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View Full Version : Prop 8 case, spinoff on CCW


nicki
08-13-2010, 2:13 PM
I realize that the prop 8 case on Gay Marriage was only on the district level and it hasn't made it's way up the Federal court system yet, but I would like to float some questions.

Since the prop 8 federal lawsuit's core ruling dealt with equal rights could that case help the "Sykes case" since our CCW case does include equal protection issues.

The Federal court is invalidating prop 8 and for now will have Gay Marriages all over the state.

If Judge England invalidates "good cause" as a equal protection violation, will that effectively make all of California "shall issue" or just the Federal District?

Carry Rights, Marry Rights, does anyone think we could get Ted Olson to drop a support brief for our case:rolleyes:

Nicki

MrPlutonium
08-13-2010, 3:16 PM
Wasn't the whole idea of the overturning of prop 8 based on how the defense couldn't prove how it harmed the general public? Is Sykes going for the same tactic? Maybe this is a good thing to add to the salvo of good arguments we have in addition to equal protection?

snobord99
08-13-2010, 5:16 PM
I've not read the 136 page Prop 8 opinion, but to answer the question (hopefully), it won't help (won't hurt either). If a federal court invalidates a state law on federal grounds and the ruling isn't overturned, then the state law is going to be invalid. Prop 8 doesn't help just because this isn't new so there won't be a reliance on the case.

Gray Peterson
08-13-2010, 7:23 PM
The Perry case can help us with Nordyke in some ways that may not be shown very clearly as of yet.

Shotgun Man
08-13-2010, 8:07 PM
Although the Perry decision is not controlling authority, I see no reason why pro-gunners couldn't cite it as persuasive authority, unless it has been stayed, in which case, I don't think it can be cited.

The Perry decision deals with whether one has the right to marry the spouse of their choice. Naturally, its logic lends itself well to the issue of whether we are allowed the gun of our choice or to carry it the manner we choose. No one's getting hurt, after all.

joedogboy
08-13-2010, 8:15 PM
Using the Prop 8 case as our basis for argument, we should be able to have all the same firearms rights as are currently given to LEOs.

Just as it is illegal to give a special class or people (heterosexuals) rights that are denied to another class of people (homosexuals), it is unlawful discrimination to allow a special class of people (LEOs) to purchase OL pistols and AWs, while restricting the Constitutional rights of law abiding citizens to have equal opportunity to enjoy their rights.

Shotgun Man
08-13-2010, 8:19 PM
Using the Prop 8 case as our basis for argument, we should be able to have all the same firearms rights as are currently given to LEOs.

Just as it is illegal to give a special class or people (heterosexuals) rights that are denied to another class of people (homosexuals), it is unlawful discrimination to allow a special class of people (LEOs) to purchase OL pistols and AWs, while restricting the Constitutional rights of law abiding citizens to have equal opportunity to enjoy their rights.

Well said.

Vox
08-13-2010, 8:28 PM
Using the Prop 8 case as our basis for argument, we should be able to have all the same firearms rights as are currently given to LEOs.

Just as it is illegal to give a special class or people (heterosexuals) rights that are denied to another class of people (homosexuals), it is unlawful discrimination to allow a special class of people (LEOs) to purchase OL pistols and AWs, while restricting the Constitutional rights of law abiding citizens to have equal opportunity to enjoy their rights.

It's not a wrong argument but I don't think it's an argument that will be considered strong by the for a court. The other side will simply suggest that LEOs are themselves a special class based on training and their job etc. I don't think it's the best way to go about attacking the list.

Kceads
08-13-2010, 9:27 PM
Its pretty awesome how the judges make decisions for us in California. It really streamlines the law making process without the great expense of campaigns and voting.

Crom
08-13-2010, 10:35 PM
Its pretty awesome how the judges make decisions for us in California. It really streamlines the law making process without the great expense of campaigns and voting.

I understand what your saying because when Justice is served it is a great thing. But do realize that going through the courts is the hard way and for us at times, it is the only way forward.

Life for us would be a lot easier if California legislators respected the second amendment right and repeal the useless gun control that they have passed over the years. It is only because of them that we have the AWCA, roster, PPT @ FFL, and capricious ammo restrictions.

wash
08-13-2010, 11:46 PM
To me, that remark sounds like sour grapes over the defeat of Prop. 8

I'm sorry if you feel a simple majority vote (and barely that) should be enough to violate equal protection for a minority that you personally don't like, it just doesn't work that way.

