grantcart, you called it!

[babylonsister]

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8884232

Judge Walker - Thinking Ahead


You were totally right; he boxed them in! :applause:

For reference:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8881482

[Cha]

1. Yes, he did! Thanks for the

reference, babylonsister~

[Born_A_Truman]

2. Dang! I wish I could rec this!

But a kick will have to do!

[goclark]

4. An a BOG R for this gem!

[grantcart]

3. Thanks It seems that the Pro 8 argument has been stripped down to a single

argument - "The voters voted for it"


In a Republic with guarantees for minority rights enshrined in the Constitution simply voting for it isn't enough, this is particularly true given the fact that THEY WERE RIGHTS THAT SAME SEX PARTNERS ALREADY HAD IN CALIFORNIA.

If they were granting rights not previously had then the bar would be lower but TAKING rights away requires some reasonable explanation beyond "I don't like it" from the voters.

How ironic would it be that far right loses this battle because they kept sending their children to fake law schools so that when it came to arguing their case they failed because of bad lawyers? (Of course even if they had good lawyers they still would have had a problem with the facts.)

[Hamlette]

5. legally speaking, he did something else that is very significant

the law has created over the years what is referred to as "protected classes". If a law singles out a protected class for different treatment, you must show a compelling interest. If a law singles out a group that is not a protected class, you only need to show a rational basis for the law.

We used to play this game in law school: what kind of law that applies only to blacks (a recognized protected class) would pass the compelling interest test? Basically none.

Walker did not get to the question of whether gays are a protected class which would have made huge law because gays are not recognized as a protected class under the law now and if he had found them a protected class, that portion of his decision would be subject to higher scrutiny. Walker said, basically, I don't even have to go there because the proponents can't even show a rational basis for the law. His decision says their only basis is in religion which has no place in a secular society.

I admit that the Supremes can just throw this reasoning out without a second thought BUT, they will have to do it with the same kind of "non logic" they used in Bush v Gore. Which is a huge blot on the name of all 5 who signed it as it does not conform to standards of law or judicial review.

Anyway, that's the hot topic we lawyers think will be a hot potato as the case moves forward. The rational basis test. Very smart of him, IMHO.