[I cited this earlier, but decided to just post it completely here, with minor edits.]
For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. 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.
There is a very good post regarding the alleged "tyranny" of the ruling, but simply put, it doesn't hold up to any real scrutiny given how most people understand the role of the courts.
The idea of some is somehow the judge was tyrannical because he overruled the will of the people, in particular based on their vote on a state ballot measure to amend the state constitution. State ballot measures can't amend the federal constitution however. See, the Supremacy Clause and Art. V (amendments). Federal judges overturn popularly voted upon laws all the time. One person told me this will be a political land mine since the '10 elections is about federal power. How about the Supreme Court overruling state handgun laws in Illinois or federal laws on campaign finance?
The opening quotation is written in the spirit of a famous Supreme Court ruling regarding pledging allegiance to the flag:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Various elected officials in the state of California agree. The governor rejects the need to stay the ruling pending appeal (a mixed blessing probably, but many more marriages will show the normality of same sex marriage, as was the case in other jurisdictions) , in part: "With the branch of government charged with making constitutional determinations now having made those determinations here, the Court’s ruling should take effect." The attorney general (elected in California) agrees. "As the Attorney General has consistently stated and as was convincingly demonstrated at trial, Proposition 8 violates the Fourteenth Amendment of the United States Constitution." The state legislature earlier wanted to pass a state law supporting same sex marriage, but the governor thought the state constitution prohibited it. All the same, the governor recognized:
our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation” The Court’s decision here is consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives.
Some people don't like this principle. But, it is the one federal and state judges are obligated to follow as a matter of precedent and common understanding of their role. The same applies to the specific ruling made here. Some critics say things like "I think tradition is reason enough to warrant Prop 8," but the Supreme Court has long rejected that rule. A lower federal judge is supposed to ignore that? Some think moral opposition to homosexuals should decide the question. Again, Supreme Court precedent rejects that.
Reading the ruling answers many other complaints. Some think marriage should be merely for different sex couples for reason of children; state practice belies the fact. I was told that "before 2001," no nation recognized same sex marriage. Not true as noted by the ruling; in fact, one of the defendants' own witnesses (in a deposition, most not wanting to testify in public, even after the Supreme Court rejected the right to broadcast the trial to more locations) is cited on the point. But, other cultures aren't the ultimate test, ours is, including as a matter of constitutional tests a federal judge follows. The ruling also underlines the many fundamental changes, particularly in regard to gender roles, marriage underwent over time, both by legislative and judicial means.
This also helps to answer the polygamy concerns, as does repeated cites to Supreme Court precedents involving marriage underlining its monogamous nature. The ruling holds that California is practicing sex discrimination (there is some sexual orientation discrimination too, but it's interconnected in this case), which is rejected in this country, including by Supreme Court precedent. Likewise, it shows -- as required by Supreme Court precedent that looks in part toward societal practice -- how same sex relations grew over time in our history, barriers to marriage largely a result of discrimination and the minority status of homosexuals. California itself protects same sex unions (including regarding adoption) in most respects. Application of all of this to polygamy is much harder, particularly to the degree polygamy in practice can in fact be show to lead to inequality and contrary to Supreme Court citations of a "bilateral loyalty."*
As to breadth of ruling, though the opinion is ultimately a broad attack on the basic idea of not allowing same sex couples to marry, the specific situation in California is referenced repeatedly, including the protections given to homosexuals not present in other states and the animus showed by the Prop 8 campaign. The very conclusion cites "California," not "fifty states" or even the area within the Ninth Circuit. So, it is imho possible for the appeals court to rule narrowly, applying it simply to the state of California. I think personally this is the best thing to do. This is usually how things go -- many major rights now enjoyed are a result of a stream of rulings, not doing everything at once, even if they could do so. The opinion might not be totally consistent, but then even in Romer v. Evans, complaints were made, including no mention of Bowers v. Hardwick.
As to the equality of domestic partnerships, the defendants themselves admitted it is not equal to marriage. One fundamental difference is that it might not be recognized in other states while "marriage" -- even marriages the state itself don't authorize -- might be. Another is societal recognition, including in regards to meaning and benefits (e.g., workplace benefits). It is 'separate but equal' at best, which in the race context was shown to be inherently unequal. Here too. So, those who say that domestic partnerships are really equivalent in all but name fail too.
Overall, applying the evidence provided, California practice, Supreme Court precedent and other means -- not mere theory of possible rationales or the like -- the ruling convincingly overturns Prop 8, its role in doing so supported by many of the top elected officials/bodies in the state. It therefore is not a violation of our republican system of government, one not a simple democracy.
As to allegations of "activism," it is notable that major homosexual rights groups opposed the lawsuit. The effort was led by Ted Olson, not liberal homosexual groups. The case brought in front of him, the federal judge was required to decide upon the merits. As to his sexuality, since Prop 8 favors heterosexuals, wouldn't they too be biased? Would we focus on the sex or race of a judge in some other case? Would Justice Thomas be allowed to decide Loving v. Virginia, his wife white? In a case about fornication, which have came about, would an unmarried judge in a relationship not be able to preside?
One blog entry spoke in support of same sex marriage but simply said that he was not convinced by the ruling. That's not very helpful, but it suggests the ultimate shallowness of the reasons in opposition. As I noted before, looking at the facts -- including the opinion itself -- makes it much harder to avoid the ultimate conclusion of the ruling:
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.
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* As to incest, lack of Supreme Court or societal precedent in this respect as well as non-recognition by the state of California also differentiates. No general recognition except for marriage for incestuous unions. Furthermore, the ruling cites cohesive family units as a state purpose of marriage, which is violated by such unions. Also, consent is an inherent part as well, which is also a problem here in various situations.
It is harder to defend various types of "incest" requirements under precedent -- many states allow cousins to marry (and DOMA doesn't deny them federal benefits) and rules against adopted or step-siblings are not really the norm to my knowledge. I know of a case here or there that protects something like adopted or step-siblings' right to marriage. I don't think many care much about that sort of thing.
Parent/child would raise various flags referenced. Biological siblings somewhat less so [eugenic concerns are not at issue in this case but since many with genetic conditions are allowed to marry, they might be dubious] though a case can be made. But, there is a basic "are you serious" component here too -- is this really a problem or is it just some sort of game played about some obscure "gotcha" which can be raised for anything?
When some federal judge protects brother/sister incest, get back to me.