Quick Thoughts

The Ninth Circuit stayed the Prop 8 ruling which is reasonable enough. It will delay the next step for a few months. Meanwhile, saw the first half of S2 of FNL: pretty depressing and somewhat stiff stuff. The quick turnaround of coaches was pretty blithely done too.

Cut The ****

Sen. Reid has joined the concern trolls in respect to the downtown Islamic Center. Are you f-ing kidding me? As with those soooo concerned with lines now that same sex couples want to marry, I'm sick of this ****. Get your damn priorities right.

No Fault Law Signed NY

And Also: Apparently, it's time to make it official over at the NY Daily News with various articles like "2006 to 2010: How the New York Mets have flushed four years down the drain." Oh, btw, K-Rod will be out for the rest of the year, probably because of his assault. Charming.

As Judge Walker noted, the institution of marriage has undergone various changes over the years that altered its basic nature in many respects. One way that most take for granted now, though some think it immoral, is to ease the ability to end marriage. The inability of achieving divorce should be of special significance to this country given its mother country, England, underwent a major change when the Church refused to annul the marriage of King Henry VIII.

Yesterday, New York joined the rest of the country when the governor signed into law a no fault divorce law. By unilateral proclamation of one party that for six months the "marriage is irretrievably broken," divorce will be final if property and other ancillary matters have been dealt with. The wait and the need to address these issues, including child arraignments, underlines the special nature of "marriage." Some mere contractual arraignment need not have such a waiting period. But, the Supreme Court, Maynard v. Hill, has long held marriage is not merely a "contract" like any other:

Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation.

No fault divorce become common in the latter part of the 20th Century and altered significantly the institution of marriage, easing its creation and dissolution. The New York law also recognizes that another institution that has been more recognized in recent years [it did exist in the past, as noted by the defense witness cited by Judge Walker, in some societies], same sex marriage exists:

It is the intent of this legislation to grant full recognition and respect to valid marriages of same-sex couples to obtain relief under New York State laws and in New York's courts. While the Domestic Relations Law uses the terms "husband and wife" in some places and "plaintiff and defendant" in others, in using the terms "husband and wife", it is not the intent of this legislation to preclude access to relief under the Domestic Relations Law by same-sex couples with valid marriages performed outside the state.

If California, however, only protects a "domestic partnership," this rule would not apply. The failure of full faith and credit is but one matter that makes that regime unequal. Of course, New York has its own problems -- why recognize out of state marriages, if the marriages are not in all intents and purposes as valuable and equal as those that are not protected when New York itself provides the marriage license? Sometimes, comity justifies that, respecting marriages in nearby Connecticut for instance, but still ... why not do it all the way?

Focusing just on this law, the old way required a one year separation and consent of each party for "no fault" to work. But, many are not able to live independently like that or do not, and sometimes one party will not consent. This results in some sham marriages, or at least, marriages that are not really marriages in most respects, but legally deemed as such as a sort of legal fiction. Marriage rights usually is a way the government aids in the promotion of happiness, here it was often an artificial way to hinder that process. And, it could often hurt the party with less power, the other able to handle things just fine.

And, I can understand opposition from conservative groups, but NOW? One article said that they are "worried that it could make it easier for wealthy men to hide assets during a divorce proceeding," but how? Putting aside the benefit to women in relationships where the man refuses to divorce and separation might not be possible (e.g., a battered woman without the means to live alone), the new law still requires property and other matters be settled. If the woman thinks assets are being hidden, she can challenge the settlement.

To summarize:

Up to now, the only grounds permitted for divorce in New York have adultery, abandonment, cruel and unusual treatment, imprisonment of one of the spouses and separation for one year. Judges have frequently been forced to reject petitions for divorce.

"By removing the requirement to prove fault, divorcing couples and the courts will no longer have to waste resources litigating on whether a marriage should end, but will be able to better focus on issues such as the welfare of the children, fair division of marital assets and other economic concerns," said Stephen P. Younger of Patterson Belknap Webb & Tyler and president of the state bar. "The court system will ultimately realize substantial cost savings."

Also, related laws were also included:

Mr. Paterson also signed another bill favored by no-fault divorce advocates, A7569/4532, which requires payment of counsel and experts' fees to the "non-monied" party in a divorce action. Bill sponsors said the measure would level the playing field and allow the spouses—generally the wife—who has made little or no money during a marriage to protect their interests during a divorce.

Finally, Mr. Paterson also indicated that he had signed A10984/S8390, which will establish a schedule for temporary maintenance payments to non-monied spouses as their divorce proceedings move toward finality. The measure directs the state Law Revision Commission to study the effects of divorce and the new temporary maintenance schedule and report to the Legislature and governor on possible changes.

