Article Comment 

Disagrees with judge's gay marriage ruling

 

 

Openly gay Chief U.S. District Judge Vaughn Walker''s decision to overturn the voter approved Proposition 8, that defines marriage as between one man and one woman in California, slices at the jugular of true democracy. His 138-page ruling is nothing more than a exercise in rationalizing without thinking rationally. He bases his conclusion primarily on his ability to divine the "discriminatory intent" of California voters when casting their votes for Prop 8 - leaving out the possibility of his own pre-conceived bias as a gay man. 

 

Walker''s ruling illustrates that he does not understand the essential public purpose of marriage, which is to attach mothers and fathers to their children and to one another. He replaces this public purpose with private purposes of adults'' feelings and desires. 

 

It''s time to put a stop to judges who redefine our most fundamental social institutions and use liberal courts to obtain political goals they cannot obtain at the ballot box. 

 

Kevin Tait, Columbus

 

 

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Reader Comments

Article Comment kj commented at 8/12/2010 10:48:00 PM:

The "essential public purpose of marriage" that you describe in not, in fact, the basis of any civil marriage law in the U.S. There is not, and has never been any test for fertility in order to obtain a marriage license. One purpose of the judiciary is to serve as a check on the tyranny of the majority, so that a plurality of like-minded voters may not strip a particular minority of their constitutionally guaranteed rights.

 

Article Comment sharp nasal kent commented at 8/13/2010 7:59:00 AM:

I guess a straight judge would have had a "pre-conceived bias" as a straight person, too.

We really need to speed up the development of robot judges.

 

Article Comment doj commented at 8/13/2010 9:23:00 AM:

The simple fact is there is nothing in the Constitution, short of legal gymnastics of an Olympic degree, that speaks to the idea that prohibiting homosexual marriage is unconstitutional. There is no reason whatsoever to believe that the men who founded this nation and gave us the Constitution ever envisioned or debated the idea of homosexual marriage. Slavery was debated and unfortunately was ignored for the sake of unity. Our nation paid a bloody price for that. Yes slavery was an issue, but not homosexual marriage.
Either we are going to be a nation where the people rule through their elected officials or other procedures such as referendums, or one where an elite who are many times lifetime appointment judges rule in the form or a judicial dictatorship.
What will it be America? It's time for the "elected" leaders of this Republic to respond to the will of the people which has been clearly reflected in vote after vote.

 

Article Comment sharp nasal kent commented at 8/13/2010 9:33:00 AM:

doj, you might want to send your suggestion back in time to Ronald Reagan and George H.W. Bush, the presidents who nominated this horrible liberal activist judge to the federal bench.

 

Article Comment sharp nasal kent commented at 8/13/2010 9:54:00 AM:

doj, you and Mr. Tait might enjoy this analysis from far-right-wing-nutjob website Red State:

http://www.redstate.com/davenj1/2010/08/10/at-the-risk-of-alienation-walkers-gay-marriage-ruling/

 

Article Comment doj commented at 8/13/2010 10:53:00 AM:

Sharp Nasal Kent -- Interesting article and website. If you had correctly read my comment, you would have found that my premise was not with the judge's decision, nor with homosexual marriage, but rather with the 545 people (100 senators, 435 representatives, one president and 9 supreme court justices) that the American people elect to represent the 300-million of us, who continue to erode the Constitution that this Republic was founded upon. The majority of Californians voted to ban same sex marriages. One judge uses his judicial power to oppose it. Is that representative government?

 

Article Comment sharp nasal kent commented at 8/13/2010 12:25:00 PM:

The majority of Californians voted to ban same sex marriages. One judge uses his judicial power to oppose it. Is that representative government?

Yes it is, checked by the judicial branch as the architects of our Constitution intended.

As an experiment, replace the words "same sex marriages" in your question with "interracial marriages", "handguns", or "integrated schools." Interesting, no?

