# Prop 8 trial update: Walker's ruling upheld **URL:** \ **Category:** Great Debates\ **Created:** [June 14, 2011, 10:31pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500 "2011-06-14T22:31:20Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [June 15, 2011, 7:55pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/41 "2011-06-15T19:55:20Z")
One of the main selling points the backers of Prop 8 used is that gay marriage somehow dilutes traditional marriage. After all, one of their rallying cries is “Save Traditional Marriage!” So, according to their logic at least, if Walker were in a heterosexual relationship, he’d also be conflicted because he’d want to save _his_ marriage :rolleyes: ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [June 15, 2011, 8:11pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/42 "2011-06-15T20:11:59Z")
Quoth **CitizenPained** : > [@](#): > > Last I checked, Judge Walker was never prohibited from marrying. He was prohibited from marrying a man. I’d say that he directly benefits from the striking of Prop 8. Likewise, I was never prohibited from marrying, either, just from marrying a man. Mind you, I have no interest whatsoever in marrying a man, but I’m prohibited from doing so. If I were a judge, would this be reason for me to recuse myself? ---
**Author:** ![paperbackwriter](https://avatars.discourse-cdn.com/v4/letter/p/53a042/32.png) [@paperbackwriter](https://boards.straightdope.com/u/paperbackwriter)\ **Post date:** [June 15, 2011, 8:32pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/43 "2011-06-15T20:32:44Z")
> [@John\_Mace](#): > > I’m aware of the standing issue and how that works. > > But why would the court only overturn Prop 8 for CA? First of all, Prop 8 was only passed in California. They can’t overturn Prop 8 in CT because it wasn’t passed here in CT. (Actually, we have gay marriage here, but that’s beside the point.) Prop 8 is a particular law with a particular legislative, political, and judicial history. No other state law against gay marriage shares those same histories. What part of that history becomes the fulcrum upon which the law’s constitutionality is decided will determine how a potential USSC decision applies to other laws. Secondly, a lot depends on what the question that the USSC actually certifies for review is. The USSC doesn’t necessarily review everything from the very beginning when it grants certoriari. That type of de novo review is rare and limited. Appeals courts, including the USSC, are usually limited to deciding questions of law. The upshot of this is that a decision in Perry v. Schwarzenegger, even by the USSC, _might_ only have immediate impact on Prop 8. > [@John\_Mace](#): > > It would open the floodgates for the laws (or constitutional amendments) of each state to be brought individually to the SCOTUS to be decided, Not really. Let’s say that Prop 8 is struck down on the basis that (to pick something truly silly) the backers didn’t have any representation from Jewish organizations, so they aren’t truly representative of the moral and religious spectrum in California. Then a group in Missouri challenges in Federal Court there a similar law. The Federal District Court will use that precedent to determine if the MO law is constitutional. Let’s say that the MO District Court says: “Yep, no Jews, not a constitutional law.” The higher courts will probably refuse to hear the case, and the law is overturned. No USSC needed. OTOH, let’s imagine, for the moment (yes, my hypothetical is about to get even sillier) that the MO Federal Court says: “Well, there weren’t any Jewish organizations, but we find that the composition of the proponents is representative of the religious spectrum as it exists in this state, so it stays.” Then that will probably get appealed and the USSC may get involved. Despite the silliness of the hypothetical, the point is: what effect a potential USSC decision in this particular case has on laws in other states is not clear-cut until the USSC actually takes the case and decides it. A lot depends on what their grounds are for accepting it and what their grounds are for deciding it. It also depends on how closely the now-unconsititutional law is reflected in other state laws. Furthermore, often lower district courts are able to apply a USSC precedent to dispense with the constitutionality of a law in the light of that precedent without further USSC involvement. > [@John\_Mace](#): > > and there is no way the court is going to all a ban on SSM in some states and disallow that ban in other states. What a legal mess that would create. Actually, the USSC allows different states to ban some things others call legal all the time. My state bans civilian possession of Tasers that most other states allow. That’s part of what having a federal republic means. The conservative wing of this Court has especially been immune to “what a legal mess that would create”-type arguments. Scalia and Thomas have both said in different decisions that the practical effects of upholding the law are secondary considerations at best. ---
