Patterico's Pontifications

5/25/2011

Proposition 8 Update: The King’s Defenders Strike Back, Face Harsh Parry and Counter

Filed under: General — Aaron Worthing @ 6:35 am



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

Previously when discussing the Pro-Proposition 8 forces motion to vacate Judge Walker’s ruling on the grounds he should have disqualified himself, I riffed off “the old saying, attributed to Emerson, that “if you strike at the King, you have to kill him” and that continues with this post.  The opponents of Proposition 8 struck back, a few weeks ago.  I meant to take it apart at the time, but didn’t find the time to squeeze it in.  And now the proponents have put in their reply brief and the metaphor that comes easily to mind is that of skilled fighter watching his opponent swing unwisely, using that energy against their opponent.

But it helps to talk for just a moment about Anti-Proposition 8 forces’ Opposition to the motion.  It was one of the most over-the-top filings I had seen in a while.  As I said a bit back:

There is an old saying among lawyers, and while there are a lot of variations in how it goes, most versions say something close to this: “If the facts are against you, argue the law.  If the law is against you, argue the facts.  If both are against you, pound the table.”

And evidently they didn’t feel too good about the facts or the law in this case as they set the hyperbole to 11 right off the bat:

Proponents’ motion to vacate this Court’s judgment is an utterly baseless attack on the integrity of the judicial system, on then-Chief Judge Walker, and on all gay and lesbian jurists who faithfully perform their duties and decide cases across this country each day.

Now it is probably fair to call this an attack on Walker, but the entire legal system?  And indeed how their motion can be interpreted as an attack on “all gay and lesbian jurist” when their brief specifically said “[i]t is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case” is beyond me.  Except if you read it you will see they repeatedly argue (and without basis) that despite their statements to the contrary, that was really based on Walker’s status as a gay man.  They were literally asking the judge to ignore their words, ignore their arguments, etc. and pretend they had argued something they didn’t.  That can be done, but you have to have better evidence of that intention than just your hallucination of their motives.  And with the Anti-Proposition 8 forces having put all that energy into that thrust, in a very kung-fu sort of way the Proponents of Proposition 8 used that attack against their attackers, repeatedly correcting their attempts to mischaracterize their position against them.

The other thing going on here is that typically lawyers reserve some of their best arguments for the reply brief, because bluntly the other side has little chance to respond.  Indeed, some will save it for oral argument and sandbag the other side with it.  They might yet have reserves with which to sandbag the Anti-Proposition 8 forces, but they gave them a few solid wallops in the reply brief (to mix my metaphors, some).  Case in point, is this opening line from the proponents:

In our opening motion papers, we posited that “[s]urely no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him.”  …  We stand corrected. For Plaintiffs argue in response that even “iron-clad proof of Judge Walker’s desire to marry” his partner “would [provide] absolutely no basis for questioning his impartiality in this case.”

And this isn’t a situation where that concern is hypothetical.  The judge issued an injunction applying to all gay couples in the entire state.  As we saw in the Florida Obamacare case, this was not the ordinary approach.  The ordinary approach was to grant a declaratory judgment and presume the government would obey the law—an easy presumption to make since the government offered virtually no defense of the law.  An injunction would only issue when and if the officials disobeyed the law.  Further the injunction would only be given to the immediate parties to the case.  Yes, it would have the effect of making gay marriage legal for all persons similarly situated to the plaintiffs, but only because the state would presumptively follow the precedent.

By issuing a statewide injunction applying to all gay couples, that meant that if the ruling was upheld, and the stay is lifted, Judge Walker could go to a justice of the peace, and request that this person marry him to his long-term same-sex partner.  And if that JP refused, the Judge could then go back to the federal court and move that the Justice of the Peace be held in contempt of his own order.  Indeed, if he was not retired, according to the Anti-Proposition 8 forces, he could sit in judgment in the contempt proceedings.

But for the best counter, it is hard to beat this one.  They argue that if the Judge doesn’t have an interest in the outcome of the case, then the original plaintiffs did not have standing.  Yes, really.

First they point out that there is an obvious distinction between gay persons who are and are not in long-term committed relationships.

Plaintiffs insist that there is no meaningful distinction for purposes of marriage between a gay person in a “long-term committed relationship” and any other gay person, and that any effort to draw such a distinction would present an “intractable line-drawing problem[.]”… But Plaintiffs have consistently drawn precisely this common-sense line throughout this case, repeatedly emphasizing that the marital right they seek to vindicate is that of “two individuals of the same sex who have spent years together in a loving and committed relationship.”

And for the killer quote, they point out that

Judge Walker has even gone so far as to say that the committed long-term relationships of Plaintiffs in this case are marriages…. (“[P]laintiffs ask California to recognize their relationships for what they are: marriages.”).

And then they twist the knife:

Indeed, had Plaintiffs alleged only that they are gay and lesbian, and as such, had merely “speculate[d]” that they “might benefit from the right to marry in the future,” … their suit would have been dismissed for lack of standing.

