Patterico's Pontifications

3/27/2013

Supreme Court Leaning Towards Striking Down DOMA?

Filed under: General — Patterico @ 1:10 pm

On federalism grounds.

I could live with that result. We could use more federalism. The problem is that the federal government can control anything nowadays through its purse strings.

UPDATE: Link fixed.

351 Responses to “Supreme Court Leaning Towards Striking Down DOMA?”

  1. But the purpose of DOMA was, and generally its effect has been, to promote federalism in the first place by leaving to the states their traditional spheres of domestic regulation while ensuring a single and uniform treatment of Americans for purposes of federal law regardless of where they live.

    So I’m not buying “federalism” as a legitimate justification for declaring it unconstitutional, despite anyone else’s tea leaf reading.

    Beldar (ff2834)

  2. (Since I’ve not argued about these issues here much lately, then per our host’s occasional example, I drop this meta-footnote to confirm that as a matter of social and public policy, I support and wish to promote the institution of marriage, including among same-sex couples; and were I a legislator or executive I’d support legislation which permitted and recognized same-sex marriage at both the state and federal level; but I vehemently deny that the federal Constitution speaks at all to the issue of sexual preference or government discrimination based thereupon. Those who claim otherwise don’t understand what a “constitution” is.

    Beldar (ff2834)

  3. Beldar – only DOMA Section 3 is under review. The part which allows states to not recognize same-sex marriages performed in other states is section 2; this is just about whether the feds can refuse to recognize a marriage which is recognized in the state of domicile.

    aphrael (24797a)

  4. Beldar- have you looked at my concern of possible legal ramifications if the Constitutional protection of SSM is awarded on the other thread? Would like your thoughts.

    MD in Philly (3d3f72)

  5. Federalism is not a concept that the Court has shown particular fealty to.

    JD (3cbfc7)

  6. One of the great lies of our time is that there must be no significant difference between men and women, and so a single-sex couple is equivalent to a diverse-sex couple.

    The lie will be enforced with appropriate legislation.

    Amphipolis (d3e04f)

  7. That link doesn’t go to the right place.

    Gerald A (c7c56a)

  8. America is a lot more tolerant of gay people today than it was back when DOMA was passed.

    happyfeet (4bf7c2)

  9. Respectfully, aphrael (#3 — 3/27/2013 @ 1:22 pm), I’d say instead that U.S. v. Windsor is just about whether the feds can refuse to recognize, purely for purposes of federal law, a marriage which is recognized in the state of domicile. And for purposes of constitutional analysis, the italicized distinction is exactly the crucial one. Attackers of the law say the Constitution denied Congress the power ever to decide what the federal government will consider to be “marriage” even for purposes of federal law — here, specifically, federal estate tax law.

    I say that’s horsefeathers because the Constitution doesn’t speak to the subject one way or t’other, and the Second Circuit’s whole “intermediate scrutiny analysis” is a classic exercise in judicial activist usurpation, a/k/a “making sh*t up and pretending it’s in the Constitution.” If you go down that path, then whether something is or isn’t “constitutional” depends pretty much on which direction any five Supreme Court Justices feel like farting on any given day.

    Beldar (ff2834)

  10. Patrick, I think your link to Hot Air is busted, btw.

    Beldar (ff2834)

  11. Happyfeet: true. And DOMA could never pass today.

    But by the same token, a repeal of DOMA also couldn’t pass. It *might* get through the Senate (although it’s not clear if it could break a filibuster), but it wouldn’t get through the House.

    aphrael (24797a)

  12. happyfeet (#8 — 3/27/2013 @ 1:55 pm), I agree with you 100% that “America is a lot more tolerant of gay people today than it was back when DOMA was passed,” and I would add that that’s a wonderful thing. I hope the trend continues, and believe it will.

    But the federal Constitution hasn’t been amended in the meantime. Nor, on this subject, ever — and certainly not in 1868!

    Beldar (ff2834)

  13. I’m agnostic about the half of doma that talks about state recognition but I think the part where it defines marriage for federal purposes feels kind of usurpy.

    It seems to me states have the right to instruct the federal government to treat citizens of their state as equals. That this is how we do things here in [Insert Gay Marriage State Here], and we’re asking you to respect that, federal bureaucrat people.

    It’s not a super big ask I don’t think. Some of this stuff politeness should just dictate I think.

    happyfeet (4bf7c2)

  14. aphrael – there is always the French solution …

    The State aka the Feds only does Civil Unions – no religious content whatsoever, none allowed … the couple then goes to the religion of its choice (or not) and gets married (or not) per the choice of the couple …

    The above serves the purpose of maintaining a separation of church and state …

    DOMA immediately becomes moot, under such circumstances, does it not ?

    It would serve the religious fanatics who oppose gay marriage for anti-gay reasons right … and it would serve the fanatics at the other end of the spectrum (anti-religious ones) right, also …

    Alasdair (e7cb73)

  15. I had a very detailed comment but once again Beldar said it … and said it better.

    Curse you, Beldar! Grrrr.

    SPQR (768505)

  16. MD in P, I wouldn’t even want to begin to guess about possible ramifications, beyond again noting my long-held concern that by their very success in courts, proponents of gay rights* deprive same-sex couples of the basic political legitimacy that would otherwise accompany society’s (and legislatures’) growing acceptance of them.

    The comparative tranquility with which “Don’t Ask/Don’t Tell” was eventually repealed should be the model; compare the virtual absence of any blowback from that to the continuing and perpetual outrage of both sides after the judicial coup d’état known as Roe v. Wade.

    *(I’d style myself an opponent — on liberty, policy and social grounds, but not constitutional ones — of laws that permit discrimination (sorting) by governments on the basis of sexual preference. That’s not quite the same thing as advocating “gay rights” because it implies that homosexuals are entitled to some better or different rights, and I don’t agree with that proposition.)

    Beldar (ff2834)

  17. what states rights are reduced by DOMA ? 9 states passed same sex marrige laws since DOMA was signed … seems like the states have control of marrige …

    JeffC (488234)

  18. Link is missing a colon after the http

    G (f85a02)

  19. so if the court stikes down both DOMA and Prop 8 they will have:

    prevented the federal government from defining marrige for federal laws and denied the people of California the right to define marrige for state laws …

    seems rational to me …

    JeffC (488234)

  20. Jeff C: the odds of the court striking down Prop 8 appear to be very, very low. My expected outcome at this point is that they strike DOMA section 3, while either upholding prop 8 or ducking the question on standing grounds.

    aphrael (24797a)

  21. Mr. Feet (#13 — 3/27/2013 @ 2:01 pm), I’m sympathetic to your hypothetical state official/policymaker from a gay-marriage state who says, “That this is how we do things here in [Insert Gay Marriage State Here], and we’re asking you to respect that, federal bureaucrat people.”

    But DOMA does respect “how we do things here” — for purposes of state law within each state.

    The problem is that when some states say “yes” and others “no,” that creates problems for treating people fairly among states. If New York State can insist that same-sex couples are entitled to benefits in the federal tax code that people in Texas or Florida can’t get, even those of us in Texas and Florida who would like to see our states accept same-sex marriage end up getting shafted financially in comparison to New Yorkers (including the presumed minority there who oppose same-sex marriage).

