Breaking News - Gay Marriage Ruling

[Walden]

Per the article:"A federal judge on Tuesday upheld a gay judge's ruling to strike down California's same-sex marriage ban. Chief U.S. District Judge James Ware said former Chief Judge Vaughn Walker did not have to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved Proposition 8 was unconstitutional."

The article can be found here.

Let the games begin............

[Duncan]

Per the article:"A federal judge on Tuesday upheld a gay judge's ruling to strike down California's same-sex marriage ban. Chief U.S. District Judge James Ware said former Chief Judge Vaughn Walker did not have to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved Proposition 8 was unconstitutional."

The article can be found here.

Let the games begin............

so it is in then at least in California?

[thesometimesaint]

Duncan:

It is a federal decision it applies to all the states unless appealed.

[DH]

Cool.

The decision makes sense (to me), for otherwise one would have to assume that all straight judges are biased against gay marriage.

[BCSpace]

The ruling does not settle the legal fight over Proposition 8. The 9th U.S. Circuit Court of Appeals is considering whether Walker properly concluded that denying gays and lesbians the right to marry violates their rights to due process and equal protection.

[LeSellers]

Duncan:

It is a federal decision it applies to all the states unless appealed.

The question was about a California Constitutional amendment, and this applies only in California.

So, it only applies to the district where the opinion was rendered.

Lehi

P.S.: I'm not a lawyer, but I saw one on TV. LS

[Duncan]

The question was about a California Constitutional amendment, and this applies only in California.

So, it only applies to the district where the opinion was rendered.

Lehi

P.S.: I'm not a lawyer, but I saw one on TV. LS

I am a Canadian in real life and not! I know not from whence US laws are hewn! Though I hope Boston wins the Cup on Wed.

[ELF1024]

Per the article:"A federal judge on Tuesday upheld a gay judge's ruling to strike down California's same-sex marriage ban. Chief U.S. District Judge James Ware said former Chief Judge Vaughn Walker did not have to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved Proposition 8 was unconstitutional."

The article can be found here.

Let the games begin............

A friend of mine pointed out that you don't have recuse yourself if your a female judge on a sexual harassment case. Nor is it an issue to rule on a civil rights issue while a minority. So I have to agree with the court that the ruling makes sense. While I may not be happy with it, I do have to agree that it was a good ruling under that logic.

[frankenstein]

"We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right," Ware wrote. "The single characteristic that Judge Walker shares with the plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen."

[frankenstein]

Duncan:

It is a federal decision it applies to all the states unless appealed.

I am not sure about that. I think it would only apply the 9th until the SCOTUS makes a decision.

[Daniel2]

Duncan:

It is a federal decision it applies to all the states unless appealed.

Hey, Sometimes,

It's not clear to me what you mean by the above, but just to clarify: Walker's ruling declaring Prop 8 to be unconstitutional doesn't apply to all states, and continues to be suspended due to an appeal court's ruling to review Walker's ruling, itself, which is scheduled for September of this year. Even then, regardless of that appeal court's ruling, it's likely to be appealed eventually to SCOTUS. At that time, their decision will likely THEN become applicable to "all states."

At least, that's my understanding of the issue.

By way of additional clarification:

Distict Court Denies Motion to Vacate Prop. 8 Ruling

JUNE 14, 2011

Quotes of note:

“The sole fact that a federal judge shares the same circumstances or personal characteristics with, other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.”

“The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself.”

“Further, such a standard “would come dangerously close to holding that minority judges must disqualify themselves from all major civil rights actions.” Alabama, 828 F.2d at 1542.”

“These cases lead the Court to adopt the following legal conclusion: In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).”

“Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.”

“The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.”

“[D]isqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors.”

“Thus, to base a recusal standard on future subjective intent to take advantage of constitutional rights is to create an inadministrable test, frustrating congressional efforts to protect judicial integrity with a clear, mandatory recusal statute.”

“In this context, the “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather a “well-informed, thoughtful observer” who “understand all the relevant facts” and “has examined the record and law.””

