Patterico's Pontifications

4/19/2011

Judge Walker Reaffirms His Bias—Twice

Filed under: General — Aaron Worthing @ 1:37 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

This is a long one and there is a lot of background to cover before getting to the really interesting stuff.  So strap yourself in.

One of the most damning pieces of evidence of Judge Vaughn Walker’s bias in the Proposition 8 trial was his handling of the “cameras in the courtroom” issue.

Now let me start with two principles.  The first is my belief that as a rule of thumb, if we the public have a right to be present at an event, we have the right to have it recorded and rebroadcast.  Obviously the constitution’s literal wording doesn’t demand that outcome, but policymakers can and should be moved by the policy underneath it which is that the people should be given the greatest opportunity to scrutinize the conduct of its government, including the Least Dangerous Branch.  So my sympathies tend to lie with anyone who wanted to broadcast the Proposition 8 trial.

Second, I believe in something more basic: that it’s not enough to do the right thing, but to do the right thing the right way.  Outcomes matter, of course, but following procedures does, too.  That is based in part on my belief that if we do things the right way, we are more often going to get the right result, even if individual cases end up coming out wrongly.

So if you wanted to say that Judge Walker had the right goal in trying to set things up so that the Proposition 8 trial would be seen on TV, well…  I won’t say you are right, but I would lean in that direction.  But the fact is he violated the administrative procedures in attempting to arrange for the broadcast of the trial.  You see the local court rules didn’t allow for that, so they had to be revised.  Typically the revision of rules required that the new rule be proposed, that the public be given thirty days to comment on it and/or object, and then at the end of the period either the rule is adopted, or a new revision is proposed and the process starts all over again.  But as noted in Hollingsworth v. Perry, that isn’t exactly what happened:

On December 21, a coalition of media companies requested permission from the District Court to televise the  trial challenging Proposition 8.  Two days later, the court indicated on its Web site that it had amended Civil Local Rule 77–3, which had previously banned the recording  or broadcast of court proceedings.   The revised version of Rule 77–3 created an exception to this general prohibition to allow “for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit.”  Id., Exh. 14.  Applicants objected to the revision, arguing that any change to Ninth Circuit or local rules would require a sufficient notice and comment period.

On December 31, the District Court revised its Web site  to remove the previous announcement about the change to Rule 77–3.  A new announcement was posted indicating a “proposed revision of  Civil Local Rule 77–3,” which had been “approved for public comment.”   Id., Exh. 17.  The proposed revision was the same as the previously announced amendment.  Comments on the proposed revision were to be submitted by Friday, January 8, 2010.

On January 4, 2010, the District Court again revised its Web site. The announcement regarding the proposed revision of  Rule 77–3  was removed and replaced with a third version of the announcement.   This third version stated that the revised Rule was “effective December 22, 2009,” and that “[t]he revised rule was adopted pursuant to the ‘immediate need’ provision of Title 28 Section 2071(e).”  Id., Exh. 19, at 3.

You got that?  So first they said that the rule had been changed without that pesky comment period.  Then they dialed it back to a proposed rule.  Then someone decided that the emergency exception applied.  And indeed the Supreme Court noted that this invocation was not appropriate, either:

In dispensing with public notice  and comment the District  Court invoked the “immediate need” exception.   28  U. S. C. §2071(e).  It did so through a Web site posting on January 4—prior to the expiration of the  comment period—indicating that Rule 77–3  had been revised to permit participation in the Ninth  Circuit’s pilot program. These postings gave no explanation for invoking the exception.  At trial the District  Court explained that theimmediate  need here  was to allow this case to be broadcast pursuant to the Ninth Circuit’s new pilot program. See Exh. 1, p. 11, Supp. App. to Response for Perry et al.

This does  not qualify as an immediate need  that justifies dispensing with the notice and comment procedures required by federal law.  While respondents (the plaintiffs in the District Court)  had indicated their approval of the plan, no party alleged that it would be imminently harmed if the trial were not  broadcast

So the Supreme Court stayed Judge Walker’s ruling and eventually issued a mandamus preventing broadcast of any videos of the trial.  A mandamus is called an “extraordinary writ” and this certainly was the case here.  Their conclusion was about as harsh as things get when the Supreme Court rebukes a sitting judge:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district.  Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue.  If courts are to require that others follow regular procedures, courts must do so as well.

Make no mistake on this.  The Supreme Court believed that Judge Walker was actually biased in this case and all but said it.  Any lawyer reading this knows that this is a stinging rebuke.  The case went forward, meanwhile, with Judge Walker ordering the trial to be taped, with the promise that the video would not be broadcast–which is not terribly unusual for in this practicing attorney’s experience. Further Judge Walker ordered the video recording to be placed under seal.  But then Judge Walker decided to go and broadcast part of the trial anyway.  You can even see the relevant portions of the presentation he was giving, here:

And here:

And you can watch the whole presentation, here.

The point isn’t whether the clips are themselves objectionable or not, but the fact that these represented a violation of the judge’s own order.  And what did Judge Walker have to say about this?  Well, when the Proposition 8 proponents filed for an order either stopping these broadcasts, or requiring Judge Walker to turn over the recordings, he replied with a letter in which he explained that he was giving a lecture on the cameras in the courtroom, and gee, felt that these were such great examples he had to use them:

In the first several cameras in the courtroom lectures, I used a re-enactment of cross-examination from Perry.  When given the disk [A.W.: after his request, that is.] containing the Perry videos…, I decided that in the presentation on February 18 at the University of Arizona it would be permissible and appropriate to use the actual cross-examination excerpt from Perry[.]

And if you are looking for an explanation, that’s just about all he provides, except toward the end when he says this:

The Perry case involved a public trial.  As Chief Justice Berger observed some years ago, “People in an open society do not demand infallibility in their institutions, but it is difficult for them to accept what they are prohibited from observing.”

In other words, “the Supreme Court was wrong to stop me from broadcasting the trial, so frak them.”  I mean, it is really hard to read that last paragraph as anything but a middle finger directed at the Supreme Court.

I would also add that those words are ironic given that he doesn’t want us to know certain critical facts about his personal life that bear on whether he could impartially rule in the Proposition 8 case.

He also thought this was relevant, too:

I should also note that the video of the entire Perry trial was made available to the parties in that case and portions were used in closing arguments[.]

Except he doesn’t mention that they were under strict orders not to disclose those recordings outside of parties to the case.  So there is that.

Now his pedagogical purpose in using the clips was undoubtedly sound.  If one of the reasons why you feel that trials should be broadcast is that it brings the case to life in a way no re-enactment or transcript reading could, then surely one of the best ways to make this point would be to show actual clips.  But while that explains why it is necessarily generally to show a video from a real trial, it doesn’t explain why he should be showing broadcasts from this trial.  There are literally hundreds of thousands of hours from other cases available to anyone who wants to show an actual trial.  Trials are transmitted all the frickin’ time and he would have no problem finding illustrative examples in cases that he himself didn’t place under seal.  And I will add that as a retired judge he had no power to lift that seal.

And like I said, as an example of his biased conduct, it is hard to get a clearer example of that (I mean, besides pretending that the evangelical Christians who wrote the Fourteenth Amendment intended to legalize gay marriage).  I suppose he decided all the rules and orders that prevented him from doing this thing were living documents whose meaning could change as time went on, right?

And in terms of the reason for his biased behavior, well he has only strengthened the concern that his sexual orientation is problematic.  As you will remember about eleven days ago, I harassed the SF Chronicle’s reporter Bob Egelko for his decision not to learn and report about Judge Walker’s relationship with another man.  He admitted that “[i]f Judge Walker had a marriage license application pending or immediate plans to marry, he would be ruling on a case that affected his rights” but then several emails later wrote that “He spoke some about his partner, but I think it’s a private matter that’s pretty much his business, not ours.”  So he admits that under the right factual situation there would be a problem, but then apparently doesn’t think it’s our business to find out if that factual situation exists.  That be good reporting, thar!

Well, I found out the other day that the relationship was a tad more serious than previously reported.  As in, it has lasted for ten years.  That was first brought to my attention by John Eastman, writing a post on an opinion blog at the SF Chron.  And in order to back up that fact, he has to cite an outside link to a Reuters report.  Shame on the SF Chronicle for not even reporting that fact.  There is no word on whether anyone asked whether Judge Walker had any desire or plans to marry his significant other, should his ruling be upheld, or what that answer might be.  Isn’t it great to have reporters who doggedly pursue the truth?

And over at the National Review, Ed Whelan makes the case that this ten-year relationship is enough to have justified disclosure if not recusal.  You should read the whole thing, but here are some highlights.  He first recounts all the different ways that Judge Walker himself said that gay people were harmed by exclusion from the institution of marriage:

Among the findings of fact that Walker offered in support of his ruling were that “Proposition 8 increases costs and decreases wealth for same-sex couples,” that marriage “benefits both spouses by promoting physical and psychological health,” that “marriage is widely regarded as the definitive expression of love and commitment in the United States,” and that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”

So it is more than a little contradictory to pretend the judge has nothing at stake in this case, given that the judge himself believed.  And as Whelan points out, the issue isn’t whether the judge subjectively believes he or she could be objective, but whether a reasonable observer informed of all relevant facts would believe that Judge Walker was biased:

Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.

Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker’s impartiality in Perry “might reasonably be questioned.”

So it is not necessary to say that the decision was actually skewed.  But then remember that bit about the cameras in the courtroom.  And certainly read this indictment by Whelan of all the other misconduct he has engaged in.  Normally we stop these inquiries merely at the recognition that the judge had an interest in the case, without asking whether his interest led him to bend the case in one direction or the other.  But here we can see that the judge had a reason to favor the anti-Proposition 8 side of the case, and then actually favored them.

One of the most ancient principles of justice in our system is one stated succinctly in Federalist #10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”  This reflected backward in time from Dr. Bonham’s case down to the present as one of the bedrock principles of due process.  But by Judge Walker’s own words, he and every gay person in a committed relationship had an interest in legalized gay marriage.  It, according to Walker, would increase his wealth, the psychical and psychological health of the partners, and it would remove a stigma upon gay marriage itself.  He had profound interest in the outcome of the trial and it is clear that he acted to reach the outcome that would give him the opportunity to reap the maximum benefit, psychologically and financially. Occam’s razor tells us that Judge Walker didn’t rule as a judge but as a gay man who might someday wish to marry his significant other.

He should have disqualified himself from the trial.  He has tainted the case with his presence.  And we can only be glad that he is retired, now.

—————

And please don’t claim to me that everyone has a stake in the case because some heterosexuals believe that gay marriage weakens the institution of marriage, and therefore we shouldn’t care about Walker’s bias.  That’s cute logically but it fails because it treats all bias as equal.  By that logic everyone is biased, and when you have a situation like that, you find the judge with the least bias.

Let me give you a practical example.  There have been some rumblings for some years about suing to increase federal judicial salaries.  As you might know, the Constitution prohibits Congress from reducing the salary of a judge.  These people I have spoken to, however, want to argue that the Constitution demands a regular cost of living adjustment.  Now never mind sticky questions, like what would be considered when counting inflation.  For instance, the Federal Reserve doesn’t think that food prices count when calculating inflation, but the fact you can buy an Ipad 2 for the same price as an Ipad 1, but it is twice as powerful should count, leading one person to respond:  “I can’t eat an iPad.”  But more fundamentally than that, this assumes that the founders forgot there was such a thing as inflation.

But before we get to all that fun, let’s note that there isn’t a single federal judge who wouldn’t have an interest in the outcome of that hypothetical case.  But that doesn’t mean that you disqualify the entire federal bench.  It just means you recognize that this problem can’t be solved and let a federal judge rule despite the fact that he or she is deciding what his or her own salary would be.  But suppose that a judge’s lot is chosen and they find out that the lead plaintiff’s lawyer in the case is that judge’s wife.  Do we ignore that direct bias because every judge is biased to a degree?  Or do we instead pick the least biased, by finding a judge who is not married to the lead plaintiff’s attorney?*

I know what answer the courts normally give.

————————–

* Whether the judge being married to an attorney appearing before him would help that side, or hurt it, is another matter.

[Posted and authored by Aaron Worthing.]

186 Responses to “Judge Walker Reaffirms His Bias—Twice”

  1. B-but

    /Chuckles the fat butted islam apologist

    DohBiden (15aa57)

  2. Let’s suppose that Judge Walker and his same-sex partner lived in Washington state, rather than in California. Since he would be ruling on a law that does not apply to his residential jurisdiction, would a presumption of bias still apply?

    aunursa (a2a019)

  3. One of the most damning pieces of evidence of Judge Vaughn Walker’s bias in the Proposition 8 trial was his handling of the “cameras in the courtroom” issue

    Wow. Your post is rambling.

    I couldn’t find anywhere in there exactly HOW his handling of the “cameras in the courtroom issue” is biased.

    I get that you think it is hypocritical and defiant.

    I just don’t see how it is biased. Biased in favor of whom? Biased against whom?

    It’s like you don’t understand what words mean.

    It, according to Walker, would increase his wealth, the psychical and psychological health of the partners, and it would remove a stigma upon gay marriage itself. He had profound interest in the outcome of the trial and it is clear that he acted to reach the outcome that would give him the opportunity to reap the maximum benefit, psychologically and financially.

