“Moral disapproval is an improper basis for denying rights to gay men and lesbians and that the evidence shows consclusively Prop 8 enacts without reason a private moral view that same sex couples are inferior.”

Vaughn Walker, Chief Judge,

 U.S. District Court

Northern District of CA

As with a stroke of a pen….the opposition to gay marriage in California was kaput. 

Judge Walkerwas appointed to the Court by Ronald Reagan.  His confirmation was difficult because he was seen as being too conservative.  This case has had some very strange twists and turns.   The Prop 8 winning attorneys are 2 old enemies who suited up and joined forces:  David Boies and Ted Olson.  Boies was the Gore lawyer and Olson was the Bush lawyer back in 2000.  Politics does make very strange bedfellows indeed! 

According to  SFGate

The Prop 8 case’s winning attorneys — David Boies and Ted Olson — are famous for being at opposite ends of the Bush v. Gore 2000 Supreme Court decision. Boies for Gore, Olson for Bush.

After Wednesday’s ruling, they were asked how they thought they could win at the Supreme Court, should the case get that far. Quipped Boies:

“He’s going to get the five justices who voted for him in Bush v. Gore and I’m going to get the four justices who voted for me,” Boies quipped.

This overturning of Prop 8 does not definitively affirm gay marriage.  What it does is pave the way for a more decisive ruling in a higher court.  Meanwhile conservatives have turned on Ted Olson for his role in bringing this case before the court.  Olson defends himself quite well.  From CNN:

On Wednesday, the two men won, this time together.

They teamed up to argue against Proposition 8, which bans gay marriage in California. The legal team won in a stunning and clear decision.

The plaintiffs, U.S. District Judge Vaughn Walker wrote, “demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights,” ruling it unconstitutional.

Now, the case will work its way up to the 9th Circuit Court of Appeals, and then to the high court. Only Olson and Boies will be on the same side this time.

In this case, Olson has been at the center in so many ways. Disdained by many conservatives for arguing for gay marriage, some openly calling his decision as an act of pure ego or even treason.

Indeed, conservative legal analyst Ed Whelan told me, “It really is a betrayal of everything Ted Olson has purported to stand for in his legal career in terms of constitutional principles.”

But if you listen to Olson, his constitutional principles are exactly what this case — and his decision to take it on — is all about.

“The Constitution trumps everything,” he told me. “The Constitution provides that equal protection of the laws shall be guaranteed to all citizens.”

Never mind that more than 40 states have voted against gay marriage or that a majority of the American public doesn’t support it. That was the case, he says, with a ban on interracial marriage struck down by the U.S. Supreme Court more than 40 years ago.

“Civil rights battles are won by fighting for civil rights. … We’re representing real people, who are being deprived of their constitutional rights, and we tell them to wait? For what? For how long?”

It’s interesting, in a way, because opposition to gay marriage increasingly looks like it cuts along a generational divide.

One recent study showed that 58 percent of Americans ages 18 to 29 support gay marriage, while only 22 percent of those 65 and older feel the same way. So if the issue will gradually resolve itself, some say, why take it to court now?

“Our choice is yes we will go to court to fight for you because your constitutional rights are being ignored. …” Olson told me. “Or we could tell [gay couples] why don’t you wait for years, why don’t you wait for another generation?”

Even some pro-gay marriage groups were skeptical at first, worried that Olson and Boies were setting the cause up for failure. Still other legal scholars say that the two super-lawyers are driven by ego and relish that one last shot at arguing an historic case before the court. Both men cringe at that.

And what about the charge that the two lawyers figure they can game the high court — even a conservative one?

Ah, says Olson. “We’re not taking for granted any votes on the Supreme Court. We have so much respect for the judges that are hearing this case and the justices of the Supreme Court that will hear this case, none of whom have made up their minds.”