    Somebody’s going to get treated differently under federal law if you permit New York and Texas to have different rules, but federalism means they do indeed get to have different rules. So which branch of the federal government gets to sort out how to handle the necessarily different treatment? That’s the issue in Windsor. Is this a policy choice that Congress can make — and change by the regular legislative process, as society changes? If so, then DOMA is constitutional even if unwise by current mores. It’s only if you say that somehow the Constitution pre-empts and excludes Congress and the Executive from any role in deciding federal law that you can hold DOMA unconstitutional. And that’s horsefeathers.

    Beldar (ff2834)

  22. I ought to have said above, “Is this a policy choice that Congress and the Executive can make — and change by the regular legislative process, as society changes?”

    Because this is not just a judicial usurpation of legislative power, but of the combination of legislative and executive power. And remember that the POTUS whose actions are now alleged to have been unconstitutional from the beginning, as judged now in hindsight, is Bill Clinton.

    Beldar (ff2834)

  23. If the USSC does strike down DOMA on Federalism grounds it will be very interesting to see if Breyer, Ginsburg, Sotomayor, and Kagan join in deciding that the states do reserve some primacy. If they do, how come I don’t think they will be equally consistent in matters pertaining to, say, ObamaCare?

    JVW (4826a9)

  24. How is it that we have 57 states with different laws for an enumerated Right, but that is unacceptable for a newly created right?

    JD (3cbfc7)

  25. i think I follow, but for federalisms to work it’s better for the onus of fairness to fall on the states. Meaning that the remedy of fairness is one the states can address independently of the federal government.

    DOMA makes it to where people need to petition the federal government for fairness even after their state has granted their petition, so to speak.

    It just seems like there’s an unnecessary extra step in there.

    happyfeet (4bf7c2)

  26. plus i think it would be neat if just once some law i didn’t like got declared unconstitutional

    happyfeet (4bf7c2)

  27. Federalism when it suits their objectives. Sounds like today’s Supreme Court.

    We are heading into chaos and civil war on the wings of Lawyers.

    A constitutional amendment is declared after the fact unconstitutional and no one blinks. Go figure.

    So once again, what Leftism can not win through the Voting process, they achieve through the Judiciary.

    Incredible.

    Rodney King's Spirit (951136)

  28. #8 Maybe if you lived in a trailer park. But for the rest of us, nothing has changed on that matter.

    Rodney King's Spirit (951136)

  29. I’m trying to remember if there was any attempt to repeal DOMA during the 2009 – 2010 term when the Democrats controlled both Houses?

    Of course, that was still when Obama was anti-SSM when anti-SSM wasn’t bigoted.

    SPQR (768505)

  30. > A constitutional amendment is declared after the fact unconstitutional and no one blinks

    Er, what are you talking about here?

    *puzzled look*

    aphrael (b57693)

  31. Does anyone else find it ironic that Clement argued that the fact that the feds insisted that states ban polygamy as a basis for the federal refusal to recognize SSM?

    I mean … wouldn’t a true states rights conservative be outraged by the fact that the feds insisted that states ban polygamy?

    aphrael (24797a)

  32. This whole issue has been hijacked by the LEFT and the MEDIA. It has become a POP CULTURE issue. Polls say X, Y, OR Z. BFD.
    Imagine what POLLS said about shooting Japanese on sight during Christmas season 1941. Furthermore, our schools and culture have embraced GAY as OK.
    The Constitution is not living, nor does it breathe.

    Gus (694db4)

  33. No aphrael, a Conservative would believe that marriage is between one man and one woman, as it has always been for thousands of years. A Conservative would wonder why GAYS want to become part of a HETEROSEXUAL practice. And I think you probably know that most HOMOSEXUALS either want benefits they can obtain via marriage or they want to have their GAY behaviors SANCTIONED by society as the same as heterosexual. Whether you agree with that or not, Marriage has been one man and one woman forever, and it has been part of the glue that has kept societies together. Of course no LIBTARD alive will ever agree with that.

    Gus (694db4)

  34. No, alpharel, because arguing that the states had a right to allow polygamy undermines the slippery slope argument that allowing SSM as constitutional right —> polygamy in the streets scaring the horses.

    That said, there is in my opinion no way to recognize a constitutional right to SSM which does not also create a right to polygamy – and this was predicted by Scalia’s dissent in Lawrence.

    SPQR (768505)

  35. Gus, lay off the all caps, it makes you look rabid.

    SPQR (768505)

  36. Gus: it depends on whether you are a social conservative or a states-rights conservative. If states rights is your fundamental underlying premise, it seems to me, you would think both that NY can have SSM if it wants *and* that Utah can have polgyamy if it wants.

    aphrael (24797a)

  37. SPQR. I AM RABID.
    Aphrael, sorry my friend, a Conservative would know that MARRIAGE has, and always has had a definition. Whether it FED or STATE doesn’t matter. Nice strawman you attempted son!!! The “underlying premise” is what a CONSERVATIVE would think. Nice try!!!

    Gus (694db4)

  38. 13.

    I’m agnostic about the half of doma that talks about state recognition but I think the part where it defines marriage for federal purposes feels kind of usurpy.

    Comment by happyfeet (4bf7c2) — 3/27/2013 @ 2:01 pm

    Except of course the plaintiffs arguing DOMA violates the principle of federalism have conceded that if the feds defined marriage in a way that they agree with there would be no federalism concerns:

    NRO: DOMA Oral Argument

    1. Justice Kennedy’s questions and comments are not encouraging, as they reflect a fundamental confusion that DOMA involves the exercise of an authority to regulate marriage. See, e.g., p. 76: “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”

    2. Some excellent questioning by the Chief Justice ought to dispel Kennedy’s confusion.

    From the Chief’s exchange with SG Verrilli (p. 81):

    CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say “marriage” in Federal law, we mean committed same-sex couples as well [i.e., whether or not married under state law], and that could apply across the board.

    Or do you think that they couldn’t do that?

    GENERAL VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.

    CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn’t — you don’t think it would raise a federalism problem either, do you?

    GENERAL VERRILLI: I don’t think it would raise a federalism problem.

    But it can’t be the case that a federal definition of marriage for purposes of federalism law presents a federalism problem under DOMA but not under the Chief’s hypothetical.

    Not even the side arguing before the SCOTUS that DOMA should be struck down as unconstitutional are claiming the section that defines marriage for federal purposes is “kind of usurpy.”

    They’re arguing that had Congress come up with a different definition that they don’t have a problem with it would be fine with them.

    Steve57 (be3310)

  39. Funny that, the only federalism problem is as the proverb goes ‘it defends itself’ which makes it such a wicked animal.

    narciso (3fec35)

  40. So uphold Prop 8 and strike DOMA? Splitting the difference?

    Patricia (be0117)

  41. Steve, actually if you read the SG’s brief, he’s not arguing that there’s a federalism problem at all; he’s arguing that there’s an equal protection problem.

    Hell, you don’t even need to go to the brief to see that. The same oral argument transcript you link to has this (on page 84)

    GENERAL VERRILLI: Yeah. We think whatever the outer bounds of the Federal Government’s authority, and there certainly are outer bounds, would be, apart from the equal protection violation, we don’tthink that Section 3 apart from equal protection analysisraises a federalism problem.

