Patterico's Pontifications

8/6/2010

The Illogic of the Decision Striking Down Prop. 8

Filed under: General — Patterico @ 7:34 am



The Big Media narrative is established. On one side, we have the massive cathedral-like structure of a legal opinion, built upon a firm foundation of precedent and logic, and supported by flying buttresses of unassailable factual findings. On the other side is a pack of howling monkeys, who have no evidence to support their arguments, but who sure do like to jump up and down, howl, and fling poo.

Not quite.

Dan McLaughlin offers a detailed post that demonstrates some glaring logical inconsistencies in Judge Walker’s opinion. It is not an emotional screed, but rather an argument that tackles the opinion on its own terms, and reveals it to be high-flown hackery. I say this as someone who voted against Prop. 8, but who wants to see gay marriage accepted by the populace, not crammed down their throats by their judicial betters.

I hesitate to excerpt because I want you to “read the whole thing,” but I nevertheless will excerpt Dan’s main points to show you the strength of the argument. He makes three basic points.

1. Tradition is important only when Judge Walker says so. Judge Walker simultaneously casts aside as irrelevant the traditional meaning of marriage, when deciding the importance of tradition to the justification for the law. Yet in the next breath, he declares domestic partnerships to be inadequate because of the traditional importance of marriage. As Dan elegantly puts it: “Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It’s this analysis, not the view of the California electorate, that fails the test of basic rationality.”

2. Judge Walker trivializes the state’s interest in couples that can procreate. Dan quotes Judge Walker as burying in his factual findings the observation that “[a]pproximately eighteen percent of same-sex couples in California are raising children.” Dan says: “I’d bet every penny I have that very significantly more than 18% of opposite-sex married couples, even in California, have children.” Dan would win his bet. According to the 2000 census (.pdf), “46 percent of married-couple households had at least one son or daughter living in the household” nationwide. In California, it was 51 percent — almost three times the percentage of same-sex couples with children. One might complain that comparing married opposite-sex households to unmarried same-sex households is comparing apples to oranges, but the same census figures reveal that “[f]our out of ten opposite-sex unmarried-partner households have children present.”

The state has a rational interest in encouraging childbirth, and this provides a rational reason to distinguish between same-sex and opposite-sex couples.

3. Judge Walker’s requirement that laws be justified by evidence is contrary to democracy. Sure, I’d like to haul the people behind ObamaCare into court and force them to offer justifications for their policy decisions that would pass evidentiary muster in a court of law. Give me a fiscally conservative judge and I’ll win that case every time. But that’s not how democracy works. Walker proclaims that the defendants’ reasons were “nothing more than post-hoc justifications” that were not considered by the electorate. Dan replies: “Just imagine the horror – campaigns that oversimplified the issues and relied on pre-existing assumptions and scare tactics! There oughta be a law!” He quotes a passage from the Declaration of Independence regarding truths that are held to be “self-evident” and asks whether such a bald declaration would satisfy Judge Walker, “given that Thomas Jefferson cited no statistics [and] no sociological studies compiled by sympathetic scientists.”

Many laws are overturned for legal reasons, but it is exceedingly rare for laws to be overturned because a single judge has found them to be irrational. The result is even more offensive when the law is passed as a proposition voted on by the people at large, as it pits the views of a single judge against the collective wisdom of the citizenry of an entire state. This is rule by philosopher king, and it is rarely more blatant.

Dan does a much better job of explicating his points than I could ever do. Please read the whole thing.

179 Responses to “The Illogic of the Decision Striking Down Prop. 8”

  1. Dan says: “I’d bet every penny I have that very significantly more than 18% of opposite-sex married couples, even in California, have children.”

    Sort of the opposite of gay-rights activists always claiming that a much higher percentage of the population is homosexual, although I notice the ridiculously inflated figure of around 10% isn’t cited by them as frequently. Probably because of things like census statistics indicating that even the hub of gays (aka San Francisco) has a much lower percentage of same-sex households than one would assume.

    Homosexuality gets way more publicity and attention than it (and the people attached to it) deserves. But it reveals the way that a vocal, mostly liberal, minority can make a lot of waves and stir a lot of controversy.

    Mark (411533)

  2. This pretty much makes you a tribalist homophobe.

    JD (845aec)

  3. This is simply another skirmish in the coming war between the “Country Party” and the “Governing Party.” They are convinced that gay marriage should be allowed. Period. The reasoning comes later.

    Personally, I don’t care except for one fear. I fear that the fundamental drive behind the gay marriage issue is a war on religions that do not approve of homosexuality. Since that includes all of the major religions of our society, it seems to me that the significance of marriage is totally religious to these people. Why are civil unions not enough ?

    The only reason I see is the religious angle. Already today, religious people, even ministers, who mention the Bible’s ban on homosexuality are being prosecuted. In that case, the offending action was writing a letter. Interestingly enough, the newspaper that published the minister’s letter was not prosecuted.

    In Britain, a minister is prosecuted for telling a woman that homosexuality is a sin.

    This is a preview of the gay marriage agenda. They are already attacking churches that supported the anti-gay marriage initiative in California.

    This will not end well. Of course, the gays are attacking Christianity, not Islam. After all, Christians turn the other cheek. Muslims cut your head off.

    Mike K (0ef8c3)

  4. Ref #3

    But Christians and Jews are willing to tolerate homosexuals, what do the Progressives think is going to happen if the Muslims come to predominate?

    In all sharia law states, homosexuality is a stoning offense.

    LarryD (f22286)

  5. doesn’t #3 completely obviate #1 and #2?

    happyfeet (19c1da)

  6. The state has a rational interest in encouraging childbirth, and this provides a rational reason to distinguish between same-sex and opposite-sex couples.

    I don’t think the state has a real good grasp of where babies come from.

    happyfeet (19c1da)

  7. > Of course, the gays are attacking Christianity, not Islam.

    Well, its always easier to beat up on christians. we will at most argue back.

    By comparison if you criticize islam, you stand a pretty decent chance at being killed. Ask Theo Van Gogh.

    So we see comedy central censor ever image of mohammed, and even the word “mohammed.” They even went back and had netflix remove the episode from season five where mohammed was depicted as a member of a holy superhero squad called the “Super best friends” (with a heavy nod toward the old “Super Friends” cartoon). Meanwhile in the very episodes where mohammed is blocked out, Buddha is depicted snorting drugs and Jesus is depicted watching porn. Indeed in one meta move, Comedy Central allegedly edited out a speech on the need to have courage and stand up for freedom of speech. It all starts to sounds like an intellectual equivalent of an MC Esher painting.

    Aaron Worthing (A.W.) (e7d72e)

  8. I’m not sure Dan McLaughlin read the same opinion as me.

    (1) There is a difference, conceptually, between (a) the traditional meaning of marriage and (b) the IMPORTANCE of marriage to us as members of society, i.e., marriage is (traditionally) held in high regard, usually a life goal for everybody, etc. Those two concepts are entirely different things, so it’s inaccurate to say that Judge Walker was being contradictory. It’s like education — traditionally, it is a valued institution… by virtually everybody. But over the course of time, what the education system looks like (and who has access to it) has changed. One can value education as a life goal, even as the institution of education (what it looks like) morphs over time. Same with marriage.

    That said, would anyone here have a problem with allowing same-sex marriage, and we just all agree to call it a “non-traditional” (yet legally valid) marriage? I mean, is it the semantics that is the sticking point?

    (2) Judge Walker “trivializes” the state’s interest in procreation because the STATE trivializes it. No state makes an inquiry into a straight couples’ plans for having children before it sanctions their marriage. Octogenarians and barren couples, for example, can get married — the state doesn’t know or CARE.

    Furthermore, the state also doesn’t care about procreation outside of marriage. It is not illegal, for example, to have a child outside of marriage. In fact, in every state you can claim that child as a dependent on your state taxes. Now, there may be a societal taboo against bastard children (although this is becoming less so), but we’re talking about the state government.

    So it struck Judge Walker, correctly in my view, that this notion of the state suddenly caring about “procreation within an opposite-sex marriage” is a bit of a red herring: a “found” justification for the purposes of this lawsuit.

    And finally (on this point), even IF one could conclude that the state has always had a legitimate interest in encouraging childbirth within opposite sex marriages (and only oppo-sex marriages), how does the same-sex marriage ban further that interest? Does anyone think a gay guy is going to say “Oh, hell. Since I can’t get gay-married, I guess I’ll marry a woman and have lots of kids?”?

    I submit that permitting gay marriages will have this much impact on the child birth rate among married couples: Zero. Zip. Nada.

    And that’s why the proponents’ argument — making the connection between gay marriage and procreation — so irrational.

    (3) McLaughlin overstates the extent to which certain findings of fact bore on the judicial outcome. While it is true that a few “findings of fact” bore on the Prop 8 campaign (the way it mislead voters, etc), it is important to realize that Prop 8 wasn’t overturned because one judge had issues with the Prop 8 campaign was run.

    To the extent that McLaughlin was saying that the will of the majority should always trump constitutional protections, that is a legitimate position. But it is a position that could, in other aspects, work against conservatives when applied to other situations. Personally, I would caution against going down that road.

    ***

    Finally, Patterico writes: “Many laws are overturned for legal reasons, but it is exceedingly rare for laws to be overturned because a single judge has found them to be irrational.”

    Just to be clear, that is not what happened. The legal test is that the law in question must be “rationally related to a legitimate state interest”. Walker did not state that the same-sex marriage ban was “irrational”. He was just saying that the state did not show that “encouraging childbirth within marriage” has been a legitimate state interest. Nor did the state’s evidence prove that the same-sex marriage ban was rationally related to that supposed interest.

    Kman (d25c82)

  9. This biased and intellectually corrupt judge can thwart the will of the voters. The loony left 9th circ can sustain. But when it gets to Roberts’s court, American values will prevail. Count on it.

    Kevin Stafford (abdb87)

  10. Patterico, I have to disagree with you in two regards:

    Judge Walker’s requirement

    I don’t think that’s accurate. Rational basis review – the requirement that the law be rationally related to a legitimate state objective – is the Supreme Court’s standard for handling equal protection claims: when someone claims that they are being denied equal protection of the laws because of a classification in a law, courts are supposed to enquire as to whether that classification is rationally related to a legitimate state objective.

    There are two ways for a court to do that: it can look at the situation and perform an “I know rational relation when I see it” analysis based entirely on the judge’s personal experience and belief about what is or isn’t rational, or it can look to evidence to see if the evidence supports the conclusion that there’s a rational basis.

    I would expect a judicial conservative to prefer that courts look to the evidence and not just shoot from the hip.

    My suspicion is that you believe the judge claimed to be looking at the evidence while actually basing the outcome on his own personal beliefs … which may be a legitimate criticism, but I think it’s a bad idea to say that courts shouldn’t look to evidence to find a rational basis, because without that, you’re really left with nothing other than judicial fiat.

    (Alternately, I suppose, you could ditch the rational basis test … but then you’re either left with a toothless equal protection clause or an arbitrary enforcement based on whim rather than reasoning. Although, again, I could see an objection that what we have now is whim cloaked in the false guise of reasoning).

    Judge Walker trivializes the state’s interest in couples that can procreate.

    I read the opinion as saying, basically, this: “the evidence mustered by the defenders of the initiative at trial was so bad that I am left with no conclusion other than that the proposition was motivated by animus.” I don’t see that as trivializing any particular state interest; I see it as castigating the defense team for a terrible performance at trial and saying that the absence of evidence supporting their position gives rise to a negative inference about their position.

    I’m really bewildered by this: the defense presented two witnesses, one of whom contradicted himself on the stand and in essence ended up endorsing the evidence put forward by the plaintiffs. Assuming the judge is basing his decision on the trial record, what did you want him to do? Invent evidence for the defense? Call witnesses for the defense? I can’t imagine that’s standard procedure.

    aphrael (73ebe9)

  11. #1 is interesting. #2, not so much. The issue re: procreating couples is that an SSM ban just doesn’t have anything at all to do w/ whether straight couples have kids.

    jpe (e31238)

  12. Mike K – some people may be motivated by a war on religion; there’s a lot of militant atheism in grass-roots liberalism.

    But a lot of us aren’t: religious faith is an important element of life for many, if not most, people, and a liberal belief in pluralism entails, IMO, recognizing and honoring that faith, and does not entail telling people what they must believe in a religious capacity.

    And I would imagine that the very robust constitutional protection for religion and for speech in the US would make cases like the one you linked to (which took place in Canada) difficult if not impossible here.

    aphrael (73ebe9)

  13. re: #1: I think the counter is that marriage is traditionally important, but it’s traditionally important for several important reasons (it permits benefits, is a way to sanction a relationship, blahblahblah). It’s not a mere or empty appeal to tradition the way the defense of the SSM ban is.

    jpe (e31238)

  14. Larry D – I suspect that most progressives don’t think there is a realistic possibility that Muslims will come to predominate in the US … meaning that how such an event will effect the rights of gays is an issue that isn’t even thought about.

    AW – gay activists who attacked Christians after the passage of Proposition 8 did so because they believed the people they were attacking had been instrumental in taking the right to marry away from them. Since there’s absolutely no evidence of Islamic groups playing an active role in the passage of Proposition 8, it would have been irrational to attack Islam as a response to the passage of Proposition 8.