“A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is

presumed, all federal judges maintain…To assume otherwise is to engage in speculation about a judge’s motives and desires on the basis of an unsubstantiated

suspicion that the judge is personally biased or prejudiced. Mere speculation of that nature does not trigger the recusal requirements of Section 455(a).”

“In fact, the Court observes that Judge Walker, like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent. Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming. Contrary to the intent of Section 455, which was designed to preserve judicial integrity through practices of transparency, it is clear that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts.”

[Download a PDF version]

Daniel2

[Mordecai]

"We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right," Ware wrote.

Special recognition is not a fundamental right. It's not even a fundamental right for a married (straight) couple to be recognized by the federal government for their union.

[SeattleGhostWriter]

Per the article:"A federal judge on Tuesday upheld a gay judge's ruling to strike down California's same-sex marriage ban. Chief U.S. District Judge James Ware said former Chief Judge Vaughn Walker did not have to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved Proposition 8 was unconstitutional."

The article can be found here.

Let the games begin............

Let us not mention that these Gay activists violated the United States Constitution where the People voted for Traditional Marriage. Hope they remember this day when they wake up and their voting rights are revoked because that is essentially what they have done.

[Daniel2]

Let us not mention that these Gay activists violated the United States Constitution where the People voted for Traditional Marriage. Hope they remember this day when they wake up and their voting rights are revoked because that is essentially what they have done.

In the words of Ayn Rand:

"Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual)."

Time will tell whether or not "civil marriage" is ruled to be a civil right for same-sex couples by SCOTUS.

Beyond that, I'm not sure what you're intending to imply concerning the revokation of gays' and lesbians' right to vote.

Daniel2

[frankenstein]

Special recognition is not a fundamental right. It's not even a fundamental right for a married (straight) couple to be recognized by the federal government for their union.

marriage to a person of ones own choosing is a fundemental right. there is no special recognition.

---------------

SeattleGhostWriter, majority vote can not vote away rights of another group. And before any starts, You can not honest deny that there was a right to ssm in California, and you can not honestly deny that prop 8 was intended to take away that right.

---------------

whats the difference with the intent and effect of the prop 8 and the Edmund's Tucker act and like legislation to Edmunds Tucker. It would that is prop 8 is a legit exercise in democracy than so was Edmunds Tucker and the like.

[Mordecai]

marriage to a person of ones own choosing is a fundemental right. there is no special recognition.

Really? If it's not special recognition, why do people want it so much? Why don't people just live together and leave the gov't out all together? Marriage doesn't inherently require federal recognition at all. It's "the carrying out of the decision to live as husband and wife," which involves a ceremony and legal contracts. Not necessarily FEDERAL recognition. Who is out there saying, "Marriage is garbage! There's nothing special about it!" The recognition of a special thing is "special recognition."

[Stargazer]

marriage to a person of ones own choosing is a fundemental right. there is no special recognition.

Interesting claim, but unfortunately overbroad and incorrect. Laws exist which prohibit all kinds of marriages. You and your 9 year old girlfriend may not marry. A couple who are respectively seven and eight years old may not marry each other. Regardless of the respective ages involved, you cannot marry your daughter, she cannot marry her brother, and so on and so forth. You may not marry your dog, your cat, or your parakeet, no matter how much you love them. If I decided that I wanted to marry Judy Garland, I would not be able to do so -- and before you get clever and say that i could be sealed to her in an LDS temple, note that I am talking about state-recognized marriages.

So, the claim that there is a fundamental right to marry any person one chooses to be married to is specious on its face. As I've pointed out in another post, the right to marry a person of the same sex has never, ever, at any time or in any place in human history been a right. The fact that a certain segment of society is trying to gain such a "right" makes it nothing more nor less than a "very special" right.

The thing is, I am pretty much implacable on this subject. Apples are not pears, and whether or not one is successful in getting the judiciary or the legislature to declare they are identical fruits does not in the end make them the same fruit.

