Prop 8 Decision Probably Will Stand Because Justice Kennedy Will Support Gay Marriage

August 7, 2010
Judge Walker

The issue has been framed in the perspective as marriage being a right as opposed to the view that marriage should be an honest and transparent social contract concerning intent. It was Gay Activists that were pushing Don’t Ask Don’t Tell, and it looks like Marriage is about to become as dishonest as the military law. Ironically it will probably be the gay community that will realize that equivalence in social contracts will take away their rights as different and distinct before the rest of the population does.

Judge Walker:

The Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review…….excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest,” Walker wrote in his 136-page decision. He suggested that opponents of same-sex marriage had few arguments to bolster their position beyond the claim that marriage is traditionally between men and women, and there are few historical precedents for allowing homosexual unions.

Laws that involve possible discrimination on some basis other than race or sex are subject to a different standard: the rational-basis test, which means that such a law is presumed to be constitutional as long as it is “reasonably related” to a “legitimate government interest.” Here at last we recognize a version of the language used by Judge Walker in the Prop 8 case; when he said the prohibition on same sex marriage is “not rationally related to a legitimate state interest,” he is using the rational-basis test.

…but is it not in a state’s interest for contracts to be transparent?

When the Supreme Court takes up Perry v. Schwarzenegger–perhaps under the name Brown v. Perry or Whitman v. Perry–the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.
This accepts the conventional assumption that the court’s “liberal” and “conservative” wings will split predictably, 4-4. Yet while Kennedy cannot be pigeonholed in terms of “ideology,” on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003).

There is nothing in the logic of either Romer or Lawrence that bodes well for the widely predicted reversal of Perry. Now, the former decision dealt with a state constitutional amendment invalidating and forbidding the enactment of local gay-rights ordinances; the latter decision overturned anti-sodomy laws that banned gay sex between consenting adults. A constitutional right to same-sex marriage is a more radical proposition, and perhaps Kennedy will either refrain from going that far or find some way to uphold Walker’s ruling without trying to settle the issue for the whole country. But I’m not sure that’s the way to bet, and such a decision will change the politics of this issue in ways difficult for people on both sides of the debate to predict.

…a justice who was gay should never of judged this case.

the will of the voters were just overturned… and honesty just became irrelevant to any contract between California’s constituents because the intent of a marriage contract has become opaque.

[NOTE: Some interesting and related questions are discussed here, here, and here.] 

A man and a woman are the constituent parts of a marriage and do not lend themselves to further dissection.

via David Limbaugh of

,..but Judge Walker sees Marriage as utilitarian and functional.   
The attributes being convenience for a family.  In other words the honesty of those who enter into the contract means less then the convenience of the contract itself?