    [Note: I didn’t approve of those attacks, did not participate in those attacks, and did not support them. But I think it’s pretty clear why muslims weren’t the target – muslims weren’t involved in the fight.]

    aphrael (73ebe9)

  15. apharel: The problem is that I don’t believe the “fact finding” analysis Judge Walker made was for the purpose of reaching a result, I believe it was for the purpose of insulating his ruling from appeal. Appellate courts are required to accept findings of fact by the finder of fact unless “clearly erroneous” but findings of law are reviewed de novo (ie: independently, without any weight given to the lower court decision). Most of the “factual” issues decided are legal issues, or irrelevant to the legal analysis of whether Prop 8 should have been overruled or not.

    Andrew Sullivan (4fde41)

  16. Did I sign as Andrew Sullivan? Definately a mistake on mypart.

    Sean P (4fde41)

  17. I submit that permitting gay marriages will have this much impact on the child birth rate among married couples

    I agree.

    And yet: that isn’t the question. A court should not be asking what will the impact be?, but rather what could a rational person reasonably believe the impact would be?.

    And I think it’s quite likely that a rational person could say we don’t know what the impact will be, so we don’t want to take the risk.

    Part of the problem with this case is that the evidence introduced at trial was so bad that it basically constituted default on the part of the defendants. But i think a rational basis could be found for supporting Proposition 8 (albeit one which I think is wrong). So it’s hard to tell if Judge Walker was using rational basis test based on terrible evidence, or if he was using some form of rational-basis-plus (as was used in Lawrence and Romer).

    But it doesn’t really matter, as his legal findings are basically irrelevant to the ninth circuit and the supreme court.

    aphrael (73ebe9)

  18. Sean P – that’s a fair point. That said, if the ninth circuit looks at the trial record de novo, it will be left with little choice but to agree with Judge Walker’s findings.

    I’m not basing my assessment on the decision; I’ve read the trial transcripts. The defense put up two witnesses. One of them ended up essentially endorsing the plaintiff’s propositions.

    I’m really not seeing what the judge was supposed to have done with that.

    aphrael (73ebe9)

  19. This ain’t difficult at all. Marriage is exclusively for one man and one woman. Any other combination isn’t marriage, it’s an association.

    Within the category of other combinations, associations can be either more or less contractual, and they can be identified as anything the participants chose, except a marriage.

    ropelight (7770e7)

  20. On the other side is a pack of howling monkeys, who have no evidence to support their arguments, but who sure do like to jump up and down, howl, and fling poo.

    Not entirely, but there are a noticeable number. Some of them seem to have wings.

    Kevin Murphy (73dcc9)

  21. Judge Walker’s “factual findings” were an amazing load of BS as well. He took weak sociological studies of dubious methodology – like all sociological work – and pumped hot air into them until they were indisputable and conclusion proof of scientific fact of greater weight than any science done before or since.

    Patent nonsense.

    SPQR (26be8b)

  22. “Judge Walker trivializes the state’s interest in couples that can procreate.”

    So now conservatives want the state telling us what to do in the privacy of our own homes.

    China has a one-child policy. I guess the conservatives wnat us to be more like them.

    JEA (53fe4f)

  23. I think the counter is that marriage is traditionally important, but it’s traditionally important for several important reasons (it permits benefits, is a way to sanction a relationship, blahblahblah).

    Benefits are not a valid reason since they are part of domestic partnerships. So we’re left with “sanction a relationship”. But that’s cultural tradition. So the blatant double standard remains. I don’t know what the blahblahblah is but presumbly it’s more tradition or something that domestic partnerships take care of.

    Gerald A (138c50)

  24. Thx for the correction, Gerald

    jpe (0fe544)

  25. JEA, that’s a completely dishonest misrepresentation of the comment. Typical of your utter lack of any honesty at all.

    SPQR (26be8b)

  26. Aphreal – your comments are well-taken.

    I’m not sure the case was ever winnable, but it really seems like the Prop 8 proponents’ counsel really threw in the towel early on.

    For me, the most telling paragraph of the opinion is on page 11:

    At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest”….[W]hen pressed for an answer, counsel replied “Your honor, my answer is: I don’t know. I don’t know.” [Cites omitted]

    Dude, where’s your case?

    I don’t know how Prop 8 proponents expected to win this one if they couldn’t answer this question — which goes to the legal core of the matter.

    Kman (d25c82)

  27. Kman

    Ah, so let me guess, you were “Ken” from before.

    Seriously, stop stalking me.

    Aaron Worthing (A.W.) (e7d72e)

  28. Kman, were Prop 8 proponents well represented by the State of California?

    It sounds like they absolutely were not, if their case was ‘I don’t know’.

    Preferring nuclear families, and things more consistent with one even when they are not, seems like something the Tenth Amendment left to the states, unless there’s a section in the US Constitution I’m missing. That millions of voters said they want to define marriage a certain way is the whole case, then.

    I don’t like the idea of demanding they explain themselves, and then letting some proxy say ‘I don’t know’ and flunking their Constitution.

    Dustin (b54cdc)

  29. AW, he’s the reason I can’t comment on your blog?

    Dustin (b54cdc)

  30. Why is it bad for it to be about semantics/language to one side, but perfectly acceptable for it to be about semantics/language to the other?

    JD (c09080)

  31. Dustin – the state of California declined to defend Proposition 8. The Defense was carried out by an intervening party (I think it was the National Organization for Marriage, but it might have been Protect Marriage).

    aphrael (73ebe9)

  32. I guess the conservatives

    Still a jackass. You’re guessing because you’ve never bothered to listen, you just keep pulling stuff out of your backside.

    A very traditional interest of the state is to have its pool of citizens enlarged or at least replaced as they age. Doing so maintains the ability of the state to effect policy in dealing with its neighbors, allies and enemies alike. This is an interest that a state can encourage in policy without having to intervene at a household level.

    China’s policy is a result of its centrally planned economy~communism works better if there aren’t as many mouths to feed; but do you really expect us to believe that conservatives are embracing communism?

    EW1(SG) (edc268)

  33. Thanks, Aphrael. I didn’t really know about it and I don’t really follow this topic. Either way, that doesn’t sound like a great case they made and I don’t understand how a popular constitutional amendment can be flunked based on some proxy defender’s failure.

    Oh well. I’m much more interested in other political issues, which are actually helped quite a bit if this drums up a few percent to the polls. This is terrible news for Boxer, I think.

    Dustin (b54cdc)

  34. Dustin – I don’t think it will effect the Senate race much one way or the other. AG Brown’s refusal to defend the law hasn’t been an issue in the Gubernatorial race, for example – and the issue is much more directly relevant there as his refusal to defend the law is mostly unprecedented in California history (there was one other case, involving the repeal of the fair housing act, but otherwise nothing).

    I don’t really follow this topic..

    I’m sure you can imagine that I’ve been following it rather closely for years. :)

    aphrael (73ebe9)

  35. I don’t understand how a popular constitutional amendment can be flunked based on some proxy defender’s failure

    I’m not sure what you think the process should be.

    I can extrapolate a couple of positions from this statement:

    (a) state initiative constitutional amendments are presumptively immune to federal constitutional challenge on equal protection grounds (but that’s problematic: it would mean that a state could resegregate via initiative constitutional amendment, or ban hindu worship via initiative constitutional amendment, and the feds could do nothing).

    (b) judges involved in trials regarding initiative state constitutional amendments must act as the lawyer for the defense (which is pretty much contrary to the structure and spirit of our legal system).

    Neither of these make sense to me, so I assume that neither of them is what you actually want.

    So: how do you think a federal court should handle challenges that claim that a state constitutional amendment deprives some of the state’s citizens of the equal protection of the laws?

    aphrael (73ebe9)

  36. Dustin:

    Preferring nuclear families, and things more consistent with one even when they are not, seems like something the Tenth Amendment left to the states, unless there’s a section in the US Constitution I’m missing. That millions of voters said they want to define marriage a certain way is the whole case, then.

    You’re missing the Equal Protection Clause of the 14th Amendment. The 14th amendment makes mincemeat of a state’s preference for “nuclear families” or whatever, just as it did decades ago when southern states (and the voters thereof) clearly “preferred segregation”.

    Kman (d25c82)

  37. I don’t understand how a popular constitutional amendment can be flunked based on some proxy defender’s failure

    I’m not sure what you think the process should be.

    I understand this is more central to you, and I’m sorry you have to deal with this issue. I’m seeing this from the POV of Federalism.

    Anyway, the process, in my view, should be strictly based on whether or not the tenth amendment leaves this power to the states. And it does. Even though there are strained arguments that it doesn’t (I’m saying I reject those).

    This man is ruling a Constitution unconstitutional. That is really quite severe a power for the Federal Government to pretend it has. They are grossly inflating the meaning of some of our core civil right amendments… things no one contends were intended or understood when ratified. I think that turns the rock upon which our nation was built, the Constitution, into mud that can be stirred.

    Furthermore, the judge was ruling for his self interest and that really ticks me off.

    Ideally, different states would simply handle this issue differently and the Federal Government would enforce very few things. I relate its zeal for these issues to its failure on others.

    Dustin (b54cdc)

  38. Gender no longer forms an essential part of marriage

    So it once did form an essential part? And now it is not just less essential, but not essential at all?

    While I’m sure the judge’s opinion is shared by most all homosexuals, it is blatantly contradicted by the Proposition 8 vote in gay-friendly CA. What we have here is homosexual beliefs on what they think marriage ought to be being legally imposed on all of us.

    Amphipolis (b120ce)

  39. Gender no longer forms an essential part of marriage

    This declaration has nothing whatever to do with the Constitution.

    Amphipolis (b120ce)

  40. Anyway, the process, in my view, should be strictly based on whether or not the tenth amendment leaves this power to the states. And it does. Even though there are strained arguments that it doesn’t

    Suppose California decided to invoke different tax rates (state tax rates) for homosexuals. Are you saying there is nothing in the federal constitution that protects against this?

    Furthermore, the judge was ruling for his self interest and that really ticks me off.

    Not knowing the man, I lack the ability to determine what Vaughn Walker’s self-interests are, and I’m wondering how you have come to know his private thoughts.

    Kman (d25c82)

  41. This will end up just like Roe.

    JD (fc59fb)

  42. You have no reason to apologize; you’re making a rational argument in a rational discussion, and I’m not taking anything you say as being personal. :)

    But I don’t think you answered the question.

    Imagine that California were to adopt a ballot measure which prohibited people who wear glasses from marrying people who don’t wear glasses. Someone who wears glasses and is in love with someone who doesn’t sues, saying “hey, this violates equal protection, and Loving v. Virginia says you can’t do this.”

    What should a federal court do?

    It seems to me that you’re saying the federal court should refuse to hear the case because marriage is a matter for the states to determine.

    So: should the federal courts have treated interracial marriage the same way (by refusing to hear the cases)?

    aphrael (e0cdc9)

  43. It is a shame that sophists like kman and the others the preceded it cloud up an otherwise interesting debate.

    JD (fc59fb)

  44. Dustin

    > AW, he’s the reason I can’t comment on your blog?

    Well, in some sense. He misstates facts, arguments, etc. so often you just realize at some point he is not even trying to get it right. He’s very trollish that way, and being my most persistent troll, I don’t allow comments because I just don’t feel like dealing with them. But I decided to shut it down long before kman showed up in my email inbox and frankly I didn’t think he would. On my site, by the way, I call him “Stalker-boy.”

    For instance, if he is ken, he cited a case dealing with two men who claimed that based solely on the ethnicity of the judge, they felt the judge had an ethnic or racial prejudice against them. You know, as in “you can’t be my judge. You’re Korean. I’m black. And everyone knows Koreans hate black people.” He took that principle and pretended to say that it meant that you can’t question Walker here, when no one I know of is complaining that the judge is automatically prejudiced against straights because he is gay. We are pointing out that he is deciding his own legal rights. So the cases have nothing to do with it. it just says you can’t assume things about people because they are black, Korean, female, etc. Well, no duh.

    > Furthermore, the judge was ruling for his self interest and that really ticks me off.

    Well let me say one thing that might excuse, if not justify, judge walker sitting in this case. there is such a thing as the concept of “harmless error.” Now if the ruling is stayed until appeal is heard, then I say it’s a harmless error. Let me explain.

    Okay the case came out striking the proposition down, and now the losers are scrambling to appeal it. and most likely it will be appealed. Now imagine if the case came out the opposite way. what would be happening? Well, the same thing: the losers would be scrambling to appeal and the status quo is preserved. And more than likely that appeal would have been accepted. So in truth the judge isn’t really going to decide the case anyway, its going to be 9th circuit in the near future, and probably the supreme court in the long run.

    The irony, in fact, is that the decision by this judge is so rotten that it might hurt his cause. As a lawyer, it is a common tactic of mine to attack the opposition on nitpicky, technical issues, to undermine the confidence the judge has in opposing counsel. So if you visibly correct the other side on spelling, on misquotes and misstated citations, then if you also say that opposing counsel misread the case at the same time, the court is more inclined to believe you on that important point. Its sort of a momentum theory of argument and it works fairly well.

    The “facts” this judge has asserted are laughably bad. I keep hammering it because it is true. it is not a fact that gay marriage will not harm straight marriage. A prediction of the future is not a fact. It is an opinion. Perhaps that opinion is backed up by facts, but that doesn’t change it suddenly into a fact. I know I keep hammering that point down because it is so blatantly wrong.