    I like how your arguments to support your position that Judge Walker is biased dovetail nicely and strengthen the case against Prop 8 itself, i.e., that it is unconstitutional invidious discrimination.

    Kman (5576bf)

  4. You had me on the videotaping, and lost me at Ed Whelan.

    Let’s say a black bachelor was asked to rule on a case regarding miscegenation. Should he recuse himself?

    carlitos (28bbc0)

  5. I don’t think it matters at all that Mr. Walker is gay cause of it’s understood that his ruling and its soundness will be evaluated by other courts upon appeal, no?

    They system will work as well in this case as in any other I think. Hey I’ma get a flourless chockit cupcake in honor of the passing over!

    brb the cupcake is in Burbank

    happyfeet (a55ba0)

  6. not *they* system I just meant *the* system

    stupid letters

    happyfeet (a55ba0)

  7. happyfeet, I don’t understand why you’d say someone can’t be biased if their rulings can be appealed. If that were the case, then bias is impossible except in the Supreme Court.

    the issue of bias is whether presiding over your own personal issues gives an appearance of unfairness.

    For example, if you were to be the judge presiding over a case on legalizing baked goods, some would say that because you enjoy the prospect of baked goods, the appearance just isn’t appropriate.

    I think what you really want to say is that you should have your baked goods already. It’s your civil right to pursue happiness with cupcakes. How dare the people barring cupcakes do that!

    Yeah, that’s bias, though.

    Dustin (c16eca)

  8. Let’s say a black bachelor was asked to rule on a case regarding miscegenation. Should he recuse himself?

    Are you assuming a certain outcome is correct? If so, then you’re not really handling this correctly.

    but blacks are not necessarily more disposed to mixed race relationships than whites are… I think this comparison is faulty.

    So let’s make it a black man who is dating a white woman ruling on miscegenation. Yes, he should recuse himself.

    Similarly, on a law banning people named Carlitos riding in the front of a bus or voting, you shouldn’t preside over that case. How dare they make such a law, of course.

    Dustin (c16eca)

  9. Not related to prejudice but I have a question about California’s Rules of Professional Conduct for attorneys.

    I use to do some governmental work. As a City Attorney, I believed my authority was to represent MY CLIENT, regardless of my views on what they had done. My client was the City acting through a majority of the counsel or in initiatives in represent the governmental body, the people.

    When a controversial ballot measure passed 3 of the 5 council members directed I not defend it. But the voters had lawfully approved it. MY CLIENT was the legislature which was in this case the people. I personally opposed the ballot measure.

    Was my ethicial decision WRONG? If not, why the heck can attorney general after attorney general in California refuse to uphold and defend validly adopted laws by the voters? Why is this not subject to an ethics complaint???????????

    Scott (a015b7)

  10. I don’t think it matters at all that Mr. Walker is gay cause of it’s understood that his ruling and its soundness will be evaluated by other courts upon appeal, no?

    Is that really the standard for bias?

    JD (318f81)

  11. Scott – because leftists claim that they are pure and just and beyond reproach because they care more.

    JD (318f81)

  12. Scott, I always thought lawyers were needed in society as professional advocates because without them, only the popular issues get a strong support in court. The child molester must have a defender make sure the state’s case proves the charges.

    When politics invades to the point where lawyers aren’t used to defend both sides of an issue, that’s cheating the process.

    It must be even more frustrating for lawyers who work in government to see this cheating.

    I’m not a fan of DOMA, but the DOJ is refusing to defend it, forcing the House to do their job for them. This is replacing justice with politics. We should rename the DOJ the DOP.

    Dustin (c16eca)

  13. Aaron,
    Great post. When this farce was playing out and Ed’s NRO posts were made I couldn’t believe that this trial was going forward. It is obvious (to me at least) that Walker was hand picked to steer this trial in the direction they wanted. The cameras stuff was ridiculous, and with the SC’s blistering rebuke I couldn’t believe his brazen conduct afterwards. I guess they knew all along that he was retiring and he wouldn’t have to suffer any consequences of his legal mischief. Kinda makes us non-lawyers wonder how often this kind of travesty of law and justice occurs and we just don’t hear about it!

    Dave in OC (d1d92b)

  14. Prop 8 will ultimately be upheld or tossed cause of it is or isn’t constitutional. I don’t see how gay judge boy has altered the course of events in any meaningful way whatsoever. If Prop 8 is tossed out it won’t be because this dude is gay, and if it’s upheld it won’t be upheld any more emphatically cause it was upheld in spite of this judge guy being gay.

    It will have been upheld or tossed out for a for reals reason.

    Also it’s kinda cool that he gave the middle finger to the Supreme Court. The Supreme Court is pretty gay itself and isn’t really big on protecting the rights of individual Americans against their corrupt and malevolent government.

    happyfeet (a55ba0)

  15. Let’s suppose that Judge Walker and his same-sex partner lived in Washington state, rather than in California. Since he would be ruling on a law that does not apply to his residential jurisdiction, would a presumption of bias still apply?

    It is not about bias, but rather that the possibility he might benefit directly from his own ruling, that should have been disclosed.

    And yes, if the venue had been moved to Washington, disclosure of a similar fact would not be necessary.

    Michael Ejercito (64388b)

  16. I don’t think it matters at all that Mr. Walker is gay cause of it’s understood that his ruling and its soundness will be evaluated by other courts upon appeal, no?

    A court could conceivably drop this hot potato simply by vacating the ruling on this basis and remanding it back to the district court, rather than rule on the merits.

    Also it’s kinda cool that he gave the middle finger to the Supreme Court.

    Like the way this judge gave the middle finger to the Supreme Court. Was that cool?

    Michael Ejercito (64388b)

  17. happyfeet, I don’t understand why you’d say someone can’t be biased if their rulings can be appealed.

    Because Mr. Dustin even if Mr. Judge Walker is biased we can’t know why or how… he might could be biased cause of he wants to get married to some guy, though he apparently didn’t get married when it was legal, which is a for reals fact what has a certain amount of bearing on what we make of his intent I think. But he might very well could just be biased cause of he believes that all men are created equal and that they are endowed by their creator with certain unalienable rights and that among these are life liberty and also the pursuing of happiness. It’s difficult to say really.

    happyfeet (760ba3)

  18. But he might very well could just be biased cause of he believes that all men are created equal and that they are endowed by their creator with certain unalienable rights and that among these are life liberty and also the pursuing of happiness.

    Yes, exactly. He might be biased towards rejecting legal arguments in support of a democratic law because of his understanding of his own desire for happiness.

    And you agree with that view, so in this case, you say he can’t be biased. You realize this is circular. You wouldn’t say that someone who is happy when engaged in pedophilia isn’t biased in a case regarding whether pedophile laws are unconstitutional, because that interpretation of pursuit of happiness (which means property rights, rather than marriage) is not legitimate.

    And just to be clear, I’m not associating gay marriage with pedophilia. My point is that we need a judge to rule on the law, not on his political answers to political questions relating to what laws are good ideas.

    This seems pretty basic to me, and if you’re busy considering the merits of this law, or the equality of gays, you don’t understand the issue. This is about bias, and your idea of what precludes bias just can’t be applied generally because it makes no sense.

    Dustin (c16eca)

  19. No, he is biased because he doesn’t know the law, that’s true of practically true of everyone on the 9th Circuit, except possibly Kosinski and one other this is why the Supremes I think at this point, relish the notion of slapping them down

    narciso (79ddc3)

  20. happyfeet, If judge Walker had not been biased the supreme court may not have heard the case at all and an appeal wouldn’t be necessary. Because of judge Walker’s behavior, there will be a tremendous cost to both parties. Every case shouldn’t have to go to the Supreme Court.

    Tanny O'Haley (12193c)

  21. Of course it makes sense. This all started cause a bunch of California bigots decided to have a referendum for to have a majority restrain the rights of a minority. Whether Prop 8 is upheld or rejected, for some homo judge to throw a wrench in their bigoty little proposition scheme just makes the whole hatey crusade that much less dignified I think.

    happyfeet (760ba3)

  22. happyfeet, the pursuit of happiness did not mean to the founding fathers what it means to you. It meant the pursuit of a virtuous life, which at that time was defined by the bible. A study of the culture of the founding fathers might help you better understand the “why”of the constitution and early law. Words change meaning. Gentleman used to be a title, now it means a male with good manners. Gay used to mean a merry mood, now it also means homosexual. When interpreting old documents, you have to use the culture and word definitions of the time.

    Tanny O'Haley (12193c)

  23. Yes, it’s a crazy notion, for marriage to only be between a man and a woman, that’s only been the way it’s been for 4,000 years or so,

    narciso (79ddc3)

  24. but gay marriage isn’t unvirtuous exactly it might be a little awkward, especially at first … but the point is that using a referendum to strip a minority of rights enjoyed by the majority is very not America… it’s tacky.

    happyfeet (760ba3)

  25. Rights imposed by fiat, not the legislature, careful one day the courts will find you are not
    entitled to your cupcake,

    narciso (79ddc3)

  26. I have no doubt a cupcake in the hand is worth a dozen within arms reach of our ravenous America-hating Supreme Court whores… after the appetizers of Raich and Kelo it’s unlikely they’re at all sated – they’re voracious in their appetite for an all powerful state I think

    happyfeet (760ba3)

  27. but gay marriage isn’t unvirtuous exactly it might be a little awkward, especially at first … but the point is that using a referendum to strip a minority of rights enjoyed by the majority is very not America… it’s tacky.

    If this is the case, you definitely want the process getting you to this legal outcome to be legitimate.

    I guess that’s a little naive of me, but please remember the issue here is not whether or not gay marriage is virtuous. It’s whether a bar on gay marriage is fundamentally illegal to the point where democracy cannot disagree.

    Either way, it’s important that judges do not have a special interest in the outcome of a case. Our courts rely on a perception of legitimacy. When we start undermining that, problems like a recklessly unlawful administration become much more serious.

    The cure is worse than the poison. So you recognize that a man being gay is no more or less good a judge for that attribute. So you recognize the opposition to gay marriage is often unfair, or contrary to your concept of freedom and ‘mind your own business’. I think the solution is to appeal to the voters, not rely on a biased judge to cancel the election.

    Dustin (c16eca)

  28. And insofar as Happyfet mentions cases like Raich as an argument that I’m arguing to close the barn after the horse is romping around, I guess that’s a fair point, but let’s preserve what’s left.

    Dustin (c16eca)

  29. Of course it makes sense. This all started cause a bunch of California bigots decided to have a referendum for to have a majority restrain the rights of a minority. Whether Prop 8 is upheld or rejected, for some homo judge to throw a wrench in their bigoty little proposition scheme just makes the whole hatey crusade that much less dignified I think.

    So then Sir William Blackstone, John Locke, Voltaire, Stephen Field, Thomas Stanley Matthews, and George F. Edmunds were all bigots?

    Michael Ejercito (64388b)

  30. yes in this specific regard I suppose yes they were bigots most foul Mr. Ejercito, if they were all about using the power of the state to constrain nice law-abiding gay california people from the marriagings enjoyed by even the mostest dissolute law-spurning not-gay california people

    happyfeet (760ba3)

  31. Raich involves actions that were already illegal, that’s why it seemed like an odd building block for either the health care law or this matter,

    narciso (79ddc3)

  32. happyfeet, as Dustin said,

    The cure is worse than the poison. So you recognize that a man being gay is no more or less good a judge for that attribute. So you recognize the opposition to gay marriage is often unfair, or contrary to your concept of freedom and ‘mind your own business’. I think the solution is to appeal to the voters, not rely on a biased judge to cancel the election.

    The “California bigots” had to introduce prop 8 because of a few judges who determined that the California constitution which was written by “evangelical Christians” included same sex marriage. Appeal to the voters and go through the correct channels and change the law. Don’t make a mockery of the law with a biased judge who tells us by his actions we shouldn’t obey any law.

    Tanny O'Haley (12193c)

  33. I say let’s make a mockery of the law and then have pancakes.

    happyfeet (760ba3)

  34. They’ll be banned next,

    narciso (79ddc3)

  35. How about just pancakes?

    Dustin (c16eca)

  36. yes in this specific regard I suppose yes they were bigots most foul Mr. Ejercito, if they were all about using the power of the state to constrain nice law-abiding gay california people from the marriagings enjoyed by even the mostest dissolute law-spurning not-gay california people

    They all defined marriage as between one man and one woman.

    Michael Ejercito (64388b)

  37. bigotry is bigotry it helps America not a whit to claim we have to renounce it just so … Prop 8 is a hateful trashy unchristian unamerican absurdity what demeans what our little country stands for, and that’s that really I’ll have the short stack please and don’t skimp on the butter darlin

    happyfeet (760ba3)

  38. happyfeet, You know bigotry isn’t one sided.

    big·ot·ry [big-uh-tree]
    -noun, pl.-ries.
    1. stubborn and complete intolerance of any creed, belief, or opinion that differs from one’s own.
    2. the actions, beliefs, prejudices, etc., of a bigot.

    Why can’t you tolerate the other side’s beliefs?

    Tanny O'Haley (12193c)

  39. I think the other side is more than welcome to not hold with the gay marriage but that’s different than saying they should get to force their beliefs on people what think otherwise. No one’s advocating for laws to make it illegal for christians or blacks to marry willy nilly, so they should be content and make a joyful noise and all that sort of thing. Make casseroles and wear pretty hats.

    happyfeet (760ba3)

  40. Prop 8 is a hateful trashy unchristian unamerican absurdity what demeans what our little country stands for

    Really?

    I thought it just defined marriage as man+woman. It’s not really that unamerican, then… as America has survived that arrangement. I’m pretty sure there aren’t any biblical issues with that.

    Again, you’re undermining the idea of justice because you want a certain outcome, and that outcome is extreme. I don’t mean an outcome of gay marriage, but rather an outcome where the voters settle a political question, and that is reversed because a biased gay judge wanted marriage to be defined as homosexual or heterosexual. I think this outcome is very unamerican.

    What would be more American is for people who agree with you to campaign for the voters to change their mind on this political question. Judges settling political questions is just not right. That’s Republican in the most classic sense, I guess, but otherwise… not for me.

    Is the middle ground option, civil unions, that awful? What is in those pancakes, exactly?

    Dustin (c16eca)

  41. Is the middle ground option, civil unions, that awful?

    Separate but equal. Fail.

    Seriously, in 20 years, when someone looks at these postings, they are going to look at the commentariat here like we look at Robert Byrd or Strom Thurmond. Not a proud moment for Republicans.

    carlitos (28bbc0)

  42. Why just Republicans? Why not Hispanics? African Americans? The evil Mormons?

    JD (318f81)

  43. president Obarcky

    JD (318f81)

  44. These are pancakes of equality Mr. Dustin

    and mmmm they’re delicious!

    happyfeet (760ba3)

  45. Separate but equal. Fail.

    Our society, as well as the federal judiciary, tolerates separate but equal on the basis of sex.

    Seriously, in 20 years, when someone looks at these postings, they are going to look at the commentariat here like we look at Robert Byrd or Strom Thurmond. Not a proud moment for Republicans.

    Prove it.

    Michael Ejercito (64388b)

  46. The logic of that statement, is that heterosexual marriage is wrong, and advocating it, would be a hate crime, do you really want to go there,

    narciso (79ddc3)

  47. Yep, I’m a Klansman for asking what’s so bad about civil unions.

    “Separate but equal. Fail.”

    Actually, this seems like a terrible argument to me.

    Marriage is a *word*. You might as well argue that we have to call men and women the same word, for them to be equal.

    Frankly, there are great societal reasons to promote monogamy. One, of course, is the nuclear family. That’s the most important. Another is that long term, stable relationships, are simply a better way to live your life. I see both of these as applying to gay marriage, or civil unions. What’s so ghastly about calling them the latter term?

    Gay marriages are fundamentally different from straight ones. I don’t mean this out of some kind of judgment. It’s just the truth. Why can’t carlitos argue this rationally? There’s no reason to shut this down with a proclamation that the future will abhor me. You’re skipping a step of the argument.

    This isn’t even about my ideal arrangement (which to be frank, is that the government need not socially engineer at all, or recognize anyone’s marriage at all, because the value of living your life in a smart way is its own reward).

    But frankly, why can’t states settle this political question in different ways? If Californians think marriage is between a single man and a single woman, how is that unconstitutional? “separate but equal” is a nonsense objection.

    No, Carlitos would do a lot better to follow my lead and appeal to the voters, than warn us that even suggesting a political compromise to a political question is abhorrent.

    Also, a lot of great people wanted all black schools for the sake of the black kids. It’s interesting to consider these ideas. They can be presented without the premise of bigotry. We should be more open to rational discussion. We should be more tolerant of political differences on social issues.

    Happyfeet and Carlitos should relax about these social issues a bit. they really aren’t the most serious problems facing society. If you want to live with your gay partner, you can find a way to make that work if you try. It’s not as easy as it is for me and my wife, and I’m not glad, but we need to be tolerant of differences on social issues, because coalitions for more important reforms start to fall apart.

    Just look to Happyfeet’s comments on Planned Parenthood defunding. In his mind, this was proof the GOP isn’t serious about finance. I’m sure there are also a lot of people angry that the GOP ultimately relented. They are similar to Happyfeet except they are on the other side of the issue.

    These social issues are political footballs used to control us, and they interfere with more important issues. Mitch Daniels is right about this. We’ve got to put this stuff aside for now. At the very least, when we have a discussion about it, let’s not call eachother bigots until it’s justified.

    Dustin (c16eca)

  48. ESAD carlitos i’am sick and tired of being compared to the KKK.

    DohBiden (15aa57)

  49. Mr. Feets – As I recall, all the undignifiedness in this matter was on the homo side, very much like the greasy assed union socialist thuggery what happened in Madison. They eat a lot of pancakes in Wisconsin and sausages. True fact.

    daleyrocks (bf33e9)

  50. I’m sorry for being so verbose. That’s more annoying than anything Carlitos said, to be honest.

    “These are pancakes of equality Mr. Dustin

    and mmmm they’re delicious!”

    That’s such a great name for pancakes. Consider the possibility that Carlitos is right about the direction of politics. If that is the case, you should very much want the process to be democratic rather than philosopher king republic. You should very much not want to establish a social engineering court precedent.

    The Biased Judge Route is an act of desperation that seems completely unnecessary.

    Dustin (c16eca)

  51. NO JUSTICE, NO PEACE, NO CUPCAKES

    daleyrocks (bf33e9)

  52. The Biased Judge Route is an act of desperation that seems completely unnecessary.

    So was the argument that proponents lacked standing.

    Michael Ejercito (64388b)

  53. At the very least, when we have a discussion about it, let’s not call eachother bigots until it’s justified.

    Mr. Dustin to be a little pikachu what fails to call bigotry by its name is to make of oneself something far far worse than a mere bigot.

    happyfeet (760ba3)

  54. “Seriously, in 20 years, when someone looks at these postings, they are going to look at the commentariat here like we look at Robert Byrd or Strom Thurmond. Not a proud moment for Republicans.”

    I think they’ll be looking at how liberalism turned the U.S. into a third world country first. YMMV.

    daleyrocks (bf33e9)

  55. Telling Carlitos to eat fecal matter and die pretty much is not called for. Not at all.

    JD (318f81)

  56. Where they eat a lot of sausage is Portugal. Just an ungodly amount of sausage.

    happyfeet (760ba3)

  57. Broke my fibula tonight. Boot, until the MRI, and ortho surgeon consult. Rolled it so hard that the outside of fibula broke when it slammed into the concrete. I was just starting to get in shape, did a half marathon and a sprint triathlon in the last 9 days. This will set me back for at least the summer.

    If anyone wants a bib to the Indianapolis Mini-marathon, or the Indianapolis, Lousville, and Chicago triathlons, let me know.

    JD (318f81)

  58. I’m sorry Mr. JD that sounds even more disheartening than painful and it sounds very painful. When you start to heal drink your skim milks and also you can have tasty wasabi soy almonds they are a very calcium-rich foozle. And remember that the whole deal about caffeine being inimical to calcium absorption is really a myth so don’t let them make you quit coffee you’ll be glad of the metabolic boost while you’re laid up.

    happyfeet (760ba3)

  59. Michael, at 52: the standing argument is actually a very interesting one with rather profound implications either way for California law. If the official proponents have standing to appeal, something which has never been alleged before even though the AG frequently declines to appeal adverse district court decisions, it substantially changes the powers of the AG and the way our initiative system functions. If they don’t have standing, then the AG can simply decline to defend initiatives he doesn’t like.

    That’s a rather serious change from the de facto situation prior to the case; and a confirmation that the de facto situation of the past is in fact the law would represent a rather serious restriction on the practical utliity of the initiative power. So – it’s an important question whose answer really isn’t clear, and I’m happy to see it litigated. I will be very interested, once the semester is over and I have free time, to read the briefs filed with the California Supreme Court on the question.

    As an aside, I think that the voters demonstrated that they don’t really care when they elected Brown (who had refused to defend the law) as Governor, and Harris (who had promised to continue refusing to defend the law) as AG. Were the refusal to defend Proposiition 8 in court important enough to the electorate, those elections would have turned out differently. Not that this changes the legal situation; but it does demonstrate that there’s no great groundswelling of discontent with the status quo.

    aphrael (fe2ce4)

  60. So was the argument that proponents lacked standing.

    Yes, that was an absolute disgrace.

    Mr. Dustin to be a little pikachu what fails to call bigotry by its name is to make of oneself something far far worse than a mere bigot.

    Really? OK, if you say so. They both sound bad enough to me that it hardly matters.

    But you still need to prove that everyone suggesting civil unions is a bigot. It really seems like a natural option for someone who isn’t that worried about social issues, but would like to try to satisfy gays with a better option than no recognition.

    There’s something to be said for practicality. It can be discussed without leaping to massive moral condemnation. Hell, maybe it’s totally wrong! If so, you do better by arguing why than just saying ‘FAIL!’. Don’t you understand this? By oppressing California voters, you’re not helping your cause.

    Dustin (c16eca)

  61. Broke my fibula tonight. Boot, until the MRI, and ortho surgeon consult

    Good grief. I’m sorry, JD.

    I was just starting to get in shape

    That really is a shame. I had a very similar problem some time ago, when I just pushed by knee too hard because I was getting into shape.

    Dustin (c16eca)

  62. Dustin: the most disgraceful argument in the entire thing was the argument that the ‘initiative’ was actually a ‘revision’ which needed to follow a different procedure to get on the ballot. This was particularly offensive because the event which allegedly made it a ‘revision’ took place after the petitions were filed, and you’d think that characterization one way or the other should take place, at the latest, at the date of filing.

    I was thrilled when the California Supreme Court called that out for the BS it was.

    aphrael (fe2ce4)

  63. Mr. Dustin civil unions are a chimera … Team R has never ever advocated for civil unions and besides same sex marriage is for all practical purposes just like regular marriage except they can wear each other’s clothes and the neighbors won’t talk.

    happyfeet (760ba3)

  64. Thanks, Dustin. I had dropped from 240-ish to 210 since January, and was just starting to lean out. But I have good drugs.

    JD (318f81)

  65. Happyfeet: the fact that the California Republican party objects to domestic partnerships as well as gay marriage (their representatives in the legislature consistently voted against the state’s domestic partnership bill) is one of the reasons I can’t support the California Republicans: their officeholders really don’t seem to believe I should be treated equally at any level, and that’s a very difficult thing for me to get past. (Of course, they’re also out of touch with the mood of the state and seem to be incompetent campaigners. But that’s been a recurring theme for more than a decade now).

    aphrael (fe2ce4)

  66. JD – That sucks. Who was chasing you and why?

    daleyrocks (bf33e9)

  67. JD, I missed your comment above. I’m sorry to hear it; that’s a terrible thing to happen, and I’m sure it’s particularly bad when you’re in the middle of a successful weight loss routine.

    Best of luck for a rapid recovery. :)

    aphrael (fe2ce4)

  68. “I had dropped from 240-ish to 210 since January”

    Getting ready for that summer kilt?

    daleyrocks (bf33e9)

  69. Daley – just playing on the driveway with my little angels. They heard daddy say some new words that they had never heard before.

    Thanks, aph. Oh, California Republicans are generally kind of douchey.

    JD (318f81)

  70. The legislator ones, I mean.

    JD (318f81)

  71. I don’t really have a lot of working knowledge or even awareness of the California Team R Mr. aphrael… I don’t take them seriously at all when I think of Team R I think of the national one if the California one even counts at all someone would have to explain to me why and how.

    happyfeet (760ba3)

  72. Daley – I have to order a new one, or take mine to the alteration shop.

    JD (318f81)

  73. Happyfeet: as a citizen of California, I’m mostly concerned with the California Republican party. They control just enough of the legislature to tie up the budget, and the absence of effective competition at the state level means that the quality of the Democrats has deteriorated, too.

    I mean, really. Could Boxer have been re-elected if the state had a functioning Republican party? Could she have been nominated if the Republican party posed a real threat to Democratic control of statewide offices?

    Everyone is hurt by the lack of actual political competition. This includes liberal democrat fags like me, even when the non-functioning party is the conservative one. :)

    aphrael (fe2ce4)

  74. I thought we voted to where they aren’t as able to tie up the budget. Here. I actually voted for that in the spirit of if it were done then ’twere well it were done quickly.

    Boxer’s reelection was very disheartening I went and voted for that Fiorina hoochie instead of getting pancakes and don’t think I don’t still have misgivings about that.

    happyfeet (760ba3)

  75. I was thrilled when the California Supreme Court called that out for the BS it was.

    You’re probably right. You’re an honest guy, and I have no idea about that aspect of the issue.

    However, at the time of that vote, California answered this political question. It seems like the best way to change that would be to have another election now, with a better, more persuasive argument.

    The plain truth is that those who prefer civil unions are not actually very much like Robert Byrd or nazis. They aren’t anti american or horrible. They are actually reasonable people, who can be reasoned with over time.

    All I’m asking is that this not be settled by an activist judge. Insofar as there was a real legal problem that you’re citing, even then, I’d rather a non-biased judge make that determination. The judicial system’s credibility is more important than the entire issue of marriage, anyway.

    Mr. Dustin civil unions are a chimera … Team R has never ever advocated for civil unions and besides same sex marriage is for all practical purposes just like regular marriage except they can wear each other’s clothes and the neighbors won’t talk.