    The federalism argument was put forward by amici curiae and seems to have caught particular interest from Kennedy and Alito.

    aphrael (24797a)

  42. My apologies; you linked to an NRO summary, not to the argument transcript itself. The argument transcript is at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-307_jnt1.pdf

    aphrael (24797a)

  43. No, the point of the exercise, is to make it impossible to challenge SSM ‘not with a mouse, not with a house’

    narciso (3fec35)

  44. Mr. 57 it’s not the same argument if you flipper flopper it like that. Do not let the tricksy pervert chief justice fool you!

    He is tricksy!!!

    States have the right to say who can get married in their state.

    If the federal government wants to give benefits to gay peoples who can’t be legally married in Pennsyltucky, then no prerogative of the state is being usurped.

    It’s just if the federal government refuses to acknowledge someone’s state-approved legal marriage that the principles of federalism are affronted.

    In how I look at it anyways.

    happyfeet (4bf7c2)

  45. No. I agree with Beldar. At least within its enumerated, plenary powers (taxation, immigration, raising armies, obvious ones) Congress can define marriage any way it wants. It does not need to defer to the States under the Tenth Amendment. Fifth Amendment? Hmm.

    nk (c5b7ef)

  46. “what states rights are reduced by DOMA ? 9 states passed same sex marrige laws since DOMA was signed … seems like the states have control of marrige …”

    Are you familiar with what DOMA says?

    ChadP (c770a7)

  47. Let’s put aside SSM for a minute. How many states recognze common law marriages and should the federal government consequently recognize them too? For taxes? For immigration? For the soldier’s family housing allotment?

    nk (c5b7ef)

  48. The internet, an infallible source, says common law marriages are recognized in ten states and DC.

    nk (c5b7ef)

  49. aphrael @41, yes. So?

    I was addressing happyfeets contention that it’s “kind of usurpy” for the federal government to define marriage for federal purposes.

    The federalism issue has been raised, and some observers like happyfeet and some participants like Justice Kennedy thought there’s merit to the argument. But if the Solicitor General concedes that the federal government can define marriage for federal purposes then that blows a big hole below the waterline in that contention.

    Steve57 (be3310)

  50. #30. As I understand the California Law/Act/Whatever was made part of the CA Constitution by a Vote of the People of CA.

    How can a Court declare it Unconstitutional when it is in the Constitution.

    Would not the change in the CA Constitution require another vote of some type. Not Judicial fiat?

    Rodney King's Spirit (951136)

  51. Amendments to the constitution are unconstitutional.

    JD (b63a52)

  52. I fixed the link. Sorry about that.

    I have not heard or read these arguments yet so I really should not have expressed an opinion.

    Patterico (2efd47)

  53. #51 That is say if the Supreme Court did not like the First Amendment, it could not simply take an eraser to it …. the People or its Representatives in some capacity would need to vote to erase it.

    And I understand the CA Law and Federal are different issues. No lawyer here but it seems the Courts (again) over reached.

    Could be wrong.

    Rodney King's Spirit (951136)

  54. #51. Now I am confused. So the 14th Amendment is Unconstitutional?

    Sincere is wanting to understand.

    Rodney King's Spirit (951136)

  55. As far as the Supremacy Clause of the U.S. Constitution is concerned, California’s (or any state’s) constitution is no more important than a No Parking regulation.

    nk (c5b7ef)

  56. So, nk, the idea that DOMA violates federalism because the Constitution doesn’t give the federal government the power to define marriage but rather it’s up to the states sort of conflicts with the idea that a federal court can rule that a state definition can be unconstitutional under the equal protection clause.

    If it’s a state power then it’s a state power.

    Steve57 (be3310)

  57. It is only a State power when the State chooses to act in the acceptable way?

    JD (b63a52)

  58. Well, yes. There’s a ton of federal constitutional limitations on states’ powers. Start with Article IV, then go First Amendment, Second Amendment, ad seriam.

    nk (c5b7ef)

  59. I believe the 10th Amendment states that the powers not specifically delegated to the United States by the Constitution are reserved to the states subject the legislative supremacy of the federal judiciary.

    Steve57 (be3310)

  60. Taxation, which is the issue in Windsor, is one pretty powerful, delegated, federal power. Nicht Wahr?

    nk (c5b7ef)

  61. nk, what limitation does prop 8 fall afoul of if heart of the argument, should it fly with the court, that DOMA violates federalism because the federal government does not have the power to regulate marriage?

    Steve57 (be3310)

  62. So then DOMA doesn’t violate federalism because the federal government can define marriage for federal purposes. Taxation being one of them.

    So then you agree with me that Kennedy’s contention that DOMA is unconstitutional because it infringes on state powers to define marriage is without merit?

    Steve57 (be3310)

  63. 60. Taxation, which is the issue in Windsor, is one pretty powerful, delegated, federal power. Nicht Wahr?

    Comment by nk (c5b7ef) — 3/27/2013 @ 6:00 pm

    Is the federal government obligated to give a federal tax deduction every time a state changes it’s laws regarding who is eligible for that deduction?

    Steve57 (be3310)

  64. Prop 8 is strictly state action, so the Fourteenth would apply.

    I don’t think that Kennedy was arguing federalism, just casting a wide net in his questions. Fifth Amendment Due Process (which by virtue of the Supreme Court’s time machine incorporates Fourteenth Amendment Equal Protection) is the better argument.

    nk (c5b7ef)

  65. “I believe the 10th Amendment states that the powers not specifically delegated to the United States by the Constitution are reserved to the states subject the legislative supremacy of the federal judiciary.”

    The word “specifically” is not in the 10th amendment.

    ChadP (c770a7)

  66. I’ve decided this is all Romney’s fault. He refused to defend marriage when he was running, demoralizing everyone about it. When Chick fil A went down he did nothing. In the face of relentless propaganda, our side makes no attempt to defend itself so it isn’t surprising we’re losing.

    CK (ae4bf1)

  67. Is the federal government obligated to give a federal tax deduction every time a state changes it’s laws regarding who is eligible for that deduction?

    Comment by Steve57 (be3310) — 3/27/2013 @ 6:08 pm

    Not in my court. ;) The federal taxing power is plenary and practically limitless.

    nk (c5b7ef)

  68. I did like the following observation by Justice Alito.

    JUSTICE ALITO: Can I take you back to the

    example that you began with, where a member of the

    military is injured. So let’s say three soldiers are

    injured and they are all in same-sex relationships, and

    in each instance the other partner in this relationship

    wants to visit the soldier in a hospital. First is a spouse in a State that allows

    same-sex marriage, the second is a domestic partner in a State that an allows that but not same-sex marriage, the

    third is in an equally committed loving relationship in a State that doesn’t involve either. Now, your argument

    is that under Federal law the first would be admitted, should be admitted, but the other two would be kept out?

    S.G. Verilli responds

    GENERAL VERRILLI: The question in the case,
    Justice Alito is whether Congress has a sufficiently
    persuasive justification for the exclusion that it has
    imposed. And it — and it does not. The only way in
    which — that BLAG’s arguments for the constitutionality
    of this statute have any prospect of being upheld is if
    the Court adopts the minimal rationality standard of Lee
    Optical.

