Patterico's Pontifications

8/12/2010

Judge Lifts Stay: Gay Marriages Start Next Week

Filed under: General — Patterico @ 5:54 pm



His reasoning is not just specious — it’s infuriating. Specifically, he says that if Schwarzenegger and Jerry Brown don’t want to appeal, then the proponents of the initiative have no standing to appeal. In other words, their standing was good enough for the trial, allowing the judge to load up the record with sweeping statements about the significance of marriage, couched as “factual findings.” But the second that those same parties want to question the factual findings in an appeal, all of a sudden they lack standing.

It would be laughable if it weren’t so cynical.

73 Responses to “Judge Lifts Stay: Gay Marriages Start Next Week”

  1. Internet out so using crackberry. But had to say…

    Amen patterico.

    A.W. (d7de45)

  2. here these are pretty fabulous, no?

    I’m gonna go check my mail for invitations brb

    happyfeet (19c1da)

  3. Michael E. and I have both already posted this in another thread, but it belongs here, too:

    The full text of the order is available here.

    Patterico – there seems to be a complicated technical issue here, and it may be that while they had a right to intervene as defendant-intervenors, they have no standing to appeal if the actual defendants declne to.

    I’m no expert on standing law, by any means, but it’s exactly the kind of cramped view of standing which the courts seem frequently to throw up when they don’t want to deal with a case.

    aphrael (e0cdc9)

  4. “Rather, the decision to grant or deny a stay is committed to the trial court’s sound discretion.”–some judge who thinks the people shouldn’t be allowed to amend the state constitution

    You know why we have trial by jury? Because we found out centuries ago that the “sound discretion” of judges and other agents of government wasn’t worth a tinker’s damn.

    Dave Surls (c7403a)

  5. We are moving rapidly toward the scenario about ‘illegitimate regimes’ that First Thingd discussed
    in 1996. Nothing will be allowed to get in their
    way, they are fishing wit dynamite

    ian cormac (ab2f02)

  6. Here’s a link to a discussion of the precedents Judge Walker cited.

    In Diamond, a doctor who was opposed to abortion sought to defend some Illinois anti-abortion measures that had been declared unconstitutional by a federal district court. The state government decided not to appeal; not too surprising since the measures were enacted by the legislature over the governor’s veto.

    Dr. Diamond had been allowed by the trial court to intervene as a party defendant to defend the measure, when a bunch of doctors filed suit contesting its constitutionality. His basis for intervening was his moral objection to abortions, his status as a pediatrician and as the parent of a minor daughter who might be able to get an abortion without his permission if the Illinois law was invalidated.

    The Supreme Court held that Diamond did not have standing to bring the issue of the law’s constitutionality to the Supreme Court. The key sentences: “Diamond’s status as an intervenor below, whether permissive or as of right, does not confer standing sufficient to keep the case alive in the absence of the State on this appeal. Although intervenors are considered parties entitled, among other things, to seek review by this Court, an intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Article III.” The Court found that Diamond’s interests as an individual doctor and parent did not meet the Article III test – he had no individualized injury as a result of the law being invalidated by the lower court.

    aphrael (e0cdc9)

  7. and here’s another installment of… the Dating Game!

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

    ColonelHaiku (2deed7)

  8. The Bar association can give reprimands to lawyers, correct? Can they, or anyone else, censure a judge?

    The challenge of having a judiciary that is free from external influence, yet somehow held accountable to prevent them from being a law unto themselves.

    I like the idea I mentioned before, every elected (and appointed) official (federal, anyway) is automatically subject to a recall vote at some point after their election. In other words, a probationary period like any other employee.

    MD in Philly (5a98ff)

  9. He is even more out of control than Judge Tena Callahan.

    It is not just people who disagree with this ruling as matter of law that know this is a bad idea

    I will say I think it would be terrible if Walker allows gay marriages to start now before the appeals process works out. Imagine couples getting married only to find their marriages voided by a later appellate decision. That would be irresponsible of him, though I have read some pretty harsh charges of irresponsible behavior regarding him in this case (btw-I’m not talking about the opinion which I largely agree with).

    I will say I think it would be terrible if Walker allows gay marriages to start now before the appeals process works out. Imagine couples getting married only to find their marriages voided by a later appellate decision. That would be irresponsible of him, though I have read some pretty harsh charges of irresponsible behavior regarding him in this case (btw-I’m not talking about the opinion which I largely agree with).