    I’m not speaking for ‘team R’. I also think social issues are not as important as fiscal issues are. I thought you agreed recently, when you were lamenting planned parenthood defunding.

    Maybe civil unions just can’t be the same as marriages. I have to admit, I’m not the best informed person on this issue. My concept of it is that it’s just marriage by another name. Is that the same as putting blacks in inherently unequal schools? Aphrael notes his marriage all the time… it’s not like we have to adopt the government’s language.

    Why not get the government out of the marriage business altogether? You want to be married, go to church. If my state told me I wasn’t really married to my wife, that wouldn’t actually mean I’m not.

    Dustin (c16eca)

  76. Happyfeet – we did, but there’s still a supermajority needed to raise taxes or to place a measure before the voters. So currently we’re blocked because the Dems don’t really want to cut $14 billion and they can’t get any Republicans to sign on to letting the voters vote on extending taxes. The Republicans, of course, are terrified that if they do, they’ll get recalled.

    I really hope the new districts and the top-two runoff help with this s***t.

    aphrael (fe2ce4)

  77. I’m mostly concerned with the California Republican party. They control just enough of the legislature to tie up the budget, and the absence of effective competition at the state level means that the quality of the Democrats has deteriorated, too.

    Absolutely right.

    I don’t know if this means the Cali GOP should be more socially ‘liberal’. My gut says it probably should be. Different states should be able to have different attitudes. That’s a two sided coin, though. I think California should be able to have gay marriage, and Oklahoma should be able to outlaw abortion. If other states don’t want to recognize your marriage, well, it’s not like they recognize my concealed carry permit either. This is the best solution to a lot of social issues, but it undermines social politics.

    Dustin (c16eca)

  78. Dustin: in California, it’s the same as marriage in all but name, except that (a) other states don’t recognize it necessarilly, and (b) neither does the federal government.

    This causes hideous tax problems for domestically partnered couples because under state law their income is community property, and the IRS has deigned to recognize that … meaning that when you file your single federal tax return, you nonetheless have to document half of your partner’s income and half of your income, and if there’s any additional complexity beyond that, it turns into a royal mess. Heaven forbid you own (as a couple) income property in some other state ….

    What i’d like to see, if we’re going to go this route with every jurisdiction having different setups, is:

    (a) domestic partnerships/civil unions in state A automatically recognized in state B if state B recognizes domestic partnerships/civil unions

    (b) gay marriages from state A automatically recognized as domestic partnerships/civil unions in state B

    (c) gay marriages and marriage-in-all-but-name which are legal under state law are treated as marriages for federal tax purposes and for purpose of the spousal evidentiary privilege.

    (d) EITHER non-gay-union-recognizing states recognize them enough to allow the courts to grant divorces OR residency rules for divorces be relaxed enough that someone living in a jurisdiction which doesn’t recognize their union can get a divorce from the jurisdiction which originally blessed it.

    this seems like a minimum set of rules needed simply to make the system workable.

    aphrael (fe2ce4)

  79. I resent being on Team Social Issues Mr. Dustin and I express my discontent from time to time. And I don’t lament Planned Parenthood defunding but it was a duh that Boehnerdouche couldn’t deliver on that and Team R looked silly yammering on about fetal management issues while literally trillions of dollars are being borrowed and spended in a suicidal hootenanny like our little country had good sense, which it most demonstrably does not, and it is easily demonstrated by Boehnerdouche the pandering squack nattering on about fetuses while Rome burns like a koran in Florida.

    Gay marriage is one of those things where you just shrug and move on. Why? Cause of it costs you nothing and life is too damn short as it is to say nothing of solitary poor nasty and brutish and if gay marriage helps one or two or ten or a thousand gay people to stumble through this vale of tears with a little more grace and a little more equanimity then for christ’s sake let them and we can all worry about the more importanter problems together, as Americans.

    happyfeet (760ba3)

  80. oh. Yes a big part of the reason I voted for the budget thing was cause it didn’t include taxes. I just moved you see and if they tax me up I’ll have to move again, and that’s bad for your credit score.

    happyfeet (760ba3)

  81. The thing that I thought was bizarre about the PP debate was that I expected the total to be the most important thing to Team R, and the way to win on that is to be flexible about where the money is coming from. That is, cut a deal wherein you get the total amount of cuts you want but the other team gets to decide, for the most part, where the cuts come from. Everybody wins.

    So I thought it was just bizarre that there was this protracted fight about whether or not to cut from a particular program which Team R happens to dislike.

    aphrael (fe2ce4)

  82. It definitely confuzzled any message that Team R was not just concerned about the spending but was very very alarmed. They couldn’t have been all too alarmed if they were nattering on about Planned Parenthood into the wee hours, a reasonable person could reasonably conclude I think.

    happyfeet (760ba3)

  83. Lefturds are pure scum and yes Despite Ahmadinejad banning communism in iran he is still a lefty because he aligns himself with Kim-Jong Il.

    DohBiden (15aa57)

  84. Stephen fisher is an idiot fascism has always been a left-wing ideology

    DohBiden (15aa57)

  85. I resent being on Team Social Issues Mr. Dustin and I express my discontent from time to time.

    And please continue to.

    Team R looked silly yammering on about fetal management issues while literally trillions of dollars are being borrowed and spended in a suicidal hootenanny

    LOL. Yes, focus would be nice.

    Gay marriage is one of those things where you just shrug and move on. Why? [...] for christ’s sake let them and we can all worry about the more importanter problems together, as Americans.

    If it were up to me, Happyfeet, this wouldn’t be a problem. All I can do is a) note we have common ground on the fiscal crisis and b) suggest a much better way for you do get what you want, via persuading the voters (this may have already worked in Cali… why not let the voters have another shot?).

    But consider your reasoning, that we can just let gay marriage happen because you make a (compelling) utilitarian argument. you want those people to have a shot at a happier life.

    I honestly think abortion should be outlawed.
    I feel this way because I think those unborn people deserve that same shot at a happy life. It’s not a religious argument. Don’t let someone’s personal interests destroy someone else’s entire existence unless it’s an emergency.

    Why can’t you let Demint and Boehner defund planned parenthood so maybe a handful of kids are born, and then we can worry about the more important problems?

    Because you don’t agree with them, that’s why.

    The truth is that folks just don’t agree on everything. That’s why I argue for this particular intellectual tolerance of different social attitudes. That doesn’t mean you have to shut up about gay marriage. Most of the time, it doesn’t conflict with, say, the budget. When it does, … prioritize. I’m not even saying you don’t, but I think part of this prioritization requires respect for those who disagree. Such as those who support civil unions with not an ounce of hatred.

    ———–

    this seems like a minimum set of rules needed simply to make the system workable.

    Comment by aphrael — 4/19/2011 @ 9:42 pm

    That’s a well reasoned plan. Insofar as you are recognizing legal differences in civil unions and marriages, yes, those would have to be eliminated. My concept (which is less realistic) is for people to enter into contracts. Just eliminate the state’s role in the ‘marriage’, but have a special partnership with property implications. I’d even go so far as to say the tax implications of marriage also need to be eliminated. This is just pie in the sky, but anyway, I have no objections to your plan that I don’t have with the status quo.

    Dustin (c16eca)

  86. Kman

    > Your post is rambling.

    Just because your can’t handle a long post on two interconnected subjects…

    > I couldn’t find anywhere in there exactly HOW his handling of the “cameras in the courtroom issue” is biased.

    Proving you didn’t, you know, read the case.

    > I like how your arguments to support your position that Judge Walker is biased dovetail nicely and strengthen the case against Prop 8 itself, i.e., that it is unconstitutional invidious discrimination.

    I do not deny that gay people are losing a benefit by not being allowed to marry.

    I deny that the constitution gives a damn about it.

    Carlitos

    > Let’s say a black bachelor was asked to rule on a case regarding miscegenation. Should he recuse himself?

    I kind of anticipated that point, here: http://allergic2bull.blogspot.com/2010/02/judge-in-proposition-8-trial-is-gay-and.html

    Aaron Worthing (e7d72e)

  87. Why just Republicans? Why not Hispanics? African Americans? The evil Mormons?

    Comment by JD — 4/19/2011 @ 8:30 pm

    Added and denounced. Thank you.

    Telling Carlitos to eat fecal matter and die pretty much is not called for. Not at all.

    Comment by JD — 4/19/2011 @ 8:50 pm

    Thanks. I hadn’t looked here since last night, and was wondering what “ESAD” might mean. You saved me a trip to urban dictionary. :)

    Hey, JD, sorry about your leg. If the Indy mini-marathon of which you speak is the May 7 one, I’m in Montreal that day and probably not in shape for 13.1 just yet. Good luck in healing.

    carlitos (28bbc0)

  88. I kind of anticipated that point, here: http://allergic2bull.blogspot.com/2010/02/judge-in-proposition-8-trial-is-gay-and.html

    Thanks for posting, but I’m still not buying it. I do like that you analyzed the LOVING case on Valentine’s Day though!

    I can’t elaborate now – busy day, but I’m sure it’ll come up again.

    carlitos (28bbc0)

  89. I do not deny that gay people are losing a benefit by not being allowed to marry.

    I deny that the constitution gives a damn about it.

    The Constitution certainly does “give a damn” about unequal treatment under the law. It’s pretty explicit about it.

    Kman (5576bf)

  90. #59 aphrael: I don’t think the election of the governor and the attorney general can be considered particularly relevant to the California voters’ desire to have Prop 8 defended. Those weren’t single-issue elections. Granted, if they had been single-issue elections revolving around the idea of defending or not defending Prop 8, the election of Brown and Harris would have been an endorsement of not defending Prop 8.

    But when Prop 8 itself was before the voters of California in 2008, they voted in favor of it. That’s the most recent official word from the California electorate that we have on this issue.

    If opinions have changed since 2008, and they may have, then a new proposition can be put on the ballot so the voters can decide whether to amend the state constitution to say that same-sex marriage shall be authorized.

    Joshua (9ede0e)

  91. Kman

    > The Constitution certainly does “give a damn” about unequal treatment under the law. It’s pretty explicit about it.

    Really, so if a statute discriminates between a hot dog vender and a hamburger vender, that is unconstitutional?

    No. Black letter law, no. rational basis only, which you know means you pretty much always lose.

    and on original intent, no. Thad Stevens said that he wanted there to be no discrimination except that which arose from merit and conduct. think about it.

    if you want the rules to change, gosh, you’re just going to have to convince the voters you are right. sorry. i know all that democracy is a terrible inconvenience to you.

    Aaron Worthing (e7d72e)

  92. Joshua – yes and no. Certainly Proposition 8 is the authoritative statement of the electorate’s view of gay marriage, and certainly the best way to get it removed from the state constitution is to have the voters repeal it in an election.

    And yet: the election of Gov. Brown and AG Harris says, at the very least, that the electorate is willing to tolerate not defending Proposition 8 in court as long as it’s getting something it wants more out of the bargain. This is a normal compromise in the election process – if it were truly intolerable, the outcome of the elections would be different.

    aphrael (9802d6)

  93. Aaron,

    You don’t think gays wishing to marry in California are a group that qualifies for strict scrutiny (vs. rational basis?).

    Just curious.**

    **IANAL!

    carlitos (28bbc0)

  94. Thad Stevens said that he wanted there to be no discrimination except that which arose from merit and conduct

    Oh, is this from your law school note where you rely heavily on an out-of-print book published by an now-defunct publishing house, and written by a socialist who wasn’t even a historian — i.e., a source whose contemporary equivalent would be “some guy with a blog”?

    Anyway, what Thad Stevens wanted means squat compared to what was WRITTEN. Thad Stevens didn’t get what he wanted (for example, he didn’t want folks in the Confederacy to have the vote).

    if you want the rules to change, gosh, you’re just going to have to convince the voters you are right. sorry. i know all that democracy is a terrible inconvenience to you.

    The voters already ruled when their elected representatives in each state passed the 14th Amendment.

    Kman (5576bf)

  95. Kman

    > The voters already ruled when their elected representatives in each state passed the 14th Amendment.

    even you don’t believe that. seriously, there was no tolerance of the gay lifestyle in 1868.

    your only argument is for “living constitutionalism.” Which is another word for activism.

    Aaron Worthing (e7d72e)

  96. seriously, there was no tolerance of the gay lifestyle in 1868.

    Which is hardly the point (you think there was tolerance of interracial marriage in 1868?)

    Seriously, that’s like saying obscenity laws should conform to the standards of those who carved the free speech protections in the late 18th century: “The founding fathers would never have intended free speech to mean that Katy Perry could show so much cleavage!!”

    Here’s a hint, Aaron: the Constitution wasn’t meant to lock us into a world of powdered wigs and Victorian morals at the time it was written. Just as the concept of “arms” evolves (we no longer live in a world of bayonets and flintlocks), so too do our concepts of social institutions.

    Kman (5576bf)

  97. kman

    > Which is hardly the point (you think there was tolerance of interracial marriage in 1868?)

    The difference is that the founders did explicitly write something eliminating racial discrimination.

    Are you saying that the founders wanted to eliminate discrimination according to sexual orientation?

    > Here’s a hint, Aaron: the Constitution wasn’t meant to lock us into a world of powdered wigs and Victorian morals at the time it was written.

