Gay marriage gets a key ruling

A ruling by a federal judge in California striking down a state law that bars same-sex couples from marrying was a long time coming.

More important than the substance of the ruling, which must go through the appeals process before anything is final, is that it finally gets this incendiary issue on the road to resolution in the federal courts, where the ultimate settlement must come.

Gay activists have long claimed a civil right to marry, but the legal fact is that no marriage right is specifically spelled out in the Constitution, and marriage doesn’t become an established civil right until the U.S. Supreme Court or Congress says it is.

Given our national political divisions, the cleaner path is probably through the courts. Once the matter is settled at the federal level, state laws will start to fall into line.

The ruling by California U.S. District Judge Vaughn Walker striking down a voter initiative banning gay marriage was noteworthy for its strong language against discrimination and also for the fact that it came from a Reagan appointee who was initially opposed by gay rights groups.

The matter next goes to the 9th U.S. Circuit Court of Appeals, and the losing side will  certainly appeal to the Supreme Court. The high court could duck the issue, but hopefully the justices will see the value to our country of finally settling this.

The federal lawsuit in California is separate from a state lawsuit in Hawai’i seeking to have the court impose the terms of the civil unions bill that was passed by the Legislature but vetoed by Gov. Linda Lingle.


Update: One of the the complainants in the dispute over House Speaker Calvin Say’s residency has received notice from state elections officer Scott Nago that a preliminary determination will be made by Aug. 9.

The complaint alleging that Say doesn’t live in the Palolo district he represents was filed by gay rights activists angry that Say didn’t call the House into special session to attempt an override of Lingle’s veto of HB 444.

The challenge of Say’s residency by backers of his Democratic opponent Dwight Synan isn’t universally supported in the local gay rights community and has exposed some deep divisions over personalities and tactics.

NOTE: For those interested in reading the full complaint against Say, I’ve posted it here.

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10 Comments on “Gay marriage gets a key ruling”

  1. Alan R. Spector Says:

    Dave- marriage has actually been ruled by the US Supreme Court to be a fundamental right. Two examples are 1967’s Loving v Virginia and 1987’s Turner v Safely. I believe that in the 8/4/10 US District Court decision in San Francisco in Perry v Schwarzenegger, Judge Walker applied this to same-sex couples (though I haven’t read the full ruling yet).

    Most people know Loving v Virginia since that is the famous ruling that overturned state bans on inter-racial marriage. Turner v Safley isn’t as widely known. This is ruling that guarantees the right of convicts to marry. Marriage is such a fundamental right that it cannot be denied to convicts in prison. So murderers and rapists who are incarcerated have a right to marry, provided it is a person of the opposite sex, but a law abiding gay person cannot marry a person of the same-sex unless he lives in MA, CT, VT, NH, IA, and DC.

  2. Shaloha Says:

    Another mistake riddled ideological post.

    The Judge was appointed by G.H.W Bush and not R. Reagan. It was in the bygone era when Republicans tried to appease Democrats by being non-partisan and moderate (which obviously worked for them!).

    In all of the verbiage, Dave omitted a single most salient fact: U.S. District Judge Vaughn Walker is a Gay man.

    Recusing himself due to the obvious conflict of interest would be a decent and normal behaviour for a sitting Judge. (I am related to many lawyers and Judges who find it almost unethical to act otherwise in this case).

    7,000,000 Californians vs. One Gay Activist. This is a Democracy in action, I must say!

    National surveys indicate that Liberals comprise at most 25% of the population. Yet the Liberal elites are insisting on ruling us with an iron fist thru their wealth and control of Media, Academia and Hollywood.

    See yah in the voting booth this Fall!

  3. Kolea Says:


    There is rarely unanimity within any community, so disagreement over the Say’s residency challenge is to be expected. Especially when the community in question has a lot to lose by offending a powerful legislator like the Speaker of the House.