 

Article Comment doj commented at 8/13/2010 1:12:00 PM:

SNK, you missed the point again. First, there was Proposition 22 in 2000, passed by a 62.5% popular vote, which said same sex marriage was legal, and later was ruled unconstitutional by the California Supreme Court. Then comes Proposition 8 in 2008, passed by 52% of popular vote, now over turned by a federal district judge. True, there is a judicial check between the executive, judicial and legislative branches of government, but this is an initiative that provides a means by which a petition signed by a certain minimum number of registered voters can force a public vote on a proposed statute, constitutional amendment, charter amendment or ordinance, or, in its minimal form, to simply oblige the executive or legislative bodies to consider the subject by submitting it to the order of the day. It is a form of direct democracy. It is, in effect, a mandate to the government, that this is the will of the people. If this is a government of the people, by the people, and for the people, then the will of the people should be considered and not ignored.

 

Article Comment sharp nasal kent commented at 8/13/2010 1:37:00 PM:

DOJ, why do the percentages matter? An unconstitutional law is invalid even if 100% of the electorate support it. You seem to be saying that an unconstitutional law SHOULD be valid, despite being unconstitutional, if the people of California really really really want it. That's just not how it works.

 

Article Comment ckirby commented at 8/13/2010 1:55:00 PM:

Is marriage a constitutional right? I heard some hell fire preacher compare gay marriage to marrying an animal. I think that's ridiculous but I haven't seen a court explain how marriage is a right covered by the constitution. is driving on public roads a right under the constitution? is getting a building permit for a camp house a right under the constitution? is getting a ham radio license a right under the constitution? can a man legally say he is a female on government forms or vice versa? Just wondering.

 

Article Comment sharp nasal kent commented at 8/13/2010 2:11:00 PM:

Is marriage a constitutional right?

In a way, yes. The Supreme Court has classified marriage as a "fundamental right" that cannot be denied from a particular class of citizens without, at the very least, a rational basis for the denial. If you want to learn more, a good court case for you to start with is Loving v. Virginia.

is driving on public roads a right under the constitution? is getting a building permit for a camp house a right under the constitution? is getting a ham radio license a right under the constitution?

In this context the question isn't whether one has a right to do those things; the question is whether the state could say that some people (like heterosexuals) are allowed to drive on the roads or get a building permit while others (homosexuals) are not.

 

Article Comment kj commented at 8/13/2010 2:22:00 PM:

@doj: Supreme Court justices are appointed by presidents and confirmed by elected representatives, not elected themselves.

Furthermore, this isn't about a right to same-sex marriage, it's about the right of marriage, which the Supreme Court has long held to be a fundamental right. Homosexuals have a right to be treated equally under the law, including the right to marry. And the right to marry means, the right to enjoy a situationally equal legal relationship with one's spouse.

As a society, we're stealing bits and pieces of people's lives from them by preventing them from living them fully. Any court that could find that constitutional, regardless of the size of the majority, wouldn't be doing its job.

 

Article Comment ckirby commented at 8/13/2010 2:43:00 PM:

I have a relative who has epilepsy. He can't get a driver's license because of his disability. Something about it being in the public interest and all that. How many people with epilepsy are there in the US? Can they fly an airplane? How many things are they denied the right to do in the name of so-called public interest? Having epilepsy isn't their fault but we deny them the things we can do. I think this being fair thing only goes os far.

 

Article Comment kj commented at 8/13/2010 2:59:00 PM:

No, fairness goes as far as it needs to. When it stops short, it's no longer called "fair," it's called "discrimination."

 

Article Comment sharp nasal kent commented at 8/13/2010 3:12:00 PM:

The answer is simple, ckirby: there is a rational basis to deny driver's licenses to epileptics.

Note that we allow epileptics to marry, though.

