# 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:** 9
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [June 19, 2011, 5:39am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/161 "2011-06-19T05:39:40Z")
> [@Captain\_Amazing](#): > > Ok. There was an explicit law giving first time homebuyers the right to take an $8k tax credit on their income tax. That expired in 2010. Is the expiration unconstitutional because the people explicitly had that right and now they don’t. No, because it was specifically written to expire. This was them telling people it was okay, and then yanking it out from under them. Also you apparently do not know what a right is. Merely allowing someone to do something is not granting a right to do it. It could still be a privilege. For it to be a right, it has to be based on what is morally right. I doubt you will find many people that say it is immoral to not get an $8k tax credit. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 19, 2011, 5:57am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/162 "2011-06-19T05:57:36Z")
> [@BigT](#): > > No, because it was specifically written to expire. This was them telling people it was okay, and then yanking it out from under them. Ok, the loopholes that were closed in the Tax Reform Act of 1986. Is that better? > [@](#): > > Also you apparently do not know what a right is. Merely allowing someone to do something is not granting a right to do it. It could still be a privilege. For it to be a right, it has to be based on what is morally right. I know what a “right” is. Here’s one definition, from Findlaw’s legal dictionary: > [@](#): > > 2 : something to which one has a just claim: as > a : a power, privilege, or condition of existence to which one has a natural claim of enjoyment or possession [the of liberty] [that all men…are endowed by their Creator with certain unalienable s “Declaration of Independence”] see also natural right > b : a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law [one’s constitutional s] Here’s “privilege” > [@](#): > > 1 : a right, license, or exemption from duty or liability granted as a special benefit, advantage, or favor: as > a : an exemption from liability where an action is deemed to be justifiable (as in the case of self-defense) or because of the requirements of a position or office > ;also > : the affirmative defense that an action is privileged compare _excuse_ > [@](#): > > I doubt you will find many people that say it is immoral to not get an $8k tax credit. I also doubt that. But rights are a creature of law, not of morality. ---
**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 19, 2011, 5:57am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/163 "2011-06-19T05:57:45Z")
> [@Captain\_Amazing](#): > > I think even Thomas Jefferson wouldn’t say that all rights are inalienable and endowed by a creator. This is going off the topic, but the natural rights theorists of the 17th-18th century distinguished between “natural rights”; those rights that people have by nature of their humanity, and “statutory rights”; those rights that people have because a law grants them those rights. So, saying “the state had given people particular rights”, isn’t an idea foreign to Jefferson. Whether marriage is one of those inalienable rights or not is another question. Marriage, in the sense of being an institution recognized by the state and society as itself giving legal rights to the people participating in it seems too much a government creature to be separated from it. > > The question here isn’t so much the question of marriage as a fundamental right, but that, given that the state recognizes marriages, whether or not it’s legally permissible to deny such recognition to a gay couple seeking it, or whether that would be impermissible discrimination. Assuming the question isn’t resolved on standing, it will be resolved on an equal protection basis. I think that in _Loving_, SCOTUS recognized marriage as being a natural right - or rather, something required for man’s ‘pursuit of happiness’. There is no god-given right to marriage, I suppose, but there’s a supposed god-given right to a ‘pursuit of happiness’, and it’s only logical to consider cohabitation part of that pursuit? surely we’ve come a long way in our line of thinking. marriage and sex isn’t just for reproduction. finally, denying marriage to one group clearly denies the rights afforded to marriage. that, imo, is the strongest argument. if there weren’t so many legal benefits to marriage, i think the marriage equality case would be weaker. so i agree, re: EP. ---
**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 19, 2011, 5:59am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/164 "2011-06-19T05:59:24Z")
> [@BigT](#): > > For it to be a right, it has to be based on what is \*\*morally \*\*right. I respectfully disagree. 😛 edit: while i think all rights deriving from ‘life, liberty, and the pursuit of happiness’ are generally moral rights, the use of the word ‘moral’ is so subjective that i can’t agree with the statement. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [June 19, 2011, 7:36am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/165 "2011-06-19T07:36:27Z")
