corganist says a lot of things

gimme the lube boys. and grease my pole. I wanna get lost in that glory hole. and drift away...

I never said it would be overturned. In fact, I think I said a couple times already that it probably won't be. But if it does get upheld by a higher court it isn't going to be because the justices read Walker's opinion and say "We agree with everything this guy said." The reason Walker's opinion sucks is not because it's necessarily wrong in it's broad assumptions that Prop 8 violates the Due Process and Equal Protection clauses. He's probably right on that much. The reason the opinion sucks is because it only barely scratches the surface of what it takes to make this newfound right to gay marriage mesh with prior federal jurisprudence. Walker never once did anything to distinguish his case as a matter of law from earlier federal cases that found no right to gay marriage, or cases that say homosexuals are not a suspect class, or cases that say strict scrutiny does not apply to homosexual discrimination. These are not inconsequential things, and it is imperative that they be addressed if any intellectually solid argument is going to be made to establish a new right to gay marriage. Walker did not even try to do this, and as such his opinion as it stands is pretty flimsy support for the right to gay marriage.

Is that enough to get it overturned? Not really. Any higher court with a competent non-ideologue judge writing the opinion is going to ignore all of Walker's bullshit findings of fact (which was the majority of his opinion) and focus on the law. And since questions of law are usually reviewed de novo, they'll almost certainly start from the ground up and build an entirely new legal framework that will cover the numerous angles Walker missed and correct his glaring mistakes and omissions. If after that they come to the same conclusion as Walker, sure, he'll be affirmed. But that shouldn't be taken as a ringing endorsement for his reasoning.

Really, you should welcome the chance for an appellate judge and/or the SCOTUS to get a hold of this case and really get the t's crossed and the i's dotted. Again, I'm not sure why anyone would be satisfied placing one of their fundamental rights on top of the house of cards Walker has built instead of letting it get into the hands of more competent legal minds.

"hailed by legal scholars as a great opinion"

but hey you know more than them so i'll take your word for it. total house of cards.

wow, that was actually a pretty good one.

and corganist, i know the ruling isn't perfect or iron-clad or whatever. but dismissing it entirely seems out of line as well. i'm willing to concede it isn't perfect, but you have to concede that it's not a miserable failure too.

Whatever. If you think "Judge Walker thinks gay people should get married" is legal reasoning enough to rest the rights of gay people in CA on, more power to you. But it's funny how judicial decisions with flimsy reasoning never seem to settle the issue quite as well as ones based on solid legal thought (see: Roe v. Wade).

when you are this overly simplistic and dismissive, it makes it so much harder to take anything you say seriously.

I just don't see it as anywhere near the home run people play it up as. It's more of a sacrifice bunt to move a runner into scoring position. Sure, the guy did a good job literally putting traditional marriage on trial and laying a factual groundwork that undermines most arguments anti-gay marriage advocates could make in support of it. And it's true that higher courts will have to be deferential to his findings of fact, but the fact that his legal arguments were so deficient keeps it from being something that should be hailed as something definitive in and of itself.

The most you can say he did is set up a higher court to bat cleanup and fill in the blanks on the actual Constitutional law part while using his factual findings to back up their reasoning. But if there's no appeal where that can be done, then basically all we're left with is a runner left on base, because Walker's reasoning isn't strong enough to stand on its own.

"all we're left with" is that people who happen to be attracted to members of the same sex can get married in the state of california.

this is a win-win situation (ignoring the potential for SCOTUS to fuck it up, but that's a different topic, i think). either the appellate court "bats clean-up" or there is no appeal and his ruling stands. maybe it won't satisfy legal circle jerks, but who cares?

If Caine Walker were a judge, he too would be Judge Walker.

I guess it only matters if you think the ends never justify the means. Sure, right now gay people can get married in California. But at the same time, millions of people just had their votes wiped out. If people get the sense that their vote was wiped out after a process of debate that builds a solid legal foundation that adequately explains exactly why their vote can't stand, they accept the ruling for what it is and move on. And the ruling is legitimized because it's never questioned anymore. But if people get the sense that their vote was tossed out arbitrarily because of weak reasoning and naked bias, then they get resentful. They'll keep pushing to overturn the decision any way they can until they fix it, and they'll never accept that the ruling is truly the word of law.

So no, it's not "win-win." A well reasoned decision that people will accept is a win. If Walker's edict serves as the last word on the issue, then it all but guarantees that gay marriage in CA will not be an issue that goes away soon.

Hopefully in about 10-15 years, Corganist's arguments will sound like the ones from the civil rights era reasoning if private businesses should be forced to allow blacks in.

