Prop 8 ruled unconstitutional

[New Wallonochia]

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Yes, but gays are icky. QED.

The more I hear about this the more hope I get that it'll eventually go to the Supreme Court and all the state laws against SSM will be thrown out.

[Karsol]

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Yes, but gays are icky. QED.

The more I hear about this the more hope I get that it'll eventually go to the Supreme Court and all the state laws against SSM will be thrown out.

Unfortunately you can't guarantee that. :/

[Enadail]

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Yes, but gays are icky. QED.

The more I hear about this the more hope I get that it'll eventually go to the Supreme Court and all the state laws against SSM will be thrown out.

Unfortunately you can't guarantee that. :/

Well, its why I asked for TCTs input, but my guess is if the Supreme Court found that one law banning gay marriage was in fact unconstitutional, on the grounds that marriage is a right for all people, it would be grounds for pretty much an instant repeal of all other laws banning gay marriage. Of course, it would depend on the exact outcome. If they simply found that Prop 8 wasn't legal but not on general grounds (which I find hard to fathom), I guess it could be limited to California. But I look at this the same as segregation laws... a bunch of states had them, but one supreme court ruling overturned all of them.

[New Wallonochia]

Unfortunately you can't guarantee that. :/

No, but I can hope. I guess I'm just politically optimistic this year since most of my preferred candidates won in my state's primaries this month. I'm sure I'll have all my optimism smacked out of me in November.

[Ashmoria]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

for sure

but what are scalia, roberts, alito and thomas going to give as reasons for why they find it constitutional? it should be fascinating.

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

here's my new question:

since it may be that the pro-8 people dont have legal standing to appeal (and those that do have legal standing--schwarzenegger and brown--arent interested in appealing) how does it end up in the supreme court?

[Ashmoria]

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

maybe they will go with the legal theory advanced by eric cantor as to why there should be a way to ban the mosque 2 blocks from ground zero "Everybody knows America's built on the rights of free expression, the rights to practice your faith, but come on."


http://www.youtube.com/watch?v=zyrbTSet ... r_embedded

[Farnhamia]

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

maybe they will go with the legal theory advanced by eric cantor as to why there should be a way to ban the mosque 2 blocks from ground zero "Everybody knows America's built on the rights of free expression, the rights to practice your faith, but come on."


http://www.youtube.com/watch?v=zyrbTSet ... r_embedded

Pretty much the "You thought we meant it about all that equality stuff? Please," gambit.

[Tekania]

Clearly same-sex marriage is unconstitutional... This is based on the fact that the US Constitution clearly defines the Christian Bible as the supreme law of the land as stated quite clearly in green crayon on the back of this original US constitution I acquired at the US Capitol gift shop.

[Ashmoria]

Clearly same-sex marriage is unconstitutional... This is based on the fact that the US Constitution clearly defines the Christian Bible as the supreme law of the land as stated quite clearly in green crayon on the back of this original US constitution I acquired at the US Capitol gift shop.

my sister tells me that legal scholar glenn beck backs this up. (she can take more than 3 minutes of beck, i cant) beck says that the writers of the declaration of independence and the constitution were DIVINELY INSPIRED. since god hates gays, it has to be unconstitutional.

[Karsol]

Clearly same-sex marriage is unconstitutional... This is based on the fact that the US Constitution clearly defines the Christian Bible as the supreme law of the land as stated quite clearly in green crayon on the back of this original US constitution I acquired at the US Capitol gift shop.

my sister tells me that legal scholar glenn beck backs this up. (she can take more than 3 minutes of beck, i cant) beck says that the writers of the declaration of independence and the constitution were DIVINELY INSPIRED. since god hates gays, it has to be unconstitutional.

What would beck know about divinity? He's a Mormon.

[Enadail]

Clearly same-sex marriage is unconstitutional... This is based on the fact that the US Constitution clearly defines the Christian Bible as the supreme law of the land as stated quite clearly in green crayon on the back of this original US constitution I acquired at the US Capitol gift shop.

my sister tells me that legal scholar glenn beck backs this up. (she can take more than 3 minutes of beck, i cant) beck says that the writers of the declaration of independence and the constitution were DIVINELY INSPIRED. since god hates gays, it has to be unconstitutional.