And they answer the common argument of (paraphrase) “if he is so interested in marrying his lover, why didn’t he do it when gay marriage was briefly legal in California (before Proposition 8 went into effect)” very handily:

Plaintiffs attempt to cast doubt on the likelihood of Judge Walker’s interest in marriage by noting that “he apparently made no effort to do so” when same-sex marriage was briefly permitted in California in 2008….  Plaintiffs fail to mention that they, too, did not marry during that period, although they, like Judge Walker, had been in their committed relationships for many years by then….  Nor do Plaintiffs mention the evidence they presented at trial projecting that nearly two-thirds of committed same-sex couples in California – 64 percent – will get married if permitted to do so.

And then they go into the work of tearing apart the alleged precedents the Anti-Proposition 8 forces cited.  As we have seen before the citations bordered on misleading:

Plaintiffs place their greatest reliance upon United States v. Alabama, 828 F.2d 1532, 1541-42 (11th Cir. 1987), but that case strongly supports disqualification here. Alabama involved a class action to desegregate the State’s institutions of higher learning, and the certified class “include[d] all [black] children ‘who are eligible to attend or who will become eligible to attend the public institutions of higher education in the Montgomery, Alabama area.’ ”…   The trial judge had two children who, “like all young black Alabamians,” were “technically members of this class and possess an interest in the outcome of this litigation.”

But the judge did not recuse himself because there was no reason to believe that his children would attend those schools:

Indeed, the judge squarely acknowledged that he would have to recuse under Section 455 “if I know that any minor child residing in my household has an interest that could be substantially affected by the outcome of this proceeding.” United States v. State of Alabama, 571 F. Supp. 958, 962 (N.D. Ala. 1983). Accordingly, unlike in this case, the trial judge in Alabama took pains to disclose the relevant facts: “Neither my sixteen-year old son nor my nine-year old daughter has indicated to me any interest in attending either of the colleges or universities involved in this action.” United States v. State of Alabama, 574 F. Supp. 762, 764 n.1 (N.D. Ala. 1983). Obviously, if the judge’s 16-year-old child had expressed an interest in attending one of the universities at issue, disqualification would have been required because the child’s interest in the case would not be “remote, contingent and speculative,” but rather direct and substantial.

They also address In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984), a vote dilution case, where a black woman was allowed to sit in the case:

By the time the action was reassigned to the trial judge at issue, however, “the City had changed its method of election,” thus mooting the voting rights issue, and the only remaining question to be decided concerned the “the availability of attorneys’ fees to any of the parties to the action.” Id. at 926. The case was reassigned to a black trial judge for consideration of the fee petition, and the City sought her recusal because she was a member of the class of registered black and Hispanic voters in Houston. The trial judge, noting that the standard for determining the appearance of partiality under Section 455(a) requires disclosure of “all the facts of a situation,” deemed it “incumbent upon [herself] to acknowledge and deal with the facts of [her] particular situation.” Leroy v. City of Houston, 592 F. Supp. 415, 418 n.5 (S.D. Tex. 1984). Accordingly, she disclosed on the record all relevant “personal” facts, including her past and current street addresses and her and her husband’s voter registration status. Id. at 418. The trial judge rejected the recusal motion, explaining that no “appearance of impropriety exists” because (i) during the period when the case was tried, she resided in “a non-black and non-Mexican-American precinct where because of [her] minority status [her] vote was not being diluted,” and (ii) “the only question before [her] is whether an award of attorney’s fees would be appropriate,” and she therefore had no personal interest in the outcome of the case.

In other words the case was over except for the issue of attorneys fees, and to the extent that she might be motivated to reward lawyers who helped “her side” and punish the opposition, she was not even harmed by the alleged dilution in the first place (because it was done by neighborhood).  And not for nothing, but a white judge would be allegedly benefitting from the alleged unconstitutional dilution of the black and Hispanic vote, too (unless he happened to live in a “majority minority” neighborhood), which also answers the specious argument that these rules would only affect minorities (and women).

And they get at a deeper philosophical point, too.  If the Anti-Proposition 8 forces win on this point, they will create a special rule for “minorities” (and women) where if the interest touches even tangentially on their minority status that immunizes them from the ordinary rule that a person shall not be a judge in their own case.

They also go through the actual application of their interpretation of the rules to landmark cases, which includes declaring that a person of any race, interested in marrying a person of another race, would not be able to sit in Loving v. Virginia.  And funny, I agree.  And indeed they point out that the Anti-proposition 8 forces missed the import of one of their citations of a landmark case:

Plaintiffs make passing reference to one other landmark case, but they completely miss its significance to the issue before the Court. In United States v. Virginia, 518 U.S. 515 (1996), the question before the Court was whether the Virginia Military Institute (“VMI”) could continue to accept only male cadets. Both of the Court’s female justices and six of the Court’s seven male justices sat on the case as a matter of course because, even though the dispute concerned a claim of gender discrimination, none of the sitting Justices had any personal interest in the outcome. Justice Thomas, however, recused – not because he was a male, but rather because his son attended VMI, and as a result, had a direct and substantial personal interest in the outcome of the case. The same is true here.