 

Article Comment ckirby commented at 8/13/2010 3:21:00 PM:

Sounds like the conservative answer on gay marriage. Funny how discrimination isn't discrimination based on who's the victim and who you agree with. My relative would disagree with you but carry on with that. I don't think there's any changing your mind on it. It sounds pretty made up. I guess anybody can be a bigot.

 

Article Comment sharp nasal kent commented at 8/13/2010 3:39:00 PM:

ckirby, your relative is disabled. He/she cannot safely drive a car.

Homosexuals are not disabled. There's no public safety argument.

 

Article Comment ckirby commented at 8/13/2010 3:48:00 PM:

I see conservatives say that about gay marriage but if it helps soothe your conscience then carry on. Face it there's not a lot of difference between you and conservatives. You can rationalize it if it makes you feel better. Are there any more groups you harbor some kind of bigotry against? take the couch and let's look into this.

 

Article Comment doj commented at 8/13/2010 3:53:00 PM:

kj, I may have mistyped, but the fact remains that justices are appointed, as you point out, by the president, who is elected, and confirmed by elected representatives. The point remains, Rehnquist wrote "To the argument . . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are." When the Court declares unconstitutional a legislative act or the action of an elected executive or legislative body, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it.

 

Article Comment sharp nasal kent commented at 8/13/2010 3:54:00 PM:

ckirby, should we allow babies to fly helicopters?

(Don't say no, because then I will be forced to assume that you are bigoted against babies.)

 

Article Comment sharp nasal kent commented at 8/13/2010 3:57:00 PM:

"To the argument . . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

That's exactly right. The U.S. Constitution could be amended to deny gays the right to marry (or any other right). But until that time, judges must use the Constitution we have.

 

Article Comment ckirby commented at 8/13/2010 4:04:00 PM:

I don't give a brass centavo who marries who. I don't care if babies fly planes if they their arms can reach the wheel, their feet can reach the pedals and they can pass the test. My relative can pass a driving test. They're not stupid. What you call a disability is the only reason they can't get a license. Is being gay nature or nurture? Is a gay person born gay? Why are conservatives wrong saying that being gay qualifies as a disability? How are conservatives wrong saying gay marriage is contrary to the public interest? What other groups besides people with epilepsy are you prejudiced against? This is going to take more time the harder you fight it. Just relax and let the truth flow. I sense that your soul needs a good cleansing.

 

Article Comment doj commented at 8/13/2010 4:13:00 PM:

SNK,In the final analysis, when it comes to the Constitution, we, the people, are the highest court in the land.

 

Article Comment ckirby commented at 8/13/2010 4:22:00 PM:

Kent. I have to take a short trip out of town but I should be back shortly. While I'm gone pour yourself another shot of Macallan's, fire up another Cohiba Behike, stretch out in your Gray's dragon chair and let loose your innermost thoughts. Don't sweat the fee. I don't charge much for consultations.

 

Article Comment doj commented at 8/13/2010 4:25:00 PM:

SKK, are you saying that the court is not influenced by prevailing majority public opinion in their decisions?

 

Article Comment sharp nasal kent commented at 8/13/2010 4:41:00 PM:

@doj:

SNK,In the final analysis, when it comes to the Constitution, we, the people, are the highest court in the land.

No we aren't. The U.S. Supreme Court is. We have the power to amend the Constitution, but we don't have the power to interpret it. The only way we can overrule the Supreme Court is by constitutional amendment. Now, query: if gay marriage is such a huge threat, why is there no serious movement to amend the Constitution?

SKK, are you saying that the court is not influenced by prevailing majority public opinion in their decisions?

No.

@ckirby:

The anti-gay marriage crowd has not been able to come up with a legally acceptable rational basis to deny gays the right to marry. If you are able to do so, please do. I can virtually guarantee you that anything you come up with has already been rejected by the conservative Judge Walker. But let's see how you do.