> [@CitizenPained](#): > > I respectfully disagree. 😛 > > edit: while i think all rights deriving from ‘life, liberty, and the pursuit of happiness’ are generally moral rights, the use of the word ‘moral’ is so subjective that i can’t agree with the statement. My meaning is that it is impossible for something to be considered a right if no one is arguing that its absence would be be wrong. And I am really having a hard time coming up with an exception. It’s not an inclusive definition, but an exclusive one. Finding things that are argued as wrong that you would not consider a right does not counter my premise. Only finding something you consider a right that no one considers would be wrong if removed. People don’t talk about a right to avoid taxes or to pay less on them. The argument I was replying to is attempting reductio ad absurdum, but is failing by using a technical definition of right that few people actually use. There is a fundamental difference between the so-called “right” to not pay something on your taxes and the right to marriage. The ability to marry is not something the government grants, but something it upholds. Just like everything else most people consider rights. The court uses different words, like “protected class” and “rational basis”, but they recognize this, too. The original decision that required Prop 8 wasn’t based on the text of the California Constitution alone, but on this very idea of what the public actually deemed to be right. ---
**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 19, 2011, 8:31am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/166 "2011-06-19T08:31:17Z")
> [@BigT](#): > > My meaning is that it is impossible for something to be considered a right if no one is arguing that its absence would be be wrong. And I am really having a hard time coming up with an exception. I showed a version of [this](http://www.slide.com/r/IKnwOJV6yz8SjogEzsFTcg-Kcgyp7Cz4?previous_view=lt_embedded_url)\* to my students a couple of years ago. After, they had to talk with their table groups and come up with questions. One (pretty liberal) girl wrote, “How is abortion a right?” I put it up on the board and we spent the next day and a half discussing it. This comes from the same class where (most) felt flag-burning wasn’t a right (they thought it was violent), and that Miranda Rights were sometimes an over-extension of the 4th and 5th Amendments. But most were Obama fans or identified as ‘Democrat’ and many had marched for immigrants rights at one time or another. And almost all thought that SSM was a right. EVERYONE voted that ‘healthcare’, when available, was a universal right. \*I made it. You don’t have to view the whole thing. Short version: a picture history of the evolution of ‘rights’ in the U.S. It was done for a ESL Civics class. Sorry, it goes on a loop in this version, so you can mute the flobots if you like. 😛 Edit: FUCK! i just deleted the song and i can’t fix it. ☹ well, whatever. i’m rather miffed atm. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 19, 2011, 8:41am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/167 "2011-06-19T08:41:50Z")
> [@BigT](#): > > People don’t talk about a right to avoid taxes or to pay less on them. The argument I was replying to is attempting reductio ad absurdum, but is failing by using a technical definition of right that few people actually use. First of all, it’s not a “technical definition of right that few people actually use”. You know the people who actually use my definition? Lawyers, when they’re talking about the law, which they’re doing. If you’re making a legal argument, you use the legal definition. Besides, the argument you’re replying to doesn’t base itself on a question of “rights” at all. I was responding to this possible rationale by the court, as expressed by **Strassia** > [@](#): > > They could rule that since the status quo in California before Prop 8 was that SSM was legal, there was no rational basis to specifically outlaw it. But they could at the same time say that if the marriage laws in existence in a state had always only granted OSM, then the would not be compelled to rewrite the laws. That doesn’t limit itself to what you’d call “rights” and I’d call, I dunno, “human rights” or something. In fact, that argument concedes that marriage isn’t a general human right because it allows for the banning of gay marriages in those states that never had them. In short, I’m not sure you’re understanding exactly my argument or what I’m attempting to argue against, and I don’t think in this context, the rights language is helpful. ---
**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 19, 2011, 9:11am UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/168 "2011-06-19T09:11:49Z")
Perhaps this is a discussion about positive v. negative rights or wording? Consider the framing: \*\*Negative:\*\*_Gays should be allowed to marry each other._ v. \*\*Positive:\*\*_The government should grant gays the right to marry each other._ One implies that, unless otherwise stated, gays should be able to marry each other. The second implies that the government need to take action to grant a right (or liberty). Using this kind of thinking, _the right to marry_ is a given, where as _same sex marriage_ is an added right. What **Strassia** (I think) was talking about is the idea that the government should not take away a right **once it has been granted**. This has always been rather unpopular - see McCarthyism or the Patriot Act. Marriage has always been _regulated_, but I don’t think has ever been ‘granted’. I mean, marriage and cohabitation agreements are as old as humanity. Cohabitation is really the ‘marriage’ of our natural rights: life, liberty, and the pursuit of happiness. ---