You have to think the Anti-Proposition 8 lawyers are feeling a little embarrassed by that mistake.

Then they address the issue of timeliness.  It is correct to say that if you know that a judge should be disqualified you are not allowed to just sit on that information, wait for the outcome of the case and then if you lose—and presumably only if you lose—bring up the disqualification issue.  But their point is fairly obvious.  The Anti-Proposition 8 forces only could show they knew the judge was gay—but not that he was in a long term relationship.  So of course they are time-barred from raising the mere fact he was gay as a cause for disqualification, but not from bringing up the long term relationship.

Further, the Anti-Proposition 8 forces hypocritically complained on one hand that this would allow plaintiffs to go snooping into a judge’s private life, but also holding them responsible for not knowing he was in a long term relationship.  Their approach would impose on parties a duty to investigate, which I believe everyone would find distasteful.

And the proponents finish strongly as well, on the issue of whether the decision should be vacated:

Finally, because this case has been “closely followed by the public,” … Plaintiffs somehow conclude that “[v]acatur is therefore wholly unnecessary to bolster public confidence” in the resulting judgment.... With all due respect, Plaintiffs have it precisely backwards. The great public importance of this case and the highly controversial nature of the dispute make it all the more vital that it be decided at every stage by judges whose impartiality cannot be reasonably questioned.

It must have taken a great deal of restraint not to end with: “duh.”

[Posted and authored by Aaron Worthing.]

70 Responses to “Proposition 8 Update: The King’s Defenders Strike Back, Face Harsh Parry and Counter”

  1. They argue that if the Judge doesn’t have an interest in the outcome of the case, then the original plaintiffs did not have standing.

    Unfortunately, having standing to bring a case (on the one hand) and having an interest in the outcome of the case (on the other hand) are actually two different legal inquiries, each with a different legal standard.

    ****

    All said, I think the reply brief was as good as the Prop 8 proponents could muster under the circumstances, but it didn’t do much to counter the main point of Plaintiffs: i.e., that Judge Walker’s interest in the outcome of the case — and by extension, his supposed impartiality — was, at best, speculative.

    Anyway, as many have said, this case is going to go through a long legal process, and it won’t be resolved until the day when the Supremes get their hand on it. I’m not sure what recusal will do at this point, except to delay that future day.

    Kman (5576bf)

  2. Jeeze, who’s their lead? Otter?

    LowKey (8096f2)

  3. who do you mean by “their”?

    Aaron Worthing (e7d72e)

  4. Emotional involvement in the dispute is never a good litigation strategy.

    Californio (66d8b1)

  5. If gays can’t marry terrorists will have won or something.

    DohBiden (15aa57)

  6. Maybe I’ve been reading too much news lately, but I can’t help but think that no matter how correct this analysis might be, it won’t matter.

    Special Gay Rights are coming, with the inevitability of a freight train. The entire shape of the argument has been formed in such a way that it can only increase in popularity, and it increasingly appears that neither the populace nor the pundits care about how the system is supposed to work, only that the results that they want are achieved.

    A lethal combination.

    Spike (4573c4)

  7. From the proponents’ reply brief…

    Judge Walker’s ten-year same-sex relationship, his refusal to disclose both his relationship and whether he and his partner have any interest inmarriage, his findings concerning the manifold benefits of marriage for “committed, long-termsame-sex relationships,” and the extraordinary rulings and course of proceedings in this case — plainly do not necessarily exist for all or even most gay and lesbian citizens or judges.

    I don’t understand why Walker didn’t even attempt to give the appearance of impartiality. Let’s suppose that he wanted to strike down Prop 8 from the beginning. His rulings regarding defendants’ confidential internal communications and videotaping and broadcast of the trial were not only extreme — they were unnecessary to his goal. He could have followed the rules regarding these motions — by rejecting them — and still ultinately ruled for the plaintiffs. By issuing these extraordinary rulings, that were so outrageous they were quickly overturned by the 9th Circuit Court and by the U.S. Supreme Court, Judge Walker showed his cards.

    Consider Obama’s position on Israel. Suppose that Obama is highly sympathetic to the Palestinian position. He at least has the wisdom to voice support for Israel’s existence and security in his public statements — even if many of his actions appear to harm Israel. It makes it somewhat more difficult for opponents to portray him as anti-Zionist.

    By contrast, every action Judge Walker has taken indicates that he was biased from the outset. What was he thinking?

    aunursa (a2a019)

  8. what are “special gay rights”?

    aphrael (9802d6)

  9. aunursa

    you are exactly right. the S.C. all but called him biased in overturning his ruling on cameras in the courtroom. and saying in dicta that discrimination based sexual orientation was as suspicious under the constitution as discrimination based on race was just needlessly over the top. if he felt rational basis is enough, he should have stuck to that.

    Aaron Worthing (e7d72e)

  10. There are some opponents of Proposition 8 who object to Vaughn Walker’s successor as chief judge of the Northern District of California, Judge James Ware because he is black. Ed Whelan has a post at Bench Memos.