    So the state can refuse to defend its own constitution?

    At least Texas Attorney General Greg Abbott is committed to his constitution.

    Michael Ejercito (249c90)

  10. aphrael – Would you be content with this being enacted this way?

    JD (3dc31c)

  11. Isn’t this the same tactic that Gray Davis used with Prop 187, to fail to pursue appeals in Federal Court on behalf of the state’s citizens acting within their power to amend the state constitution?

    JoeH (eeb280)

  12. At the very least, the standing part is a sitting duck on appeal, it seems to me.

    Mitch (e40959)

  13. I guess this again raises the issue of whether the Gov. and AG of CA are fulfilling their responsibilities of office.

    Ian, I don’t know exactly what you are referring to, and/or if it is related to what I am about to say, and all please forgive my naivete’.

    Isn’t US law in the tradition begun several hundred years ago that government is by rule of law, not by rule of men? Then why is it that people of supreme power get away with ignoring very basic responsibilities of their position? As President of the United States and its Commander in Chief, he made an oath to defend the country against all enemies, foreign and domestic. When a region of a US state is occupied by foreign nationals through force and threat of force, the appropriate response is NOT to put up signs telling US citizens to stay out, and then take legal action against the state in addition. If this situation was the same under Bush I would say the same thing. I know there is no political will to do anything about it, so seriously discussing impeachment is not an option. It’s a good thing for Alaska that Palin is no longer Gov., as it would be logically consistent for Obama to let the Russians take back a few Aleutian Islands.

    If you retained an attorney to represent you in a case, and they put up a weak case and then refused to make an appeal, what would you do to the lawyer? How is it then that 7 million Californians have less rights than 1 individual citizen who wants to fight a traffic ticket?

    Concerning President Clinton. My point is the same. If any other male authority figure in the US behaved toward a subordinant the way he did, the only questions would be how fast can he be sent packing and what kind of consequences can levied. So again, we do not have the situation of rule by law and leaders are people who set an example, but we have rule by personal whim as long as it can be gotten away with. For shame, shame on them all- but they have forgotten how to blush, so what can be done?

    MD in Philly (5a98ff)

  14. If the gov and AG cannot fulfill their duties as a matter of personal conscience and conviction, they should resign.

    MD in Philly (5a98ff)

  15. “I like the idea”

    I have an even better idea. No court shall ever be convened in the United States unless:

    1.) It has a jury attached to it.

    or

    2.) All parties to the case agree to have a judge assume the function of the jury.

    Dave Surls (c7403a)

  16. When will be able to marry our Ewe? She is loving and caring and would fit in well with the Folsom Street Parade fellows!

    Typical White Person (9f4d2e)

  17. Aphrael

    Well, bluntly diamond is a different situation. In diamond the legislature passed and the governor refused to defend it. By the way, in that situation representatives of the legislature do have standing.

    Here these proponents proposed it. They aren’t random citizens hoping to see a law enforced. They are people who worked to put it into place.

    The whole purpose of the referendum process is to go past the legislature and administrative branch and appeal directly to the people. The proponents did that and won. I don’t see how they don’t have an injury. They spent all this time and money directly supporting it, they jumped through all the hoops and the judge has in essence handed a veto to the governor of California! Their constitution doesn’t let Ahnold veto the law, but apparently federal procedure does? Its absurd.

    The judge should respect the referendum process and hold that they have standing. If only to dispel the obvious suspicion that this judge has an agenda.

    MD

    > Can they, or anyone else, censure a judge?

    I believe in most states they can, though a fat lot good it would do. could they disbar him, too? Perhaps, but I don’t think consistent with the constitution that this could force him to step down.

    But I am solidly in favor of impeaching the bastard. Won’t happen obviously, but it should.

    Btw, I will also note that any lawyer can file a complaint about his conduct. I will probably draft one this weekend.

    Aaron Worthing (A.W.) (f97997)

  18. Powerline pointed to a piece yesterday over at NRO by Ed Whelan over how the press is misreporting what the defense did in this trial. He claims they did present substantial amounts of evidence and precedent to support their positions which are normally accepted at trial, but that Judge Walker chose to ignore it and Dowdified the defense quote out of context in his opinion which has been used do widely in the press.

