"Vaughn Walker’s Decision: The Takes " Excellent Article on the Process Coming Up and Poss Outcome

[Hepburn]

All right, so what do The Experts think will happen as a result of Judge Vaughn Walker's landmark ruling? First of all, let's let Time do a little explaining about the technicalities:

losing side will probably file a "merits" appeal with the 9th Circuit, located in San Francisco. During this trial, lawyers will argue in front of three judges, who will then release a written opinion. This court has a reputation for having liberal judges, but the three judges are chosen randomly. Then, whatever side loses this appeal can file an "en banc" complaint to be heard in front of 11 judges on the court. None of this process has a deadline, so this saga could drag on for a while.

Okay! Than what?

More...

http://nymag.com/daily/intel/2010/08/vaughn_walkers_decision_the_ta.html

I am a retired Calif lawyer...so what is going on right now with the Prop 8 case procedurally is clear to me. However, to many who have not had a front row seat to a lot of litigation, this article, IMO, gives some good insight and evaluation of where this court case is going. It also is very interesting on who Judge Walker appears to have drafted his opinion.

Hope you enjoy it! :hi:

[robertpaulsen]

1. K & R! Excellent summary of the possibilities for the future.

:kick:

[Hepburn]

2. This one is down and dirty and simple to understand...

...the opinion was lengthy, to say the least, and I did read it. But for those who do not have a legal background, it is hard to see what Walker did.

What I found interesting was that he did such a horrendously large finding of facts ~~ brilliant move on his part. Much harder for an appellate court to deal with overturning an opinion that has that much fact finding in it...IMO, of course.

:hi:

[Sapphocrat]

4. And if I understand correctly...

...the 9th Circuit can disagree with Walker's findings of law and start from scratch if it wants to, but it is bound not to dismiss any of his findings of fact (as long as none is erroneous), which actually carry more weight than his findings of law.

Is my understanding right?

[Hepburn]

5. Pretty much right on with your assessment.

Hard to set aside findings of fact unless they are clearly erroneous.

[Sapphocrat]

3. I've been saying all along...

I haven't read Sully's piece yet, but I've been saying this all along: Don't count Scalia out. A re-reading of his dissent in Lawrence v. Texas is very telling; he complained that Justice O'Connor's reasoning for applying equal protection to Lawrence -- regardless of the stretch she made to specify that equal protection did not apply to marriage -- left state laws restricting marriage to opposite-sex couples on "pretty shaky ground(s)."

O'Connor:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

Scalia:

Justice O’Connor simply decrees application of “a more searching form of rational basis review” to the Texas statute. ... Justice O’Connor (does not) explain precisely what her “more searching form” of rational-basis review consists of. It must at least mean, however, that laws exhibiting “ ‘a … desire to harm a politically unpopular group,’ ... are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. ... But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

And in reading Judge Walker's ruling, I have to agree: He certainly was writing directly to Scalia, practically echoing Scalia's own words in Lawrence, to the effect that any argument about "preserving the traditional institution of marriage" is just another way of expressing "moral" disapproval of same-sex relationships -- and anti-gay animus is no basis for argument of a "compelling state interest." (vis-a-vis Romer v. Evans)

Scalia read -- and repeated -- the writing on the wall in 2003.

And he would have to bend himself into a pretzel several times over to squirm out from under his own words -- including these words, in the same opinion:

I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine.

I'm no fan of Tony's, and I'm not getting my hopes up, but I think there's a better than 50/50 chance Scalia will be forced to side with the Prop H8 plaintiffs.

Oh, and IANAL -- it's just after poring over this stuff for so many years, the citations come all too easily to me. It's almost scary. LOL

So, how I'd do, Counselor?

[Hepburn]

6. Thanks for reminding me of this...

...I agree ~~ a "Tony Pretzel" would result if he tried to get out o that one.

You did an excellent job...! :patriot: