Category Archives: Law: Con Law: Marriage

Ta-Nehisi Coates of The Atlantic, with the best reaction I’ve seen tonight to President Obama’s announcement the he now supports equal-opportunity marriage:

Obama Evolves:

I know what the polls show, and I know he was pushed into it, but I still credit the president with doing the right thing. So much of this process reminds me of Lincoln weighing emancipation, even as he knew, in his heart, that slavery was a sin.

Moreover, regardless of the push, I think this is really heartening timing after North Carolina, where a ban on gay marriage and civil unions triumphed by some 20 points.

So what if there is an element of calculation here. It’s still the right thing to do; it is nice even just once in a while to get that from the White House.

I never read comic books as a child (or adult), but I still think this signals victory in the culture wars:

The January issue of Life with Archie will feature the marriage of hometown hero Kevin Keller, to his partner, an African-American, physical therapist, Clay Walker.

via ACLU Blog, Wedding Bells in Riverdale.

(And who knew that Batwoman “is a Jewish lesbian”? Did they do that in the movies too?)

Held:

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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Appeal to follow. Supreme Court likely before the dust settles. Pre-decisional reports questioned if Prop 8 would be enjoined, or if the ruling might be stayed pending appeal. That doesn't seem to have worked:

REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants anddefendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.

Even if the decision doesn't stay itself, the Court of Appeals has the power to stay its effects pending appeal if only the supporters of Prop 8 can find an irreparable harm from its absence. It's a little hard for me to see how they would do that.

(Alternate, equally slashdotted, direct download of decision here or from the official court website. If anyone has a better-working link, please post it in the comments.)

Update: The NYT says,

Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, who heard the case without a jury, immediately stayed his decision pending appeals by proponents of Proposition 8 …

Prof. Jack Balkin of Yale thinks Judge Truro's opinion's striking down DOMA will not survive appeal:

Judge Tauro is way ahead of the national consensus on the the equal protection issue. Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

…

There is much to admire in Judge Touro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.

Jack is not a natural pessimist, so I'm inclined to take his views on this very seriously.

Major pair of decisions in Massachusetts by Judge Joseph L. Tauro (appointed by Nixon, no less): Section 3 of the Defense of Marriage Act is unconstitutional because it denies gay couples equal protection of the laws without a rational basis.

Full text of the decisions: Gill, Commonwealth.

See Adam B's post at Daily Kos for the cliff notes.