    Worth a read.

    daleyrocks (940075)

  19. Oh btw, small point. There is direct case law to the contrary. Yniguez v. State of Ariz., 939 F.2d 727 (C.A.9 (Ariz.), 1991)

    In that case proponents of an Arizona initiative were given standing for purposes of appeal because the state was no longer willing to defend the case. In short, it was JUST LIKE THE CURRENT CASE.

    Now, the SC got ahold of it, they cast serious doubt on the viability of this standing claims but didn’t actually overrule them because the found the case was in fact mooted based on other reasons.

    http://www.law.cornell.edu/supct/html/95-974.ZO.html

    Shouldn’t that precedent, right on point, at least been discussed–if only to dismiss the issue?

    Btw, it took me about 30 minutes total, using a combination of google and fastcase, to find it.

    you think the judge had no idea this precedent existed? or do you think he just didn’t want to deal with it, because he already made up his mind.

    Aaron Worthing (A.W.) (f97997)

  20. It should be interesting to see what Patterico’s favorite Justice does when it goes to him.

    Kevin Murphy (5ae73e)

  21. Yes or no question to Brown and Whitman:

    “As Governor, will you enforce and defend laws passed by the voters of the state, even when you think they are wrong?

    Kevin Murphy (5ae73e)

  22. It should be interesting to see what Patterico’s favorite Justice does when it goes to him.

    Do not forget that cases from Texas and Louisiana may be joining the California case.

    Michael Ejercito (249c90)

  23. As mentioned in an earlier comment the damage that will be done to individuals who may have their marriages anulled (I assume that is the case if the Judge is overturned) will be huge. What will also result from this will be a ratcheting up of the recriminations, bad feelings, sense of betrayal, threats and hatred generated. After the judge issued his ruling with the stay he should have just stepped away and let the process run it’s course. At the same time I wonder why he issued the stay in the first place. Brown and Schwarzenegger pretty well telegraphed their positions on this. And I agree with some of the commenters, both should resign if they aren’t willing to respect the voters.
    I said in an earlier comment that I didn’t think the judge needed to recuse himself however after this latest ruling (and after reading some of his judgement) I will admit to being wrong. It happens from time to time.

    scr_north (90dcdd)

  24. daleyrocks:

    That is a powerful piece and I will put it front and center tomorrow morning. Thank you.

    Patterico (1b6510)

  25. Who is my favorite Justice, Kevin?

    And what do you think he would do??

    Patterico (1b6510)

  26. the reason for the Second Amendment becomes clearer every day.

    redc1c4 (fb8750)

  27. Patterico – No problemo.

    daleyrocks (940075)

  28. This country is in deep trouble. We are witnessing the unraveling of the social fabric before our eyes, and there’s not one thing we can do about it. Same sex marriage, brought to you by the same fine folks who thought that slavery was a great idea! Next it will be 3 some or more-some marriage, you think I’m kidding? The polygamists have already filed the law suits to demand their right to define marriage anyway they choose.

    Beez (4e0dda)

  29. Given this record of Democratic ineptitude and the voters’ reaction to it, one would think that Republicans would be talking about these issues every day. Instead, Republicans and conservatives have spent recent weeks talking about such distracting side-issues as immigration, the 14th amendment, gay marriage, and when and where mosques should be built.*

    happyfeet (19c1da)

  30. The Cato Institute is a joke.

    Mike LaRoche (536c2b)

  31. In regards to the link at number 7: That is enough to gag a maggot on a gutwagon. There are, evidently, more strange, degenerate, etc. people in the world than I could ever imagine. And hf thinks Palin worthy of disgust. Strange. To say the least.

    Leonardo DaFinchi (30d04c)

  32. “Instead, Republicans and conservatives have spent recent weeks talking about such distracting side-issues as immigration, the 14th amendment, gay marriage, and when and where mosques should be built.*”

    Mr. Feets – For sure Mr. Tanner has got his hands on the pulse of Republican voters. Do you happen to know his native language?

    daleyrocks (940075)

  33. Keep in mind, that, technically speaking, the proponents of the lawsuit are in a bit of a bind if the case is not appealed. That is because Judge Walker’s decision is binding only in his district (ie, the Northern District of California). Decisions by federal courts are only binding in the jurisdiction they cover (which is why the 4th Circuit, for example, can ignore and rule contrary to a 9th Circuit holding)

    And keep in mind that Judge Walker ruled that a county located in a different district (Imperial) lacked standing to intervene in the case when they attempted to do so on the eve of trial. It would be interesting to see what would happen if the stay was lifted, a gay couple in Imperial County went to get a marriage license, and Imperial County refused to grant one on the grounds that Judge Walker’s ruling only applied to the Northern District! If one follows the Federal Rules, the couple would have to file suit in the Southern District, where doubtless Imperial would have standing, and we could have a whole new trial.

