As I mentioned in an earlier post, lawyer Ted Olson, who mapped the legal strategy, got exactly what he aimed to get out of the U.S. District Court in San Francisco. Yesterday Judge Vaughn Walker issued an opinion declaring gay marriage to be a fundamental right under the U.S. Constitution. Many gay activists were skeptical of even filing such a lawsuit, fearful of the legal repercussions if the case was lost.

Analysis of Judge Walker’s decision is ongoing today, and I’ve offered mine. However, I want to offer a slightly different analysis here, because I think the probabilities are that the Proposition 8 decision had as much to do with "inside baseball" and relationships between people as it did with the facts and law.

Let’s examine what Ted Olson, the architect of the legal victory, and Judge Walker have in common: 1) the both were born in Illinois in the early 1940s; 2) they both went to law school in the San Francisco Bay Area (Walker, Stanford; Olson, Berkeley); 3) after law school they both went to work for major California law firms (Walker: Pillsbury,… Read More

GOP Attorney General nominee on the Prop. 8 ruling: "Barring a law that is unconstitutional on its face, the proper role of an Attorney General is to enforce and defend the will of the People as manifested through the initiative or legislative process. The will of the People should be respected and not overturned easily or lightly. Today’s decision by a federal judge overturning Proposition 8 should be appealed and tested at a higher level of our legal system. The California Supreme Court upheld Proposition 8 by a 6 to 1 vote and declared it to be constitutional. Likewise, if the voters had approved an initiative legalizing same-sex marriage and a federal judge had ruled against it, I would also support an appeal of that decision."… Read More

A just released California Fair Political Practices Commission report is now speculating on the need of that agency to regulate content of speech all across the internet, including Facebook accounts, Twitter, YouTube, and other networking sites. The logic behind this move is that the founding fathers of political regulation in California could not "have anticipated that these types of communicating a campaign message would ever exist." Big deal. I’m sure Ben Franklin never contemplated gay marriage as a fundamental constitutional right, either, and that didn’t take changing the constitution.

The regulatory posture of the FPPC is sadly going in a different direction than Federal court cases and one wonders where the dreamers-up of this type of stuff will go next. I, for one, think outlawing tweets that contain express advocacy for or against a candidate for public office has no rational basis or legitimate state interest. But don’t tell Judge Vaughn Walker that.… Read More

San Francisco’s Chief Judge of the Federal district court, Vaughn Walker, ruled that California’s Proposition 8 defining marriage as between a man and a woman, passed by California voters, was unconstitutional today.

Ugh.… Read More

The 136 page ruling issued by U.S. District Court Judge Vaughn Walker on Wednesday on California’s ban on same-sex marriage, known as Proposition 8, contains a number of findings of fact as well as conclusions of law. It is a ponderous document. But I’ve reviewed the substantive "conclusions of law" declaring Prop. 8 as unconstitutional, and I have have an opinion, and some experience in winning Federal civil rights cases, so here it is….

My biggest problem, and perhaps the biggest legal hole in the decision, is Judge Vaugh’s conclusion of law that Proposition 8 involves a fundamental constitutional right. The reality is, the U.S. Constitution doesn’t mention marriage anywhere, let alone gay marriage. It was certainly not a factor in the discussions of our Founding Fathers. ( I’m pretty sure Benjamin Franklin would have busted his corset if it was ever brought up.) Gay marriage has never before been found to be a constitutional right in any court in the United States. So what Vaugh has done is set the stage for ground-breaking further legal review and a final… Read More

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Read his FlashReport column here.… Read More

A ruling on the constitutionality of California’s Proposition 8, defining marriage as between a man and a woman, is expected from the San Francisco Federal court this afternoon……stay tuned.… Read More