It was high time that we stopped putting gays into prison and insane asylums because of their sexual orientation. Having done so, however, taking this extra step further would take us firmly into the surreal and the absurd.

SeattleGhostWriter, majority vote can not vote away rights of another group. And before any starts, You can not honest deny that there was a right to ssm in California, and you can not honestly deny that prop 8 was intended to take away that right.

No right was created. Therefore, no right was taken away. Interesting that you argue that there is no special right, and then state "rights of another group." You're talking out of both sides of your mouth, I'm afraid.

[frankenstein]

No right was created. Therefore, no right was taken away.

There was a right to ssm in california, it was a State right in for Ca. citizens, you can not be honest claim otherwise.

It is a fact that is now a part of history, and testified too by the 18,000 legal ssm in Ca. at this very moment.

that you spin and dance around the issue is quite another topic of discussion, but a honest person can not claim there was never a legal right to ssm in california. though what many people don't understand is that ssm is still legal in california, as california allows for the changing of gender on birth certificates.

and as for marriage being a fundemental right, that too is a fact and the law.

Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”);

[frankenstein]

Let us not mention that these Gay activists violated the United States Constitution where the People voted for Traditional Marriage. Hope they remember this day when they wake up and their voting rights are revoked because that is essentially what they have done.

One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. West Virginia State Board of Education v Barnette, but what different could one expect from a activist Judge who states that flag saluting and saying the pledge can not be mandatory.

[cdowis]

Duncan:

It is a federal decision it applies to all the states unless appealed.

This merely keeps the status quo. It was a long-shot, and nothing has really changed.

[cdowis]

and as for marriage being a fundemental right, that too is a fact and the law.

Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”);

So, you think the courts has done away with incest. A father can marry his daughter, for example. Your interpretation of these rulings is obviously flawed.

One has the *right* to get a driver's license, do they not, but the state does not grant them to a person who is blind. An individual has a right to practice law, but only after they have met the requirements.

Having a *right* does not overshadow the *responsibility* of civic authority to govern and grant a license based on reasonable criteria == a father cannot marry his daughter, a blind person cannot get a driver's license, an untrained person to practice law, and same-sex couples from getting a marriage license.

A person has a right to spend his own money as he pleases, but the government imposes taxes which overshadows his right to spend it on other things. Our rights are limited by the rule of law and the needs of society.

In each of these cases, society has decided that it is in the best interest of society to deny those licenses, impose those taxes, create zoning laws, etc etc, and that overshadows the individual rights.

[Mordecai]

Apples are not pears, and whether or not one is successful in getting the judiciary or the legislature to declare they are identical fruits does not in the end make them the same fruit....

Couldn't have said it better. This is why I call it "gay-marriage dogma," and refer to the movement as a promotion of Orwell's "Newspeak." It's a sad day in American, when people want the gov't to help a segment of society to live in a fantasy world, where different things are the same and that represents compassion. I guess the Age of Enlightenment is over.

"The greatest inequality is to try to make unequal things equal."

--Aristotle

Of course, Aristotle was an idiot compared to the far left in America. They're clearly experts on morality, family, compassion, language and... well, pretty much everything.

[Daniel2]

I came across three articles of related, note-worthy news.

The first regards the momentum of the marriage equality movement in NYC, which is looking very positive in the very near future:

Support for marriage equality in NY gains momentum — Cuomo calls for a vote

LGBTQ Nation • Tuesday, June 14, 2011

New York Gov. Andrew Cuomo on Tuesday proposed a bill that would legalize same-sex marriage in the Empire State, setting the stage for a possible vote in both the State Assembly and State Senate within a matter of days.

If successful, New York would become the sixth state to legalize same-sex marriage, with Cuomo delivering on a promise he has made since before taking office in January.

“From the fight for women’s suffrage to the struggle for civil rights, New Yorkers have been on the right side of history. But on the issue of marriage equality, our state has fallen behind,” Cuomo said in a statement.

