Prop 8: Your Thoughts

A reader writes:

I live in California and I am excited about the ruling that came out yesterday. A couple weeks ago, my partner and I spent two weeks in Berlin and on our return, she was told by the US immigration officer that we were not family. Our family is transnational (I am on a US work visa), interracial (I am African she is Caucasian) and homosexual. Traveling is a source of stress for us because, in addition to me needing three visas for a two-week vacation, my partner and I often get separated like we did at SFO.

Since the government allows one family to fill out one customs form, the idealist in me and my (jet-lagged and ill) partner who did not want to deal with anything, decided to filled out one form. When we got separated I had it, she did not. Anyway, when the immigration officer on her end asked for her customs form, she told him I had it. He asked if we were married and she said we were domestic partners to which he responded "That is not family". While I do not let anyone definite anything for me, he is right, legally, federally, we are not family. We can't get married and I can't immigrate here by marrying her (fortunately I can through work in science). She is a second class citizen and I am a second class legal alien.

From a 59 year old gay man who has watched the movement since Stonewall:

I’ve been watching battles for a long time and found two things to be true: 1) we almost always lose. 2) you look back every five years and we’ve made significant progress. This will be no different. This court decision was a genuine victory.

A lawyer writes:

I really, really hate – as in, this is extra special slimy, even for them – the fact that only now, since the Prop 8 proponents have lost, is the whole "he's gay, should he have recused himself" meme starting to take hold. Folks, if you think your judge should recuse himself, you put on your big boy or girl pants and you file the damn motion. 22 years ago I did a jury trial for a client who was charged with molesting his kid. The judge originally assigned had handled the civil restraining order, and I felt that created bias, so I filed a motion to recuse, which he granted. (By the way, with a different judge, the jury acquitted in 55 minutes.) About a week later, I ran into that judge and started to apologize for the motion. He cut me off before I could finish and he said, "You should never, ever apologize for doing your job. Ever." The point is this: if you are a good lawyer, and you've got grounds, you file that motion. And if you don't file it, either a) you're not a good lawyer, or b) you got no grounds in the first place, and you know it.

And the Prop 8 proponents knew it. And didn't file it. Because there was nothing to file. It's no more bias to be gay in this case than it would to be African American, Latino, Jewish or female in a discrimination case. This is a smear. And a cowardly smear at that. Nothing less.  

Another reader:

If straight marriages like mine are truly impacted negatively by gay marriage, as many Prop 8 supporters claim, then a straight judge would have to recuse himself as well. He'd HAVE TO - because his group would (supposedly) benefit from Prop 8. If black judges shouldn't be deciding civil rights cases because they benefit from the outcome, then white judges shouldn't either, because civil rights legislation (supposedly) impacts whites negatively (fewer seats on the bus, etc.) so the white judge can benefit from the outcome as well. You can always turn the scenario around and see how the race/gender/religion/sexual orientation of the allegedly unbiased group is every bit as biased in a tangible way. This idea that only one group is biased is preposterous. The problem is so few people bother trying to see things from another groups' view it never occurs to them that their group will potentially benefit from the decision as much as the other group.

Another lawyer:

The issue is not whether gender plays a role in society, it is whether it plays a role in a marriage.  Are the genders equal under federal law in a marriage?  The answer right now is yes.  If they are not equal then this is a MUCH bigger deal for all married persons not just homosexuals.  You want to see Mama Grizzilies in action, try having Scalia saying that women’s role in marriage are not equal to men’s.

Yet another lawyer:

Technically, appellate review of facts is based on the substantial evidence test -- is there competent evidence in the record which, if believed, supports the trial court's findings of fact?  The appellate court cannot weigh credibility in this assessment.  The trial court judge was in the best position to hear and weigh the evidence, credibility of witnesses, and so forth.  So where facts are contested, if the trial court chooses to believe one side but not the other that decision should not be reversed.  Conclusions of law -- application of law to facts -- are reviewed "de novo" -- without deference to the trial court.  So it is not surprising that Judge Walker spent so much time on the findings of fact.  If (a big if) the appellate courts adhere to the normal rules of appellate review, they should not disturb Judge Walker's findings.  If they are inclined to reverse, it will be done by disagreement with Judge Walker's statement of the law or how he applied that law to the facts.  That task is made more difficult where explicit findings, supported by substantial evidence, have been entered.

A final reader:

I don't know if Drum read the opinion or not, but I did, and to argue that it "essentially ruled that bans on same-sex marriage are nothing more than an "artifact" of history..." is a gross misreading of the ruling. I agree with other readers that fact finding is extremely important, but a lot of that is merely a measure of what the attorneys did. The meat of the reasoning comes from the last 20 pages or so, and while he mentions the "artifact of history" argument, he only does so to underlie why "tradition" cannot be a rational basis for the law, and backs it up with precedent.

The bulk of the reasoning is straight (excuse the pun) fundamental right/due process and equal protection analysis. He states that the Supreme Court recognizes marriage as a fundamental right, and that triggers strict scrutiny. So Drum is 100% wrong that only a rational basis is necessary. Impinging on a fundamental right requires the very rigorous strict scrutiny test, not the rational basis one. Walker chooses not even to address the strict scrutiny argument because he finds that respondents cannot even give a rational basis, much less the much tougher "compelling government interest" test that the law is "narrowly tailored" to meet. Strict scrutiny is so tough a test that only a handful of laws have met it, and I couldn't name you a case where one could, and I've studied this stuff quite a bit.