OK

Depending on what study and what definitional criteria one wants to use the number of LGTB citizens is between 4% and 20%. It does not matter at all to me what this number is as I have had gay and lesbian family members, close (best) friends and acquaintances all my life. They were never "my lesbian friend" or "my gay cousin" they were just the people in my life and that they were family or a good friend has always been a hell of a lot more important than who they liked to frolic under the sheets with.

Still the fact of their sexuality was always an issue. Even if I didn’t care, the rest of the world seemed to and this made them have to lead their lives differently for fear of being attacked or just legally discriminated against. It still breaks my heart on a daily basis to see good people who just want to live their lives like every other citizen having to hide or downplay what and who they are because of the irrational prejudice against them.

"Originally posted at Squarestate.net"

Yesterday Judge Vaughn Walker brought down a decision that goes a long way (but not all the way) to addressing one of starkest bits of inequality, namely the denial by popular vote of the right of California gay citizens to marry. The ruling is only the first step as the intent of the lawyers filing it has always been to get to the Supreme Court of the United States and get a firm decision that all such bans are unconstitutional.

Judge Vaughn has done a fantastic job with the trial and with the written opinion that he issued. During the trial he ran a tight ship and acted as a judge should by asking probing questions of the counsel and witnesses. By taking a couple of months to look at the transcripts and think about the credibility of the witnesses and the evidence before hearing final arguments he was able to ask questions that would either poke holes in his preliminary thinking or bolster it. The list of questions that he wanted the opposing sides to answer at closing arguments assured that he would hear the thinking of both sides.

His verdict in this case is an epic bit of law. He has methodically and completely addressed every aspect of the case and universally found for the right of gay citizens to marry. This is a very important aspect as the case will be going to the Appellate Courts. In our legal system the role of the appeals court is not to find fact but to look only at finding of law. It is the role of the District Court to find the facts. This is probably the biggest part of the whole decision.

Judge Walker issued 80 findings of fact. These are now the basis which the merits of the case should be judged. They will also be referred to in any other case that comes before a federal judge. Among the critical ones is that marriage is in fact a right; that there is no evidence that sexuality can be changed through therapy and other means (even though individuals may occasionally choose to have sex outside of this orientation); and that children raised by gay parents are just as likely to have a good outcome as those raised by straight parents.  

These are now all accepted legal facts. It is true that another District Judge in another case might create a separate finding of fact that would dispute some of these, but up to now this has not been the case with a Florida judge also finding that there is no evidence that non-gay parents are better than gay parents.

Judge Walker also did not make a narrow ruling in this case. He had the option of three ways to overturn Proposition 8. If he found that gay citizens where a distinct minority, if there is not a good enough reason for the California to discriminate against gay citizens or if it is a fundamental right for gay citizens to marry. If any of these were true then he could overturn Prop 8.

Instead of taking the easy route with a finding that there was no compelling state interest in banning the marriage of gay citizens, Judge Walker went for all three. He found that gay citizens are indeed a specific minority and deserve protection. He found that there was no compelling reason for the state to deny them the right to marry (based on the changing gender roles) and that it is indeed a fundamental right of all citizens to form a family with the person they of their choice.

By ruling in this fashion he has set the stage to make it quite difficult for the 9th Circuit Court of Appeals to overturn the case. He has stayed in on the conservative interpretation of the law, and used the finding of fact as the building blocks for his decision. There is not a lot of wiggle room for Appeals Court to overturn him. This is Judge Walker’s standard procedure. He is rarely overturned since he does not stick his neck out, but instead sticks to the facts presented and the law as it is currently understood.

Is this issue over then? No, not by a long shot; even with this decision there is always the chance of judges not being as scrupulous about the process as Judge Walker. For older Americans (and lets face it most of the Federal Judges are older) this is a visceral issue that their thinking on was set at a time when the acceptance of alternate sexual orientation was much, much lower. It is possible that they will not be able to put aside the prejudice they grew up submerged in and will try to find a way to over turn the District Court’s ruling.

If it is not overturned this ruling has far reaching consequences. The finding of fact that homosexuality is not a choice and gay citizens are a distinct minority not only moves to invalidate the marriage bans, but it will call into question the discriminations in housing and employment against gay citizens that is allowed in 33 states. If that part of the verdict stands then these states will be open to law suits and so will those who are currently using sexual orientation as a criteria for hiring or renting.

Things are far better for the LGBT community than they were when I was a kid working in a theater. However better can never be the goal. There must be full equality for our gay citizens. It is the right thing to do for them as people, but it is also what a mature democracy and a world leading nation should do. There has never been a time in this nation where things were not made better by extending rights to the citizenry. This is the premise of our nation, that we have rights which can not be taken away by the will of the majority. It is a good day when we actually stand up for this premise, even for the forces of intolerance who have been pushing against full marriage rights.

Making it possible for more of the population to form permanent legal bonds as families with all the rights and responsibilities that entails strengthens communities. It increases the share of the population who have a stake in the stability of the community. It brings a level of confidence to the partners and the children that they are not living in a legal limbo and subject to the whims of the meanest spirited person they meet. The Radical Right should be happy that this is the outcome of full marriage rights. Of course they will not. They are intent on finding people to hate and fear. It is very sad that they would pick their fellow citizens.

In the end I am going bask in the idea that the gay and lesbian folks I know and love are one step closer to being equal before the law. This is not over, but any time one gets a win on one’s issues, it is time to take a deep breath and smile.

The floor is yours.

Originally posted to Something the Dog Said on Thu Aug 05, 2010 at 06:15 AM PDT.

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