    To be blunt I don’t think I have seen any federal judge turn in such a poor performance. And it is so bad it might actually harm the cause he is attempting to advance.

    Aaron Worthing (A.W.) (e7d72e)

  45. Are sexual preference and race equivalent?

    JD (f89659)

  46. JD: No, but I’m looking for the legal principle which makes them different as a matter of law.

    The fourteenth amendment does not say “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws on account of their race”.

    It says “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”.

    The very same congress introduced the fifteenth amendment, which said “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” … indicating that when they wanted to limit something to being “on account of race”, they did.

    Which says to me: the fourteenth amendment was not intended to just be about race. But it was incredibly vague – what does it mean to deny someone equal protection of the laws?

    The amendment was clearly meant to abrogate the tenth in some respect – states can’t carry out things traditionally reserved to them in a way which violates equal protection of the laws.

    But … it’s not clear what that means in any given case. So we need some process for determinign what it means, and how it applies in a given case.

    Dustin – and various other people – have objected to the process as well as the result. So I’m asking back: what process would you like to see?

    aphrael (e0cdc9)

  47. JD

    Psst, I talk about Kman and my history together on my own blog. He is “stalker boy.”

    http://allergic2bull.blogspot.com/2010/07/another-liberal-accuses-others-of.html

    The irony is that i didn’t realize how right I was calling him that. I mean up until then i was being tongue-in-cheek, poking fun without really thinking he was a dangerous stalker. Then in another email he quotes something i said here, and i said to myself, “He is trying to search me out on other blogs. He IS a stalker.”

    So i put him in my junk mail filter. And what do you know, then he shows up here commenting, first under a fake name and when called out on it, suddenly switches to Kman without admitting he was also ken.

    Aaron Worthing (A.W.) (e7d72e)

  48. Typical of your utter lack of any honesty at all.

    not true: JEA is honestly stupid. 😀

    redc1c4 (fb8750)

  49. c&p from my reply to Baseball Crank, but I think it addresses some of the comments here:

    Crank, I tend to agree with you, except as to one important distinction. Whereas, you have elaborated the argument regarding procreation in general, and the State’s interest in protecting and managing procreaiton, I see it on a much more important level – the State’s interest in protecting the result of unplanned procreation. It is a universal truth that, while people who plan for a child tend to be prepared for such (with exceptions, of course), children who ar ethe result of unplanned procreation are at a much greater risk, financially, socially, emotionally, and in all other significant ways. Every study (as well as common experience) testifies to this fact. The State’s interest, as far as I can see, is to protect these children from the repercussions of fatherlessness (and/or motherlessness), and , importantly, the concomitant burden such children, statistically, place upon the State.

    To this end, the State has an interest in encouraging a permanent, legally enforceable, bond between the two (yes, TWO) parents that neither can shirk.

    Now, Judge Walker can argue that 18% of same-sex partnerships are raising childern, but the simple fact of the matter is that exactly 0.00000% of that 18% is raising a child that they did not PLAN to raise. Other than extreme examples (such as rape), it is physically impossible for a man to impregnate another man, or woman impregante another woman. By the same token, absent surgical means (which have not existed throughout the history fo the institution, by and large, excepting from about 50 years ago), there is no way to 100% guarantee that a man-woman pairing will not have a child. Garden-variety miracles like this happen on a fairly regular basis. So to argue that same-sex marriages are on the same plane as opposite-sex marriages, resting as it does on, at best, a selective view of the institution, is inapt. [added from orig.-] And at the least, it is a rational grounds for the voters to approve Prop 8.

    Redhawke (319c1f)

  50. So why should the state be concerned about marriages involving multiple partners. IOW, if a guy wants two wives (or more), and the two women (or more) in question happily consent to being hitched to him, what right does the state (referring to either local or federal governments, or both) have in preventing that? Why should the government be unhappy about polygamy?

    It’s interesting that a variety of what can be characterized as conservatives in some Middle Eastern societies or parts of the Mormon culture are in the forefront of condoning polygamy.

    Generally, the dumbing down of traditional concepts of marriage will do to one part of modern culture what dumbing down has done to, for example, public schools. So anything goes, baby, and salute the lowest common denominator.

    Mark (411533)

  51. AW:

    The “facts” this judge has asserted are laughably bad. I keep hammering it because it is true. it is not a fact that gay marriage will not harm straight marriage. A prediction of the future is not a fact. It is an opinion. Perhaps that opinion is backed up by facts, but that doesn’t change it suddenly into a fact. I know I keep hammering that point down because it is so blatantly wrong.

    True, some of the “facts” have stronger evidentiary support than others — no question about that.

    But there is uncontroverted data from Massachusetts that shows that the straight sex marriage/divorce rates are no different now than they were before that state allowed SSM. Now, obviously, those studies do not (because they can not) reflect marriage/divorce rates over the long term, so that limits the impact of that particular “finding of fact”.

    But to extrapolate these weaker “findings of fact” and come to the conclusion that the entire decision is “laughingly bad” — well, aren’t you doing the same thing that you accuse the judge of doing?

    Ultimately, it doesn’t matter. An appellate court will be able to distinguish solid findings of fact from the less-solid “predictive” facts, just as you and I can.

    Kman (d25c82)

  52. If civil unions gave the full protection under the law as marriage, how does defining marriage as being between a man and a woman actually harm someone?

    JD (d9926c)

  53. Mark:

    So why should the state be concerned about marriages involving multiple partners. IOW, if a guy wants two wives (or more), and the two women (or more) in question happily consent to being hitched to him, what right does the state (referring to either local or federal governments, or both) have in preventing that? Why should the government be unhappy about polygamy?

    It’s a good question.

    I think the state’s interest is that it makes for an administrative burden. For example, suppose polygamous husband A dies without a will — which of the 17 wifes gets the estate? How does one divorce themselves from a polygamous marriage (does it dissolve the entire marriage or just part of it)?

    That’s the legitimate state interest in banning polygamy, and not same-sex marriage. I’ll leave it to others as to whether or not that reasoning “flies”.

    A.W.:

    And what do you know, then he shows up here commenting, first under a fake name and when called out on it, suddenly switches to Kman without admitting he was also ken.

    FWIW, I don’t know anything about a comment under the name of Ken, or getting “called out”

    Secondly, I think you tend to be more obsessive about me, rather than the other way around. In truth, I’m just looking for lively debate with people who think about issues, and don’t necessarily agree with me. If that’s not you, so be it. If that is you, that’s cool too.

    Kman (d25c82)

  54. JD:

    If civil unions gave the full protection under the law as marriage, how does defining marriage as being between a man and a woman actually harm someone?

    The opinion discusses this, but I’ll paraphrase.

    First of all, civil unions don’t give the same protections under the law, but even if they did, there is a sense — held by both Prop 8 proponents and detractors — that “civil unions” is a “less than” social status compared to marriage.

    Kind of like Bayer aspirin vs. the knock-off brand. Technically, they might give the same “protections”, but shouldn’t everyone be allowed access to either one?

    That’s the argument.

    Kman (d25c82)

  55. civil unions don’t give the same protections under the law

    To the extent that that is true in California, and not a result of different federal treatment, it is a violation of the California constitution as interpreted in in re Marriage Cases and Strauss v. Horton, and gay couples should be suing in California court to get the situation remedied.

    aphrael (e0cdc9)

  56. Aphrael

    > JD: No, but I’m looking for the legal principle which makes them different as a matter of law.

    Well, how is this. “No distinction would be tolerated in this purified republic but what arose from merit and conduct.” Where did I get that? From Thaddeus Stevens, who wrote the original draft of the Equal Protection Clause.

    So we say that being black is not a matter of conduct and skin color itself is not a measure of merit. Rather merit itself should be looked at. That is if you want the smartest guy, you look for the smartest guy. That is precisely how the founders of the 14th Amendment looked at it.

    On the other hand, gay sex is conduct. and indeed the founders had a very poor opinion of it.

    Oh, and Stevens also provides a ready distinction between the rules banning interracial marriage and gay marriage. See there is very strong evidence that Stevens had a long term, loving relationship with his black housekeeper, Lydia Hamilton Smith. Its not hard to imagine that he wrote that thing to legalize his own desire to marry. And since he didn’t live long enough to see it ratified, we will never know if he would have proposed to his housekeeper under that new amendment. He died within a few months or ratification.

    By the way, there is a really nice biographical sketch of Smith, here. http://www.civilwarwomenblog.com/2007/08/lydia-hamilton-smith.html

    > The fourteenth amendment does not say “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws on account of their race”.

    Actually a funny thing about that. The original version of the equal protection clause was actually two clauses. One said, more or less, do not discriminate based on race. The other mimicked the final version, only it guaranteed the “equal application” of the laws, without specifying on the subject of race only. They later dropped the race-specific clause because they felt it was reasonably implied in the broader equal protection clause. So that’s a long way of saying you are more correct than you know.

    Indeed, there is strong evidence that the founders specifically intended that women receive a degree of protection under the clause. Stevens himself likened sexism to racism, mockingly saying that sexist republicans “feared the rivalry of women” the same way democrats “feared the rivalry of the negro” (remembering that in the 1860’s, negro was considered a respectful term).

    > Dustin – and various other people – have objected to the process as well as the result. So I’m asking back: what process would you like to see?

    Well, there is what is known as proper rational basis review. In that situation, you don’t put the law’s proponents on trial. You simply ask this. can you imagine any factual scenario where the law rationally serves a legitimate government interest?

    You don’t have to prove that factual scenario. You don’t have to prove it actually advances that interest. The judge only has to be able to imagine something. And that interest doesn’t even have to be the interest the lawmakers actually had in mind in making it.

    If it sounds like people challenging laws based on the rational basis test usually lose, you would be right, and that is frankly the whole idea. The entire system is based on how suspicious it is when discrimination occurs. It is highly suspicious when you race intentional race discrimination because race is almost never relevant in and of itself. I don’t think a racial discrimination has been upheld since brown, except in affirmative action situations. So they get the toughest test; most racial discrimination fails that test. Discrimination against women and illegitimate children, is a little more questionable, but there are real differences that often justify differing treatment. So the test is tough but winnable. But discriminations based on most other traits are generally cakewalks for those defending a statute.

    So for instance, you could make this argument pretty easily. California has a lot of entitlement programs and pensions. Such programs require a large number of children. Therefore the state has an interest in encouraging people to have children. Therefore if we are allowed to discriminate against gay couples, bisexuals will be encouraged to find and enter into straight marriages. They will inevitably have more children. Therefore banning gay marriage improves the solvency of the entitlement state, and thus passes the rational basis review. It doesn’t matter if you think their logic is crap from start to finish, the test is that loose.

    I mean I suppose you might get in trouble if your theory relies on the existence of bigfoot or space aliens. But I suspect the rational basis test should be better entitled “the laugh test.” Because it seems almost anything that would pass the laugh test would also pass rational basis.

    So no finding of facts beyond that necessary to establish that some kind of discrimination is occurring, and that there are real damages proximately caused by it. nope. And once again, the state almost always wins these arguments. Just as they almost always lose when the discrimination is based on race.

    Kman

    > I don’t know anything about a comment under the name of Ken

    Okay, guys I am predicting a little sock puppetry in 3… 2… 1…

    Yeah, you have followed me now into four different sites, but I am obsessed. As usual, you are only fooling yourself.

    And that is my last response to you. i will be executing the filter script so i literally don’t even see your lying, dissembling comments.

    Aaron Worthing (A.W.) (e7d72e)

  57. Aphreal:

    …gay couples should be suing in California court to get the situation remedied.

    Perhaps, but I can see the logic in the “two birds, one stone” strategy. I mean, we all knew there would be a federal challenge to SSM bans some day, right?

    Kman (d25c82)

  58. J.D.

    Two interesting points on that. first the california supreme court found that in every material way domestic partnership is equal to marriage. So the federal judge was supposed to follow that. he did not.

    Second, in Brown v. Bd. of Education, Thurgood Marshall stipulated that the schools that the black students went to were in every material way equal. Now, in reality they were not, not by a long shot. But Marshall was fishing for a ruling that declared that separate could never be equal. and he got it. The supreme court said that the discrimination sent a message of inferiority to black children: “[t]o separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” that meant that whether a specific school had to be desegregated or not was no longer dependent on a specific factual finding that the schools were not equal, because they could never been equal.

    so that is the logic judge Walker was very clearly invoking.

    Only one problem. Stigmatization analysis, as that is called, has no business in rational basis review.

    Aaron Worthing (A.W.) (e7d72e)

  59. On the other hand, gay sex is conduct. and indeed the founders had a very poor opinion of it.

    Fair enough.

    At the same time, though, it seems to be a consensus opinion today that the conduct of gay sex does not undermine merit. The fourteenth amendment doesn’t compel such a conclusion; but if that’s an accurate reading of contemporary mores, then I think it forbids discrimination based on sexual orientation.

    One of the big underlying problems in this entire debate is that SSM is generally promoted by people who attach no moral disapproval to same-sex conduct, while many of those who oppose same sex marriage do attach such disapproval. And I think the existence or non-existence of that disapproval leads to different conclusions.

    The judge only has to be able to imagine something …

    Thank you.

    Would I be correct in saying, then, that the way you think this should have been handled is the judge should have looked at it, decided that it was rational because he said so, and dismissed it.

    I’m surprised by that: I would think that weighing evidence would be preferable to judicial fiat.