Jon Stewart explain all of this to us in his version of CALIFORNIGAYTION:

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Daily Show Full Episodes Political Humor Tea Party
I firmly believe this case will be decided by the Supreme Court and so be it.  I don’t have a dog in this fight but I certainly believe all Americans are entitled to the same rights.  None of the past great social changes have been decided by popular vote.   I don’t believe for one moment that segregation would have ended had it been left up to the southern states to vote it out.  I also don’t believe that access to birth control would have ever been made a guaranteed right in Connecticut as long as the Church had its long arm of the law on the good people of that state. 
The Judicial Branch of the government is an equal partner, regardless of what the Mama Grizzly thinks.

47 Thoughts to “Prop 8 Declared Unconstitutional (and Jon Stewart at the end)”

  1. Emma

    “Prop 8 enacts without reason a private moral view that same sex couples are inferior.”

    I’ve made it clear here that I support gay marriage. However, I don’t like this court’s reasoning. You could also read the above as “Prop 8 enacts without reason a private moral view that plural marriage is inferior” or that “bestial couples are inferior” or that “incestuous couples are inferior.”

    If neither the Feds nor the states can define what “marriage” is, then the sky is the limit, isn’t it? “Equal protection” really doesn’t mean everything is the same for everyone, does it?

    1. @Emma, I think there was a lot more to that reasoning. I was just too lazy at 4 am to look for it.

      The Supremes will lay it out eventually, I am convinced.

  2. marinm

    As I read the Judge’s ruling his rationale could be used to expand gun rights in schools, government buildings, etc as well as to finally destroy the remains of affirmative action.

    To Emma’s question — that’s how I read it. 🙂 🙂 🙂

    Oh, btw if the ruling is upheld it’s time to destroy our progressive tax code as it violates our 14th Amendment rights to equal protection.

    It’s all about seeing the silver lining.

  3. Slowpoke Rodriguez

    Hmmm, let’s make a deal. If your CA gay marriage license is good in VA, then my VA concealed carry permit is good in CA! Equal Protection!

  4. e

    once again, an activist judge subverts the will of the american people

  5. Then I would have to ask if my marriage license is good in California. The only time I have EVER used my marriage license is to prove my legal status for my driver’s license.

  6. Elena

    Yes, those damn liberal activist judges…………………..oh wait, this one is conservative though, is there no place of sanity?

    Once again, WHERE was the outrage when corporations were given the same status as individuals?

    A gay marriage is between two consenting adults and harms no one. Beastiality is NOT consenual and incest, as it pertains to one adult and a child, is also not consenual. I don’t know why people are so hung up on gay sex, who cares what people do in their bedrooms.

  7. RingDangDoo


    >>> oh wait, this one is conservative though, is there no place of sanity?

    He’s also gay, and benefits from his own ruling.

    1. Why do you think he is gay? I don’t think that is necessarily true.

      I expect that he is old enough and makes enough money to not have to worry about the symbolism. If he IS gay, he could go anywhere he wanted if he had a burning desire to marry.

  8. marinm

    Corporations are protected by Article 1, Section 10 and the 14th Amendment. Corporations enjoy many rights of personhood including the 1st, 2nd and 4th amendments to name a few. Please review the history of Dartmouth College v. Woodward for interesting insight. So, the recent ruling regarding 1A corp rights fits in with precident back to the 1800s.

    Let me argue one point above Elena. You mention that incest isn’t legal because between an adult and a child the child can’t consent. Do you think incest is legal if the child is an 18 year old adult? Can the child consent to incest and the state issue a marriage license?

    Further, do you think states can regulate marriage at all? Not trying to play a gotcha game – I want to see your line of thinking here.. Because, in the end the state either has the ability to regulate marriage and issue out licenses or it does not. If it does not does it have the ability to license out any other of the multitude of things that it currently licenses? Could not a 14th amendment challange be brought up for the licensing of doctors, lawyers, food establishments, building permits, etc.? Could I not argue that under equal protection I should have the right to hang out a shingle and proclaim myself a doctor and see patients without government license?

