Same Sex Marriage Ban Overturned in California

[Sun Tzu]

(CNN) -- A federal judge in California on Wednesday knocked down the state's ban on same-sex marriage, ruling that voter-approved Proposition 8 violates the U.S. Constitution -- handing supporters of gay rights a major victory in a case that almost all sides say is sure to wind up before the U.S. Supreme Court.

The 136-page opinion, issued by Chief U.S. District Judge Vaughn Walker in San Francisco, is an initial step in what will likely be a lengthy fight over California's Proposition 8, which defines marriage as a union between a man and a woman.

At stake in the trial was whether California's ban on same-sex marriage violates gay couples' rights to equal protection and due process, as protected by the U.S. Constitution.

The high-profile case is being watched closely by both supporters and opponents of same-sex marriage, as many say it is destined to make its way to the U.S. Supreme Court. If it does, the case could result in a landmark decision on whether people in the United States are allowed to marry people of the same sex.

Same-sex marriage is currently legal in five U.S. states and in the District of Colombia, while civil unions are permitted in New Jersey. The five states are Massachusetts, Connecticut, Vermont, Iowa and New Hampshire.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. 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," Walker wrote in his opinion.

"Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre," he added. "Gender no longer forms an essential part of marriage; marriage under law is a union of equals."

In a separate order, Walker also granted supporters of Proposition 8 a temporary stay, which stops his decision from taking immediate effect. They had argued, prior to his ruling, that same-sex marriages would be performed soon after his decision and could be complicated by rulings and appeals further down the legal road.

Walker gave both sides in the case until Friday to submit their responses to the order.

Supporters of same-sex marriage who had gathered outside the federal courthouse in San Francisco erupted in celebration upon hearing news of the judge's opinion. They waved multi-colored and U.S. flags, and carried signs that read: "We all deserve the freedom to marry."

"This is what American justice is all about -- when a judge, an independent judge, tries hard to listen to all of the evidence, analyzes the issues, and comes to a conclusion and vindicates the rights of a minority of our citizens to be treated with decency and respect and equality in our system," said Theodore Olson, one of the two main attorneys for the plaintiffs.

Kristin Perry and Sandy Stier, along with Jeffrey Zarrillo and Paul Katami, are the two couples at the heart of the case, which if appealed would go next to the 9th U.S. Circuit Court of Appeals before possibly heading to the U.S. Supreme Court.

Opponents of same-sex marriage have said their best bet lies with the higher courts, and vowed to appeal the federal judge's ruling.

Proposition 8 is part of a long line of seesaw rulings, court cases, debates and protests in California over the controversial issue of same-sex marriage. It passed with some 52 percent of the vote in November 2008.

"Big surprise! We expected nothing different from Judge Vaughn Walker, after the biased way he conducted this trial," said Brian Brown, president of the National Organization for Marriage. "With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman."

[Sun Tzu]

I for one am 100% for same-sex marriages. If two people want to get married because they have found love, GREAT. Let them, who the hell cares if it's two guys, two girls, or a guy and a girl. If your religion is for whatever reason against it, then your religion is broken and outdated. I have a f/f married couple in my own family who got hitched before Prop 8.

[RainMaker]

Religion has nothing to do with the governments institution of marriage. It is just a legal contract between two parties. If people want to add spiritual elements to it and such, they are more than welcome to do so on their own.

[JonInMiddleGA]

Originally Posted by Sun Tzu

If your religion is for whatever reason against it, then your religion is broken and outdated.

And if your religion supports it, it besmirches the name of religion even moreso than the abomination that was given the approval of the moral reprobate in San Francisco today bastardizes both language and common decency.

There. We're now about even I think, and between us we've covered most of the relevant bases. We can resume our regularly scheduled programming.

[JediKooter]

I for one, am not against anal sex. Oh wait, it's not about that, it's about people being happy and being with the ones that they love and being treated as equals like our constitution promises.

[Lathum]

IBTL

[Crapshoot]

Originally Posted by JonInMiddleGA

And if your religion supports it, it besmirches the name of religion even moreso than the abomination that was given the approval of the moral reprobate in San Francisco today bastardizes both language and common decency.

