A re-done article to make the point. RIGHTS are not something we get to vote on.

Here is the original article, and below is my modification of it. Only the most minor of changes were made, replacing sex with race, and yet the argument still stands as if it had been written that way. Why is it that people just can't understand that RIGHTS are not something we get to vote on. Its' why they are called RIGHTS!!!

_______________________________________________________

latimes.com

A biased ruling on Interracial marriage in California

U.S. District Chief Judge Vaughn R. Walker should have recused himself, but he had a legal and political statement he wanted to make.

By Tim Wildmon (Modified by Damon Ballard)

August 13, 2010

The people of California spoke clearly at the polls in 2008 when they passed an amendment to the state Constitution that defined marriage as a union between people of the same race. The public debate was held, the media wars were fought, both sides spent millions of dollars and the people voted for Proposition 8 by a margin of 52% to 48%.

The people's will carried the day, as it is supposed to — until U.S. District Chief Judge Vaughn R. Walker came along.

Last week, Walker nullified the votes of 7,001,084 people. In his decision to invalidate the constitutional amendment, he wrote: "That the majority of California voters supported Proposition 8 is irrelevant."

This judge believes that defining a person by race is the same as defining a person by hair or eye color. And given the fact that he is widely reported to be black, it is obvious he believed this before the case was even brought to his courtroom. Walker should have recused himself, but he had a legal and political statement he wanted to make.

This case will end up in the U.S. Supreme Court sometime soon, and there will be a 4-4 split in opinion, leaving the decision once again to one man in a black robe — Justice Anthony M. Kennedy.

The Constitution envisioned a system in which the judiciary would serve to check the excesses of the legislative or executive branches. But today, federal judges have far exceeded their intended role, becoming little gods in our republic. They have lifetime appointments, and their only accountability is the potential for impeachment.

But in the history of our country, only 15 judges have been impeached by the House of Representatives. Of those, four were acquitted, seven were convicted, three resigned and one is still pending. In other words, Congress almost never removes federal judges. For all practical purposes, the checks and balances of the federal government no longer exist. The judiciary trumps. Our country is basically now run by judges.

Thomas Jefferson warned about this possibility in a Sept. 28, 1820, letter to William Jarvis: "You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so … and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots."

The Founding Fathers understood the selfish and sinful nature of man and therefore divided the government up so that no one branch would be all powerful over the other branches or over the American people. What we have today is judicial tyranny and exactly what Jefferson feared. Unless Congress asserts its constitutional power of impeachment, judges will continue to impose their personal opinions on whatever controversy is before them, regardless of what the Constitution does or does not say.

In his ruling, Walker wrote: "The evidence shows conclusively that moral and religious views form the only basis for a belief that inter-racial couples are different from same race couples."

This is clearly a judge imposing his personal opinions. What Walker is saying is that you cannot hold a valid view about marriage if you base it on religion or morality. Those are illegitimate considerations in his worldview.

Contrast Walker's dismissal of our country's rich Judeo-Christian heritage with George Washington's affirmation in his famous farewell address: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports."

If moral and religious values are no longer valid, what does the judge put in their place? I would suggest, as Jefferson wrote in the Declaration of Independence, that we continue to rely on, and revere, "the Laws of Nature and Nature's God."

Tim Wildmon is president of American Family Assn., a national organization promoting traditional values.

Copyright © 2010, Los Angeles Times

My look at what I see as the finer points of the Ruling against Prop 8

Proposition 8 Declared Unconstitutional by a Federal Judge, this will be my personal review of the ruling with citations from the ruling itself taken from here: Full ruling PDF file. Note that my page numbers represent the actual numbered pages, you need to add 2 to each page# of the page w/in the pdf file.

At the very beginning the judge makes the stance of the ruling on prop 8 clear. "Having considered the trial evidence and the arguments of counsel, the court pursuant to FRCP 52(a) finds that Proposition 8 is unconstitutional and that its enforcement must be enjoined." (Ruling p.3)

He seems rather clear here, but lets read on.

