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Prop. 8 foes, backers look to Supreme Court showdown on gay marriage [Updated]

A day after Proposition 8 was thrown out in court, both sides in California's debate over gay marriage are focusing on the next fight in a battle that is likely to end up before the U.S. Supreme Court.

Opponents of gay marriage immediately vowed to appeal a federal judge's ruling saying same-sex unions were legal in California. [Updated at 10:30 a.m.: Gay-marriage opponents formally filed the appeal Thursday morning.]

The next step will come Friday, when U.S. District Chief Judge Vaughn R. Walker holds a new hearing. The judge stayed his order allowing gay marriage at least until then. And it remains unclear if --and when -- gay marriages will begin again in the state.

Lawyers on both sides expect the ruling to be appealed and ultimately to reach the Supreme Court during the next few years.

Walker's decision was being carefully analyzed by attorneys with an eye on how the high court might view his legal reasoning.

At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges' rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.

John Eastman, a conservative scholar who supported Proposition 8, said Walker's analysis and detailed references to trial evidence were likely to persuade Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.

"I think Justice Kennedy is going to side with Judge Walker," said the former dean of Chapman University Law School.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker's findings that homosexuality was a biological status instead of a voluntary choice, that children didn't suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality were "going to make it more difficult for appellate courts to overturn this court's ruling."

Edward E. Dolejsi, executive director of the California Catholic Conference, said he believed the judge's ruling was both legally and morally wrong.

"All public law and public policy is developed from some moral perspective, the morality that society judges is important," he said. To say that society shouldn't base its laws on moral views is "hard to even comprehend," he said.

Gay-marriage opponents plan to appeal the ruling to the U.S. 9th Circuit Court of Appeals. That court's decision will probably be appealed to the Supreme Court.

In his decision, Walker said the evidence showed that "domestic partnerships exist solely to differentiate same-sex unions from marriage" and that marriage is "culturally superior."

California "has no interest in differentiating between same-sex and opposite-sex unions," Walker said in his 136-page ruling.

The ruling was the first in the country to strike down a marriage ban on federal constitutional grounds. Previous cases have cited state constitutions.

In striking down Proposition 8, Walker said the ban violated the federal constitutional guarantees of equal protection and due process.

Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.

-- Maura Dolan, Carol J. Williams and Rong-Gong Lin II

Photo: Jovanie Arvaezi, left, and Mark Vaccarino at the West Hollywood rally on Aug. 4, 2010, celebrating the Proposition 8 ruling. “We hope to get married soon,” Vaccarino said. Credit: Mariah Tauger / Los Angeles Times

Prop. 8 ruling: Full Coverage

Comments () | Archives (175)

How in the world can a homosexual 'marriage' be a 'marriage' when anytime that union wants to have a genetic link to a child, 100% of every homosexual union have to have a third person's DNA involve to the conception process. That would be considered, adultery. But, since morally plays no part in their daily lives anyway, I guess it shouldn't matter. Sometimes, raising a child in the best of situation when a child is genetically linked to both parents, can be a challenge. I can imagine a chaotic future in America filled with angry partial genetically linked adults envying those who are biologically linked to both parents. Our system of govenment may be putting everyone in harms way via unintended consequences changing the natural order of things. Never in the history of mankind(until recently)has it ever been recorded that any community or society recognize two men or two women as a married couple. We can see clearly the damage to our society that 'divorce on a whim' has created. One of the damage resulted homosexual 'marriage'. The damage homosexual 'marriage' willl create may be beyond what human beings can comprehension.

I heard one person say that this is not going to hurt the heterosexuals that the gays can marry. No, it's not going to hurt the heterosexuals. You are actually hurting yourselves. You'll see.

Disgusting! Obama's so called 'christian' principles get a flip-flop. In 2008, he unequivocally and without pause or hesitation stated to a reporter in an interview that he had NO problem with prop 8. He stated he believes marriage is between one man & one woman.

I guess since he needs all the help (votes) he can get now that popularity is in freefall because now he all of a sudden.... agrees that the courts should have overturned prop 8. hmmm............ why do I feel he's a reincarnated John Kerry for flipflopping?!

Are all Progressives 'hypocrites' or can they just sell themselves out on principles; or do they really have any principles?