There. We're now about even I think, and between us we've covered most of the relevant bases. We can resume our regularly scheduled programming.

Your religion is not the religion of society. There is this little thing the Establishment cause is trying to explain. If you want a theocracy, you're in the wrong place. Its not a question of "you're entitled to your opinion" - its a question of right and wrong, and the trend in this war is only one-direction.

[JPhillips]

From the decision:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.

Hell yes.

[Crapshoot]

PS - Ted Olson (as many of you know) was the lawyer who argued Bush v. Gore... for Bush. Interesting bedfellows no?

[jeff061]

Certain travesties are so obvious even the masses can't prevent resolution.

Gay marriage is one of the few things where if you are against it I pretty much don't care what you have to say about anything.

[RainMaker]

I understand if someone is against it, but no one is forcing you to participate. I'm against smoking but don't think it should be outlawed.

[DaddyTorgo]

Originally Posted by jeff061

Certain travesties are so obvious even the masses can't prevent resolution.

Gay marriage is one of the few things where if you are against it I pretty much don't care what you have to say about anything.

+1

This is why I pretty much don't care what Jon has to say about anything for instance.

[Kodos]

Score one for the good guys.

[Groundhog]

Originally Posted by RainMaker

I understand if someone is against it, but no one is forcing you to participate. I'm against smoking but don't think it should be outlawed.

This.

(though I wouldn't mind if smoking in public places was outlawed. )

[Tigercat]

I still don't understand why the obvious isn't argued more in public; that there should be no government "marriages," only civil unions. That the government was ever or should ever be involved in the spiritual (or sexual) connection between two people is absurd and unconstitutional in my mind.

Give two people that want to live together and support each other for the long term the appropriate benefits and protections. If they cut it short, give them monetary punishments equal to the benefits and protections they might have received as a couple. Simple, clean, and let religions of the world decide what "marriage" means.

[DaddyTorgo]

Originally Posted by Tigercat

I still don't understand why the obvious isn't argued more in public; that there should be no government "marriages," only civil unions. That the government was ever or should ever be involved in the spiritual (or sexual) connection between two people is absurd and unconstitutional in my mind.

Give two people that want to live together and support each other for the long term the appropriate benefits and protections. If they cut it short, give them monetary punishments equal to the benefits and protections they might have received as a couple. Simple, clean, and let religions of the world decide what "marriage" means.

this has always been my position, and it's probably what will end up happening in practice in the end.

[molson]

Originally Posted by Tigercat

I still don't understand why the obvious isn't argued more in public; that there should be no government "marriages," only civil unions. That the government was ever or should ever be involved in the spiritual (or sexual) connection between two people is absurd and unconstitutional in my mind.

Marriage itself is an institution based on morals, and regulation of morality.

So it's kind of funny to hear the "keep morals out of marriage" rallying cry, (much like "keep the government out of medicare") Yes, we've incorporated the marriage tradition into our laws, but it's certainly a moral tradition.

I always have trouble thinking of theoretical reasons to be against gay marriage itself. I'd certainly vote pro-gay marriage in a state election, though I'm not sure anything marriage-related is a constitutionally protected fundamental right. It always feels off when an appointed judge strikes down the will of the people based on an interpretation of the constitution that wasn't controlling precedent yesterday. I don't think that was the way things are supposed to work. A good result at the end of the day, but in a way that always makes me feel like we're sacrificing a little more of our system.

[RainMaker]

Originally Posted by Tigercat

I still don't understand why the obvious isn't argued more in public; that there should be no government "marriages," only civil unions. That the government was ever or should ever be involved in the spiritual (or sexual) connection between two people is absurd and unconstitutional in my mind.

Technically that is what it is. Marriage by law doesn't give anyone special sexual or spiritual benefits. It's just a contract you go down to City Hall to sign that allows you to file your taxes together and other legal benefits.

Religion is turning the government form of marriage into something it is not.

[Tigercat]

Originally Posted by RainMaker

Technically that is what it is. Marriage by law doesn't give anyone special sexual or spiritual benefits. It's just a contract you go down to City Hall to sign that allows you to file your taxes together and other legal benefits.

Religion is turning the government form of marriage into something it is not.