If it did work that way, you probably would not have any guns because the wise majority would have decided to take them away from you (and all, except for police, retired police, big time campaign donors and criminals who will keep guns any way).

advocatusdiaboli
08-13-2010, 11:57 PM
I think this whole thing is even a problem because we neglected to consider that marriage is different from the civil implied contract associated with it--the former is the church's business and the latter is the state's. If the state treated every union as simply a contract and let those involved go through their religion for their marriage, we'd be rid of this once and for all. Period. And all conflicts when the union is disintegrated would be simple contract cases. Pre-nup? It's a valid contract--sorry. Buh-bye divorce court. Buh-bye Gloria Alred. Wouldn't that be nice?

snobord99
08-14-2010, 12:05 AM
To me, that remark sounds like sour grapes over the defeat of Prop. 8

I'm sorry if you feel a simple majority vote (and barely that) should be enough to violate equal protection for a minority that you personally don't like, it just doesn't work that way.

If it did work that way, you probably would not have any guns because the wise majority would have decided to take them away from you (and all, except for police, retired police, big time campaign donors and criminals who will keep guns any way).

I think the judge said it well:

"That the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette'"

joedogboy
08-15-2010, 2:09 PM
It's not a wrong argument but I don't think it's an argument that will be considered strong by the for a court. The other side will simply suggest that LEOs are themselves a special class based on training and their job etc. I don't think it's the best way to go about attacking the list.

With most firearms laws, there are exceptions for military and police. The exceptions for military only apply when they are on duty, and using government issued firearms. Why would the exceptions for police extend beyond those same limits?

What we clearly have here is a form of favoritism - which is clearly motivated by a desire to separate LEOs (and their unions) from other law abiding gun owners, in order to achieve certain political goals.

Creation of a special class of people for political reasons - not for any job related reasons - is clearly a violation of the 14th Amendment.

Training? I have no doubt that many non-LEO gun owners have more training and experience with firearms than some LEOs do.

Off the job needs? Repeat after me: "Nobody has a greater right to self defense than I do." This is a basic tenet of the 14th Amendment's guarantee of equal protection under the law.

Merle
08-15-2010, 6:49 PM
That's one thing I don't get. The SCOTUS ruled in 1972 in Baker v. Nelson there was no Federal question with regards to the denial of SSM's via the State. This would include Federal Law and the US Constitution.

Because there's no enumerated right for SSM in this case, DOMA kicking around and the POTUS stand, along with the Baker v. Nelson decision, I'm hard pressed to understand Walkers decision.

However, with the 2A being an enumerated right, along with DC v. Heller as the binding precedent, I don't think there is any need to tie 2A fights to SSM issues.

In fact, I have seen a great many more States restrict the gun rights of their citizens than the Federal Government. I wouldn't want State Sovereignty to be the controlling factor here as states like CA seem to have no problem with abridging any/all rights when they involve 2A issues.

Gray Peterson
08-15-2010, 11:21 PM
That's one thing I don't get. The SCOTUS ruled in 1972 in Baker v. Nelson there was no Federal question with regards to the denial of SSM's via the State. This would include Federal Law and the US Constitution.

Because there's no enumerated right for SSM in this case, DOMA kicking around and the POTUS stand, along with the Baker v. Nelson decision, I'm hard pressed to understand Walkers decision.


POTUS has nothing to do with this. This comes from the plaintiff's motion in opposition to the stay request in the 9th Circuit. (I've underlined the important parts). Simply put, Baker is not controlling, as Romer v. Evans, Lawrence v. Texas, Witt v. Department of the Air Force, and Christian Legal Society v. Martinez have significantly undermined any potentially precedential value that it may have in this case.

Proponents argue that Baker v. Nelson, 409 U.S. 810 (1972), forecloses Plaintiffs’ claims. Stay Mtn. 25. That assertion is fundamentally at odds with the limited scope of that nearly forty-year-old decision, and was squarely rejected by the district court on summary judgment. See Doc #228 at 75-79.

In Baker, the Supreme Court dismissed “for want of a substantial federal question” an appeal from a Minnesota Supreme Court decision rejecting federal due process and equal protection challenges to the State’s refusal to issue a marriage license to a same-sex couple. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The Supreme Court’s summary dismissals are binding on lower courts only “on the precise issues presented and necessarily decided” (Mandel v. Bradley, 432 U.S. 173, 176 (1977) (percuriam)), and only to the extent that they have not been undermined by subsequent “doctrinal developments” in the Supreme Court’s case law. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (internal quotation marks omitted).