I will read up more on this, probably, but at first blush, this looks to be a good thing. New York lagged behind other jurisdictions and this led to some troubling results.

TV Quickies

The disrespect of the 4A aside, tonight's Army Wives was a good murder mystery plot; Drop Dead Diva was more average. Lost in Austen is today's DVD pick; a bit too long, but a good fantasy about truly being lost in a fictional world. More Elizabeth Bennet please!

"This is America"

[Update: Glenn Greenwald et. al. are now saying Obama is somehow walking back from his comments, noting how much of a "very limited nature" they are. Digby is linked with a usual "what a weak willed loser" type of analysis.

But, I'm with TPM. What did they read the first time? Obama didn't "support" the choice directly; he said they had the right, pursuant to local ordinances (and local officials, nearly unanimously, did authorize their actions), to do what they are doing. This to me was a good thing to do, especially mixed in with some nice words about Muslims as a whole. The overall message being sent is supportive -- you don't usually emphasize rights like this when let's say the KKK wants to march or something.

As to avoiding the question if this is "the right thing to do," getting involved in specific placement questions like that really is likely to be troubling. His opinion on every odd thing might be raised and isn't that more a local zoning issue? Again, the two questions are likely to be felt to be tied together anyways, but not explictly so. Best of both worlds in a way. {Last few sentences added.}

I call, like TPM, false controversy. Also, the reference to "lower Manhattan" is helpful since all this talk of "Ground Zero" implies it is actually being built there, not blocks away in place of a coat factory building. Sacred ground, is it?]

When judging various controversial matters in recent days, we have to remember who we are. There has been some controversy over the building of an Islamic Center in lower Manhattan. Confusion aside, no, it is not being built on the ashes of the Twin Towers. It is planned for a few blocks away, replacing a Burlington Coat Factory store. The local planning board, with one exception, okayed the deal. The mayor (my mayor) supported the move eloquently:

“The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

Furthermore:

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies' hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

But, others have been upset. They think it a travesty. President Obama disagreed:

But let me be clear: as a citizen, and as President, I believe that Muslims have the same right to practice their religion as anyone else in this country. That includes the right to build a place of worship and a community center on private property in lower Manhattan, in accordance with local laws and ordinances. This is America, and our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country, and will not be treated differently by their government, is essential to who we are. The writ of our Founders must endure.

The Muslims here are part of our nation, one with core values:

They are part of an unbroken line of Americans that stretches back to our Founding; Americans of all faiths who have served and sacrificed to extend the promise of America to new generations, and to ensure that what is exceptional about America is protected - our commitment to stay true to our core values, and our ability to perfect our union.

I don't think the Omar Khadr trial truly stays true to these values. One lawyer involved in human rights cases in Britain put a certain spin on the issue, saying that he can be tried by a military trial for alleged violations of laws of war (and perhaps should have combatant immunity), even given his age (which can be treated as a mitigating factor), but still the trial is trouble:

My objections are to (i) the trial taking place at all in Guantanamo Bay, out of sight and out of mind and largely “under the radar” of public scrutiny and (ii) the flawed procedure of the Military Commission process. ... It says much more that the Court has ruled confessions admissible – see Omar Khadr’s trial has been tainted by coercion.

This is a trial which should not have proceeded and the international reputation of the United States will only be damaged as it continues.

After all, this is America. Is this supposed to be the face of the military commission process?*

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* One person who has angrily denounced this trial is Glenn Greenwald, who spends much of his time in Brazil. He doesn't do so for the weather. His partner lives there and under U.S. law -- unlike there -- residency allowances are not provided to same sex partners. Again, is this really America?

Closer? Who Needs a Closer?

No closer? No problem! Just have two complete games, one a one-hitter (by the pitcher; the Mets never had a no-hitter). The team had the most shutouts in the league. Consistency -- first two game winning streak since June -- well, not so much. No Perez today!

2nd Cir. Overturns Bill of Attainder Holding

As suggested here, the Congress enacted a "bill of attainder" by targeting ACORN's funding by in effect prosecuting them for crimes that some fakers implied they committed. A district judge agreed, but now is (wrongly) overruled. Form over substance.

Who Knew?

Before I started watching FNL, I saw Legion, which co-stars Adrianne Palicki. Yeah, Tyra. Meanwhile, a check on YouTube and who knew? Chelsea Handler, the off color cable show host, loves the show.

