Prop. 8 Ruling Matters Less than Judge's Findings

AP / CBS

A federal judge today ruled that California's Proposition 8, which bans same-sex marriage, is unconstitutional. The landmark case could ultimately land before the Supreme Court.

However, the thing to remember here is that the ruling itself matters less than the facts Chief U.S. District Judge Vaughn Walker finds.

The appeals court can consider the law de novo - from scratch. But it owes significant deference to Judge Walker's findings of facts -- which are, from the perspective of proponents of Prop. 8, pretty devastating.

Walker seems to go out of his way to try and demolish the secular arguments against same-sex marriage:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.

2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed over time; women were given equal status; interracial marriage was formally legalized; no fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy "are well-documented in human history."

6. Sexual orientation is a fundamental characteristic of a human being.

7. Prop 8 proponents' "assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."

8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

9. California has no interest in reducing the number of gays and lesbians in its population.

10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."

11. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

12. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.

The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

13. "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."

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The Atlantic's Marc Ambinder is CBS News' chief political consultant. You can read more of his posts in Hotsheet here. You can also follow him on Twitter.

[billorights]

This entire debate, according to the homosexual agenda, is about equal rights. Like it or not, there is no disparity of marriage rights between homosexuals and straight people. We all have the exact same right to marry one person of the opposite sex. That's what marriage is, always has been, and always will be. Civil unions can provide property and inheritance rights, and other laws can provide benefits equal to marriage to persons in civil unions. But that's just not enough, is it? What you really want (see "fact" #12 in the story) is equal social status and acceptance, which you believe can mandated from the "unenlightened" whose only argument, according to you, is hate and religious dogma. You can live any way you choose, but that doesn't make it marriage, civil or religious. Why do you suppose governments got into the business of regulating marriage? Hint: It wasn't to persecute you.

[neonzx]

How sad for these fundie gay-bashers... their dreams of the US of A being a Christian theocracy seem to be taking a beating almost daily. Soon, they will no longer be able to oppress the LGBT community. Who, then, will be their next minority group to demonize?

[geniusmp2001]

Gamers. Its already begun.

[snooper3]

Oh, don't worry, they will always have us atheists :)

Luckily fundies are a dying breed. Unless you count the Druggars...

[Chapeltepec]

The only fact that is important here is that this federal judge is stuck on stupid! As Abraham Lincoln once pointed out, "calling a dog's leg a tail doesn't make it so", and calling a homosexual relationship a marriage doesn't make it so either because the fundamental and unchanging law of nature here is that women and men are physically different and claiming they aren't will change nothing in Mother Nature's eyes. A man or a judge can not repeal the laws of nature no matter how eloquent or loud their arguments! Get real, judge!

[JakePH]

But ... but ... but ... but ... gays. Eww.

You need a better argument than that, and that is all the homophobes ever had.

[verypublishedwriter]

There's been much good news this year: health-care reform, financial reform, improved international image (I regularly travel and see this almost every day). Now this: wonderful and, as our President might say, "the right thing to do."

Now, let's get on with profound, abiding, planet-saving environmental legislation; substantive, fair, large-hearted immigration reform; deep, progressive education reform.

Vote Progressive this (and every election-year) November!!! Vote anti-Regressive this November!!

[tallguy37]

Judge Walker did manage to prove one thing with his 13 "facts." He is totally biased on this case.

[richardbl-2009]

I agree -- his bias towards truth and fact must be quite devastating for those interested in thumping the bible and telling consenting adults what they can and can't do with each other.

[geniusmp2001]

I think we need some more clarification here. Of course he's biased, its just that his bias is toward reason, rationality, and the Constitution. Now, if you're claiming that he is inappropriately biased, that's another thing entirely.

[RexKamper]

This is pathetic, another example of how screwed up this country really is. The people of California voted, and they did not want same sex marriage...That should have been IT! We have people living in boxes, children starving, and more, but all we have to worry about are two guys or two women marrying each other??? I am far from a religious person but I believe that marriage has always been the union between a man and a woman for the purpose of having children. There is no biological reason for two men or two women to be married! It's a slap in many, many peoples faces. There are many studies that show children raised without both a mother and father figure suffer. This is sick and a huge step backward for the USA. I hope California DOES break off and sink into the ocean now!