Neither requirement is met here. The issue in Baker is different from that presented by Plaintiffs’ constitutional challenge because, unlike California, Minnesota had not used the ballot initiative process to strip its gay and lesbian citizens of their previously recognized right to marry, and because there was no sexual-orientation based equal protection claim in Baker. See Jurisdictional Statement at 16, Baker (No.71-1027) (“The discrimination in this case is one of gender.”).

Moreover, the Supreme Court’s subsequent equal protection and due process jurisprudence has fatally undermined Baker. See Lawrence v. Texas, 539 U.S. 558, 574 (2003) (invalidating a state criminal prohibition on same-sex intimate conduct under the Due Process Clause); Romer v. Evans, 517 U.S. 620, 627 (1996) (striking down, on equal protection grounds, a Colorado constitutional amendment prohibiting governmental action to protect gay and lesbian individuals against discrimination); Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”).

Proponents’ reliance on Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), is equally misplaced. Stay Mtn. 26. That decision upheld a federal immigration law that granted an admissions preference to opposite-sex—but not same-sex—spouses of American citizens. The court explained that “Congress has almost plenary power to admit or exclude aliens” and “the decisions of Congress” in the area of immigration are therefore “subject only to limited judicial review.” Adams, 673 F.2d at 1041. No such “plenary power” is implicated in this case, and the “limited judicial review” undertaken in Adams is therefore inapplicable to Plaintiffs’ constitutional challenge to Proposition 8. In any event, the district court was free to depart from Adams’s reasoning in light of the subsequent jurisprudential developments in Romer and Lawrence.
See Witt v. Dep’t of the Air Force, 527 F.3d 806, 820-21 (9th Cir. 2008).

Vox
08-15-2010, 11:32 PM
With most firearms laws, there are exceptions for military and police. The exceptions for military only apply when they are on duty, and using government issued firearms. Why would the exceptions for police extend beyond those same limits?

What we clearly have here is a form of favoritism - which is clearly motivated by a desire to separate LEOs (and their unions) from other law abiding gun owners, in order to achieve certain political goals.

Creation of a special class of people for political reasons - not for any job related reasons - is clearly a violation of the 14th Amendment.

Training? I have no doubt that many non-LEO gun owners have more training and experience with firearms than some LEOs do.

Off the job needs? Repeat after me: "Nobody has a greater right to self defense than I do." This is a basic tenet of the 14th Amendment's guarantee of equal protection under the law.

i didn't say it was a bad argument, quite the opposite. You did flesh it out nicely. I may have been wrong.

Merle
08-16-2010, 1:03 AM
POTUS has nothing to do with this. This comes from the plaintiff's motion in opposition to the stay request in the 9th Circuit. (I've underlined the important parts). Simply put, Baker is not controlling, as Romer v. Evans, Lawrence v. Texas, Witt v. Department of the Air Force, and Christian Legal Society v. Martinez have significantly undermined any potentially precedential value that it may have in this case.

Proponents argue that Baker v. Nelson, 409 U.S. 810 (1972), forecloses Plaintiffs’ claims. Stay Mtn. 25. That assertion is fundamentally at odds with the limited scope of that nearly forty-year-old decision, and was squarely rejected by the district court on summary judgment. See Doc #228 at 75-79.
Me and other folks (e.g. Volokh) think Walker was wrong to summarily dismiss Baker.

In Baker, the Supreme Court dismissed “for want of a substantial federal question” an appeal from a Minnesota Supreme Court decision rejecting federal due process and equal protection challenges to the State’s refusal to issue a marriage license to a same-sex couple. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The Supreme Court’s summary dismissals are binding on lower courts only “on the precise issues presented and necessarily decided” (Mandel v. Bradley, 432 U.S. 173, 176 (1977) (percuriam)), and only to the extent that they have not been undermined by subsequent “doctrinal developments” in the Supreme Court’s case law. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (internal quotation marks omitted).

Neither requirement is met here.

Justice Kennard disagrees.

The binding force of a summary decision on the merits continues until the high court instructs otherwise. ( Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. ( Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision.

The issue in Baker is different from that presented by Plaintiffs’ constitutional challenge because, unlike California, Minnesota had not used the ballot initiative process to strip its gay and lesbian citizens of their previously recognized right to marry

That makes no sense. It's constitutionally protected because of the method used? So it's "constitutional" and upheld because it wasn't a ballot, yet when the people use their power to vote, it's unconstitutional?

In addition, Walker should have looked at the issue of Nebraska in the 8th Circuit. That was the case where the citizens of Nebraska amended their constitution via the initiative process and was ruled to be constitutional by the 8th Circuit in 2006. Yes I know he doesn't have to abide by the ruling, but it's identical and at a higher level.