    I like how far the rabbit hole goes. 🙂

  9. Censored bybvbl

    I think I’d faint if the subject of gay marriage was ever brought up without having to listen to “but..but…but what about polygamy, incest, and bestiality?”

  10. Totally agree, Censored. Oh lets talk about those things. Polygamy. It is practiced all the time. It is only prosecuted when someone tries to marry more than one person legally. All those polygamy relationships are church marriages and don’t involve the state but once…usually the first wife.

    Incest- Who even checks up on that? How would anyone know? It isn’t like the old days where everyone knew everyone else’s business.

    Bestiality- oh please. animals don’t marry.

  11. @Moon-howler
    We don’t need polygamy when there are plenty of people who fool around on the side without having to pay to support another partner. I suspect there are very few people who would want another man or woman to provide for.

    Also…animals would probably not benefit from spousal support. Just a hunch.

  12. I think the only people who would want to practice polygamy would be the Fundamentalist LDS. I agree with you. Speaking of FLDS, when does Big Love start back up again?

    I am not sure who really cares about gay marriage. It neither hurts me or helps me. To each his own.

    As for religious objections–those who have them shouldn’t do gay marriage. Otherwise, leave other people alone and mind their own business. Neil Cavuto thinks it will cost more money. Why is it more expensive to have a gay spouse than a straight spouse? I can’t figure that one out.

  13. PWC Taxpayer

    If a Muslim moves to the US and has more than one wife, do we recognize the plural marrige or does he have to chose?

  14. I suspect that the marriage is not an American marriage so it doesn’t really matter. But that is a good question and one that is an outlier.

    I would say that only 1 marriage would be recognized. I think he would only be able to conduct business (like taxes etc) with only 1 of them. That is what FLDS has to do.

  15. Emma

    Elena, incest doesn’t necessarily involve children. The reason incest is considered taboo in our society is because of the severe genetic defects that can occur if two siblings procreate, for example. By this judge’s reasoning, those siblings deserve equal consideration as far as marriage is concerned. Someone needs to define marriage, unless we want a free-for-all.

  16. Tom Andrews

    All moral questions aside, my main concern is with the legalities of what occurred. As I understand it, and I may be incorrect but I don’t think so, this particular case was assigned to one of only three openly gay serving Federal judges in the country. It appears the deck was pretty stacked regardless of his “conservative” reputation. I suppose a recusal may have been in order (although it could be argued that any straight judge would also have to recuse themselves). It only serves to compound the notion that is gaining steam that the federal government does not care in the least what the people of the nation feel, hence one federal judge overturns 7 million opinions. And yes, I understand that historically there have been times when the federal government has been compelled to overturn public sentiment.
    When it reaches the Supreme Court it will not be presented as a marriage issue or a gay issue it will be presented as a civil rights issue. Using the Roe case in the 70’s( in which it was not presented as a question of abortion but rather a women’s rights issue) as a guide, I forsee the SCOTUS using Roe v Wade as an established case template to rule exactly the same way. They will not legalize gay marriage, they will simply decree that no state may make a law prohibiting the free exercise thereof. It’s a cowardly way to come down with a non-ruling ruling that is extremely difficult to reverse due to it’s civil rights packaging. Either way, eventually this issue will have to be hammered out…..

  17. RingDangDoo


    > He’s also gay, and benefits from his own ruling.

    >> Why do you think he is gay? I don’t think that is necessarily true.

    Necessarily? Nice twist. 😉

    Okay, I’ll rephrase. Based on the scores of articles I’ve read about this ruling, the dude is a pickle smoocher.
    Don’t take my word for it (grin), but the stink about it is rising. Google is your friend.

    >> If he IS gay, he could go anywhere he wanted if he had a burning desire to marry.

    “Burning desire”. Ewww. Bad adjective!

    Further, “if he IS gay” and he wanted to ‘marry’ some young stallion LEGALLY, wouldn’t his ruling help him out just a tad? Just asking!

