How were they right on the law??

I think that at the very least that #3 on the list of rationales the judge lists for the defense passes muster under rational basis. The title of the rationale as being merely "promoting opposite-sex parenting over same-sex parenting" is really misleading, and I'm curious if the defense lawyers phrased it that way or if the judge characterized the arguments as such. In actuality the argument made is more nuanced than that:
Remember, only one of these needs to be considered a possible legitimate end for the law to pass the rational basis test. In particular, I think number 3 (increasing the probability of natural procreation) is perfectly legitimate, and its connection to marriage law is rational. The judge's assertion that it isn't is severely lacking. He says that because Prop 8 encourages "some" sexual activity or child raising outside of marriage (because homosexual couples will still do both even if they cannot marry), then the law actually discourages a norm of procreation during marriage. But he doesn't even address the idea that even despite the law encouraging "some" sexual activity and child-raising outside of marriage, it doesn't mean it's irrational to think that the net effect of the law could be to encourage more sexual activity and child-raising within marriage. And doing more good than harm (or at least intending to) is all the law really has to do. It doesn't have to wipe out all unmarried sex and raising of children. It's clearly not an irrational premise, and so it should have passed at least the rational basis test.

dumb dumb dumb dumb dumb

So without gay marriage, straight people are more likely to naturally procreate? What? That doesn't make any sense at all.

Queers harsh the groove straighties are trying to get, and lesbos just distract dudes into jerking off.

It's not that gay marriage itself affects the likelihood of procreation in straight marriages. The line of thought is that allowing straight people to marry incentivises procreation into more stable family situations, and opening marriage up to gays does absolutely nothing to serve that interest.

You can quibble on how workable that may be in practice, but I don't see reason to call it clearly and unequivocally irrational on its face, and certainly not for the silly reasons the judge used in his opinion.

...and you think Walker is the one reaching here?

Also, as walker pointed out, the reason that fails is that there could never be a law prohibiting infertile couples from marrying.

lol @ using "clearly" followed immediately by "unequivocally"

...or at least there never has been and there is no basis for one.

But that's not enough to make the law fail the rational basis test, because even if you take into account infertile couples, it's still reasonable to think that placing an incentive on male/female relationships would have a greater net effect overall on procreation than any same sex arrangement. Any random male/female pairing is going to be more procreative on average than any random same sex pairing. Again, the rational basis test is a really low bar for the law to get over. All that one has to do to pass it is come up with any halfway plausible reason that a law may have been passed. It doesn't have to make a lot of sense practically...because, again, it's not the judge's place to rule a law unconstitutional because he thinks it is ineffective at accomplishing a stated goal. That's the very definition of legislating from the bench.

But does that mean I think the pro-Prop 8 side's arguments are rock solid? No. Under any higher level of judicial scrutiny (intermediate or strict) every one of their proffered reasons for the law would fail. If Walker had used intermediate or strict scrutiny (which he even claimed was the proper standard), I wouldn't have as much argument with his equal protection analysis (provided that he properly laid the massive groundwork required to establish a case that homosexuals are a suspect or quasi-suspect class). But instead, he took the easy way out and took shortcuts that undermine his whole analysis. If the higher courts agree with him, it will be because they apply one of the higher levels of scrutiny, not because they agree with him on the rational basis test.

Allowing same sex marriage does nothing to diminish the incentive for opposite sex couples. In order to make that argument stick, you'd have to accept that allowing infertile couples to marry lessens the incentive for procreative couples. But it doesn't. That's why it still fails.

I hope that the 9th circuit looks more closely at the prosecution's argument for homosexuals being a suspect class. I'm not going to say that from a legal perspective it's rock solid, because it probably isn't. But I do think it's solid enough for competent judges to recognize. It probably all hinges on Kennedy eventually, right?

Look, I respect that you are (I think and hope) looking at this objectively. And I think and hope there's a little bit of devil's advocate going on here. You know what the right thing is here, and you know that no judge is perfect in his or her decision making. The point is getting the thrust right, isn't it? And I think even you can admit that Walker did it. He was aided by a completely inept defense, sure. But you can't blame him for that, can you?

Also, do you personally believe that homosexuals are a suspect class? I can't understand arguments saying that we aren't.

It's not a matter of rights. I have the same right as every other man in this state to marry a woman.

The simpler explanation is that this particular defense for injustice is borderline retarded.

Interracial couples had the right to marry, too, but not in any meaningful way that would pertain to their right to marry as an interracial couple.

Read the motherfucking thread.

the state had to show that it had a compelling interest in or significant reason to deny the right of a person to marry the consenting adult of his or her choosing. it didn't do that. so please, i know you're just trolling me now, but can you stop?

No, the judge said that's what the state had to show.

Also there is no "right to marriage" detailed anywhere in either the state (which is what is pertinent here) or US Constitution.