, and because there was no sexual-orientation based equal protection claim in Baker[/U]. See Jurisdictional Statement at 16, Baker (No.71-1027) (“The discrimination in this case is one of gender.”).

And that seems wrong too. One of the arguments under Baker was the violation of the 14th: "fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause" (http://reference.findtarget.com/search/Baker%20v.%20Nelson/)

Moreover, the Supreme Court’s subsequent equal protection and due process jurisprudence has fatally undermined Baker. See Lawrence v. Texas, 539 U.S. 558, 574 (2003) (invalidating a state criminal prohibition on same-sex intimate conduct under the Due Process Clause); Romer v. Evans, 517 U.S. 620, 627 (1996) (striking down, on equal protection grounds, a Colorado constitutional amendment prohibiting governmental action to protect gay and lesbian individuals against discrimination); Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”).

Quoting Kennedy on the issue of Lawrence

"It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

Proponents’ reliance on Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), is equally misplaced. Stay Mtn. 26. That decision upheld a federal immigration law that granted an admissions preference to opposite-sex—but not same-sex—spouses of American citizens. The court explained that “Congress has almost plenary power to admit or exclude aliens” and “the decisions of Congress” in the area of immigration are therefore “subject only to limited judicial review.” Adams, 673 F.2d at 1041. No such “plenary power” is implicated in this case, and the “limited judicial review” undertaken in Adams is therefore inapplicable to Plaintiffs’ constitutional challenge to Proposition 8. In any event, the district court was free to depart from Adams’s reasoning in light of the subsequent jurisprudential developments in Romer and Lawrence.
See Witt v. Dep’t of the Air Force, 527 F.3d 806, 820-21 (9th Cir. 2008).[/I]

Don't know what to say to that one. Immigration (a privilege) is a far cry from a right (e.g. Loving v. Virginia).

Gray Peterson
08-16-2010, 11:58 AM
Me and other folks (e.g. Volokh) think Walker was wrong to summarily dismiss Baker.

Only because they disagree with the final ruling.


Justice Kennard disagrees.

Originally Posted by Kennard
The binding force of a summary decision on the merits continues until the high court instructs otherwise. ( Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. ( Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision.Is that from Strauss v. Horton or In Re Marriage Cases? Both cases only brought up state constitutional provisions, so I have no idea why she would bring up federal case law in this circumstance.

Regardless of which one, Romer, Lawrence, and Christian Legal Society do in fact contain doctrinal developments in this situation. This is clearly a case of a state supreme justice bringing in a case that's not applicable to state constitutional provisions (both Strauss and Marriage Cases are state constitutional decisions only).

That makes no sense. It's constitutionally protected because of the method used? So it's "constitutional" and upheld because it wasn't a ballot, yet when the people use their power to vote, it's unconstitutional?What was pointed out was that there was marriages for same gender couples before and then it got taken away by a vote of the people, where the proponents of the measure were using questionable advertising tactics which purely served to whip up animus against a defined class of individuals.

Whether or not such a situation would work in say, Washington State where marriage for people like me was never allowed, not sure.

In addition, Walker should have looked at the issue of Nebraska in the 8th Circuit. That was the case where the citizens of Nebraska amended their constitution via the initiative process and was ruled to be constitutional by the 8th Circuit in 2006. Yes I know he doesn't have to abide by the ruling, but it's identical and at a higher level.It actually isn't identical. The case you're talking about was Citizens for Equal Protection v. Bruning. It was poorly litigated on an issue that had nothing to do with the situation at hand. The plaintiff's attorneys handicapped themselves significantly by arguing "right to access to the political process" on the issues involved. In the district court, they did not argue about gender orientation as a suspect class.

Put the AFER legal team in charge of a litigation effort against the constitutional amendment as well as the marriage statutes (which wasn't challenged in the CFEP case, which the court noted fatally destroyed their own case) in Nebraska. I am willing to bet the 8th Circuit may either change their tune or risk a potential overturn by SCOTUS given the quality of the legal team.

And that seems wrong too. One of the arguments under Baker was the violation of the 14th: "fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause" (http://reference.findtarget.com/search/Baker%20v.%20Nelson/)Orientation wasn't part of that litigation in Baker. It was with Perry.

Quoting Kennedy on the issue of Lawrence

"It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."You're reading too much into it. Justice Scalia made basically the same statement in Heller, though obviously he gave a bigger indication of the applicability of the 14th amendment to the states. McDonald came later. Kennedy is a lot more reserved in this regard in giving indications to courts. That's just the way he writes decisions.