More Mets News

A Mets beat writer assured us on the WFAN today that Perez will not start on Saturday. I'll be convinced when it doesn't happen. The Mets actually had a good day, but still not two in a row (last occurring in June). And, yes that was Ron Darling in Shallow Hal.

One just has to laugh

Saw a reference that Oliver Perez might be starting on Saturday (the usual guy back in the bullpen, apparently to help blow games), which is amusing and all in itself, but now this. Mediocrity ... if only! [Tidbit: Citifield has a "holding cell" where K-Rod was held the night.]

"Rational Basis" Should Be Rational

And Also: The Last Gasp: The Rise and Fall of the American Gas Chamber by Scott Christianson provides a useful comprehensive summary, including its origins in other (civil and military) contexts. Its style is flawed though, a trudge early, a bit too cursory late.

The debate over the Prop 8 ruling is fairly tedious on various grounds. One argument repeatedly made is that marriage is a state issue, so the federal courts should leave it alone. This runs into Loving v. Virginia:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Here gender/sex is the illegitimate classification. Another argument is that there is a "rational basis" for Prop 8. The ruling in fact argued that strict scrutiny applies, but that even rational basis is not met. This review in the eyes of some is easy to meet. For instance, allow same sex marriage and state recognition of polygamy might be threatened. Mind you, as the person arguing Loving for the state of Virginia noted in respect to threat to family harmony admitted, the argument is weak. Citing it doesn't me "I" believe it to be true. It just is credible enough to meet the test.

IOW, the review doesn't really require rationality. Any honest analysis would suggest that polygamy is not threatened when same sex marriage is allowed, particularly when same sex domestic partnership with most of the rights of marriage is already in place. Particularly if the state, by state constitutional compulsion, gives strict scrutiny to same sex classifications in every other respect. Anyway, wouldn't allowing same sex sodomy also rationally be believed to cause this? The usual parade of horribles were made there, such as "polygamy, homosexual, same-sex marriage, consensual incest, prostitution, fornication, adultery, and possibly even personal possession in private of illegal drugs."

This only means "rational basis" is being selectively used, some say. When fundamental rights are at stake and/or "irrational prejudice" is apparent, maybe this is fine, even if the Supreme Court isn't totally honest about it. Same sex relationships is one area where this has been done -- Lawrence v. Texas didn't bend over backwards to find some "rational" basis for what was clearly based on selective personal morality and/or prejudice. Ditto when rational basis was deemed not present because of the mess of exceptions and lousy fit that a health rationale for a law against premarital distribution of contraceptives was something that one "cannot believe." The law was if anything more credible on that basis than California's law against same sex marriage.

In other cases, "every conceivable basis" is enough. But, the basis has to have some shred of rationality:

True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.

Such "realities" is what the fact-finding and conclusions made by Judge Walker includes. We can call this "rational review with teeth" or whatever, but it shouldn't just be about making shit up. Yes, "rational basis" need not be conclusive or narrowly tailored. It can be under or overbroad in various respects. But, it has to have some degree of credibility, "some footing" outside of make believe. Perhaps, it also is a matter of expecting a little more (see the Massachusetts state ruling that also rested on rational basis -- "real and substantial relation" and "logically believe"*) of rationality. And, as with gender discrimination, rational basis is not even enough here.

But, if it was, a fair analysis of the term would suggest it was not met.

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* The ruling cites Justice Stevens, who put forth a good guiding principle:

The term "rational," of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. [n4] Thus, the word "rational" -- for me at least -- includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially.

As noted by Romer, a badly fit policy "imposing a broad and undifferentiated disability on a single named group" is suspect here. The domestic partnership scheme does make this not as blatant, but marriage still provides a collection of rights, broadly denied here to same sex couples, even those who in every relevant way are the same as those who have marriage rights. Necessary neutrality is lacking there.

And, as Stevens notes, history of discrimination and so forth helps us to determine this fact. Doctrinal neatness might allow us to draw some lines, but the truth of the paths of Marshall and Stevens in the cited ruling also is convincing.

Friday Night Lights

One more thing: as usual, various teen characters are played by people years older (insert Clueless quip here on point), which at times is a bit disconcerting. When one has an affair with an older mom, it really doesn't seem that bad, since the guy looks in his 20s anyway.

Every Dog Has Its Day

One of those days -- the great MR slipped, while the Mets managed a 1-0 win versus a 17 game winner. The second 1-0 win in a few days. Meanwhile, El Duque -- who pitched on both teams -- is still trying to get the call. Is he really 44 or older? No Mets, don't take him!

