2010 August 5
by Dave
A few choice quotes from Judge Walker’s decision to overturn Proposition 8, the ballot measure for an amendment to the California state constitution banning same sex marriage.
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates theEqual Protection Clause of the Fourteenth Amendment.
The evidence shows, however, that Proposition 8
played on a fear that exposure to homosexuality would turn children
into homosexuals and that parents should dread having children who
are not heterosexual.
The arguments surrounding Proposition 8 raise a question
similar to that addressed in Lawrence, when the Court asked whether
a majority of citizens could use the power of the state to enforce
“profound and deep convictions accepted as ethical and moral
principles” through the criminal code. 539 US at 571. The
question here is whether California voters can enforce those same
principles through regulation of marriage licenses. They cannot.
California’s obligation is to treat its citizens equally, not to
“mandate [its] own moral code.”
The prop 8 proponents brought a very weak defense and the Judge was having none of it. Their only argument that wasn’t shown to be a smokescreen for dislike of homosexuality was that since a slim majority of voters voted for it to be in the state constitution, then it must be allowed in the state constitution. Unfortunately this is not how the United States is set up.

The Constitution protects against not only Government overreach, but also against the tyranny of the majority. We cannot all vote that Jim should go to Jail because we don’t like Jim.

Some of the quotes in the above quotes are from previous Kennedy decisions.  This is a good move since Justice Kennedy will likely be the swing vote on the Supreme Court when this gets there.

Also Judge Walker laid out a very thorough and solid set of findings of fact that will be hard to dispute. This leaves the conclusions of law as the likely future attack vector.

I doubt that the Roberts court that recently extended first amendment protection to corporations will contort itself to deny fourteenth amendment protection to homosexual people. I would not be surprised if they refuse to hear it once it comes out of the 9th Circuit Court of Appeals.

It’s nice when something goes right in the world for a change.
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