I don't know. There are ghosts in the machine in odd places. INS (or whatever it is called nowadays) having requirements to prove a "normal," and right now heterosexual, marriage as one example.

[Subby]

This is very good news for dangarion.

[RainMaker]

Originally Posted by molson

Marriage itself is an institution based on morals, and regulation of morality.

So it's kind of funny to hear the "keep morals out of marriage" rallying cry, (much like "keep the government out of medicare") Yes, we've incorporated the marriage tradition into our laws, but it's certainly a moral tradition.

In religion and personal views morals are part of marriage, but not in government. There are no moral laws set to receive a marriage license. Most states require you to be 18 years of age, prove who you are, prove you aren't married to someone else, and sign a piece of paper together. Some require blood tests to rule out STDs.

There is no moral requirement. I can meet a stranger on the street and walk into City Hall and get married to her 10 minutes later. The morals you put on it are your own, not the governments. Saying morals are a part of the legal contract the government presides over is completely false.

Originally Posted by molson

I always have trouble thinking of theoretical reasons to be against gay marriage itself. I'd certainly vote pro-gay marriage in a state election, though I'm not sure anything marriage-related is a constitutionally protected fundamental right. It always feels off when an appointed judge strikes down the will of the people based on an interpretation of the constitution that wasn't controlling precedent yesterday. I don't think that was the way things are supposed to work. A good result at the end of the day, but in a way that always makes me feel like we're sacrificing a little more of our system.

This is why we aren't a Democracy and are a Constitutional Republic. What you mentioned is the precise reason we are setup the way we are. So that the majority could not take rights away from the minority. If we were a Democracy, I'd agree that this should not be overturned, but we are not. There are a lot of blacks, Asians, hispanics, women, and poor people throughout our nation's history who are happy for that.

[RainMaker]

Originally Posted by Tigercat

I don't know. There are ghosts in the machine in odd places. INS (or whatever it is called nowadays) having requirements to prove a "normal," and right now heterosexual, marriage as one example.

INS isn't a moral issue, it's preventing people from circumventing the citizenship laws.

[Greyroofoo]

Vote Yes! on Proposition Infinity.

[Crapshoot]

Originally Posted by Tigercat

I still don't understand why the obvious isn't argued more in public; that there should be no government "marriages," only civil unions. That the government was ever or should ever be involved in the spiritual (or sexual) connection between two people is absurd and unconstitutional in my mind.

Give two people that want to live together and support each other for the long term the appropriate benefits and protections. If they cut it short, give them monetary punishments equal to the benefits and protections they might have received as a couple. Simple, clean, and let religions of the world decide what "marriage" means.

Agreed completely - everyone can define marriage as they please, but the civil unions are the base agreement. If you want to call your arrangement a marriage per your religious beliefs, more power to you.

[larrymcg421]

Originally Posted by molson

I'd certainly vote pro-gay marriage in a state election, though I'm not sure anything marriage-related is a constitutionally protected fundamental right. It always feels off when an appointed judge strikes down the will of the people based on an interpretation of the constitution that wasn't controlling precedent yesterday. I don't think that was the way things are supposed to work. A good result at the end of the day, but in a way that always makes me feel like we're sacrificing a little more of our system.

If so, then we were doing that with Loving v. Virginia (Interracial marriage) and Brown v. Board (which directly overturned previous precedent). Do you really think it would have been preferable to wait however long it took for 50.1% to be okay with both of those things?

Also, how else do you expect the judicial branch to function if not a check on the other branches? Why does it matter that they're appointed? The constitution provided for that, so I've never understood why people keep bringing that up as if it's some sort of travesty every time an "unelected" judge makes a decision.

[k0ruptr]

I don't get how anyone would be against gay marriage. they (the ones against it) are the confused ones. heh. Let people be happy.

[RainMaker]

Originally Posted by k0ruptr

I don't get how anyone would be against gay marriage. they (the ones against it) are the confused ones. heh. Let people be happy.

Self-hatred?

[molson]

Originally Posted by RainMaker

This is why we aren't a Democracy and are a Constitutional Republic. What you mentioned is the precise reason we are setup the way we are. So that the majority could not take rights away from the minority. If we were a Democracy, I'd agree that this should not be overturned, but we are not. There are a lot of blacks, Asians, hispanics, women, and poor people throughout our nation's history who are happy for that.