    Also further, I predict this ruling will stand on appeal. It will be appealed to the 9th Circuit (Circus?) and then the SCOTUS, where the ruling will be 5 to 4 in favor. Kennedy will be the deciding vote. He’s ruled pro-poofter in the past so I’ll go with those odds. We can chat about it when the SCOTUS rules on it in the next year or two 😉

    p.s. I await your Jon Leibowitz (aka Jon Stewart) post on this very subject. 😉

  18. Tom Andrews

    The issue does present an intriguing array of equal protection questions and challenges. If Virginia will be forced to accept Massachusetts or California marriage criteria, then will Virginia be able to demand, under the equal protection clause that Massachussetts abide by Virginia gun laws? I can buy beer in gas stations in Virginia, will Pennsylvania be forced to allow the same under my equal protection rights under the constitution? Why should I have my rights curtailed because PA has what i consider to be byzantine, unenlightened, outdated liquor laws? Why should a lawyer accepted into the bar in Georgia not be able to practice in Delaware without meeting Delaware’s criteria? Unchecked Federalism is a gordian knot that I fear will be extremely difficult to unwind once it is presented. Will my Virginia fishing license allow me to fish anywhere in the nation? Why is a Wyoming real estate license no good in Florida? It goes on and on…….I don’t envy the SCOTUS on this one that’s why I think they will cop out in the end. And as stated earlier in the thread 5-4 with Kennedy coming down on the side of the pro same sex marriage lobby. And the Roe like decision will forever become a contentious issue and a political litmus test for candidates even though it is established case law that will never be overturned. Another political red herring that will forever divide the nation.

    1. @Tom Andrews,

      And the alternative to Roe would be … no Roe? I don’t see the issues as even close legally.

      Too bad those who oppose Roe can’t take the attitude that they disapprove of abortion and won’t have one.

  19. Morris Davis

    Slowpoke Rodriguez :Hmmm, let’s make a deal. If your CA gay marriage license is good in VA, then my VA concealed carry permit is good in CA! Equal Protection!

    I’m going to go out on a limb here and venture a guess that in Slowpoke’s case both of his licenses say he’s packing a 9 mil.

  20. Cato the Elder

    Suggested correction: Walker was appointed by Bush 41, not Reagan.

  21. @Moe, ya think?


    I don’t know if the good judge is gay or not and what does it matter? Does that mean that only black judges could hear a race related case? Or might it mean that a black judge couldn’t hear a race related case and that he or she should recuse themselves? Do we think the judge wants to get married and is just bitter?

    It is a civil rights issue. What else is it when one group of people is excluded from doing something that everyone else can do? How does it affect you at all? Marriage is a piece of paper that is a legal contract as far as the state goes.

    I would be happy if states stuck to civil unions and left marriages to the churches.

    Regardless, people make the marriage, not the state.

  22. @Cato the Elder

    My sources indicate Reagan nominated Walker and Bush promoted him.

    Since I don’t know who Cato is, I am not changing anything.

  23. Ring, why does it have to be so personal? Marry some young stallion? That is just demeaning. Whether Judge Walker is staight or gay is irrelevant and has nothing to do with the case. This case was predictable and is just the beginning.

    Let me ask again, why do you care? How does this case hurt or help you? It has nothing to do with me. It is just another civil rights case. And gay spouses don’t cost more than straight spouses.

  24. e

    the bottom line is that this whole topic has nothing to do with gay marriage. it’s another assault by the left on our constitution and the rule of law. gay marriage, amnesty for illegal aliens, universal health care; it doesn’t matter what the people want or how they vote, activist leftist judges will impose their odious ideology on us by fiat

  25. Many people didn’t want segregation or interracial marriage either. Should we have abided by their wishes?

  26. e

    this is a slippery slope. shall we allow activist leftists in black robes decide the future of our society? at what point do we lose our liberty and become vassals of a ruling class?

