I have seen the future.

Let's get the 9th out of the way (they'll affirm) so we can have this SCOTUS fight. It needs fighting, and I kinda think the judge worded a lot of his ruling to maximally annoy enough judges personally so that they HAVE to take it under consideration.

I especially love how he made Scalia eat his words.

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I can't wait to get home and read the ruling.

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And how did he do the thing with Scalia?

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scifantasy.livejournal.com

(I posted this elsewhere, so I'm copying...)

When Lawrence v. Texas came down in 2003, Justice Scalia wrote an angry dissent. His argument included this:

"If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct...what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."

His point being, if the states can't ban sodomy for moral reasons, what's next, gay marriage? (gasp, clutch pearls, fainting couch optional)

Of course, Scalia was a massive windbag, and his homophobia oozed from every drop of ink in that dissent.

Anyway.

Judge Walker quoted this exact wording to demonstrate how promoting children could not be a legitimate state interest leading to banning gay marriage--because as even Scalia said, the sterile and elderly can marry.

Edited Date: 2010-08-04 09:25 pm (UTC)

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Awe. Some.

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tisiphone.livejournal.com

That is amazing.

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What else do you expect? There's no significant reason to support it so they have to rely on flimsy bullshit.

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tisiphone.livejournal.com

Yep.

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That is magnificently bitchy jurisprudence.

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In a footnote to the ruling:

Lawrence v Texas
, 539 US 558, 604-05 (2003) (Scalia, J,dissenting) ("If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”);

I remember that line: He was saying that this was the natural next step after sodomy laws were struck down as unconstitutional, as if it were a bad thing.

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Pretty much. Walker basically used Scalia's own words in the dissent of Lawrence v Texas to argue that, GIVEN Lawrence's outcome, Scalia argues that there can be no possible reason to deny rights to homosexuals.

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matgb

I'm just seeing if I'm reading it right. Isn't the ruling on the interpretation of the US constitution?

So hasn't he just dragged the whole of the USA into a good place to be?

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Nope. He's a California judge, his rulings are advisory but not binding on non-California districts where he lacks jurisdiction.

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matgb

Ah. But if his ruling gets taken to SCOTUS and found to be correct, we've won, right?

"fundamental right to marry" is protected by 14th amendment. I'm trying to read up on it because not a lawyer, let alone a us constitutional lwyer, but...

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scifantasy.livejournal.com

Pretty much, yeah.

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Roughly, yes. If the USSC holds that he's right and that there is no reason to prohibit same-sex marriage, the *USSC*'s ruling holds for all the US, because that's their jurisdiction.

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Also: I'm not fond of "we", being a straight white married male. I am entirely for equal rights for everyone, but I'm not comfortable using "we win" to describe the correction of the errors wrt minorities I'm not a part of.

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matgb

Ah, but we can be "those of us on the side of equality", as we do all win.

And also, might not apply to you, but does to me, I'm planning on marrying a woman, but I remain bi.

I think "we" is better anyway, it's inclusionary, it's not "them" winning, it's "everyone" winning.

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Fair enough. I just mistrust "we" on general principles. I've stepped on my dick (so to speak) enough times to worry about it.

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If it wasn't "so to speak", I'd definitely be impressed.

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opaqueplanet.livejournal.com

*points at self* Bi Canadian woman engaged to a man, so this affects me not at all, but as Dr King said, "Injustice anywhere is a threat to justice everywhere," so fuck ALLA Y'ALL, I fuckin' WON. :D

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anivair.livejournal.com

I suppose it depends on whether "we" is gay people or whether "we" is simply people. I do feel like this is a good step for people as a race, for Americans as a whole and for gay people specifically. Just like advances in black rights really is a win for everyone. But you're right, gay people really do score a much more direct win.

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anivair.livejournal.com

... and now I see that was already clarified. And you're right, if said in the wrong way it does feel a lot like when the water boy celebrates with the team that won the superbowl. He's there, yes, but it was the players who took all the hits.

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