**Author:** ![Bosstone](https://avatars.discourse-cdn.com/v4/letter/b/22d042/32.png) [@Bosstone](https://boards.straightdope.com/u/Bosstone)\ **Post date:** [June 15, 2011, 8:36pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/44 "2011-06-15T20:36:41Z")
> [@paperbackwriter](#): > > Actually, the USSC allows different states to ban some things others call legal all the time. My state bans civilian possession of Tasers that most other states allow. That’s part of what having a federal republic means. That seems to miss **John** ’s point. “It’s okay for California to choose to have a ban, and it’s okay for Massachusetts to not have a ban” is fine. “Texas can have a ban if they choose to, but California is not allowed to have a ban even if they choose to” is something else entirely. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 15, 2011, 8:48pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/45 "2011-06-15T20:48:45Z")
> [@CitizenPained](#): > > The fact that Walker has been in a 10 year relationship means he disagrees with Pop 8’s premise. Not if he doesn’t want to get married I have a follow up question to **paperbackwriter** ’s post. I think I get that the USSC can take up the case and rule first on the question of standing, that if they rule the proponents have no standing, then Prop 8 is done and gay marriage is legal in CA. Can the USSC instead ignore the question about standing and simply rule on the issue of whether or not Prop 8 is Constitutional? As in, they get a case, don’t like the arguments either side are making, create an argument to settle a question they themselves ask, and then rule on it? ---
**Author:** ![Implicit](https://avatars.discourse-cdn.com/v4/letter/i/6a8cbe/32.png) [@Implicit](https://boards.straightdope.com/u/Implicit)\ **Post date:** [June 15, 2011, 8:55pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/46 "2011-06-15T20:55:23Z")
> [@CitizenPained](#): > > He’d arguably indirectly benefit as it would ‘legitimize’ his 10 year relationship. (I put that in quote marks on purpose.) I can’t imagine he wouldn’t take advantage of California law regarding same sex couples. Same sex marriage was legal in California for about six months, if he was so fired up to “legitimize” his relationship then I suppose he’d have rushed to the alter then. He did not, so all the assumptions you are making in this thread are silly. > [@](#): > > The fact that Walker has been in a 10 year relationship means he disagrees with Pop 8’s premise. What? Anyone in a relationship is suddenly pro-marriage? Um no, there are plenty of people in long term relationships who very definitely do not want to get married. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [June 15, 2011, 9:18pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/47 "2011-06-15T21:18:43Z")
> [@John\_Mace](#): > > I’m aware of the standing issue and how that works. > > But why would the court only overturn Prop 8 for CA? It would open the floodgates for the laws (or constitutional amendments) of each state to be brought individually to the SCOTUS to be decided, and there is no way the court is going to all a ban on SSM in some states and disallow that ban in other states. What a legal mess that would create. District Court rulings only create precendent within that judicial district. The ruling would also bind the parties to the case (in this case the State of California) even though CA includes territory outside the Northern District of California. If the 9th Circuit actually uphelds Perry v. Schwarzenegger then the ruling will apply to the entire 9th Circuit (Alaska, Arizona, Hawai’i, Idaho, Montana, Nevada, Oregon, Washington, & Guam as well as CA). _At least_ one of those Attorneys-General is bound to object and take it before the Supreme Court. Now if they rule the Prop 8 sponsers don’t have standing then they never even address any of their arguments. It’s like the case was never appealed at all. And I feel confident in saying there’s zero-chance SCOTUS would overule the 9th Circuit _on the issue of standing_, they’re very much loath to expand the rules of standing for federal court cases. I also feel confident is saying that the Supreme Court of California isn’t going to answer the legal question certified to them in favour of Prop 8’s backers. There’s no statute in CA granting private citizens the right to defend laws in court, no legal precedent for it, and the state constitution expressly gives that duty to the Governor and the Attorney General. That same state constitution also provides 2 different mechanisms for the voters and/or the state legislature to deal with officers who do not perform their duties; neither of which has been or will be pursued in this case. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [June 15, 2011, 9:49pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/48 "2011-06-15T21:49:46Z")