Now we argue which divinity inspired them

[Tahar Joblis]

Very true, but pair-bonding is not marriage, as I think we can both agree. And you're dead right that state and religion were not originally distinct, as religious leaders were also social leaders (we are talking about a time before cities). But actually, I realize my argument didn't support my case, nor does this yours: we're talking about a time before marriage had legal benefit. So its a moot point in the end. And are you saying American law is based on Anglican tradition? If so, I disagree.

American law is rooted in English common law. I didn't throw that out there out of ignorance.

And it is... in the US, legally, getting married by a minister means nothing until you go to a court house and get a marriage license. But no, there are no necessary "ceremonies" to get married, any more then there are "ceremonies" to get a drivers license. Go to the correct legal establishment, fill out the right forms, and you're done. For example, most likely when I get married it'll be a party with family and friends and a trip to the court house.

Legally. Actually, laws vary state by state. This is likely an accurate summary. You will note that it generally does tend to be the case that the priests/ministers/etc have official legal authority to officiate marriage ceremonies. By and large, this tends to look like "yes, this marriage ceremony is official and binding - please fill out this paperwork to make sure it gets into the records correctly."

Except that in many cases, it is quite clearly a religious practice without legal sanction. When a UU minister stands up in the year 1990 and says something along the lines of "I now pronounce you wife and wife," he could not anywhere in the United States be offering religious sanction to a legal practice. When a FLDS priest in Texas marries another teenage bride, he isn't doing a thing involving legal practice.

There is a religious practice of marriage. There is a legal (we might say civil) practice of marriage. That they conveniently happen to refer almost entirely to the same thing is not some odd coincidence.

They don't refer to the same thing at all... a religious marriage is not a civil marriage...

The fact that the majority of the time, they refer to the same thing is, again, not a coincidence.

in fact, by law, a religious marriage requires a civil marriage.

No, it doesn't. Few states/nations prosecute - perhaps I should say "persecute" - religious marriages being carried out without legal backing. In both the examples I gave, no legal trouble would typically result provided no marriage licenses were involved and all parties above the age of majority. That's the general case; as long as you don't try to actually exercise the legal benefits of marriage, and you don't defraud anyone into thinking they were going to get the legal benefits of marriage, you're usually within the bounds of the law.

Legally, a religious marriage means nothing until a civil marriage takes place. We have to talk in terms of legality, because that's the only basis for people to interact on at a universal level. You talking about a religious marriage without civil bounds means nothing to me, as I do not follow your religion.

To say that legally a religious marriage means nothing without a civil marriage is very circular. A civil marriage is a legal marriage, since it is one performed by an official of the state. Since there's a tautological identification between the legal status of the marriage and it being capable of being called a "civil marriage," that renders your point more than a little meaningless.

Nor is the religious marriage going to be meaningless to you. If you want to successfully interact socially, person to person, you'll want to acknowledge the reality of that bond, whether or not it has legal status.

Fair enough here. Though I will disagree that marriage is by nature bound to religion... marriage didn't start with religion, and not every religion has marriage. Marriage of a particular religion is bound to that religion, but that's as far as you can go.

[Enadail]

American law is rooted in English common law. I didn't throw that out there out of ignorance.

Thats true... but unless something has changed in English common law since last I read, its not directly linked to religion? Or did I miss a point?

Legally. Actually, laws vary state by state. This is likely an accurate summary. You will note that it generally does tend to be the case that the priests/ministers/etc have official legal authority to officiate marriage ceremonies. By and large, this tends to look like "yes, this marriage ceremony is official and binding - please fill out this paperwork to make sure it gets into the records correctly."

Yup, you're dead right that religious leaders often have legal authority to officiate ceremonies, but like you pointed out... in the end, its about the paperwork. See below (I feel like this goes into a second point you make, but don't feel like repeating myself ).

The fact that the majority of the time, they refer to the same thing is, again, not a coincidence.

No, it is a coincidence. As a majority of Americans are religious, it goes in part that most marriages are religious. And there are many marriages that are not religious, which are the same. So the underlying factor is that there is a civil marriage, which you can opt to go up to a religious marriage.

No, it doesn't. Few states/nations prosecute - perhaps I should say "persecute" - religious marriages being carried out without legal backing. In both the examples I gave, no legal trouble would typically result provided no marriage licenses were involved and all parties above the age of majority. That's the general case; as long as you don't try to actually exercise the legal benefits of marriage, and you don't defraud anyone into thinking they were going to get the legal benefits of marriage, you're usually within the bounds of the law.