    If it sounds like people challenging laws based on the rational basis test usually lose

    Sure.

    The entire system is based on how suspicious it is when discrimination occurs

    Right, and that’s why I continue to think that the single most important holding in in re Marriage Cases wasn’t the legalization of same-sex marriage: it was the declaration that discrimination based on sexual orientation is suspicious and therefore merits strict scrutiny under the California constitution.

    aphrael (e0cdc9)

  60. first the california supreme court found that in every material way domestic partnership is equal to marriage.

    I don’t think that’s an accurate reading of the court cases.

    in re Marriage Cases found that they weren’t equal and mandated equal status.

    Proposition 8 banned gay marriage.

    Strauss v. Horton found that Proposition 8 only took away the *word* ‘marriage’ and that the constitutional requirement for equal status remained.

    Which means that anywhere they aren’t equal, the state is supposed to remedy that and make them equal, and the courts can enforce it if someone sues.

    aphrael (e0cdc9)

  61. Aph

    > at the same time, though, it seems to be a consensus opinion today

    Except what we think today has nothing to do with it. the constitution should be interpreted as the founders understood it.

    > I would think that weighing evidence would be preferable to judicial fiat.

    First, what you are describing as “fiat” is in fact what they do all the time. If I am a hot dog vender, and you are a hamburger vender and I feel the law discriminates unfairly between us, that is the test.

    And its not judicial fiat. It is the opposite. It is judicial deference. The one practicing “fiat” power is the legislature, as they should be able to do, most of the time on most topics. What the rational basis test says is that as a rule the judges are not going to interfere—this issue is for you to work out among yourselves—unless you go really crazy, in which case the judges will step in.

    > the single most important holding in in re Marriage Cases wasn’t the legalization of same-sex marriage: it was the declaration that discrimination based on sexual orientation is suspicious and therefore merits strict scrutiny under the California constitution.

    Actually agree, completely in that assessment. Bluntly once you say discrimination based on sexual orientation merits strict scrutiny it is generally all over. It will be interesting to see how they react long term to being rebuked with proposition 8. The early signs suggest they will say “strict scrutiny except on that one subject”—assuming of course that proposition 8 is upheld in the long run.

    But of course that is just a guess to the future, and hardly set in stone.

    Aaron Worthing (A.W.) (e7d72e)

  62. Aaron – I would add that you haven’t really addressed the way Romer modifies rational basis review.

    Romer says that it’s possible for a law to fail rational basis when the proferred reasons for it are so discontinuous with the law’s effects that the law seems inexplicable by anything other than animus towards a particular class.

    I take the evidence-gathering-and-rejecting in Perry v. Schwarzenegger as hinging on that: the defense’s inability to muster any evidence supporting their proferred justifications for the law indicates that the law was based on animus.

    I agree that this is a novel theory, and as a legal matter I think that’s my primary criticism. Romer certainly doesn’t compel this approach … but neither does it rule out this approach.

    aphrael (e0cdc9)

  63. Aphreal:

    Right, and that’s why I continue to think that the single most important holding in in re Marriage Cases wasn’t the legalization of same-sex marriage: it was the declaration that discrimination based on sexual orientation is suspicious and therefore merits strict scrutiny under the California constitution.

    I’m curious as to why you think discrimination based on sexual orientation is not suspect. There certainly seems to be a long history of discrimination against gays in arenas outside of marriage, as well as open (and not-so-subtle) hostility toward gays among a not insignificant percentage of the population.

    Doesn’t that, if nothing else, make state-endorsed discrimination against homosexuals suspect?

    Kman (d25c82)

  64. Aph

    > I don’t think that’s an accurate reading of the court cases. in re Marriage Cases found that they weren’t equal and mandated equal status.

    Read it again, they were crystal clear in the marriage cases. They said domestic partnership is equal to marriage in every MATERIAL respect. Then they went on to engage in precisely the same stigmatization analysis I described in brown, that the mere separation made it unequal. So materially equal but the psychological effects of calling it something different rendered it unequal. It was really quite bold that way, and given they found strict scrutiny to apply wholly defensible on those terms.

    Aaron Worthing (A.W.) (e7d72e)

  65. aphrael – I don’t have any moral disapproval, yet I do not think this judge acted properly. This decision seems no different than if he had ruled that Timex watches are now Vacheron Constantin.

    JD (3dc31c)

  66. JD:

    I don’t have any moral disapproval, yet I do not think this judge acted properly. This decision seems no different than if he had ruled that Timex watches are now Vacheron Constantin.

    I think the better way to think of it is that the judge ruled that Timex watches and Vacheron Constantin watches are both… watches, i.e., same-sex marriages are “marriages” just like opposite-sex marriages are “marriages”. Or interacial marriages are “marriages”…. etc., etc.

    Kman (d25c82)

  67. I’m curious as to why you think discrimination based on sexual orientation is not suspect

    I think you’re reading something into what I’m saying that isn’t there.

    Currently, for federal equal protection analysis, sexual orientation isn’t a suspect classification. Prior to in re Marriage Cases, in California, it wasn’t a suspect classification.

    So it was a substantial change in California law – and a very, very important one from the point of view of gay rights supporters.

    I’m talking here as a student of law about the standard used by courts – I’m not talking about my own personal opinion of discrimination based on sexual orientation.

    aphrael (e0cdc9)

  68. The early signs suggest they will say “strict scrutiny except on that one subject”—assuming of course that proposition 8 is upheld in the long run.

    I think that’s the only consistent thing for them to do. Proposition 8 was very clear: it said that only marriage between a man and a woman is recognized. It did not say anything about the appropriate standard to use for a decision by the City of Los Angeles, say, to give health care benefits to married partners but not to registered domestic partners … and the ballot statement by the official proponents of Proposition 8 was very clear that the intent of the law was not to abrogate other rights of gay people.

    aphrael (e0cdc9)

  69. Aph:

    I think you’re reading something into what I’m saying that isn’t there.

    Yup, I sure was. I stand corrected.

    And obviously, I agree. Making sexual discrimination a suspect class (finally) was a huge deal, historically.

    Kman (d25c82)

  70. Why is it, aphrael, that you assume additional motives of those that do not wish to see a thousands year old definition changed to mean something it has never meant, but you do not assume motive for those than want to fundamentally alter this term?

    JD (3dc31c)

  71. JD – I think the only place I’ve assumed additional motives is when I’ve said that I don’t believe procreation is the only motive – because if it were, then people would object to octogenarian weddings.

    I have also said One of the big underlying problems in this entire debate is that SSM is generally promoted by people who attach no moral disapproval to same-sex conduct, while many of those who oppose same sex marriage do attach such disapproval

    Which, please note, does *not* say that all opposition to gay marriage is motivated by such moral disapproval. It merely says that many are so motivated – a statement which I think is incontrovertibly true, and which I would be foolish to deny.

    aphrael (e0cdc9)

  72. _____________________________________

    I think the state’s interest is that it makes for an administrative burden.

    But if polygamous relationships make for more paperwork for the bureaucracy, the same idea applies just as well — if not more so — to conventional revolving-door marriages. Yet short-lived, no-fault, Hollywood-quickie divorces are pretty much a given, and easily accepted by the government, particularly ones in states like California.

    In fact, since processing legal material for traditional marriages and, in turn, updating such documents when a divorce has occurred pertains to millions of more couples and is far more common, the nuisance of that is way greater than any workload related to polygamy.

    Mark (411533)

  73. Aaron: I’ve tried four times to post the full text of the part of the opinion where the court lists the actual legal differences between domestic partnerships and marriages, but each time I do it, the comment fails to post. It’s footnote 24 on pages 42-44.

    Item 8 is irrelevant as it’s part of the state constitution.

    Item 9 is now void.

    Items 1-7 still exist in state law and are presumably (a) subject to challenge and (b) invalid absent a compelling state interest (which can certainly be mustered as to 7 and probably as to 1).

    aphrael (e0cdc9)

  74. the same idea applies just as well — if not more so — to conventional revolving-door marriages

    Aha! But the fact that the state has not, as a policy matter, chosen to prohibit something with administrative cost [X] does not demonstrate that it would be irrational to prohibit something else with that same administrative cost.

    aphrael (e0cdc9)

  75. Aph

    Well, now we are getting into a real intellectual discussion, talking the finer points of interpretation. Or as I would say, in my legal geeky way, now we are having fun! There is a logic to practicing what was referred to as the legislative dialogue, although here I guess you would call it the constitutional dialogue, that actually would come up with a different conclusion than what the Cali supreme court seems to be doing.

    For instance, in Webber, the supreme court upheld affirmative action under Title VII. So years later when the issue came up again in Johnson v. Transportation agency, they said since the legislature has had numerous chances to correct us, we will continue to read it that way. First they quoted Guido Calabresi for the proposition that:

    “When a court says to a legislature: ‘You (or your predecessor) meant X,’ it almost invites the legislature to answer: ‘We did not.’”

    Then they say “Any belief in the notion of a dialogue between the judiciary and the legislature must acknowledge that, on occasion, an invitation declined is as significant as one accepted.”

    In the same case they talk about the opposite case: Newport News Shipbuilding & Dry Dock Co. v. EEOC. Prior to Newport the supreme court held that discrimination based on pregnancy was not a form of sex discrimination. Congress passed a law specifically saying that, yes it was. In Newport News they were faced with a form of discrimination that wasn’t technically covered by the new statute. Justice Stevens said that “we shall consider whether Congress, by enacting the Pregnancy Discrimination Act, not only overturned the specific holding in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), but also rejected the test of discrimination employed by the Court in that case. We believe it did. Under the proper test petitioner’s plan is unlawful, because the protection it affords to married male employees is less comprehensive than the protection it affords to married female employees.”

    So there are times when a court can take adverse action by the legislature as a more significant rebuke, thus overturning more than just the narrow holding in the prior case.

    Indeed, I discuss how the citizenship clause was seen as a (federal) constitutional rebuke to the Dredd Scott decision, when debating the seating of hiriam revels over at legal insurrection. In other words, the 14th Amendment didn’t just reverse Dredd Scott, it said that this decision was wrongly decided.

    It’s a long comment, and you can find the first part, here: http://legalinsurrection.blogspot.com/2010/08/obamas-birther-strategy-has-backfired.html?showComment=1281102669977#c6543946147822869795

    The stuff at the heart of the 14th A issue is found in the very next comment.

    Should the Cali supreme court have found that their approach was rebuked to a greater degree. I feel like living on the opposite side of America, I don’t know. But I will say this. the plain language of proposition 8 should have invalidated all of those prior marriage. And I do feel that the sentiment in California wasn’t that they were taking away rights previously granted but rather correcting the supreme court which had gone too far. But it doesn’t follow from all of that that gay couples should not otherwise receive strict scrutiny on other issues.

    But since you characterized yourself as having an academic interest, I figured you still might find the discussion interesting, even if it doesn’t point a big neon sign toward a certain conclusion.

    By the way, here is a link to Johnson: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0480_0616_ZO.html

    That case has citations for webber, and Newport, and Newport in turn links to the prior decisions, if you want to look them up and see what you think of them.

    Aaron Worthing (A.W.) (e7d72e)

  76. aphrael – I have no opposition to gay marriage. I simply object to a Judge redefining a term to mean something it has never meant This will be viewed as a victory for the supporters of this kind of activism, but will be a Roe-ish decision for those that do not, and will not go away.

    JD (3dc31c)

  77. A little background on the judge, yes he’s very objective, sarc,

    http://news.yahoo.com/s/ap/20100806/ap_on_re_us/us_gay_marriage_trial_judge

    ian cormac (e4f5e5)

  78. JD

    > Why is it, aphrael, that you assume additional motives of those that do not wish to see a thousands year old definition changed to mean something it has never meant, but you do not assume motive for those than want to fundamentally alter this term

    Well, to be fair, JD, i don’t think the pro-gay marriage side at its core was about anything more than getting the right in question. Of course some of the ads against prop 8 had very bigoted material related to mormons. but honestly, i don’t see how persuasive that would have been.

    And of course some gay marriage proponents said some really racist crap about how black people voted strongly in favor of proposition 8. But i don’t think when they were in the ballot box they were going, “now i will stick it to the n—-rs,” you know?

    aph,

    I will reread that decision tonight. i could have sworn they said what i said. if not i will take back one bad thing i said about judge walker. But its a bit like trying to empty the red sea with an eye dropper.

    Aaron Worthing (A.W.) (e7d72e)

  79. Well, to be fair, JD, i don’t think the pro-gay marriage side at its core was about anything more than getting the right in question.

    Then civil unions with the exact same legal protections would have been acceptable, no?

    JD (3dc31c)

  80. aphrael – Thank you for taking the time and effort to lay out the arguments of the case and some of the related history. I have not read the trial transcript and as you can tell from my comments am not as close to the case as you.

    I think what you are seeing across the course of many threads is the feeling of an overreaching decision by the judge, which as you point out, was perhaps partially driven by a less than aggressive defense compared to the case put on by the plaintiffs. Many of the comments are raising questions or issues which were not brought up by the defense and seem logical.

    daleyrocks (940075)

  81. But the fact that the state has not, as a policy matter, chosen to prohibit something with administrative cost [X] does not demonstrate that it would be irrational to prohibit something else with that same administrative cost.

    Restricting one thing based on its cost to the government is irrational if something else that is rather similar to it (but something that involves two-people-only relationships) is incurring even greater costs.