Like I said, I'm tired of my votes not being counted. I'm not voting anymore for anything in California. Next election I vote in will be in 2012 for President. I hope that Californian's votes that were overturned feel the same way.

zach, maybe the reason you don't equally meritorious complaints, is that you haven't had a right taken away from you yet. Gay people had a right for awhile, until it was taken way by Prop 8. Estalished law says marriage is a fundamental right, not subject to an election.
Imagine having a right for a short time, then having it taken away, just because folks are uncomfortable with you having it. Would it bother you? HMMMMMM?

Gail, as soon as you cite the bible, you're done. you are proposing a religious argument, not a civil one. Move on to Focus on the family's board please. I"m sure that bigot Dobson will give you the "here here" validation you want.

why even vote in this state,no matter what happens someone going to take it to court. All I have to say is I am moving out of this state ASAP. I dont care who is married to whom . I do care about an election system that doesnt work anymore. You get rid of gray davis because of a rate hike at the DMV, you got an idot now that has caused more problems then he ever did. When was the last time you heard of arnold doing anything? California is a slap in americas face. It is becoming a joke. The only thing that should matter is JOBS right now not waisting money on the right to wed. how many jobs will that provide.

Hate to disappoint many of you but the Majority does not rule this Country , the CONSTITUTION DOES! Maybe many of you should take a remedial Government class!

We live in a Constitutional Republic not a Democracy, If you prefer to live in a Democracy then I suggest you move to Valenzuela or Iran!

If you're pro prop 8 wouldn't you NOT want this to go to the Supreme Court. If they uphold the decision and deem gay marriage unconstitutional you now have gay marriage in all 50 states. This to me seems like a fast track to national gay marriage, which I think is a good thing.

One primary purpose of the courts is to protect people from the tyranny of the majority. Sometimes the "majority" is wrong--based on the constitution--and the courts can declare laws enacted by the majority to be invalid. There is a long history for this, including various laws that discriminated against people on the basis of race or religion. Discriminating against people who are gay or lesbian is clearly a violation of the constitution, and that is what the judge found. People who feel otherwise need to have their moral compasses re-calibrated.

Ok, to clarify:

1) Rights cannot be taken away with an election. Prop 8 was misconceived from the beginning, there was only time to fight it in unfair grounds.
2) People against gay marriage call two reasons: Religion -we cannot make laws based on religious principles, otherwise what is keeping us from becoming Iran? Also stop shoving your beliefs down my throat. The other reason is tradition: marital tradition has changed like this: a woman is no longer subject to her husband, a couple can marry and not to have kids, people of different races can get married.

So to make a long story short, opponents can't quote scientific studies that prove anything against gay relationships, opponents can't finish a sentence without bringing God's name into the subject (I still have to hear what he has to say about it, and don't bring up the Book, please!).

One question for religious opponents: what kind of god do you have that allows you to use "God" and "hate" in the same sentence? Really? your god hates anything? Sad indeed.

It's hilarious to see people complain about the possibility of Judge Walker's alleged homosexuality causing bias in his decision. I wonder if they would be worried about a straight, married judge ruling in favor of the discrimination Prop 8 placed into our State's Constitution?

His arguments were sound fact, and the religions and morals of the majority cannot be used to bludgeon the rights of any minorities. Judge Walker, gay or straight, is a Constitutional hero!

It's funny how you fanatics only scream "ACTIVIST JUDGES" when they overturn a "conservative majority vote."

1. Judge Walker is a CONSERVATIVE JUSTICE, appointed by one of your favorite fanatic fathers.... Papa Bush.

2. When majority Oregon Voters enacted the "Death With Dignity" Law (allowing terminally-ill patients the right to assisted suicide), "ACTIVIST JUDGES" overturned that "majority vote." I didn't HEAR A PEEP outta any of you.


It's funny how you fanatics only scream "ACTIVIST JUDGES" when they overturn a "conservative majority vote."

1. Judge Walker is a CONSERVATIVE JUSTICE, appointed by one of your favorite fanatic fathers.... Papa Bush.

2. When majority Oregon Voters enacted the "Death With Dignity" Law (allowing terminally-ill patients the right to assisted suicide), "ACTIVIST JUDGES" overturned that "majority vote." I didn't HEAR A PEEP outta any of you.


"All public law and public policy is developed from some moral perspective, the morality that society judges is important," he said. To say that society shouldn't base its laws on moral views is "hard to even comprehend," he said.