    And the Justice’s reply.

    JUSTICE ALITO: Let me take you back to the
    example. Your — your position seems to me, yes, one
    gets in, two stay out, even though your legal arguments
    would lead to the conclusion that they all should be
    treated the same.

    Alito observes (correctly, in my opinion), that if DOMA is struck down under heightened scrutiny,
    then the denial of benefits to domestic partners might violate equal protection if
    they are available to married persons.

    Michael Ejercito (2e0217)

  69. From Paul Mirengoff, via Mark Steyn at National Review Online:

    “The fact that the Supreme Court may be about to pass judgment on the age-old definition of marriage is the reductio ad absurdum of American constitutional jurisprudence. That we have reached this point tells us that the Supreme Court has taken some terribly wrong turns.

    “The fact that, until very recently, marriage has universally been deemed to require an opposite sex component doesn’t mean that this component must be required forevermore. But a decent appreciation of democracy, human history, and the fallibility of the individual means that nine glorified lawyers shouldn’t be the ones who make the change. Nor should they be in a position where they might make it.”

    Indeed.

    Whitey Nisson (7f9f6a)

  70. Chad @65, a lot of words in my comment aren’t actually in the 10th Amendment. Didn’t you notice any others?

    Steve57 (be3310)

  71. That one is important. It’s not just about what’s specifically delegated to the Federal government, but all the powers delegated.

    ChadP (c770a7)

  72. To confuse matters further Breitbart is reporting discussion in the Court that the Executive bailing means the cases ought to be dismissed. The court has no basis ruling on the law so conceded.

    gary gulrud (dd7d4e)

  73. So now it’s not so bad? You noticed the sequester reduces the deficit right?

    ChadP (c770a7)

  74. oops wrong article.

    ChadP (c770a7)

  75. Folks, meet ChadP aka Lars. Aka beerandcoffee

    FYI – the following names are associated with the IPs that Lars and beerandcoffee have utilized, and there are undoubtedly more.

    In no particular order …
    Lars
    beerandcoffee
    Hippocrates
    Spointer
    SmeartheQueer
    Sheldon
    VetthePrez
    Fortunate Son
    UNSKEW
    ACAB
    RomneyShambles
    Kinlaw
    Choll
    DaveM

    Also,
    Sammy
    Lemon.Wet.Good
    Imdw

    JD (b63a52)

  76. So let me get this straight: to get a law overturned all the executive has to do is incompetently defend it in court and then refuse to appeal. Lovely.

    CK (ae4bf1)

  77. Or just declare it unconstitutional. Or just choose to not enforce it.

    JD (b63a52)

  78. In legal terms, The Moonbeam Doctrine. Jerry Brown tried to do that with Prop 8 — he argued to the California supreme court that Prop 8, an amendment to the California constitution, was unconstitutional under the California constitution.

    nk (c5b7ef)

  79. CK, I would like to know the justification for letting any ruling on proposition 8 stand?

    How can the SCOTUS rule the case isn’t properly before them but that it was properly before the United States District Court for the Northern District of California?

    Steve57 (be3310)

  80. “Congress could have achieved exactly what it achieved under
    Section 3 by excising the term ‘married’ from the United States Code and
    replacing it with something more neutral,” Alito said. “It could have
    said ‘certified domestic units,’ and then defined this in exactly the
    way that Section 3—exactly the way DOMA defines ‘marriage.’”

    Here is a thought experiment.

    Suppose Congress passed a law defining “certified domestic units” (CDU’s) as couples of the same sex who are in statewide legally recognized unions that are substantially similar to marriage, regardless of what nomenclature their state of domicile uses. The law also states that all federal benefits available to married persons are available to persons in CDU’s.

    Would Windsor still have standing to assert an equal protection violation? After all, had this law been in effect in 2007, the estate of Thea Spyer would not be on the hook for the estate tax. Could she argue that the fact Spyer’s estate got the deduction via the CDU provision instead of marriage provision was a concrete injury to the estate’s protectable legal interest?

    Michael Ejercito (2e0217)

  81. But this really makes no sense either way because if they dismiss the DOMA one it it means the Obama team actually perpetuated the law by not defending it. Or do I not understand this?

    CK (ae4bf1)

  82. Edith Windsor won in the lower courts. And DOMA would be struck down in the Second Circuit but not in the rest of the counntry.

    nk (c5b7ef)

  83. When are we going to have Social Security Equality? I’m in my 20s but I can’t get any benefits because of bigoted ageism. And don’t tell me it’s because it’s a retirement program, what about people who mow their lawn after age 65? They’re working too.

    CK (ae4bf1)

  84. nk, I wasn’t talking about the Windsor case.

    http://www.scotusblog.com/2013/03/the-proposition-8-oral-argument/

    Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

    How could the district court take the case in the first place if the defenders of proposition 8 don’t have standing to appeal it?

    It’s all the same federal judiciary; how could the district court ruling stand but not the Ninth Circuit Court’s decision.

    Steve57 (be3310)

  85. CK, you make a good point.

    And what about these movie theatres and restaurant chains that offer “senior discounts.”
    That’s excluding us from equal protection under the law.

    Elephant Stone (293069)

  86. They accepted it, on a dare, like a fraternity prank,?

    narciso (3fec35)

  87. The district court’s jurisdiction is easy. The challengers of Prop 8, gay people who wanted to marry gay people, definitely had standing to bring the lawsuit. It does not matter if they win by default. That happens all the time.

    It’s the appeal to the 9th Circuit that’s at issue, and if there was no jurisdiction in the 9th Circuit there might not be jurisdiction in the Supreme Court?

    nk (c5b7ef)

  88. How does the district court’s ruling stand? How can Walker’s ruling on the merits of the prop 8 defendants’ case stand when they shouldn’t have been allowed to make a case?

    Steve57 (be3310)

  89. It seems like there are no rules that they are willing to abide by;

    http://allergic2bull.blogspot.com/2013/03/everyone-blog-about-howard-county-md.html

    narciso (3fec35)

  90. I think with the district court thing the state refused to defend prop 8 but they did permit other people to do so in their name. It becomes murkier when the state did not agree to appeal.

    CK (ae4bf1)

  91. CK, I don’t see why that would make one iota of difference. If the defendants of prop 8 have standing in a federal court, then they have standing in federal court. It’s not up to the state of California to dictate to the federal judiciary who has standing, and how far into the process they’ll have standing.

    Steve57 (be3310)

  92. How can Walker’s ruling on the merits of the prop 8 defendants’ case stand when they shouldn’t have been allowed to make a case?

    ? The defendants were first Schwarzenegger and then Brown as representatives of the State of California. They were allowed to make a case, they just didn’t. You’re thinking of the intervenors, private citizens, who picked up the ball and that’s the issue — whether they have standing to defend California’s laws

    nk (c5b7ef)

  93. I don’t like the idea that a party to a case, the government, can choose to not defend a law enacted properly, be ause they don’t like the outcome.