I did phrase that wrong. What I meant is a religious marriage does not count legally until it gets the appropriate civil documentation. You're right, no legal issue if you don't have a license. Sorry about that.

To say that legally a religious marriage means nothing without a civil marriage is very circular. A civil marriage is a legal marriage, since it is one performed by an official of the state. Since there's a tautological identification between the legal status of the marriage and it being capable of being called a "civil marriage," that renders your point more than a little meaningless.

Nor is the religious marriage going to be meaningless to you. If you want to successfully interact socially, person to person, you'll want to acknowledge the reality of that bond, whether or not it has legal status.

Again, I apologize for choice of phrasing. You are correct in that, though my underlying still applies... a marriage is not legally recognized until the civil documentation is filed... a religious marriage without the appropriate licenses counts for nothing, from a legal point of view. And we have to discuss this from a legal point of view, as peoples religions, views on marriage, etc, change, sometimes person to person. If we discuss from a personal point of view, then the fact that I think I'm going to one day be the leader of the world also matters... to me of course.

[F1-Insanity]

The court that struck this down sure does hate african-americans and latino-americans, after all those two groups voted in favor of prop 8 to such a proportion that the caucasian-american vote (who voted against) was outvoted.

[Enadail]

The court that struck this down sure does hate african-americans and latino-americans, after all those two groups voted in favor of prop 8 to such a proportion that the caucasian-american vote (who voted against) was outvoted.

I'm not sure what that has to do with the situation, or the argument against it. I take you didn't bother to read the ruling, or the posts here... about how basic rights are not up for vote to curtail, how the Prop 8 argument stood no legal water, etc etc. It has nothing to do with who voted for it, by race, gender, religion. It has entirely to do with the fact that it was found unconstitutional.

And are you insinuating that the vote for Prop 8 was along ethnic lines? Because that may be among the dumbest things in this thread.

[F1-Insanity]

The court that struck this down sure does hate african-americans and latino-americans, after all those two groups voted in favor of prop 8 to such a proportion that the caucasian-american vote (who voted against) was outvoted.

I'm not sure what that has to do with the situation, or the argument against it. I take you didn't bother to read the ruling, or the posts here... about how basic rights are not up for vote to curtail, how the Prop 8 argument stood no legal water, etc etc. It has nothing to do with who voted for it, by race, gender, religion. It has entirely to do with the fact that it was found unconstitutional.

And are you insinuating that the vote for Prop 8 was along ethnic lines? Because that may be among the dumbest things in this thread.

Not entirely along ethnic lines, but at the time it was in the news that the three particular 'ethnic' groups I mentioned voted the way I just said. Just not 100-0 each. Religion was an inspiration for many voters and two out of those three groups seem to be slightly more religious (on average, and applies only to California in this particular case).

And how could a gay man in California not marry a woman, just like any other man? They might not like the limitations of marriage (fine, go ahead change it if you like), but to suggest it is discriminatory or even a civil rights issue is ludicrous. No rights are being denied, this particular right is only limited, not denied. Other rights are limited too (have to be 35 to run for president, 16 in many jurisdictions for driving lessons).

Marriage is overrated anyhow, I wouldn't miss it if it were abolished.

[The Cat-Tribe]

(I)f I remember an article I read correctly, at least in the western world, there is evidence that marriage originated as a civil matter, not religious.

The earliest record of marriage as a civil affair is the Codex Hammurabi... Which predates the Abrahamic religions by app 1200 years.

Yah, but there were religions before the Abrahamics, and I'm not qualified or currently informed enough to state their views on marriage.

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Wow TCT, thats a fascinating read. If I'm interpreting that correctly, does that mean that the judges people seem to think will oppose this have stated that banning gay marriage has no legal leg to stand on? If so, and this goes to the supreme court (which if I read your post correctly may not be possible, as the Prop 8 proponents cannot prove they are being injured by this decision), does that mean it would set precedence for repealing bans on gay marriages in the US? And if it stops here, does it mean anything for gay marriage bans in other states (legally that is)?

1. This means the Justices likely to oppose same-sex marriage and support Prop. 8 will have to do some fancy-dancing to reconcile their decision with Justice Scalia's prior statements. I have no doubt they will find a way to do so.

2. I personally don't think they have a leg to stand on, but that won't stop the conservative Justices (or 9th Circuit judges) from holding otherwise.

