It's been some time since I last wrote about California's Proposition 8 and where it stand in the courts. Prop8 was a 2008 ballot initiative to nullify a CA Supreme Court decision that allowed gay marriage, and it was passed after outside anti-gay organizations flooded CA with a multi-million dollar campaign of lies and distortions. Prop8 was then challenged in the CA courts and was upheld by the same CA Supreme Court that had previously instated gay marriage, but now based on what they considered the higher principle of the right of the people to change their laws by ballot initiative.
The next step was that a group brought suit in the federal district court system, charging that Prop8 violates the U.S. Constitution on grounds of unequal protection of rights. An historical trial was held, with lawyers Ted Olsen and Dan Boies presenting the definitive case for gay rights and same-sex marriage.
The CA governor and attorney general refused to put up a defense of a law they both opposed, so anti-gay groups, chiefly Maggie Gallagher's "Defense of Marriage" group, defended Prop8 before a federal judge. It was a pathetic, embarrassing failure to even make a half-way adequate case. Their main argument was essentially the outworn "because it's always been this way" and "it will destroy the institution of marriage." There was no credible evidence presented that anyone would be harmed or even that the instution of marriage would suffer.
In August 2010, the U.S. District Judge Vaughan Walker ruled that Prop8 violated the U.S. Constitution.
Now the defense has appealed that decision to the U. S. Court of Appeals on the grounds that Judge Walker is gay and should have recused himself. Their reasoning: he would obviously be biased, not because he is gay but because he is in a long-term relationship with a man.
As I understand it, they were smart enough to know that just saying he's biased because he's gay wouldn't wash, because wouldn't the same apply to a heterosexual judge -- who would be biased by his own (hetero)sexual orientation? So they claimed it's because he might want to get married -- well, a heterosexual judge wouldn't need to overturn the law in order to get married. See? Whew -- that's stretching it pretty thin, isn't it?
They have also moved to suppress the court video recording of the hearings and have it permanently sealed. It was an open trial, fer cryin' out loud !!!! The only reason for sealing the record is to prevent it from being distributed widely and viewed by large numbers of people, who wouldn't bother to read through the court record all on their own. They don't want to have such a pathetic, inadequate performance broadcast to the public -- even though it was an open trial.
Today, a U. S. Appeals court judge heard arguments for throwing out the district court judge's decision, based on his alleged bias. He has promised a ruling within a few days.
Stay tuned. I'm trying to imagine this as a latter-day Gilbert & Sullivan opera -- full of ridicule and scorn and comic absurdity.
Ralph
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I was just reading over some of my earlier posts on Prop8, from last August and before, when the case was tried and then decided by Judge Walker. You can check them out by clicking at the bottom of this post on"Prop8."
ReplyDeleteThe question back then was that Ted Olsen had said that the Supreme Court had previously ruled that there is a fundamental right to marriage, although it is not enumerated as such in the Constitution.
But it was in a major decision -- Loving v. Virginia -- the overturned the law that prohibited interracial marriage. In the written decision, it was stated:
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."
It was a unanimous decision of the U. S. Supreme Court on June 12, 1967 -- exactly 44 years ago yesterday.