Patterico's Pontifications

8/4/2010

Prediction: California’s Anti-Gay Marriage Amendment Will Be Struck Down Today (UPDATE: Prediction Comes True)

Filed under: General — Patterico @ 7:33 am

[UPDATE 4:54 p.m. My prediction came true: the judge struck down Prop. 8.

Well, it's not like it makes me Carnac or anything.]

The L.A. Times says the decision will be today. I have this funny feeling the judge is going to find the measure unconstitutional.

Either way, it is likely to be the story of the day.

Good news for an Obama administration that doesn’t want to talk about that vote in Missouri.

143 Responses to “Prediction: California’s Anti-Gay Marriage Amendment Will Be Struck Down Today (UPDATE: Prediction Comes True)”

  1. I don’t think Dems really want to be tied to this decision either. It won’t be as popular as our Betters hope and demand.

    quasimodo (4af144)

  2. Wow, between this, AZ decision, Obamacare vote, DISCLOSE Act, and all the rest … the democrat process is getting Mighty Inconvenient for the Ruling Class.

    Time to go to elected Judges. It might cause them to respect democracy more if we subject them to it.

    Travis Monitor (483b36)

  3. Wiki says “Walker is one of two federal judges publicly known to be gay.” I know, I know….just sayin’.

    foxlets14 (0d64d2)

  4. I have this funny feeling the judge is going to find the measure unconstitutional decide he does not like it.

    The fiction that what goes on in a courtroom has anything to do what what we think of as “law” is long overdue to be exposed. On those grounds at least Walker can be considered to be doing a public service.

    Subotai (fec082)

  5. well on Judge Walker’s bias issues, i wrote this:

    http://allergic2bull.blogspot.com/2010/02/judge-in-proposition-8-trial-is-gay-and.html

    The upshot of that post is this. If Walker is gay, then this case is literally going to decide if he can ever marry anyone he is likely to want to marry. I don’t know how we can possibly say this won’t at least lead a reasonable person to question his impartiality. its madness.

    He shouldn’t have sat on this case at all. i also link to alot of stuff from ed whelan that shows other ways the judge has shown he actually had an axe to grind, here.

    The irony is that the side that should win (pro-propositon 8) might actually benefit from his obvious bias. i remember saying when kagan was rumored to be gay that this would probably be a setback for gay rights, if only because she would then never dare to be the fifth vote in favor of gays, especially on the issue of gay rights. This judge might decide that if a gay judge decides that the constitution demands gay marriage, that everyone will say “he said it because he is gay.” And he might feel it would rob the moment of its legitimacy. It is precisely for this reason that both sides can challenge a judge for bias, because both sides might get screwed, depending on how self-conscious and capable of shame the judge might be.

    And let me be clear. that assessment has nothing to do with any moral assessment of homosexuality. I can put myself in his shoes very easily. i live in Virginia which is the state whose laws were struck down in Loving v. Virginia. so imagine i lived in virginia in the early 1960′s. And in real life, i am married to a woman who is not white like me. so imagine in my scenario that at that time i loved, but was not married to, the same woman.

    Do you think i could possibly be impartial? do you think i could rule on my own ability to marry the woman i loved neutrally? of course not. so in that situation, i would have to step aside. its as simple as that.

    So whatever the decision is, the judge shouldn’t be making it.

    Aaron Worthing (A.W.) (e7d72e)

  6. btw, the thing created an emoticon without me meaning to. i meant to write “(proposition eight)” only i used the number and apparently 8 followed by ) becomes 8)

    Aaron Worthing (A.W.) (e7d72e)

  7. Funny feelings came come from funny places. Example: last evening the Defendants filed a motion to the trial judge for a stay of the effect of the ruling pending appeal. No inside knowledge, special insight, peculiar genius, analytic expertise or mystical intuition required to figure what that means.

    If one could accurately predict the outcome of a trial from simply observing the sexual orientation of this trial judge, explain why one could not predict the vote pattern of Justice Clarence Thomas from the color orientation of his skin.

    Anyone with the least sophistication in how trials go who followed how this trial unfolded could tell the plaintiffs case went as planned and the defendants case dissolved — mostly if not completely from failure to call witnesses to support substantive points, from expert witnesses declining to attend for cross-examination, and, as a result of the first two factors, from the lawyers for the defendants being unable to tie their submissions to evidence. Such situations are not infallible in predicting outcomes, but remain fairly reliable.

    shooter (32dc25)

  8. shooter

    the whole case was bull. you don’t determine “intent” that way. from start to finish it was a farce.

    the whole thing is a farce. the california constitution cannot be reasonably interpreted to allow for gay marriage absent a statute to that effect. so when the S.C. of Cali said that it did, they deviated from the actual constitution. so proposition 8 is justified if only because it was restoring what the constitution said before the judicial amendment.

    Aaron Worthing (A.W.) (e7d72e)

  9. btw, the stay shooter mentioned is here. http://www.mercurynews.com/news/ci_15675497?nclick_check=1

    There is not much in the story indicating that the defendants have any specific info, so it might be nothing more than a bad feeling, just like Patterico has. Or maybe they are just covering every possibility.

    Aaron Worthing (A.W.) (e7d72e)

  10. If Judge Walker defers to Supreme Court and Ninth Circuit precedent, he will dismiss the case.

    Only the Supreme Court can overrule its precedents, and only the Supreme Court or the Ninth Circuit can overrule Ninth Circuit precedent.

    We do not need another Judge Bataillon.

    The fiction that what goes on in a courtroom has anything to do what what we think of as “law” is long overdue to be exposed. On those grounds at least Walker can be considered to be doing a public service.

    Some judges are perfectly willing to overturn precedent, even higher court precedent, to suit their agenda.

    Anyone with the least sophistication in how trials go who followed how this trial unfolded could tell the plaintiffs case went as planned and the defendants case dissolved — mostly if not completely from failure to call witnesses to support substantive points, from expert witnesses declining to attend for cross-examination, and, as a result of the first two factors, from the lawyers for the defendants being unable to tie their submissions to evidence. Such situations are not infallible in predicting outcomes, but remain fairly reliable

    There should not have been a trial at all.

    The factual issues are irrelevant. It is not as if the defendants were denying that Proposition 8 was passed, or that it limits marriage to man and woman. The judge should have dismissed the case via summary judgment and should have only held a trial if a higher court remanded the case for trial. If was not up to the judge to go ahead of existing Supreme Court precedent.

    Michael Ejercito (249c90)

  11. But, ME, you are arguing the world BO!
    Everything has changed (dogs and cats, etc.).
    Judges, just like our elected officials, are free to make it up as they go; for, as has been noted by that preeminent Constitutional scholar N.Pelosi, they have to decide the case to enable everyone to know what’s in it.

    AD - RtR/OS! (88472e)

  12. Judges, just like our elected officials, are free to make it up as they go; for, as has been noted by that preeminent Constitutional scholar N.Pelosi, they have to decide the case to enable everyone to know what’s in it.

    I wonder how supporters of this type of behavior would react if a judge upheld a ban on interracial marriage on the “basis” that black people would not be equal in such marriages.

    Michael Ejercito (249c90)

  13. Cui Bono? Gays and LDS – plural marriage will be making a come back and the Polygamy Manifesto will be a thing of the past.

    Flashman (7d8726)

  14. As judges (in this case a wildly biased one) keep striking down laws passed by a majority of the electorate, they make a mockery of democracy–but help us at the ballot box in ways that will astonish them.

    Kevin Stafford (abdb87)

  15. As judges (in this case a wildly biased one) keep striking down laws passed by a majority of the electorate, they make a mockery of democracy–but help us at the ballot box in ways that will astonish them.

    We are a republic for a reason.

    The problem is with the legal system that shed itself of all common sense in favor of political whimsy.

    quasimodo (4af144)

  16. We are a republic for a reason.

    The problem is with the legal system that shed itself of all common sense in favor of political whimsy.

    Can one conclude from the original public understanding of the 14th Amendment that banning same-sex “marriage” contradicts it?

    Michael Ejercito (249c90)

  17. We are a republic for a reason.

    We’re (allegedly) a democratic republic. Hard to believe considering what the ruling class gets up to, but that’s what we are in theory.

    Subotai (a1d05e)

  18. Anyone with the least sophistication in how trials go who followed how this trial unfolded could tell the plaintiffs case went as planned and the defendants case dissolved

    Anyone with the least sophistication in how trials go knows that the “judge” in this case had decided the outcome long before the first witness was called.

    Subotai (a1d05e)

  19. The 14th amendment does not require the creation of “rights” out of gossamer, rainbows fancy or unicorn farts.

    quasimodo (4af144)

  20. let me add that we should calm down and reduce the gnashing of teeth. the judge hasn’t announced his ruling yet, after all.

    i say that, having gnashed my teeth a little.

    Aaron Worthing (A.W.) (e7d72e)

  21. Baker v. Nelson was the rejection of an appeal ( PDF format ) that alleged that Minnesota’s refusal to issue a marriage license to a same-sex couple violated the equal protection and due process clauses of the Fourteenth Amendment, and was an unwarranted intrusion of privacy in violation of the Ninth and Fourteenth Amendments. The Supreme Court dismissed the case for “want of a substantial federal question”. As the Supreme Court explained in Miranda v. Hicks, a dismissal for that reason consitutes a decision based on the merits. The Ninth Circuit had cited Baker as controlling in Adams v. Howerton (and of course, the district court is bound by Ninth Circuit precedent). And according to Rodriguez de Quijas v. Shearson/American Express, Inc.” If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” This same rationale applies to the district court deferring to the Supreme Court and Ninth Circuit whether or not their precedents apply.