    Prop 8 Opponents’ Anti-Black Bigotry Against Judge Deciding Motion to Vacate Walker’s Ruling?

    Tanny O'Haley (12193c)

  11. what are “special gay rights”?

    Comment by aphrael — 5/25/2011 @ 10:04 am

    Rights for homosexuals that exceed the rights for heterosexuals in the same context. From Aaron’s post:

    And they get at a deeper philosophical point, too.  If the Anti-Proposition 8 forces win on this point, they will create a special rule for “minorities” (and women) where if the interest touches even tangentially on their minority status that immunizes them from the ordinary rule that a person shall not be a judge in their own case.

    Just because they are homosexual they would get more “rights” than hetrosexuals.

    Tanny O'Haley (12193c)

  12. Tanny

    well certainly there is a fear of greater rights than mere anti-discrimination laws.

    but sometimes the term is also used to refer to mere anti-dicrimination laws and the like. which is in my mind an abuse of language.

    Aaron Worthing (e7d72e)

  13. “anti-discrimination laws”

    Kind of funny when you consider there is really only one minority left in America. Single, white, christian males. Every other person qualifies for some special benefits based on race, religion, sex, sexual preference, or even marital status.

    Back in 1983, I was a poor white trash enlisted man in the Navy. I applied to a program called BOOST, advertised as being for “disadvantaged people” who could not afford to attend college. By testing scores, essays, etc. I was the number one candidate to attend college for 4 years and be commissioned as an officer. When I reported for the verbal interview the officer in charge asked me what I thought I was doing there. “This program isn’t for you.” When I asked what he meant, he replied “You’re white. Dismissed”.

    Through out my time in the Navy, this sort of institutional bias occurred on a fairly regular basis. Advancement exams asked for race and country of origin which added extra points to the scores. This is government sanctioned discrimination, pure and simple.

    Since leaving the Navy in 1991, I have many times had a winning bid for work set aside so the company could award the contract to a minority or woman owned business. Not because the other company would do better work or because the cost was lower, but because they had to meet some quota.

    If you want to end discrimination, then end it. Stop all the anti-discrimination crap that is nothing but discrimination aimed at white folks or straight folks or Christian folks. You can’t make someone equal by discriminating against someone else.

    Jay H Curtis (8f6541)

  14. This whole idea of “strict scrutiny” or “rational scrutiny” being applied based on a persons membership in a “suspect class” based on race, gender, etc. serves one purpose only. To elevate members of those groups above all others in the application of laws. Please show me anywhere that is authorized under our constitution? Cause I think that part was left out of my copy.

    Jay H Curtis (8f6541)

  15. Aphrael

    Without the consistent abuse of language, equal has a certain sort of mathematical certainty to it.

    In this day and age, granting special rights and protections, especially protections, to any given class of peoples is, occasionally referred to as making them ‘more equal’. This is a fallacy, of course, as if things are equal then they can not be more, or less, equal.

    However, in granting special protections, rather than simply enforcing legal equality equally, you are, in essence, granting Special Rights to those who claim membership in the protected class.

    What makes this most curious is that, unlike all other protected classes, homosexuality is the easiest to claim or deny regardless of who you actually like rubbing your jibbly bits on. Thus, if we were to look at a possible ‘gay affirmative action’ in the job market (and I suspect certain industries already have an unofficial program of this sort), then it becomes advantageous to non-gays to pretend to be gay, perhaps even taking a gay lover, if their morals allow it, even if their tastes don’t, in order to qualify… and once they’ve exploited that, once they’ve ‘Gone Gay’ for personal advancement, they are now vested in ensuring such special rights and privileges.

    Since I’m not actually a blogger, I’ll cut this short, at the cost of being slightly abrupt in transition: This entire ‘gay marriage’ is not extending a right to gays, it is creating a new right that only gays would want to take advantage of. If you hold that all rights are a function of natural law (and divorced from divine law, though similar), then this is fine. If it is divine law, however, its trickier. However, it seems that people agitating for gay marriage are less concerned with the origin of Rights and more concerned with self aggrandizement and the enshriment of their personal wants as the new social norms.

    Have I made my use of the term ‘Special Rights’ clear to you?

    Spike (4573c4)

  16. One part of the Reply Brief that I especially appreciated is its use of a quote by Anti- Prop 8 lead attorney Ted Olsen from a brief Olsen submitted in a prior case he argued before the US Supreme Court. (Reply Brief at p. 12-13).

    Supporting your position with a persuasive and applicable quote: valuable. Supporting your position with a persuasive and applicable quote from opposing counsel: priceless.

    Lawoski (36b484)

  17. And if that JP refused, the Judge could then go back to the federal court and move that the Justice of the Peace be held in contempt of his own order.

    The best point of the article.

    They also go through the actual application of their interpretation of the rules to landmark cases, which includes declaring that a person of any race, interested in marrying a person of another race, would not be able to sit in Loving v. Virginia. And funny, I agree.