3. A 9th Circuit decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the 9th Circuit. A SCOTUS decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the United States. Even if either court found a way to limit a holding upholding Chief Judge Walker's decision on fact-specific grounds to Prop. 8 and California, it would still be persuasive precedent against similar laws in other states.

[Ifreann]

And how could a gay man in California not marry a woman, just like any other man?

What about women? Men can marry women. Women cannot. Bingo, discrimination.

[The Cat-Tribe]

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Yes, but gays are icky. QED.

The more I hear about this the more hope I get that it'll eventually go to the Supreme Court and all the state laws against SSM will be thrown out.

Unfortunately you can't guarantee that. :/

Well, its why I asked for TCTs input, but my guess is if the Supreme Court found that one law banning gay marriage was in fact unconstitutional, on the grounds that marriage is a right for all people, it would be grounds for pretty much an instant repeal of all other laws banning gay marriage. Of course, it would depend on the exact outcome. If they simply found that Prop 8 wasn't legal but not on general grounds (which I find hard to fathom), I guess it could be limited to California. But I look at this the same as segregation laws... a bunch of states had them, but one supreme court ruling overturned all of them.

Your general understanding is correct. A SCOTUS decision upholding Chief Judge Walker's decision would likely lead to all laws against same-sex marriage being held unconstitutional. Whether SCOTUS will actually rule that way is another question entirely.

[The Cat-Tribe]

so does this mean that the parties havent filed papers with the 9th circuit yet or that he is giving the court enough time to decide for itself about the stay?

The Prop. 8 proponents have appealed Walker's decision, but since he had not yet ruled on his stay motion, they have not yet appealed on the specific stay issue. He's giving them time to do so (and for the Ninth Circuit to decide, too.)

unless the 9th has already made up its mind (does only 1 judge have to decide to temporarily extend the stay?) then a week isnt really enough time to get all the paperwork in and make a decision, is it?

There are three judges from the 9th Circuit assigned to the "motions panel", who will hear the motion for a stay. They ought to have had their argument in favor of a stay ready by last Friday, when they had to file their argument for a stay with Judge Walker, but apparently as usual they made a really pathetic argument, so they may want to tweak it again before they go to the 9th. The problem is, they really don't have much going for them.

the more they cant come up with a good argument the more excited i get about the possibility of the supreme court agreeing that prop8 is unconstitutional.

i know they dont WANT to but without any evidence on the pro side, its gonna be hard for them to rule that it is constitutional.

The proponents' have no arguments whatsoever, to the point of absolute hilarity. That's what made reading Perry v. Schwarzenegger such a pleasure.

for sure

but what are scalia, roberts, alito and thomas going to give as reasons for why they find it constitutional? it should be fascinating.

Seconded.

I can't wait to hear them explain how, like, it's totally Constitutional because like, um, one man one woman, and like, um, tradition and stuff, and like, um, think of the children, and like, um, well, legislating from the bench or something maybe, and by the way this is TOTALLY NOT LIKE the anti-miscegenation laws, not even a little bit, shut up shut up shut up nuh uh it isn't it is not is not is not times infinity so there!!!!

1. I won't going into the boring legalistic details but Chief Judge Walker has identified in his denial of the stay (11p pdf) a very interesting and difficult hurdle for the Prop. 8 proponents and any sympathetic appellate judges or Justices regarding the question of standing. Wikipedia does a decent job of explaining the basic idea that standing is a constitutionally required jurisdictional requirement that a party bringing an appeal must meet certain requirements to show they are entitled to have the court decide the merits of the dispute or of particular issues. More specifically, the party must show that they have suffered or will suffer an concrete and specific legally protected injury that a favorable court decision will redress. Chief Judge Walker explains that the Prop. 8 proponents not only can't meet this standard for legal reason, but also they (when asked) said they hadn't suffered such an injury.

2. Chief Judge Walker did such a thorough job and the Prop. 8 proponents did such a poor job, it will be very interesting to see how the uber-conservative Justices weave a rationale for upholding Prop. 8 out of thin air. I have no doubt at least some will do so, but it won't be easy for them. (And it may be hard to get Justice Kennedy to join a contrived majority upholding Prop. 8 based on this record.)

3. Adding to the fun and the hurdles for the conservatives is Justice Scalia's dissent (joined by Chief Justice Rehnquist and Justice Thomas) in Lawrence v Texas, 539 U.S. 558, 590, 599, 601, 604-605 (2003), (Scalia, J., dissenting) (emphasis added):

State laws against ... same-sex marriage ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. ... If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. ...

