The fallout is still coming down and I am appalled at the amount of ignorance associated with the diatribes.
Courts are said to issue “opinions” but what it is critical to understand is that those opinions must be backed by facts. Regardless of what Rush Limbaugh and other Right Wing assholes say, Judges cannot make declarations simply based upon their personal opinion. They must document the “facts” and points of law they have determined that justify that opinion.
Now here comes the good part. Appellate courts are generally bound by any findings of fact. Appellate courts rule on law and not fact. So essentially, assuming no fraud, they are bound by the lower court’s findings of fact and their judgments must align with those facts. Atlantic magazine extracted the findings of fact that Judge Walker articulated in the Prop 8 case.
1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.
Ignore the Religious Right when they claim that marriage is a Christian institution. It’s most certainly not. It is a state institution that religions sanction but the religious aspects are purely voluntary. Marriage was originally instituted to figure out which son inherited the father’s land and title since it was almost guaranteed that males would father children by many women.
2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.
The “but gay couples can’t reproduce” argument killer. I’ve pointed out many times that couples that medically can’t have children, are too old to have children or don’t care to have children can still legally marry.
3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.
This is an important point. Allowing gay marriage would be just one more evolution in an institution that has evolved in the past.
4. California has eliminated marital obligations based on gender.
Legally, there is no difference between married males and married females so, as far as marriage law is concerned, the two sexes are interchangeable. This sounds weird but, from a purely legal standpoint, it makes sense.
5. Same-sex love and intimacy "are well-documented in human history."
Regardless of what some might wish, it’s always been there and probably always will be there. Therefore the time has come to recognize that simple fact.
6. Sexual orientation is a fundamental characteristic of a human being.
It’s just like being blue eyed or left handed.
7. Prop 8 proponents' "assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."
The idea that “sexual orientation cannot be defined” is total right wing horseshit.
8. There is no evidence that sexual orientation is chosen, nor that it can be changed.
BINGO! This is the big one folks. It’s not a choice so Christians are wrong again and, if your God claims it’s a choice, he’s not a God is he?
9. California has no interest in reducing the number of gays and lesbians in its population.
Ok, I would venture to say that given the movie industry and fashion industry are big in California this is probably a no brainer.
10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."
This is a big one. This squashes all the arguments related to how gays can’t form the same kind of marital bond that heterosexuals can.
11. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."
The corollary to this is that everyone should have the right to marry or it’s not equal protection under the law.
12. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
Separate is not equal and different is not equal. The state of New Jersey should take note.
13. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."
The argument that somehow allowing gays to marry will negatively affect heterosexual marriage is total, complete and utter horseshit.
Therefore, given these facts, any restriction on the rights of gays to marry has no justification outside a simple dislike of gays for who they are. This is precisely equivalent to a restriction saying left handed can't get married, a restriction that blue-eyed people can't get married or that black people can't get married.
Therefore it is an arbitrary restriction that violates the equal protection clause of the 14th Amendment to the Constitution. Allow me to quote the 14th Amendment to the Constitution of the United States of America.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."