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August 4, 2010

Calif. Rabbis Respond to Prop. 8 Ruling

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Cantor Evan Kent
Temple Isaiah

There are moments in our lives when we are aware that we are part of history- and yesterday was one of those moments.  It is perhaps only coincidental that Judge Walker’s decision was announced just days before Rosh Chodesh Elul- a time in our calendar where we begin the accounting of our souls and begin the process of introspection and teshuvah.  But for me, as a gay man and a cantor, the decision resonates with the words of the Un’taneh tokef.  Walker’s decision is perhaps that “sounding of the great shofar”  and the “Still small voice” that is heard will be the opening of the hearts and souls of our populace as they understand the jurist’s wisdom.

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Rabbi Dov Fischer
Young Israel of Orange County and an adjunct professor of law at Loyola Law School

First, the judge’s decision has no meaning either way.  Judge Vaughn Walker, who handed down the decision unilaterally overturning the voters of California for the second consecutive time, happens to be a real mensch of a guy.  I argued a case before him, and the experience and outcome was exceptionally gratifying.  He has been around a while, and he is the senior district judge (i.e., the leading federal trial-court judge) in the San Francisco-area federal district.  He also is one of only two federal judges in the United States who is openly Gay.  Therefore, everyone knew that, as a liberal and Democrat-appointee and an openly Gay judge, he would find Proposition 8 unconstitutional.  The only question was how long it would take.

In American law, there is a concept called “justiciability.”  Under that concept, the United States Supreme Court typically cannot enter into a dispute and hand down its ruling until a federal appellate court or a state supreme court has ruled on an appeal from a lower trial court.  Only then, may the losing side in the appeal seek certiorari (i.e., final appellate review by the Supremes).  Therefore, in order for California’s Proposition 8 to go before the U.S. Supreme Court, there first had to be a trial in federal district court, then there must be a mid-level appeal . . . and only thereafter can the losing appellate party seek Supreme Court review.  There is no way to short-cut the process, except in certain unusual situations.

So Gays who want to marry in California needed to file a lawsuit against Prop 8.  They could have filed their appeal in any federal district where California’s Prop 8 threatens to discriminate against them – namely, any of the federal districts in California.  Thus, they could have brought their action before a conservative judge in San Diego . . . or in San Francisco perhaps before one of the only two federal judges in America who is openly Gay.  Their choice was sensible.

Now that District Judge Walker has ruled for the Gay plaintiffs, the defendants who support the ban on Gay Marriage will appeal to the U.S. Court of Appeals for the Ninth Circuit.  As it happens, that appellate court is perhaps the most liberal appellate district in the United States.  Sixty percent of its judges are Democrat appointees, and 40% GOP appointees. Thus, the Ninth Circuit consequently is the most frequently reversed appellate circuit in the United States. See, e.g., Henry P. Wickham, Jr., “Adult Supervision for the Ninth Circuit Court of Appeals” http://www.americanthinker.com/2006/10/adult_supervision_for_the_nint.html

There are currently 28 or so appellate judges on the Ninth Circuit.  Appeals are heard by panels of three.  Which three get assigned to be a panel for which appeal is a matter that is random and impartial.  As a result, odds are that the panel will be comprised of two liberals and one conservative, and the Ninth Circuit almost surely will agree with Judge Walker and will affirm his decision by a 2-1 vote that Prop 8 is unconstitutional.  However, there is always an outside chance that, by a quirk, two conservatives would be on the three-judge panel. If, through such a quirk, the appellate panel vote comes out 2-1 to uphold Prop 8 banning Gay Marriage, then the Gay plaintiffs will seek an “en banc” hearing.  In an “en banc” hearing, the circuit agrees to a “do-over,” to hear the appeal all over again, this time before a mega-panel comprised of all the judges in the circuit. (Actually, for reasons extraneous to this discussion, the Ninth Circuit is so over-sized that the “en banc” court would be comprised of only eleven of the 28 judges for the rehearing.  That would almost surely result in Judge Walker being affirmed by a vote of 7-4 or 8-3,  with Prop 8 struck down.)

At that point – and only at that point – the side that loses the appeal (probably the side that supports traditional marriage) will appeal to the U.S. Supreme Court.  Although the Supreme Court agrees to hear only a minuscule percentage of appeals to them, they will take this one.  In all probability, after all the briefs are filed and the case finally is argued in open court, 4 of the 9 justices will rule in favor of Gay Marriage – the three Jewish justices and Justice Sotomayor.  And in all probability, 4 will rule in favor of the voters and Prop 8: Chief Justice Roberts and Justices Alito, Scalia, and Thomas.

That means that Justice Kennedy probably will decide whether the voters of California constitutionally may vote to limit the definition of “marriage” to one man and one woman – or whether such a restrictive definition unconstitutionally infringes on the rights of gays to marry.  Justice Kennedy’s decision probably will impact on the direction of at least 45 states, and it will become the precedent that will define the issue for a generation or two.  By contrast, if he permits “Gay Marriage,” then I expect that Utah polygamists may seek to test the parameters of the ruling to see whether polygamy could be legal.

As a result, we all are waiting to see what Justice Kennedy decides.  Yesterday’s decision by District Judge Walker carries no significance.

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Rabbi Neil Comess-Daniels
Beth Shir Sholom

Yesterday’s ruling that clearly states both the historical and legal arguments for declaring the unconstitutionality of Proposition 8 is a victory for all Americans.  Judge Walker’s decision re-enforces what is not only an American value, but an American right – concretized in the Constitution.  Here it is (Article XIV): “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of theUnited States.  Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”  We Jewish Americans have depended upon this Article many times in order to insure our equal status as in this country.  We have depended upon this Article not to be voted away by the majority.  That is what happened to Americans who happen to be gay or lesbian in California.  The majority of Californians voted away their right to be fully American.  We in the Jewish community have an obligation to see that Judge Walker’s ruling is defended and validated all the way to the Supreme Court if necessary.  If we do not, then we have abrogated our privilege to seek protection under Article XIV. 

We are commanded not to abuse the stranger.  How much the more so should we not make strangers out of our fellow Americans and our fellow human beings.  I look forward to the day when I will once again be able to freely and proudly say “by the power vested in me by the State of California” when I officiate weddings for gay and lesbian couples.

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Rabbi Morley T. Feinstein
University Synagogue

When God saw all that God made during creation, God declared all of it “very good.” God made no distinction between men and women, black or white, old or young, gay and straight.  God didn’t offer “moral disapproval” at the dawn of creation.  Overturning Proposition 8 allows for the full freedom of monogamous choice for all God’s children, who were all made b’tzelem elohim,  in God’s image. 

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I have spent a long time considering the various points of view on both sides of the issue.  I have finally decided that people who are in love and want to have a legally commited relationship should have the right to do so whatever their sexual orientation.  Congratulations to the judge and his wisdom.

Comment by ed karesky on 8/05/10 at 10:53 pm

Dear Rabbi Dov Fischer,
In this case you have completely false information that is unfortunate and I do not know where you received your information from. You state that Judge Walker is a “liberal and Democrat-appointee” when in fact he was first nominated by Reagan and because of his rulings against the gay community Nancy Pelosi worked hard and defeated the nomination. Then later George H.W. Bush nominated him again and succeeded in getting him through. He is a conservative man and his sexual orientation has nothing to do with the way he has run his courtroom. And by the way he has never spoken about his personal sexual orientation, it has not been confirmed, nor denied.

Comment by Shira Gevirtz on 8/11/10 at 6:17 am

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