    It is not binding on any other district in California (Southern, Central, Eastern)—so therefore, “gay marriage” would be recognized only in the California counties that fall within the Northern District. So, all those in West Hollywood who want to get married—the law is still valid in the Central (Los Angeles) District and therefore, licenses cannot be validly issued in Los Angeles.

    Only by a 9th Circuit ruling would all of California be covered.

    Mike (e71888)

  34. Shouldn’t that precedent, right on point, at least been discussed–if only to dismiss the issue?

    It was – the order discussed O’Connor’s dicta suggesting the ninth circuit’s decision was wrong.

    aphrael (73ebe9)

  35. Mike – not true. The decision is binding on the parties, which is to say, on the state of California. Regardless of which district it’s in.

    It’s not binding on other parties, and it’s not precedent outside the district, so it has no effect on anyone else.

    [Whether ruling that bind the state bind counties is not clear to me, but insofar as counties are entirely creations of the state, I would think they are. Charter cities might be a different issue.]

    aphrael (73ebe9)

  36. JoeH – it is exactly the same tactic as Prop187.

    JD: I’m torn on that. I really don’t like this aspect of federal standing law: it seems absurd that someone can intervene to defend but cannot then intervene to appeal.

    That said, it seems consistent with what the Supreme Court has said on the subject. And I don’t see a compelling reason to treat this case differently than other cases in the past.

    aphrael (73ebe9)

  37. Oh. I think I understand what Kevin Murphy meant. It was a sardonic reference to Kennedy.

    I say he votes to reverse. You heard it here first.

    Patterico (1b6510)

  38. “Yes or no question to Brown and Whitman:

    “As Governor, will you enforce and defend laws passed by the voters of the state, even when you think they are wrong?

    Comment by Kevin Murphy”

    Like it matters who will be governor! Meg “unknown” Whitless or Jerry “crack-whore to the public unions” Brownnose. In plain “making things work” terms – California is making Louisiana look like Switzerland.

    [and I don’t CARE about gay marriage – but just wait until the exact opposite of your political ilk starts making decisions in a rigged game – it’ll all be OK then too, correct?]

    Californio (6c4897)

  39. The gays are coming for you…be afraid. Be very afraid.

    JEA (2b33f8)

  40. You really are dense, aren’t you, JEA?

    JD (3dc31c)

  41. Californio

    > California is making Louisiana look like Switzerland.

    I would be very curious to know what you mean by that. I am having difficulty figuring out what virtue you assign to Switzerland, that I guess Louisiana lacks, but California is much worse on the same axis. I mean I am really asking.

    Its not PC to say it, but when Katrina broke those levees, the first thing I thought was, “its Louisiana. You know corruption figured into this clusterfrak somehow.” There is something about the state that just makes corruption endemic. I think truthfully it was initially the French influence, and then it kept going because people’s expectations were lowered—sort of the soft bigotry of lowered expectations, only more in the self-hate variety.

    And yes, it was corruption. When you build a levee only capable of withstanding a Cat 3 hurricane, and you leave it in place for 80 years, that is corruption. You can’t escape probability, at least not for much more than 80 years.

    JEA

    That contributed to the conversation about as much as a ripe fart.

    Aaron Worthing (A.W.) (e7d72e)

  42. only depleted uranium is denser

    ian cormac (ab2f02)

  43. Didn’t California already once go through allowing SSM only to have them annulled?

    Pardon me,but do #19 Comment by Aaron Worthing (A.W.) and #36 Comment by aphrael conflict with each other, or is it my DU (depleted uraniumness) getting in the way? (Good Morning, West Coast)

    MD in Philly (5a98ff)

  44. MD

    Yes, i think it is safe to say that aph has considered my arguments and rejected it.

    Aaron Worthing (A.W.) (e7d72e)

  45. Also it is worth noting that state law holds that proponents have a right to defend their statutes.

    http://www.nationalreview.com/bench-memos/243232/prop-8-proponents-motion-ninth-circuit-stay-standing-ed-whelan

    He correctly points out this puts the case on a different posture than Diamond, or that precedent i mentioned above (where the S.C. doubted they would have standign, but didn’t rule on the issue, making it officially dictum).