    The Supreme Court can, of course, overrule or limit the scope of Baker, just as it can do so with Reynolds v. United States, Davis v. Beason, Loving v. Virginia, and Romer.

    Michael Ejercito (249c90)

  22. let me add that we should calm down and reduce the gnashing of teeth. the judge hasn’t announced his ruling yet, after all.

    The issue will be appealed to the Ninth Circuit.

    The primary issue with the district court is that the judge was willing to ignore Supreme Court and Ninth Circuit precedents (Baker v. Nelson and Adams v. Howerton) Only the Supreme Court can overrule Baker or limit its scope, and only the Supreme Court and the Ninth Circuit can overrule Adams or limit its scope. Thus, the case should have been summarily kicked to the Ninth Circuit.

    What the Ninth Circuit should do is exclude the findings of fact, just like it could exclude findings of fact when overturning a criminal conviction.

    Michael Ejercito (249c90)

  23. Patterico:

    I seriously hope you are wrong. If this law gets overturned it is going to create a push for a constitutional amendment to ban gay marriage. In 2004 the proposed amendment lost in the Senate by a fairly wide margin, but largely because moderate Republicans and officially anti gay-marriage Democrats had the “let the states decide the issue” argument as their political cover. A ruling striking down Prop 8 would also strike down this political cover, and do so permanently. With the federal courts ruling that states can’t decide, it will set up a choice of amending the constitution or mandating gay marriage in every state.

    In the short run it will be an absolute boon to the GOP, but at the cost of returning social issues to the front burner and de-emphasizing the importance of fiscal reform, and at a time we can least afford to do so.

    Sean P (4fde41)

  24. By the way, whenever we talk about gay marriage and constitutional amendments, its always “this amendment hearby bans gay marriage.” Why not instead word it so that it is clear that 1) in the state issues, gay marriage is up to the states, let them fight it out. And 2) on the federal level and for full faith and credit purposes, it’s a matter for statutory law and not constitutional law. So something like this.

    “Nothing in the constitution shall be construed to require any state to recognize gay marriage, or to forbid the recognition of gay marriage. Nothing in the constitution shall be construed to require the federal government to recognize gay marriage, or to forbid the recognition of gay marriage. The application of the full faith and credit clause to gay marriage shall be determined according to congressional statute.” Then it stops the courts from meddling, which is the really objectionable part, but if we change our attitudes later, we don’t need a whole constitutional amendment to do it.

    Aaron Worthing (A.W.) (e7d72e)

  25. There is more news from the court; the legal teams for the plaintiffs has written the judge asserting a right to be heard on the request from the defendants for a stay pending appeal. Really folks, this is not rocket science; it is normal practice in these sorts of cases where there is a lot of public interest for trial judges to release their opinions in advance to the legal teams, but put them under embargo until the official release. There are lots of good reasons for this policy, and they all seem present here. It is weird for one side to jump the gun with notice of a post-ruling application, but one can see all kinds of scenarios where it could happen, particularly in response to demands from clients who anticipate the need to answer a lot of questions from the media.

    shooter (32dc25)

  26. I think that those who are citing case law limiting trial judges from deviating from established precedent are missing a couple of boats here. There are aspects to the claims here which qualify for first impression treatment, including evidence-dependent claims, which themselves provide standing for distinguishing cases from superficially binding precedents. Also, consider the lead attorneys involved, and ask yourselves what indications that Ted Olsen and David Boies after long, distinguished successful careers as among the absolute tops in their profession suddenly decided to be act as if they each were born under a turnip truck.

    Also, some are missing the point I made earlier about how the trial went. It is not the case that the plaintiffs were fated to win in law; the claims were carefully crafted to aim the court at the facts the plaintiffs hoped to prove. The defendants responded with claims that were also framed in terms of facts, being those the defendants hoped to prove. But the defendants failed at both ends.

    One more related thought: what the plaintiffs succeeded to framing the claims towards was a contest over the principle of equal treatment under law. Under that, if the plaintiff frames the case properly, then the state is only going to permitted to discriminate where it brings proof that the discrimination is based on some rationale or rationales supported in reality, as opposed to cultural mythology.

    shooter (32dc25)

  27. Shockingly, shooter is a sophist. The rest of you are homophobes. Denounced and condemned.

    JD (c13155)

  28. I had not realized that the courts had added defining “reality” to the long list of powers they have usurped.

    Subotai (a1d05e)

  29. It is not the case that the plaintiffs were fated to win in law

    They did not “win in law”, you fatuous fool. The show trials of the Soviet Union were “law” as you define it.

    Subotai (a1d05e)

  30. I seriously hope you are wrong. If this law gets overturned it is going to create a push for a constitutional amendment to ban gay marriage. In 2004 the proposed amendment lost in the Senate by a fairly wide margin, but largely because moderate Republicans and officially anti gay-marriage Democrats had the “let the states decide the issue” argument as their political cover. A ruling striking down Prop 8 would also strike down this political cover, and do so permanently. With the federal courts ruling that states can’t decide, it will set up a choice of amending the constitution or mandating gay marriage in every state.

    It would probably do so even before the Ninth Circuit weighs in.

    Also, consider the lead attorneys involved, and ask yourselves what indications that Ted Olsen and David Boies after long, distinguished successful careers as among the absolute tops in their profession suddenly decided to be act as if they each were born under a turnip truck.

    the fact that they chose to represent the Perry plaintiffs, instead of plaintiffs making a similar legal challenge in states like Texas, Florida, Wisconsin, or Nebraska.

    I have already cited Rodriguez de Quijas (If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.)

    One more related thought: what the plaintiffs succeeded to framing the claims towards was a contest over the principle of equal treatment under law. Under that, if the plaintiff frames the case properly, then the state is only going to permitted to discriminate where it brings proof that the discrimination is based on some rationale or rationales supported in reality, as opposed to cultural mythology.

    The problem is that Proposition 8 was hardly the first law of its kind; laws that officially define marriage as between one man and one woman date back as far as 1912, before anyone even conceived of gay rights. Obviously the 1912 law was not based on animus against homosexuals.

    And requiring the state to bring proof violates Supreme Court precedent.

    [a] State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Heller v. Doe (quoting FCC v. Beach Communications)

    And of course, there is a rationale for upholding Proposition 8 beyond animus.

    Certainly no legislation can be supposed more wholesome and necessary in the founding of afree, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.”

    Murphy v. Ramsey, quoted in Davis v. Beason

    “Nothing in the constitution shall be construed to require any state to recognize gay marriage, or to forbid the recognition of gay marriage. Nothing in the constitution shall be construed to require the federal government to recognize gay marriage, or to forbid the recognition of gay marriage. The application of the full faith and credit clause to gay marriage shall be determined according to congressional statute.” Then it stops the courts from meddling, which is the really objectionable part, but if we change our attitudes later, we don’t need a whole constitutional amendment to do it.

    This would be better.

    1. The power to define marriage as between one man and one woman is reserved to the states. This section shall not be construed as to require states to define marriage as between one man and one woman.

    2. Congress has the power to define marriage as between one man and one woman in the district that serves as the seat of government pursuant to Article 1 of the Constitution, and territories of the United States not part of any state. This section shall not be construed as to require Congress to define marriage as between one man and one woman.

    3. Congress has the power to determine the application of the full faith and credit clause to marriage.

    Michael Ejercito (249c90)

  31. mike

    fair enough on your crits. i just wrote something quickly enough to capture the idea.

    my only crit is that the courts might then say that congress has to recognize gay marriage, say, for tax purporse or other matters.

    but you get my idea, clearly.

    Aaron Worthing (A.W.) (e7d72e)

  32. And this is on drudge now, with that alarm graphic:

    > SOURCE: CA Prop 8 held to be unconstitutional under due process and equal protection. Court enjoins enforcement of Prop 8… Will be released at 2 pm pt…

    amazing how the constitution is being abused these days. here’s a hint, guys. the constitution is a document written by people who didn’t agree with you on everything.

    Aaron Worthing (A.W.) (e7d72e)

  33. > SOURCE: CA Prop 8 held to be unconstitutional under due process and equal protection. Court enjoins enforcement of Prop 8… Will be released at 2 pm pt…

    So Judge Walker followed in the footsteps of Judge Joseph Battailon .

    Will the Ninth Circuit slap him down like the Eight Circuit slapped down Judge Battailon?

    Michael Ejercito (249c90)

  34. i saw where the judge said that we were stigmatizing gay relationships.

    Amazing. So the state can’t even disapprove of homosexuality in anyway, if you follow that logic. if you are a teacher and you say, “gee, all things being equal, straight marriage is the way to go” that is unconstitutional.

    Aaron Worthing (A.W.) (e7d72e)

  35. at least that is according to drudge.

    Aaron Worthing (A.W.) (e7d72e)

  36. Ah, here is the language, supposedly: “‘Proposition 8 places the force of law behind stigmas against gays and lesbians’…”

    Also supposedly this fails the rational basis test. stimatization analysis doesn’t belong in rational basis tests.

    Aaron Worthing (A.W.) (e7d72e)

  37. and cnn is annoucing it. its official. the judge should be impeached.