Don't know what to say to that one. Immigration (a privilege) is a far cry from a right (e.g. Loving v. Virginia).But for DOMA Section 3, this wouldn't be an issue. That however is being litigated in a different case out of Massachusetts, the Gill v. OPM case.

curtisfong
08-16-2010, 12:09 PM
IThe other side will simply suggest that LEOs are themselves a special class based on training and their job etc.

In CA, not just LEOs. Also "filmmakers".

And the attitude that LEOs are a "special class" is offensive. IMO there have to be a few judges around that wouldn't buy that BS.

Vox
08-16-2010, 12:24 PM
In CA, not just LEOs. Also "filmmakers".

And the attitude that LEOs are a "special class" is offensive. IMO there have to be a few judges around that wouldn't buy that BS.

"filmmakers" as in using the weapons as props in movies?

I don't agree with it I'm just playing devil's advocate.

Rekrab
08-16-2010, 1:25 PM
"filmmakers" as in using the weapons as props in movies?

I don't agree with it I'm just playing devil's advocate.

Film armorers can get their hands and build all kinds of fun stuff that would land any normal citizen in the tank.

Vox
08-16-2010, 1:28 PM
Film armorers can get their hands and build all kinds of fun stuff that would land any normal citizen in the tank.

hmmm... I'm planning on making a series of educational films regarding California gun laws.. do you think I could get such a permit? lol

Merle
08-16-2010, 1:37 PM
Only because they disagree with the final ruling.

Actually many of us don't disagree with the final ruling EXCEPT by the means which it was decided. The arguments and logic used by Walker appear convoluted and seemingly create facts out of thin air.

Is that from Strauss v. Horton or In Re Marriage Cases? Both cases only brought up state constitutional provisions, so I have no idea why she would bring up federal case law in this circumstance.

Yes, I believe so. It's relevant as decisions made by Federal Courts (including the SCOTUS) are binding/recognized by the lower courts. Imagine the 9th making a decision which the State courts could ignore UNTIL it reaches the Federal level. (e.g. Banning handguns is legal until someone challenges it at the Federal level and then repeating the process with rifles).

Regardless of which one, Romer, Lawrence, and Christian Legal Society do in fact contain doctrinal developments in this situation. This is clearly a case of a state supreme justice bringing in a case that's not applicable to state constitutional provisions (both Strauss and Marriage Cases are state constitutional decisions only).

Again, I'm not a Justice and not a lawyer for the opponents of Prop 8. However I do give a Justice more credit than a lawyer.

What was pointed out was that there was marriages for same gender couples before and then it got taken away by a vote of the people, where the proponents of the measure were using questionable advertising tactics which purely served to whip up animus against a defined class of individuals.

Whether or not such a situation would work in say, Washington State where marriage for people like me was never allowed, not sure.

It shouldn't matter. The people have a right to decide and then vote. We do not have the right to overturn the voters decision based upon the "why" they voted the way they did. Challenge the issue on the merits, challenge it based upon conflicting law, don't challenge it because you didn't like the advertising campaign and money came from out of state sources.

Imagine trying to challenge a gun law based upon the fervor whipped up by LCAV. I don't see that happening. Questionable advertising, vague language at the ballot, etc. should not be grounds for overturning the will of the voter as there may be a correlation between the two, but it's not possible to draw a direct link as long as ONE person votes for a reason not due to advertising, you do not disenfranchise their vote.

I'd love to see a election overturned because a candidate lied during the campaign. It won't happen and shouldn't be considered grounds for overturning the election.

It actually isn't identical. The case you're talking about was Citizens for Equal Protection v. Bruning. It was poorly litigated on an issue that had nothing to do with the situation at hand. The plaintiff's attorneys handicapped themselves significantly by arguing "right to access to the political process" on the issues involved. In the district court, they did not argue about gender orientation as a suspect class.

Shouldn't matter. A poorly litigated case makes case law as well as a well litigated one (as has been said around here, "Don't pull a Gorski"). The same argument, poor litigation, could be used in the defense in Perry (talk about a poor showing by the AG and Governor). Regardless, the core issue remains: the legality/constitutionality of SSM in light of the current US Constitution, State Constitution and Federal Law.

Put the AFER legal team in charge of a litigation effort against the constitutional amendment as well as the marriage statutes (which wasn't challenged in the CFEP case, which the court noted fatally destroyed their own case) in Nebraska. I am willing to bet the 8th Circuit may either change their tune or risk a potential overturn by SCOTUS given the quality of the legal team.

