Tuesday, August 24, 2010

more details on my Prop 8 questions

Shannon Minter, the actual lawyer they got to answer people's Prop 8 trial questions, responded in more detail to the stuff I asked, about the previous case law around gay marriage that all went unmentioned in Judge Walker's decision. His response to my question directly:
It is true there are a bunch of older state cases upholding marriage bans-as well as a handful of more recent ones (sadly, the New York Court of Appeals, the Maryland Court of Appeals, and the Washington Supreme Court). But Judge Walker is not bound by any state court decisions. There are very few federal cases considering the validity of marriage bans-and virtually none decided by the federal courts of appeal. In a nutshell, Judge Walker had to decide the questions presented to him without relying on an binding precedent that is directly on point, because there isn't any. He did the right thing by presenting his reasoning about the legal issues presented. It would not have served any purpose for him to spell out why he disagreed with the reasoning in other cases that were not binding on him in the first place.
So, there it is. Here's his response to someone else on a similar topic:

I think Baker v Nelson is a real red herring being waved around by the other side in a desperate attempt to recover some lost media ground after Judge Walker's amazing decision! In 1971, the MN Supreme Court upheld MN's marriage ban. The gay couple who brought the case asked SCOTUS to review the decision. At that time, the Supreme Court HAD to take any case that presented a federal constitutional question. In 1972, the Supreme Court denied the case on the ground that it did not present a substantial federal question. But a heck of a lot has changed since then! in 1972, the supreme court had not yet held that laws that discriminate against women were subject to a heightened level of review. The court had not struck down Colorado's anti-gay ballot initiative in Romer, or held that individuals have a protected right to be in a same-sex relationship in Lawrence. So much has changed that any precedential value that Baker v. Nelson has, is exceedingly small. And in any case, the question presented by the Prop 8 case is a new one not considered in Baker: can the people of a state first permit a group to enjoy a fundamental right, and then take that right away based on a bare desire to send the message that the group is inferior?

All righty, then.

(UPDATE: More stuff relevant to my questions, in this response to an anti-equality op-ed by Edwin Meese.)

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