Saturday, August 7, 2010

Editorial on Gay Marriage Ban Overturn

A judge's mighty arguments for marriage equality

By Eugene Robinson

Friday, August 6, 2010

The 14th Amendment is a mighty sword, and U.S. District Judge Vaughn Walker used it Wednesday to slice and shred all the specious arguments -- and I mean all of them -- that are used to deny full marriage rights to gay and lesbian Americans. Bigotry has suffered a grievous blow.

Walker found that California's Proposition 8, which sought to ban gay marriage in the state, violated not one but two of the amendment's clauses -- those guaranteeing due process and equal protection under the law. By deciding the case on constitutional grounds, and by crafting such a detailed and comprehensive ruling, Walker all but guaranteed that the issue will reach the Supreme Court.

It is not irrational for proponents of gay marriage to worry how the high court will finally rule, given its recent record of conservative activism. But Walker's ruling will not be so easy to assail. At trial, the losing side presented a shockingly weak case. By contrast, the plaintiffs' legal team -- led by two superlawyers from opposite ends of the political spectrum, conservative Ted Olson and liberal David Boies -- offered witnesses and arguments that covered every conceivable base.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker concluded. "Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

That's the kind of language that qualifies as "sweeping."

Federal judges hate it when journalists note which president appointed them, because they reject the notion that being named by a Republican or a Democrat has any bearing on how they interpret and apply the law. But in this case, which seems likely to achieve landmark status, it's worth noting that Walker is no card-carrying liberal. Known as a conservative with a libertarian streak, Walker was first nominated to the federal bench by Ronald Reagan in 1987. His appointment was stalled in the Senate Judiciary Committee, however, because a group of House Democrats -- led by Nancy Pelosi -- claimed he was insensitive to gays and the poor. George Bush the elder renewed Walker's nomination in 1989 and managed to get it through.

It is also worth noting that both the San Francisco Chronicle and the Los Angeles Times have reported that Walker is gay. The judge has neither confirmed nor denied the reports, and the legal team defending Proposition 8 did not raise the issue -- perhaps because Walker has shown no hesitation to rule against gay plaintiffs or defendants when that is what the law requires.

The 14th Amendment, adopted in 1868, was used to prohibit states of the former Confederacy from denying full citizenship to freed slaves; to guarantee that protections of the Bill of Rights are applied throughout the nation; and to invalidate the Jim Crow laws that mandated racial segregation.

The clause guaranteeing equal protection under the law was the basis of the 1954 Brown v. Board of Education ruling in which the Supreme Court banned discrimination in public schools. Walker used the same clause to rule that there was no "rational justification" for treating same-sex relationships as inferior. "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," he wrote.

The Supreme Court used the due process clause in its 1967 Loving v. Virginia decision that struck down laws against interracial marriage. Walker used the same language to rule that Proposition 8 was unconstitutional because it denies a "fundamental" right to selected citizens without a legitimate, let alone compelling, reason to do so.

One decision by one federal judge does not settle the controversy over gay marriage. But Walker's 136-page ruling lays down a formidable marker because it changes the terms of the debate. He frames gay marriage as a question involving the most basic, cherished rights that the Constitution guarantees to all Americans. In doing so, he raises the stakes sky-high: Are gays and lesbians full citizens of this country, or are they something less?

Walker stepped up to the plate and swung for the fences. He hit a home run.

eugenerobinson@washpost.com

11 comments:

Jabacue said...

Thanks Justin for posting this. It has explained a lot of what took place last week and by whom. From my vantage point, I enjoy reading about the 'workings' of American politics. Somewhat different from ours but both heading in the same direction.

JustinO'Shea said...

You are most welcome, kind sir. ;-)
I just re-read the editorial and it gets better with readings. Brilliant.

Hahaha. . .let the bigots chew on this. They must have bad indigestion by now. ho ho ho

The "Next" will be interesting.

There. Now we are off to dinner.

ciao ciao. . . .justin

sophie said...

I don't mind taking a bite out of those bigots arses myself!

JustinO'Shea said...

Hey Sophie, honey. . .welcome to the Blog. . .hope you make yourself right at home. A thousand welcomes!