It's not really a constitutional republic if the constitution doesn't have any fixed meaning.

That's not necessarily bad (as long as the judges are making law we like).

A judge can use the constitution to affirm or strike down almost any conceivable law. That makes them the supreme lawmaker, to decide what the rest of us should and should not be doing. It's a ton of power.

I'd love to start from scratch with a new constitution, new branches, new checks and balances. A longer, more easily amendable constitution would be a big part of that. We need a mechanism to determine which rights, in 2010, are SO fundamental (that there can be no dissention, even by the majority of voters in a state), beyond just the whims of a single judge, or panel of judges, who dress up their policy opinion in pseudo-constitutional analysis.

[molson]

Originally Posted by k0ruptr

I don't get how anyone would be against gay marriage. they (the ones against it) are the confused ones. heh. Let people be happy.

I was reading stuff on an anti-gay marriage website trying to figure it out, and what they came up with in this scholarly paper was really complicated. I found it tough to wrap my head around. It had to do with society, and family, and even evolution...

Just like with judicial constitutional analysis, they started with a narrow policy idea, "gay marriage is gross and evil!" and dressed it up with blabber to make it look like a legal opinion.

[molson]

Originally Posted by RainMaker

In religion and personal views morals are part of marriage, but not in government. There are no moral laws set to receive a marriage license. Most states require you to be 18 years of age, prove who you are, prove you aren't married to someone else, and sign a piece of paper together. Some require blood tests to rule out STDs.

There is no moral requirement. I can meet a stranger on the street and walk into City Hall and get married to her 10 minutes later. The morals you put on it are your own, not the governments. Saying morals are a part of the legal contract the government presides over is completely false.

All that is pretty new though. The tradition of marriage is that god (and the state) give their blessing and authority to have sex, reproduce and have a legitimate family. It was, traditionally, a tool of governments to regulate morality, and to bring structure to people and their families. The whole idea of "legitimate" family was a big deal through most of history.

Governments have gotten out of the business of regulating those things, but continue to give their blessing and acknowledgment of marriages. For some reason. Government marriage is kind of having an identity crisis. We always hear about marriage "benefits" - but those are all kind of afterthoughts to the moral tradition of marriage.

[RainMaker]

Originally Posted by molson

All that is pretty new though. The tradition of marriage is that god (and the state) give their blessing and authority to have sex, reproduce and have a legitimate family. It was, traditionally, a tool of governments to regulate morality, and to bring structure to people and their families. The whole idea of "legitimate" family was a big deal through most of history.

Governments have gotten out of the business of regulating those things, but continue to give their blessing and acknowledgment of marriages. For some reason. Government marriage is kind of having an identity crisis. We always hear about marriage "benefits" - but those are all kind of afterthoughts to the moral tradition of marriage.

Actually, God is pretty new in the marriage game. Marriage was typically a contract between families. It was done more based on financial reasons and social status than anything else. In fact, the early Church felt that marriage was a completely private matter that they had no business intervening in. There were a couple Bishops who disagreed, but for the most part, religion wasn't a part of marriage. It wasn't until the 1500's when the Church became involved in marriage.

If we're talking about tradition in this country, that's another story. In this country, traditionally women were allowed to marry and conceive as early as 12 years old. Blacks couldn't marry whites. Women couldn't file for divorce. Is that what you mean by traditional marriage?

[DanGarion]

Originally Posted by RainMaker

Actually, God is pretty new in the marriage game. Marriage was typically a contract between families. It was done more based on financial reasons and social status than anything else. In fact, the early Church felt that marriage was a completely private matter that they had no business intervening in. There were a couple Bishops who disagreed, but for the most part, religion wasn't a part of marriage. It wasn't until the 1500's when the Church became involved in marriage.

If we're talking about tradition in this country, that's another story. In this country, traditionally women were allowed to marry and conceive as early as 12 years old. Blacks couldn't marry whites. Women couldn't file for divorce. Is that what you mean by traditional marriage?

You basically said what I was going to add to this one.

[ISiddiqui]

Originally Posted by Kodos

Score one for the good guys.