    I disagree.

    Persons of any race interested in marrying someone of a different race would be able to sit in Loving has they lived in one of the thirty-four states without anti-miscegenation laws.

    This whole idea of “strict scrutiny” or “rational scrutiny” being applied based on a persons membership in a “suspect class” based on race, gender, etc. serves one purpose only. To elevate members of those groups above all others in the application of laws. Please show me anywhere that is authorized under our constitution? Cause I think that part was left out of my copy.

    It was implied in the earliest equal protection cases. See e.g. Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 at 71.

    Supporting your position with a persuasive and applicable quote from opposing counsel: priceless.

    Not only that Olson and Boies completely botched the significance of Virginia, 518 U.S. 515.

    The plaintiffs ought to sue them for legal malpractice.

    Michael Ejercito (64388b)

  18. Another quote from the reply brief illustrating their point. (p. 2)

    We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say,the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy.

    Michael Ejercito (64388b)

  19. The Proponents’ briefs do not even attempt to disguise Proponents’ bigotry. They also completely contradict their entire hatred-and-fear-mongering campaign by saying, “Oops — looks like marriage equality won’t harm a single heterosexual marriage at all. Our bad.” For those wondering, the 14th Amendment guarantees equal rights. Proponents and others like them want to exclude gays and lesbians from that guarantee. Proponents’ offensive, illogical, and self-contradictory motion provides some of the best evidence to date that Prop 8 was born of nothing more than animus and should be stricken.

    Brian (d127b2)

  20. Brian sure is a hate-filled hater.

    JD (306f5d)

  21. JD, what else would you expect from a Progressive?

    AD-RtR/OS! (b8ab92)

  22. JD and AD-RtR — with the wit, logic, and legal insight of your profound comments, you qualify to be part of the Bigots’ legal team! Congratulations!

    In any event, you all are on the wrong side of history. 70% of 18-30 year-olds support marriage equality. Regardless of what happens in this case, it is only a matter of time…

    Brian (d127b2)

  23. Brian, if opinions have changed once on this, what makes you so sure they won’t change again?

    Milhouse (ea66e3)

  24. Screw the law, let’s take a poll of young people! F@ck the Constitution, let’s just redefine words to suit our whims.

    The funny part is that Brian the Hatey Hater prolly could not guess what my position is.

    JD (b98cae)

  25. It’s wonderful how Brian made a superficial determination of our position based on a casual comment that we based on his previous superficial declarations of the intent of people he was not prepared to discuss the merits of the argument with.

    As I said: A Progressive!

    AD-RtR/OS! (b8ab92)

  26. In any event, you all are on the wrong side of history. 70% of 18-30 year-olds support marriage equality.

    You moron. You just showed that Obama is on the wrong side of history. Only an idiot thinks that’s a partisan issue.

    Dustin (c16eca)

  27. I disagree with the main authors of this blog on the issue, so won’t comment further than this:

    If civil unions confer the same rights as marriage,

    and

    Y’all have no issues with civil unions (correct me if I’m wrong here),

    then:

    What in the world is the difference what you call it?

    Seriously – call it “fred” and it changes nothing. Call the gay ones “enfreremont” and the straight ones “getting hitched.” Going to legal war over a word seems like a pointless waste of time for both sides.

    Of course, it’s not really about words, rather it’s about mormons running out of targets for their bigotry.

    carlitos (59ae85)

  28. That’s enfrerement. Pardon my french.

    carlitos (59ae85)

  29. What in the world is the difference what you call it?

    Interestingly, both sides see this as a point in their favor. ‘What’s the big hang up letting us call it marriage?’ What’s the big hang up if you have to call it something other than marriage?’

    Going to legal war over a word seems like a pointless waste of time for both sides.

    My preference would be to not require states to recognize other state marriages. Then, let each state have whatever practice is politically selected there.

    Some will say this raises a lot of hassles as states have different practices, but that’s a feature, not a bug.

    Dustin (c16eca)

  30. Carlitos – why bother having laws then, if the meaning of words is infinitely malleable?

    JD (d48c3b)

  31. Oh, and if a state wants to recognize another state’s marriages, that would be their prerogative. Reciprocity and all that.

    Same with abortion. I would prefer to get the federal government out of that issue, and see states resolve it in different ways.

    Dustin (c16eca)

  32. it would be a little silly for America land of the free home of the brave to be left with their royal pervert trash Saudi allies on the no gay marriage side of the question I think

    happyfeet (3c92a1)

  33. My preference would be to not require states to recognize other state marriages.

    It’s my understanding that this is already the case; i.e. that the constitution only requires states to recognise those marriages that could have been lawfully contracted under their own laws. It’s merely a custom for states to recognise all lawful marriages from all states, no matter what their laws; and nothing says that custom must continue.

    Milhouse (ea66e3)

  34. Happyfeet, do you feel the same way about capital punishment? On any matter, if Saudi Arabia does it one way and the Netherlands do it another, must we always conform our laws to those of the Netherlands and away from any accidental resemblance to those of the Saudis?