And we just might need a good set of snappers one of these days. Good to know you are available! You keep on snappin', girl! ;-)

a couple scritches. . ..lol

justin

Coop said...

Hey Justin, Guess whooooooooooooooooooooooooo...???
:P

I cut and pasted a couple of quotes from the editorial:

"But in this case, which seems likely to achieve landmark status, it's worth noting that Walker is no card-carrying liberal. Known as a conservative with a libertarian streak, Walker was first nominated to the federal bench by Ronald Reagan in 1987. His appointment was stalled in the Senate Judiciary Committee, however, because a group of House Democrats -- led by Nancy Pelosi -- claimed he was insensitive to gays and the poor."
"Walker has shown no hesitation to rule against gay plaintiffs or defendants when that is what the law requires."

Some people believe that the judge Walker should have recused himself from the case because he is Gay.
The mighty among the bigoted have stooped so far as to call him a sodomite.

Judge Walker won't confirm his sexuality. More importantly, I think, his confirmation by a Republican. Read, please: REPUBLICAN president was stalled because some members of congress thought that he was too insensitive to "Gays".

Those who are courageous enough to fight for Equality convinced a tough judge. I like that.
This editorial makes me even more confident about the future. MY future ;-)

The Republican Party here in the US is widely known for obstructing GLBT Equality.

J said...

At the risk of incurring the wrath of those celebrating this decision, I just finished reading the opinion and find the legal argument remarkably thin on precedent and inattentive to what is probably the best argument the Plaintiffs had: That Proposition 8 as affected subjects gays and lesbians to an invidious discrimination by denying them the same access to governmental and private benefits enjoyed by married persons. Such treatment is the hallmark of unequal protection.
While the judge made certain factual findings supporting that conclusion, he was short on detail and never brought it up in his final legal analysis.
Gays can't win this fight based on the claim that Prop 8 makes straight people look down on them or hurts their feelings, because the proponents of Prop 8 are going to look down on gays with or without any governmental intervention. To win they need to show solid evidence of unjustified government-created harm. There would be little doubt of this if California didn't have a domestic partnership law that attempts to level the playing field between married people and others in committed unions.
What we seem to forget in these celebrations is that the elephant can't be bagged without an elephant gun. If Justice Kennedy isn't swayed to our side, a decision overturning this district judge and even the 9th Circuit could kill the state-by-state progress that has been made for the cause of equality in recent years. Indeed, it could set us back a generation. I for one am scared.

Gary Kelly said...

On the other hand, there are always two sides to any given argument. I'll be interested to read comments about this bloke and his theories about 'curing' homosexuality:

http://www.youtube.com/watch?v=FOTYFXZb_rE&NR=1

JustinO'Shea said...

First off, Gary, I couldn't watch much of it. Kimmel has respect for no one. . .he is a buffoon. He treats this man like a fool, makes a joke of a very serious matter.

It is a mockery and travesty: AND it isn't even funny: it is childish silliness. I have far more respect on the one hand for the so-called "ex-gay" gent. . . . .YET I do not think he has yet acquired a healthy self-respect for himself as "ex-gay" to be so foolish as to "cast his fake pearls before real swine".

Coop said...
This comment has been removed by the author.
JustinO'Shea said...

OK, COOPS, then. .the ex-gay guy is a asshole prima classa forgoing on the Kimmel show. . . must pay good. . ? This only confirms my diagnosis of unresolved sexual identity issues if he would make his "conversion" a matter of ridicule on Kimmels buffunery.

I hope, too, we will avoid that kind of gay bashing -- for that is what it is. . .gay bashing. . . on this blog. Easy enough to slip into still. .esp.by making a joke . .right?

Coop said...

Can I say somethin?? :)... Uh... it's about the Jimmy Kimmel thing


Yeah, Jimmy did not treat this ex-Gay guy with respect. But, Justin, it's not like Jimmy K hosts a serious-minded show.
The whole point of getting this guy as a guest was to make fun of him.

'Curing' Gay people, etc. etc. is a very painful topic. A lot of ex-Gay people have been badly hurt; or worse. Some have chosen to end their lives. A late night talk show isn't the right atmosphere for this stuff.