    Aaron Worthing (A.W.) (e7d72e)

  38. and cnn is annoucing it. its official. the judge should be impeached.

    Yes, he should be impeached.

    Michael Ejercito (249c90)

  39. This issue will not ever go away. Eventually, they will find a way to win this in the courts, what they could not win at the ballot box. The courts will legislate this, and it will rage on for decades, like Roe.

    JD (c13155)

  40. This issue will not ever go away. Eventually, they will find a way to win this in the courts, what they could not win at the ballot box. The courts will legislate this, and it will rage on for decades, like Roe.

    What is egregious is that the judge ignored precedent, just like Judge Battailon did in Citizens for Equal Protection v. Bruning.

    Michael Ejercito (249c90)

  41. The idea that the founders of the 14th A were legalizing gay marriage is insanity.

    These were evangelical christians. if you went back in time and told them this would happen, and you could get them to believe you and take it seriously (that would be difficult, becuase it is that ridiculous), they literally would have rewritten it percisely to avoid this result.

    The law is a set of rules written by someone else. they are not your rules. they do not always reflect your values. following the law is about subsuming yourself to their will. if you can’t do that, then you have no business being a judge.

    And bluntly he should never have sat on this case. Even though i don’t think anyone challenged him, he shouldn’t have sat on it. Let’s put the correct headline up: gay judge rules that gay marriage is a constitutional right.

    But then again, it really doesn’t matter very much what he ruled. Whatever he said, the 9th circus would say gay marriage is required. And it will all come down to one question: does justice kennedy have the chutzpah to impose his will on the american people, again?

    i am sure he wants to. Kennedy v. Louisiana made it pretty obvious that kennedy doesn’t care very much what the constitution says. but he does care about the institution of the court, and he might think that this decision would be too feeble in the eyes of the people.

    i mean the supreme court of california could have ruled exactly this way if they had the cajhones. but they realized that yes, even in cali, the people don’t want it. so after being rebuked by this amendment they admitted defeat.

    But not this arrogant, anti-democratic judge. He should be impeached. but he never will be.

    Aaron Worthing (A.W.) (e7d72e)

  42. the door to homosexual necrophiliac bestiality clown marriage is just standing wide open

    happyfeet (71f55e)

  43. And here we go again.

    This will without a doubt be upheld by the 9th Circuit and then sent to the Supremes, at which point we will finally get resolution to the question.

    No, not the question as to whether homosexual marriage is constitutional. The question that will ultimately be resolved is whether we will have a unified republic.

    If the Supremes affirm the right to homosexual marriage — slapping the faces of the 70% of Americans who hold the opposing view and who have in 31 states (without a single loss!!) passed ballot measures reaffirming this principle — then I predict that a group of states will unilaterally announce that they will no longer consider the Supreme Court as it is currently constituted to be a valid body, and they will “elect” their own Supreme Court.

    And we will have one group of states living under one constitution — the one delivered to us by our founders — and another group living under a constitution imposed upon us by self-appointed elites and their allies in the judiciary, media, and academia.

    I have for a long time believed that it is this issue — not spending or debt or taxes or war or Obamacare — that will ultimately cause the republic to break apart.

    This is an issue on which the opponents are utterly irreconcilable, for which the feelings and passion are as deep as any issue, and for which no compromise will ever be good enough for the homosexual lobby and their allies.

    I don’t know what the future holds. But rest assured, it will not be pretty.

    Steve (e9536a)

  44. I have for a long time believed that it is this issue — not spending or debt or taxes or war or Obamacare — that will ultimately cause the republic to break apart.

    that’s not rational

    happyfeet (71f55e)

  45. btw, happyfeet, you might enjoy, or hate, my take on Lawrence, here: http://allergic2bull.blogspot.com/2010/06/has-health-care-reform-overturned.html

    Aaron Worthing (A.W.) (e7d72e)

  46. Step away from the hyperbole.

    JD (c13155)

  47. btw, for those who support what judge walker did, let me pose this question. Okay suppose now Brian and Sam, who are blood brothers, want to marry. Are they legally entitled to marry?

    And if not, on what legal grounds would you deny them that entitlement?

    And for the record i am not saying that being gay is like incest. but legal questions are supposed to be decided using principles, and right now i am hard pressed to see any principle that would work to differentiate the two as a matter of law.

    Aaron Worthing (A.W.) (e7d72e)

  48. This will without a doubt be upheld by the 9th Circuit and then sent to the Supremes, at which point we will finally get resolution to the question.

    Why would the Ninth Circuit be more likely to uphold this ruling than the Eighth Circuit?

    Michael Ejercito (249c90)

  49. You can’t logically allow gay marriage but bar polygamy or marriage among cousins or family. Marrying one of your cousins has been common in many cultures, and the myth about genetically defective kids is just that – myth.

    Marriage may even apply to non humans. I can’t marry my dog or cat because they’re not consenting adults, even though I legally own them without getting their “consent” first?

    We might as well follow some liberals’ solution to this issue – the state should just stop recognizing the institution of marriage, of ANY kind. No more tax breaks, welfare, divorce settlements, and other benefits for married couple. End any obligations that come with monogamy (except child support), and allow people to have open relationships with multiple partners at any times.

    Is there something in the constitution that mandates that I must show human warmth to my partner or my offspring? Why, no. If I had a kid with a woman and we grew tired of each other, we should be able to just drop them off at a tax payer funded orphanage where someone can feed them and educate them. As long as I’m not negligent as to their basic needs, who cares? Viola, I’m off to another relationship.

    I’m looking forward to a future when humans can clone human beings, minorities can choose to be white if science allows it, “racists” can go through neuro treatments to become less racist, animals and plants can be genetically engineered to be more aesthetically pleasing, and other ways to temper with our humanity because the idiot judges can’t find constitutional reasons not to prohibit them.

    lee (cae7a3)

  50. Apparently the popular answer here to implying that some folks are blinded by homophobia is for those same folks to mock the idea that they could ever be blinded by homophobia.

    The idea that teachers are going to be called on to counsel on sexual orientation is layered with errors. Any student who will ever seek out a teacher for advice in that area is definitely not going to be after guidance as to choice. To paraphrase Clint Eastwood, choice got nuthin to do with it.

    Saying a judge deserves to be impeached for deciding in a way you disagree with is less constructive than it is reflective of emotional immaturity.

    Now that the opinion is out, the proper way to deal with it in a nation under rule of law is to examine the factual findings and challenge the legal reasoning BASED ON THOSE FINDINGS.

    I look forward to seeing some of that here. Otherwise, this is just mob grousing.

    shooter (32dc25)

  51. the law of this matters a lot less I think than the popcultureness what attends the issue… the same mechanism what… evangelicals herald as diminishing support for the abortions are working even more assiduously to advance support for gay marriage, and doing so really really astoundingly fast for a social change what some think could plunge America into a civil war.

    happyfeet (71f55e)

  52. Homophobes. Denounced and condemned by a sophist. Take that.

    JD (c13155)

  53. Hello, who’s running the education office of Safe schools again, the point is to dismantle brick by brick, any intermediating institution between the
    individual and the state

    ian cormac (6718a9)

  54. Saying a judge deserves to be impeached for deciding in a way you disagree with is less constructive than it is reflective of emotional immaturity.

    Not just in a way I disagreed, but in a way the Supreme Court itself disagreed.

    If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

    Rodriguez de Quijas v. Shearson/American Express, Inc

    Baker v. Nelson and Adams v. Howerton are still precedent.

    Michael Ejercito (249c90)

  55. I look forward to seeing some of that here. Otherwise, this is just mob grousing.

    Comment by shooter

    The judge is a clown and should have recused himself. Instead, he sought the case and his 9th circuit pals probably set it up like a ten pin for him. This will be a negative for gay rights just as incidents like Sherrod are setbacks for racial harmony.

    I have no problem with gay civll unions but worry that the activists who are pushing this are actually at war with any religion that condemns homosexuality. Of course, they won’t say anything about Islam because, you know, they might get their heads cut off slowing with a saw.

    It’s Kabuki theater and those who enjoy that, will have plenty of time to watch.

    Mike K (0ef8c3)

  56. I do not understand why the Judge should have recused himself. His decision is a steaming pile of crap on a cracker, and it wouldn’t have been any less crappy if he was straight. I asked elsewhere, how is it any different if he is the ghey, or if he is straight? Each one has an interest in the outcome.

    JD (c13155)

  57. The defendants allowed a gay judge to decide the case? Their lawyers should be disbarred.

    nk (db4a41)

  58. Three big first impressions about the decision:

    (1) Tons of factual findings, all organized, categorized, and hammered down.

    This is beyond what the SCOTUS requires trial judges to do. The danger to the plaintiffs here, the advantage to the defendants here, given the arguably excessive detail, is if the trial judge has screwed up in recitation, or drawn inferences beyond what is supported in the testimony, either enough times, or on a big enough point, to disturb the confidence of higher courts on appeal as to his approach to finding facts. One approach to attacking the findings of the facts is to hammer on instances where the trial judge has actually or arguably failed deal with facts brought out in examination of witnesses for the defendants and cross-examination of witnesses for the plaintiffs.

    A very heavy burden on the defendants, but lots of room to try.