    Milhouse (ea66e3)

  35. JD, re-read my first 2 qualifiers (the if – and before the then. I’m not saying that words are infinitely malleable.

    If marriage is ruled a fundamental right, then you states-marriage-righters are going to have full faith and credit problems, I think.

    carlitos (59ae85)

  36. happyfeet,

    It’s not necessarily hateful and intolerant of gays to want marriage to remain a man+woman thing.

    There are various ways to resolve this. I know no Americans of any seriousness who want to treat gays like the islamofascists do. Most Americans want people to be able to live their lives without intruding on the lives of others. Since marriage is sometimes seen as a societal thing of great extrinsic value, that creates a conflict.

    Anyway, the Saudis believe in antibiotics and drilling for oil as well as preventing Iran from getting nuclear weapons. In some ways, you are on their side of many questions. Hopefully for better, more democratic, freedom loving reasons.

    But anyway, people who think that marriage’s definition is man and woman are not necessarily intolerant or evil. America should just get the fed out of this and many other issues in a period of reforms meant to let states go their separate ways. We need eachother for some things, but we’re actually stronger if we allow different states to be different states.

    Dustin (c16eca)

  37. It’s my understanding that this is already the case; i.e. that the constitution only requires states to recognise those marriages that could have been lawfully contracted under their own laws. It’s merely a custom for states to recognise all lawful marriages from all states, no matter what their laws; and nothing says that custom must continue.

    Comment by Milhouse

    Oh. Well that sounds reasonable to me, but I suspect if Texas stopped recognizing gay marriages from Oklahoma (I know, there aren’t any) then someone would sue, and some judge would say that was unconstitutional. There is the law, and then there’s the activist law.

    Dustin (c16eca)

  38. capital punishment is one of those consensus thingers Mr. Milhouse – people – my people – meaning Americans – they need to believe that justice prevails in our little country

    So if a majority of people find capital punishment to be meet and just, I will stand with them. Likewise if a majority of people come to find capital punishment to be ghastly and no fairs, then I will stand over there with them.

    It really makes not a lot of difference to me.

    happyfeet (3c92a1)

  39. That’s great. And when Texas stops recognizing Oklahoma drivers licenses, that would be OK by you and not a total contradiction to the concept of a federal republic? You guys haven’t thought this out.

    carlitos (59ae85)

  40. Exactly. I mean, there are already differences in law between the states; e.g. in some states first cousins can marry, while in others it’s illegal. Current custom is that if you get married where it’s legal, all other states will recognise it. But as I understand the Full Faith & Credit clause, that’s not required. A state that doesn’t allow cousin marriages would be within its rights to say that it won’t recognise such marriages no matter where they happened; the reason no state does so is that they don’t consider it important enough to make an issue of it.

    Milhouse (ea66e3)

  41. I should know better than to start a comment with “exactly”, without quoting what it’s responding to, assuming that there will be no new comments in between. My “exactly” in #40 refers to Dustin’s #37.

    Carlitos, there are many states that don’t recognise concealed carry permits from other states; others only recognise those from states with similar laws. Do you think that’s “a total contradiction to the concept of a federal republic”?

    Happyfeet, what if the majority changes its mind again? Will you change again with them, or is it a one-way ratchet? And in any case, what’s it got to do with the Saudis? Why do you care what they do? How is our law bad just because it happens to resemble a Saudi law?

    Milhouse (ea66e3)

  42. Mr. Dustin that’s rather too grounded in Theory for my taste. The “we’re actually stronger if we allow different states to be different states” theory.

    You know what I say Mr. Dustin?

    I say that we hold these troofs to be self-evident: that all people everybody everywhere are created equal and that also God says they have inalienable rights that neither Sarah Palin or Barack Obama can ever take away – namely, Life – that’s number one, then Liberty, and then my favorite one the Pursuit of Happiness.

    It’s ok to have an epiphany that you been doping it wrong but after that you must hasten to make things right. So America needs to get cracking on some of this stuff.

    happyfeet (3c92a1)

  43. oh. The Saudis are royal pervert trash I just think a lot of people don’t keep that top-of-mind, Mr. Milhouse. That’s one of the few quibbles I had with Mr. Bush. The depraved royal pervert House of Chakri trash of Thailand are just as bad.

    The royal British goobers are no prize either.

    happyfeet (3c92a1)

  44. Milhouse,

    I don’t think that carrying a concealed weapon is as fundamental a right as driving a car or getting married, no. I think that driving across state lines is exactly the kind of thing that the commerce clause envisioned, and I think recognizing marriage is exactly the kind of thing the full faith and credit clause should do. My 2 cents.

    carlitos (59ae85)

  45. but people can go back and forth on capital punishment if they want I don’t care – they seem fairly constant year to year though – in practice it’s more one of those tipping point things than a hemline sort of thing

    happyfeet (3c92a1)

  46. And which of those self-evident troofs says you can not only declare your relationship with a tree to be a marriage, but also make every state in the union go along with the charade?