    JD (3cbfc7)

  94. Me neither, but the federal courts, including the Supreme Court, are courts of limited jurisdiction and can only hear “cases or controversies”. Now the same sex couples sure had a beef with the State of California denying them marriage licenses and had standing to bring the lawsuit. But, is there enough skin off a private Californian citizen’s perineum if some godforsaken sodomites marry each other to make him part of the controversy?

    nk (c5b7ef)

  95. there seems to be a lot of that going around.

    narciso (3fec35)

  96. #50 – the voters of CA amended the CA constitution to add a ban on same sex marriage.

    The argument is that that amendment violates the *federal* constitution.

    They tried to argue that it violated the CA constitution. That argument was almost literally laughed out of court.

    It’s pretty clear that state constitutions can violate the federal constitution; i wouldn’t have thought that notion remotely controversial.

    aphrael (24797a)

  97. Steve at 84:

    it’s a regular occurence that is well accepted within the court rules that non-parties may intervene at trial. The idea is that a trial by its very nature requires that there be two opposing parties, and in the absence of one, having the trial without *someone* standing in for the other party would be unfair, and so would not having the trial at all.

    The rules for this are codified in the federal rules of civil procedure, Rule 24.

    However, the general rule for an appeal is stricter. In general, a third-party cannot appeal on behalf of the actual party; if the actual party is conceding the point, then there is no controversy (both parties are in agreement) and so there’s nothing to decide.

    aphrael (24797a)

  98. Aphrael -we are nearing a resolution to that water rights issue I emailed you about. A crappy horrible resolution, but a resolution.

    JD (3cbfc7)

  99. > If the defendants of prop 8 have standing in a federal court, then they have standing in federal court

    That simply isn’t the case. Maybe it *should* be the case, but it’s not the way the rules currently work – all of the prop 8 briefs which discuss the matter agree that standing-for-trial-court and standing-for-appeals-court are different standards, and that’s well grounded in both case law and the federal rules of civil and appellate procedure.

    [For what it's worth, I think the official proponents clearly have standing --- because, according to the CA Supreme Court, California has delegated its authority to them; they are, in essence, acting as temporary representatives of California on this issue. The best legal argument comeback to that, as far as I can tell, is that only an agent can represent California in this way, and the official proponents cannot be agents of California because they're not under California's control. I think that argument eviscerates the initiative system and so is therefore inconsistent with California voters' express preferences on how California government should function, and that the 10th amendment preserves California's right to vest in anyone it wants the power to vindicate the state's interest in seeing its laws enforced].

    aphrael (24797a)

  100. CK at 81, yes, it’s very very very very ironic that, by not defending DOMA in court, the Obama administration may have taken the case outside of the court’s power and thereby prevented the very outcome it claims to be seeking.

    I think it’s good evidence that the Obama administration is more driven by *appearances* than *actuality*, myself. It’s more important to them to appear to be fighting the good fight than to succeed at it.

    aphrael (24797a)

  101. Hey JD, i’m curious as to what the resolution is; please feel free to email me. :) my_username_here @gmail is the way to do it. :)

    aphrael (24797a)

  102. Patterico, please update us with your thoughts once you’ve read/listened to the arguments. (I’ve now listened to both; i’d be interested in your take. :))

    aphrael (24797a)

  103. No, sadly it fits with the modus operandi, how the Auto Task Force closed dealerships that had contributed to his opponent, how he had no opposition in his first race, and token opposition in the Illinois Senate race, how he voted to strengthen IGs, and had two removed.

    narciso (3fec35)

  104. aphrael gets the mostest smiley prize

    happyfeet (8ce051)

  105. sean penn gets the oh my goodness I raised a racist potty mouth prize

    happyfeet (8ce051)

  106. Narciso: I reached a point today, where I was thinking about the implications of the first half of the oral argument, where I was downright angry at the Obama administration over this.

    Much like Gavin Newsom, they seem to be shooting me (gay people, metaphorically me) in the foot by doing something that *looks* like it’s supportive of me but actually kinda hurts me in the end, trusting that most people are too uninformed to see it.

    aphrael (24797a)

  107. Composing it now ….

    JD (b63a52)

  108. Narciso: I reached a point today, where I was thinking about the implications of the first half of the oral argument, where I was downright angry at the Obama administration over this.

    Much like Gavin Newsom, they seem to be shooting me (gay people, metaphorically me) in the foot by doing something that *looks* like it’s supportive of me but actually kinda hurts me in the end, trusting that most people are too uninformed to see it.

    I don’t understand this.

    JD (b63a52)

  109. “Much like Gavin Newsom, they seem to be shooting me (gay people, metaphorically me) in the foot by doing something that *looks* like it’s supportive of me but actually kinda hurts me in the end, trusting that most people are too uninformed to see it.

    aphrael, well said. I think Obama and his clique see the gay community as sheep to be herded where they want with fear. But with no concern at all that you’ll bolt and so no real need to do more than pander and scare.

    SPQR (768505)

  110. The lawyers arguing on behalf of DOMA should just claim that DOMA is a tax !

    Elephant Stone (293069)

  111. I have a whole lot of caveats which I will not bore you with, so I will bore you with something else.

    The old lady plaintiff decided to make a case because of the taxes on the accumulated wealth that she and her girlfriend, wife or whatever enjoyed.

    My problem is with the taxes.

    Not because DOMA says she can’t have their wealth because she and her partner were gay.

    My problem is why in the god-damned hell is the tax code so convoluted that people have to give up what they earned in life to the point that they can’t give it to who they want without punishment from the government?

    Doesn’t anyone else have a problem with this?

    Ag80 (b2c81f)

  112. i have a problem with that too Mr. 80

    plus also I think gay marriage is a neat development all on its own

    happyfeet (8ce051)

  113. SPQR – I wouldn’t say *fear*, actually. I’d say *hope*. It’s not that he’s making us afraid of the other guys; it’s that he’s very publically doing things that nobody has been willing to do, trying to bind us to him by doing them … only some of them, like this, turn out to not be as good on inspection as they appeared through the binoculars.

    aphrael (24797a)

  114. Walker cited a particular case when he granted standing to the prop 8 proponents to intervene.

    Arizonans for Official English v. Arizona (95-974), 520 U.S. 43 (1997).

    Justice Ginsberg wrote the court’s opinion. She cited one particular case which established the precedent:

    To qualify as a case fit for federal court adjudication, “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974)) (internal quotation marks omitted).

    If there isn’t an “case” or “controversy” at all stages of review, then on what basis was this case fit for federal adjudication in the first place?

    Steve57 (be3310)

  115. JD:

    It appears that by publically refusing to defend DOMA in court, the Obama administration may have created a situation wherein the DOMA case can’t get heard by an appellate court at all, thereby preventing the creation of a precedent overturning DOMA globally rather than in the context of the specific parties of a specific trial court case.

    Refusing to publically defend DOMA created a great sense in the gay community that Obama was our friend, but it’s all symbolic visuals that look good, while actually hurting the legal situation.

    Similarly, Gavin Newsom’s stunt with holding illegal gay marriages convinced the gay community of San Francisco – which had largely supported *his opponent* when he originally ran for mayor – that he was their friend, but it triggered an angry backlash that ended up hurting us and which contributed to the passage of Proposition 8. Again: optics, and using us for crass political purposes by pretending to help us while actually hurting us.