“For too long, same-sex couples have been denied the freedom to marry, as well as hundreds of rights that other New Yorkers take for granted. Marriage equality is a matter of fairness and legal security for thousands of families in this state – not of religion or culture.

“When it comes to fighting for what’s right, New Yorkers wrote the book, and marriage equality is the next chapter of our civil rights story.”

Marriage-equality legislation has passed numerous times in the State Assembly, but has been repeatedly blocked in the State Senate. In December 2009, when Democrats still controlled the Senate, the bill failed 38 to 24.

Hoping to avoid a repeat of 2009, Cuomo has repeatedly said he would not introduce a bill until enough “yes” votes are secured.

Assured of support in the Democrat-controlled Assembly, the Marriage Equality Act needs 32 votes in the 62-seat Senate to pass.

At this hour, 31 senators have promised support, and six remain undecided.

But the New York Post reported on Monday that privately, Cuomo has the votes needed, and that “far more of the [GOP] members are in play than anyone realizes, including some surprising names from conservative upstate areas.”

Following are the key point of Cuomo’s version of the bill, which includes language that would protect religious groups:

• Same-sex partners, when married under the law, would have equal rights as heterosexual couples.
  
• “No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility related to marriage shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex.” This includes spousal benefits for state employees who are married under the legislation.
  
• Clergy would not be required to perform same-sex ceremonies.
  
• Religious institutions would not be required to provide their facilities for services that conflict with their beliefs.
  
• Gender-specific language in New York law would be rewritten to be gender-neutral.
  

“The momentum we’ve been building all year has crested at a very opportune time,” said Ross Levi, executive director of the Empire State Pride Agenda, the state’s largest gay lobby group.

“We’re greatly encouraged that the support in the Senate is now bipartisan,” he said. “We think this is a very strong environment to go into these remaining days of the legislative session,” said Levi.

And the second snippit from a separate article indicates that the pro-Prop 8 Defense Team has announced they will be appealing the most recent dismisal of their motion to vacate, based on Judge Walker's same-sex relationship:

Attorneys for Proposition 8 proponents said they would appeal the ruling upholding Walker’s ruling in San Francisco.

“The ProtectMarriage.com legal team obviously disagrees with” the ruling, Charles Cooper, lead counsel for the measure’s sponsors, said in an e-mailed statement. “Our legal team will appeal this decision and continue our tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman.”

The third article refers to yet another new ruling (issued this past Monday) that DOMA is unconstitutional, this time by the US Bankruptcy Court for the Central District of California:

Bankruptcy Court: DOMA Unconstitutionally Limits Same-Sex Married Couples From Joint Bankruptcy Filing

Posted by Chris Geidner

June 13, 2011 8:51 PM

Today, the U.S. Bankruptcy Court for the Central District of California, in Los Angeles, released an opinion finding Section 3 of the Defense of Marriage Act unconstitutional in a bankruptcy filing brought by a same-sex married couple, Gene Douglas Balas and Carlos A. Morales.

The underlying basis for the challenge was described by the court:

This case is about equality, regardless of gender or sexual orientation, for two people who filed for protection under Title 11 of the United States Code (Bankruptcy Code). Like many struggling families during these difficult economic times, Gene Balas and Carlos Morales (Debtors), filed a joint chapter 13 petition on February 24, 2011. Although the Debtors were legally married to each other in California on August 20, 2008, and remain married today, the United States Trustee (sometimes referred to simply as “trustee”) moved to dismiss this case pursuant to Bankruptcy Code § 1307© (Motion to Dismiss), asserting that the Debtors are ineligible to file a joint petition based on Bankruptcy Code § 302(a) because the Debtors are two males.

It is important to note that the case was filed on Feb. 24, one day after President Barack Obama's position that Section 3 of DOMA was unconstitutional was announced in a letter sent from Attorney General Eric Holder to House Speaker John Boehner.

As the court summed about the trustee's position:

The trustee seeks dismissal solely because the Debtors are a same-sex married couple, in violation of DOMA’s definition of “spouse” as the statute applies to Bankruptcy Code § 302(a).