    Yes, which means that we are free to be more tolerant of homosexuality than they were. California may legalize gay marriage.

    But that is not the same thing as saying that our laws are required to be more tolerant of homosexuality than either we or the founders are.

    What you are talking about is activism, not constitutionalism. And you don’t even have enough respect for the people to tell them that is what you mean, hiding behind euphamisms. You want the judges to rule it invalid because you really, really disagree with it. Not because it is actually against the constitution.

    Aaron Worthing (e7d72e)

  98. The difference is that the founders did explicitly write something eliminating racial discrimination.

    Explicitly? Where is that in the Constitution?

    Are you saying that the founders wanted to eliminate discrimination according to sexual orientation?

    Again, you keep harping on the assumption that we have to do what the founders “wanted”. In doing so, you don’t seem to understand the difference between a “framework” and an “edict”.

    The framers of the 14th didn’t sit down with a laundry list and say “we want equal protection of the laws for THIS group, and THIS group, but not THAT group and THAT group”. And even if some of them DID do that perverse itemization, it doesn’t appear in the text. So you lose.

    Yes, which means that we are free to be more tolerant of homosexuality than they were.

    We always were free to more tolerant (or less tolerant). The Constitution didn’t give us that.

    But that is not the same thing as saying that our laws are required to be more tolerant of homosexuality than either we or the founders are.

    Except that “tolerance” isn’t the issue here. It’s about “equal treatment”. And our Constitution does require equal treatment under the laws.

    Kman (5576bf)

  99. AW – does equal treatment apply to immutable characteristics, or choices and preferences?

    JD (318f81)

  100. Kman

    > Explicitly? Where is that in the Constitution?

    fine, not explicitly, but we all know that was their primary focus.

    > Again, you keep harping on the assumption that we have to do what the founders “wanted”.

    No, reading comprehension fail as usual. We are free to be more tolerant. But we don’t have to be.

    > The framers of the 14th didn’t sit down with a laundry list and say “we want equal protection of the laws for THIS group, and THIS group, but not THAT group and THAT group”. And even if some of them DID do that perverse itemization, it doesn’t appear in the text. So you lose.

    by that logic, then, discrimination between a person selling hamburgers and one selling hot dogs is unconstitutional. Indeed, the discrimination we practice against pedophiles (by throwing them in prison), would be unconstitutional. Our government discriminates all the time.

    So you have to come up with a limiting principle. i had one based on what the father of the fourteenth amendment said. the S.C. has instead come up with that three tiers of suspicion. And you want to either do away with both, or declare suddenly and contrary to the intent of the founders, that discrimination based on sexual orientation is on par with racial discrimination.

    Again, not constitutionalism, but the rule of old men (and some old women) in black robes, in the place of democracy.

    > Except that “tolerance” isn’t the issue here. It’s about “equal treatment”.

    Now you’re just playing silly word games. you know that tolerance is often used interchangeably with equal treatment.

    Aaron Worthing (e7d72e)

  101. AW – does equal treatment apply to immutable characteristics, or choices and preferences?

    Careful, JD, next Kman will be asking you when you chose to like teh womyn. :)

    Aaron, do you think that hamburger vendors would receive strict scrutiny? How about gays wishing to marry in California.

    carlitos (28bbc0)

  102. carl

    i think that stevens had the better framework, frankly for a limiting principle. You would say that the hamburger/hot dog discrimination would be based on conduct. but that doesn’t bode well for discrimination based on sexual orientation.

    But the precedent hasn’t gone my way. still you would have to be warping precedent significantly to pretend that strict scrutiny should apply.

    I will note, also, that immutability is not enough. for instance, one’s status as an “illigitimate child” is immutable, but the S.C. has not determined that they are a suspect class. they get intermediate scrutiny.

    And without strict scrutiny, it is very difficult to win the prop 8 case for the gay marriage proponents.

    Aaron Worthing (e7d72e)

  103. fine, not explicitly, but we all know that was their primary focus.

    Well according to you, the primary focus of equal treatment means:

    (1) equal treatment under the law for blacks (because the 14th was a Civil War Amendment);

    (2) equal treatment under the law for handicapped people (because the “father” the 14th Amendment had a limp and (what do you know!) you have a handicap yourself); and

    (3) equal treatment for Florida voters in different counties for the way their votes are counted (because if Thad were around today, he would have wanted it so — isn’t it obvious?)

    So you have to come up with a limiting principle. i had one based on what the father of the fourteenth amendment said. the S.C. has instead come up with that three tiers of suspicion. And you want to either do away with both, or declare suddenly and contrary to the intent of the founders, that discrimination based on sexual orientation is on par with racial discrimination.

    No, I’m fine with the SCOTUS breakdown. Which means that you apply the highest level of scrutiny when a fundamental right is at stake (and marriage is universally considered a fundamental right).

    Kman (5576bf)

  104. Thanks for the clarification.

    I agree with your points on the video, but would love to watch the Boies cross-examinations, now having read them.

    carlitos (28bbc0)

  105. Kman

    > Which means that you apply the highest level of scrutiny when a fundamental right is at stake (and marriage is universally considered a fundamental right).

    the court has so far only ruled that straight marriage is a fundamental right.

    Nice try, though.

    but okay let’s play that game.

    So what is the compelling reason to keep marriage between only two people–no polygamy, etc.

    And what is the compelling reason to prevent incestuous marriages? And before you say “mutant children” for the 300th time, let me reply that in most states the ban applies to couples who are either 1) not blood relation or 2) incapable of having children.

    The answer is you can’t come up with a compelling justification to exclude those two groups. so once again, your argument proves too much.

    Aaron Worthing (e7d72e)

  106. carlitos

    i am enough of a court nerd that i would probably love to see them.

    Boeis (sp?) might have lost in bush v. gore, but he truly is an ace advocate.

    Aaron Worthing (e7d72e)

  107. the court has so far only ruled that straight marriage is a fundamental right.

    Never seen that case where the court used the qualifier “straight”. That’s because you inserted it in there. Sly dog.

    So what is the compelling reason to keep marriage between only two people–no polygamy, etc.

    The question is: “what is the compelling reason for the state not to recognize polygamy as a valid form of marriage?” and the answer is because allowing polygamy typically involves some form of fraud or coercion (psychological if not physical) which it is not in the state interest to promote.

    And having said that, I’m open to the possibility that that might change at some point in the future. I doubt it, but it might. But right now, the facts don’t support polygamy as an stable form of an intimate bond constituting marriage.

    And what is the compelling reason to prevent incestuous marriages? And before you say “mutant children” for the 300th time

    Well, that’s one reason. Another one is, again, the prevalence of non-consent in incest situations where one party exhibits “power” (physical, psychological and/or economic) over the other party. The state doesn’t have any interest in promoting that; in fact, it has an substantial reason in NOT promoting that.

    Kman (5576bf)

  108. “Which is hardly the point (you think there was tolerance of interracial marriage in 1868?)”

    Kman – Face it, you just want to pick and choose time periods and precedents which meets your narrative and ignore everything which does not, just like any proud judicial activist. A one-sided argument is not persuasive.

    daleyrocks (bf33e9)

  109. Never seen that case where the court used the qualifier “straight”. That’s because you inserted it in there. Sly dog.

    In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court rejected the idea that the fundamental right to marry includes the right to marry someone of the same sex.

    Another one is, again, the prevalence of non-consent in incest situations where one party exhibits “power” (physical, psychological and/or economic) over the other party.

    Would not a general ban on incest be overinclusive?

    Here’s a hint, Aaron: the Constitution wasn’t meant to lock us into a world of powdered wigs and Victorian morals at the time it was written. Just as the concept of “arms” evolves (we no longer live in a world of bayonets and flintlocks), so too do our concepts of social institutions.

    See Ex Parte Bain, 121 U.S. 1 (holding that [i]tis never to be forgotten that in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, [courts] are to place [themselves] as nearly as possible in the condition of the men who framed that instrument.)

    You don’t think gays wishing to marry in California are a group that qualifies for strict scrutiny (vs. rational basis?).

    Of course not.

    There is no evidence that the 14th Amendment was originally understood to grant homosexuals greater protection than horseback riders, canal operators, or carpet cleaners.

    Michael, at 52: the standing argument is actually a very interesting one with rather profound implications either way for California law. If the official proponents have standing to appeal, something which has never been alleged before even though the AG frequently declines to appeal adverse district court decisions, it substantially changes the powers of the AG and the way our initiative system functions. If they don’t have standing, then the AG can simply decline to defend initiatives he doesn’t like.

    In their brief to the California Supreme Court concerning the standing question, the proponents cited Citizens for Jobs & the
    Economy v. County of Orange
    (allowing initiative proponents to appeal an adverse decision when government defendants would not), 94
    Cal. App. 4th 1316 at 1321. See also Community Health Association v. Board of Supervisors, 146 Cal.App.3d at 993 (same)

    The question is: “what is the compelling reason for the state not to recognize polygamy as a valid form of marriage?” and the answer is because allowing polygamy typically involves some form of fraud or coercion (psychological if not physical) which it is not in the state interest to promote.

    That would be enough for rational basis scrutiny, and perhaps heightened scrutiny, but not strict scrutiny.

    Michael Ejercito (64388b)

  110. Kman

    > Never seen that case where the court used the qualifier “straight”. That’s because you inserted it in there

    they didn’t say it, but they have never gone for plural marriages or whatever. you only have a fundamental right to a traditional marriage.

    > and the answer is because allowing polygamy typically involves some form of fraud or coercion (psychological if not physical) which it is not in the state interest to promote.

    Lol, really? so we are going to assume that two people old enough to vote, die in war, drive a car, etc. can’t freely and knowingly decide to marry more than one person?

    That is nowhere near a compelling interest, especially because there are less restrictive means by which coercion and fraud can be weeded out.

    > Another one is, again, the prevalence of non-consent in incest situations where one party exhibits “power” (physical, psychological and/or economic) over the other party.

    Well, first, congradulations. Years ago I stumped you with this simple question: if the supreme court legalizes gay marriage, why wouldn’t it legalize gay incestuous marriage. On that day you said gay incestuous marriage could be banned because it was psychologically harmful. Which I pointed out, could be said by opponents of gay marriage.

    Still, why should we assume that if a brother and sister, who are related only by adoption, are being forced into this if they are over 18, etc.? It would be very hard to argue that a ban is “narrowly tailored” on those grounds.

    Certainly you can’t say that coercion is so obviously implied in that situation that we violate their fundamental right to marry, right?

    Further, your whole argument is disconnected from the law of marriage. For instance you discuss economic coercion. Except we don’t ban marriage between the very rich and the very poor. Indeed, prior to women’s liberation, all marriages involved economic coercion.

    You talk about psychological coercion. But psychological coercion occurs in marriage all the time. We don’t ban arranged marriages. Mind you, we don’t enforce the arrangement, either. But if a woman is told by her father to marry a certain man, and the man is told by his family to marry her, and neither one of them wants to marry each other but the pressure in their community leads them to marry, that marriage is valid—as long as they are adults and all that.

    Which completely defeats your claim to have asserted a compelling interest, because there is a modicum of consistency required if something if an interest can qualify as compelling.

    So all hail the legal regime proposed by Kman! You can marry as man[y] people as you want at one time. You can marry your sister, at least if she is adopted. And you can marry your brother, in all cases.

    The truth is, Kman, what I have been saying for years. You just want to find some way, any way, to treat gay marriage differently from any other proposed combination. And that is wholly valid… in a statute. Hell, a very specifically worded constitutional amendment (like proposition 8 but with the opposite goal), would work. But you take this general language that requires you to make a principled distinction between cases, and then you try to impose an unprincipled distinction. And that is not how the law is supposed to operate.

    Again, Kman, you have to convince the people. Judicial fiat is invalid, and a usurpation of the power of the people. Neither the founders nor the people are that tolerant. If you want them to be, you’re going to have to convince them, instead of having your will imposed by our robed masters.

    Really, it is always stunning to see how fast many on the left decide to give up on representative government. In case you missed it, you are winning the argument. Just 50 years ago, people thought all gay people are pedophiles. And today, you have rapidly increasing support for gay marriage. Further, support is considerably higher among the young. So if you just were a little f—king patient, you could have your cake and eat it too—that is have your gay marriage and not trash democracy at the same time. but no, you have to have everything exactly your way right now, and you don’t care if you do it by further sending this country closer to being a judicial oligarchy, unlimited by any constitution. Is it really worth that to you?

    [Edited after the fact. --Aaron]

    Aaron Worthing (e7d72e)

  111. Aaron, Kman probably is not really thinking this through as much as you’re giving him credit for. The incoherence is because he’s lazy about just trying to be a pest.

    However, I think many find replacing democratic change with philosopher kings to be a feature, not a bug, of shoving through their values on political questions. Why? they think they are elite, so they think judges will be much more in line with them over time. They secretly relish the idea of seeing the rest of the country told what to do with political issues. Of course, elitism doesn’t work. you have to keep pushing the envelope and saying you have an urgent improvement to make to society. That’s why it’s so irrational that these people don’t just argue their points. For many of them (particularly the ones who don’t mind judical fiat), the whining is the ends, not the means.

    Dustin (c16eca)

  112. Dustin

    > Kman probably is not really thinking this through as much as you’re giving him credit for

    I know he isn’t. that’s the problem. there is no principles underlying his arguments. for all the dressing up he does, it really amounts to a desire to treat gay marriage and straight marriage differently from just about every in the area of marriage.