    They’re remarkably similar situations.

    aphrael (24797a)

  116. Let’s say both cases are dismissed for lack of standing. California, New York and Vermont will become estate tax havens for same sex couples. It’s something. ;)

    nk (c5b7ef)

  117. Because the government always wants it’s cut,

    narciso (3fec35)

  118. Steve57 – there was a case or controversy at the trial court. Perry wanted to get married. The LA county clerk refused to grant a marriage license. So there was a harm (no marriage license) which could be remedied by a court order. The Governator refused to defend the LA county clerk (and the state’s law), so the trial court allowed the official proponents to intervene for the purpose of doing so.

    However, since Schwarzenegger and the LA county clerk were willing to comply with the District Court ruling and issue the marriage license, there was no controversy after the appeal.

    The official proponents’ argument is that, according to the CA supreme court, California delegated to them the right to defend *its* interest in having the law upheld. Thus, there’s a controversy – Schwarzenegger and the LA county clerk are willing to comply, but the sovereign entity of California has an interest in having the law upheld, and while Schwarzenegger-as-California’s-representative won’t vindicate that, the official proponents-as-California’s-representative will.

    The argument on the other side is that for technical reasons California can’t delegate its authority in that way, and since nobody to whom California *can* delegate its authority is willing to appeal on behalf of California, there’s no controversy to be decided.

    Summary version:

    at the trial court, there’s a conflict between Perry (who wants a marriage license) and California/LA county (which won’t grant it). when California wouldn’t defend, the court allowed someone else to do so.

    at the appeals court, there’s no conflict between Perry (who wants a marriage license) and California/LA county (who are willing to comply with a court order that it be granted). Thus, nobody can appeal.

    aphrael (24797a)

  119. Also keep in mind it was Walker himself who claimed the defendants didn’t have sufficient standing to appeal because:

    He ruled that they not only failed to show that the resumption of gay marriage would do them personal, irreparable harm, but that they likely lacked the legal standing to request to appeal.

    Going back to the case he cited when he allowed them to intervene, Ginsberg said:

    Article III, §2, of the Constitution confines federal courts to the decision of “Cases” or “Controversies.” Standing to sue or defend is an aspect of the case or controversy requirement. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 663-664 (1993) (standing to sue); Diamond v. Charles, 476 U.S. 54, 56 (1986) (standing to defend on appeal). To qualify as a party with standing to litigate, a person must show, first and foremost, “an invasion of a legally protected interest” that is “concrete and particularized” and ” `actual or imminent.’ ”

    Shouldn’t Walker have decided that the prop 8 defenders had a sufficient concrete, protected, and particularized interest that was being invaded before deciding they were qualified to litigate the case before taking it in the first place instead of deciding afterward they didn’t?

    Steve57 (be3310)

  120. Mr. happy:

    I think gay people have been happily marrying for a long time.

    I think the government meddles too much in people’s business.

    I think that gay people can marry without the government’s permission.

    I think that the problem is everyone is worried about what the government can do rather than what it can’t.

    You want the government to make a rule about something it really shouldn’t.

    I say that not because you’re wrong in your beliefs. I think everyone should be able to live their lives in a free society as they wish as long as it does not harm others or infringes on property or beliefs.

    Let me put it this way: When you invite the government into your life, you have to live with the consequences.

    Ag80 (b2c81f)

  121. I agree Mr. 80 but a more better alternative isn’t on the table

    happyfeet (8ce051)

  122. “Shouldn’t Walker have decided that the prop 8 defenders had a sufficient concrete, protected, and particularized interest that was being invaded before deciding they were qualified to litigate the case before taking it in the first place instead of deciding afterward they didn’t?

    Steve57, Walker was a stunt judge.

    SPQR (768505)

  123. but yeah i imagine you have to be just as careful about getting gay married as you do when you get married the regular way

    happyfeet (8ce051)

  124. Mr. happy:

    Yes, there is. Stop.

    Stop thinking every problem is a crisis.

    Stop trying to legislate morality as if federal mandates are the simple solution.

    Stop thinking all people are stupid because some are.

    Stand up for people. Stand up for their ideas and their ideals and help them recognize that sometimes what what they think and the culture of free-thinking people might be the best.

    Democrats and Republicans forgot this along time ago.

    Ag80 (b2c81f)

  125. I’m not sure the poor widow lady what got mugged by the feds agrees about there being a more better option than gay marriage in the offing Mr. 80

    happyfeet (8ce051)

  126. Steve – interestingly, while Walker allowed the official proponents to intervene, he denied a request by the “Campaign for California Families” to intervene. The ninth circuit upheld the denial.

    http://cdn.ca9.uscourts.gov/datastore/opinions/2009/11/19/09-16959.pdf

    The Campaign unsuccessfully moved to intervene as a defendant as well. The district court denied the Campaign’s motion to intervene as of right because the Campaign failed to show that it had a significantly protectable interest in the subject matter of the litigation, that the disposition of the action might practically impair or impede its ability to protect its interest, or that its interest was not adequately represented by the existing parties to the action. The Campaign’s motion for permissive intervention failed for similar reasons.

    The discussion for intervention-as-of-right says that an intervenor must

    (a) apply in a timely fashion

    (b) have a significantly protectable interest relating to the transaction that is the subject of the action

    (c) be situated such that the disposition of the action may impede the party’s ability to protect the interest

    (d) and the interest must not be adequately represented by the parties

    The discussion for permissive intervention says that an intervenor must

    (a) show independent grounds for jurisdiction

    (b) apply in a timely fashion

    (c) have a question of law or a question of fact in common with the main action

    —-

    The order on the motion to intervene grants it as of right:

    (sorry, I can’t link to it; I pulled it off of PACER)

    The proponents of Prop 8 meet all four of FRCP 24(a)’s criteria: (1) their motion to intervene is timely, filed just days after plaintiffs filed the complaint; (2) as official proponents, they have a significant protectible interest in defending Prop 8′s constitutionality; (3) their interest in upholding Prop 8 is directly affected by this lawsuit; and (4) their interest is not represented by another party, as no defendant has argued that Prop 8 is constitutional. See Docs ##27, 30, 39, 46. Significantly, with respect to the last factor, although the responsibilities of the Attorney General of California contemplate that he shall enforce the state’s laws in accordance with constitutional limitations, Cal Const art V § 13, see also Cal Govt Code §§ 12511, 12512, Attorney General Brown has informed the court that he believes Prop 8 is unconstitutional. Doc #39 at 2.

    So yes, Walker *did* find a cognizable injury.

    HOWEVER, standing to appeal and the right to defend in the trial court are governed by different rules, so having a cognizable injury for trial purposes doesn’t equate to having a cognizable injury for appeals purposes – particularly in a case where there’s no actual controversy between the parties.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747794

    (Georgia Law Review, Vol 38, #3, p 813)

    is a very interesting law review article on the subject … published in 2004 so it’s clear that it’s not motivated by political considerations arising from this case.

    aphrael (24797a)

  127. Mr. happy:

    She got mugged by the tax code, not her gayness. I think that may be my point, with all due respect.

    Ag80 (b2c81f)

  128. Also going back to the Ginsberg decision. The very first line states:

    Justice Ginsburg delivered the opinion of the Court.