 

Article Comment doj commented at 8/13/2010 5:36:00 PM:

SNK, The government exists at the consent of the governed and that is why we are the highest court. That should be clear. I don't know how we got to this point in this discussion. Go back to my original comment and read it again. It was a general statement that it was time for our elected representatives to respond to the will of the people. We revolted from a repressive government before, and we well may again before it's over. As to your query: I don't know. Do you want me to start one?

 

Article Comment sharp nasal kent commented at 8/13/2010 5:50:00 PM:

DOJ. I failed to see how, in this context, the elected leaders of our country have not responded to the will of the people. (Unless you are trying to include judges in the category of "elected leaders" because they are appointed.)

In other words, how are your elected leaders NOT responding to your will?

 

Article Comment doj commented at 8/13/2010 6:04:00 PM:

SNK -- I'm tired. All this back and forth is not going to prove anything, except that you and I are dumb enough to sit here and do it. It's a moot point for us. The Ninth Circuit has already agreed to hear the case in accelerated mode. Let them decide. But I doubt it will stop there.

 

Article Comment sharp nasal kent commented at 8/14/2010 8:30:00 AM:

DOJ, it definitely won't prove anything when you say "our representatives don't represent us" and then cop out when asked why you say so.

As for the Ninth Circuit, I believe you're mistaken about them having "agreed to hear the case in accelerated mode." The state is not appealing the decision, and it is an open question whether the intervenors (protectmarriage.com, or some nonsense like that) have standing to appeal.

Anyway, aren't we the ultimate court? I believe I read that somewhere.

 

Article Comment ckirby commented at 8/14/2010 9:46:00 AM:

Hey Kent. I don't think Doj is copping out on anything but when you say somebody else cops out on something isn't that a case of pot-kettle? You seem to be better at copping out on a talk than most others here. But then most others don't try to cover their copping out with sanctimonious, sarcastic and caustic semi-literate jibs and jabs. Only you and haiku have that style but you've been a regular dropout on most of the race and orientation stories. When you say something that's not gibberish you start strong but end on a whimper when things get serious. Or am I wrong?

 

Article Comment doj commented at 8/14/2010 10:13:00 AM:

SNK, Look it up for yourself. Appeals are being filed. The court is requesting advanced info. http://www.ca9.uscourts.gov/. There are other sites that show the same results.

RE: "it definitely won't prove anything when you say "our representatives don't represent us" and then cop out when asked why you say so."

No cop out, but I am pressed for time today and WAS tired last night. Think about this until I have more time: The Founding Fathers did not conceive that a class of professional politicians would come to power and then proceed to prostitute the system so as to perpetuate themselves in power.

 

Article Comment sharp nasal kent commented at 8/14/2010 10:30:00 AM:

Yes, DOJ, appeals are being filed - but whether the court will choose to hear them is another matter. Your post made it sound like the Ninth Circuit was going to hear an appeal on some kind of expedited basis, which isn't the case.

What the court is currently considering is a request by the losers to prevent the resumption of same-sex marriages in California, which isn't the same thing as an appeal on the merits.

ckirby, you should read the Redstate article I linked to below. It might clear up your confusion. Let me know when you have an argument and I'll be happy to engage and help you understand how the law works.

 

Article Comment sharp nasal kent commented at 8/14/2010 10:48:00 AM:

Anyone honestly interested in a summary of Judge Walker's reasoning and his response to the anti-gay marriage group's arguments can find a good one here:

http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202464267865&The_Reasoning_Behind_Walkers_Ruling&slreturn=1&hbxlogin=1

 

Article Comment ckirby commented at 8/14/2010 11:26:00 AM:

Now Kent. Weren't you the one who accused somebody of posting links to trapped sites? Come on, either play by your own rules or sit on the sidelines. That seems to be a recurring theme for you. For anybody to want rules to apply to everybody else but not to them is juvenile. People who push a politically correct agenda usually default to not applying the rules to themselves and people who agree with them that they expect others to follow. I still say your opinion on people with epilepsy is bigoted and just as prejudiced as a conservative is on gay marriage. That relative of mine can't get a license to drive an auto or truck on their own property and in fact a law enforcement officer can stop and ticket them for doing that. Now this is where you would respond with how rules are rules and the law is the law. Not that different from conservatives arguments. The law was the law in california. Just as I said anybody can be a bigot about something toward somebody. It just depends on the who and the what. In your case I found one group you've shown a clear prejudice against and you haven't shown that I'm wrong and you're not.