    If you think most arguments against same-sex marriages are flimsy, then arguing against multi-partner relationships based on their cost to the government being too high is super flimsy. Even more so if such an argument is emanating from people of liberal, pro-big-government, tax-and-spend persuasion.

    Mark (411533)

  82. Well wholly apart from the mere fact he was gay, even if he was actually straight, the judge had engaged in some really, really problematic behavior. Let me quote Ed Whelan at length.

    From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. Consider his series of controversial—and, in many instances, unprecedented—decisions:

    Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate. Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality.

    Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial.

    Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors—a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.

    Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who voted in support of Prop 8.

    Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.

    And so on.

    Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.

    I fully concur with that. if anything he was too kind. Two times the higher courts had to intervene to keep this case from going completely off the rails. And now we have this piss poor opinion, with its ridiculous assertion of facts that can’t reasonably be considered to be factual. I mean he professes certainty about the future and the workings of the human heart, when actual scientists find both impossible to predict.

    Anyway, links to each asserted fact and many judicial opinions, here: http://www.nationalreview.com/bench-memos/49294/judge-walkers-skewed-judgment/ed-whelan

    Aaron Worthing (A.W.) (e7d72e)

  83. JD

    to play devils advocate, okay my wife is not the same race as me. do you think i would have been satisfied if the state of virginia said “well, since she is not of your race, we will call that a civil union and not a marriage”?

    So i don’t think gay people are being irrational to ask for gay marriage. but i think they need to get it from their states, not the federal government.

    Aaron Worthing (A.W.) (e7d72e)

  84. Nor is my Better Half, A.W. so I do not really buy that argument anymore than I would equate sexual orientation and race.

    JD (3dc31c)

  85. Why is this considered discrimination against homosexuals? Are heterosexuals not also precluded from this as well?

    JD (3dc31c)

  86. well, i am not saying being gay is like being black, but i am saying i can understand why gay people wouldn’t want to settle for nothing less than the “gold standard”–i.e. full marriage.

    I oppose this decision, but i understand where gay people are coming from trying to get it.

    Aaron Worthing (A.W.) (e7d72e)

  87. So do they get to sue the IRS and Feds now that SSM is a new right?

    I’ve always believed that marriage is a strictly religious idea. The states main interest is who’s gonna be responsible for raising the children. Look up Bastardy Bonds for those unwed. Factor in income taxes and probate and the state has additional finacial stakes in “traditional” marriage.

    DNA testing will now tell who the father is so they know who to stick with the bill. Those getting married/domestic relationships be required to get a pre-nuptial and make them binding. Last thing marriage does is who’s gonna get stuck with all the bills when you die.

    Gerald A (5422e0)

  88. Maybe now there’s hope that I can some day legally adopt my 50-year-old neighbor.! Calling him “Son” just isn’t the same.

    jodetoad (7720fb)

  89. To the extent that McLaughlin was saying that the will of the majority should always trump constitutional protections, that is a legitimate position.

    That’s not even remotely what he said. And the opinions of judges have jack to do with constitutional protections.

    Subotai (67e41e)

  90. I think the better way to think of it is that the judge ruled that Timex watches and Vacheron Constantin watches are both… watches, i.e., same-sex marriages are “marriages” just like opposite-sex marriages are “marriages”. Or interacial marriages are “marriages”…. etc., etc.

    I think the best way to think of it is to realize that judges are not supposed to be in the business of defining watches, marriage, or any other term.

    I’d ask you for a constitutional justification for the role of judges as definers of words, but we both know you’ve never answer.

    Subotai (67e41e)

  91. Subotai: the constitution vests the judicial power in judges. Part of the judicial power has, at least in the anglo-saxon system, always been to determine the meaning of the words in the legislation or contract.

    If you can’t define the words, how can you interpret the document?

    aphrael (e0cdc9)

  92. The 14th amendment makes mincemeat of a state’s preference for “nuclear families” or whatever

    Perhaps it will, if it is ever ratified.

    Subotai (67e41e)

  93. Aphrael – This is not a case of defining a new word. It is a case of taking a word that has meant one thing for time eternal, and changing that word to mean something else.

    JD (5e6692)

  94. “It is a case of taking a word that has meant one thing for time eternal, and changing that word to mean something else.”

    JD – That’s not quite fair. There is at least 40 years of support for the new definition plus a bunch of soft science experts standing behind it.

    daleyrocks (940075)

  95. not same sex marriage
    issue is one judge trumping
    seven million peeps

    ColonelHaiku (d7de3f)

  96. Getting away from the purely constitutional and legal aspects of same-sex marriages and this ruling, I was watching a late-night TV talk show a few months ago. One of the guests was an actor who plays the role of a homosexual on a TV series.

    A portion of the interview was both strangely awkward and ironically amusing because the actor was asked by the host about personal relationships. The actor at first made sort of a mock response about his dating guys (or something like that). The interviewer then paused, didn’t really respond, and then the guest acted like he had just made a joke. A sort of embarrassing puzzlement surrounded the whole exchange.

    This in spite of the two undoubtedly being socially-politically quite liberal, living in left-leaning LA, and employed in an industry (ie, Hollywood) full of “progressivism” and do-your-own-thang.

    If even famous Greek philosopher Plato over 2,000 years ago ended up frowning on homosexuality, there must be something intrinsic in human nature — spanning eons, generations and various waves of differing politics and governments — that considers gay behavior peculiar and off-putting.

    Mark (411533)

  97. JD: I believe that Subotai claimed that judges should not be in the business of defining any other term. I’m challenging that breathtakingly broad claim, not the narrower claim you are defending.

    aphrael (e0cdc9)

  98. Understood, aphrael. I do not agree with that contention either. Nor do I agree with Mark’s contention. But I disagree with the judge even more, well maybe not more, just that his actions have broader consequences.

    JD (3dc31c)

  99. Comment by aphrael — 8/6/2010 @ 11:25 am

    An interesting argument, but I think one unsupported by the actual debate on the 14th Amendment. I think the idea of reexpressing every statute as creating “classifications” – and attacking via “equal protection” – was a sophistry foreign to the drafters of the 14th Amendment. I don’t think they were looking at any thing except race. None of them seemed to consider that it would have anything to do with gender discrimination as an example.

    SPQR (26be8b)

  100. Questions: when did the state begin issuing marriage licenses, and why? If a civil union and a marriage have identical legal consequences, why should they be called by different names? If a civil union and a marriage have different legal consequences, why should one group be forbidden to have one, while the other is allowed to choose?

    htom (412a17)

  101. I don’t think they were looking at any thing except race. None of them seemed to consider that it would have anything to do with gender discrimination as an example.

    Under the lefts “interpretation” of the 14th amendment, the 15th and 19th should have been unnecessary. The magic words “due process” and “equal protection” should have sufficed to give blacks and women the right to vote.

    Subotai (67e41e)

  102. If you can’t define the words, how can you interpret the document?

    Is that supposed to be a serious question?

    I might as well ask you, “If I can’t define the words you use, how can I interpret what you’re saying?”. The answer, in case you don’t know, is that we can “interpret” what we say to one another because we use symbols (words) with an agreed upon meaning.

    Judges are supposed to be servants to many, many things. The law, for one. Society, for another. Language, for a third. If they are really perplexed about what common everyday words mean, they can ask the legislature for guidance. Hell, they could ask a class of high-school kids.

    I realize that this tends to inhibit their creative freedom to “interpret” and “define”, but they could always find another line of work.

    This business of redefining the word marriage, while insisting that it is not being redefined, reminds me of something out of Animal Farm.

    Subotai (67e41e)

  103. I say this as someone who voted against Prop. 8, but who wants to see gay marriage accepted by the populace, not crammed down their throats by their judicial betters.

    Do you an opinion on the Equal Rights Amendment ?

    There is a strong case that defining marriage as between one man and one woman would be unconstitutional under such an amendment.

    1. Tradition is important only when Judge Walker says so. Judge Walker simultaneously casts aside as irrelevant the traditional meaning of marriage, when deciding the importance of tradition to the justification for the law. Yet in the next breath, he declares domestic partnerships to be inadequate because of the traditional importance of marriage. As Dan elegantly puts it: “Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It’s this analysis, not the view of the California electorate, that fails the test of basic rationality.”

    I fail to see how Justice Ginsburg would even accept such reasoning, let alone Justices Scalia or Thomas.

    Many laws are overturned for legal reasons, but it is exceedingly rare for laws to be overturned because a single judge has found them to be irrational. The result is even more offensive when the law is passed as a proposition voted on by the people at large, as it pits the views of a single judge against the collective wisdom of the citizenry of an entire state. This is rule by philosopher king, and it is rarely more blatant.

    There is more. Baker v. Nelson already decided that the due process and equal protection clauses do not prohibit states from denying marriage licenses based on the gender of the partners. Walker did not even address that.

    That is sloppy beyond sloppy. That is like a federal judge overturning a polygamy ban without mentioning Reynolds v. United States or Davis v. Beason, or a judge upholding an interracial marriage ban without mentioning Loving v. Virginia.

    That said, would anyone here have a problem with allowing same-sex marriage, and we just all agree to call it a “non-traditional” (yet legally valid) marriage? I mean, is it the semantics that is the sticking point?

    I have no problem with it.

    Assuming the judge is basing his decision on the trial record, what did you want him to do?

    Apply precedent (Baker)

    The irony, in fact, is that the decision by this judge is so rotten that it might hurt his cause.

    Perhaps, but he was not the only judge to have decided that defining marriage as between one man and one woman is unconstitutional.

    Texas district court Judge Tena Callahan ruled that Texas’s marriage laws that defined marriage were unconstitutional; the case is being appealed by Texas, of course.

    There is also a similar case in Louisiana.

    Even if the Ninth Circuit overturns Perry v. Schwarzenegger, this issue will still be decided in Texas’s appellate system and the Fifth Circuit, respectively.

    I think the state’s interest is that it makes for an administrative burden. For example, suppose polygamous husband A dies without a will — which of the 17 wifes gets the estate? How does one divorce themselves from a polygamous marriage (does it dissolve the entire marriage or just part of it)?

    Anti=polygamy laws came up before the Supreme Court, and were upheld.

    What rationale did the Supreme Court use?

    First of all, civil unions don’t give the same protections under the law, but even if they did, there is a sense — held by both Prop 8 proponents and detractors — that “civil unions” is a “less than” social status compared to marriage.

    The 14th Amendment has never been interpreted to protect social status.

    The fourteenth amendment doesn’t compel such a conclusion; but if that’s an accurate reading of contemporary mores, then I think it forbids discrimination based on sexual orientation.

    Why would contemporary mores be relevant?

    Should not the mores of 1868 be used to determine the scope of the 14th Amendment, since that was when it was ratified?

    to play devils advocate, okay my wife is not the same race as me. do you think i would have been satisfied if the state of virginia said “well, since she is not of your race, we will call that a civil union and not a marriage”?

    Racial and racial orientation discrimination is held to a higher standard than sex or sexual orientation discrimination.

    Under the lefts “interpretation” of the 14th amendment, the 15th and 19th should have been unnecessary. The magic words “due process” and “equal protection” should have sufficed to give blacks and women the right to vote.

    So why did not the 14th protect the women’s right to vote?

    Michael Ejercito (249c90)

  104. I doubt it hurts his cause it seems the more we talk about gay marriage the more people are ok with it.

    People are funny like that.

    happyfeet (19c1da)

  105. here is a song about how people are particularly susceptible to the repetition and here is a song about how people are particularly susceptible to the repetition

    happyfeet (19c1da)

  106. People all butt-hurt
    over the gay marriage ban
    getting overturned

    Chris Hooten (c5fad1)

  107. An important practical point missed in these discussions:

    We know the defendants did a TERRIBLE job at trial. The NOMINAL defendants — the Governor and the state AG — declined to defend at all. The defense at trial was run by attorneys instructed by defendant intervenors, or DIs. We know that substandard attorney work at trial on behalf of the losing side does not make the chances of the losing side winning on appeal easier. In fact, it makes them tougher.

    Where is the basis for thinking the DIs will improve in the stay motion (Look at the expedited filing on the stay motion.), or on the appeals.

    shooter (32dc25)

  108. On the three Patternico Points:

    1. So weak it is not even wrong: This can have meaning at trial, but from then on, the force gets weaker. Neither appeal will turn on this.

    2. Wrong headed: It was not Judge Walker who trivialized the interest; it was the facts that did that. The proponents can and will attack how Judge Walker marshalled the facts, but they will need to be able to point to facts that were missed. The trial record contains no such facts.

    3. Wrong country: Patternico posits a philosophical view, not a legal standard. One can argue Judge Walker applied the wrong legal standard in rationality, but the opinion actually deals with all potential legal standards. Patternico is promoting a shallow, simplistic, antiquated, discredited, pre-Enlightenment view of democracy, counting on the possibility of SCOTUS holding that constitutionally guaranteed civil rights to due process and equal treatment under law can be voted out of existence by simple majority.

    shooter (32dc25)

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    matt (47172f)

  110. I doubt it hurts his cause it seems the more we talk about gay marriage the more people are ok with it.

    People are funny like that.

    Comment by happyfeet — 8/6/2010 @ 11:47 pm

    Kinda like how we’ve gone from a government with enumerated powers to one that, according to Pete Stark, can do just about anything. Only now, we don’t like it so much.

    People are funny like that.

