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Key Points from Today’s Historic Prop 8 Ruling

August 4, 2010

There is a lot to say about today’s Prop 8 ruling.  Rather than trying to craft all the points I want to make into an overarching narrative, I’m going out outline what I find to be the most interesting and newsworthy points.  But first, to quote David Boies on Rachel Maddow, this case was a successful attempt to prove three points:

  1. Marriage is a fundamental right.
  2. Depriving gay and lesbian citizens the right to marry harms them and harms their children.
  3. Depriving gays and lesbians the right to marry will not help heterosexual marriage.

Here are the other points that are interesting:

  • As I mentioned in the previous post, one of the most important points, in the legal sense, is the that fact that Judge Walker clearly stated that a law that differentiates based on sexual orientation requires the most intense level of consideration, but fails to meet even the lowest standard.  In legalese, it requires the standard of strict scrutiny, yet Prop 8 doesn’t even meet the test of rational basis.  My attempt at translating: when laws distinguish between different types of people and are challenged on the basis of the 14th or 5th amendments (as they were in this case), they need to meet a certain standard.  There are three of these tests, the lowest of which is “rational basis” and the highest of which is “strict scrutiny.”  There’s actually a pretty good explanation of both at Wikipedia (strict scrutiny and rational basis).  This nuance is lost on a most layman (admittedly, I fall into this category), but it has a real impact in court according to the feedback I’ve seen from lawyers.
  • The other vital element of the ruling is in the “findings of fact.”  When an Appellate Court hears an appeal, there are two sets of findings that they examine from the last (lower) court to rule on the case.

    The first is the findings of law.  This is a matter of interpretation of the overarching legal theory, and this is the focus of the higher court’s review.  Essentially it’s the judge’s understanding and interpretation of the law applied to a specific case.

    The other issue is the finding of fact. This is the summary of the facts of the case as presented in the trial.  For example, the pro-Prop 8 side claims that same-sex marriage hurts kids, and the pro-equality side states that there is no research whatsoever to support this.  Judge Walker’s ruling very clearly refutes something like 80 of these claims that were invoked in the course of the trial with no support (according to Dahlia Lithwick on The Rachel Maddow Show tonight).  Upper courts can reconsider these facts, but generally defer to the lower court judge who actually heard the entire arguments.

  • For some of the best excerpts from today’s decision, check out Chris Geidner post at MetroWeekly’s Poliglot.  Definitely worth reading Judge Walker’s brilliantly written ruling.
  • Then there is the issue of the “motion to stay.”  This is the effort to delay the implementation of this ruling.  Without a motion to stay, gay couples in California would be getting married right now–and quickly before it could be taken away again.  However, after some confusion (as was witnessed by retractions from several major media outlets and my updates in the last post), it was realized that Judge Walker did issue a stay preventing couples from getting married.  This is in place and will be ruled on by next Tuesday.  If Judge Walker’s denies the stay on Tuesday, a higher court can stay Walker’s ruling until they have a chance to hear the appeal in their court.  For a dose of irony, check out this DailyKos diary that points out the twisted logic behind the stay.
  • Another issue that has been invoked by people like the National Organization for Marriage is the fact that Judge Walker is reportedly gay.  This is admittedly, on its face, a PR problem until you consider the question: would you say a female judge should recuse herself from a case looking at sexual harassment of a woman, or should a black judge should recuse himself from a case on racial discrimination?  No judge comes into a case without a personal history or perspective.  These people are selected because they demonstrated that  they can hear cases impartially, and Walker was nominated first by Ronald Reagan and then by George H.W. Bush.
  • Finally, Joe Sudbay, among others,  asked a key question before the ruling: What will President Obama say, if anything, about this decision?  Well, Kerry Eleveld at The Advocate got the answer from the White House communications staff:

    “The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”

    Technically true (though he wasn’t out front when it was being voted on and his words were actually used in advertising for Prop 8/against equality), but the argument that he’ll continue to promote equality while defending the Defense of Marriage Act in court is wildly insincere.  A thousand other people have said this, but how will Obama look in 30 years when he wasn’t on the right side of history on this–seemingly for political reasons.  I don’t think he’s gaining votes with this stand, and I’d bet he’s suppressing his own voter turn out with the inaction. Sign on to an open letter to the President at AMERICAblog.

  • You can thank the plantiffs in the case here.

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