Tidbits on Overturn of Prop 8

One small step. Another several years and millions of dollars before there is any real resolution on this issue. I haven't read the ruling, but I've heard some smart people talk about it.

So the judge doesn't talk about it, but he's gay. Does it matter? One could argue that he had a vested interest in the outcome. I don't buy it. That same logic would mean a woman could never rule in an abortion case. Or a black could never judge a civil rights case. He's also a Republican. Should we exclude Republicans from ruling on cases where Republcans might benefit? Some are screaming about this, but the Prop 8 people didn't contest it earlier and won't make it part of their appeal, because it's a loser issue.

One of the arguments is that we've just overruled the "will of the people" in democratic parlance. The people of California voted for this, so to overturn this is to thwart the will of the people. Here's the thing. The Constitution was made to protect people from the oppression of the government and each other. It's actually got a bill of rights meant to protect individuals. Prop 8 is the first time that a majority of people have voted to Constitutionally strip rights from a specific class of people. You can argue what level of protection of people in this class deserve, but I think it would be hard for any judge to use a device like a Constitutional amendment to take rights away rather than protect them.

Jerry Brown and Arnie were in large part charged with a response on behalf of the State. Neither really gave a crap and didn't help the pro-Prop 8 groups at all.

There is a fundamental flaw with the argument that this ban somehow protects the family. The Pro Prop group really struggled with any showing of why allowing gay marriages would somehow impact their marriage contracts. Most of what they argued amounted to little more than prejudice against gay people.

Along the same line, they contended that producing children was a fundamental part of marriage and only marriage. This would be great in an idea world, but this argument falls flat because there are plenty of kids born to unmarried people. There are also many kids who have a parent die and aren't raised by a man and woman. In other words to say gay parents weren't suitable parents, they would pretty much need to say any child born out of wedlock or any child who had a parent die was also in an unsuitable position. Marriage does not equal kids. Biology just doesn't work that way.

Back in law school we learned about different levels of scrutiny for legislation based on classifications. For instance, the state could pass laws regarding race or relgion, but these would be under strict scrutiny. Essentially, the state would need a really compelling reason. But usually, instead of strict scrutiny, most laws get a rational basis test. That means the state gets to pass laws as a regular part of its business and someone complaining about it has the burden of proof. The judge in this case used the rational basis level of scutiny, meaning he gave Prop 8 the benefit of the doubt and made the people contesting it prove up their case. Only a minor legal point, but it could play a big part in the appeals.