    (2) On the legal side, assuming that an attack on the facts the trial judge found is underwhelming, and since the reasons of the judge cover every conceivable standard, the defendants are going to be forced towards the arguing the right being not to marriage but to hetereosexual marriage.

    Among the difficulties the defendants will be faced with is that this same issue arose in the cases that preceded Proposition 8, and was resolved in a manner consistent with how the trial judge resolved it here.

    (3) If it could be said that this opinion was written with any particular judge in mind, it would have to be Justice Kennedy, Mister Fundamental Fairness, Mister All Black versus All White No Shades of Grey.

    Couple of related points: no SCOTUS justice ever has traveled anything like as often or as widely as Kennedy — particularly to Europe. And no other SCOTUS justice has ever before written a play that got produced — exposing him to all them thee-ater types.

    shooter (32dc25)

  59. I’m pretty sure that this will be upheld by the 9th Circuit. I’m mostly certain that the Supreme Court will also uphold it, 5-4 or 6-3 depending on how Roberts votes (given no sudden changes in the Court).

    Kevin Murphy (73dcc9)

  60. gay Walker dress his
    interests in the fancy
    legal language sort

    ColonelHaiku (63753b)

  61. You can’t logically allow gay marriage but bar polygamy or marriage among cousins or family

    What utter rot! Yes you can. There are good reasons for banning both. Genetics trumps incestuous marriage. Period. Plural marriages always lead to an unstable society due to lack of available partners for many (see Islam), not to mention that most such unions are historically based on coercion.

    Kevin Murphy (73dcc9)

  62. American life
    not devoid of the moral
    principles quite yet

    ColonelHaiku (63753b)

  63. Yah, I mean people will be marrying dogs and stuff now… [snark]

    Chris Hooten (c3ea1b)

  64. Michael

    > Why would the Ninth Circuit be more likely to uphold this ruling than the Eighth Circuit?

    The ninth is easily the most liberal.

    Shooter

    > Apparently the popular answer here to implying that some folks are blinded by homophobia is for those same folks to mock the idea that they could ever be blinded by homophobia.

    Sorry, who here mocked the idea that they could ever be blinded by homophobia, whatever the hell you mean by that? with what words.

    > The idea that teachers are going to be called on to counsel on sexual orientation is layered with errors.

    You never heard of sex ed?

    > To paraphrase Clint Eastwood, choice got nuthin to do with it.

    Actually the phrase is “deserves got nothing to do with it.”

    > Saying a judge deserves to be impeached for deciding in a way you disagree with…

    No, I base that statement on three things, One, it is going against direct on point supreme court precedent Two I don’t merely disagree with his reading of the Equal Protection Clause It is a RIDICULOUS reading of it. Anyone who knows anything about the founders of the Fourteenth Amendment would tell you that this doesn’t pass the laugh test.

    Three, the judge should have stepped aside for bias. And let me be clear on that. the code of judicial conduct doesn’t require a judge to actually be biased, only to have an appearance of bias. Let me quote from the code:

    > A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned

    So here is today’s headline: Gay judge rules that ban on gay marriage is unconstitutional. Do you think a reasonable person can question his impartiality?

    > Now that the opinion is out, the proper way to deal with it in a nation under rule of law is to examine the factual findings and challenge the legal reasoning BASED ON THOSE FINDINGS

    On the contrary, even the findings were done improperly. You don’t plumb the psyhes of the proponents of it. There is no other law that has ever been subjected to that kind of inquiry.

    JD

    See my comment #5 above, follow the link. I lay it out.

    Kevin

    > Genetics trumps incestuous marriage. Period.

    Well, that is all well and good if the proposed incestuous marriage is straight, and between two fertile people.

    But what about if the incestuous marriage being proposed is gay incest?

    Aaron Worthing (A.W.) (f97997)

  65. judge Walker try to
    take center national stage
    as gay advocate

    ColonelHaiku (1baff7)

  66. shooter,

    I have not yet read the opinion, so I will not criticize it yet. But I have a hard time seeing how factual findings have anything to do with the original understanding of the 14th amendment.

    Patterico (1976d7)

  67. bedroom sacred place
    say judge but no right commit
    incest or cook drugs.

    ColonelHaiku (1baff7)

  68. Patterico–

    As I understand it, the judge found that there is no rational basis for the law and that since it separated out a particular group from equal application of the law (as he saw it) it needed at least a rational basis.

    I think this analysis is wrong — there is as much rational basis for Prop 8 as there is for a lot of other idiotic laws — but not by all that much. After all, there are large consequences under federal law when a couple cannot claim the married status, and there does need to be some good reason to deny that status out of hand.

    I also doubt that Originalism is going to play a large part in what happens.

    Kevin Murphy (73dcc9)

  69. But what about if the incestuous marriage being proposed is gay incest?Ask me when the case comes up.

    Kevin Murphy (73dcc9)

  70. Kevin

    > I also doubt that Originalism is going to play a large part in what happens.

    I agree. Which is incredibly hypocritical, if true.

    > Ask me when the case comes up.

    No, if you are going to say we are not going to slide down that slippery slope, then you have to explain what would stop us.

    Aaron Worthing (A.W.) (f97997)

  71. the judge found that there is no rational basis for the law

    Remind me again – what part of the Constitution (a) says that laws must have a “rational basis” and (b) confers on judges the power to say what is and what is not “rational”?

    Subotai (7f416a)

  72. shooter is a pig ignert sophist, by the way.

    JD (c13155)

  73. why are all the troll people yammering about the 14th lately is it cause of Arizona?

    I need to pay better attention

    happyfeet (71f55e)

  74. happyfeet – They think they are being cute.

    JD (c13155)

  75. No, if you are going to say we are not going to slide down that slippery slope, then you have to explain what would stop us.Um, my interest in debating all the corners, including the odd and fanciful ones?

    Kevin Murphy (73dcc9)

  76. Remind me again – what part of the Constitution (a) says that laws must have a “rational basis”
    The use of “substantive due process” to make up for the errors of Slaughterhouse. You cannot just make up a law that says that people over six feet tall have to pay more taxes, without coming up with a reason why that passes the laugh test. Or at least the 14th Amendment is read that way today.

    and (b) confers on judges the power to say what is and what is not “rational”?
    Umm, judges say so. You would prefer Congressmen?

    Kevin Murphy (73dcc9)

  77. Let me share my notes as I leaf through the decision.

    i am working off of this copy, based on the page numbers at the bottom: http://www.seegersalvas.com/Prop8.pdf

    Early on, the judge says that one of the reasons advanced is that teachers should not be required to tell students that gay marriage is just as good as straight. By the stigmatization analysis, THIS DECISION DOES EXACTLY THAT. it should be interesting to see how the judge deal with that, if at all.

    Page 8—the judge acknowledges that the defendants (correctly) argued that this entire inquiry is improper. I don’t think he ever rebuts that.

    Page 15—judge indicates skepticism about whether gay marriage would harm the institution of straight marriage. Under ordinary rational basis review all you have to do is conceive of a possible factual scenario where it might be the case. Here, he is asking for proof.

    Page 17—first mention of stigma, but from a witness.

    Page 17—apparently the science is settled! Fathers are not necessary or even helpful, apparently. *grinding teeth*

    Page 19—the judge relies on an ugly letter sent to gay couples by the state of California. That would be the same state actors who are refusing to defend proposition 8. So the same people who are doing nothing to help the defense sent a letter being used against them. Great, and why should I care?

    Page 20—sexual orientation doesn’t even exist. Wow.

    Page 21—accuses proponents of proposition 8 of implying all gays are pedophiles. Sigh.

    Page 22—then quotes a witness complaining that this makes it hard to deal with legislators, because it makes people think you are a bad person. Mind you, this is in an opinion that is in essence saying, “you are all irrational homophobes who voted for this.”

    Page 22—and now the judge is basically saying this one guy, Tam, is a bad bad homophobe. Well, okay that is helpful. I mean that is one, out of how many million voters?

    Page 23—oh and don’t these rubes know it is good for the economy? I mean California banned gay marriage and now they are almost in the “Greece zone.” Coincidence? I think not! /sarcasm

    Oh he goes on and on on the credibility of witnesses. Whatever.

    Page 55—Jerry Brown’s real name is Edmund?

    Page 63—traditional marriage is evil and sexist! Grrrr!

    Page 64—misses the point about what no fault divorce is all about. [A.W.: no fault divorce was developed because under the fault system rich men would hire PI’s to incriminate their wives and similar shenanigans would occur. It was believed, therefore, that the fault system encouraged behavior that was destructive to marriage. They believe they were saving marriage, the stupid bastards.]

    Page 66—reasons that since heterosexual marriage didn’t explode the moment that the state supreme court legalized gay marriage, that no harm would come from allowing gay marraige, ever.

    Page 73—“Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.” Yes, they didn’t think the voters were idiots. Your point?

    Page 74—oh wow, now we know for a fact. Gay people don’t choose to be gay. Glad that science! is settled. /sarcasm

    Page 76—California has no interest in asking gay people to be straight. You know, because we don’t need children to be born!

    Read Mark Steyn’s America Alone. You cannot support a massive entitlement state without lots and lots of children.

    Page 82—claims the domestic partnership is not actually equal in the material sense. Which is funny because the California Supreme Court said it was. So basically he is contradicting a state court on a matter of state law, which a federal judge is never supposed to do.

    Page 83—the judge predicts the future. And I presume thinks its irrational to have a different prediction. So we can be sure this will not harm straight marriage, for ever and ever.