Exactly, its is a moral issue as well as a civil rights issue. Its it immoral to discriminate against certain groups of people based on biological differences. Cultural conservatives are always so upside-down in their logic, and usually outrageously hypocritical too.

"Irrational fear," a--frickin'-men.

The people cannot vote to deny basic human rights to an entire segment of the population. Freedom from persecution is never up for a vote.

The south voted for the Jim Crow laws and kept those laws in place for a long time. Was it wrong of the Supreme Court to strike these laws down even though a majority of people in the south had voted in favor of them? Sometimes the masses are blinded by their own bigotry and ignorance and the court has to step in and take the matter into their own hands. If you are a minority and you think it's wrong that courts struck down a law you voted for, then you would have to be ok if the south re-enacted the jim crow laws and took your rights away. Fair is fair....

We've basterdized everything else sacred about life - I'm surpised it took so long for the courts to ruin marraige.

Jesus thinks Prop 8 is silly and misses the point of his teachings. He is merely using the hand of God to strike down the unfair ruling...It is God's will, so let it be done...

Here's the thing on incest and beastality and polygamy. This case does not grant them a better standing, because even if you apply rational basis test, any law prohibiting them will be allowed to stand b/c they will be rationally related to a govt interest...here's why:
1) Laws prohibiting incest- a state can bar such b/c it is in the gov't interest to protect its citizens from birth defects that incestuously created children can cause, and the stat has an interest in preventing a father marrying his daughter who has been forced into the marriage (in incest, it is common for duress to be an issue)
2) Laws prohbiting polygamy - state has a gov't interest in laws prohibiting b/c it has been empirically proven that polygamyst marriages are largely wrought with abuse and forced upon the wives (notice how there are never multi-men w/ one woman marriages?)
3)Laws prohbiiting beastiality - an animal is chattel(property) therefore it is not vested with the rights of a person under the constitution, and it cannot give consent required to enter into a marital contract. Gov't therefore has a rational basis to prevent marital contracts made w/in its borders to be appropriately assented to.

In the case of gay marriage, as the evidence in the trial demonstrated, gay marriage has a positive affect on gay households, it does not harm straight marriages (there is no proof and there are presently gay marriages in existence in multiple states), and no one entering into the these unions have been forced, therefore there is no rational basis argument. The court has routinely ruled that moral judgment alone is not enough, it has to be w/ something else...polygamy, bestiality and incest are founded on moral principles, but are advanced and bolstered by the other concerns.

To those of you complaining that the majority vote should prevail here, an excerpt from the ruling: "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." And a more general point: our nation wasn't founded on the idea that the majority rules - it was founded on the idea that the majority needs to be restrained from persecuting minorities.

"marriage is entirely different and should only be reserved for those that can procreate."

So you think women who are post menopausal or infertile shouldn't be allowed to get married?

What's really funny is the amount of absolute stupidity on this board (though definitely not surprising). You all realize the judge who decided this issue was a Ronald Reagen apointee, right? Though, I guess ignorance and prejudice do go hand in hand....

"Marriage is about procreation"
ABSOLUTELY WRONG. Boies and Olsen specifically shot down that argument. If so, why do we allow post menopausal women to marry? Why do we allow the infertile, whether by biology or by chosen operation, to marry?? We allow people to marry who are fertile but have no intention of ever having kids. This argument is completely bankrupt.

Why should procreation be some lofty goal we hold up on a pedestal anyway? Every last social and environmental problem we face today is either caused by or at least exacerbated by over population. The biosphere is not capable of supporting the 6 billion we have now. The majority of gay couples will have no option but to adopt if they want children, it has be proven that no harm is done to the children of gay parents (in fact they grow up healthier,) it hard to make a argument that banning gay marriage would positively affect the millions of waiting-to-be-adopted children. It would deny them millions of potential families, and straight couples can be just as bad parents as gays, the sexual preference of the parents is almost entirely irrelevant.

To those quoting Leviticus, if you are female, I hope you are not menstrating up wind as acoording to Leviticus you are to be punished by being stoned to death. Also, I hope you are making your ritual animal sacrifices, because if you're not, then you're not following Leviticus either. Also, remember that you have the right to kill your child if he/she speaks against you.

It's amazing how people will pick and choose passages of the bible to back up their preposterous claims without actually reading the bible. You can't pick and choose. Either you embrace all of Leviticus or you can;t use it as justification for your archaic views.

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