    Aaron Worthing (A.W.) (e7d72e)

  46. ed whelan is also quoting from the brief in that case. I found this particularly devastating:

    > [T]hough the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, every state or federal appellate court to address the issue—including the Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), and this Court in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)—has consistently rejected this conclusion.…

    > …

    > The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them.

    Aaron Worthing (A.W.) (e7d72e)

  47. And lawyers will recognize how serious that is. Virtually every state bar has a requirement for attorneys that if you know of authority to the contrary, you are REQUIRED to bring it to the court’s attention. You can try to explain it away, but you have to mention it. In other words, if I was David Boeis, and I knew of that precedent, I would be required to mention those precedents, and then naturally what I would say is, “sure the S.C. said X in case Y but let me explain why they are wrong” or “let me explain why there is a real doubt as to whether that precedent would be followed today,” or whatever works for you.

    So in rendering his decision the judge fell below the ethical standards that apply to paid advocates for a client.

    Aaron Worthing (A.W.) (e7d72e)

  48. Features and bugs, it appears, A.W. Features and bugs.

    JD (da56a4)

  49. I fear we are halfway down the fabled slippery slope.

    When do we bring out the guillotines?

    Patricia (358f54)

  50. Oh, and btw, Baker was cited to judge Walker long before the decision was rendered.

    http://www.scribd.com/doc/27626865/Trial-Brief-by-Prop-8-Proponents-Filed-02-26-10#open_download

    Its right off the bat, even indexed.

    I mean, look, i won’t say absolutely that a district court can never say, “i don’t think i have to follow this precedent any more.” Like Brown v. Board of Education didn’t explicitly overturn Plessy v. Fergusson. It just said no segregation in education. So imagine next you are looking at a law demanding segregation on trains and you are the judge. Technically Plessy was still good law and it was directly on point. But a judge could reasonably say, “yeah, but i think brown has undermined it.”

    Btw, Plessy has a particularly nasty set of facts. Plessy was a very light skinned black man traveling with his darker mother by train. the train’s employees demanded that his mother be removed, because they mistakenly believed he was white, and assumed that since it was a black woman with a white man, she must be a prostitute.

    in legal circles, we call that “good facts” for those who were opposed to segregation. we mean good in the sense that us lawyers have something clean and obvious in its injustice. obviously they were pretty sh-tty facts from Plessy’s perspective. But obviously the more horrific conduct is, the easier it is to argue against it.

    Aaron Worthing (A.W.) (e7d72e)

  51. MD – yes, they conflict with each other.

    Aaron is saying that the district court should be bound by a ninth circuit opinion which would grant standing in cases like this.

    I’m saying that the Supreme Court has, in dicta, seriously called into question whether that decision was correct, and that the district court – in following the dicta – is closer to the law as the Supreme Court has explained it.

    He may be right. I may be right. This is the frustrating, beautiful part of the law: it’s not certain.

    Aaron’s argument about state law giving the defendant-intervenors standing is, however, a very, very good one, and I think sufficient to push me to the other side on this. If California’s law provides a right of enforcement to initiative sponsors, then the federal standing rules should honor that.

    Whether they actually do, of course, I’m not certain; the issue has probably not been tested in federal court.

    aphrael (73ebe9)

  52. It probably hasn’t been tested because ? Is it rare for an AG and Gov to not defend the State when they are supposed to?

    JD (da56a4)

  53. This confirms the impression that Walker intended for a circus and has abandoned his judicial role.

    SPQR (26be8b)

  54. Jack E. Ass dropped by to say ‘Hi’ . . .

    . . . and to drop a load.

    Icy Texan (eee334)

  55. Oh. I think I understand what Kevin Murphy meant. It was a sardonic reference to Kennedy.

    Yeah. He’s the Circuit Justice for the 9th Circuit [unless it just changed] and will be the person the stay is appealed to if the 9th punts. If Kennedy does not impose a stay then I’d not bet on the SC overturning.

    Kevin Murphy (5ae73e)

  56. I should point out that I find Walker’s decision annoying. I agree with the result from my somewhat libertarian perspective, but I find the judge’s reasoning and procedures suspect and his honesty questionable. I also think that the whole court-driven agenda for gay marriage is counter-productive (how’s that Roe victory working out?).

