Monday, February 06, 2012

9th Circuit Ruling On California's Prop 8 Expected Tomorrow

An important 9th Circuit Appeals Court Ruling On Perry v. Brown, which concerns California's Proposition 8 repealing same sex marriage is expected tomorrow.

There are three important points at issue: First, whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case, seeing that he happens to be gay, has a long-time partner with whom he was not married and thus would seem to have a personal interest in the case.

Second, whether the proponents of Proposition 8 have standing to appeal Walker's decision striking down Proposition 8 as unconstitutional when none of the State of California's officials who normally defend the state's laws from legal challenges decided to do so, including then-Governor Arnold Schwarzenegger and then-Attorney General and now Governor Jerry Brown Attorney General declined to appeal th ejudge's decision.

And finally, if Walker did not need to recuse himself and the proponents do have the right to appeal, was Judge Walker was correct that Proposition 8 violates Californians' due process and the equal protection clause in the U.S. Constitution.

My guess is that the 9th Circuit will punt, especially as this is a ruling by the public information office rather than an actual judicial panel. In other words, they will rule that the plaintiffs have standing, but that Judge Walker did not need to recuse himself. And the full 9th Circuit can then go about its business of ruling Prop 8 unconstitutional and handing it off to the Supreme Court, if they decide to hear the case.

This is yet another example of same sex marriage proponents imposing their will via judicial or legislative action rather than by referendums. As a matter of fact, when it comes to direct referendums to legalize same sex marriage, the record is 31-0 against, and in several cases, California, Massachusetts, and Iowa among them, laws permitting same sex marriage were implemented in spite of the very clear wishes of substantial public majorities.

Oddly enough, the California Supreme Court admitted when it originally legalized same sex marriage back in 2008 that the state's domestic partner laws saw to it that partners in a civil union were deprived of no rights that couples in heterosexual marriages enjoyed, but decided to enact what amounted to an ipse dixit( legalese for 'because I said so') decision that went far beyond citing any existing law.

Prop 8's passage as an amendment to California's constitution by a 2 to 1 majority, the well funded and high profile legal challenge, the governor and the attorney's general's failure to abide by their sworn oaths and defend California's constitution and the questionable ruling by Judge Walker followed.

The question of whether Prop 8 violated the Constitutional is an interesting one. It's obviously a severe stretch of the Equal protection clause, easily seen by the fact that proponents of same sex marriage always need to coflate it with the Civil Rights struggle when no such equivalence exists, but that's for judges to decide.

More important is whether the concept of same sex marriage is a bad idea for society as a whole, and whether imposing these kind of institutions on people by legislative and judicial diktat is a good precedent to establish.

Those are the bigger issues no one seems to want to discuss at all.


louielouie said...

their will via judicial or legislative action rather than by referendums.

also, via public service announcements, i.e., a series of public service announcements that are not presented as such, during NBA basketball games.

Rob said...

They're doing this during NBA games? Wow. I had no idea.