    Matador (10518b)

  111. The proponents can and will attack how Judge Walker marshalled the facts

    He didn’t marshal any facts in the first place.

    Gerald A (2b94cf)

  112. ______________________________________

    People are funny like that.

    There’s the phrase that a conservative is a liberal who has been mugged. In a quirky variation of that, I’m sure a percentage of people who sympathize with the idea of same-sex marriage, but who don’t consider themselves gay (or necessarily bisexual), have had personal experiences with homosexuality or, more accurately, bisexuality.

    Some people also may have family members or friends who are homosexual (ie, Dick Cheney), which internalizes their opinions of homosexuality in general, same-sex marriage in particular.

    However, since a very high percentage of gays (80% or more) are of the left, and since the largest portion of the electorate overall that feels the most touchy-feely about non-conforming behavior tends to lean left, I’d say that liberal sentiment is the main predictor of how people will form their POV on homosexuality and SSM.

    Mark (411533)

  113. “I doubt it hurts his cause it seems the more we talk about gay marriage the more people are ok with it.”

    Mr. Feets – Apart from the judicial activism angle, it just seems like a non-issue this election season when there is so much else to talk about and that has people like Rachel Maddow confuzzled.

    daleyrocks (940075)

  114. Some people also may have family members or friends who are homosexual (i.e., Dick Cheney),

    Colonel not know Dick
    Cheney play for other team
    Colonel not know that!

    ColonelHaiku (2916e8)

  115. the possibility of SCOTUS holding that constitutionally guaranteed civil rights to due process and equal treatment under law can be voted out of existence by simple majority.

    Constitutionally guaranteed civil rights can be voted out of existence by a simple majority. Read the Constitutions amendment process.

    None of which has anything to do with gay marriage, which is not a constitutionally guaranteed civil right.

    Subotai (bfa4b1)

  116. okay my wife is not the same race as me. do you think i would have been satisfied if the state of virginia said “well, since she is not of your race, we will call that a civil union and not a marriage”?

    The law does not exist to give you satisfaction.

    Subotai (bfa4b1)

  117. Wrong country: Patternico posits a philosophical view, not a legal standard.

    a) Who the heck is “Patternico”?

    b) Dan McLaughlin write the points you are supposed to be responding to.

    c) Judge Walker’s requirement that laws be justified to him by evidence is contrary to the law.

    Subotai (bfa4b1)

  118. Colonel not know Dick
    Cheney play for other team

    That should have been “eg, Dick Cheney” and referred to his daughter being homosexual.

    As for the issue of “nurture or nature?” in the way that children turn out. I understand Cheney’s wife, Lynn, wrote a novel several years ago that featured a scene with a female character involved in a romantic liaison with another female. So genetics perhaps are responsible for aspects of the daughter’s sexuality and the family’s politics undoubtedly are responsible for that daughter not being a typical gay liberal. So one can be homosexual and also retain or be encouraged to have a bit of common sense. Not a common or easy outcome, but possible.

    Mark (411533)

  119. crissyhooten’s streak of 100% idiocy 100% of the time.

    JD (3dc31c)

  120. Should not the mores of 1868 be used to determine the scope of the 14th Amendment, since that was when it was ratified?

    Do you also think that the mores of 1789 should detemrine the scope of the free speech / press provisions of the first amendment?

    aphrael (73ebe9)

  121. The defense at trial was run by attorneys instructed by defendant intervenors, or DIs. We know that substandard attorney work at trial on behalf of the losing side does not make the chances of the losing side winning on appeal easier. In fact, it makes them tougher.

    Right. And one of the things that irritates me slightly about the argument over this is that substandard work by attorneys loses cases all the time, and the rules for getting (say) convictions overturned because of the quality of representation create a very, very tough bar to it. I don’t see any a priori reason why the rules should be different here.

    Where is the basis for thinking the DIs will improve in the stay motion (Look at the expedited filing on the stay motion.), or on the appeals.

    That’s a good point.

    I would say, though, that appellate work and trial work are very different beasts, and that it’s possible to be good at one while being bad at the other – so there’s also no basis for thinking the DIS will not improve. :)

    And I would add that I’m not entirely convinced that the poor performance at trial wasn’t deliberate – poor performance at trial could bait the judge into an opinion which appears biased to anyone who hasn’t read the trial record, which may create the correct <em.political effect if your ultimate goal is a federal constitutional amendment banning gay marriage.

    aphrael (73ebe9)

  122. because we use symbols (words) with an agreed upon meaning.

    Aha! but many contract disputes entail two sides who claim they meant different things when they signed the contract, and many statutory cases involve legislative language which was deliberately left ambiguous by a Congress which knew that ambiguous language would get more votes than specific language would.

    In these cases, if the court can’t say “this is the meaning of the word under dispute”, what is it supposed to do?

    Constitutionally guaranteed civil rights can be voted out of existence by a simple majority. Read the Constitutions amendment process.

    That’s simply not true, as you could tell if you looked at the text you are telling people to read:

    The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress

    Neither two thirds nor three fourths are a simple majority.

    aphrael (73ebe9)

  123. Some people also may have family members or friends who are homosexual (ie, Dick Cheney), which internalizes their opinions of homosexuality in general, same-sex marriage in particular.

    There’s something to this.

    Opposition to SSM tends to go down in communities which have otherwise normal openly gay populations – which is to say, not the people marching in gay pride parades in outre outfits, but people you encounter in day-to-day life who are (a) open and (b) appear to (other than sexual orientation) be othewise indistinguishable from everyone else.

    aphrael (73ebe9)

  124. Apply precedent (Baker)

    There’s very good reason to believe that Baker isn’t good law after Romer and Lawrence.

    That said, the opinion should at least have addressed the issue, and it didn’t.

    aphrael (73ebe9)

  125. aphrael – I don’t think anyone has a problem with the courts clarifying meaning. I think the problems arise when they redefine to mean something that it has never meant.

    JD (3dc31c)

  126. a) Who the heck is “Patternico”?

    Colonel think he know
    he paterfamilias
    most wonderful site

    ClonelHaiku (2d4d13)

  127. shooter is really really really invested in repeating repeating repeating that the Judge’s findings of social science opinions are facts facts facts.

    JD (3dc31c)

  128. not the people marching in gay pride parades in outre outfits

    But that is the most public face of the world of homosexuality in modern American society.

    I wonder how many people who shed tears over the lack of same-sex marriage are less bothered by the spectacle of Gay Day parades — or, worse, not bothered by such spectacles at all — than by, for example, the sight of Tea Party rallies?

    I’m aware of several politicians on the left in urban America who happily appear in Gay Day parades but wouldn’t be caught dead at a Tea Party rally. Of course, I don’t expect such political figures to embrace events associated with a philosophy that’s to the right of them. But what does that say about their willingness to join events associated with explicit, I’m-a-freak-and-proud-of-it sexuality?

    I don’t care to, nor do I want to, sympathize with a large portion of society most enthusiastic about SSM, if not because of its sexuality than because of its ideology, or visa versa.

    Mark (411533)

  129. Patterico wrote that “Judge Walker trivializes the state’s interest in couples that can procreate.” But once you accept that line of thinking, some truly nasty possibilities logically emerge. We may soon be subject to one.

    I recently wrote a post that discussed how the “state’s interest” argument was used to justify a two-tier national health care system. The first tier would be people guaranteed coverage. The second tier would be given “discretionary” health care.

    What’s the difference between the two? The value of the individuals to the state, wrote Ezekiel Emanuel, Rahm’s brother, in 1996:

    “This civic republican or deliberative democratic conception of the good provides both procedural and substantive insights for developing a just allocation of health care resources. Procedurally, it suggests the need for public forums to to deliberate about which health services should be basic and should be socially guaranteed. Substantively, it suggests services that promote continuation of the polity, – those that ensure future healthy generations, ensure development of practical reasoning skills, and ensure full and active participation in public deliberations – are to be socially guaranteed as basic. Conversely, services provided to individuals who are irreversibly prevented from being or becoming participating citizens are not basic and should not be guaranteed. An obvious example is not guaranteeing health services to patients with dementia. A less obvious example is guaranteeing neuropsychological services to ensure children with learning disabilities can read and learn to reason.”

    When you start thinking of the state as some super-entity with rights superior to those of individuals — instead of an instrument set up by individuals to defend individual rights — you get into some very dangerous territory.

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

  130. hey aphrael what
    your opinion of Folsom
    Street Fair in SF?

    ClonelHaiku (2d4d13)

  131. Colonel try new name
    out with the old in with the
    new he always say

    ColonicHaiku (2d4d13)

  132. One of the big underlying problems in this entire debate is that SSM is generally promoted by people who attach no moral disapproval to same-sex conduct, while many of those who oppose same sex marriage do attach such disapproval. And I think the existence or non-existence of that disapproval leads to different conclusions.
    Comment by aphrael — 8/6/2010 @ 12:23 pm

    I agree with this statement, with the following observations:
    1. I believe the fact that this is so, in a strict sense, makes no difference in how the law is decided. It clearly suggests motive to why some people would argue the way they do, but does not directly bear on rational argument as to what the law should say.
    2. The fact that this is so suggests differences in opinion will always be irreconcilable on some level, such as belief concerning abortion.
    3. Is there a way in a pluralistic society that “both sides” can accept some commonly held “status quo” and is that defined legally, and how?

    My apology for not being able to provide my thoughts in a more cohesive and brief manner. I do want to comment, however, as I have commented on this subject numerous times in the past, with specific issues raised, that have never been answered, most recently comment #133 in this thread: http://patterico.com/2010/08/04/prediction-californias-anti-gay-marriage-amendment-will-be-struck-down-today/#comments

    Perhaps my thoughts are judged to be inconsequential or without merit to be worthy of a response, perhaps no one wants to venture a response. Until I am shown otherwise, however, I am assuming it is because no one has a good response. I will first present the basic question, and any interested can continue reading the accompanying discussion.

    The question is, when a moral position is codified into law, what are the consequences? Suddenly there is an official state-enforced standard of right belief as well as of right behavior. One could object and say that one can still believe whatever they want about same-sex activity and partnerships, they just have to act as if they believe they are equally “legitimate”. But to be required to act as if one’s moral and religious beliefs “don’t count” is hardly an intellectually honest understanding of religious freedom. When the public school teacher insists that SSM is a full legal and moral equivalent of heterosexual marriage, what is the child from a family that disagrees to do? What is the teacher to do when a student publically objects in class? If you say this will never be an issue, are you willing to fight for repeal of the law when your sentiment is shown to be wrong? Will you contribute to the defense fund?

    It seems to me there is an unavoidable logical conflict/inconsistency to be faced. One either believes that a SS couple in a legally sanctioned partnership is the equivalent to a heterosexual couple in a similarly sanctioned partnership, or one does not. There is no legal argument concerning equal protection that will ever change that. Any attempt to change the definition of marriage is just that, to say that “marriage” means something different than it has for thousands of years is to make a new definition, to claim a new truth.

    Perhaps the law needs to be changed to reflect a legal sanction of “a partnership of consenting adults where the emotional and social aspects of life are shared in addition to material property”, and the term “marriage” can be applied to one type of such an arrangement, such as saying dogs and cats are different, and are called different things, but that does not mean one is better than another (even though many will continue to believe “marriage” is “better” than the “equivalent” for a same sex couple).

    I still am waiting to see a satisfactory argument as to why this will not be changed to include more than two people, or to include minors. Once you set the precedent that “marriage” can be whatever you say it is in order to “be fair” to some non-traditional grouping of people, it is simply by whim of a judge under the influence of vocal opinion when it will be changed again. I don’t buy arguments such as a paperwork burden. If that argument would stand we could use it against ObamaCare.

    In a representative democracy I believe that most law reflects the moral beliefs of the majority of society, whether we see it in that perspective or not. There is no reason the law has to say that stealing is illegal. It is simply true that the overwhelming majority of the population think it is “wrong” to steal. One could say that nothing of the sort is true, that people are making no judgment of morality, they just think a society that permitted stealing would be practically more chaotic and unpleasant.

    While that objection is true, for the moment I will claim that the vast majority of Americans would not consciously say they believe in anything other than the “stealing is illegal because it is wrong” concept.

    So the societal conflict comes when a moral position held by a minority of the population is turned into law. It causes a persistent difficulty because it is not simply a difference of opinion on a matter such as how to finance the construction of highways. People generally agree highways are a good thing and need to be built and maintained. They may disagree as to how many, where, how big, construction materials, and how paid for, but none of those in themselves are moral or philosophical questions.

    The problem with SSM is exactly because there is a moral issue at the heart of it. Some do not simply want the law to treat SS couples the same as a heterosexual couple, as could be done with civil unions, because they interpret that as to continue to imply that a SS partnership is somehow fundamentally different than a differing sex partnership, and that is exactly what they want to erase. On the other hand, that is why many see civil-unions as a reasonable compromise, because they don’t want to, or be accused of, treating SS couple differently, but they still believe there is an inherent “difference” that is so obvious as to not require an explanation.

    The problem of understanding principle in the midst of changing circumstances is at issue here. Historically, the human race depended on the heterosexual family unit for survival. The economic and technological circumstances that allow for single parent families and SS couples having children are quite recent in the scope of history, and protecting that fundamental building block of society by the government has logical merit. The question as to how ss couples do at raising children compared to heterosexual couples is a question yet to be answered, for those who want such documentable evidence. We do know on the whole that single parent households, especially where no father figure is present, do not do as good a job as raising children when measured by crime and educational status achieved. And we know that as data is collected concerning SS households the interpretation of the data will be prone to unconscious or conscious manipulation.