    Aaron Worthing (e7d72e)

  113. Lol, really? so we are going to assume that two people old enough to vote, die in war, drive a car, etc. can’t freely and knowingly decide to marry more than one person?

    That is nowhere near a compelling interest, especially because there are less restrictive means by which coercion and fraud can be weeded out.

    I should remind you, Aaron, that while this reason would be insufficient for strict scrutiny, it is good enough for rational basis scrutiny, which is the appropriate level of scrutiny.

    Just like how similar concerns would be good enough to uphold bans on same-sex “marriage” under rational basis scrutiny (which is the only level of scrutiny required under current precedent) while it would be insufficient under strict scrutiny (assuming the Constitution is amended to make it as such.)

    Michael Ejercito (64388b)

  114. michael

    > I should remind you, Aaron, that while this reason would be insufficient for strict scrutiny, it is good enough for rational basis scrutiny, which is the appropriate level of scrutiny.

    agreed, which is my point. his argument proves too much.

    Aaron Worthing (e7d72e)

  115. Michael:

    In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court rejected the idea that the fundamental right to marry includes the right to marry someone of the same sex.

    The U.S. Supreme Court did no such thing. They merely dismissed the case “for want of a substantial federal question.”

    you only have a fundamental right to a traditional marriage.

    …which, at one point in our history, meant people of the same race.

    Traditions change, Tevye.

    On that day you said gay incestuous marriage could be banned because it was psychologically harmful. Which I pointed out, could be said by opponents of gay marriage.

    Bigots, you mean. They can SAY it, sure. They just wouldn’t have any factual BASIS for saying it. In fact, that’s what happened at trial here.

    For instance you discuss economic coercion. Except we don’t ban marriage between the very rich and the very poor. Indeed, prior to women’s liberation, all marriages involved economic coercion.

    First of all…. on what planet were you raised? That certainly wasn’t the case with my parents.

    Secondly, even a marriage between a rich person and a poor person isn’t necessarily one of economic coercion.

    And that’s the problem. Despite what you think, it’s tough for the state to weed out “sham” marriages — i.e., ones that are based on something other than love, mutual respect, etc.

    You just want to find some way, any way, to treat gay marriage differently from any other proposed combination.

    Except that, from a constitutional standpoint, I don’t have that burden. I don’t have to explain why gay marriage should be treated differently from polygamy or incestual marriage. Instead, YOU have the burden of explaining why gay marriage should be treated differently from “traditional” marriage. So you can blather about these other issues all you want. It still amounts to nothing.

    The Prop 8 proponents failed in their ability to say why gay marriages should not be recognized by the state, i.e., why they should be treated differently than opposite-sex marriages. They failed, and YOU, my friend, haven’t even offered up anything why they should be treated differently.

    Neither the founders nor the people are that tolerant.

    Wow.

    If you want them to be, you’re going to have to convince them, instead of having your will imposed by our robed masters.

    Fortunately, the Constitution trumps popular opinion, which was one of the legacies of the Civil War. In any event, as you say, you’re on the losing side of this debate from a democratic standpoint, as well as a constitutional one.

    How does it feel to be in the dustbin of history?

    Kman (5576bf)

  116. Sorry. My comment above was directed at AW, save the first part.

    Kman (5576bf)

  117. Kman,

    You stated the following.

    The framers of the 14th didn’t sit down with a laundry list and say “we want equal protection of the laws for THIS group, and THIS group, but not THAT group and THAT group”. And even if some of them DID do that perverse itemization, it doesn’t appear in the text. So you lose.

    Then why were the 15th and 19th amendments added?

    Tanny O'Haley (12193c)

  118. Kman

    > The U.S. Supreme Court did no such thing. They merely dismissed the case “for want of a substantial federal question.”

    Oy, proving you don’t understand how precedents work.

    > …which, at one point in our history, meant people of the same race.

    Which was the exception, not the rule, in the law of marriage.

    > Traditions change, Tevye.

    Yes, and laws change… through the will of the people. not the judges.

    > Bigots, you mean.

    Really? What is the objective reason why they would be wrong and you would be right? What could the judges point to as solid proof?

    > They just wouldn’t have any factual BASIS for saying it.

    What facts prove that gay incest is unhealthy?

    This isn’t a place where any proof is really possible.

    > First of all…. on what planet were you raised? That certainly wasn’t the case with my parents.

    Really? Your mother made as much money as your father?

    > Secondly, even a marriage between a rich person and a poor person isn’t necessarily one of economic coercion.

    But one between a brother and sister is…

    > Despite what you think, it’s tough for the state to weed out “sham” marriages — i.e., ones that are based on something other than love, mutual respect, etc.

    No, I concede that point, but just because narrow tailoring is hard, doesn’t mean it is suddenly unnecessary.

    > Except that, from a constitutional standpoint, I don’t have that burden.

    Of course not. An advocate can be a complete hypocrite. But a judge cannot. And if you want to convince a judge you have to confront those issues.

    But I forgot that you are a terrible lawyer.

    > The Prop 8 proponents failed in their ability

    They more than met the rational basis test.

    > Wow.

    Are you denying this? Gay marriage is only legal in something like 5 states. Almost all of them achieved that status by judicial coercion.

    Although I will say this. I think the Cali supreme court set things back. I suspect that proposition 8 was as much about teaching the judiciary to know its place as an expression of policy preferences. If the cali supreme court didn’t cook up that ruling claiming that gay marriage is protected by their state constitution in the first place maybe gay marriage would be legal today in California, by the ordinary democratic processes.

    Which might suggest your advocacy of judicial activism is also counter-productive.

    > Fortunately, the Constitution trumps popular opinion,

    Including those of the founders, it seems.

    > In any event, as you say, you’re on the losing side of this debate from a democratic standpoint, as well as a constitutional one.

    And yet you want to overthrow democracy to accomplish your goal.

    Aaron Worthing (e7d72e)

  119. Then why were the 15th and 19th amendments added?

    I don’t understand the question.

    The 15th amendment and 19th deals with voting rights, and, yes — they single out the groups to which the right will apply.

    But the 14th Amendment, by contrast, doesn’t do that. That was my point.

    Kman (5576bf)

  120. If, as kmart asserts, opponents of gay marriage are losing via the democratic process, it should be really easy to show where voters and legislatures are moving to approve this.

    Leftists must get off on calling people bigots and racists.

    JD (6e25b4)

  121. The U.S. Supreme Court did no such thing. They merely dismissed the case “for want of a substantial federal question.”

    I will let California Supreme Court Justice Joyce kennard explain the binding force of Baker.

    Indeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. After the Minnesota Supreme Court held that Minnesota laws preventing marriages between persons of the same sex did not violate the equal protection or due process clauses of the United States Constitution ( Baker v. Nelson (1971) 291 Minn. 310 [191 N.W.2d 185]), the decision was appealed to the United States Supreme Court, as federal law then permitted (see 28 U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high court later dismissed that appeal “for want of substantial federal question.” ( Baker v. Nelson (1972) 409 U.S. 810 [34 L. Ed. 2d 65, 93 S. Ct. 37].)

    As the United States Supreme Court has explained, a dismissal on the ground that an appeal presents no substantial federal question is a decision on the merits of the case, establishing that the lower court’s decision on the issues of federal law was correct. ( Mandel v. Bradley (1977) 432 U.S. 173, 176 [53 L. Ed. 2d 199, 97 S. Ct. 2238]; Hicks v. Miranda (1975) 422 U.S. 332, 344 [45 L. Ed. 2d 223, 95 S. Ct. 2281].) Summary decisions of this kind “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” ( Mandel v. Bradley, supra, at p. 176.) Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution.

    The binding force of a summary decision on the merits continues until the high court instructs otherwise. ( Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. ( Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision.

    How did Kennard rule in In Re Marriage Cases?

    Michael Ejercito (64388b)

  122. Kman,

    If the 14th amendment gives equal rights to all no matter race or sexual orientation or whatever new class comes up, why were the 14th and 9th amendments needed? As I understand your writing, the 14th amendment should have provided voting rights to blacks and women.

    Tanny O'Haley (12193c)

  123. Should be 19th not 9th.

    Tanny O'Haley (12193c)

  124. Oy, proving you don’t understand how precedents work.

    No, I’m just saying that if the Supreme Court dismisses a case for want of a federal question, you can’t substitute other reasons why it dismissed a case.

    Yes, and laws change… through the will of the people. not the judges.

    You can’t be an advocate for “the will of the people” AND be a critic of judicial activism AND agree with the rationale of Bush v. Gore.

    Well, YOU can. But someone who has internal consistency can’t.

    Really? Your mother made as much money as your father?

    She had money. So did he, actually. But the idea that women, prior to women’s lib, married because of economic coercion, is far too simplistic and cynical.

    If the cali supreme court didn’t cook up that ruling claiming that gay marriage is protected by their state constitution in the first place maybe gay marriage would be legal today in California, by the ordinary democratic processes.

    Riiiiight. People voted against gay marriage out of SPITE for the courts.

    > Fortunately, the Constitution trumps popular opinion,

    Including those of the founders, it seems.

    Yes! In writing the Constitution, the founders weren’t trying to create a country that followed their viewpoints on various social issues. If that were the case, the Constitution would have looked like the Ten Commandments — listing very specific taboos. But such a document is anti-thetical to what the founders, and indeed our country — is all about: freedom.

    The Constitution therefore sets up PRINCIPLES, not EDICTS. And we’re still applying those principles to real-world situations.

    And yet you want to overthrow democracy to accomplish your goal.

    Hey, democracy couldn’t desegregate the South, despite having 100 years after the slaves were freed. The Constitution (once people paid attention to it) did it 10 years or so. No, AW. I don’t bow down to “tyranny of the majority”. I don’t bow down to tyranny at all.

    And what do you mean, “my goal”? Why isn’t marriage equality your goal as well?

    Kman (5576bf)

  125. Yes! In writing the Constitution, the founders weren’t trying to create a country that followed their viewpoints on various social issues. If that were the case, the Constitution would have looked like the Ten Commandments — listing very specific taboos. But such a document is anti-thetical to what the founders, and indeed our country — is all about: freedom.

    And in writing the Constitution, they included a method by, if their successors disagreed with their values, that disagreement could be expressed.

    It is called Article V.

    Why isn’t marriage equality your goal as well?

    Because it is not equal.

    Michael Ejercito (64388b)

  126. Kmart is cool with ignoring precendent and demonstrable bias because he got the ruling he wanted. Ends and means and all that.

    JD (d56362)

  127. Tanney:

    If the 14th amendment gives equal rights to all no matter race or sexual orientation or whatever new class comes up, why were the 14th and 9th amendments needed? As I understand your writing, the 14th amendment should have provided voting rights to blacks and women.

    Oh, I see.

    Well, I suppose one could say that, technically, the 15th and 19th amendments didn’t need to be written.

    However, the right to vote is of a different sort than other natural rights (i.e., rights given to us by our Creator by virtue of existing). Put another way, God didn’t create Adam and Eve thinking, “I have created creatures with the inalienable right to vote.”

    Normally, we think of the Constitution as preserving our God-given rights. But when it comes to voting, the Constitution — not God — GAVE it to us. And so that’s why it extended that right. The 14th took care of the God-given rights.

    Kman (5576bf)

  128. Normally, we think of the Constitution as preserving our God-given rights. But when it comes to voting, the Constitution — not God — GAVE it to us. And so that’s why it extended that right. The 14th took care of the God-given rights.

    If the 14th Amendment only protected God-given rights, why would it apply to public education (e.g. Brown v. Board of Education) even though public education is not a God-given right?

    Michael Ejercito (64388b)

  129. The topic of the thread was the astonishing display of a lack of judicial ethics by Walker.

    George Anders (7a4935)

  130. The topic of the thread was the astonishing display of a lack of judicial ethics by Walker.

    Yes, it was.

    We should note that no similar lack of judicial ethics was evident in U.S. District Court Judge Joseph Bataillon, Texas District Family Court Judge Tena Callahan, or U.S. District Court Judge Joseph Tauro.

    Michael Ejercito (64388b)

  131. Michael:

    And in writing the Constitution, they included a method by, if their successors disagreed with their values, that disagreement could be expressed.

    But again, where do you get the notion that the Constitution was, from the start, an expression of the founders’ values (besides the very GENERIC values of life, liberty and the pursuit of happiness)?

    I’m told, for example, that the founders were Christian — yet I don’t see much in the Constitution by way of imposing Christian values on future generations (i.e., going to church on Sunday, etc.). In fact, these men seemed to go out of their way NOT to impose the social mores of its time onto future generations. And that was their genius. It’s unfortunate that some here can’t appreciate that.

    Why isn’t marriage equality your goal as well?

    Because it is not equal.

    It’s not the same, or it’s not equal? In what ways is it “not equal”?

    Kman (5576bf)

  132. If the 14th Amendment only protected God-given rights, why would it apply to public education (e.g. Brown v. Board of Education) even though public education is not a God-given right?

    I didn’t say it ONLY protected God-given rights. It also protects equal treatment under the law. That’s where Brown comes in.

    Kman (5576bf)

  133. In fact, these men seemed to go out of their way NOT to impose the social mores of its time onto future generations.