Coulda woulda shoulda. It doesn't matter as the decision by the 8th still stands. IF the any legal team wants to help and appeal... they can. It's been 4+ years and I don't see any up and coming issue on the calendar of scotusblog.

Why? Because they know they'll lose. Come one, it's been FOUR years.

Orientation wasn't part of that litigation in Baker. It was with Perry.

Does it matter? Prop 8 does not ban marriage based upon sexual orientation, simply based upon gender. If, in the end (versus the means, does restrict, it does so based upon gender (two straight guys can not get married) moreso than it does on orientation (the means).

You're reading too much into it. Justice Scalia made basically the same statement in Heller, though obviously he gave a bigger indication of the applicability of the 14th amendment to the states. McDonald came later. Kennedy is a lot more reserved in this regard in giving indications to courts. That's just the way he writes decisions.

Maybe, but I can only go off their statements as I don't know them personally and can't ask them for clarification.

But for DOMA Section 3, this wouldn't be an issue. That however is being litigated in a different case out of Massachusetts, the Gill v. OPM case.

Yes, I don't argue that this case can and should proceed. In fact, I don't see why (e.g. Nebraska) the litigants aren't pursuing a singular case to its final conclusion (the SCOTUS) versus trying to fight across multiple states. With a major with at the SCOTUS level overturning Baker v. Nelson (aka DC v. Heller) the supporters of SSM would have the means to challenge any and all lower courts.

N6ATF
08-17-2010, 12:16 AM
hmmm... I'm planning on making a series of educational films regarding California gun laws.. do you think I could get such a permit? lol

Not unless your series is FUD and deliberately confuses the audience at least 2x as much as the deliberately convoluted infringements themselves.

Gray Peterson
08-17-2010, 1:37 AM
Actually many of us don't disagree with the final ruling EXCEPT by the means which it was decided. The arguments and logic used by Walker appear convoluted and seemingly create facts out of thin air.

Deliberately sticking fingers in your ears and closing your eyes to the videos and exhibits released by the court won't fix it. You really need to read the entirety of the court documents. Besides the issues of guns, I have literally read every court document on Perry. The Prop 8 Proponent's didn't do a good job defending it. Period.

Yes, I believe so. It's relevant as decisions made by Federal Courts (including the SCOTUS) are binding/recognized by the lower courts. Imagine the 9th making a decision which the State courts could ignore UNTIL it reaches the Federal level. (e.g. Banning handguns is legal until someone challenges it at the Federal level and then repeating the process with rifles).That's actually already what it's like already.

Again, I'm not a Justice and not a lawyer for the opponents of Prop 8. However I do give a Justice more credit than a lawyer.There are a lot of smarter lawyers than some justices. Alan Gura happens to be smarter than 4 of the SCOTUS justices. Ted Olson's work isn't something to sneeze at.

It shouldn't matter. The people have a right to decide and then vote. We do not have the right to overturn the voters decision based upon the "why" they voted the way they did. Challenge the issue on the merits, challenge it based upon conflicting law, don't challenge it because you didn't like the advertising campaign and money came from out of state sources.

Imagine trying to challenge a gun law based upon the fervor whipped up by LCAV. I don't see that happening. Questionable advertising, vague language at the ballot, etc. should not be grounds for overturning the will of the voter as there may be a correlation between the two, but it's not possible to draw a direct link as long as ONE person votes for a reason not due to advertising, you do not disenfranchise their vote.There is no "right to vote" in the constitution. There is provisions to prevent states and US government from banning voting for various different reasons, including race or color (13th amendment), gender (19th amendment), lack of willingness to pay a poll tax (24th amendment), and age if the person is at least 18 years of age or older (26th amendment).

If Alameda County put the gun show ordinance to a countywide vote, it would pass easily to a county vote. They would use the same tactics against gun owners. It would still be unconstitutional. Have you read the Nordyke briefings on equal protection? That is a clear case of animus against a defined group of individuals.

I'll say it again: SCREW THE VOTERS. These are the same people that put in Gore, Hutchens, McGinness, Prieto, and Baca, who then in turn deny our right to carry. The fifteen million people that bother to show up on election day cannot determine the civil rights of the thirty-six million individuals in the state of California either on a county or state level. Pulling an about face to the people who complain on this forum about the voters of the state making bad choices in putting in massively anti-gun legislatures and turning that around and say "Oh, but that proposition is A-OK, because gays and lesbians are icky people" is not cool.