    Page 87—proposition 8 is designed to force women back into the kitchen! his actual words: “Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.” Um, how? Really, how? I am in a straight marriage in a state that only recognizes that. my wife is not being forced to cook or anything like that.

    Well, okay the sheer badness of the food I cook is probably rightly considered like holding a gun to her head: “cook, or I will make you taste MY cooking!” “Anything but that!” But its not the STATE coercing her so much as my incompetence in the kitchen.

    Page 89—no one is forced to say anything. But if you can’t stigmatize gays if you are a state official, then they are being force to say—or not say—something.

    Page 91—he adopts the economic argument. Barf. I always hate it when a judge decides that the people just don’t know what is good for them.

    Page 96—being adopted isn’t at all a detriment. *rolls eyes* I don’t want to beat up on adopted kids. Ideally an adopted kid should be treated as well as blood. I also know specific people who have step children where they are not allowed to be an equal parent to the step children. It harms them. There is NO QUESTION it harms them. So the idea is for adoption to be treated like blood, but it is not always observed in reality.

    Page 108—you bigots voted against gay marriage because you are all bigots! Really!

    Funny, making ads that were explicitly bigoted toward the Mormons didn’t enter this judge’s consciousness. The racist shit gay people have said about the high number of black people who voted for Obama and for proposition 8 didn’t enter into it either.

    Page 110—oh god, he went for substantive due process.

    Page 112—this is just like the miscegenation laws!

    Yeah, except that the Fourteenth Amendment was actually designed to address racial discrimination. When it was asserted that the fourteenth amendment would force white women to marry black men, the response was, paraphrase, “ridiculous! We would never force anyone to marry anyone.” If they did not believe it would legalize interracial marriage, that would have been the time to say it. It’s the dog that didn’t bark. Also the father of the Fourteenth Amendment and author of the original draft of the equal protection clause, Thaddeus Stevens, was most likely in an interracial relationship himself, and one based on love. It is reasonable to say that the founders shouldn’t be surprised that we thought they intended to legalize interracial marriage.

    By comparison, the founders of the Fourteenth Amendment considered homosexuality an abomination. They would have been stunned by this result. Not that the constitution actually means a damn in this discussion.

    Page 116—gay marriage is in fact as fundamental as freedom of speech and all that good stuff.

    Page 117—even explicitly says, strict scrutiny for the fundamental right of gay marriage. Yike.

    Page 118—“ The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational.” So he is saying it is beyond debate: you are all irrational bigots out there in California.

    Page 119—and trots out the ridiculous argument that this is also sex discrimination. Sigh.

    Page 121—and the Supreme Court really should give gay people strict scrutiny from discrimination. You know as in more than what women get. More than handicapped people get. In other words, the same level of scrutiny as racial discrimination. Because lord knows when our soldiers fought and died in the civil war, it was for three things: 1) the union, 2) the end of slavery and 3) to stop southern discrimination against gay people. Let’s all remember those heart breaking spirituals sung by the poor downtrodden southern gay man, “swing low, sweet mirrorball, coming forth to carry me to the disco…” And who can forget the secret lyrics to Amazing Grace. “Amazing Grace… turned out to be a guy… and had sex with a retch like me…”

    sorry for the cheap humor, but that is stunning in its idiocy.

    Of course he walks that back and says, “well, still, it fails rational basis too.” Which means that whole discussion about strict scrutiny was COMPLETELY UNNECESSARY. And thus shouldn’t have occurred.

    Aaron Worthing (A.W.) (f97997)

  78. Among the difficulties the defendants will be faced with is that this same issue arose in the cases that preceded Proposition 8, and was resolved in a manner consistent with how the trial judge resolved it here.

    How so?

    Baker v. Nelson belies such a claim.

    On the legal side, assuming that an attack on the facts the trial judge found is underwhelming, and since the reasons of the judge cover every conceivable standard, the defendants are going to be forced towards the arguing the right being not to marriage but to hetereosexual marriage.

    Which is not hard to argue at all.

    The only rights that are fundamental are rights deeply rooted in our nation’s history and tradition (Washington v. Glucksberg)there is no evidence that “marrying” someone of the same sex was a right deeply rooted in our nation’s history and tradition. It was not until 1971 that it even became a legal issue.

    By contrast, marriage as defined by one man and one woman, is a right. The Supreme Court recognized this is Murphy v. Ramsey.

    For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.

    Plural marriages always lead to an unstable society due to lack of available partners for many (see Islam), not to mention that most such unions are historically based on coercion.

    And women who engage in same-sex “marriage” will not reduce the number of available partners to men?

    One must be thinking that lesbians would not marry men anyway. Even if not, half-lesbians would.

    I think this analysis is wrong — there is as much rational basis for Prop 8 as there is for a lot of other idiotic laws — but not by all that much. After all, there are large consequences under federal law when a couple cannot claim the married status, and there does need to be some good reason to deny that status out of hand.

    The Mormon anti-polygamy precedents provide plenty of rationale.

    I also doubt that Originalism is going to play a large part in what happens.

    It would be a shame if courts abandoned originalism.

    You cannot just make up a law that says that people over six feet tall have to pay more taxes, without coming up with a reason why that passes the laugh test. Or at least the 14th Amendment is read that way today.

    Was it ever read differently?

    Umm, judges say so. You would prefer Congressmen?

    fine, let us go with Justice Matthews in Davis v. Beason, and Chief Justice Waite in Reynolds v. United States.

    Michael Ejercito (249c90)

  79. P61.You can’t logically allow gay marriage but bar polygamy or marriage among cousins or family
    What utter rot! Yes you can. There are good reasons for banning both….
    Plural marriages always lead to an unstable society due to lack of available partners for many…not to mention that most such unions are historically based on coercion.

    Comment by Kevin Murphy

    What role does the good of society have in it, or available partners, or whether or not coercion is involved? If the issue is gays want to marry so you let them, unotherwise you’re being unfair, then it would be likewise unfair to not allow polygamy. If the court ruled otherwise it would only be because they didn’t want to give support (immediately) to those who were against the sanctioning of same-sex marriage in the first place. They would let society acclimate to the new situation for a few years, though there would be no rational basis for putting off the new inevitable.

    lack of available partners There are more unmarried women than unmarried men, so allowing two wives would be a great gift to a person who otherwise would not be able to get married, right? But then, who would have the right to say two men and one woman can’t get married.

    most such unions are historically based on coercion but historically most heterosexual marriages have been based on coercion, from society or from family expectations or from the future spouse, right? No coercion among same sex couples? Man-boy love society folk are promoting relationships between equally mature individuals?

    No, either one supports a definition of marriage or anything goes. If one wants a definition of marriage, human history defines it as one man and one woman, and any one who says otherwise has the burden of proof.

    If one looks to the Declaration and the concept that human rights are given by God, not the state, and the state can’t take them away, then there is a corollary, though much more difficult to codify it is nonetheless conceptually inherent, that governments cannot legitimately give rights that are not granted by nature or by nature’s God.

    I have yet to see anyone even try to reconcile the problem that will necessarily logically result. If the government claims that a same sex couple is for all legal purposes as legitimate as a heterosexual couple, then for anyone to act otherwise would be illegal on a criminal or civil basis. Then you need to decide if religious freedom means freedom to act consistent with your religious beliefs, even if your beliefs are against the law, or if freedom of religious belief means you can believe anything you want, as long as you are willing to live an intellectually dishonest/psychotic life. And even if one is allowed to believe such heresy in the eye of “civic religion”, does one dare have the right to teach their children such beliefs?

    MD in Philly (5a98ff)

  80. So one court claims that the DOMA is unconstitutional because the Federal government has no business intruding upon the states’ power to decide marriage … and another court decides that a state’s ban on same sex marriage is unconstitutional based on some bizarre reasoning of some confused constitutional principles.

    Neither court can be correct, but notice that in both cases the courts are finding a way to force a politically correct result regardless of the legal precedents.

    It is this kind of shenanigans that are destroying the American people’s respect for our court system.

    SPQR (26be8b)

  81. ___________________________________

    Wiki says “Walker is one of two federal judges publicly known to be gay.” I know, I know….just sayin’.

    Probably because I find such cases so idiotic and exasperating, I wasn’t scrutinizing the legal challenge to Proposition 8 to even know the judge presiding over the matter is both homosexual and an appointee of George Bush Sr.

    Not sure if Vaughn Walker is a variation of another of Bush Sr’s infamous judicial picks, namely David Souter, who also was considered on odd duck in regards to his possible sexuality.

    However, Walker unlike Souter (an out-and-out liberal) apparently is more of a libertarian. However, I still think there is something about homosexuality that inculcates leftist sentiment in a person. Call it “Andrew Sullivan Syndrome.”

    Considering the surprising amount of bisexuality among even self-described gays, I’ve grown far more cynical about what makes such people tick. IOW, there is more free choice at play than gay (and mostly leftwing) activists want to admit. Then again, they happily include bisexuality and bisexuals in their acronym of “LBGT,” so they’re talking out of both sides of their mouth.

    I find it interesting that no less than a famous wild-and-crazy philosopher like Plato, in no less than the seemingly very different context of ancient Greece, became more negative about homosexuality towards the latter half of his life. So with greater maturity, such a person’s growing awareness of the way that cold reality ran counter to naivete and idealism must have had some effect on him.