    Not really.

    The concept of all men being created equal and sovereign is a social more, of course. The constitution was not meant to force states to resolve all political questions in a social more neutral fashion. It was meant to free states to answer political questions democratically. For example, some people think marriage is important insofar as it helps establish biological reproduction in an ideal environment. Why can’t states prefer that arrangement to other arrangements? Because of Kman’s religious intolerance and social demands? You use the constitution as a bludgeon because you fundamentally have no clue what it means. I guess we’ve seen that over and over again. You don’t even recognize when we’re talking about a state constitution, you’re so unfamiliar.

    It’s unfortunate that some here can’t
    appreciate that.

    Yeah yeah yeah, you’re right, everyone you disagree with is wrong. Etc etc etc. Just lazy arguing as usual, from someone who wears dresses on a stage to get lots of attention. You aren’t trying to persuade here, you’re just desperate for attention.

    Dustin (c16eca)

  134. I didn’t say it ONLY protected God-given rights. It also protects equal treatment under the law. That’s where Brown comes in.

    So why was it insufficient to protect equal treatment with respect to voting? Why was the 19th Amendment needed?

    Michael Ejercito (64388b)

  135. Michael E, thank you. As I noted, I haven’t had time to read the briefs yet; i’ll get to them in a month or so. :)

    aphrael (e0cdc9)

  136. Kman

    > No, I’m just saying that if the Supreme Court dismisses a case for want of a federal question, you can’t substitute other reasons why it dismissed a case.

    If they believed that gay marriage was in the constitution, there would be a federal question. duh.

    > You can’t be an advocate for “the will of the people” AND be a critic of judicial activism AND agree with the rationale of Bush v. Gore.

    Who said I agreed with the rationale of bush v. gore. I agreed with the outcome of it, not the rationale. I was much more in line with Rehnquist’s opinion.

    > She had money. So did he, actually

    Good for her, then. as a feminist I mean that seriously but guessing by what I know of your age, she was certainly the exception and not the rule.

    > Riiiiight. People voted against gay marriage out of SPITE for the courts.

    Not to spite them, but to make them understand they were in charge.

    > [you] Fortunately, the Constitution trumps popular opinion,

    > [me] Including those of the founders, it seems.

    > [you] Yes! In writing the Constitution, the founders weren’t trying to create a country that followed their viewpoints on various social issues.

    Fair enough, then you agree with me that the founders left future generations free to choose whether to legalize gay marriage.

    I am joking of course, but you really are going the full Orwell on this. I say that the founders left it to we the people to decide whether to legalize gay marriage. And you claim that is imposing a viewpoint.

    It is not.

    It would be imposing a viewpoint if they made it unconstitutional to allow for gay marriage. But telling this generation that its up to their legislature is not imposing anything.

    But in your mind, slavery is freedom. War is peace. And the founders allowing us to make up our own mind is imposing their viewpoint. *rolls eyes*

    > The Constitution therefore sets up PRINCIPLES

    And you have none, especially on this subject.

    > Hey, democracy couldn’t desegregate the South, despite having 100 years after the slaves were freed.

    And the constitution specifically demanded that outcome. I mean there is that. it is seriously upside down logic, the opposite of expressio unius, to argue that because the constitution was followed in contravention of present popular will, that we should contravene popular will when the constitution doesn’t require it.

    Aaron Worthing (e7d72e)

  137. For example, some people think marriage is important insofar as it helps establish biological reproduction in an ideal environment.

    But some people don’t, Dustin.

    And my question is, why does the government have to pick and choose between the different views? Can it not accommodate them all? Shouldn’t a government accommodate and recognize them all? If nothing else, shouldn’t that be the starting point, in a free country?

    I think the framers understood that — the importance of not picking sides, but ensuring freedom and justice for ALL.

    Kman (5576bf)

  138. And my question is, why does the government have to pick and choose between the different views? Can it not accommodate them all? Shouldn’t a government accommodate and recognize them all? If nothing else, shouldn’t that be the starting point, in a free country?

    That is what governments do.

    Michael Ejercito (64388b)

  139. and i will add what dustin said about social mores is right. they imposed their values, you just believe kman that they are so clearly right, its okay to impose them.

    but where they chose not to impose their values, you think that is an excuse to impose the will of judges.

    Aaron Worthing (e7d72e)

  140. I say that the founders left it to we the people to decide whether to legalize gay marriage. And you claim that is imposing a viewpoint.

    No. If we were to be really honest, we would both acknowledge that NOT A SINGLE FOUNDER probably gave so much as a SINGLE THOUGHT to the issue of gay marriage when they drafted the Constitution.

    They didn’t say “sure, go ahead”, because there’s no evidence for that in the Constitution.

    They didn’t say, “Absolutely not”, because there’s no evidence for that in the Constitution.

    And they probably didn’t even think about whether or not to leave it to future generations.

    In short, they didn’t think about it.

    But what we do have is their principles. Their broad principles which include (sadly for you) “equal treatment under the law”. As well as the concept of a limited government.

    And when you put those together, you get things like school desegregation, interracial marriage, and same-sex marriage. None of it voted in, but all of it required by the Constitution.

    Me: Hey, democracy couldn’t desegregate the South, despite having 100 years after the slaves were freed.

    You: And the constitution specifically demanded that outcome

    No, it didn’t SPECIFICALLY demand it. There is nothing in the Constitution which specifically forbids desegregation. But if you apply the principles of the Constitution (like “equal treatment under the law”) to the real-world facts, then you get that result.

    And that’s all that’s happening with gay marriage. And as Carlitos (I believe) noted above, 20 years from now, people who come across these comments will look at your comments and cringe.

    it is seriously upside down logic… that we should contravene popular will when the constitution doesn’t require it.

    If the Bill of Rights read, in toto, “The majority wins” or “Popular will triumphs over all”, I would agree with you. But it doesn’t. In fact, the Bill of Rights was specifically written to afford some protection against majority rule.

    Kman (5576bf)

  141. There is nothing in the Constitution which specifically forbids desegregation

    Urgh. Should read, “there is nothing in the Constitution which specifically mandates racial desegregation”.

    Kman (5576bf)

  142. Again, the ideal is for people to hold their political processes accountable for every law on the books today. We need that pressure. We need that freedom to have stupid laws because without it, politicians can play games.

    The freedom to have stupid laws, and the power to change them regardless of the wisdom of judges (on political questions), is the way for society to constantly deal with a changing world. Is it really a great idea to shove gay marriage down the throats of gay intolerant societies? That is counterproductive, in the long run.

    Kman just hates freedom, is all.

    Dustin (c16eca)

  143. Kman,

    You stated,

    Normally, we think of the Constitution as preserving our God-given rights. But when it comes to voting, the Constitution — not God — GAVE it to us. And so that’s why it extended that right. The 14th took care of the God-given rights.

    and

    I didn’t say it ONLY protected God-given rights. It also protects equal treatment under the law. That’s where Brown comes in.

    Wouldn’t voting rights fall under “equal treatment under the law”? If that is the case, then why were the 15th and 19th amendments created?

    Could the reason youu don’t see specific social values in the constitution is because the constitution is about what the federal government can do, not what an individual can do. Aren’t social values the provence of the states? If not, then why is murder illegal?

    What I’m reading from your comments is that the 14th amendment only applies the way you want it to be applied. Am I reading you incorrectly?

    Tanny O'Haley (12193c)

  144. dustin

    > Kman just hates freedom, is all.

    To be fair he is advocating for a kind of freedom here.

    what he despises is democracy.

    Aaron Worthing (e7d72e)

  145. Dustin:

    Is it really a great idea to shove gay marriage down the throats of gay intolerant societies? That is counterproductive, in the long run. Kman just hates freedom, is all.

    Ah, yes. I hate the freedom to be intolerant and oppressive of others. Bad me.

    Tanny:

    Wouldn’t voting rights fall under “equal treatment under the law”? If that is the case, then why were the 15th and 19th amendments created?

    Again, it’s because voting doesn’t fall within what is thought of as a “natural right”, i.e., a right that we have from birth that was given to us by our Creator. Voting, unlike choice of religion, is a societal privilege, one granted to us by government (and even then, only when we reach a certain age). So since government gives us that “right”, only government can extend (or limit) that right.

    I mean, even today, we don’t have “equal treatment under the law” when it comes to voting. And if you don’t believe me, look for a six year old at the voting machine — you won’t find one. It’s technically a privilege, not a right.

    Aren’t social values the provence of the states? If not, then why is murder illegal?

    In a way, but even states are loathe to get into the “legislation of morality” game. When morality is legislated, it necessarily impinges on freedom. And the purpose of laws is to protect freedom.

    That’s why murder is illegal. Because murder impinges on freedom (specifically, that of the victim). It also happens to be a social taboo, but that’s not why it’s illegal. Lots of taboos are legal (e.g. coveting the neighbor’s wife).

    What I’m reading from your comments is that the 14th amendment only applies the way you want it to be applied. Am I reading you incorrectly?

    I’m for individual freedom and equality, so long as it doesn’t impinge on the individual freedom and equality of anybody else. And the less state involvement with anything that impinges on that, the better. It’s a very libertarian position.

    Kman (5576bf)

  146. Kman,

    I didn’t say it ONLY protected God-given rights. It also protects equal treatment under the law. That’s where Brown comes in.

    Are you saying that education is a “natural right”?

    Tanny O'Haley (12193c)

  147. Your no libertarian you buttstain.

    BTW you leftys call for government Intervention on everything.

    So much for being liberals.

    DohBiden (15aa57)

  148. Ah, yes. I hate the freedom to be intolerant and oppressive of others. Bad me.

    Again, you’re just too lazy to understand what I’m saying.

    I’m not ‘loving oppression’. I’m loving freedom itself, as opposed to judges making political decisions in a way that shields the political process from reflecting the decisions of an informed civil society.

    Yes, bad you. You hate freedom itself, but you excuse that because you want a specific freedom for yourself, and are willing to destroy the more general concept if you get the result you wanted. You could care less about freedom itself. That’s why your mutterings can’t be made with general application.

    Dustin (c16eca)

  149. Typical islam apologist hates oppression and intolerance but yet has no problem with mooslimes doing the same thing.

    DohBiden (15aa57)

  150. Leftists should redefine vegetables to include beef so vegetarians could eat cheeseburgers.

    JD (604536)

  151. Kman

    > Ah, yes. I hate the freedom to be intolerant and oppressive of others

    Shorter Kman: listen to me, you ignorant bigots!

    I would say that seems like a poor way to win people over, but you don’t really care what the people think, do you?

    > Again, it’s because voting doesn’t fall within what is thought of as a “natural right”

    If you are going to crib off Amar, at least do it right.

    And yes, voting is a natural right. Or more precisely we have a God-given right to live in a Republic, and that implies a right to vote. But it is not one protected by the equal protection clause as an original matter.

    > I mean, even today, we don’t have “equal treatment under the law” when it comes to voting. And if you don’t believe me, look for a six year old at the voting machine — you won’t find one. It’s technically a privilege, not a right.

    So… since you want equal treatment under the law even for six year olds, you want to be able to marry a 6 year old.

    Joking aside, you are also apparently ignorant of the fact that the S.C. has declared voting to be covered by the Equal protection clause. and that after I told you.

    Or are you suddenly going to pretend that there is a difference between the constitution and what the S.C. says about it?

    > In a way, but even states are loathe to get into the “legislation of morality” game.

    Right because all the laws banning rape, murder, theft, gambling, prostitution, and so on are not at all based on morality.

    > I’m for individual freedom and equality, so long as it doesn’t impinge on the individual freedom and equality of anybody else

    Oh, and I love that addition to libertarian mantra. Now we also can’t infringe on each other’s equality. So if I get too much money am I infringing on some poor dude’s equality?

    And whatever you think of the libertarian mantra as a political position, that isn’t in our constitution. In fact I recall I challenged you even to find a statement from any of the founders that equated to that and you failed miserably.

    And finally that is completely off base when we are talking about marriage. The law doesn’t say that two dudes can’t say to each other that they are committed for life, and that they are therefore married. It just says that the state is not going to lift a finger in response to that action. You aren’t asking the state to leave gay people alone. You aren’t asking the state to leave gay people alone. That was Lawrence, not Perry. You are asking the state to get deeply involved in their lives, which has nothing to do with libertarianism.

    And its more than a little hypocritical given your support of things like obamacare.

    Aaron Worthing (e7d72e)

  152. Again, it’s because voting doesn’t fall within what is thought of as a “natural right”, i.e., a right that we have from birth that was given to us by our Creator.

    Neither did public education.

    Michael Ejercito (64388b)

  153. You are asking the state to get deeply involved in their lives, which has nothing to do with libertarianism.

    that’s not exactly it Mr. Worthing – the idea is that gay people would have a choice of whether to make a commitment betwixt themselves of whether they want a government sanctioned marriage sort of commitment, which is the same choice what even the trashiest christian off the street or the most debauched hoochie of clan Palin have today

    happyfeet (a55ba0)

  154. Why is crappyfeet getting away with calling the palins hoochies?

    DohBiden (15aa57)

  155. ok Mr. Biden we can leave the Palin clan out of it and we’re still left with the ineluctable observation that for such a dubious moral entity as the p.o.s. freedom-averse United States government to say that a Todd Beamer can’t marry his partner while your trashiest most illiterate stray hoochie can not only get married as many times as she wants to any random no-account feller but wear white very damn time is transparently unfair I think.

    happyfeet (a55ba0)

  156. transparently as in duh

    happyfeet (a55ba0)

  157. happyfeet, that’s what Aaron is saying. You’re asking for gays to have the power to have the government run their lives more.