    Federal courts lack competence to rule definitively on the meaning of state legislation, see, e.g., Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970),…

    I’m sure the Kali Supreme Court does have that competence the federal laws lack. And when Walker asked the Kali Supreme court to decide whether the prop 8 defenders could have the authority delegated to them to defend prop 8, this was the judgement of the Kali Supreme court:

    “Because it is essential to the integrity of the initiative process,” Chief Justice Tani Cantil-Sakauye wrote, “that there be someone to assert the state’s interest in the initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative … are the most obvious and logical persons to assert the state’s interest in the initiative’s validity on behalf of the voters who enacted the measure, we conclude that California law authorize the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiatives validity and to appeal a judgment invaliding the measure.

    “Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters.”

    The plaintiffs may argue that Kali can’t delegate it’s authority in that manner, but the competent authority on the definitive meaning of Kali law has already made that decision. Unanimously I might add. As Ginsberg said in the Arizona ruling.

    Participants in the federal litigation, proceeding without benefit of the views of the Arizona Supreme Court, expressed diverse opinions on the meaning of the amendment.

    They have the benefit of the California Supreme Court’s view in the prop 8 case.

    We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests. See Karcher v. May, 484 U.S. 72, 82 (1987). [n.20] AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.

    They’ve been made aware in the Kali case.

    Steve57 (be3310)

  129. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1808181 (Georgia Law Review, Vol. 39, p. 411, Winter 2005) is a sequel which is even more on point because it’s specifically about appeals by intervenors.

    Although the opinions of the several circuit courts of appeals leave debatable where some of them stand, and commentators have disagreed about how the circuits line’ up, the split is roughly as follows: The D.C. and Eighth Circuits require that intervenors have standing; the Second, Fifth, Sixth, and Eleventh Circuits do not impose a standing requirement; the First and Ninth Circuits have equivocated, opining that the ‘fulfillment of Rule 24(a)’s interest requirement typically will satisfy standing requirements as well; Seventh Circuit judges have taken a variety of positions but seem to lean toward a standing requirement or at least toward the equivocation described above; finally, while the Third, Fourth, and Tenth Circuits have not squarely addressed the issue, there are indications that the former leans toward a standing requirement and the latter two against.

    Followed by:

    On one view, so long as the civil action as framed prior to the intervention constitutes an Article III case or controversy and otherwise is within the subject-matter jurisdiction of the federaldistrict courts, the intervenor need not have standing to sue but rather needs to satisfy only the requirements of Rule 24.

    So … the official proponents could be allowed to intervene if they met the requirements of Rule 24, *even if they did not have Article III standing*. But they can’t appeal without Article III standing.

    aphrael (24797a)

  130. Now the same sex couples sure had a beef with the State of California denying them marriage licenses and had standing to bring the lawsuit.

    Their beef was actually with the county clerks who denied them marriage licenses. The state itself was not a party to the suit. And they certainly alleged a concrete injury to their protectable legal interests caused by the county clerks. See Complaint in Perry v. Schwarzenegger, Paragraphs 32-22, at 7. However, nowhere in their original complaint did they allege specific concrete injuries, or threat thereof, by the other defendants. They only alleged a generalized duty to enforce Proposition 8.

    The district court had jurisdiction to decide the issues of law. But the issue of remedy is another matter. Plaintiffs did not allege a concrete injury caused by the other defendants. Therefore, they were not proper parties in this suit, and the district court lacked jurisdiction to enjoin them. See Ex Parte Young (holding that the defendant being
    enjoined “must have some connection with the enforcement of the
    [allegedly unconstitutional] act.”) 209 U.S. 123 at 157, and Los
    Angeles County Bar Association v. Eu
    (holding that the enjoined
    defendants’ “connection must be fairly direct; a generalized duty to
    enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an
    official to suit.
    ”) , 979 F.2d 697 at 704 (9th Cir. 1992)

    What would happen, as a practical matter, if proponents are found to lack standing, is that plaintiffs’ marriages would be subject to collateral attack by non-litigants. The district court judgment binds only the litigants. As such, if plaintiffs get into a legal dispute with non-litigants and make a legal argument that their marriages entitle them to a particular court judgment, non-litigants can argue that the marriages are void due to Proposition 8, which was not struck down with respect to the non-litigants.

    The argument on the other side is that for technical reasons California can’t delegate its authority in that way, and since nobody to whom California *can* delegate its authority is willing to appeal on behalf of California, there’s no controversy to be decided.

    Is there a California state law preventing it from delegating its authority this way?

    The best legal argument comeback to that, as far as I can tell, is that only an agent can represent California in this way, and the official proponents cannot be agents of California because they’re not under California’s control.

    And the comeback to that is that state law determines what an agent is, the authority and duties of the agent. In any event, being residents of California, they are most certainly under California’s control via its laws.

    Michael Ejercito (2e0217)

  131. Walker asked the Kali Supreme court to decide whether the prop 8 defenders could have the authority delegated to them to defend prop 8

    Walker didn’t ask that.

    The 9th circuit panel certified the question to the California Supreme Court, after they’d taken the appeal, when they were trying to figure out the standing question.

    I *completely agree* with both the California Supreme Court’s decision on California law, and with the Ninth Circuit’s standing opinion based on it.

    However, i’m trying to fairly characterize the argument on the other side. :)

    As far as I can figure out, the argument is that while the California Supreme Court is right (and has final authority about) on the question of whether California has delegated *its* authority, the California Supreme Court’s decision is not the final word.

    You still have to answer the question, are there *federal constitutional limits* on how the state can delegate its authority *to act in federal courts*?

    See, for example, this snippet from yesterday’s oral argument:

    CHIEF JUSTICE ROBERTS: Okay. That — that may be true in terms of who they want to represent, but — but a State can’t authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring — who has standing to bring claims up to each State. And I don’t think we’ve ever allowed anything like that.

    My concern with this is that I don’t see anything in the text of the Constitution which restricts who a State can authorize to proceed in federal court, so it seems to me that a state can authorize anyone.

    But the argument on the other side is that that way lays chaos – if California can choose to authorize *anyone* to proceed in federal court, then a whole host of traditional federal law standing doctrines fail. Nobody on the court is really comfortable with that.

    So there’s a search for a middle ground:

    JUSTICE SOTOMAYOR: At least one of the amici have suggested that it seems counterintuitive to think that the State is going to delegate to people who don’t have a fiduciary duty to them, that it’s going to delegate the responsibility of representing the State to individuals who have their own views. They proposed the ballot initiative because it was their individual views, not necessarily that of the State. So -­

    That’s an interesting and possibly workable compromise. I don’t *like* it, because I think it risks eviscerating the initiative system, but at least it’s a rational place to draw the line, and if there’s going to be a line, I’d rather it be attached to some rational basis. :)

    aphrael (24797a)

  132. aphrael, California law per the California Supreme Court establishes the proponents who had standing to defend the proposition against the challenge.

    They are the official state representatives. The named officials do not have the legal authority to veto the initiative and thus violate state law by either refusing to defend a ballot initiative in the court of first initiative or by refusing to appeal it.

    The case Walker cites explicitly ruled that federal courts don’t have the authority to determine who the state may designate as its agents. That’s a matter of state law.