    Milhouse (ea66e3)

  47. I don’t think that carrying a concealed weapon is as fundamental a right as driving a car or getting married, no.

    Oh. That would explain why arming yourself is in the constitution, while driving cars and getting married are not.

    Milhouse (ea66e3)

  48. marrying trees is a fantastical notion, and not a little whimsical

    I can’t imagine there’s much demand for that sort of thing. Demand is key.

    happyfeet (3c92a1)

  49. they have inalienable rights that neither Sarah Palin or Barack Obama can ever take away – namely, Life – that’s number one, then Liberty, and then my favorite one the Pursuit of Happiness.

    How is permitting states to have different laws on abortion or gay marriage letting a US President take away life liberty or property?

    It’s simply limited government.

    Frankly, there are two sides to this idea. Some people want to force your state to answer a political question (what marriage is recognized by the government) a certain way.

    I understand… you think there is only one correct answer to this political question (I’m more like Carlitos, and don’t really give a crap what name they have for it, but think the right answer would be at least civil unions). Here’s the problem: some people think there is only one right answer to the political question of abortion. Do you think we need to get cracking on that, and outlaw all abortion, because of the right to life?

    These are political questions. Let them be handled politically, instead by stubbornly insisting the law is on your side. Do you really want a world where gay marriage is forced on people, or a world where people chose to embrace it?

    I don’t think anyone has a right to the government recognizing their marriage. I would still live with my wife and call her my wife if my state said they no longer recognized my marriage. I’d be annoyed by that, but it’s not similar to my right to free speech or due process.

    Dustin (c16eca)

  50. Some people want to force my state to answer a political religious question I think.

    happyfeet (3c92a1)

  51. For the marriage-as-a la carte state menu item people:

    You will note that, in the USA, you don’t always live and work and do everything in the same state, especially in the Northeast – get a map and have a look. I would think (call me crazy) that you would want your marriage to be valid all the way through your commute to and from your place of work, just as an example. That might simplify things in case of accidents and what-not.

    carlitos (59ae85)

  52. Oh. That would explain why arming yourself is in the constitution, while driving cars and getting married are not.

    Yeah, and that’s why blacks can vote, eh? Fun game.

    Let them be handled politically, instead by stubbornly insisting the law is on your side

    So if Mississippi doesn’t honor interracial marriage from Illinois, that’s cool? Just more variety?

    carlitos (59ae85)

  53. And my two cents on the right to self defense (or having a gun… same thing) is far more important than any other civil right. Even the right to free speech, or the right to vote. The right to defend myself is extremely basic as a human right.

    I also don’t see why states recognizing eachother’s marriage is fundamental. Sure, I can understand Carlitos’s interpretation of full faith and credit, but that’s why I’m saying we should clarify by constitutional amendment that states can go their own way.

    We’re already very divided as a country on many political questions. Letting each state be different is a great way to resolve the tension. Instead of one group of people controlling another, you can just move to a blue or red state and be happy, while we all share the more fundamental rights to speech, due process, defense, etc.

    Dustin (c16eca)

  54. Actually, I just thought of another reason that “driving cars” wasn’t in the constitution…

    carlitos (59ae85)

  55. So if Mississippi doesn’t honor interracial marriage from Illinois, that’s cool? Just more variety?

    This is a good objection.

    Thankfully, Mississippi doesn’t think interracial marriage is unacceptable. Barry Goldwater was right that the best way to handle bigotry is to have faith in free people to work this out politically and by choice, in my opinion.

    My answer to your problem is to ensure the basic rights are universal. The right to vote. The right to speak freely. That will solve a lot of problems, albeit via the hard process of people arguing through these problems.

    It does become very important that we don’t permit terrorism to rid states of certain opinions, KKK style.

    Dustin (c16eca)

  56. My answer to your problem is to ensure the basic rights are universal. The right to vote. The right to speak freely.

    Yup – the right to marry the person you love might even be in there someday.

    carlitos (59ae85)

  57. I would think (call me crazy) that you would want your marriage to be valid all the way through your commute to and from your place of work, just as an example

    I can see why you might want that, but what makes you think all the states have to accommodate your wish? If you want all the states to recognise your marriage, then make sure to choose someone whom you could lawfully marry in any state. Otherwise you’re depending on their good will.

    Milhouse (ea66e3)

  58. Oh, and by the way, Loving v Virginia would probably have been decided the other way if Virginia had sufficed itself with not recognising the Lovings’ marriage, and not insisted on throwing them in prison for having dared to go to another state and while there do something that was perfectly legal in that state.

    Milhouse (ea66e3)

  59. Milhouse, I could not disagree with you more. I’ll make sure and choose someone TO SPEND THE REST OF MY LIFE WITH AND RAISE CHILDREN based on the idiosyncratic, fickle, popular vote based and potentially bigoted notions of a state through which my commuter rail runs.

    I’ll repeat – you haven’t thought this out.

