@BB61 - Legislating from the bench is wrong.

One of the roles of the judge is overturning bad law. In this case, Prop 8 was ruled to be unconstitutional.

A lot of times, “judicial activism” and “legislating from the bench” are just empty fill-ins for “I disagree.”

Laws are created be elected legislators and voting.  Now one single person has the power to overturn a law?

The 14th Amendment was used in the overturning of Prop 8. It’s prior legislation dating to 1868.

@mtngirlsouth - Of course it is, especially in CA. Everyone knows that a county ruled by the people, is really ruled by the unelected judges!

It is the people who enshrined the Constitution. When state law comes in conflict with constitutionally protected rights, it is the proper role of the judge to resolve it.

In this case, the 14th Amendment’s due process and equal protection clauses were found to be violated by California proposition 8.

@bakersdozen2 - Or the one (judge) to overturn the many.

The strength of a ruling doesn’t lie in the number of judges, but the construction of his decision.

No number of an animus-driven populace may justify irrational discrimination.

@bakersdozen2 -  “Irrational discrimination” is a subjective term.

There was a lack of rational basis for the discriminatoin perpetuated by Prop 8.

Given that, the question is:  on what does this judge base his  decision?

Findings during the trial. The Due Process and Equal protection clauses of the 14th Amendment. And all tidied up in a 136-page opinion.

@bakersdozen2 - Marriage is a privilege granted and regulated by each State through licensor.

It was found in Loving v. Virginia that marriage is a fundamental right protected by the Due Process clause of the 14th Amendment.’

This is not a matter of Constitutional protection.

Additionally, with the equal protection clause of the 14th Amendment, states may not, without rational basis, discriminate against minority groups. It was argued in Judge Walker’s opinion that the respondents of Perry v. Swartzenager (the proponents of Prop 8) failed to provide a rational basis for discrimination against gays.

It is interesting that the dilemma of Gay Marriage is being addressed just recently given the age of our Republic.

Equal rights for women was not realized until very recently. Dismantling of Jim Crow and racial segregation did not begin until nearly a hundred years after the end of the Civil War. Gay sex was outlawed in many states until 2003, when state statutes were struck down by the Supreme Court. The Second Amendment was not recognized by the Supreme Court as to protect an individual right to bear arms until this year.

So what? Law develop over time. Realizations and ideas evolve over the decades. You can do better than this.

At any rate, given this historical silence, it’s undeniable that this judge read into the 14th Amendment his own particular bias…

Exlaborate how. It’s one thing to charge, “Bias!” it’s another to actually justify it.

@Celtic_haven - …In my mind, this just means the gays will try to infiltrate the schooling system and sex education to include about sex with the same gender…

You paranoid cunt.

Look, gays aren’t so different from the rest of us. They have daily concerns and responsiblities. Marriage equality isn’t some stepping-stone to sexual perversion. Marriage– that recognition of love and commitment– would be valued by same-sex couples in the same way that it’s important and meaningful for opposite-sex couples.

Marriage has always been between a husband and wife. Not husband/husband and wife/wife.

According to who, to what source?

If you say Bible or God, then I point to the fact that America is a pluralistic society. My parents were Buddhists, I’m an atheist; and my folks and I are just entitled to marriage as Christians and our understanding of marriage is in no way tied to the Christian Protestent sense.

If you appeal to some larger cultural sense of marriage, then look the fuck abroad. There are foreign states with a culture very similar to our own, that hvave come to the conclusion that marriage isn’t constrained by gender and have come to less same-sex couples in marriage as they do opposite-sex couples.

…Even if you’re not religious, how can anyone think that homosexuality ISN’T a disorder pyschologically?

Because heterosexuality isn’t.

@bakersdozen2 - 1)  Marriage is not an issue even addressed in the Constitution let alone a protected or provided for. 

The Due Process Clause has been ruled by the Supreme Court to protect fundamental rights including marriage. This point was clearly affirmed in Loving v. Virginia.