    But let me suggest MY disagreement is not over the challenge. As I said, I think the challenge is fair and I also believe the Speaker is breaking the law by residing outside the district. I am also hearing good things about Dwight Synan, though I have not had the time to talk with him at much length. If I still lived in the district, I would be actively supporting him.

    Where I disagree with those LGBT advocates pushing this challenge is the way they are doing this. They are acting rather haughty (I think that’s the right word, though you are the wordsmith). They are wrapping this so much in the side-issue of HB444 that they are needlessly limiting support on the challenge to those who agree with BOTH the residency problem AND HB444. That is STOOPID. The two matters should NOT be combined in the minds of voters. The residency challenge has merits on its own. And many, perhaps most, voters in the district, are open to a discussion of whether the Speaker is in violation of the law and whether law-makers should be bound by the laws they write! That approach would help Synan.

    Instead, these activists are so eager to have everybody know this is revenge for Speaker’s ALLEGED role in the defeat of HB444, that they are forcing voters to view the residency challenge through THAT lens. As I said, “STOOPID”!

    I understand the desire of HB444 advocates to be able to claim they have helped defeat a politician because of the politician’s opposition to Civil Unions. It would be a counter-point to the oft-heard fear that support for HB444 makes one vulnerable to electoral defeat. I get that. But these “Jack the Giant Killer” wannabees are unfairly characterizing the Speaker’s role in this in their desire to cast him in the role they need for their melodrama.

    I happen to think the internal workings of the House can use a shake-up. I think the Speaker has worked hard for the people of Hawaii for a long time, but it is PROBABLY a good time for him to retire and let new leadership emerge. Dwight Synan is unlikely to defeat the Speaker, but a good solid challenge might prod Speaker Say into seriously considering moving on to the next stag of his life.

    But Synan’s chances of victory–or even a strong showing– are being undermined by the amateurish antics of these zealots, too eager to play a public role as avenging angels. It is unseemly. It is uncool.

    And, “it is worse than a crime, it is a mistake.”

  4. David Shapiro Says:

    If anybody’s interested in reading the full complaint against Calvin Say, I posted a copy here.

  5. shaftalley Says:

    if we finally get the civil unions for gay people finally squared away here in hawaii soon,i hope the ruling class will allow civil unions between 2 heterosexual widows and 2 heterosexual widowers or batchelors for tax purposes and the other benefits that the authorities allow.

  6. Alan R. Spector Says:

    Shaloha, shaloha. Long time no chat. Sorry mate (as my Aussie husband would say) but Walker’s sexual orientation is not relevant here. This trial case is about inconvenient things that our opponents don’t like. I am referring to facts.

    Not even our opponents made an issue out of Walker being gay. How would a judge be any more or less qualified to hear this case based on his sexual orientation? Again, this was a trial based on evidence, expert witnesses, testimony, and facts, not conservative religious dogma. Our opponents couldn’t even defend their own positions under the scrutiny of a trial. Even they conceded this and were unable to provide any facts to back up their erroneous claims as to why CA should ban marriage for same-sex couples.

  7. charles Says:

    Boy, if a judge’s sexual orientation is the basis for recusal, the justice system would grind to a screeching halt.

  8. Michael Says:

    I don’t blame anyone for voting against an issue, since an issue is being forced down ones throat. There are those who do. I would agree in many issues but force someones 2 cents down my throat and I disagree to spite that person.

    A selfish issue that will benefit only a few.
    I say let it happen and the key will open Pandoras Box. More good or bad things will happen.

  9. Wayne Says:

    I’m looking for information on this one as I try to appreciate where the wranglings will take us.
    Does overruling a ban, in this case non-heterosexual marriage, legalize it?

  10. David Shapiro Says:

    Wayne, if the ruling stands, the ban will be lifted and it reverts to the previous situation where the marriages were legal. Still to be determined is if the judge will stay his order and leave the ban in place while his ruling is appealed.

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