    All – off to dinner with the bride. Sorry to bail.

    carlitos (59ae85)

  60. Oh my God. Damn those Lovings for being all uppity.

    carlitos (59ae85)

  61. Oh, sorry Milhouse – ignore my last comment – on quick re-read I see what you meant. I really gotta go.

    carlitos (59ae85)

  62. Yup – the right to marry the person you love might even be in there someday.

    Comment by carlitos

    No, it never will. That would be absurd.

    I’m making a distinction between good political answers, fair and reasonable and even very desired, and the most basic rights we need to have a society like ours.

    Just slapping in whatever cause dujour you want in with free speech and voting is sloppy reasoning.

    OK, I get that you think marriage is a human right. It’s not like free speech and voting, though. It’s more like abortion and integrated schools.

    That’s not to say your political answer is wrong. I just want to distinguish that from a few core aspects I actually will impose on the entire planet if I can.

    Dustin (c16eca)

  63. However, in granting special protections, rather than simply enforcing legal equality equality

    Ahh. OK, this is the crux of the debate.

    I believe that saying that you can’t deny someone employment because you dislike who they rub their bits against is enforcing legal equality equally. Basically, the rule is: what people do with their bits on their own time is none of your business, full stop.

    I believe that saying that you must treat long-term gay committed couple relationships identically to how you treat long-term committed straight couple relationships is enforcing legal equality equally.

    Neither of these are ‘special rights'; they’re just gay people asking to be treated just like everyone else.

    aphrael (e0cdc9)

  64. I’ll make sure and choose someone TO SPEND THE REST OF MY LIFE WITH AND RAISE CHILDREN based on the idiosyncratic, fickle, popular vote based and potentially bigoted notions of a state through which my commuter rail runs.

    Or you can just take the risk that for 20 minutes a day you’re not married by the local laws. If you consider yourself married, you’ll keep your pants zipped anyway; if you don’t, then have fun.

    Milhouse (ea66e3)

  65. I believe that saying that you can’t deny someone employment because you dislike who they rub their bits against is enforcing legal equality equally. Basically, the rule is: what people do with their bits on their own time is none of your business, full stop.

    And whom I buy goods or services from, or sell them to, is none of your business, full stop.

    Milhouse (ea66e3)

  66. and what if the state with the crappiest rights happens to be the state what makes the tastiest marzipan?

    happyfeet (3c92a1)

  67. and what if the state with the crappiest rights happens to be the state what makes the tastiest marzipan?

    Life’s full of compromises. Which would explain why you and I live where we do. But FTR I don’t like marzipan. Or halvah. So I don’t care where it’s made.

    Milhouse (ea66e3)

  68. not a halva fan either something about the texture puts me off

    happyfeet (3c92a1)

  69. Proponents and others like them want to exclude gays and lesbians from that guarantee. Proponents’ offensive, illogical, and self-contradictory motion provides some of the best evidence to date that Prop 8 was born of nothing more than animus and should be stricken.

    It does not matter if it was born from animus, as long as it is related to a legitimate government interest.

    I now direct you to Davis v. Beason, 133 U.S. 333 at 344, 345 (1890)

    Yup – the right to marry the person you love might even be in there someday.

    How did it work out for the Mormon polygamists?

    Michael Ejercito (64388b)

  70. Indeed, had Plaintiffs alleged only that they are gay and lesbian, and as such, had merely “speculate[d]” that they “might benefit from the right to marry in the future,” … their suit would have been dismissed for lack of standing.

    There is more.

    Plaintiffs had argued in their opposition brief that the defendant-interveners’ position implies that it would “require therecusal of all married heterosexual judges,” given defendant-interveners’ “argu[ment] that permitting marriage between persons of the same sex would weaken opposite-sex marriage.” But if the “weaken[ing] of opposite-sex marriage” were sufficient direct, personal interest to require recusal of all judges married to persons of the opposite sex, then all persons married to persons of the opposite sex would have Article III standing to appeal the district court decision on this basis, and the Ninth Circuit would have jurisdiction to decide the current appeal, as at least one intervener, Dennis Hollingsworth, is married. This is contrary to the plaintiffs’ arguments regarding standing, where they claim proponents lack a particularized legal interest in the case. They can not have it both ways. Either traditionally married judges have no direct, personal interest in the institution of marriage, and as such are not automatically disqualified, or they do, and they (including Hollingsworth) automatically have standing to appeal.

    This is not the only time that the plaintiffs tried to argue both sides. Regarding standing, the plaintiffs asserted that “Proponents’ claim of standing [to assert their interest in Proposition 8] …rises or falls
    onthe strength of their assertion[] that … California law creates a particularized interest in initiative proponents.” (
    Perry v. Brown, 10-16696, Brief for Appellees 30-31 [9th Cir. Oct. 18, 2010] [emphasisadded].) And yet, in their brief to the California Supreme Court, they claimed that the Court does not have any peculiar insights to provide the Ninth Circuit” regarding Proponents’ “particularized interest” in Proposition 8. (Pls. Br. 21.)

    It seems to me that litigants are in a bad position if they make contrary arguments in a case.

    Michael Ejercito (64388b)


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