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  • Meese: Judicial Fiat No Way to Settle Marriage Debate

    On Aug. 4, U.S. District Judge Vaughn Walker threw out Proposition 8, California’s voter-approved ban on same-sex marriage. But don’t drop those invitations in the mail just yet. A three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco has put that ruling on ice – at least until December, when the court will consider a request by Prop 8 proponents to dismiss Walker’s ruling.

    The court would do well, in the meantime, to read an op-ed by Edwin Meese III in The Washington Post. The former U.S. attorney general explains why even those who support same-sex marriage should be profoundly troubled by the legal ramifications of what he calls Judge Walker’s “arbitrary and capricious” ruling:

    By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision.

    Walker’s ruling, in Meese’s view, is simply “too extreme to stand.” He goes on:

    [S]tructurally sound opinions always confront binding legal precedent. Walker’s is a clear exception because the U.S. Supreme Court has spoken on whether a state’s refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits … The Supreme Court’s action establishes a binding precedent in favor of Proposition 8. But Judge Walker’s ruling doesn’t mention Baker, much less attempt to distinguish it or accept its findings.

    As for the lopsidedness of Judge Walker’s ruling:

    Walker’s opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the ‘legal union between one man and one woman as husband and wife.’

    Meese concludes:

    People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

    Posted in Legal [slideshow_deploy]

    7 Responses to Meese: Judicial Fiat No Way to Settle Marriage Debate

    1. Lloyd Scallan (New Orleans area) says:

      Judge Walker is a gay activist! Does that mean anything to anyone when considering the rule of law and conflict of interest. I really don’t care who marries who or has sex with who. But to allow a judge to rule on a subject where he has an intermit interest, is a conflict of interest and should not be allowed to stand.

    2. Bobbie says:

      Agree. A bias judge is a direct contradiction to the principles of this country. His immediate removal from the bench is necessary, as he abused his position.

    3. Lynn Bryant DeSpain says:

      If Meese were intelligent enough he would have refered to Noah Webster’s first publication of the English Language published in 1783, and found that the definition of Marraige is between a man and a woman. That is what one uses when finding out the meaning behind the words in our Constitution, the closest printed reference. Not a personal understanding.
      Meese makes a mockery of the Law, and therefore, there is no Law. When those who are empowered by our Constitution, are bound by our Constitution to limited powers, and when the empowered go beyond those limits, they forfiet their positions and powers.
      This is why,”We the People” have always retained the right to replace any government that no longer represents the Will of its citizens through the “Declaration of Independence.”
      Our one last resort, and pray to God that the people will not have to resort to using that right.

    4. layla calcutt, sc says:

      when they deny someone the right to marry its a violation of civil rights in my poinion. regardless of your sexual prefrence you should have the right to marry. if they want to investigate marriages investigate the number of people marrying illegal immigrants just to get them a greencard. let the LEGAL american citizens marry with no nevermind as to whom theyare marrying. as long as you arent living with them then why should you worry about it?

    5. Paul West Memphis, A says:

      Marriage was instituted by God. No one has a right to defame something that belongs to God, not man. Homosexuality is sin. It is unnatural. It is not discriminating against someone who is of a different race. It is condemning sin and not condoning sin in the public square and especially not defiling an institute that was created by God. Read Romans 1: 26-32. I guess the next thing the liberals will say is it is discriminating against murderers to put them in prison.

    6. Anthony, Syracuse says:

      @Lloyd Scallan, then let me make the ruling. I am a heterosexual white male with no religious affiliation, and hence it should be easy for me to make an unbiased judgment.

      My ruling: The denial of rights to any group of citizens without due process is inherently unconstitutional. As such, Proposition 8 is unconstitutional.


      @Lynn Bryant DeSpain, let's first get this straight: Not even the concept of "marriage" is mentioned in the Constitution. As such, a contemporary definition does not matter because it was not mentioned.

      What was included, though, are the concepts of "equal protection" and "due process" [14th Amendment]. And also "life, liberty, and property" [5th Amendment], of which a consensual agreement between two adults would fall into at least 'liberty'.

      However, let's put that aside. Webster's Dictionary has a quite-extensive religious bias, especially in terms relating to Christianity. And using a religiously-rooted, albeit contemporary, definition to get the political meaning of people who advocated the separation of church and state is inherently flawed.


      Now, onto some facts brought up in the case. FYI, "proponents" refers to the proponents of Prop 8.

      [33. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.]

      [34. Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.]

      [37. Marriage creates economic support obligations between consenting adults and for their dependents.]

      [39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses.]

      [43. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.]

      {44. b. Tr 858:24-859:5 (Meyer: Sexual orientation is perceived as “a core thing about who you are.” People say: “This is who I am. * * * [I]t is a central identity that is important.”); }

      {46. c. Tr 2252:1-10 (Herek: “It is certainly the case that there have been many people who, most likely because of societal stigma, wanted very much to change their sexual orientation and were not able to do so.”); }

      [47. a. PX0707 at RFA No 21: Proponents admit that same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities;]

      [48. g. PX2545 (Young Nov 13 2009 Dep Tr 122:17-123:1: Young agrees with the American Psychoanalytic Association’s statement that “gay men and lesbians possess the same potential and desire for sustained loving and lasting relationships as heterosexuals.”); PX2544 at 12:40-14:15 (video of same);]

      [49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.]

      [51. a PX0707 at RFA No 9: Proponents admit that for many gay and lesbian individuals, marriage to an individual of the opposite sex is not a meaningful alternative;]

      With still more than 50 pages left in the case summary, I feel it safe to say that the ruling was made quite constitutionally and that Meese's claims of " voluminous evidence" is not supported by the evidence actually presented.

    7. Billie says:

      Nobody is denying anyone marriage. The denial is on the infiltration of an act that isn't and shouldn't be defined by marriage. Marriage is an act with specifics of the balance of two different genders, this act is in direct conflict with NO BALANCE!

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