It's everywhere now, but if you are Google-impaired, here is the opinion.
I've taken a very brief read of the legal analysis, and am circling back to read the findings of fact. A couple of early observations:
1. As is often the case, the fight is won on definitions. There's no dispute that marriage is a fundamental right. Judge Walker correctly states that the issue is what "marriage" means — does it mean "a bundle of rights held by a man and a woman wishing to join in matrimony," or does it mean "a bundle of rights held by two people wishing to join in matrimony." He answers that it is the latter. This is a situation where my ability to critique is clouded by my liking the result, a hazard of all legal commentators. I'll read it again, but it comes off a little question-begging to me upon a first read.
2. Having found that the due process right to "marriage" means for any two people to marry, Walker finds that Prop 8, limiting it, does not satisfy strict scrutiny. That part isn't particularly remarkable. The justifications for the restriction are primarily morals-based and otherwise weak. Walker goes further than he needs to on this point, saying that the reasons are not even legitimate, let alone compelling.
3. On equal protection, Walker dodges one issue by refusing to find that gays are a suspect class triggering intermediate scrutiny (Kip argues that this was the real issue and everything else is "sideshow.") Instead, he finds that there is no rational basis for the distinction. Once again, it is difficult to fit my lawyer hat and human being hat upon my head at the same time. I find the reasons offered for Prop 8 sub-rational (particularly as they were rather lamely offered in this case). That said, I have read a hell of a lot of rational basis cases, and this rational basis review is much more muscular and much less forgiving than 99% of them. (For the record, I'd be happy for all laws — including economic regulations — to be subjected to such actual scrutiny.)
Last 5 posts by Ken White
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- Free Speech Tropes In The LA Times - June 8th, 2017
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