This.

[Crapshoot]

http://www.slate.com/id/2262766/

[EagleFan]

Originally Posted by Sun Tzu

I for one am 100% for same-sex marriages. If two people want to get married because they have found love, GREAT. Let them, who the hell cares if it's two guys, two girls, or a guy and a girl. If your religion is for whatever reason against it, then your religion is broken and outdated. I have a f/f married couple in my own family who got hitched before Prop 8.

Quite a close minded statement about religions. Not wanting to get into a debate about religions as I am not religious but I understand Christianity and I can understand what pissed Jon off in your statement which seems kind of like a trollish cheap shot to be honest.

Originally Posted by RainMaker

Religion has nothing to do with the governments institution of marriage. It is just a legal contract between two parties. If people want to add spiritual elements to it and such, they are more than welcome to do so on their own.

Incorrect. Our country's interpretation of marrige has been based upon the religious union. Everyone wants to seperate religion and government they should also be in favor of it happening here. It is just a matter of phrasing but make anything a civil union and leave marriages to the religious ceremonies (but require a civil union to be filed for any of the legal protections and rights given).

Originally Posted by Crapshoot

Your religion is not the religion of society. There is this little thing the Establishment cause is trying to explain. If you want a theocracy, you're in the wrong place. Its not a question of "you're entitled to your opinion" - its a question of right and wrong, and the trend in this war is only one-direction.

You sound just as self righteous as the religious sector preaching against it.

Originally Posted by jeff061

Certain travesties are so obvious even the masses can't prevent resolution.

Gay marriage is one of the few things where if you are against it I pretty much don't care what you have to say about anything.

Speaking of close minded...

Originally Posted by Tigercat

I still don't understand why the obvious isn't argued more in public; that there should be no government "marriages," only civil unions. That the government was ever or should ever be involved in the spiritual (or sexual) connection between two people is absurd and unconstitutional in my mind.

Give two people that want to live together and support each other for the long term the appropriate benefits and protections. If they cut it short, give them monetary punishments equal to the benefits and protections they might have received as a couple. Simple, clean, and let religions of the world decide what "marriage" means.

Yes, yes and yes.

Originally Posted by RainMaker

Technically that is what it is. Marriage by law doesn't give anyone special sexual or spiritual benefits. It's just a contract you go down to City Hall to sign that allows you to file your taxes together and other legal benefits.

Religion is turning the government form of marriage into something it is not.

Sorry but the government form of marriage is taken directly from the religious form of marriage. Make it a civil union and everyone wins. The religious people can keep their marriage label and everyone has access to a civil union. It's win/win.

Originally Posted by k0ruptr

I don't get how anyone would be against gay marriage. they (the ones against it) are the confused ones. heh. Let people be happy.

It's a matter of religious beliefs. Everyone wants to split religion and government on everything else. Split it here too and make it a civil union, that way it doesn't encroach upon the religious ceremony and everyone wins.

[RainMaker]

Originally Posted by EagleFan

Incorrect. Our country's interpretation of marrige has been based upon the religious union.

No it hasn't. There are over 1,000 provisions the Federal government offers married couples and not one of them is religuous in nature. That is unless I missed the verse in the Bible about who Medicare benefits go to if a spouse dies.

So please backup your statement with some fact. Show me where our country interprets in it's laws that marriage be religuous.

Originally Posted by EagleFan

Everyone wants to seperate religion and government they should also be in favor of it happening here. It is just a matter of phrasing but make anything a civil union and leave marriages to the religious ceremonies (but require a civil union to be filed for any of the legal protections and rights given).

It is seperate. There is nothing in our marriage laws that require anything religuous at all. All marriage is in our country is a contract between two people that allow them certain benefits and provisions through the government.

And as stated earlier, marriage isn't a religuous act. It was used for financial and social means. So pretending like religion owns the word marriage is a clear ignorance to history of marriage amongst our species.

[MrBug708]

This is like a 100 year war. Both sides win battles, but never win the war. Gay marriage will be legal for awhile in California, until it isn't again. I expect the U.S. Supreme Court to rule that this is a state's rights issue (5-4), making it illegal again.