    Mark (411533)

  82. By the way, I don’t think that the Ninth Circuit is going to be as sympathetic to this decision as people automatically assume.

    First of all, there are some good judges on the Ninth Circuit, so a panel of rational judges could be drawn, and secondly, the Ninth Circuit as a whole is not quite a nutty as people think. So I don’t think an en banc decision would be as liberal as people would assume either.

    SPQR (26be8b)

  83. not equality
    this about recreating
    our institutions.

    ColonelHaiku (1baff7)

  84. so simple even
    Colonel Haiku understand
    what gayjudge up to

    ColonelHaiku (1baff7)

  85. Jerry Brown “defended” this case, right?

    nk (db4a41)

  86. wrong dereliction
    of duty by Jerry Brown
    MIA on this

    ColonelHaiku (1baff7)

  87. How many judges professing to be Christian have recused themselves from cases having to do with same sex marriage or domestic partnership benefits? Hopefully none, because that would be equally as ridiculous as the notion that Judge Walker should’ve stepped down on account of his being gay.

    Tom R (4a076f)

  88. Tom R., no your attempted analogy fails.

    SPQR (26be8b)

  89. When so many people on the left (and socio-political pockets elsewhere) claim that society needs to respect people’s sexual orientation — or, in effect, people’s sexuality in general — certainly if it’s homo instead of hetero, how about their applying that notion to the inherent non-monogamous nature of the average, typical male? IOW, should the wandering eye of many males be happily accommodated by the laws and mores of society?

    Yep, I guess so. After all, it is part of the human male’s orientation!

    The idea of faithfulness and monogamy is discriminatory and bigoted!!!

    Mark (411533)

  90. SPQR – maybe judges who are in heterosexual marriages should have to recuse themselves from same sex cases.

    Tom R (4a076f)

  91. Tons of factual findings, all organized, categorized, and hammered down.

    There were just gay activists posing as “experts”. My sense is that you probably think they are “experts”.

    Gerald A. (2b94cf)

  92. Best line of the week:
    “Oh, PS, Judge Walker–
    Thanks for the extra 7% turnout in November!!!”

    from Ace of Spades.

    snookered (1f2034)

  93. Tom R., its a silly analogy because no judgement in a same sex marriage case will alter a christian or heterosexual judge’s personal circumstances.

    SPQR (26be8b)

  94. 1. Government should be in the business of recognizing who is and isn’t married in the first place. But since that’s not going to change,

    2. Yes, gay unions should get the same government recognition as do opposite-sex unions.

    HOWEVER,

    3. #2 is a matter for the POLITICAL branches to decide. The notion that, in the 1870s, the 14th Amendment required recognition of gay marriages 140 years ago, is absurd.

    Mitch (e40959)

  95. My #1 there should be, Government should NOT be in the business of ..

    Sorry.

    Mitch (e40959)

  96. The notion that, in the 1870s, the 14th Amendment required recognition of gay marriages 140 years ago, is absurd.

    If you take the original intent of the 14th Amendment, you’d probably have nothing in common with its current application. This is unfortunate in that the privileges and immunities clause would be a much better place to reset most Liberty decisions than the tortured due process clause.

    But that boat has long since sunk.

    Now, we weigh rights against governmental and social needs, and in that analysis the society has become such that laws differentiating on the basis of gender are suspect, and require a good reason to stand. The judge found that this one did not, and quite broadly so. Unfortunately for all you Originalists, the 9th Circuit is pretty much going to decide this on the basis of “Was this judge correct in that analysis?” and not much care what they thought in 1870. Or 1970.

    Kevin Murphy (5ae73e)

  97. A humble suggestion: rather than pine for the original intent of the 14th Amendment, why doesn’t the Right just USE IT as it stands, particularly when it comes to economic rights?

    Kevin Murphy (5ae73e)

  98. _____________________________________

    Vaughn Walker wrote in his ruling:

    “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

    It’s hilarious because the homosexual judge, by his use of “gay” for males and “lesbians” for females is, in effect, discriminating. He’s linguistically treating the homosexuality of one as somehow different from the homosexuality of the other.

    Are there different words used to describe male heterosexuals — and male heterosexuality — and female heterosexuals — and female heterosexuality? Not that I’m aware of.

    “Gay” and “lesbian” essentially makes homosexuals sound like a peculiar, odd, exotic sub-set of the human race, if not somewhat of a different species altogether.

    The lexicon surrounding homosexuality gives sort of a bizarre or freaky spin to it.

    Mark (411533)

  99. NK

    > Jerry Brown “defended” this case, right?

    First, his actual name is Edmund. I am going to call him that from now on because it makes me think of Narnia.

    And no he did not. In fact he was the one attacking the law before the state supreme court and if memory serves he stated it was unconstitutional to Judge Walker.

    Tom

    > How many judges professing to be Christian have recused themselves from cases having to do with same sex marriage or domestic partnership benefits? Hopefully none, because that would be equally as ridiculous as the notion that Judge Walker should’ve stepped down on account of his being gay.

    No, no comparison. Walker is deciding whether or not he personally can get married on the state of California. He has a direct stake in the outcome. He changed his own life tonight, indeed, when it goes into effect, he very well might propose or be proposed to. To pretend there isn’t at least a question to his impartiality is insanity.

    Aaron Worthing (A.W.) (f97997)

  100. Oh, Kevin. I’m not sure what you “whatever gets me the policy result I want” liberals would call it, but my view is that the Constitution, including its amendments, is most closely analogous to a contract. It’s to be understood as it was understood by the ratifiers — a tricky proposition, sometimes, to be sure — at the time of ratification.

    Again, to you, it is a pachinko game, this Constitution, something you have to pretend to care about, knowing all along what result you are going to get. You don’t like a given law’s distinctions? It therefore violates part of an amendment meant to secure equal treatment to newly-freed slaves.

    Yours is a rule by judges. Mine is a rule of laws.

    Mitch (e40959)

  101. I also find it rather hilarious, Kevin, that I’m on “the Right” in your fantasyland, given that

    - my #1 proposition is that government shouldn’t be in the marriage recognizing business at all, and

    - my #2 proposition is that, if it IS in that business, gays should get an equal “marriage.”

    Yet I’m “the Right” (shudder, Kevin! Shudder!) because I dare propose that #2 should occur by legislative means, not false judicial ones.

    Oh! Someone rinse me! I’m on “The Right!”

    Mitch (e40959)

  102. Mitch you are a very sensible fellow I think I don’t understand about the rinsings though

    happyfeet (19c1da)

  103. A couple of things come to mind. The first is that if the pro gay marriage group decided to wait for a couple of years they would have won the next referendum and this wouldn’t have had law decided by the courts instead of the people. This way it will never end.

    I suspect some person will now attempt to marry their toaster in order to prove how free society should be and will use this decision as part of their argument.

    I’ll bet the Catholic Bishops are regreting playing footsie with the democrats in the last election. They thought they were going to get support on social justice (that’s the term they use, what they really mean is allowing and encouraging illegal immigration from the south as most of them are catholic who have big families thus reversing the decline in the church) and instead are getting gay marriage and government paid for abortions.

    Finally, I don’t think the judge needed to recuse himself. Even if he was actively biased (I don’t think he was) he would still have to write a decision that was logical, legal, concise and most of all defendable. If not, it would be torched on appeal (as it may be).

    scr_north (90dcdd)

  104. ___________________________________

    - my #2 proposition is that, if it IS in that business, gays should get an equal “marriage.”

    And what should bisexuals get? What should polygamists get?

    Mark (411533)

  105. Type alert in the headline

    “Prediction cones (comes) true.”

    lee (cae7a3)

  106. but personally I think Team R and etc need to spend a little bit more time playing fun thought games like if there were gay marriagings how should we liked them to come about and what would a conservative gay marriaging look like cause honestly what they’re doing now lacks creativity and makes for bad television

    happyfeet (19c1da)

  107. gay marriagings…gay marriaging

    When talking about this controversy, or discussing human sexuality in general, I find myself increasingly using the word “bisexual” instead of “gay” or “homosexual” (or “lesbian”). That’s because technically — both socially and physically (and when guys’ biology — ie, arousal factor — is being analyzed, response to intimacy can’t be faked) — a surprisingly large number of gays have a history that is not exclusively homosexual.

    It’s a laugh when I think back to a time — of surprising naivete — of my assuming a person (particularly a male) fully involved in homosexual behavior could not possibly also have been a closeted hetero. IOW, the phrase “closeted gay” in some ways actually is less accurate than the term “closeted straight.”

    It’s merely one more category where I realize to an even greater degree just how accurate or on-target conservative sentiment (or common sense) really is.

    (The other one was discovering not long ago that Republican Herbert Hoover actually was quite liberal and squishy — his policies were sort of a prelude to FDR’s presidency — and that FDR was an even bigger phony-baloney limousine liberal than I formerly assumed about him—-ie, his attempt to dodge paying higher income taxes that he himself had signed into law.)

    Mark (411533)

  108. I am just tired of this controversy.

    Under Shariah, we won’t have this to deal with.

    AD - RtR/OS! (88472e)

  109. SPQR @ 89 – If you are proposing to take comfort in the analysis by Carpenter, bear in mind he clearly states that he actually LIKES and APPROVES OF how the judge used the constitutional toolbox (due process and equality), and narrows his critique to failing to apply judicial restraint in redressing the inequity.