    Yet, if the courts DO force this decision, it probably should be on the grounds that Walker found: overwhelming liberty interests. Too bad his decision and his trial were so badly flawed. I also wonder why (surprise!) the press never brought up the judge’s orientation until after the decision. Did they suspect that it would have made the court look biased? But I digress.

    I also strongly dislike the disrespect given the voters of the state, particularly by the elected officials SWORN to uphold the law. If these oaths only mean “uphold laws I agree with” we are all truly screwed.

    A bad situation, badly handled. A pox on them all.

    Kevin Murphy (5ae73e)

  57. Kevin: doesn’t the sworn oath to uphold the law always carry with it the caveat that you are upholding the law as you understand/believe it to be?

    As an example, imagine that the California legislature were to impose a punitive tax on mormon establishments in retaliation for the perceived mormon involvement in the prop 8 campaign, and Controller Chiang and Governor Schwarzenegger were both to say that the first amendment prohibits such a tax and therefore that they will not enforce the tax.

    I think that acting in that fashion would be acting in accord with their oath: they swore to uphold the law and they believe the greater law of the constitution voids the lesser law of the state.

    AG Brown and Gov. Schwarzenegger are in that position here: they believe that the fourteenth amendment prohibits a distinction between straight marriage and gay marriage.

    You believe they are wrong.

    But do you really want the executive to operate under a rule which says that executive officers have no independent power to determine whether something is constitutional before enforcing or not enforcing it?

    aphrael (e0cdc9)

  58. aphrael, you seriously think this judge acted in good faith? Or are you just saying it’s plausible that he was, noting how incredibly unlikely that appears to be?

    He should have denied standing for trial if they didn’t have standing on appeal. He should have honored the overwhelming precedence over his case, instead of ignoring it.

    There’s no way he was acting in good faith, and he needs to be impeached.

    And no, his oath doesn’t say he should uphold his personal beliefs. He should uphold the law, and that bound him against his ruling, black and white.

    Dustin (b54cdc)

  59. I also think it’s ludicrous that the Governor and AG can say their personal belief of the law is the opposite of the actual constitutional amendment.

    That’s not logically possible. They are bound to interpret the document so that it’s all true, which is very easy to do.

    Personally, I would have voted no on Prop 8, but that’s not the issue in this case anymore, by any stretch.

    Dustin (b54cdc)

  60. you seriously think this judge acted in good faith?

    Yes.

    He should have denied standing for trial if they didn’t have standing on appeal.

    I don’t think that’s the case.

    The rules for defendant-intervenors and the rules for standing-for-appeal appear, based on the cases cited in his order (and speculation that was all over the legal blogsphere last week before the order came down) to be different.

    ludicrous that the Governor and AG can say their personal belief of the law is the opposite of the actual constitutional amendment.

    I don’t follow.

    They are saying that they believe the fourteenth amendment prohibits the state from treating couples differently on the basis of their sexual orientation or the gender of their members.

    There’s a great deal of debate about whether that is so; the amendment simply requires “equal protection of the laws”, and that’s a vague phrase open to wildly different interpretations.

    But I don’t see how their belief is “the opposite of the actual constitutional amendment.” Their position is debatable, but it’s within the realm of legitimate debate.

    aphrael (e0cdc9)

  61. they believe the greater law of the constitution voids the lesser law of the state.

    And it therefore truly is not too much of a stretch, or a case of overstating the notion of the slippery slope, to envision multiple-partner marriages (or polygamy) as the next step in the process.

    It’s human nature to want to test the boundaries of what’s acceptable or legal. It’s male nature in particular to want to take advantage of sexual opportunities. So the notion of multiple partners instead of boring ol’ monogamy is going to really work its way through culture.

    Even more so when people find themselves going “huh!?” and quietly laughing — and taking marriage less seriously — as certain guys start talking about their husbands and certain women start talking about their wives—-and the media also reflecting that peculiar change in speech. All the while knowing the state (ie, our government) authorizes and recognizes, if not happily condones, that new type of partnership.

    Mark (411533)

  62. taking marriage less seriously

    This is the part of the argument that I still don’t get. But, then again, i’ve lived in a world for at least seven years where it’s perfectly unexceptional and not surprising that men would refer to their husbands, or women to their wives … and my married friends in heterosexual relationships don’t seem to take any of their marriages less seriously.

    aphrael (e0cdc9)

  63. _________________________________________

    and my married friends in heterosexual relationships don’t seem to take any of their marriages less seriously.