[RainMaker]

It's a stupid issue because it'll be legal everywhere in 20 years. It's like people who opposed the Civil Rights movement. Yeah they save a few years here and there, but everyone saw where the tide was shifting. So even if it's overturned by the Supreme Court, it'll eventually be legal and we'll all look back on it like we look back on interracial marriage laws.

[Glengoyne]

I personally don't believe the government should treat any citizen different from any other based upon a given citizen's legal behavior. The state should be essentially indifferent toward an individual with regard to their sexual preference. One sexual preference over another should not confer or revoke privileges offered by the state.

That said, I didn't like the way the state courts acted leading up to Prop 8. I think the way this turned out, is a good outcome. I do hope that the judge's opinion is actually factually and legally sound. I haven't read it yet, but I do agree with a lot of the excerpts I've seen. I especially like the one JPhillips posted above.

I am a bit surprised by the Prop 8 proponents failing to really put forth much of a case here. By some accounts they sort of laid down when it came to making their case. I'm suspecting this was intentional, but don't see how they make any long term gain here. Perhaps they can pull out all of the stops and win at the Supreme Court level. I guess you'd have to admit they might consider their chances of prevailing before the SC better than with the 9th circuit.

[Glengoyne]

Originally Posted by Crapshoot

PS - Ted Olson (as many of you know) was the lawyer who argued Bush v. Gore... for Bush. Interesting bedfellows no?

Also notable, David Boies, who represented Gore in Bush v. Gore, opposed Ted Olson again in this case, representing the Prop 8 proponents.

[Dutch]

Originally Posted by RainMaker

It's a stupid issue because it'll be legal everywhere in 20 years. It's like people who opposed the pantsless-society movement.

Yeah!!!!


Wait.


What???

[larrymcg421]

Originally Posted by Glengoyne

Also notable, David Boies, who represented Gore in Bush v. Gore, opposed Ted Olson again in this case, representing the Prop 8 proponents.

That's not true. Boies was with Ted Olson against Prop 8. The Bush-Gore lawyers were on the same side.

[Glengoyne]

Originally Posted by larrymcg421

That's not true. Boies was with Ted Olson against Prop 8. The Bush-Gore lawyers were on the same side.

Ah I misunderstood that. Sorry to mis-lead. I believed they were opposing each other again here.

[claphamsa]

wow lots of fun! Im too lazy to read all the posts.... but I would like to point out that from facebook (where i first saw the news) the SAME people who were all about the courts "correcting" the gun rights cases, are also the SAME ones who are blasting the judges for over ruling democracy.... right there is why im a liberal. at least be consistent.

[jeff061]

Speaking of close minded...

That is hilarious. I don't care if you call it a marriage or re-name it a civil union to keep the religious happy, gays should be able to do it. If you disagree with that you forfeit the right to call anyone close minded on any topic ever.

Of course the bitch of this "civil union" argument is that making that change won't make most religious people happy. They don't want the government to condone homosexuality, period. Allowing gay "civil unions" instead of "marriages" isn't any better to these people because it's legitimizing something they think should be hidden or fixed.

It's also simply a sign that religion is less powerful in the government than it has been in years past, which is undesirable to them as well.

[Ksyrup]

Originally Posted by jeff061

Certain travesties are so obvious even the masses can't prevent resolution.

Am I the only one who did a double-take and re-read this to NOT include the word transvestites?

I'm all for the governmental legal union being separated from the religious aspect, whether or not it's traditionally been viewed a different way. It's pretty clear that under the law, marriage/union affords certain personal advantages and societal benefits (passing property, inheritance, life/health insurance benefits, etc.) that should be afforded to all adults, regardless of who their partners are.

Sadly, the main arguments I read on other sites in opposition to this is that it will pave the way for stuff like adult/child marriages and human/animal marriages. I'm not sure what those have to do with the union of two consenting adults and how you make the leap (aside from the disengenuous bogeyman aspect of it), but whatever.

[DaddyTorgo]

Originally Posted by MrBug708

This is like a 100 year war. Both sides win battles, but never win the war. Gay marriage will be legal for awhile in California, until it isn't again. I expect the U.S. Supreme Court to rule that this is a state's rights issue (5-4), making it illegal again.

