Saturday, August 14, 2010

It Seems Supreme Court Already Declared No Right to Same Sex Marriage [Updated]

How lawless has Judge Vaughn Walker acted in striking down Proposition 8? In 1971, the Minnesota State Supreme Court in the case of Baker vs. Nelson ruled that it was not unconstitutional for the government to limit its recognition of legally valid marriages to members of the opposite sex, i.e., 1 man and 1 woman.

On appeal by the losing parties, the U.S. Supreme Court in 1972 summarily dismissed Baker on grounds that the case lacked a "substantial federal question." That's literally all the Court said. However, as a matter of procedure, this summary dismissal by the Court was apparently the equivalent of a decision on the merits. If that in fact is what it means, then the ruling in Baker that marriages may be legally limited to people of the opposite sex is binding precedence upon all lower federal courts.

In his written decision, Judge Walker entirely ignored Baker v. Nelson, even though it contained identical issues and the case was raised by lawyers defending Prop. 8. As a matter of law, then, Walker's ruling should be overruled by the Ninth Circuit Court of Appeals without much discussion. Whether the most liberally activist and overturned court will do so, however, is a whole different question.

Update: Maggie Gallagher at the National Organization for Marriage lists some key excerpts from the emergency motion brief filed by Prop. 8 lawyers to the Ninth Circuit Court of Appeals. The big takeaway is that Judge Walker was determined to strike down Prop. 8, even if that meant ignoring binding legal precedence and grossly abusing his discretion as a federal court judge. Regardless of whether you support legal recognition of same sex marriage as a matter of public policy, you should really be upset at how Walker has conducted himself in this case. I personally don't think it's too far fetched to suggest that Walker be impeached.

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