Author: Andrew Sullivan

Vijay Kumar, 32, dehusks a coconut with his teeth in Bangalore on August 3, 2010. In an attempt to enter the Guinness Book of World Records, Kumar dehusked three coconuts within a minute. By Dibyangshu Sarkar /AFP/Getty Images)

It's a quote I never tire of citing, because it is true:

The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed.

Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs.

Today brought that, yes, home.

I'm not through with it yet but it's hard to disagree with this reader:

A reader wrote, "His clerks made that trial record their bitch, and Judge Walker took that dog for a walk."

To me, reading the opinion, this is a gross understatement.  Judge Walker's opinion reads more like, "Plaintiffs proved all their points and demolished the proponents' witness by showing that he was a mere pundit not an expert.  Proponents failed to do anything substantive."  The subtext reads, "And I [the judge] feel like fining the proponents for the amount of time they made me waste; I am resisting the urge to slap them around."

Once you get done with that, the sheer breadth and weight of the facts assembled make me wonder how in the hell any judge would vote to overturn this case.  Appellate judges can't really overturn facts; they can only point out errors in admissibility or weight given to evidence and order a retrial.  Given the factual record assembled, I cannot fathom that a retrial would result in anything different except giving the plaintiffs more evidence and time to develop their case.

Scalia, dissenting in Lawrence vs Texas:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples…

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Walker:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

Given the precedents of Romer and given Lawrence, how would Scalia disagree with Walker's logic? More to the point, unless he wants to reverse his own decisions in Romer and Lawrence, how would Anthony Kennedy disagree?

I am increasingly confident that when this case eventually gets to the Supreme Court, the logic of equality will win. Once you have conceded that gay people are a class, and that their sexual orientation is integral to their lives and immutable, and that they are not defined by sex acts that can be performed by gays and straights alike, then the ban on marriage equality is left without anything but an amorphous claim to heterosexual supremacy – or a judicially irrelevant appeal to simple custom (already invalid in five states and many countries) – to support it.

Walker is right. What this comes down to is whether gay people are inferior to straight people, and whether their citizenship is thereby to be deemed inferior as well. The entire weight of the American tradition stands athwart the imposition of a second-class group of people and declares: No!

Know hope.

A reader notes:

The Prop 8 case now makes three consecutive judicial opinions holding that laws prohibiting same-sex marriages have no rational basis. Interestingly, all three were authored by judges who were nominated or appointed by Republicans. Today’s Northern District of California opinion was authored by Judge Vaughn Walker, who was nominated by Ronald Reagan and George H.W. Bush. Last month’s District of Massachusetts opinion was authored by Judge Joseph Tauro, who was nominated by Richard Nixon. The Iowa Supreme Court (unanimous) opinion was authored by Justice Mark Cady, who was appointed by Republican Governor Terry E. Branstad.

Sometimes, reason wins.

Chait smacks Dan Senor around:

Senor is arguing, I support freedom of religion, and I believe that your group doesn't support terrorism, but other Americans don't feel this way. Of course this is an argument for caving in to any popular prejudice or social phobia whatsoever. Hey, I'm happy to let a black family move into the neighborhood, but other people here think you're probably crackheads who spray random gunfire at night, so in order to prevent racial strife you should probably live somewhere else.

This episode is a major statement about American pluralism, minority rights and America's ability to make the necessary divide between moderate and extremist Muslims. A lot of people are going to eventually feel ashamed about where they stood.

It is something of a milestone that a Republican governor and a Conservative prime minister and a Republican lawyer have all reached the same conclusion. Arnold:

"For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.

Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people."

But the battle now goes to the Supreme Court and Anthony Kennedy. And one is mindful of Scalia's dissent in Lawrence.

(Photo: Prop 8 opponents celebrate the ruling to overturn the ban on gay marriage outside of the Philip Burton Federal building August 4, 2010 in San Francisco, California.US District Judge Vaughn Walker announced his ruling to overturn Prop 8 finding it unconstitutional. The voter approved measure denies same-sex couples the right to marry in the State of California. By Justin Sullivan/Getty Images.)

A reader writes:

What strikes me about Judge Walker's opinion is the amount of evidence he included there – numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can't say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed – as everyone knows it will be – he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.

Whether the appeals court overturns on the application of law is a different issue. But it's not going to be a fact issue that does it. And then the way that he completely flicks away Prop 8 proponents' experts' testimony. The man is smart.