    Not sure if the human nature of the people you’re referring to is somehow so different from the human nature of a few thousand years ago.

    I’ll mention again how fascinating it is to sort of take a trip in the time machine and look back at ancient Greece. To observe the conflicts and subtle biases of a famous ancient philosopher and compare those with the reactions — both pro and con — talked about in today’s society. Even more so when the latter is associated as being unique to a Judeo-Christian or non-secular people, or unique to post-1960s counter-culture Western culture.

    Plato: “Homosexuality is regarded as shameful by barbarians and by those who live under despotic governments

    just as philosophy is regarded as shameful by them, because it is apparently not in the interest of such rulers to have great ideas engendered in their subjects, or powerful friendships or passionate love—all of which homosexuality is particularly apt to produce.”

    The famous philosopher Plato (427 B.C. – 346 B.C.) around 348 B.C. describes and implies the widespread practice of homosexuality, and advocates laws to regulate it. One of the most explicit records of disapproval of homosexuality is found in Laws 636c, in which Plato, speaking through the character of the Athenian stranger, describes homosexual relations as an “enormity” or “crime” (tolmema), and explains that it derives from being enslaved to pleasure.

    He plainly rejects homosexual behavior as “unnatural” (para physin), as “When male unites with female for procreation the pleasure experienced is held to be due to nature, but contrary to nature when male mates with male or female with female”.

    Mark (411533)

  64. ProtectMarriage’s motion for a stay from the 9th circuit was filed last night and is available at the ninth circuit’s website (PACER not required).

    aphrael (e0cdc9)

  65. Thanks to aphrael and A.W. for responding to my query.

    This thread may soon be dead as we have new ones on the topic. FWIW, over at PowerLine there is a discussion of why on person thinks the 14th applies to mixed race marriage but not SS.
    Also, I’ve made my case before why SSM may not be particularly bad for marriage, just particularly bad for heterosexuals. A few folks have responded with points. Nobody has produced a reasonable argument why I am wrong. Perhpas no one feels they need to as my argument is of DU density, but no one has said that, either.

    MD in Philly (5a98ff)

  66. MD – for me, it’s mostly that responding to your argument takes a time and thought commitment that i’m not willing/able to make right now.

    aphrael (e0cdc9)

  67. JD, it’s probably not been tested because the situation is rare:

    (a) an initiative has to pass
    (b) and be challenged on federal constitutional grounds
    (c) and the state must refuse to defend it
    (d) and that state’s laws must grant third parties the right to defend the law when (c) is true.

    That doesn’t seem to me to be an issue which arises often.

    aphrael (e0cdc9)

  68. Kevin: doesn’t the sworn oath to uphold the law always carry with it the caveat that you are upholding the law as you understand/believe it to be?

    You presume that Jerry and Arnold care a rat’s ass what the Federal Constitution says. I find it more likely that they like the political result and refuse to support the state Constitution and statute. In doing so they are dissing the voters, and should be held accountable. Brown will be.

    Kevin Murphy (73dcc9)

  69. Comment by aphrael

    Thank you for your note and the respect shown in wanting to do a worthwhile response. Hopefully you will have a little time unexpectedly freed up (while still getting paid, of course!!) and I’ll be able to see your thoughts on it.

    MD in Philly (5a98ff)

  70. should be held accountable. Brown will be.

    I don’t think that’s clear; polls show a tie between Brown and Whitman, essentially, and this hasn’t been much of an issue in the campaign.

    (I don’t like either of them and am inclined to vote third-party).

    aphrael (e0cdc9)

  71. Jerry Brown Double Dipping on Pensions…

    http://taxdollars.ocregister.com/2010/08/13/the-mystery-of-jerry-browns-pension/62501/

    Flashback: Brown Says He Is Going To Investigate Out-Of-Control Pensions…

    http://ag.ca.gov/newsalerts/release.php?id=1971

    ColonelHaiku (2deed7)

  72. doesn’t the sworn oath to uphold the law always carry with it the caveat that you are upholding the law as you understand/believe it to be?

    I’m very much on board with that idea. But its one which liberals have spent the last sixty years trashing, in favor of their “only judges can decide what the law is” position.

    If the governor of Arizona decided to uphold immigration law as she understands it, I doubt you’ve be as comfortable with it.

    Subotai (34b9a5)

  73. There is a difference between conservative and liberal, between rational basis and rationalization.

    Amphipolis (e01538)


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