> [@Diogenes\_the\_Cynic](#): > > How is it any more relavent than being straight? Should female judges have to recuse themselves frrom sex discrimination cases? Black judges from racial discrimination? > > Every judge is going to belong to a demographic. Their job is to put that aside when they decide a case. A gay judge is no less capable of that than a straight judge. Here’s a more accurate analogy. A judge is a dues paying member of PITA. That judge is asked preside over a trial regarding a matter in which PITA has an interest. Should the judge have to disclose his membership or, barring that, recuse himself in the interest of the appearance of fairness? Didn’t we see this with respect to the Tucson shooter and the Federal bench in Arizona? ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [June 15, 2011, 9:54pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/49 "2011-06-15T21:54:53Z")
> [@Morgenstern](#): > > Here’s a more accurate analogy. A judge is a dues paying member of PITA. That judge is asked preside over a trial regarding a matter in which PITA has an interest. Should the judge have to disclose his membership or, barring that, recuse himself in the interest of the appearance of fairness? Didn’t we see this with respect to the Tucson shooter and the Federal bench in Arizona? PITA? Anyway, there is a difference between identity and membership. Gay identity doesn’t disqualify you any more than African-American identity does. Now, if he were a member of Equality California, I could see that. I could also see gay judges, as a general rule, refraining from membership in rights organizations like that while they’re on the bench because of possible conflicts of interest that would require recusal. But simply BEING gay and being in a ltr shouldn’t disqualify. ---
**Author:** ![Patty\_O\_Furniture](https://avatars.discourse-cdn.com/v4/letter/p/96bed5/32.png) [@Patty\_O\_Furniture](https://boards.straightdope.com/u/Patty_O_Furniture)\ **Post date:** [June 15, 2011, 10:02pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/50 "2011-06-15T22:02:53Z")
I love the cute little sandwich pockets they make. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 10:07pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/51 "2011-06-15T22:07:05Z")
PITA: People for the Inhumane Treatment of Animals. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 15, 2011, 10:40pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/52 "2011-06-15T22:40:09Z")
> [@CitizenPained](#): > > Last I checked, Judge Walker was never prohibited from marrying. He was prohibited from marrying a man. I’d say that he directly benefits from the striking of Prop 8. He could have gotten legally married to another man in California before Prop. 8. > [@](#): > > It’s just an odd coincidence, no? No. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 15, 2011, 10:44pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/53 "2011-06-15T22:44:02Z")
> [@Morgenstern](#): > > Here’s a more accurate analogy. A judge is a dues paying member of PITA. That judge is asked preside over a trial regarding a matter in which PITA has an interest. Should the judge have to disclose his membership or, barring that, recuse himself in the interest of the appearance of fairness? Didn’t we see this with respect to the Tucson shooter and the Federal bench in Arizona? This is not an accurate analogy. Judge walker did not have an association wth any party to this case. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 15, 2011, 10:54pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/54 "2011-06-15T22:54:42Z")
> [@John\_Mace](#): > > I’m aware of the standing issue and how that works. > > But why would the court only overturn Prop 8 for CA? It would open the floodgates for the laws (or constitutional amendments) of each state to be brought individually to the SCOTUS to be decided, and there is no way the court is going to all a ban on SSM in some states and disallow that ban in other states. What a legal mess that would create. If what is appealed to SCOTUS is the standing question, then that is what they rule on – i.e., if the state officials who ‘should’ be taking the appeal decline to do so, do intervenor would-be-appellants have standing to intervene? Although the substantive question of the case is, “Is same-sex marriage