  27. Activist leftist in black robes? I suppose they are here to protect us from the activist citizens in white sheets.

    The judiciary is the third branch of government and has equal standing with its unrobed counterparts. Only Sarah Palin feels it is the stepchild (see Jon Stewart) or some third party outfit, rather than the judicial branch of the government, constitutionally established by the founding fathers, to defend the rights of all citizens. :mrgreen:

  28. Tom Andrews

    In regards to the comparison to Roe, and I’m only talking about the legal side of it, not the moral side of it, that is exactly what proponents have been able to do is make it “Roe-no Roe” That’s the important distinction, the inference that people drew from that decision is that if Roe “legalized” abortion in America, then the overturning of it would make it illegal. Not true. It would simply throw it back to the states to decide for themselves what is and what is not legal and acceptable in their states. That’s why I believe SCOTUS will mirror that decision in this case.

  29. NoVA Scout

    e: I think the “odious ideology” you fear is being imposed may be the Constitution of the United States. BTW, this judge’s initial appointment by Reagan got hung up (he eventually got confirmed under Bush I) because he was considered too conservative for the post.

    I’ve seen a lot speculation about this judge’s sexual orientation, but he himself has not said anything about it one way or the other. And it would be really impossible and unacceptable that he would have to. However, I would have to agree with our host, that it’s hard to see why that would be relevant or what one would do otherwise. Presumably most judges have a sexual orientation, but they manage to get their work done. If a heterosexual judge had had the case, would you have been concerned if the case had gone the other way? If we can only have judges who are neither heterosexual or homosexual reviewing the constitutionality of this kind of measure, the depth chart is going to get dramatically depleted. In any event, judges, particularly at the

    @Tom re his 1600 comment – cases are assigned on a blind rotation. Who you get in any given case is just whoever is next on the rota.

    MarinM: this case didn’t decide that the states can’t regulate marriage. It held that California’s prohibition on homosexual unions had not been shown to reflect a valid state interest and, hence, was a violation of the 14th amendment’s equal protection guarantee. Interestingly enough, a few weeks ago a federal judge in Massachusetts invalidated the federal Defense of Marriage Act because it interfered with that state’s authority to control civil marriages. The two decisions are not contradictory (as they may superficially seem to some), but it is fascinating that they will be moving up through the court system at about the same time.

  30. NoVA Scout

    ooops. I left a sentence hanging in that last one. I was going to say that most judges, particularly on the federal level, do a pretty fair job of calling balls and strikes in the courtroom, assembling the evidence, and then putting together decisions that are not governed by their individual interests, passions, or predilections. I’m not sure we would want judges who were such blank slates that they did not have these human atributes.

  31. Thanks for everyone’s input.

    My southern parents would roll over in their graves but I am not a states’ rights person. I don’t want a patchwork of laws. This is the 21st century. We can go anywhere in the United States in a day. When most of our laws were made, trips to other states often took weeks, even months.

    I don’t want to have to look up what state I am in to decide if my gun is legal, if my marriage is recognized or if abortion is legal. We live in the United States of America. Except for very local laws like what time the park closes and can you feed the pigeons, the laws of our nation should be uniform.

  32. Emma

    “Moral disapproval is an improper basis for denying rights to gay men and lesbians…”

    Why the differentiation between “gay men and lesbians”. Aren’t they all just “gay”?

    I just find that odd.

  33. Emma, perhaps he was being inclusive. I think that community likes to have a differentiation, especially the women.

  34. From MSNBC:

    SAN FRANCISCO — Chief U.S. Judge Vaughn Walker has always been characterized as a conservative with libertarian leanings. But after he struck down California’s voter-approved gay marriage ban this week, he was accused by some of being something else entirely: a gay activist.

    Rumors have circulated for months that Walker is gay, fueled by the blogosphere and a San Francisco Chronicle column that stated his sexual orientation was an “open secret” in legal and gay activism circles.

    Walker himself hasn’t addressed the speculation, and he did not respond to a request for comment by The Associated Press on Thursday. Lawyers in the case, including those defending the ban, say the judge’s sexuality — gay or straight — was not an issue at trial, and they have no definitive plans for it to be a factor on appeal.

