The real question is: Why in the world does ANYONE think that it's the right thing to do to place the civil rights of a minority group up for approval or disapproval by an uninvolved majority? This would be like asking states in the early 1960s to decide on their own by referendum whether to allow African Americans to sit at the same lunch counters as whites. If a majority of citizens in Alabama or Georgia or South Carolina decides to not allow it then, sorry folks, majority rules, right?

Under no circumstances should issues be left up to a vote that are matters of personal choice that don't harm or affect anyone else beyond those adults making that choice. Same with marijuana. Everyone with common sense knows that pot should be legalized for medicinal as well as recreational use everywhere in the U.S. Who cares if someone's neighbors don't approve of adults smoking pot in their own home? The answer to that is don't come over to visit if you know your neighbor is smoking herb at that time but NOT to put it on a ballot and ask a majority of people who have nothing to do with the issue to decide on the civil rights of others. That's ludicrous.

Brad, you nailed it in the first sentence. True conservatives will be overjoyed about the removal of burdensome government regulation on gay corporations(=people).

Next on the teabagger agenda?

Repeal the entire 14th amendment.

When he was running for president, William Jennings Bryan was asked by a reoporter why he was a Democrat, to which he replied, "That's perfectly simple, because my father was a Democrat." (Or something to that effect) The follow-up question came swiftly: "But that's absurd; what if he had been a horse thief?" "Well, then, I would have been a Republican."

True, this is a simplification these days, as the Democrats are (by and large) just corporatists of a slightly different stripe than their Republican counterparts. I think it's telling, though, that the very tiny handful of Congresscritters who are worthy of any respect at all (Kucinich, Grayson...) are Democrats, testimony to great principles that were once OK in 'murka...

IMVHO, the choice of solutions is simple: America: Save it or screw it! (Disclaimer: I, myself, decided to screw it twenty years ago, and am now living happily at an undisclosed location in Europe.) Come on over!

Brad: A correction is in order regarding the CNN report that Judge Walker granted a stay pending an appeal.

The order [PDF] merely granted a temporary stay pending an expedited hearing before Judge Walker on the proponents motion for a stay pending the outcome of the appeal.

Given that the proponents must demonstrate the likelihood of success and having now reviewed the content of Judge Walker's decision, it appears exceedingly doubtful that Judge Walker will stay the permanent injunction against enforcement of Proposition 8 pending the outcome of an appeal.

I'll post a second comment that will explain why.

Prediction: Both the 9th Circuit and U.S. Supreme Court will uphold Judge Walker's decision.

Reason No. 1. Appellate courts are required to give deference to the factual determinations of a trial court.

It is this point that has led even legal scholars who supported Proposition H8 to concede that an ultimate appellate defeat is likely. See, e.g., today's Los Angeles Times:

John Eastman, a conservative scholar who supported Proposition 8, said Walker's analysis and detailed references to trial evidence were likely to persuade U.S. Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.

"I think Justice Kennedy is going to side with Judge Walker," said the former dean of Chapman University law school.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker's findings that homosexuality is a biological status instead of a voluntary choice, that children don't suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality "are going to make it more difficult for appellate courts to overturn this court's ruling."

2. The disparity between the factual presentations of the competing parties was so great that if this epic legal battle had been a prize fight, a referee would have stopped it in the first round.

In a decision which legal scholars should regard as a masterpiece of judicial craftsmanship, Judge Walker, providing extensive citation to the record, found the testimony provided by all of the plaintiff's witnesses, both expert and lay, to be credible and persuasive.

Judge Walker took a dim view of the Prop H8 proponents' presentation.

"Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court."

Judge Walker noted that where the proponents' legal counsel represented that his witnesses feared for their safety if their testimony was publicly recorded, "The timeline shows...proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated."

Of greater embarrassment for team Prop H8 is the fact that "Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims."

The Prop H8 supporters produced only two expert witnesses. Political Science Prof. Kenneth P Miller provided testimony on a minor collateral issue pertaining to gay and lesbian political power. The court found that while Prof. Miller had expertise in the field of political science generally, he lacked knowledge and expertise in the area of gay and lesbian political power.

The court expressly found that the proponents' key expert witness, David Blankenhorn, founder and president of the Institute for American Values, who "testified on marriage, fatherhood and family structure...lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent
testimony in support of proponents’ factual assertions."

Judge Walker proceeded to set forth a litany of reasons to support that conclusion, for example:

Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and
the opinion Blankenhorn proffered.

Appellate courts are especially loath to overturn a trial judge's credibility determinations because it is the trial judge, and not the appellate court, which has the first hand ability to observe the demeanor of witnesses.

3. Judge Walker's Equal Protection Analysis is compelling.

Judge Walker's factual determination of a biological basis for homosexuality would mean that it is an immutable characteristic that would trigger the "strict scrutiny" standard as applied to any legislation which sought to discriminate between heterosexuals and homosexuals. This would make Prop H8 presumptively unconstitutional.

However, he did not stop there. Even if strict scrutiny did not apply, Prop H8 would not survive the rational basis test because he found there was no legitimate state interest in preventing homosexual marriage.

Right-winger in favor of Prop H8? Go figure...

Read it and weep...
http://www.sfgate.com/cg...3-4b23-8b5c-37ef8ce633cb

If only the Supreme Court had half the integrity and intelligence of Judge Walker.