At the same time, millions of people had their votes wiped out? Jesus christ. Their votes were wiped out because they had no standing to cast those votes in the first place. And all recent polling in California suggests that a majority is now in favor of allowing same-sex marriages. So yes, the issue will go away pretty goddamn soon.

Additionally, you're the only one accusing Walker's opinion of containing weak reasoning and naked bias.

Why is it so hard to understand.

Just because a bunch of blacks and mormons rallied together against gay marriage doesn't make it right.

Apparently Latino Protestants are proving to be tough nuts to crack as well. 77% of Latino Catholics support gay marriage though. Go figure.

How did they not? That makes absolutely zero sense. They didn't know they were voting for an unconstitutional law at the time. How could they?

The votes were legitimate, even if what they were voting for was later found unconstitutional, and thus the people are owed an adequate and reasonable explanation for why their will was overturned. It's not a matter of "the will of the people" trumping other people's rights. It's just a matter of the government (especially the judiciary) being accountable and not taking people's votes lightly. It should be a serious and carefully considered matter to overturn a popular initiative. An opinion that ignores direct caselaw and clearly misstates key facets of the law without explanation does not meet up to that standard.

That's well and good. But that's still no reason to ignore or tolerate a badly reasoned judicial opinion. By your logic, Walker could have used any half-baked rationale he wanted to strike down Prop 8, as long as the state government didn't appeal and as long as public support for gay marriage eventually comes around enough that no one minds. That seems to be a pretty lackadaisical attitude to take towards the balance between respecting rights and laws.

I really doubt that's the case. But even if it was, how does that make any of my criticism of the opinion wrong? I think I've been pretty measured in my assessment of the flaws in the opinion and in pointing out where the judge completely dropped the ball. It's not like I've said the thing is destined to be overturned or that Walker wasn't thorough in his fact finding. He just was lazy and did just enough to get by on the legal reasoning part (which, again, is the most important part). Just because liberal reporters (but I repeat myself) and liberal law professors (ditto) like the result of the ruling doesn't mean that the opinion is some paragon of legal reasoning and a definitive statement on the constitutionality of gay marriage.

You're right. It doesn't. But that doesn't mean you can get away with not telling them why they were wrong.

Jesus. Go read the trial transcripts! That's what the entire thing was about!

liberal law professors don't just like the result. they like the opinion.

you can't dismiss them and then act as though i need to just take your word for it.

That's not what it was about. The case was about whether Prop 8 comports with the Constitution. It had nothing to do with whether the voters had standing to vote as they did or not. Certainly the voters didn't intend to pass a law that violated the federal Constitution, so you can't somehow take a "they shouldn't have voted that way in the first place" view of it. That's not how it works. Their votes were legitimate until the ruling came down. To pretend otherwise is to just leave out half of the equation needed to balance the rights of the minority vs. the will of the majority. Both are important and deserve thorough consideration.

You're going to find out pretty soon that there's usually not much difference between the two. Law professors are no less prone to distorting the law to their own ends than any other liberals.

I'm not asking for my word to be taken. But I do think my specific criticisms of the opinion should be given some consideration on their own merits before being thrown over for the word of anonymous "legal scholars" who "like" the opinion.

I tend to think the truth is somewhere in the middle between Corganist and the preponderance of legal scholars.

I do see his point, though, that you want the legal opinion to be rock solid, whether or not I agree with him about Walker's in particular (I am decidedly not a legal analyst. I'm just interested). If it isn't appealed, it doesn't apply to as many states, either. It may be in the "No" side's best interest for them to be permitted to appeal anyway.

I do not think, though, that this would be the best use of the state's money, especially when said state is currently in financial crisis.

...

and if you read the trial transcripts, you realize it's the only possible ruling. which is my only point here. it doesn't matter how they voted because a vote like that puts in place a law that is unconstitutional.

Man, I'm glad I didn't set my CA gay wedding date already.

dur

But again, there was no way for them to know it was unconstitutional when they voted for it. And it's not the courts' place to try to ascribe subjective intent to the voters anyway. I just don't understand what you see as controversial about making sure that when you wipe out a popular vote that it is done in a way that is carefully reasoned and exhaustively argued. Otherwise you're just accepting a "the ends are more important than the means" approach, which in the context of the law just is not tenable.

So the appeals court once again has to come in and slap down a legal judgment this judge handed down. If this guy can't even conduct trial procedure without the appellate courts stepping in multiple times and putting him back in line, how can you be so confident in his other legal conclusions?