Calling All Lawyers: Prop 8 Court Order

[Gangster_Octopus]

The US District Court of Northern California seems to have laid down quite a challenge to the anti-SSM crowd when it comes to SSM withthis latest court order in the Boies-Olsen Prop 8 Challenge Basically what the court is asking the Prop 8 proponents to do, it seems to me, …PROVE IT! Some highlights:

In the context of the present case, the relevant factors appear to include: (1) the history of discrimination gays and lesbians have faced; (2) whether the characteristics defining gays and lesbians as a class might in any way affect their ability to contribute to society; (3) whether sexual orientation can be changed, and if so, whether gays and lesbians should be encouraged to change it; and (4) the relative political power of gays and lesbians, including successes of both pro-gay and anti-gay legislation. The parties have also averted to facts, such as the history of marriage and whether and why its confines may have evolved over time, that may be necessary to determine whether the right asserted by plaintiffs is “deeply rooted in this Nation’s history and tradition” and thus subject to strict scrutiny under the Due Process Clause.

Number 2 is a big fat no. Number 3 is a who cares and a no.

To determine whether the asserted state interests can survive plaintiffs’ constitutional challenge, the record may need to establish: (1) the longstanding definition of marriage in California; (2) whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage or alternatively whether permitting same-sex couples to marry destabilizes opposite-sex marriage; (3) whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment; and (4) whether and how California has acted to promote these interests in other family law contexts.

Number 2 is laughable. Number 3 may be true, I am not expert, but the second part about it being a basis for deiscrimination is a big no.

In addition to the particular facts pertaining to the parties at bar, resolution of this dispute may depend on: (1) the history and development of California’s ban on same-sex marriage; (2) whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians; (3) whether the ban on same-sex marriage meaningfully restricts options available to heterosexuals; and (4) whether requiring one man and one woman in marriage promotes stereotypical gender roles.

I think the answer to numbers 2 and 3 are obvious, of course not. Number 4 would seem to be true, but IANAL so I am not sure how that would play out.

this case may require the record to establish: (1) the voters’ motivation or motivations for supporting Prop 8, including advertisements and ballot literature considered by California voters; and (2) the differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts.

#2 is undeniably true.

These are my opinons, but the fact that the court actually wants to shine a bright light on the idiocy is staggering and heartwarming.

Lawyers, am I reading too much into this, or is this indeed a chance to put the bigotry on trial?

[UltraVires]

It sounds like this Court has made up its mind already. This may see the Supreme Court in the near future…

[Gangster_Octopus]

@jtgain

It sounds like this Court has made up its mind already. This may see the Supreme Court in the near future…

In favor of which side?

[Whack-a-Mole]

@jtgain

It sounds like this Court has made up its mind already. This may see the Supreme Court in the near future…

It does kind of seem that way but the questions they want answered are fair and relevant.

I guess it looks like bias because frankly there are no suitable answers to those questions that support the existence of Prop-8.

I expect this will reach the SCOTUS and I expect the SCOTUS will leave Prop-8 in place with a 5-4 vote.

[Cyberhwk]

@Whack-a-Mole

I expect this will reach the SCOTUS and I expect the SCOTUS will leave Prop-8 in place with a 5-4 vote.

I don’t know. INA-constituational-lawyer, but Kennedy wrote the majority opinion in Romer vs. Evans which struck down a Colorado law preventing legislation protecting gays from discrimination…

@Kennedy

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

My WAG is this could go 5-4 except the other way, striking down Prop-8. I’d be more worried about the Catholic Sotomayor being on board than Kennedy.

[alphaboi867]

@Whack-a-Mole

…I expect this will reach the SCOTUS and I expect the SCOTUS will leave Prop-8 in place with a 5-4 vote.

My WAG is that this will take years to reach SCOTUS by which time Prop-8 will have been repealed and the case will then be dismissed for lact of standing.

[John_Mace]

@Cyberhwk

My WAG is this could go 5-4 except the other way, striking down Prop-8. I’d be more worried about the Catholic Sotomayor being on board than Kennedy.

Kennedy is also Catholic, if that matters.

[UltraVires]

I don’t think that there is 4 votes for nationwide recognition of gay marriage. I can’t see Stevens voting for it. Sotomayor would be up in the air as well. Breyer and Ginsberg would probably be in favor of it. 2 strong votes, 1 maybe, and 6 against.

[Cliffy]

You’re reading too much into it.

Although the Defendants can’t possibly be happy with this Order, since there’s no principled objection to SSM, they can’t really be surprised by it. But mostly the Court’s saying “Equal Protection claims rest on certain factors; in this case those factors will be best illustrated by answering the following questions:…”

Also, jtgain is wrong. I think Stevens is an easy vote for the good guys on this one. Breyer is not, because Breyer is almost always more concerned with practicalities than ideal statements of the law.

–Cliffy