    Note that Carpenter essentially sees the same things I wrote on earlier here @ 58 — except he argues all the fact finding can be argued as amounting to something he calls maximalism, and suggests that approach invaded the pivotal question: the nature of marriage. I suggested the possibility that, with all those fact findings, the Prop 8 proponents might have a field day dragging them all out to show many were unsupported in the evidence. In contrast, Carpenter does not suggest a single instance of a fact being wrongly-founded. Instead, he takes an approach analogous to the famous imperial criticism of Mozart: too many notes, which he says can be argued to betray an agenda.

    Carpenter was closer to the trial than I was. His not raising any wrongly-founded facts is more reliable.

    So we are down to the question of where that takes the ruling. Carpenter argues that Judge Walker went too far too fast with the REMEDY. Carpenter argues that the judge should have resorted to the usual safe harbor of incrementalism.

    Incrementalism means part-way measures. The idea is that courts should consider ALL the part-way measures available, whether based on the evidence called in the trial, or simply conceptually, to see if any of them rationally redresses the complaint.

    Carpenter fails to point to a single safe harbor. The only one I detected was civil union. The trial judge considered civil union, and rejected it on the basis of it failing to provide elements critical to his view of marriage. The implication is that the appeal will boil down to whether there are real differences between the concepts of marriage and civil union as provided for by the California legislature.

    Judge Walker thinks there are. So did the California Supreme Court. So does Governor Ahnuld. So does AG Jerry. So, in fact, do the Prop 8 proponents; it was why they promoted Prop 8. And it is what they argued in this trial.

    shooter (32dc25)

  110. Mr. Feets – How does Team D say gay marriagings should come about. Their politicians do not say much about that. Could you enlighten us?

    daleyrocks (940075)

  111. hook or crook I think is the general plan

    happyfeet (19c1da)

  112. 1) I doubt, if you’d left it up to voters in Topeka in 1954, they’d have voted ‘yes’ on integration. Nevertheless what they were doing was unconstitutional.

    2) Although I’ve heard lots of histrionics from ‘family’ groups, I have yet to hear any valid reason for prohibiting gays from marrying.

    3) A judge’s job is to determine if laws are fair and balanced, and if they meet a Constitutional standard.

    The Dred Scott decision said blacks weren’t human beings, they were property. The US passsed the 13th and 14th amendments to correct that injustice.

    If you want gay marraige outlawed, pass a Constitutional amendment. It didn’t seem all that important to them to do that when the GOP was in the majority.

    4) Conservatives love the Constitution – when it’s convenient. When a decision comes down that they don’t like (see Hamdan v. Rumsfeld), suddenly the Constitution isn’t all that important and judges are suddenly ‘activists’.

    Either the Constitution matters or it doesn’t. Pick one.

    JEA (53fe4f)

  113. A judge’s job is to determine if laws are fair and balanced

    Perhaps you can cite for me that section of the Constitution which says that the job of a judge is to “determine if laws are fair and balanced”.

    I’m holding my breath, so please hurry.

    Subotai (9b8877)

  114. The use of “substantive due process” to make up for the errors of Slaughterhouse. You cannot just make up a law that says that people over six feet tall have to pay more taxes, without coming up with a reason why that passes the laugh test. Or at least the 14th Amendment is read that way today.

    The Constitution “is read that way today”? Haven’t you just admitted that judges see the Constitution as a rorschach pattern into which they can “read” anything they want? If tomorrow they “read” the Constitution as permitting government censorship of the Internet, on what grounds can you possibly object?

    The phrase “substantive due process” are not a secret code meaning “judges get to decide what the law should be”, and was never understood this way until recently.

    And one more minor problem for you – I asked for a Constitutional basis for your position. The phrase “substantive due process” appears nowhere in the US Constitution.


    and (b) confers on judges the power to say what is and what is not “rational”?
    Umm, judges say so. You would prefer Congressmen?

    Yes, in our system of governance the peoples elected representatives are supposed to decide policy questions i.e. to decide what is “rational”.

    “judges say so”! You have the mentality of a good little fascist.

    Subotai (9b8877)

  115. Either the Constitution matters or it doesn’t. Pick one.

    You would not recognize the Constitution if it were surgically implanted in your head.

    Subotai (9b8877)

  116. Now, we weigh rights against governmental and social needs, and in that analysis the society has become such that laws differentiating on the basis of gender are suspect, and require a good reason to stand.

    What do you mean, “we”? You’ve been arguing forcefully that “we” should not have any say in these matters at all. As you put it in your bluntly totalitarian fashion, “judges say so”, and “we” can but follow their commands.

    Subotai (9b8877)

  117. It’s a question of definition. The people have one definition, the courts another.

    Amphipolis (b120ce)

  118. gayjudgewalker fond
    of bears and gloryholes and
    red queen lost his head

    ColonelHaiku (1baff7)

  119. JEA, you seem completely oblivious to the idea that the Constitution might actually mean something other than to provide an excuse for judicial power.

    And by the way, it is not the job of the courts to “to determine if laws are fair and balanced”. It never has been. That comment is a perfect illustration that you do not understand the role of the judiciary.

    SPQR (26be8b)

  120. shooter, I think Dale Carpenter’s piece is useful as a critique of the judge’s decision from the POV of a support of SSM. I don’t think I agree with much else of Dale Carpenter’s opinion. I think I picked up a tone in Carpenter’s piece that perhaps you did not, that of resignation of ultimate failure/setback in this decision.

    SPQR (26be8b)

  121. Wow, subotai, that’s a very compelling argument.

    “Perhaps you can cite for me that section of the Constitution which says that the job of a judge is to “determine if laws are fair and balanced”.”

    Article 3, section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

    Article 3, section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

    Article 6: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

    Alexander Hamilton wrote, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law.” and “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.” (Emphasis mine.)

    Not that he’d know anything, but I just thought it might be appropriate.

    Perhaps you could tell me what mechanism we should use to determeine if something in Constitutional other than the judiciary.

    JEA (53fe4f)

  122. JEA

    > 1) I doubt, if you’d left it up to voters in Topeka in 1954, they’d have voted ‘yes’ on integration. Nevertheless what they were doing was unconstitutional.

    Yeah, but here is the thing. The constitution was specifically written to outlaw racial discrimination.

    > 2) Although I’ve heard lots of histrionics from ‘family’ groups, I have yet to hear any valid reason for prohibiting gays from marrying.

    Something tells me no reason would be valid in your mind.

    > 3) A judge’s job is to determine if laws are fair and balanced, and if they meet a Constitutional standard.

    Fair and balanced is a slogan for Fox News. It is not in the constitution.

    > The Dred Scott decision said blacks weren’t human beings, they were property. The US passsed the 13th and 14th amendments to correct that injustice.

    Yes, and apparently judge walker also thinks they were passed in order to combat discrimination against gay people. *rolls eyes*

    > If you want gay marraige outlawed, pass a Constitutional amendment.

    The states have regularly outlawed gay marriage for well over 200 years. For over 140 years they have done so even despite the existence of the 14th Amendment. But now suddenly you want to pretend the default is that gay marriage is constitutionally demanded unless we amend the constitution.

    > It didn’t seem all that important to them to do that when the GOP was in the majority.

    Yeah, because the left argued that no judged would be this crazy.

    > 4) Conservatives love the Constitution – when it’s convenient. When a decision comes down that they don’t like (see Hamdan v. Rumsfeld), suddenly the Constitution isn’t all that important and judges are suddenly ‘activists’

    > Either the Constitution matters or it doesn’t. Pick one.

    Ah, so, according to you, judges are infallible and incapable of disregarding the constitution, even when the judge should have stepped out of the case entirely.

    To paraphrase Hugo Black, the ultimate touchstone of constitutionality is the constitution itself, not what the supreme court has said about it. There is nothing at all inconsistent about arguing that the constitution ought to rule, and criticizing judges that ludicrously disregard it.

    Imagine if time travel was invented. Do you think, if you went back to 1868 when the 14th Amendment, when you talked to the evangelical Christians who freed the slaves and passed the 13th, 14th and 15th amendments (well, the 15th wasn’t ratified as of ’68), that they would tell you they want this result? If you told them that this would happen, and convinced them that you were telling the truth, (and if we didn’t worry about time paradoxes, etc.), you know what would happen? They would probably have changed the constitution to prevent that result.

    The claim that this judge was faithful to the constitution doesn’t pass the laugh test.

    Aaron Worthing (A.W.) (e7d72e)

  123. The only thing I’ve heard is gay marriage would ‘undermine the family’. How?

    JEA (53fe4f)

  124. Schwarzenegger on
    Perry now not versus the
    Colonel see clearly

    ColonelHaiku (1baff7)

  125. JEA

    Talk about missing the point. Sub was asking where the judge was supposed to decide that the laws were fair and balanced. you cite multiple documents and passages to show the judge is supposed to decide the law.

    He is saying where is it said the laws must be fair and balanced? He isn’t questioning the correctness of the doctrine of judicial review.

    Aaron Worthing (A.W.) (e7d72e)

  126. “Fair and balanced is a slogan for Fox News. It is not in the constitution.”

    Sorry, you’re right, Aaron. I should have said “in law and equity” because that phrase IS in the Constitution.