**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 19, 2011, 5:43pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/169 "2011-06-19T17:43:48Z")
Both of those are framed as positives. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 8, 2011, 7:07pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/170 "2011-08-08T19:07:48Z")
(wrong thread) ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [August 8, 2011, 10:47pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/171 "2011-08-08T22:47:26Z")
> [@CitizenPained](#): > > Consider the framing: > > \*\*Negative:\*\*_Gays should be allowed to marry each other._ > > v. > > \*\*Positive:\*\*_The government should grant gays the right to marry each other._ From what I remember of catholic theology from long-ago parochial school: **Marriage** is a sacrament done by the celebrants themselves – they marry each other. The priest & congregation are present only as witnesses. Of course, that doesn’t apply to same-sex marriages. At least under the current church hierarchy. (It used to, a few hundred years ago.) ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [August 8, 2011, 11:03pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/172 "2011-08-08T23:03:02Z")
> [@t-bonham@scc.net](#): > > From what I remember of catholic theology from long-ago parochial school: **Marriage** is a sacrament done by the celebrants themselves – they marry each other. The priest & congregation are present only as witnesses. > > Of course, that doesn’t apply to same-sex marriages. At least under the current church hierarchy. (It used to, a few hundred years ago.) You realize you just bumped a 2 month old thread to add that? I kinda came in looking for an update, not some opinion unrelated to the topic. You disappoint me. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 8, 2011, 11:18pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/173 "2011-08-08T23:18:47Z")
> [@boytyperanma](#): > > You realize you just bumped a 2 month old thread to add that? I kinda came in looking for an update, not some opinion unrelated to the topic. > > You disappoint me. To jump to **t-bonham** ’s defense, he didn’t bump the thread. **Bricker** did, when he had this thread open to get information for a new thread he was working on, and which he accidentally started as a post in this thread instead of opening his new one. The mods. apparently deleted his “oops, wrong thread” post. ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [August 8, 2011, 11:21pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/174 "2011-08-08T23:21:24Z")
> [@Polycarp](#): > > To jump to **t-bonham** ’s defense, he didn’t bump the thread. **Bricker** did, when he had this thread open to get information for a new thread he was working on, and which he accidentally started as a post in this thread instead of opening his new one. The mods. apparently deleted his “oops, wrong thread” post. I see. Sorry **t-bonham**. I’ll direct my scowl in **Bricker’s** direction. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 7, 2012, 7:07pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/175 "2012-02-07T19:07:09Z")
Update: The 9th Circuit Court [ruled today](http://www.msnbc.msn.com/id/46294255/ns/us_news-life/t/federal-court-rule-calif-ban-gay-marriage/#.TzFzHMixWN8) that Prop 8, the voter-approved law banning gay marriage in California, is unconstitutional. Not only that, the judges ruled that the former Judge Vaughn Walker, who revealed that he was gay after his decision that the law was unconstitutional, was not found to be biased. > [@](#): > > The panel also said there was no evidence that former Chief U.S. Judge Vaughn Walker was biased and should have disclosed before he issued his lower-court decision that he was gay and in a long-term relationship with another man. Walker publicly revealed he was gay after he retired. Not only that, according to the Prop 8 Trial Tracker website, the 9th Circuit even said the plaintiffs [had standing](http://www.prop8trialtracker.com/2012/02/07/breaking-proposition-8-ruled-unconstitutional-by-9th-circuit-panel/) to challenge the law. > [@](#): > > In addition, the appeals panel ruled that the proponents of Prop 8 did have standing to pursue their appeal of Judge Walker’s decision striking down the marriage ban, and upheld District Court Judge Ware’s decision denying a stay to throw out Walker’s ruling because he is gay. If you’ll recall, there was some debate on whether or not the proponents could actually challenge the law itself, and a possible backdoor (heh heh) way to void Prop 8 was simply not to rule on the constitutionality of the law itself, but whether or not the law could even be challenged by the plaintiffs. By ruling that they did have standing, the 9th Circuit didn’t mince words and allow gay marriage on a loophole, but rather ruled on gay marriage itself, that it was constitutional, setting up a Supreme Court challenge that will likely determine the outcome of gay marriage for the entire country! :eek::eek::eek: (well, I’m no lawyer so maybe someone else can answer this for me: would the Supreme Court simply rule if it was constitutional for the state to have Prop 8 or would their decision affect the gay marriage legality in the whole country?) So, Prop 8 and gay marriage in an election year. I kind of wish it wasn’t, because this is a rallying issue for the right wing extremists, but ultimately it had to be decided sooner or later. Once the Supremes accept the case, and I’m not sure why they wouldn’t, I hope they decide in favor of civil rights and freedom. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 7, 2012, 7:20pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/176 "2012-02-07T19:20:57Z")