[smitvict]

"There are many studies that show children raised without both a mother and father figure suffer."
--------------
So, when are we going to see the divorce ban? What about taking away children of single parents and putting them in "appropriate" family units?

Biological Reason? I thought marriage was a bit more than that.

[darkeyes9090]

with all the evil etc. in the world, this is the issue that makes you say something (Calif sinking into ocean)that means the death of millions? You really are a good person of faith.

[DaVicar8]

by geniusmp2001 "No person shall be...deprived of life, liberty, or property, without due process of law; - - - "14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;"



I would think that having the people of California vote on, and pass this LAW twice, would fall under "due process".

[geniusmp2001]

You might think that. But you'd be wrong, because "due process" doesn't just mean whatever you want it to mean. It has a specific definition in legal terms:

"Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state."

In other words, the Constitution trumps bad laws. Like just happened here.

[smitvict]

The word whoop @ss comes to mind on this one. Finally, the 1000 lb elephant in the room has been exposed for all to see. The argument against gay marriage has no basis except certain people's extremist religious views.

Luckily in our society, that prejudice is being dismantled one piece at a time. Soon the same freedom from discrimination will be available to same sex couples. Wow.

[DaVicar8]

"Soon" will happen when you pry my cold, dead hand from my ballot.

[smitvict]

Funny, the same attitude was in Alabama when George Wallace stood in the schoolhouse door. Civil rights trump states rights every time. Nobody needs to pry your ballot from your hand.

[geniusmp2001]

by DaVicar8 August 5, 2010 10:32 AM EDT
Marriage isn't mentioned in the Constitution, so how can it be found to be unconstitutional?
Nobody has a "civil right" to get married - anyone can apply, but they must meet certain requirments, just like if they were applying for a fishining license.
--

Its unconstitutional because being married confers specific legal rights and protections, and the 5th and 14th Amendments guarantee that all citizens have the right to due process and equal protection under the law. Prop 8 basically said that gay people weren't allowed to have the same legal protections as straight people, so it violates these amendments. (Note, IANAL.)

[DaVicar8]

"and the 5th and 14th Amendments guarantee that all citizens have the right to due process and equal protection under the law."

IF that were the case (and it is not) why can't able-bodied people park in handicap spaces? How come only "authorized vehicles" can make u-turns on a highway? Why can't men undress in womens toilets? Why do you have to be at least 44" tall to ride a roller-coaster? Why aren't people allowed to enter the monkey cage at the zoo? How come you have to be quite in a library - what if you're hard of hearing? How come 12-year-olds cant get Social Security retirement benefits, how come rich people can't get gov'ment cheese of food stamps???

Your America, where everybody gets to do everything they want to do does NOT exist . . . and for a darn GOOD reason!

[geniusmp2001]

Okay, well to start, lets look at the text of the Constitution.
5th Amendment: "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
So yeah, actually they do say exactly what I thought they said.

As to your examples, you're largely noting specific actions that people might take. Most of them aren't even illegal, and are thus not relevant in any way. Libraries, amusement parks, and zoos have rules, not laws. The tactic you're using is known as a "straw man." To quote Wikipedia:

"To "attack a straw man" is to create the illusion of having refuted a proposition by substituting a superficially similar yet weaker proposition (the "straw man"), and refuting it, without ever having actually refuted the original position."

The short answer is that one's right to due process and equal protection are not a "do whatever you want" provision, and I never claimed they were; you did. What they are is a guarantee that you cannot single out a group of people and tell them they're not allowed to do something that everyone else is allowed to do. This is particularly true when taking that action provides legal protections, as getting married does.

[jgg000101]

funny how the article doesn't mention that prop 8 has been voted on twice in california and been defeated, and that the judge is gay.

[smitvict]

And if the judge was straight would he have been unbiased? By your view, we would need to find a neutered judge to be impartial. I don't think there are too many of those around.