I'd love to see a election overturned because a candidate lied during the campaign. It won't happen and shouldn't be considered grounds for overturning the election.Proposition 8 violates the due process clause and equal protection clause of the 14th amendment, insofar as it's effect on the general population. The fact that you confuse persons with initiatives is shocking. Executive politicians can be sued for violating the constitution if they enforce legislation that is unconstitutional. Chief Justice Roy Moore of Alabama was removed from office for violating the 14th amendment and refusing to comply with a federal judge's order. That's not overturning an election.

Shouldn't matter. A poorly litigated case makes case law as well as a well litigated one (as has been said around here, "Don't pull a Gorski"). The same argument, poor litigation, could be used in the defense in Perry (talk about a poor showing by the AG and Governor). Regardless, the core issue remains: the legality/constitutionality of SSM in light of the current US Constitution, State Constitution and Federal Law.You forget that en banc and SCOTUS can overturn the 8th Circuit's 3 judge panel decision.


Coulda woulda shoulda. It doesn't matter as the decision by the 8th still stands. IF the any legal team wants to help and appeal... they can. It's been 4+ years and I don't see any up and coming issue on the calendar of scotusblog.Because gay people in Nebraska have bigger problems than marriage. When you beat down a segment of a population, they see no hope of anything changing, and won't help.

Why? Because they know they'll lose. Come one, it's been FOUR years.Also, there's no guarantee that SCOTUS will take the case, or an en banc panel. Ted Olson, however, is the type of lawyer that gets the appellate courts and SCOTUS' attention. On this issue, sending Ted Olson into an courtroom is like sending Alan Gura into a really bad anti-gun state with a 2A claim. They may lose in the first two rounds, but en banc and in SCOTUS, they most likely would win. Have you seen Olson's win-loss record?



Does it matter? Prop 8 does not ban marriage based upon sexual orientation, simply based upon gender. If, in the end (versus the means, does restrict, it does so based upon gender (two straight guys can not get married) moreso than it does on orientation (the means).

Maybe, but I can only go off their statements as I don't know them personally and can't ask them for clarification.

Anyone who voted for that Proposition believed that heterosexuals and heterosexual relationships are superior to gay and lesbians and their associated relationships. I do not buy this "Preserving the traditional definition of marriage". You flat out ask them why gay people should not marry. They fumble their words, and what they typically say is "I don't want my son or daughter to turn gay because they would be able to get married to the same gender", even if they had no evidence that their own children was in fact gay or lesbian.

I've counseled many people, who pretended to be "straight", got married, had children, but went into a downward spiral after 10 years of lying to themselves and their families, having double lives, etc, causing hurt feelings, anger, and rage. The biggest reason they "went stealth"? "Straight relationships are protected by law, and pushed by churches to the exclusion of all others". Did you know that being a known gay person kept one from holding a federal job of any kind until the late 1970's (https://ecf.cand.uscourts.gov/cand/09cv2292/evidence/PX2337.pdf)?

The higher rate of mental illness in my particular "tribe", as it where, has been used against us to deny us our civil rights. When you subject an entire people to:

Cruelty (keeping us from our partners even with medical proxies and powers of attorney, and yes, this has even happened in California after the domestic partner law passed) (Examples: Sonoma County elderly gay couple away from each other, and did not notify until death, sold home and possessions (http://articles.sfgate.com/2010-07-25/bay-area/21997308_1_public-guardian-nursing-home-sonoma-county). Also, in Bakersfield CA, a child's adoptive mother was kept away from their child while the birth mother was allowed, even while mothers and fathers (the heterosexual couples) were allowed to visit their sick children.

Mental Anguish. (Families booting out their children at ages 14, 15, and 16 for it being discovered that they are gay or lesbian)

Physical and psychological torture. (By members of the law enforcement profession early on, and then by individuals. Look up "curb stomping".)

Does anyone really wonder why my particular "tribe" have much higher suicide rates and rates of mental illness?

Yes, I don't argue that this case can and should proceed. In fact, I don't see why (e.g. Nebraska) the litigants aren't pursuing a singular case to its final conclusion (the SCOTUS) versus trying to fight across multiple states. With a major with at the SCOTUS level overturning Baker v. Nelson (aka DC v. Heller) the supporters of SSM would have the means to challenge any and all lower courts.