 

Article Comment doj commented at 8/14/2010 11:28:00 AM:

SNK --Research a little more --start here:http://prop8trialtracker.com/2010/08/13/prop-8-scheduling-order-issued/e

and there is the actual court order at http://www.aolnews.com/surge-desk/article/prop-8-defeated-read-the-decision/19581399

Why are you so interested in this? Planning a wedding soon?

ckirby, that article SNK asked you to read, though pertinent, is one man's opinion.

I'm late. Gotta go.

 

Article Comment sharp nasal kent commented at 8/14/2010 12:13:00 PM:

DOJ, if you want to believe the Ninth Circuit is expediting an appeal on the merits, I guess I can't stop you from doing so. Your links do not support your assertion, however.

And I'm already married, but thanks for your interest.

ckirby, I already told you why an epileptic being denied a license to drive is different from a homosexual couple being denied a license to marry. I can teach people who are willing to learn, but even the best teacher can't help someone who chooses to remain ignorant.

As for trapped websites, the only one I ever refused to visit was Thom Geiger's. McAfee SiteAdvisor said it was "suspect."

 

Article Comment sharp nasal kent commented at 8/14/2010 12:19:00 PM:

ckirby, that article SNK asked you to read, though pertinent, is one man's opinion.

His summary of the judge's opinion is accurate.

 

Article Comment  commented at 8/14/2010 1:42:00 PM:

"it thwarts the will of representatives of the actual people of the here and now"

That ability to "thwart" the will of the majority isn't a bug, it's a feature. And it is in place to protect the rights of the current majority as much as it is there to protect current minorities. The popular religion of the day changes, as does the racial makeup of the country, as does the background of our immigrants, as does the age of the workforce, and the gender of composition of our legislative bodies. Retaining discrimination hurts current majorities because doing so erodes the foundation on which their own rights and privileges rest.

Rehnquist is making a meta-argument, and a good one, but folks arguing against same-sex marriage aren't making their argument on that level, and they aren't trying to change the federal constitution (to remove the ability of the court to protect minorities) to win this battle. They do want to change the federal constitution to enshrine this particular form of discrimination, but that argument is going nowhere fast, because most people understand that to do so would place the constitution in opposition to itself.

In any event, the public opinion on this issue is changing. The "will of the people" argument is evaporating faster than crude oil in the gulf.

 

Article Comment doj commented at 8/14/2010 2:27:00 PM:

OK anonymous commentor, you are a little late getting in on this. I think we are beyond that now, you are still on discrimination and we have advanced to rights of appeal, though it is all entwined. I have no heartburn wih ending discrimination and I do agree that the will of the people, a major principle of our way of government, is eroding. But,we can't all have what we want. I don't want to pay taxes, but the government (the majority, per sae) says that I have to. That said, I'm going to Tuscaloosa.

SNK RE "Your links do not support your assertion, however." What do you want - a note from the 3 judges that are studying it? I have their names if you want to contact them.

RE: "His summary of the judge's opinion is accurate." In your opinion. I didn't say he wasn't somewhat accurate. I said it was his opinion. There are others that are more conclusive.

 

Article Comment sharp nasal kent commented at 8/14/2010 3:43:00 PM:

DOJ, the Ninth Circuit is considering a request to stay the ruling. That is not the same thing as an appeal. The court has not even decided whether the anti-marriage people even have the RIGHT to appeal, since the named party in the case (Schwarzenegger, i.e., the state) has chosen NOT to appeal.

http://www.mercurynews.com/crime-courts/ci_15775379?nclick_check=1

I don't know why that's so hard for you to understand.