    But that hasn’t stopped a public debate that exploded in the wake of the 66-year-old jurist’s Wednesday decision. Most of the chatter has come from opponents of same-sex marriage.

    “Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution,” said Maggie Gallagher, chairwoman of The National Organization for Marriage, a group that helped fund the ban, known as Proposition 8.

    In response, the Gay and Lesbian Victory Fund, a political action committee for gay candidates, launched an online petition accusing Gallagher’s group of “gay-baiting.”

    But the debate raises the question: Why is sexuality different from other personal characteristics judges posses? Can a female judge rule on abortion issues? A black judge on civil rights?

  35. Is this what decent people do? Why would people enter the politics of personal destruction because they didn’t like a ruling? I don’t like some of Antony Scalia’s rulings but I would never attack him for being gay, Italian, evil, wife-beater or anything else.

    Gallager, on the other hand, might need to be horse-whipped.

  36. e

    the judicial branch never was granted the authority to remake society in its image. black robes, white sheets, red shirts, black shirts; whatever the color du jour happens to be, fascism and authoritarianism must be combated and defeated

  37. NoVA Scout

    e: you’re right. but they were granted the right to interpret the Constitution. That’s what happened here. You might want to see how this plays out in the appellate process. Let’s talk in a couple of years.

  38. kelly3406

    Moon-howler :
    I don’t want to have to look up what state I am in to decide if my gun is legal, if my marriage is recognized or if abortion is legal. We live in the United States of America. Except for very local laws like what time the park closes and can you feed the pigeons, the laws of our nation should be uniform.

    I completely disagree. If there are no significant differences among the states, then there is no reason to have states. I want strong, vibrant states that push back against federal power. I want differences among the states to provide a choice between living in a people’s republics such as Maryland or Massachusetts vs states that emphasize individual rights such as Utah, Wyoming, or Montana.

  39. Cato the Elder



    Reagan’s original nomination died in committee. That said, talk about his sexual orientation is just silly. He’s a libertarian conservative. Most libertarian leaning people will easily understand how he arrived at his conclusions, and it has nothing to do with sexuality.

  40. Cato, the fjc needs to inform most of the media. I saw Reagan many different times.

    I agree that the sexual orientation discussion is silly and beside the point.

  41. @Kelly

    That people’s republic catch phrase you conservatives say just tells my ears to plug up. It is rhetoric. Explain why Maryland is more socialist than Virginia please, since that is the intent of ‘people’s republic..

    Utah…ah…beautiful state….very much a theocracy by Virginia’s standards.

  42. Morris Davis

    As I’ve said before, the term “activist” judge or “activist” court comes out when there’s a ruling you don’t like, so I wasn’t surprised to see the “A-word” used here to denounce Judge Walker’s ruling. I see where Fox News reported this morning that Ted Olson, former Soliticor General for President George W. Bush and one of the attorneys that argued his side in Bush v. Gore, said the following:

    “It’s not judicial activism when judges do what the Constitution requires them to do and they follow the precedent of previous decisions of the Supreme Court,” he said. “This is what judges are expected to do.”

    But Olson, a prominent conservative lawyer, cited the equal protections afforded under the 14th amendment and applauded Walker’s ruling.

    “We’re not talking about a new right here,” he said. “Most people use the term judicial activism to explain decisions that they don’t like.”

    “California has no rational basis for continuing this discrimination. When that gets to the Supreme Court, I think that will be persuasive to all of the justices on the Supreme Court,” he said.

  43. I am glad that Ted Olson is quoting you Moe. I agree with both of you.

    I am disgusted by conservatives’ attempt to practice the politics of mass destruction as far as Judge Walker goes. I don’t care if he is straight or gay. It has nothing to do with the ruling. And the attempt to denigrate him by suggestions of being gay is just vile.

    That behavior is low and unprincipled.

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