Gill v. Office of Personnel Management would likely provide that background to challenging the state laws below. That has to do with federal recognition of marriage licenses between same gendered couples in the states where it's legal. That is the Heller case for this issue. Think of Perry as our Emerson case, except Perry will win because of Article III standing issues by the Defendant-Intervenor.

tonelar
08-17-2010, 2:03 AM
the creation of another class of people is a valid arguement- especially when the classes are virtually the same. In prop 8's case, there are the 18,000 gays who were married while it was deemed legal and the rest of the gay couples who are barred from marrying.

this parallels the unjust AW law as well... someone can have a RAW while someone with an equal background, etc can not.

snobord99
08-17-2010, 9:12 AM
Yes, I believe so. It's relevant as decisions made by Federal Courts (including the SCOTUS) are binding/recognized by the lower courts. Imagine the 9th making a decision which the State courts could ignore UNTIL it reaches the Federal level. (e.g. Banning handguns is legal until someone challenges it at the Federal level and then repeating the process with rifles).

Actually, the only federal court that's binding on state courts is the SCOTUS. Circuit court opinions are very persuasive on the state courts on federal issues, but they're not binding. State courts can, and do, go against Federal Circuit Courts of Appeal.

For example, take a look at State v. Allen (216 Ariz. 320, AZ appellate court not even the State Supreme Court) and how they treat the 9th Circuit's opinion in U.S. v. $277,000 in Currency (941 F.2d 898, 9th Cir.).

KylaGWolf
08-17-2010, 9:31 AM
With most firearms laws, there are exceptions for military and police. The exceptions for military only apply when they are on duty, and using government issued firearms. Why would the exceptions for police extend beyond those same limits?

What we clearly have here is a form of favoritism - which is clearly motivated by a desire to separate LEOs (and their unions) from other law abiding gun owners, in order to achieve certain political goals.

Creation of a special class of people for political reasons - not for any job related reasons - is clearly a violation of the 14th Amendment.

Training? I have no doubt that many non-LEO gun owners have more training and experience with firearms than some LEOs do.

Off the job needs? Repeat after me: "Nobody has a greater right to self defense than I do." This is a basic tenet of the 14th Amendment's guarantee of equal protection under the law.

You site that the courts may say that LEOs have more training than the normal citizen. Well here is a little dirty secret. There are a good many departments in this country that do NOT require their officers to qualify more than once a year. Some twice a year. Federal officers qualify once a quarter. That means unless they go to the range on their own time they maybe only shoot their weapon at qualifying. I know that the courses I have taken are more than friends of mine that are LEOs have ever received for their job. Reason I know this is they took the same class I did and was shocked that they learned more in that class then they ever did in the academy.

joedogboy
08-17-2010, 10:55 AM
You site that the courts may say that LEOs have more training than the normal citizen. Well here is a little dirty secret. There are a good many departments in this country that do NOT require their officers to qualify more than once a year. Some twice a year. Federal officers qualify once a quarter. That means unless they go to the range on their own time they maybe only shoot their weapon at qualifying. I know that the courses I have taken are more than friends of mine that are LEOs have ever received for their job. Reason I know this is they took the same class I did and was shocked that they learned more in that class then they ever did in the academy.

There is a common misperception/myth that all cops are better trained in firearms safety than any non-cop citizen.

See the "I'm the only one in this room professional enough to carry a Glock .40" video to witness this myth in action, and also how inaccurate it is.

Vox
08-17-2010, 11:16 AM
the creation of another class of people is a valid arguement- especially when the classes are virtually the same. In prop 8's case, there are the 18,000 gays who were married while it was deemed legal and the rest of the gay couples who are barred from marrying.

this parallels the unjust AW law as well... someone can have a RAW while someone with an equal background, etc can not.

That's not the crux of anyone's argument in Prop 8. Although it wouldn't be a bad one... (these 18,000 aren't destroying marriage....) That's just an issue for Strauss v Horton.

tonelar
08-17-2010, 12:09 PM
That's not the crux of anyone's argument in Prop 8. Although it wouldn't be a bad one... (these 18,000 aren't destroying marriage....) That's just an issue for Strauss v Horton.

thanks Vox, I did not know it was not a part of the case against Prop 8.
However, I still think it's unfair that I can have my RAWs while my nephews (who are super responsible and careful with firearms) can not.

Back to the topic at hand... I have never believed that a simple majority vote should enact policy. ESPECIALLY when you bear in mind that the gun owning Californian is a minority in many parts of the state.

Vox
08-17-2010, 2:41 PM
thanks Vox, I did not know it was not a part of the case against Prop 8.
However, I still think it's unfair that I can have my RAWs while my nephews (who are super responsible and careful with firearms) can not.

Back to the topic at hand... I have never believed that a simple majority vote should enact policy. ESPECIALLY when you bear in mind that the gun owning Californian is a minority in many parts of the state.

Of course not. Which is why I think California should do away with the initiative/proposition system.