect analogy.

 

[Hopper]

If ya don't like the analogy, then mebbe ya shouldn't autta make it, eh?

Walker, at worst [is] the guy who poured gasoline on himself to make a political statement

 

[Gyp Rosetti]

I heard the one Buddhist monk who set himself on fire remained seating and unflinching for something like 10-15 minutes as his body burned. Is that true? Do they have this sort of thing on youtube? PM me if so.

 

[One Brow]

I have no idea what's in his head either, but I think he made major mistakes here. He tried to play both sides of the fence, and did very poorly at it, I think. ... and he was ignoring (and therefore violating) all relevant precedent anyway, so what does he have to lose by revealing his agenda up front?

As I have already noted, what strikes me most about this question is the utter hyprocrisy and solipsism shown by Walker. ... Fundamental fairness and logic seem to be far removed from whatever his motives are and his thinking is, if ya ax me.

"Not subject to courtroom factfinding," see? Nice try, there, Judge Walker.

They were very selective, as has been his approach to everything in this case it seems. He just ignores (rather than acknowledge and attempt to distinguish) controlling precedents, such as Baker v Nelson, so this is not really surprising, I guess.

Heh, spoken like a true zealot, Biley.

Specks and planks, Hopper.

 

[billyshelby]

If ya don't like the analogy, then mebbe ya shouldn't autta make it, eh?

You're right. I made the analogy, you went with it. +1. I'm guessing Walker has enough sense to stick with being a figurative martyr and will sleep well the rest of his days. I'm also guessing the Monk changed his mind within milliseconds and didn't graduate at the top of his class in Monk School. Maybe there will come a day when children in federally funded reparative therapy schools are taught the cautionary tale of a scary judge who thought they were normal. Sadly, I won't see it because by then I will have moved to a more enlightened country like North Korea or Iran.

 

[Hopper]

Specks and planks, Hopper.

So, then, I'm axxin myself: "Zup wit dat? Some kinda pirate thang, dat it? Like where ya takes every last speck they gotz, then makes em walk the plank, er sumthin?"

Then Betty Mae, who has been goin to church, regular-like, for about 97 years comes long an says: Hoppa, aincha knowin nuthin? That's from the Bible.

So, then I'm thinkin, who's says peoples can't make no radical changes, eh? Eric, he done went and got religion! Like, whooda thunk, I ax ya?

 

[Hopper]

I guess Arnie Schwarzenegger couldn't just leave it be at "choosin not to appeal," seein as how he had his attorney general file a brief in the appellate court actively opposing the issuance of a stay. Aint no "friendly suit," eh? Yeah, right.

https://www.ca9.uscourts.gov/datastore/general/2010/08/13/fileresponse.pdf

So, then, I'm lookin at this here motion for stay, the one filed by the prop 8 guys, ya know? Seems like the ninth circuit court of appeals done been down this here road before. Says there:

"In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), this Court interpreted “spouse” in a federal immigration provision to exclude partners in a purported same-sex marriage, and squarely held that “Congress’s decision to confer spouse status … only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.” Id. at 1042. This binding decision likewise forecloses Plaintiffs’ claims."

https://www.ca9.uscourts.gov/datast...tay_pending_appeal_Ninth Circuit_COMPLETE.PDF


Thing is, that ruling was made WITHOUT the benefit of Vaughn Walker's wise insight into the issue, so it really don't count, I figure.

Eric, if you're actually interested in the type of evidence, argument, and legal precedent introduced at trial by the prop 8 people, this motion provides (a neccessarily quite limited) summary of some of it.

 

[billyshelby]

Aint, does it even occur to you that every single landmark civil rights decision had to fight against an overwhelming tide of opposing decisions? It's like you think the only reason Brown or Loving passed muster is because somebody finally got the legal particulars right and had nothing to do with cultural shifts where the climate was finally right for people to understand that discrimination was happening on their watch.

 

[Hopper]

Aint, does it even occur to you that every single landmark civil rights decision had to fight against an overwhelming tide of opposing decisions? It's like you think the only reason Brown or Loving passed muster is because somebody finally got the legal particulars right and had nothing to do with cultural shifts where the climate was finally right for people to understand that discrimination was happening on their watch.

Did it ever occur to you, Biley, that homosexuals in California are not being deprived of the right to vote, the right to lodging, the right to enter public places, the right to enter into "domestic partnerships," etc.? The attempt to equate letting homos marry with the abolition of the enslavement of blacks don't fly with anybody except homosexuals, I'm afraid.

Even if you did want to equate the two, then the homos should git busy amendin the U.S. Constitution, instead of appealing to the Supreme Court, I figure. That's what it took to end slavery, not a Supreme Court case (which was powerless to amend the constitution).

Did you read the motion for stay I just cited, I wonder? Among other relevant information, that motion includes the exact same language used by Meese. It says the judge found that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes,” Ex. A at 127.

So, there ya have it, then, eh? It's in Exhibit A, at page 127.