    MD in Philly (5a98ff)

  133. same sex marriage is awesome you get to have cake!

    happyfeet (19c1da)

  134. MD in Philly,
    I have a few answers to your concerns, from a Libertarian perspective, of course.

    Approach these issues from a position of individual rights. Just because you have the legal right to do something doesn’t imply moral approval. IOW, legality and morality are different animals. People are free to believe in Satanism under the First Amendment, for example, but that’s not an endorsement of Satanism. The government simply doesn’t have the power to intervene.

    The question is, when a moral position is codified into law, what are the consequences? Suddenly there is an official state-enforced standard of right belief as well as of right behavior.

    I’d say the state has not right to interfere in private relationships and contracts (which is what marriage is), unless there is demonstrable harm to people. And the state should stay out of the morality business. It should focus on the essentials, namely military security and fighting crime.

    One could object and say that one can still believe whatever they want about same-sex activity and partnerships, they just have to act as if they believe they are equally “legitimate”. But to be required to act as if one’s moral and religious beliefs “don’t count” is hardly an intellectually honest understanding of religious freedom.

    One can disapprove of something while acknowledging that it is legal. In that case, one has to use persuasion to advance a cause. Make it understood that government is not your moral instructor, be it in marriage, how much salt you can have in your food, or whether you must install thermostats that can be controlled by the utilities without your consent.

    When the public school teacher insists that SSM is a full legal and moral equivalent of heterosexual marriage, what is the child from a family that disagrees to do? What is the teacher to do when a student publically objects in class? If you say this will never be an issue, are you willing to fight for repeal of the law when your sentiment is shown to be wrong? Will you contribute to the defense fund?

    There are two possibilities.

    1: As above, the family can tell the child that just because something is legal doesn’t make it right.

    2: Provide vouchers so it’s financially feasible for parent to send children to private schools. The competition would benefit all students, even those who continue to use public schools.

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

  135. I don’t buy arguments such as a paperwork burden. If that argument would stand we could use it against ObamaCare.

    Raising the point of “burden” upon the government as a reason to oppose polygamy, while at the same time nodding in approval over the idea of same-sex marriage, shows just how much grasping of straws occurs when there is ambivalence towards (or disapproval of) one but not the other.

    If homosexuals have to be accommodated based on the idea that they’re inherently that way — that it’s a matter of biology and not choice (IOW, homosexuality is analogous to race or ethnicity) than the fact that male nature (ie, biology) is generally non-monogamous also deserves special recognition. That’s why some people (certainly guys) will be less bothered by the notion of expanding the boundaries of marriage to include multiple-partner groupings and not just one-male-one-female and male-male or female-female ones.

    Imagine if someone like Lynn France condoned her husband having another wife, and if the second wife condoned the first wife. If someone like John France believes dumbing down the rules to allow for same-sex marriage will eventually open the doors for his type of situation (except, of course, where the mutual consent of all the parties is involved), he’ll probably join the pro-SSM bandwagon.

    And who can blame people for feeling that way?

    AP, August 6:

    Dread of the unknown hung in the air as Lynn France typed two words into the search box on Facebook: the name of the woman with whom she thought her husband was having an affair.

    Click. And there it was: Wedding photos at Walt Disney World, featuring her husband dressed as Prince Charming. His new wife, a pretty blonde, was a glowing Sleeping Beauty.

    “I was numb with shock,” said France, 41, an occupational therapist in Westlake, Ohio. “There was like an album of 200 pictures on there. Their whole wedding.”

    Her husband, John France, said her claim of finding out about the second wedding on Facebook was “absurd” and said she knew about it long before. He claimed she was losing a court battle for custody of their two sons and was using the Facebook story for attention. He said Thursday that his marriage to Lynn France was never valid.

    John France doesn’t deny that he has married the other woman. He insisted he never was married to Lynn, though they had a wedding in Italy in 2005.

    “I don’t think I was cheating,” John France said in an interview Thursday on NBC’s “Today” show. “If you have a marriage that’s not right from the beginning, it’s not right at the end.”

    Mark (411533)

  136. MD in Philly – I am in agreement that our laws represent a codification of our morals and beliefs, whether explicitly religious or not. In spite of feminism there are obvious differences between men and women. A male/female family unit has been the basis of this country and other countries for centuries. The SSM is a recent phenomenon.

    Nevertheless, a trial was held under our rules of law and an opportunity for defense given. Many of the commenters here have suggested avenues the DI’s could have pursued that they did not take. The interest of the state argument could have been made compelling I believe, the administrative burden argument could have been turned on its head and on down the line if the trial had been conducted differently.

    It wasn’t, so the Monday morning quarterbacking has to be saved for the next event. Personally, I prefer to have the people decide the issues rather than the courts as is the sense I get from most of the commenters.

    The contract and inheritance law aspects of marriage obligations may have to be separated out from religious or other aspects going forward to make everyone happy, but that will just lead to more name changes and redefinitions.

    daleyrocks (940075)

  137. would anyone here have a problem with allowing same-sex marriage, and we just all agree to call it a “non-traditional” (yet legally valid) marriage? I mean, is it the semantics that is the sticking point?
    Comment by Kman — 8/6/2010 @ 8:41 am
    — It is the same-sex marriage advocates that have the semantics problem. If the term “civil unions” (a term that they themselves coined?) had truly been acceptable to them, then the wrangling over this issue would be a lot less sticky.

    Icy Texan (be7dba)

  138. Well, if you go by the Bible … Adam and Eve had Abel and Cain. And before Cain killed Abel they managed, between the two of them, to produce the further progenitors of the human race. The girls were so pretty that Angels came down to mate with them, the Bible says.

    nk (db4a41)

  139. Whom were the Angels “mating” with before that? Were there girl Angels? Never heard of one. But they did have the sexual urge for them to mate with humans, finally. So how did they relieve it before human girls were made?

    nk (db4a41)

  140. ColonelHaiku: I’ve never been; I live in the suburbs and only go to the city when (a) i’m going to class or (b) visiting friends or (c) there’s some event there that I want to go to.

    But my general attitude about most such things is: if the people doing it are enjoying it and not hurting people or property, then I hope they have a good time.

    aphrael (73ebe9)

  141. Haiku – upon further reflection, I have more to say on that.

    I am aware that things like Folsom Street Faire (and gay pride) hurt the cause of gay rights, because what the average man on the street in Bakersfield thinks of when he thinks of gay people is the people he saw in the television coverage of the faire, not his mild-mannered semi-closeted gay neighbor or coworker.

    But, two things:

    (a) a big part of the responsibility for that lies with the semi-closeted gay neighbor/coworker … being open – not pushy, but not hiding in the shadows either – is the single biggest thing he can do for gay rights, and his failure to do it (when he has failed) hurts us far more than press coverage of gay pride or folsom street faire.

    (b) I cannot reasonably expect other people, even my allies, even other gay people, to live their lives for my political convenience.

    The people who go to Folsom Street Faire find joy in it; and they are coming together with other people who find joy in that.

    In *my* life, there is little that is as powerful as getting together with people who find joy in the same things I find joy in, and doing those things together; I virtually never feel happier, more connected to my community, and more connected to God than I do when I am at a rave (at which I am usually completely sober; I don’t trust street drugs and don’t wish to spoil the mood with alcohol).

    So … why would I wish to deny that experience to other people? So long as they are harming nobody, I want them to experience the same joy doing the things they love that I experience doing the things I love.

    aphrael (73ebe9)

  142. people find joy in
    most unusual ways and
    in public no less!

    http://www.zombietime.com/folsom_sf_2007_part_1/

    ColonelHaiku (2d4d13)

  143. nk-

    When you ask a witness to an event “what happened”, even if you get 100% accurate and true information, it will be incomplete and focus on what the witness sees as important. Some would say that is why the narrative focuses on Cain and Able and the consequences of sin coming into the world, and (some) other children were not explicitly mentioned.

    MD in Philly (5a98ff)

  144. Patternico is promoting a shallow, simplistic, antiquated, discredited, pre-Enlightenment view of democracy, counting on the possibility of SCOTUS holding that constitutionally guaranteed civil rights to due process and equal treatment under law can be voted out of existence by simple majority.

    He did not.

    He pointed out the errors in the ruling.

    And anyway, the Supreme Court already decided this issue in Baker v. Nelson. Judge Walker was bound by Baker.

    Do you also think that the mores of 1789 should detemrine the scope of the free speech / press provisions of the first amendment?

    Yes.

    And the reason laws should be held to their original interpretation at the time of passage is because it protects the rights we already have. We may needconstitutional amendments to expand the scope of our constitutional protections; but we can be sure that judges will not reduce the scope of our constitutional protections.

    Neither two thirds nor three fourths are a simple majority.

    and what this implies is that a minority can block the expansion of constitutional protections of rights.

    There’s very good reason to believe that Baker isn’t good law after Romer and Lawrence.

    That said, the opinion should at least have addressed the issue, and it didn’t.

    Indeed.

    That is like a federal judge striking down a ban on polygamy without mentioning Reynolds v. United States or Davis v. Beason, or a judge upholding a ban on interracial marriage without mentioning Loving v. Virginia.

    And under De Quijas v. Shearson, Walker was required to dismiss the case, as Baker was controlling.

    We do not suggest that the Court of Appeals, on its own authority, should have taken the step of renouncing Wilko. 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.

    Michael Ejercito (249c90)

  145. Neither two thirds nor three fourths are a simple majority.

    Three fourths of the states can indeed represent a “simple majority” of the populace. In fact it can even be a minority of the populace.

    “As of July 1, 2009, the estimated population of the 50 states and District of Columbia was 307,006,550. The nine most populous states contain slightly more than half of the total population.”

    If the forty-one other states support a constitutional amendment, it becomes law even though the majority of the people live in states which opposed it.

    Subotai (458710)

  146. many contract disputes entail two sides who claim they meant different things when they signed the contract

    They may indeed. But what the judge is being asked to do there is not “create” a meaning for a word.

    many statutory cases involve legislative language which was deliberately left ambiguous by a Congress which knew that ambiguous language would get more votes than specific language would.

    True, but irrelevant. What Walker did in this case was to “create” a new legal meaning for a word whose meaning has been settled. He was not dealing with ambiguity here.

    It’s as if he looked at a statute with the word “tort” in it and unilaterally announced that henceforth, the word “tort” would encompass criminal wrongdoing.

    In the case of “tort”, as in the case of “marriage”, such redefining is outside of the lawful jurisdiction of any court.

    Subotai (458710)

  147. There’s very good reason to believe that Baker isn’t good law after Romer and Lawrence.

    This sort of “con-law’ gobbedlygook is what’s wrong with the legal profession. Nobody much pretends to be interested in that tired old rag of a Constitution. Instead people ponder the latest emanations of the SCOTUS in much the way people in an earlier time examined sheeps entrails.

    Subotai (458710)

  148. It’s as if he looked at a statute with the word “tort” in it and unilaterally announced that henceforth, the word “tort” would encompass criminal wrongdoing.

    In the case of “tort”, as in the case of “marriage”, such redefining is outside of the lawful jurisdiction of any court.

    So true.

    This sort of “con-law’ gobbedlygook is what’s wrong with the legal profession. Nobody much pretends to be interested in that tired old rag of a Constitution. Instead people ponder the latest emanations of the SCOTUS in much the way people in an earlier time examined sheeps entrails.

    This is unfortunate.

    Of course, Romer dealt with a law that had “sheer breadth” and denied homosexuals protection “across the board “. Baker only dealt with the denial of marriage licenses to persons on the basis of gender.

    Lawrence did not deal with the issue of marriage at all, or even addressed equal protection.

    Michael Ejercito (249c90)

  149. _______________________________________

    In *my* life, there is little that is as powerful as getting together with people who find joy in the same things I find joy in, and doing those things together;

    And when people get together — as they did far more commonly decades ago — to celebrate the Klu Klux Klan, any sane person will go “Bleech! what is wrong with those folks?!”

    When Gay Day events or parades are often stereotypically over-sexualized and weirdly ribald (even in the era of AIDS) — just as Klan rallies were stereotypically race-obsessed and weirdly bigoted — it’s normal to go “Bleech! what is wrong with those folks?!”

    Mark (411533)

  150. take a look at pics
    at link on post one four two
    that some kinda fun!

    ColonelHaiku (2d4d13)

  151. That said, if the ninth circuit looks at the trial record de novo, it will be left with little choice but to agree with Judge Walker’s findings.

    Or it could rule Judge Walker’s findings as not relevant to the case.

    Appeals courts have excluded factual findings if they believe the facts have no relevance to the legal issue.

    Michael Ejercito (249c90)

  152. Its just another step toward national suicide. Look at scandinavia where they legalized homosexual marriage and hetero marriage dropped like a rock. The institution is denigrated. The meaning is crushed.

    Its easy to see… Look at Rosie McDonald saying she got married to defy George Bush. Way to go, Rosie, you sure showed him.

    “Unity, For Richer for Poorer, to make a new family” — gone. Kids won’t have a Daddy, they will be seeking their sperm donor.