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor [concurring in the judgment] seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. ...

..The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

here's my new question:

since it may be that the pro-8 people dont have legal standing to appeal (and those that do have legal standing--schwarzenegger and brown--arent interested in appealing) how does it end up in the supreme court?

That is the interesting point. It may very well not end up at SCOTUS or, even if it does, it may be decided on jurisdictional grounds that the Prop. 8 proponents don't have standing. This would leave Chief Judge Walker's decision intact and the law in California, but not set any national precedent regarding same-sex marriage.

[Enadail]

The court that struck this down sure does hate african-americans and latino-americans, after all those two groups voted in favor of prop 8 to such a proportion that the caucasian-american vote (who voted against) was outvoted.

I'm not sure what that has to do with the situation, or the argument against it. I take you didn't bother to read the ruling, or the posts here... about how basic rights are not up for vote to curtail, how the Prop 8 argument stood no legal water, etc etc. It has nothing to do with who voted for it, by race, gender, religion. It has entirely to do with the fact that it was found unconstitutional.

And are you insinuating that the vote for Prop 8 was along ethnic lines? Because that may be among the dumbest things in this thread.

Not entirely along ethnic lines, but at the time it was in the news that the three particular 'ethnic' groups I mentioned voted the way I just said. Just not 100-0 each. Religion was an inspiration for many voters and two out of those three groups seem to be slightly more religious (on average, and applies only to California in this particular case).

And how could a gay man in California not marry a woman, just like any other man? They might not like the limitations of marriage (fine, go ahead change it if you like), but to suggest it is discriminatory or even a civil rights issue is ludicrous. No rights are being denied, this particular right is only limited, not denied. Other rights are limited too (have to be 35 to run for president, 16 in many jurisdictions for driving lessons).

Marriage is overrated anyhow, I wouldn't miss it if it were abolished.

So basically, no, you haven't read the ruling, nor have you read any posts here. It conclusion has been its not the right to marry someone of the opposite sex: its the right to marry someone of your choice. Of course, if gay marriage is approved, hetero's will have the right to marry someone of the same gender... see, equal rights for all! It is discriminatory, because it basically limits a group of people from a non-dangerous or threatening action based solely on their beliefs... its almost the definition of discriminatory. And civil rights are the equal rights of a person. Gay people are not receiving equal rights, thus it is by definition a civil rights issue. By the way, what is the difference between limiting rights and denying them? I mean, black people were only limited in what water fountains they could drink from, means that wasn't a civil rights issue either?

By the way, the things you described aren't rights. No one has the right to a drivers license, or the right to run for president. Those are both qualifications. A limited right, if you wanted to go for anything, is you don't have the right to yell fire in a crowded movie theater... because there, your rights infringe on other people's rights... your right of free speech on their right to safety. Can you tell us any logical way gay marriage infringes on anyone elses' rights?

[Enadail]

3. A 9th Circuit decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the 9th Circuit. A SCOTUS decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the United States. Even if either court found a way to limit a holding upholding Chief Judge Walker's decision on fact-specific grounds to Prop. 8 and California, it would still be persuasive precedent against similar laws in other states.

As always TCT, thank you for the thoughts/evidence on the matter.

This one is the only one I didn't fully follow, namely your last line. If the 9th Circuit or SCOTUS found a way to limit a holding upholding the current decision, wouldn't that validate Prop 8? I'm not sure i followed entirely. Or are you saying even if Prop 8 is validated, Justice Walker's decision here could be used in other court cases to remove same sex marriage bans?

[The Cat-Tribe]

The court that struck this down sure does hate african-americans and latino-americans, after all those two groups voted in favor of prop 8 to such a proportion that the caucasian-american vote (who voted against) was outvoted.

I'm not sure what that has to do with the situation, or the argument against it. I take you didn't bother to read the ruling, or the posts here... about how basic rights are not up for vote to curtail, how the Prop 8 argument stood no legal water, etc etc. It has nothing to do with who voted for it, by race, gender, religion. It has entirely to do with the fact that it was found unconstitutional.

And are you insinuating that the vote for Prop 8 was along ethnic lines? Because that may be among the dumbest things in this thread.

Not entirely along ethnic lines, but at the time it was in the news that the three particular 'ethnic' groups I mentioned voted the way I just said. Just not 100-0 each. Religion was an inspiration for many voters and two out of those three groups seem to be slightly more religious (on average, and applies only to California in this particular case).

