So, in case you haven't heard… Judge Vaughn Walker has been presiding over this trial since January, when evidence was presented, with final arguments in June. He released his ruling yesterday and said that little addition to the Calif. constitution violates the USA Constitution and is therefore to be removed. Of course, the usual talking heads on both sides did the predictable pontificating, so I won't go into it. And, of course, the losing side has already appealed to the 9th Circuit Court. And because of the appeal a stay has been issued which will likely remain until after the 9th Circuit and the Supremes have their say.
What is of interest (at least to me) is the reasoning behind the ruling, which most news sources don't bother with. Ari Ezra Waldman, faculty member of the California Western School of Law, discussed all that. What I have is a summary of his summary. It is possible to read all 138 pages of the decision. I may do that some day.
I hadn't known that when a case goes before the Circuit Courts they look at the two parts of the ruling in different ways. First there is the findings of fact that make up the case. Then comes the judge's decision, the conclusions of law, built on top of those facts. The Circuit Court takes these facts at face value unless they are "clearly erroneous." The job of the CC is to verify the decision built on those facts is correct. The rules for facts and conclusions will be different once the case reaches the Supremes. They do things their own way.
Judge Walker knew the case would be appealed (since both sides said from the start that if they lost that's what they would do) so he was very careful in laying out those facts. Waldman has never seen that done with such detail and complete documentation. Here are the major points of fact that Walker laid out (details in Waldman's article and in the text of the decision).
* This case is about civil marriage. Religious belief has no place here.
* Marriage is a state of commitment, not a construct in which to have children.
* Same-sex couples are just like opposite-sex couples.
* Domestic partnerships insufficiently recognize those relationships.
While those are sufficient, Marc Ambinder of The Atlantic lists more:
* Marriage is an institution that has changed over time.
* California has eliminated marital obligations based on gender (the state used to have specific roles for the man and the woman).
* Gays and lesbians have always been around.
* Sexual orientation is a fundamental characteristic of a human being.
* There is no evidence that sexual orientation is chosen, nor than it can be changed.
* California has no interest in reducing the number of gays and lesbians in its population.
* Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.
* Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
Based on those facts, Walker says that gays are discriminated against for no legitimate reason. There are legitimate reasons for some types of discrimination -- such as refusing a drivers license to a 14 year old -- but when the judge asked the anti-gay side for their reasons, all they could offer is the need to keep traditional marriage as it is.
The anti-gay side claimed that in wanting to marry gays are trying to establish a new right. Only straight couples have the right to marry whomever they wish (as was emphasized in Loving v. Virginia which eliminated the ban on interracial marriage). The only way gay and straight couples differ is in the natural ability to procreate. But since marriage isn't about procreation, but commitment, the existing fundamental right to marriage must be applied to gays.
Another part of the decision considers whether the Equal Protection clause of the Constitution has been violated by the marriage ban. To do that the judge can show equal protection was denied in either of two ways. The first uses a Rational Basis test. Does the law have a rational basis for its discrimination? The immaturity of 14 year olds is rational enough to deny them a drivers license. The second way is to use Strict Scrutiny, which involves higher hurdles, such as defining gays as a suspect class who are both persecuted and with insufficient political power to make changes on their own. That's saying the law is applied to a class of people, in the same way racial discrimination laws were applied to a class of people. There are probably a couple more criteria for Strict Scrutiny which I don't remember and weren't mentioned here.
Most judges use one or the other, depending on the case. Walker used both, describing how both methods show the law was enacted only because some people don't like gays. And that's not a legitimate reason to discriminate.
Here's a second analysis.
A bit of background, also from Ari Ezra Waldman, written the evening before the ruling was issued.
I'll give the closing words to George Washington (yup, that GW). He wrote them in a letter to the Jewish community in Newport, Rhode Island, who did not have full rights at the time. May it be true for gays soon.
It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.
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