The case had been brought to the attention of the House Bipartisan Legal Advisory Group, which is defending the Defense of Marriage Act in several other cases, but the BLAG had not intervened in this case, according to the opinion:

The House Bipartisan Legal Advisory Group, acting through the United States Trustee, at the last minute orally requested a short continuance of the May 17 hearing in order to determine whether to intervene in this case to address the issues. Debtors consented and the court granted the request; yet, there have been no further pleadings and no challenge from the government to any issue raised by the Debtors. The government’s non-response to the Debtors’ challenges is noteworthy.

After reviewing the law as it relates to DOMA, the court concluded:

This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors. Debtors have urged that recent governmental defenses of the statute assert that DOMA also serves such interests as “preserving the status quo,” “eliminating inconsistencies and easing administrative burdens” of the government. None of these post hoc defenses of DOMA withstands heightened scrutiny. In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision. The court has no doubt about its conclusion: the Debtors have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled.

The opinion is then signed by 20 of the 24 (or 25) bankruptcy judges in the district, presumably to show that a majority of the bankruptcy judges in the district approved of this method of addressing the question in the district. (The confusion comes because one of the signatories, Kathleen Thompson, is not listed as a judge on the court's website.)

Read the opinion: 57794777-DOMA-Memorandum-of-Decision.pdf

[Stargazer]

There was a right to ssm in california, it was a State right in for Ca. citizens, you can not be honest claim otherwise.

It is a fact that is now a part of history, and testified too by the 18,000 legal ssm in Ca. at this very moment.

Therre was no right to ssm in California. There was governmental action that was later overturned by the voters. Or are you arguing that the people don't have the right to tell their government "No!"?

that you spin and dance around the issue is quite another topic of discussion, but a honest person can not claim there was never a legal right to ssm in california. though what many people don't understand is that ssm is still legal in california, as california allows for the changing of gender on birth certificates.

So what? If the legislature in your state, whatever it is, declared that horses had the right to vote, which was later overturned by a court or by the voters, would you still maintain that horses had had a right taken away from them? There is no right to marry a person of the same sex, there has never been such. Irrespective of whether you want it, Daniel2 and California Boy both want it, and the government of California wants it, the voters (who are the ultimate authority in the state) don't want it. I understand the desire to create this new right, I just have no sympathy or agreement with it.

and as for marriage being a fundemental right, that too is a fact and the law.

Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”);

I've said it before, and you haven't responded except to claim that in California a right to ssm existed, that marriage is not a fundamental right. There have been rules and laws governing it from time immemorial, and where there are rules saying that some marriages may not be contracted, then there is no fundamental right to it. Such other rights, such as the right to life, the right to free speech, and the right to own and control property, ARE fundamental rights. The only way these rights can be taken away is through due process (as a result of commission of crime), and every person is born into this world having these rights without the possibility of prior restraint. But the right to marry has always been understood as having limitations. One limitation has always been a restriction on the genders of the parties. Just because you want the restriction lifted does not make same-sex marriage a right, regardless of how briefly it was permitted in one state.

[Stargazer]

I came across three articles of related, note-worthy news.

The first regards the momentum of the marriage equality movement in NYC, which is looking very positive in the very near future:

And the second snippit from a separate article indicates that the pro-Prop 8 Defense Team has announced they will be appealing the most recent dismisal of their motion to vacate, based on Judge Walker's same-sex relationship:

The third article refers to yet another new ruling (issued this past Monday) that DOMA is unconstitutional, this time by the US Bankruptcy Court for the Central District of California:

If in time to come the electorate become either so in favor of or so tired of the issue being brought up, that they allow their legislators to create a right to same-sex marriage, then it will exist. Until this happens, there is no such right. And in my personal opinion, if in that day it becomes true that there is a right same-sex marriage, it will be a parody of marriage, which always has been, is, and always will be, only possible between a man and a woman. As I said, calling apples pears does not make them pears.

I will never recognize two men or two women "married" to another as a marriage. That much is certain, whatever else goes down the pike.