legal?,” the actual issue presented to them is, “In this case, the losing side at the trial court level chose not to take an appeal, and others claiming injury sought to take the appeal the losing side declined to follow up on. Do those others have standing to pursue an appeal?” If they don’t have standing, then they cannot, or at least will not, address the merits of the case. It’s a useful method of sidestepping issues the court does not yet want to address, or avoiding nuisance suits. Imagine if Orly Taits was at every Federal courthouse, seeking injunctions to prevent the Farm Bureau from handing out pamphlets or the IRS from collecting income taxes, because “they work for that Kenyan guy.” If you have no right to put the question, it doesn’t matter what the question was – it’s not going to get answered. Hence the District Court’s ruling is effective for California, the state which was sued and responded, and no one has asked a court with jurisdiction to extend that ruling to the other49 states; those who did ask were seeking to have it reversed, and it was determined they did not have standing to ask. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 10:56pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/55 "2011-06-15T22:56:52Z")
Yeah, that’s a terrible analogy. Walker isn’t a dues paying member of the homo club. I can’t see any reason for Walker to recuse himself from this lawsuit. He only benefits in the sense that any member of the public benefits. Suppose he was asked to rule on the Health Care Reform Act. Who is not impacted by that legislation? Every judge would have to recuse himself. ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [June 15, 2011, 11:43pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/56 "2011-06-15T23:43:52Z")
The ruling is [readily available](http://www.goodasyou.org/good_as_you/2010/08/eek-the-prop8-decision-is-here.html) to the public. Is there something about the ruling that suggests Walker was impartial? Gay or straight anyone could have written a similar decision. It was just up-help again by another Judge, Judge Ware, who is male and married to a woman, I’m going to go ahead and assume he’s heterosexual. The Prop 8 defenders knew Walker was gay going into the trial. They raised no objection at the time and made no request he recuse himself. It wasn’t until after he found against the Prop 8 defenders that they raised issue with his ruling. A heterosexual Judge just reviewed the decision and the facts and saw no reason for Walker to have needed to recuse himself. If you can look at the Decision, the facts surrounding, and Judge Ware’s subsequent Decision to uphold the decision and still come to the conclusion Walker was unsuitable to hear the case, I think you are beyond the realm of reason and our legal system and simply grabbing at anything to maintain your own bias. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 15, 2011, 11:44pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/57 "2011-06-15T23:44:44Z")
But Prop 8 doesn’t affect most of the state. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [June 16, 2011, 12:22am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/58 "2011-06-16T00:22:56Z")
> [@CitizenPained](#): > > But Prop 8 doesn’t affect most of the state. 😕 How so? ETA: Never mind. I just got that you’re talking about the population aspect, not the geographical aspect. And it does, actually. Every California citizen is affected by Prop H8, since straight citizens had just as much right to marry their own sex before Prop H8 as gay citizens did. After all, plenty of gay men and lesbians married each other before California got the right to same-sex marriage. Why not the other way? Ever see _I Now Pronounce You Chuck & Larry_? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 16, 2011, 12:59am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/59 "2011-06-16T00:59:05Z")
> [@CitizenPained](#): > > But Prop 8 doesn’t affect most of the state. By that reasoning, Jim Crow laws didn’t affect most of the country, and the Holocaust didn’t affect most of the world. Prop 8 affects the whole state. It takes away a right from everyone in the state. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 16, 2011, 1:26am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/60 "2011-06-16T01:26:49Z")
> [@CitizenPained](#): > > But Prop 8 doesn’t affect most of the state. The penal code doesn’t affect most people in a state, either. However, let’s pretend Walker is a fan of illegal street racing, but doesn’t participate because it’s illegal. Does that mean he must recuse himself from street racing cases? [Previous page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=2) [Next page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=4)