Looks like the decision was tailored to only affect [California](http://www.prop8trialtracker.com/2012/02/07/breaking-proposition-8-ruled-unconstitutional-by-9th-circuit-panel/). From Update 5 and 7 on the bottom of the page: Update 5: > [@](#): > > ``` > The court crafted a narrow decision that applies only to California, even though the court has jurisdiction in nine western states. California is the only one of those states where the ability for gays to marry was granted then rescinded. > > “Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question,” the court said. “We need not and do not answer the broader question in this case. > > ``` Update 7: > [@](#): > > To those asking whether this ruling applied to just California or the entire 9th Circuit, the answer is California. The court narrowly tailored the ruling to the state of California in remarking that Prop 8 is unconstitutional. While there is still a possibility that the Supreme Court (if it takes the case) may strike down laws/constitutional amendments limiting marriage to opposite-sex couples, that did not happen here. ---
**Author:** ![Asimovian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asimovian/32/172_2.png) [@Asimovian](https://boards.straightdope.com/u/Asimovian)\ **Post date:** [February 7, 2012, 7:28pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/177 "2012-02-07T19:28:03Z")
> [@YogSosoth](#): > > (well, I’m no lawyer so maybe someone else can answer this for me: would the Supreme Court simply rule if it was constitutional for the state to have Prop 8 or would their decision affect the gay marriage legality in the whole country?) I’m no lawyer either, but my understanding is that the basis under which Prop 8 would be found to be unconstitutional would make it really hard for CA (or any other state) to write a law that somehow circumvented the constitutionality issue. So even though their ruling might be directed at Prop 8, indirectly, it would likely impact the entire country. My understanding may be shit, but that’s what it is at the moment. ---
**Author:** ![Find\_Friends](https://avatars.discourse-cdn.com/v4/letter/f/c37758/32.png) [@Find\_Friends](https://boards.straightdope.com/u/Find_Friends)\ **Post date:** [February 7, 2012, 7:36pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/178 "2012-02-07T19:36:11Z")
Check this out. It was 54 minutes old when I spotted it: > **[Prop. 8 overturned in California, court says state can’t ban gay marriage](https://news.yahoo.com/blogs/lookout/court-overturns-prop-8-california-says-state-t-181451250.html)** > > The 9th Circuit Court in California struck down as unconstitutional the state's voter-passed ban on gay marriage Tuesday, ruling 2-1 that it violates the rights of gay Californians. \[View a slideshow of demonstrations around Prop. 8 here\]... Yes, I know that elsewhere there have been ohter state-wide rulings that a SSMs must be marriages equal in law to heterosexual ones for civil rights of all to be respected. Heck I live in Upstate New York! The explanatory text here is interesting. Interpretations of civil rights can only be “ratched up” and never down, it seems. The unique situation in California is that gays seeking SSMs had already known them origimally, and then came [Proposition 8](http://en.wikipedia.org/wiki/Proposition_8). In the statement by Judge Reinhardt, the court said, _ **uh-uh** _. No way can something considered a civil right that has been already enacted (by legislation?) be yanked away from a minority group. This particular ruling would then have no effect on other state processes. (I’m pretty sure.) Your thoughts? - TFO * * * ETA: Prop 8 had an earlier version, in [Prop. 22](http://en.wikipedia.org/wiki/California_Proposition_22_(2000)), as I have just read. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [February 7, 2012, 7:37pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/179 "2012-02-07T19:37:52Z")
What isn’t quite clear to me is - who gets to decide when and where same sex marriages can be performed in California again? ---
**Author:** ![Omg\_a\_Black\_Conservative](https://avatars.discourse-cdn.com/v4/letter/o/7ba0ec/32.png) [@Omg\_a\_Black\_Conservative](https://boards.straightdope.com/u/Omg_a_Black_Conservative)\ **Post date:** [February 7, 2012, 7:38pm UTC](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/180 "2012-02-07T19:38:15Z")
_points to other thread_ (Hey, I’ve always wanted to backseat moderate.) [Previous page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=8) [Next page](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500.md?page=10)