If they rule that it's a state's rights issue it'd be legal again since the Calif. Supreme Court tossed out Prop 8.

[albionmoonlight]

Nate Silver's Take:

In the likelihood that Perry v. Schwarzenneger eventually makes its way to the Supreme Court, we know almost for certain that three Justices are going to vote to uphold the lower court's decision that gay marriage bans violate the U.S. Constitution, and three Justices are going to vote to overturn it. (I don't think the votes of Justice Roberts and Future Justice Kagan can absolutely be taken for granted.) The Constitution can obviously be interpreted by reasonable people in different ways.

It's probably also the case, of course, that the likely swing vote on the case -- Justice Anthony Kennedy -- could also read the Constitution in different ways. I don't merely mean that we can't predict his decision: I mean that neither decision would be intellectually dishonest relative to his worldview: they'd both be within the "margin of error", so to speak. Kennedy probably won't think about his decision that way once makes it -- he'll believe that he carefully sliced through the argumentation and derived the "right" answer -- but human beings are infinitely skilled at coming up with post-facto rationalizations for decisions that are essentially arbitrary. In reality, Kennedy is probably capable of "finding" either decision depending on where he goes looking for it.

This might seem like an incredibly obvious point. But I think sometimes when the Court faces a momentous decision, the people who are best qualified to analyze the jurisprudence (i.e. lawyers and legal scholars) probably have a bias toward overestimating the degree of precision intrinsic to their discipline, as experts in most fields undoubtedly do. Even if they are not necessarily trying to analyze the Constitution in a vacuum but instead, trying to interpret it through a particular frame (in this case, Justice Kennedy's), they probably overestimate their ability to make skilled predictions about judicial behavior based on an essentially positivist view of the law.

This is a long-winded articulation of the theory of legal realism: the idea that contingencies external to the law (such as politics, emotion, and incentives) matter when the court reaches decisions, a theory which would certainly seemed to have gained additional currency in the wake of Bush v. Gore (as Jack Balkin explains).

Although I'm not qualified to analyze the merits of Perry v. Schwarzenneger point of view from a legal positivist point of view, I will deign to take a crack at it from a legal realist frame. It seems to me that most of the "intangibles" bear upon Justice Kennedy in ways that favor his finding Constitutional protection for same-sex marriage. For one thing, he'll be 75 or 76 by the time the SCOTUS hears this case, and will probably be thinking about his legacy. Given that, in 50 years' time, American society will almost certainly regard the plaintiff's position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one, that legacy would be better served by casting the decisive vote in favor of the plaintiffs.

The other major intangible is the presence of Ted Olson on the plaintiff's council. Olson, generally regarded as a conservative, has teamed with David Boies, his adversary in Bush v. Gore, to advocate for same-sex marriage. And as you can see in the clip above, he makes a very persuasive case for it. Whether or not you can call Olson's a conservative case for gay marriage, I don't quite know. But he certainly makes it seem like anything other than a radical position. In fact, he makes it seem like the necessary and obvious one.

That's what any good advocate should do, of course. But the fact that the advocate in question is someone with the gravitas, conservative pedigree, and historical significance of Olson might make a symbolic difference above and beyond that, and could serve to make Kennedy all the more confident that he were lining up on the right side of history.

Just backing up: isn't it nuts that (eventually) one of the most famous rulings in SCOTUS history will be named after Arnold Schwarzenneger?

[DaddyTorgo]

to your last point....yes. super nuts.

[molson]

Originally Posted by RainMaker

Actually, God is pretty new in the marriage game. Marriage was typically a contract between families. It was done more based on financial reasons and social status than anything else. In fact, the early Church felt that marriage was a completely private matter that they had no business intervening in. There were a couple Bishops who disagreed, but for the most part, religion wasn't a part of marriage. It wasn't until the 1500's when the Church became involved in marriage.

If we're talking about tradition in this country, that's another story. In this country, traditionally women were allowed to marry and conceive as early as 12 years old. Blacks couldn't marry whites. Women couldn't file for divorce. Is that what you mean by traditional marriage?

Nobody's stopping families from making contracts. Obviously it's the government recognition of the union that's at issue here. And the government/church got involved to regulate morality and family structure.