2) Marriage is an institution regulated by states…

And in its regulation, states may still overstep their Constitutional Bounds– as in Virignia’s anti-Miscegenation law in Loving v. Virginia.

3) Homosexuality is not addressed within the Constitution let alone given a minority status…

Irrelevent. Under the Equal Protection clause, no, class may be discriminated against without rational basis. There are two recent cases involving homosexuality that specifically used the 14th Amendment:

Romer v. Evans: A 1996 case involving the overturning of a Colorado voter initiative stripping gays of anti-discriminatory protection.

Lawrence v. Texas: A 2003 case striking down Texas’ anti-gay sex statute.

. 
4) During the ratification of the 14th Amendment (1868), there was legislation in all 50 states that affirmed homosexual acts (of any kind) as criminal.

I find this hard to believe. Alaska, Hawaii, and a bunch of other states had yet to achieve statehood.

But more seriously– moot point– reference the Romer and lawrence cases from the past decade and-a-half.

@bakersdozen2 - This was a case involving inter racial marriage and the rights of individuals to marry regardless of race.

Yes it did, however, in its ruling, the Court highlighted and stated explicitly a fundamental right to marriage. This aspect of the ruling had been subsequently confirmed in other Supreme Court cases.

From the majority opinion of Loving: “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival….”

You make my case for jurisprudence based on judicial activism not original intent.

Bullshit.

The Rehnquist Court during this time was predominately consevative, and the votes for for both cases were 6-3– picking the conservative votes of O’Connor and Kennedy. Kennedy wrote the majority opinionso f both cases.

Plus, I’d like for you to make the point: Exactly how the cases erred in your conception of originalism. I hope this isn’t just an uncritical cop-out to rulings you don’t like.

@bakersdozen2 - …Ruling affirmed the “Rights” of individuals to marry and that those rights not be impeded by racial discrimination.

Loving ruled on two components of the 14th Amendment: Due Process and equal protection. The former is a recognition of marriage as a basic right– one that may not be infringed without a legitimate state interest, the second equal protection– that when a class of people are discriminated against, the government ought to have a compelling interest. The former finding is in no way qualified by racial discrimination.

There are 13 other cases finding or reaffirming marriage as a fundamental right.

Do you really know what you’re talking about on this point or are you making up as you go along?

Please explain to me what a conservative court looks like.

Rehnquist, Scalia, Thomas, Kennedy, O’Connor voteed together more together on social issues than Souter, Breyer, Stevens, and Ginsburg.

Seven of the nine were Republican nominees. Sufficiently elucidating? Also, don’t equate non-originalism with “Judicial activism.” The epithet isn’t synonymous with liberalism or with living constitutionist.

If you think that judges appointed to the Supreme Court by a “Conservative” President makes them strict constructionists, I’d (unfortunately) have to disagree with you.

You’re funny.

Fine. What’s your wonderful textualist understanding of “Due process” and “Equal protection?”

If we are viewing the Constitution with an eye toward strict constructionism, we look at the 14th Amendment with that perspective in mind not what we wish it to be based on evolving or devolving cultural norms. The idea that this judge had no dog in this fight and was looking at the 14th Amendment from the perspective of original intent is difficult to believe. 

Since you’re so plugged into the minds of the 1868 U.S. congress, tell me, what are these mystical original intent?

Easy enough to claim, not so easy to back up, eh?

You are reading into the ruling the unrestricted right of any “parties” to marry that truly doe snot exist

You still haven’t addressed the Equal Protection bit. Invidious discrimination is a Consittutional no-no.

I can site cases where with the Equal Protection clause, the Supreme Court struck down statutes discriminating against classes as mundane as hippies or the mentally retarded. Equal protection was used to strike down gender discrimination along with racial. The Court has used the clause in the protection of gays from prejudicial animus– and whether you personally agree with the ruligns or not– under the principle of stare decisis, it is afforded judicial respect.