    While this is certainly a reasonable political goal, it is not libertarian at all. A libertarian approach is to expect these social arrangements to be untouched by the government, be they straight or gay.

    he’s just making a specific point that doesn’t touch on whether gay marriage is freedom or not (both).

    Dustin (c16eca)

  158. If you are going to crib off Amar, at least do it right.

    Wasn’t cribbing, but it doesn’t surprise me that he and many other scholars acknowledge this.

    And yes, voting is a natural right. Or more precisely we have a God-given right to live in a Republic, and that implies a right to vote.

    You apparently have a very unique notion of what “natural” means.

    you are also apparently ignorant of the fact that the S.C. has declared voting to be covered by the Equal protection clause.

    I know it has, but historically, it wasn’t clear. I was answering a question as to why we “needed” the 15th and the 19th.

    Right because all the laws banning rape, murder, theft, gambling, prostitution, and so on are not at all based on morality.

    Then why isn’t everything immoral also illegal?

    You aren’t asking the state to leave gay people alone. That was Lawrence, not Perry. You are asking the state to get deeply involved in their lives, which has nothing to do with libertarianism.

    “Deeply involved” with their lives? Is that what straight marriage is like, compared to the single life? All of a sudden, the state is “deeply involved” with you?

    You think I’m asking the state to provide limo service to gay married couples? All the state has to do is provide the same benefits of marriage to gay couples that they do to straight couples.

    Thanks for the laugh.

    Kman (5576bf)

  159. not the power, just the *choice* to order their affairs in a way what lots of other people do, some to great positive effect and a lot of others to abysmally maleficent effect

    The choiceyness brings us closer to a condition of liberty than does the status quo I think.

    happyfeet (a55ba0)

  160. None of this has anything to do with the bias of the Judge, and the shenanigans he pulled. Again ends being more important than the means to get there.

    JD (822109)

  161. Exactly, JD. At the very least, a gay rights activist should be annoyed if their legal victory is tainted. In the long run, that will bite you in the ass at some point.

    Dustin (c16eca)

  162. Thanks for the laugh.

    It’s one of those creepy, crazy laughs, too, isn’t it?

    /gonna sleep with the night light on.

    Dustin (c16eca)

  163. re: natural rights:

    Neither did public education.

    Comment by Michael Ejercito — 4/20/2011 @ 1:17 pm

    Don’t advocates of public education as a Natural Right cite its inclusion in the Northwest Ordinance of 1787? Are they wrong?

    carlitos (28bbc0)

  164. So if muslims attack gays will they be charged with a hate crime?

    DohBiden (15aa57)

  165. Kman,

    Then why isn’t everything immoral also illegal?

    Actually a lot of immoral things used to be illegal. Adultery, sodomy,alchohol, pornography, strip clubs, drug use, prostitution, businesses used to close on Sunday… Some still are illegal. How you can get same sex marriage out of the 14th amendment which was written by men who thought sodomy is a sin and a sign of the end times because of their Christian faith or heritage is beyond me.

    Since voting is a natural right, why did they have to create the 15th and 19th amendments? If they had to create law that allows voting by blacks and women because they aren’t covered by the 14th amendment, I don’t see how you can honestly say the 14th amendment covers same sex marriage.

    Tanny O'Haley (12193c)

  166. Tanny, that is a great point.

    In fact, I think adultery should be illegal. It is morally outrageous. People who demand marriage recognition should face, at the very least, a severe fine, if it’s proven they committed adultery. If they aren’t OK with that, they really shouldn’t be getting married.

    A world where adultery is punished is just plain better. It’s a great political question for states to answer in the affirmative.

    That might even be a good compromise. Gay marriage + adultery punishment helps sell the idea that we are promoting a more stable and healthy lifestyle.

    Dustin (c16eca)

  167. No no no if gay men cannot cheat on their husbands with other husband then the terrrorists have already won.

    DohBiden (15aa57)

  168. Kman, I think your argument is missing a distinction.

    It’s one thing to say that the state ought to treat gay marriages the same way it treats straight marriages.

    It’s another thing to say the state is legally required to do so by virtue of the fourteenth amendment.

    The first is a policy argument; the second is a legal argument.

    Everyone arguing against you seems to be making a legal argument, but “You think I’m asking the state to provide limo service to gay married couples? All the state has to do is provide the same benefits of marriage to gay couples that they do to straight couples.”, in comment 158 above, strongly suggests you’re making a mixed policy/legal argument.

    This is an easy thing for pro-gay-marriage types to do, because we tend to think that the legal result is required because of the way the fourteenth amendment interacts with the underlying bases for our policy preference. That is: it’s perfectly clear to many of us on the left that there’s really not a dime’s worth of difference between a straight civiil marriage and a gay civil marriage (except for religious purposes), and that there’s something irrational about both the insistance that there is a difference and the fear that somehow religious marriages will be threatened by a change in the rules for civil marriages. As such, it’s easy to say that the fourteenth amendment clearly compels it because you can’t even summon a rational basis for the discrimination.

    But I think it’s important to keep the two lines of argument seperate, because they are logically distinct, and because there are people – Patterico is an example – who will join with us on policy even while calling us out as crazy on the law, and we can use every ally we can muster. :)

    aphrael (ae0153)

  169. I don’t mean just gay cheating, btw. I have no idea if gays are more promiscuous, but if they are, it’s possibly because they can’t legally marry anyway, so I’m not going there.

    I think a gay exclusive relationship is just much better than the alternative. Less HIV, more stability, maybe more families, too. But I’m going to preserve outrage for those who agree to marry and then cheat. that’s a hell of a lot worse than most crimes on the books.

    If you want to get married, you need to own that choice. That’s not meant to trick gays out of their ambition. Enforcement is a bit of a problem, what with the 4th and 5th amendments, but we can criminalize things that are difficult to prosecute. There’s no contradiction there, just a hassle.

    Dustin (c16eca)

  170. Kman

    > Wasn’t cribbing, but it doesn’t surprise me that he and many other scholars acknowledge this.

    Amar’s an idiot.

    > You apparently have a very unique notion of what “natural” means.

    You don’t realize that natural really means “god given.”

    > I was answering a question as to why we “needed” the 15th and the 19th.

    Okay, fair enough.

    > Then why isn’t everything immoral also illegal?

    You’re asking me to explain the whole of the law?

    > “Deeply involved” with their lives? Is that what straight marriage is like,

    Try getting a divorce and you will see.

    The point is you are not asking for the state to leave gay people alone, you know.

    Aaron Worthing (e7d72e)

  171. Dustin: my rule on this is probably a bit more liberal than yours. :)

    I have no problem with a ‘marriage’ in which both parties agree that it’s ok for one, or both, of them to have external sexual relationships. I’ve seen that setup work, and as long as it’s truly voluntary on both parts, I’m ok with it.

    But you *gotta* be open and upfront and honest about it. Sneaking around with someone else behind your spouse’s back is such a basic violation of trust as to be unacceptable behavior; openly agreeing with your spouse that you can go play with someone else, with their full knowledge and approval, is a different beast entire.

    aphrael (ae0153)

  172. Aaron,

    Try getting a divorce and you will see.

    Hell, hell, hell, hell!!! Broken lives, broken children, for most a financial strain even when the other party was unfaithful and did I mention hell? Being slugged and knocked down, then as the victim threatened by the police with jail time. Good thing the neighbors came to my rescue. Even then after she drew blood and the police should have arrested her, they let her go and in violation of the court order let her take the kids.

    I was divorced by my ex-wife in 1996 and only now that I am remarried and my youngest child is 19 and on his own do I feel like I’m not being harassed for just being male. I was just starting to get some financial security when I went on temporary disability. :( 14 years of being brought to court for who knows what, though most of the time I won. The legal costs, trying to do it in pro per and not being an attorney. Now the only thing I’m concerned about is when my daughter gets married and I’ll have to see the ex again.

    I really don’t know why homosexuals would want to be exposed to divorce, especially if there end up being children involved.

    Did I mention that divorce is hell?

    Tanny O'Haley (12193c)

  173. aphrael, as usual, you express yourself well.

    I think, in a relationship of any kind, this trust factor… being open about the reality of the relationship, is the entire relationship. If you’re not honest about things like exclusivity with a sexual partner, or some other factor of a completely different kind of relationship, that’s a fundamental breach.

    As usual, I express myself not so well. :)

    anyway, I think part of my issue is that I think marriage, as a concept ought to be defined in some way. It needs to mean something. It’s an important, permanent relationship. My definition is just my own opinion, but I think exclusivity is a basic aspect.

    that’s not to say I want to outlaw nonexclusive relationships, even lifelong ones, but I don’t think those are marriages. I don’t think those convey the benefits to society that a marriage does. I don’t think those deserve the privileges marriage provides, and I think it’s legit for society to encourage the latter in the mild sense of calling it a word.

    Yes, absolutely, Aphrael is right that an open, honest relationship without exclusivity is utterly, totally different from a marriage where someone sneaks around. So I realize that some don’t agree with my definition of marriage in such a way that nonexclusivity, even open, violates it.

    Who am I to judge lifelong exclusive relationships as preferable or more marriage like than swingers? Just a guy with a political opinion, with no expectation that will accomplish anything, btw.

    Dustin (c16eca)

  174. apparel,

    I have no problem with a ‘marriage’ in which both parties agree that it’s ok for one, or both, of them to have external sexual relationships. I’ve seen that setup work, and as long as it’s truly voluntary on both parts, I’m ok with it.

    Doesn’t the definition of marriage preclude sex outside of marriage? What you’re describing sounds more like a friends with benefits type of relationship. If that’s what you want, why even try to call it marriage?

    No matter what you try to call it, shouldn’t judge Walker have recused himself in light of this new information? Doesn’t it look like bias because he didn’t disclose his long term same sex relationship?

    Tanny O'Haley (12193c)

  175. In traditional marriage vows the groom and bride give state that they will be faithful to each other as long as they live. Faithfulness has always meant sexual fidelity. Though marriage has always been between a man and a woman.

    Traditional Wedding Vows with the Question of Intention:

    Officiant: “[Groom’s name], do you take [Bride’s Name] to be your wedded wife to live together in marriage? Do you promise to love, comfort, honor and keep her for better or worse, for richer or poorer, in sickness and in health, and forsaking all others, be faithful only to her so long as you both shall live?”

    Groom: “I do.”

    Officiant: “[Wife’s name], do you take [Groom’s Name] to be your wedded husband to live together in marriage? Do you promise to love, comfort, honor and keep him for better or worse, for richer or poorer, in sickness and in health, and forsaking all others, be faithful only to her so long as you both shall live?”

    Bride: “I do.”

    Officiant – Identifies the power investing in him/her then: “I now pronounce you husband and wife.”

    Tanny O'Haley (12193c)

  176. and then everybody has cake!

    happyfeet (a55ba0)

  177. It would be funny if two straight guys married each other for the cake.

    DohBiden (15aa57)

  178. lemon buttercream frosting can make people do crazy things

    happyfeet (a55ba0)

  179. Wow I’m getting pretty hungry.

    Dustin (c16eca)

  180. Vicodin and Flexeril seem to suppress your appetite.

    JD (318f81)

  181. you know what else are high in calciums is animal crackers see? it says so on the box

    happyfeet (a55ba0)

  182. at Target they have a big huge animal cracker bear for like $5 and that my friend is VALUE

    tasty tasty VALUE

    happyfeet (a55ba0)

  183. #169

    I saw one of these open marriages you describe implode.
    Spectacularly.
    Every once in a while those of us that knew the folks involved would get to talking and realize we were headed off into gossip… or maybe it was just a trainwreck vigil. Anyway.
    And a spectacular trainwreck it was… one of the participants still feels totally blindsided and another feels betrayed.
    Sounds like opposite sex marriage.

    I’m old and old fashioned and believe in the sanctity of marriage.
    But in the above story, and in the hypothetical example of Myrtle Hatfield-McCoy vs. Merle McCoy Hatfield and the dissolution thereof… my empathy meter is pegged… at zero.

    If the judge was instead a bride to be and then found a case involving international wedding cake chicanery (with a subtext of a particularly egregious misapplication of butter frosting on the red velvet cupcakes) on her calendar, we’d expect a polite hand off to someone less emotionally involved.

    SteveG (cc5dc9)

  184. butter frostings? red velvet cupcakes without cream cheese frosting would be an egregious violation Mr. G and could quite possibly be fundamentally indistinguishable from loss of cupcake consortium, which is definitely grounds for dissolution of a relationship marked by such callous disregard

    happyfeet (760ba3)

  185. As such, it’s easy to say that the fourteenth amendment clearly compels it because you can’t even summon a rational basis for the discrimination.

    What was the rational basis the Supreme Court found in upholding anti-polygamy laws in Reynolds v. the United States and Davis v. Beason?

    Michael Ejercito (64388b)

  186. The motion to vacate the judgment is here.

    Michael Ejercito (64388b)


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