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.

Wednesday, August 11, 2010

Is Law School Becoming a Fool's Errand?

That's the question Mr. Instapundit, Glenn Reynolds, addresses in this video with his fellow legal scholars John Yoo and Richard Epstein.

Having watched the whole 18+ minute video, I'm not exactly sure anyone ever suggested an answer. If you were to ask me whether law school is a waste of time, my response would be the same general response that lawyers tend to give to a question posed to them/us by a non-lawyer: it depends.

Putting aside the fact that many, if not most, states make possession of a valid law degree a prerequisite to taking their bar/licensing exams, I would say law school is generally a waste of time if all you want to be is a practicing attorney.

If, however, you wanted to be a legal academic like Messrs Reynolds, Yoo and Epstein, then law school would obviously be necessary.

Given these short answers, I suppose I wouldn't have been a very good guest on Instapundit's web show. Not that I would have been invited anyway, since I'm just a regular "working class" lawyer in a state where I understand there are more of us than in the entire country of Japan.

h/t Volokh Conspiracy

Monday, August 09, 2010

Gay is Apparently the New Black [Updated]

When asked by Chris Wallace where in the Constitution is there a right to same-sex (i.e., gay) "marriage," former Bush Solicitor General and co-lead attorney for the parties who challenged California's Proposition 8 answered with a rhetorical question that it exists in the same place where there is a right to interracial marriage. Of course, no such right is expressly stated in the Constitution, but the Supreme Court has previously determined within the context of state racial segregation laws banning interracial marriage that marriage in general is a fundamental right that is constitutionally protected.

OK, via Ted Olson's comments in the video below, we now know for certain that pro-gay "marriage" advocates are hanging their hats on the premise that same-sex attraction is race. I personally find this ridiculous, but I'd be interested in reading any defense for this position.

A couple of pet peeve house cleaning items: I wish people would stop referring to Proposition 8 as a "ban" on same-sex "marriage." The democratically approved state constitutional amendment simply provides a legally recognized definition. To "ban" something basically means to outlaw it. Proposition 8 outlaws nothing.

I also wish people would stop saying Proposition 8 prevents homosexuals from getting married. Again, it does no such thing. In effect, Proposition 8 limits a legally recognized marriage to 1 male and 1 female. Said male and female may either be heterosexual or homosexual. There is no exclusion from marriage on the basis of sexual orientation. Under Proposition 8, "marriages" between members of the same sex are not legally recognized. Such is true regardless of whether these "marriages" are between couples of the same sex who are homosexual or heterosexual. (Oh, can same-sex couples only be homosexual? Why?).

Update: In his interview with Chris Wallace (the above embedded video was edited by whoever posted it on YouTube), Ted Olson repeated the assertion in Judge Walker's written decision that lawyers defending Prop. 8 said they didn't have to prove or provide evidence of the procreative purpose of marriage. That assertion by Walker is patently false. For Olson to knowingly perpetuate Walker's false assertion really reflects poorly on his character.