And how could a gay man in California not marry a woman, just like any other man? They might not like the limitations of marriage (fine, go ahead change it if you like), but to suggest it is discriminatory or even a civil rights issue is ludicrous. No rights are being denied, this particular right is only limited, not denied. Other rights are limited too (have to be 35 to run for president, 16 in many jurisdictions for driving lessons).

Marriage is overrated anyhow, I wouldn't miss it if it were abolished.

With the possible exception of the "racial hate" argument that is too stupid to merit a response, these are inane arguments already rebutted ad naseum in this thread, prior threads, and Chief Judge Walker's decision.

As for destroying marriage in order to save it from "teh gays," this Mai Lai Massacre-style thinking has not only been addressed before, but is offensive on its face.

[The Cat-Tribe]

3. A 9th Circuit decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the 9th Circuit. A SCOTUS decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the United States. Even if either court found a way to limit a holding upholding Chief Judge Walker's decision on fact-specific grounds to Prop. 8 and California, it would still be persuasive precedent against similar laws in other states.

As always TCT, thank you for the thoughts/evidence on the matter.

This one is the only one I didn't fully follow, namely your last line. If the 9th Circuit or SCOTUS found a way to limit a holding upholding the current decision, wouldn't that validate Prop 8? I'm not sure i followed entirely. Or are you saying even if Prop 8 is validated, Justice Walker's decision here could be used in other court cases to remove same sex marriage bans?

Sorry if my wording was confusing. Chief Judge Walker held that Prop. 8 was unconstitutional. Any decision upholding Chief Judge Walker's decision would be a ruling that Prop. 8 was unconstitutional. If, based on some logic or facts I can't imagine, one of the appellate courts limited a decision upholding Chief Judge Walker's decision and striking down Prop. 8 to the specific facts or law of this case, it would not thereby necessarily be binding precedent for holding other bans on same-sex marriage unconstitutional BUT, even then, it would still be persuasive precedent.

There is no way I can conceive of that Chief Judge Walker's decision could be upheld and Prop. 8 not struck down. Similarly, any decision overturning Chief Judge Walker's decision will almost certainly uphold Prop. 8 and serve as precedent for the constitutionality of other bans on same-sex marriage.

I hope that is clearer.

[Enadail]

3. A 9th Circuit decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the 9th Circuit. A SCOTUS decision that a ban on same-sex marriage is unconstitutional would generally apply throughout the United States. Even if either court found a way to limit a holding upholding Chief Judge Walker's decision on fact-specific grounds to Prop. 8 and California, it would still be persuasive precedent against similar laws in other states.

As always TCT, thank you for the thoughts/evidence on the matter.

This one is the only one I didn't fully follow, namely your last line. If the 9th Circuit or SCOTUS found a way to limit a holding upholding the current decision, wouldn't that validate Prop 8? I'm not sure i followed entirely. Or are you saying even if Prop 8 is validated, Justice Walker's decision here could be used in other court cases to remove same sex marriage bans?

Sorry if my wording was confusing. Chief Judge Walker held that Prop. 8 was unconstitutional. Any decision upholding Chief Judge Walker's decision would be a ruling that Prop. 8 was unconstitutional. If, based on some logic or facts I can't imagine, one of the appellate courts limited a decision upholding Chief Judge Walker's decision and striking down Prop. 8 to the specific facts or law of this case, it would not thereby necessarily be binding precedent for holding other bans on same-sex marriage unconstitutional BUT, even then, it would still be persuasive precedent.

There is no way I can conceive of that Chief Judge Walker's decision could be upheld and Prop. 8 not struck down. Similarly, any decision overturning Chief Judge Walker's decision will almost certainly uphold Prop. 8 and serve as precedent for the constitutionality of other bans on same-sex marriage.

I hope that is clearer.

Very much so; I mistook the use of the world upholding/upheld. And how far can appeals go? Lets say the 9th Circuit rules in favor of prop 8. Could someone take it to SCOTUS to try to appeal the appeal? I understand that any ruling SCOTUS makes is final(ish). And would an appeal have to argue the actual decision made (and reasoning behind the decision) or would it be more like a repeat of the current case? Sorry, I'm not entirely sure how an appeal on this would work. Would Prop 8 proponents be arguing for Prop 8 or against Judge Walker's decision?