    Yes, its all irrational to the unelected judge.

    red (7b5f67)

  153. Michael Ejercito – Correct me if I am wrong, but even in Lawrence, the Court did not find a fundamental right to homosexual sodomy. In fact, the history of this country is replete with laws reflecting approbation of sodomy until very recently, laws which have been used to prosecute people. Those laws presumably reflected some rational interest of the state to have them on the books based on the morality of the populace.

    How do you move from lacking a fundamental right to homosexual sodomy to creating a fundamental right to homosexual marriage? Scalia’s dissent in Lawrence does make interesting reading.

    daleyrocks (940075)

  154. I still am waiting to see a satisfactory argument as to why this will not be changed to include more than two people, or to include minors.

    I wonder about that too, MD in Philly. Marriage is an artificial state sanctioning of a relationship. Either it means something or it means, eventually, nothing. Maybe that’s the way it’s supposed to be, I don’t know. Bradley?

    Patricia (358f54)

  155. Or it could rule Judge Walker’s findings as not relevant to the case.

    Appeals courts have excluded factual findings if they believe the facts have no relevance to the legal issue.

    More to the point, the Ninth Circuit could rule that Baker has already determined the issue, and that it must leave the perogative of overruling Supreme Court decisions to the Supreme Court (De Quijas) so the facts have no bearing on the issue before the court.

    The Supreme Court has appellate jurisdiction over both law and fact.

    Correct me if I am wrong, but even in Lawrence, the Court did not find a fundamental right to homosexual sodomy. In fact, the history of this country is replete with laws reflecting approbation of sodomy until very recently, laws which have been used to prosecute people. Those laws presumably reflected some rational interest of the state to have them on the books based on the morality of the populace.

    Lawrence found that the 14th Amendment’s due process clause prevents the state from making private consensual sexual conduct between adults a crime. It is actually a broader right that implies a right to engage in homosexual sodomy (as long as it is private, consensual, and between adults).

    How do you move from lacking a fundamental right to homosexual sodomy to creating a fundamental right to homosexual marriage? Scalia’s dissent in Lawrence does make interesting reading.

    By ignoring Baker v. Nelson and the rule on following Supreme Court precedent in De Quijas v. Shearson.

    Justice O’Connor’s concurrence is also interesting.

    Michael Ejercito (249c90)

  156. Comments by Brother Bradley J. Fikes, C.O.R., by Mark — 8/7/2010, by daleyrocks — 8/7/2010, by Patricia — 8/8/2010

    Thank you for your responses.

    Bro. Bradley, I agree with much of what you say in how it could be handled, but I am interested in people’s educated opinions on how it will be handled. Now, being what I learned long ago as a “deontologist”, I believe the “rightness” or “wrongness” of an action is inherent in the action (in the context of the specific circumstances), and not directly related to the following outcome, but I do think it is helpful to look at the result, to the degree it is predictable. This is similar to objective scientific study. A physical law is a physical law, but if it does not accurately predict the result either the law is not true or there are other factors involved that have not been accounted for.
    I’ll respond to your second point first, for I think it is simplest. Yes, that (providing vouchers for a private school) would be a reasonable way to approach it, but barring a miracle, I don’t see it happening.
    As to your first point, I agree that being legal and being moral are not necessarily the same thing, and being legal also does not necessarily mean legal endorsement, such as Satanism being allowed by the First Amendment (though specific aspects of worship could be outlawed for any religious system of belief if they violated other criminal law). But at times legality does imply morality and government sanction. I think most would say that anti-discrimination laws concerning race and ethnicity define not only what is legal, but correspond to what is morally right and reflect a governmental and societal sanction of “the way things should be”. I’d have to think through this much more to come up with an explanation of what gives rise to these two different situations, but I think it is safe to say that the issue of SSM could be placed in either camp, deciding who you talked to. I think for the most part, that those who support SSM use race-based discrimination as an analogy to their argument, hence placing SSM more in the category of being legal=endorsed as morally right. In such a situation the child who says they disagree that SSM is equivalent to heterosexual marriage is treated similar to one who says the white race (or others, theoretically) is superior, rather than as one who says they are a Buddhist.

    Mark- It seems that we are in agreement, and argument why SSM should be approved but not polygamy are looking for reasons to avaoid the logical consequence of being freed to redefine marriage.

    daleyrocks- You point out that the decisions are being settled according to how they are settled in our society, and that’s the way it is. This is true, but we all know that sometimes things are not decided correctly, though hopefully eventually corrected. You point out how the State of California had an obligation to mount a vigorous defense with all the resources it could muster to reflect the will of the people. One could say they did not do that (or one could say they did, with all of the resources that a bankrupt state can muster, which is not much). Whether issues of inadequate counsel come into play is something for you folks to tell me, I readily concede little knowledge of the mechanics of the legal system.

    Patricia- You likewise seem to agree with Mark and myself on this issue. I think if the court ruling stands and becomes “the law of the land”, a new term will be used for what once was known as marriage and will not be a legal term. Whether the term and those who use it are treated with respect or derision will eventually become clear.

    So, in the scenario I originally gave, is the child’s viewpoint tolerated? Is he/she given any discipline? Is he/she treated with contempt as would be an openly racist student (in most schools anyway)?

    MD in Philly (5a98ff)

  157. “Lawrence found that the 14th Amendment’s due process clause prevents the state from making private consensual sexual conduct between adults a crime.”

    Michael Ejercito – I agree, which is very much different from a fundamental right.

    daleyrocks (940075)

  158. nk-

    When you ask a witness to an event “what happened”, even if you get 100% accurate and true information, it will be incomplete and focus on what the witness sees as important. Some would say that is why the narrative focuses on Cain and Able and the consequences of sin coming into the world, and (some) other children were not explicitly mentioned.

    Comment by MD in Philly — 8/7/2010 @ 4:29 pm

    Just a little gentle teasing, MD in Philly, of people who want us to call homosexuality an abomination in accordance with their literal interpretation of the Old Testament.

    nk (db4a41)

  159. And Bradley, I just want to say that I agree with Patterico–these issues should be decided by persuasion, or the will cause more trouble for the “winner” than any victory.

    Patricia (358f54)

  160. We are constantly told that the Hispanic community is vital for electoral success, now and particularly in the future.
    Yet, how will this play for Progressives within that community, a community that is not known for its fervor for SSM, or homosexuality for that matter?
    It is a given that Prop-8 received an inordinate amount of support from the Black community which was coming to the polls to vote for Obama, and where SSM is also looked down upon.
    Will there be an electoral price to be paid by Progressives for this issue that they have kept before the voting public, other than the price they will pay for their disastrous economic prescriptions?

    AD - RtR/OS! (89e55e)

  161. because we use symbols (words) with an agreed upon meaning.

    Aha! but many contract disputes entail two sides who claim they meant different things when they signed the contract

    That has no relevance to this case. That’s classic liberal BS – equating apples and oranges.

    Gerald A (2b94cf)

  162. Just a little gentle teasing, MD in Philly, of people who want us to call homosexuality an abomination in accordance with their literal interpretation of the Old Testament.

    So what’s the correct non-literal interpretation of the Leviticus passages?

    Gerald A (2b94cf)

  163. Comment by nk — 8/8/2010
    I figured as much and did not raise my BP one 0.1 mm of Hg. Much more could be said about the passage because some people see it as a major problem of Biblical reliability. I personally think Mark Twain had a better point when he said, “It’s not the parts of the Bible I don’t understand that bother me, it’s the parts I do understand.”- such as passages from Leviticus, Ezekiel, Romans, I Cor., and Rev. that do not approve of homosexual activity. But it should be noted that often it is listed in the midst of many things, such as lieing, stealing, and being a coward.

    Comment by AD – RtR/OS! — 8/8/2010
    From my experience, limited as it may be, more politically active Hispanics (at least in the Peurto Rican community) are happy to support gay rights and just about anything else that counts as being liberal, progressive, or “socially enlightened”. I have seen similar in the African-American community, such as a Black Mayor who campaigned along a “traditional values” line who then in office pushed for items pro-gay.
    The enemy of my enemy is my friend, where the enemy is conservative belief.

    MD in Philly (5a98ff)

  164. So what’s the correct non-literal interpretation of the Leviticus passages?

    Comment by Gerald A — 8/8/2010 @ 1:57 pm

    I give it the same importance as eating pork and shellfish and going to the Levites when I’m sick.

    nk (db4a41)

  165. Gerald A – respectfully, I’m not discussing this case.

    I’m responding to Subotai at comment #90 et seq: he put forward an argument that judges are not constitutionally allowed to define words.

    I think that’s absurd, and am citing examples of why I think that’s absurd.

    aphrael (73ebe9)

  166. True, but irrelevant.

    Aha!

    So, having conceded the point that sometimes courts must define words because Congress deliberately created ambiguous law, would you please withdraw the claim that the constitution doesn’t allow judges to define words?

    aphrael (73ebe9)

  167. I give it the same importance as eating pork and shellfish and going to the Levites when I’m sick.

    That’s not about interpretation. Maybe you think it only applied to the Jews. Pork and shellfish prohibitions etc. were only for the Jews. The part about homosexuality applies to everyone, as can be determined from the New Testament.

    Gerald A (2b94cf)

  168. Gerald A – respectfully, I’m not discussing this case.

    I’m responding to Subotai at comment #90 et seq: he put forward an argument that judges are not constitutionally allowed to define words.

    I think that’s absurd, and am citing examples of why I think that’s absurd.

    You’re not discussing this case. HUH? He was talking about the definition of the word “marriage” and judges not being vested with some authority to redefine them.

    I think the best way to think of it is to realize that judges are not supposed to be in the business of defining watches, marriage, or any other term.

    I’d ask you for a constitutional justification for the role of judges as definers of words, but we both know you’ve never answer.

    Then you came up with an point about how to interpret a contract as proof that judges do define words. That does not entail any fundamental definition of an individual word. Sometimes a word has more than one meaning which may come up in rare cases in contract disputes but again that doesn’t apply here. That’s not a fundamental redefining of what the word means from what it has historically meant.

    Gerald A (2b94cf)

  169. So, having conceded the point that sometimes courts must define words because Congress deliberately created ambiguous law

    Back up there, chief. Here are your words to which I said “True, but irrelevant”.

    many statutory cases involve legislative language which was deliberately left ambiguous by a Congress which knew that ambiguous language would get more votes than specific language would.

    You seem pretty adapt at redefining your own words to mean something they did not mean initially. I’m not conceding that the courts actually “define” words, ever.

    Subotai (b38f57)

  170. Of course, Romer dealt with a law that had “sheer breadth” and denied homosexuals protection “across the board “.

    That’s an inaccurate description of Romer, which struck down a law which excluded homosexuals from “protected class” status. It did not deny homosexuals protection “across the board”. Romer was a sterling examples of the SCOTUS indulging in its belief that its proper role is to be the nations priest. Or, perhaps, god.

    Subotai (b38f57)

  171. The part about homosexuality applies to everyone, as can be determined from the New Testament.

    Comment by Gerald A — 8/8/2010 @ 3:45 pm

    In 1 Corinthians, it is in the same sentence as people who kidnap other people for slavery. And in the larger context of chattel slavery, which the Romans practiced at the time, I would interpret “arsenokoites” more as male-rapists or pederasts than as consensual homosexuals.

    nk (db4a41)

  172. Well, it is Greek to you, nk.

    MD in Philly (5a98ff)

  173. Hey, nk, since you are Greek, I have a serious question for you. If you speak Greek, that is, which I *think* you do.

    A long time ago, I read a book that had this passage that really struck me. It said that, in Greek, the word for “justice” is similar to the word for “vengeance.”

    I have no idea if it is true. I was tres dramatic in the book.

    Any truth to it?

    Eric Blair (c8876d)

  174. Yes. It has the same root. Justice as an institution is “dikaio”; as a concept it is “dikaiosyne”. Vengeance is “ekdikisi”. Have you read the Oresteia? The Furies’s justice was indistinguishable from vengeance.

    nk (db4a41)

  175. The “ek” is extract. So, literally, syllable by syllable, “ekdikisi” is to extract justice.

    nk (db4a41)

  176. Thank you very much. I always wondered if the author had it right. I collect sayings and aphorisms.

    I haven’t read any Aeschylus. As you know, it’s not encouraged in education. But I was raised on myths and legends as a funhouse mirror of the human experience.

    Much appreciate the insight.

    Eric Blair (c8876d)

  177. I’m not discussing this case.
    Comment by aphrael

    I actually wish you would. I respect intellectual honesty and consider it a compliment when someone responds with such candor.

    Many say that legally sanctioning SSM will have no effect on heterosexual marriage (and presumably, by extension, heterosexual belief). I argue that is a logically questionable claim.

    It is also possible that someone thinks that heterosexual descrimination is long overdue to meet its downfall and thinks those who believe in “heterosexual superiority” should be ostracized. I would respect such a view, though in political terms I think it would make the passage of such law more difficult. I know that all gays are not in favor of SSM, and I assume such folk are happy to be “left alone to live life the way they want” without seeking a societal affirmation of equality.

    MD in Philly (5a98ff)

  178. I love Patterico. He does the analysis the MSM won’t.

    Superabsurdness (5cc1ac)

  179. More illogic.

    Judge Walker found that Proposition 8

    The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage…Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples…

    But one of the plaintiff’s experts testified that redefining marriage will “the social meaning of marriage” So redefinition of marriage would deprive same-sex couples of the social meaning that they were seeking. (Tr. 311-13)

    Epic fail.

    Michael Ejercito (249c90)


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