Wrong on the first count. On the second, LOVING V. VIRGINIA. shut. The fuck. Up.

Are SCOTUS rulings just fun to talk about, you stupid piece of shit?

:rofl:

Congrats on the ruling buddy. I still think civil unions is the way to go and would get the most bang for your buck in the quickest timeframe for all homosexual couples but I'm very happy to see this.

Loving vs. Virginia is not a part of the California State or US Constitution. How are such basic things so lost on you?

Eulogy has his head so ideologically clouded he seems incapable of looking at any of this rationally or legally.

All laws in this country are bound by SCOTUS rulings. It is irrelevant that it's "not in the constitution!!!!"

You fucking stupid Neanderthal prick.

One this last issue Eulogy, you're forgetting states rights. Which is really where my interest is in this debate , States rights vs. Federal mandates. Looks like California may legalize pot, which would also create an immediate State vs. Fed situation that, in concert with Missouri telling the feds to fuck off with the mandate on buying health care, and what with other states claiming to join Arizona on it's immigration policy, it's going to get very interesting very quickly and the more momentum that swings towards the states, the more probability a "civil war" at the legislative level between the Feds and the States will occur (hell, it's already happening now).

How this goes down in D.C. will be influential on a lot of levels, not just the gay marriage issue.

They are ruling on the Constitutionality of the law. So yes, it is obviously relevant if it's in the Constitution or not.

Nimrod, you might really benefit from taking a course in logic.

Then again you might not; you might just be too retarded to understand it, or more likely assume the professor is wrong about anything you don't like.

You cannot be serious here.

practical reality will bear out over 'legal theory'. scotus will legalize gay marriage, if it even decides to hear the case at all.

the WILL of the AMERICAN PEOPLE will bear out practical reality

I think that at the end of the day, even the American people might collectively put aside their derpishness and recognize that they have better fish to fry.

It doesn't fail. It's just not as effective as it could be. If incentivising procreation is really the goal of government-endorsed marriage, then yes, it probably would be most effective for them to limit it to fertile couples. But they don't have have to take the "most effective" route for the law to have a rational basis. They just have to take a route that might work a little.

I think Walker got the due process part mostly right and the equal protection part mostly wrong, but I don't think this particular decision is going to matter much in the long run. Once this gets up to the Supreme Court, it's going to be a whole new ball game and everything is probably going to be looked at completely fresh. The justices are not going to hold themselves hostage to Walker's reasoning and fact-finding on what is going to be such a landmark case. There are going to be a ton of amicus briefs filed for both sides (and let's face it, the defense needs the help), and I'm sure every conceivable angle will be covered in them. They'll probably do a lot more to color the justices' opinion than anything Walker wrote in his opinion.

If I come off as being contrarian or as a devil's advocate here, it's only because if this issue is going to end up decided by a Supreme Court decision I want it to be done right. Otherwise we'll just have another Roe on our hands that we'll be still debating 30 years from now.

Thank you for your analysis, Corganist. I don't know that I quite "get" your criticism of the equal protection part, but it's interesting to think about anyway.

IDK what I think of this going to the Supreme Court. I mean, there, we really are dealing with a bunch of ideologues. Does anyone not think that the decision is going to come down 5-4, Kennedy deciding?

this will probably happen anyway

I tend to think homosexuals are not a suspect class. Pretty much the only suspect classes the SCOTUS has ever recognized are race, national origin, and alienage. If even gender discrimination hasn't been considered subject to strict scrutiny, I don't see how discrimination based on sexual orientation can either. Gender fits the criteria of what a suspect class is a lot better than sexual orientation does.

At best, there might be a case made that homosexuals are a quasi-suspect class (which would slightly raise the scrutiny level the courts use). But the question really turns on a factual determination of how much political power homosexuals are deemed to have. You can't be a suspect class if you've historically had the ability to change your situation through the political process. And I'm just not sure that in that regard that homosexuals have the same claim to political powerlessness as, say, black people or women have had. It's one thing to vote and narrowly lose a state referendum. It's another thing entirely to need Constitutional amendments and acts of Congress to be able to vote at all.

From wiki:
Is it fair to say that the first two are a check, and the latter two would be contested?

Yes. And I really don't even think the third one is that much in doubt either. That's why I think the political power argument will be what makes or breaks it, and the case kinda displayed that. Of the two witnesses the defense called, one of them was called specifically to testify on this issue alone.

But who knows? Maybe having 2 or 3 of the criteria is all you need to get to "quasi-suspect" status and intermediate scrutiny. When courts use slippery words like "quasi" they're often giving themselves quite a bit of wiggle room within their own rules.

Starting on the 18th. lol. constant news updates aren't always good

Judge Removes Stay on Prop 8 Ruling; Gay Couples Can Marry - Towleroad | #gay #news