Friday Night Lights: First Season

Saw this on Netflix. Overall, very good, particularly the characters. A few issues: too many miraculous finishes. Some story lines, including an attempted rape, not fully fleshed out. No real truly dark character; "Voodoo" pretty simplistically handled. Looking forward to S2.

Courts Doing Their Job

[Interesting possibility that Prop 8 could have been lost by default. This offers a suggestion that the state once was agnostic, allowing standing, but now that that the governor opposes a stay, is this an out for the Supreme Court? The below is a response to this article.]

An independent judiciary with the power to declare unconstitutional the laws of legislatures is an important aspect of our republican system of government, a recognition of the limited power of the elected branches. As James Madison said when introducing the proposal of a Bill of Rights:

If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

The Fourteenth Amendment in particular was ratified with this principle in mind. The rights it secured -- citizenship, privileges or immunities, equal protection and due process -- were in theory at least in part or in whole already protected by the states. Due process of law was a basis of freedom with origins as far back 1215 if not before. Each state allegedly protected it, but repeatedly, it did so in the breach, especially in respect to certain classes of people. States therefore could be the enemy.

Madison knew that too. Already, the U.S. Constitution restrained states, the federal government and its justices playing a part -- e.g., states could not use paper money for debts, a federal judge declaring that unconstitutional right out of the gate. But, Madison wanted to go further, believing:

there is more danger of those powers being abused by the State Governments than by the Government of the United States

He wanted the Bill of Rights to include protections against the states involving "equal right of conscience, freedom of the press, [and] trial by jury in criminal case." As with certain other things, he failed. But, the Fourteenth Amendment did offer more national restraints, including those upheld by federal judges, time showing the problems with just entrusting fundamental rights in most respects to popular will, even state popular will.

This is what these judges did. Rights aren't just liberal or conservative, libertarian or whatever. They can protect any number of people. The people against the ruling support judicial review in other cases, "activism" yet again too often a matter of whose ox is being gored. Their ox is better, the other not, sometimes no matter what the facts hold: as fisherman noted in response to a debate in the NYT about fish feeling pain: they simply won't accept it. This is not just something opponents of same sex marriage do either.

The facts in Arizona and California are specifically about the laws of that state invading federal law. It will be made a national issue, but the law of that state should be the immediate concern. The Prop 8 case should be about California, the facts more about that state, even if some apply to all. Focusing on that, the ruling need not be as broad as some want or fear.

"Catching, but Not Releasing"

Interesting debate on how much fish feel pain and what to do about it. To make a decision, including one involving balancing options and realities, it is helpful to know the details. A careful analysis, especially with sensitive subjects, sometimes is hard to accomplish.

TV Quickies

Drop Dead Diva / Army Wives both were enjoyably easy viewing last night, the former using a haunted house plot (minus the result) used in L.A. Law (connection: CJ's law professor). Meanwhile, a pretty lame late night movie starred two FNL gals. Exciting, huh?

Full Value for Your Overpriced Movie Ticket

Good article on staying to [until?] the end of credits.

GPS Search Overruled

[Prop 8 stuff separated.]

Orin Kerr, an expert in the field, flags an interesting case that I first saw referenced on the news update portion of the paper he singles out as likely to support it (NYT; I found that a bit catty). Also discussed in this informative Washington Post article, it concerns a libertarian leaning panel striking down GPS monitoring without a warrant. Kerr doesn't buy it, including its "mosaic theory" that a search can be problematic as a whole. (One comment compared it to torture being a result of the sum of the interrogation's parts, which seems appropriate). To wit:

“A single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story,” Ginsburg wrote.

He added, “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

Kerr also thinks Supreme Court precedent that allows attaching beepers to cars [late update: actually, it isn't even that -- it involved putting a beeper in a container of ether which a person then obtained without knowing it; the issue of placing a beeper on the car or item in a person's immediate possession wasn't even at issue ... more evidence that Kerr is simply misguided to think the precedents, involving much simpler technology and notably different facts are so clearly on point] are applicable here. In somewhat vague language, the Supreme Court -- in a portion latched on by the panel -- implied not all beeper-like searches of a certain scope would be allowed. I think GPS technology is quite different from beepers, so comparing the two seems to me a bit "unreasonable," but wouldn't be surprised if the Supreme Court agrees with him. The discussion also addresses the logic of the opinion, which is somewhat an inside baseball matter.

Two conclusions: given the change of technology and a circuit split, see the article, Supreme Court/21st Century (the beeper cases from the early 1980s) review is warranted. If not now, soon enough. Also, given modern information collection, the "mosaic theory" or some offshoot would be a principled way to apply the Fourth Amendment. It's a different question if that is the path that will be taken.

More on Prop 8

[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.