    JEA (53fe4f)

  127. So what are “prediction cones”? Are they anything like The Cone of Silence?

    RickZ (7c3f16)

  128. 4) Conservatives love the Constitution – when it’s convenient. When a decision comes down that they don’t like (see Hamdan v. Rumsfeld), suddenly the Constitution isn’t all that important and judges are suddenly ‘activists’.

    Either the Constitution matters or it doesn’t. Pick one.

    Comment by JEA — 8/5/2010 @ 4:06 am

    Conservatives love the Constitution as much as liberals did when Citizens United was decided earlier this year.

    All this decision proved to me was that the last place both judges and ConLaw scholars look for sources of ConLaw is the actual document itself. After all, there’s a reason why no judge will ever give a 9th Amendment reason for the right to gay marriage. Something along the lines of “thin veneer of civilization” prevents them from doing so.

    Brad S (9f6740)

  129. JEA

    You do know that “in law and equity” has nothing to do with the substantive outcomes of decisions, right?

    in fact it is a statement of jurisdiction.

    “in law” means that the courts have jurisdiction over cases in ordinary civil actions for monetary damages.

    “in equity” is that the courts can hear cases involving injunctions and the like.

    Now if you want something close to the concept of fairness, “due process” is kind of that, although that applies to the judicial process itself. and if you want something close to the concept of “balanced”, then “equal protection” is pretty close to the concept. Although it is still not half as far reaching as you seem to wish it was.

    Aaron Worthing (A.W.) (e7d72e)

  130. A openly gay judge strikes down gay marriage ban. Is that a conflict of interest ???

    bill-tb (541ea9)

  131. JEA, I won’t ridicule you for quoting the “in law and equity” line of the Constitution because it is a technical matter of historical interest only. In the British system, “law” courts could only award money judgements and “courts of equity” could only enter judgements of injunctions. They were separate court systems.

    The line has nothing to do with substantive decisions as mentioned.

    But you need to start coming up with more coherent arguments than you have to date.

    SPQR (26be8b)

  132. 123.The only thing I’ve heard is gay marriage would ‘undermine the family’. How?
    Comment by JEA

    I alluded to this in my post at #78, although one could try to say marriage isn’t being undermined, just being heterosexual is.

    I think one could say that under the law a legally recognized union between two members of the same sex could be treated the same as a legally recognized union between one man and one woman (which has generally been called “marriage”) without “significantly” disrupting society. But as we know, the idea of a “different but equal” civil union status is seen as inadequate by many same sex marriage proponents.

    I am still waiting for anyone to explain how making same sex marriage “equivalent”, “the same as”, or “as legitimate as” marriage between one man and one woman will not have an incredible secondary effect with significant consequences, though perhaps only “unintentional” to some. As an example, it will become necessary for a public school to give equal “credibility” to both relationships, thereby ostracizing anyone who thinks same sex marriage is not “equivalent”. Even those who are happy to endorse civil unions and grant equal legal treatment to same-sex couples will run afoul of the law if they hold to the belief that there is a fundamental difference between the relationship known historically as marriage and a same sex civil union. There will be many, many people who do not treat homosexuals individually with any less respect, though they disagree with them, who will then be considered to have views contrary to the new legally endorsed “social norm”. One may or may not think that is a good thing, but I believe it is dishonest to say the change will have “no effect” on heterosexuals or the heterosexual family.

    I think it is commonly held that the “legitimate” role of government is to “make it easy to be good”, and “difficult to be bad” (though just what that means is up for debate). Historically, society and human existence has been dependent on children and the raising of children for survival of the current generation. Exhibit A is the SS system, put in jeopardy because the number of youth to support the aged has greatly declined. Historically children have come into being and have been raised by the heterosexual family, with its division of labor in both supporting itself in the present and raising children for the future. Though carried out by fallible and at times outright incompetent and/or wicked people, nonetheless it was carried out, and so that entity was encouraged by the legal system (again, often poorly).

    If you want a society where the children are raised by employees of the state, the elderly are escorted into death by the employees of the state, and one’s productive years are spent supporting the state, you may have it, but be honest about it, please.

    Many will think this is just wild imaginings. Many also thought that it was wild imagining that Obama was “radical”. I imagine some still think that is wild imagining, in spite of his preference for associating and appointing SDS, Weathermen, and communist party members to govt. posts, has de facto nationalized major companies and has launched US healthcare on a trajectory to a one-payor socialized system, against the wishes of the public.

    MD in Philly (5a98ff)

  133. Well, now they’ve done it. Gay marriage is now officially a *federal* issue, which means that a federal constitutional amendment banning gay marriage just got a big boost. Already 39 states have banned it, 31 by popular referenda. You only need 38 states to ratify an amendment.

    But gay marriage advocates shouldn’t come crying about “keep the feds out of my bedroom” once that debate starts. The feds won’t be IN your bedroom, they’ll be down at the Justice of the Peace’s office. Once you start arguing about marriage, you’re arguing about public acts, not private ones. Once you take the route of a federal lawsuit, you can’t then complain that your opponents use the big hammer in that toolbox after you unlocked it.

    Sow the wind, reap the whirlwind.

    BobFL (7d6d7e)

  134. JEA

    I hope you don’t take me as ridiculing you in that last comment. Look, truth be told in law there are alot of code words like that that, well, regular people have no square chance of knowing, or even recognizing as a code word. Like if I say “res ipsa loquitor” (sp?) the fact its foreign would at least put you on notice that you need to look it up. That gives you a fighting chance. And if I talk about malice aforethought, that might be English, but its such an odd phrase, you have some chance of realizing it is something to look up.

    But just “malice” by itself? How is an ordinary speaker of English to know that when a lawyer talks about malice, he means something very different than if we were talking in ordinary English?

    “In law and equity” is a phrase like that. Every single word looks like English, and a reasonable lay person might look at it and reasonably think they know what it means. But in fact it’s a legal code word, without fair warning.

    So let me be very clear. I don’t think any less of a lay person for missing those code words. I think if anything lawyers really need to stop doing that. So if I came off as snotty there, I apologize and I hope you realize I didn’t mean to.

    And yeah, there are some parts of the constitution that have some similarity to the word “fair” and “balanced”—though their meanings are (supposedly) constrained.

    Aaron Worthing (A.W.) (e7d72e)

  135. I think it is commonly held that the “legitimate” role of government is to “make it easy to be good”, and “difficult to be bad” (though just what that means is up for debate).

    Not by me. I think the legitimate role of government is to protect our rights of life, liberty, pursuit of happiness, etc. That means preventing others from interfering with each individual’s rights. If you want to restrict someone’s behavior by using the government, you need to clearly show how that behavior harms others. The opponents of same-sex marriage haven’t done that.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  136. Bradley, I share your opinion of the role of government however, the reality is that the Constitution does not carry out our ideology.

    SPQR (26be8b)

  137. The ultimate arbiters of law are the People, for it is they, through their consent, that have handed power to a Government, through the Constitution, to oversea the Nation in their name.

    The Ruling Class has to be very careful that, through their arrogance and hubris, they do not provoke a Constitutional Crisis that will, once again, rip the Nation apart as The Country Class reasserts its sovereignty.

    Prop-8 was the voice of the People of California, and is not an abberation when you look at all of the other State’s that have asked this question, and received the same answer back from their citizens.

    As was noted by HH yesterday, this judge has overturned two-thousand years(sic) of Western Civilization through this ruling.

    AD - RtR/OS! (f9156e)

  138. Bradley and SPQR, I think my statement, as I understand it, is another way of saying what you say. Things that harm other people are “bad”, and the govt. needs to make it hard to do that, including providing consequences. Likewise, the govt. should not get in the way of the pursuit of our rights. It is when the govt. starts doing things trying to make people do what (it thinks) is good that trouble comes. You can make people not discriminate, you cannot make people agree with each other.

    MD in Philly (5a98ff)

  139. Comment by BobFL — 8/5/2010 @ 8:32 am

    The first hurdle for a CA on marriage to overcome is the 2/3′rds requirement for passage in each house of Congress – a not insubstantial barrier.

    AD - RtR/OS! (f9156e)

  140. JEA — 8/5/2010 @ 6:21 am

    Thanks for that lengthy response, but you did not answer my question in it. I asked you to cite that part of the Constitution which says that the job of the judges (and in particular, inferior court judges such as Walker) is to decide if laws are “fair and balanced”.

    Alexander Hamilton opposed judge made law and if he were alive today would be leading another revolution. He opposed the activities of “common law” style judges, which is what Walker sees himself as. See Federalist 84.

    “Substantive due process” is one of those legal phrases whose meaning has nothing to do with its literal English meaning. In legalese it means “common law rights”.

    Here is Hamilton on that topic.

    “to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction.”

    Subotai (1075f6)

  141. Perhaps you could tell me what mechanism we should use to determeine if something in Constitutional other than the judiciary.

    What about reading the blasted document? It’s short and written in clear English. It’s the conceit of the left that Constitutional interpretation is a job akin to that of Talmudic scholars pouring over cryptic texts.

    The US Constitution does not confer on the courts the sole power to interpret it.

    Section 1 – Judicial powers

    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

    Section 2 – Trial by Jury, Original Jurisdiction, Jury Trials

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    What part of this says “only the judiciary can decide if something is Constitutional”?

    Subotai (1075f6)

  142. This piece by John Yoo summarizes the argument against Walker’s decisions pretty well.

    I like this line:

    Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists.

    SPQR (26be8b)


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