Regarding the pro-8 side, they seem to think that its okay to deny gays equal rights, saying as described by the judge,

"Proponents asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. See generally Doc #172-1. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate parallel institution under its domestic partnership statutes. (Ruling p.11)

Seems a rather strained bit of logic there.

The Judge identified 3 specific questions that needed to be addressed by the evidence in the case,

"WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX;

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS;

and WHETHER THE EVIDENCE SHOWS PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST." (Ruling p.11)

So we shall see, though the rulings determinations is fairly clear on the answers to these questions, exactly what the justification was for that determination.

In the judges examination of the first question, he addressed the testimony on that question.

"the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable. The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex." (Ruling p.15)

Regarding the second question.

"As explained in the credibility determinations, section I below, and the findings of fact, section II below, the testimony shows that California has no interest in differentiating between same-sex and opposite-sex unions." (Ruling p.20)

Regarding the third question,

"The testimony of several witnesses disclosed that a
primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California." (Ruling p.20)

I guess the proponents of prop 8 just don't get the idea that they don't get the right to enforce their religiously sourced version of morality on the rest of us. And when dealing with his conclusions on the third question, he points this out.

"An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives." (Ruling p.24)

Now get this.

"Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court." (Ruling p.35)

They 'elected' to no call witnesses. I wonder why? Could it be that they realized that those witnesses were not going to help their case any? I just don't buy the claim that they were concerned about their personal safety. Especially given that as the judge pointed out that the claim was they didn't want to be recorded, and yet even after there was going to be no public recording, they failed to call those witnesses.

Oh, but it gets better. The plaintiffs still had depositions from some of those witnesses that were not called and the judge points out something rather interesting.

"Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims." (Ruling p.36)

Now we get to some of the real meat. Section III, Conclusions of Law, beginning on page 109.

Here are some points that really destroy the claims made by many of the proponents of prop 8 and the anti-gay marriage crowd in general.

"Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse." (Ruling p.111)

and

"The evidence did not show any historical purpose for
excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry." (Ruling p.113)

But we really get into it when the just makes this point.

"That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943)." (Ruling p.116-117)

And I just love this. It's as if the proponents of Prop 8 weren't even trying, or were even trying to throw the case.

"...proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Doc #159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment." (Ruling p. 117)

The judge states it over and over, for both the Equal Protection and Due Process challenges of prop 8, that despite the fact that the legal doctrine of strict scrutiny is called for (One of the highest standards) prop 8 simply fails even the lower standard of rational basis review.

He also points out repeatedly that just because something is 'traditional' it in no way means that it is rational or give weight to the ability of the government to curtail or restrict the rights of a group based on that tradition.

Now, I am totally not believing that they actually used this argument, yet it seems they did.

"Proponents next argue that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. Proponents argue that Proposition 8: (1) preserves “the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children”; and (2) accommodates “the First Amendment rights of individuals and institutions that oppose same sex
marriage on religious or moral grounds.”" (Ruling p.129)

And just digging themselves a bigger hole

"To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification." (Ruling p.130)

Are they kidding?

But seriously, the most important part is that the Conclusion and Remedies section of the ruling takes up a whopping 3 paragraphs. I will copy it all here.

"CONCLUSION
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." (Ruling p.135)

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 and defendant-intervenors pursuant to FRCP 58." (Ruling p.136)

I leave this to you to read for yourself, but again, this is a clear and well thought out ruling. It's going to be very hard to argue against, even at the supreme court level where the Religious Right has people like Scalia to lean on.

Proposition 8 Declared Unconstitutional by a Federal Judge

So, I'm going to do a little read through on the judges Decision and then post it here.

A long drawn out Train Wreck

This week is a job searching bust. Must be that its the first of the month. Here's hoping next week will be better.