As for the article, I think we were talking about two different ones. The Redstate article (which I think you were talking about) contained more opinion. I thought you were talking about the law.com article, which was a straightforward reporting of the judge's reasoning.

But,we can't all have what we want.

You should tell that to the Prop. 8 supporters. They seem to be having a difficult time with the concept.

 

Article Comment doj commented at 8/14/2010 5:24:00 PM:

SNK, I know that. I'm not a lawyer and I was trying to keep it simple. The Proponents are filing an Emergency Motion to Stay Pending Appeal, and Plaintiffs are filing Oppositions to the Motion to Stay, LA & the CA AG are filing against the Emergency Motion to Stay on Appeal, or something like that. If the stay, and/or possibly standing, is granted, then the proponents will file an appeal to Judge Walker's ruling. If the stay fails, then the proponents will file to the SCOTUS for stay, and so on ad nauseum. Either way, appeals will be filed and it could, and probably will, go all the way to SCOTUS and will be a long drawn out process. And, somebody is surely going to bring up conflict of interest on the part Walker and open another can of worms. Meanwhile, the arguments continue, as to the definition of marriage.

 

Article Comment doj commented at 8/14/2010 5:29:00 PM:

SNK.. And in the case of the Prop 8 vs my paying taxes, they are in the majority, I'm not.

 

Article Comment kj commented at 8/14/2010 5:44:00 PM:

Not sure why it made my post as anonymous, I was logged in when I made it.

 

Article Comment thom geiger commented at 8/14/2010 6:33:00 PM:

"As for trapped websites, the only one I ever refused to visit was Thom Geiger's. McAfee SiteAdvisor said it was "suspect."

That is an outright lie and libelous. That is NOT what McAfee reports. Site Advisor shows there are no reviews of the site, which is why the add-on displays a browser question mark. A question mark does not mean suspicious or suspect. You brag about your intellect so you must have libeled me purposely for some reason. ColumbusMSradiorants.com has been scheduled for a McAfee site scan for two weeks and I will know when it has been done.
Why am I not surprised that you would libel me and one of my web sites that you don't agree with and wouldn't want the public to visit? I'm also not surprised Birney and Peter would allow you to do it. At least I'm not running scripts on my site that allow third parties access to user information generated on the pages.
Do Birney, Peter or HostMySite vet the scripts on each page at CDispatch? Do you really want to go to war over false claims about my web site?

 

Article Comment sharp nasal kent commented at 8/15/2010 8:37:00 AM:

And, somebody is surely going to bring up conflict of interest on the part Walker and open another can of worms.

Sadly, no. Even if he is gay (not known for sure), there is no more of a conflict of interest than if he was straight, or married.

@Thom: sorry guy, "suspect" was the wrong word. There was indeed a McAfee question mark by your site, which was enough for me to avoid it. Also, you might log IP addresses and I'd just as soon you didn't have mine because, frankly, you don't seem like the most stable guy on the planet. Just my opinion.

 

Article Comment doj commented at 8/15/2010 6:46:00 PM:

SNK, According to the Library of Congress Web site, Judge Vaughn Walker is one of two federal jurists admitting to be out of the closet. That, in itself, is a testament to conflict of interest, and affords a legal avenue to contest his ruling. Besides you, yourself have alluded to his gayness in several of your statements

 

Article Comment sharp nasal kent commented at 8/16/2010 6:54:00 AM:

If it is a conflict of interest for Judge Walker, DOJ, then it's a conflict of interest for a straight jurist as well, since the whole argument is "same-sex marriage will destroy opposite-sex marriage."

I wasn't aware that Judge Walker was living openly as a gay man. Thanks for the correction.

 

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