    The prop 8 plaintiffs have already argued Kali can’t designate the initiative proponents as its agents, but the Kali Supremes have already decided that the law does exactly that. It’s been settled, no matter how much the plaintiffs in this case want to relitigate the question in federal courts which don’t have any jurisdiction in the matter of state law.

    Steve57 (be3310)

  133. my point is the tax code isn’t changing its biases anytime soon

    doma was written with the tax code in mind, among other things

    happyfeet (8ce051)

  134. Michael E – For federal law purposes, the California Supreme Court’s interpretation of state law is final. The California Supreme Court says California law provides such a delegation of authority.

    The question is entirely whether there is some *federal* restriction on who a state can authorize to proceed in federal court.

    aphrael (24797a)

  135. Steve, at 132:

    nobody is relitigating whether California has delegated the authority to the official proponents. The California Supreme Court’s decision decided that matter.

    what they *are* litigating is whether, under federal law, there are limits on how and to whom California can delegate its authority *to bring a federal case*.

    these are entirely different questions.

    I happen to believe there are no such limits. But the Chief Justice appears to disagree with me.

    aphrael (24797a)

  136. aphrael, if state officials can veto an initiative that has been approved by the majority of voters the it’s the state officials who are deciding the case based upon their own individual views.

    The California Supreme Court didn’t rule that the law says “just anyone” are designated the agents of the state. Just that in the case of ballot initiatives the proponents of the initiative that prevailed are designated state agents. They’re representing the voters when a few state officials decide their couple of dozen votes should trump the electorate.

    Steve57 (be3310)

  137. Justice Scalia:

    It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel, which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged constitutionality has to do with presidential powers. When the presidential powers are involved, he’s the lawyer for the President. So he can say, “We think the statute’s unconstitutional, I won’t defend it.” The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I’m wondering if we’re living in this new world where the Attorney General can simply decide, “Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” If we’re in this new world, I don’t want these cases like this to come before this Court all the time. And I think they will come all the time if that’s the new regime in the Justice Department that we’re dealing with.

    SPQR (768505)

  138. I’m pointing out the California Supreme Court established limits:

    …when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative … are the most obvious and logical persons to assert the state’s interest in the initiative’s validity on behalf of the voters who enacted the measure, we conclude that California law authorize the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiatives validity and to appeal a judgment invaliding the measure.

    Steve57 (be3310)

  139. Steve: again, i’m not disagreeing; i’m trying to characterize the arguments being made on the other side.

    I think the issue is that the federal judiciary wants a rule that they can apply to determine *who* a state can delegate its authority to. It’s difficult to base that rule in the nature of the initiative system, because there’s no basis in federal constitutional or common law for such a distinction. So they’re casting around for some other rule to use … because if there *is* no rule, then they can’t avoid the “just anyone” hypothetical nightmare.

    The advantage of the agency rule is that the rules of agency are very well established in the common law. The disadvantage is that it would rule out the official proponents … which would potentially eviscerate the initiative system.

    ——-

    I’ve said before that I’d rather have Prop 8 be sustained on the merits than have that case tossed on standing grounds. That said, my strong impression from the oral arguments yesterday is that the most likely outcome is for the case to be tossed on standing grounds, and I’m … displeased. But I can see the logic in it and I understand the problem that Roberts appears to be trying to avoid; I just value the harm to the initiative system more highly than the harm he’s concerned about.

    aphrael (24797a)

  140. SPQR: that’s from the BLAG/DOMA case, which I don’t think is particularly useful in a discussion of the standing issues in the Prop 8 case. The official proponents of Prop 8 and BLAG are really situated quite differently.

    aphrael (24797a)

  141. Steve57 – sure, California established limits.

    But if the federal courts rely on California’s limits, they’re basically saying that *for federal law purposes*, whatever limits the state imposes are fine.

    Which is a problem if you want to avoid the “just anybody” situation; then there’s no principled line you can draw between California (whose limits you accepted because the state’s limits are the ones you use) and hypothetical-state (whose limits you don’t want to accept even though the state’s limits are the ones you use).

    The federal courts need a set of limits on state delegation of appeal authority which are grounded in either federal constitutional or common law, and which can be applied without reference to the limits the states choose to impose … unless the federal courts are willing to just accept anything the states say are good enough.

    I think the right solution is to say that, as a matter of state sovereignty, a state can delegate its appeal rights to anyone it wants to.

    aphrael (24797a)

  142. Yep, aphrael, but I think it illustrates that at least Scalia is thinking about the implications of gamesmanship on the issue in general.

    SPQR (768505)

  143. So the federal government can force people to buy health insurance, and also override states’ own policies on healthcare, but that same federal government can’t tell two guys or two girls they don’t have a right to kiss and get married? If there is a fine, esoteric point that illustrates a distinction between the two, then, as far as I’m concerned, that’s a distinction without a difference.

    I recall debating several years ago with someone who mentioned that the US, its Supreme Court and Constitution were somehow more powerful than anything else, or had more bearing than the liberal, centrist or conservative biases of people of this society. That person was coming at the argument from a left-leaning standpoint and attempting to downplay my emphasis on how crucial it was to know the ideological leanings of, for example, Supreme Court justices. He felt it was somehow improper or undignified to focus on the degree of leftist or rightist sentiments in prospective judges.

    In this era of dumbed-down standards and GLBT, of things like Sharia Law or Nidal Hasan/Fort Hood waiting in the wings, of Greece/Mexico/France/Argentina Syndrome and how that regrettably transcends international borders, I realize that, if anything, knowing fully the political leanings of people is even more important — far more influential — than I gave it credit for several years ago.

    Mark (c480bd)

  144. aphrael, this is going to be a huge mess if the SCOTUS tosses DOMA on standing grounds because it infringes on the states’ power to define marriage and tosses prop 8 on standing grounds because state law isn’t allowed to determine who it may authorize to act on the state’s behalf.

    JUSTICE SOTOMAYOR: At least one of the amici have suggested that it seems counterintuitive to think that the State is going to delegate to people who don’t have a fiduciary duty to them, that it’s going to delegate the responsibility of representing the State to individuals who have their own views. They proposed the ballot initiative because it was their individual views, not necessarily that of the State. So -­

    This is why I’m saying the prop 8 opponents are relitigating the issue of who may defend the validity of a ballot initiative.

    I mean, really, can Justice Sotomeyer and four like minded justices rule it’s “counterintuitive” that the Kali Supreme Court ruled the way it did?

    In any case, the proponents of prop 8 may have proposed the ballot initiative because of their personal views on the matter, but they are now defending the decision of the majority of the electorate and not their personal views. It’s the state officials who are trying to undo the results of a legal process which exists entirely for the purpose of ensuring that state officials can’t impose their personal views on the electorate.

    Essentially, the SCOTUS is on the verge of making a hash of things and demonstrating that the concept of federalism is an argument of convenience which they apply subjectively when it suits them.

    Steve57 (be3310)

  145. > demonstrating that the concept of federalism is an argument of convenience which they apply subjectively when it suits them.

    Honestly, they’ve been demonstrating that for years.

    All we lawyers can do is try and find a theory of consistency in the doctrines. It’s very, very frustrating sometimes.

    aphrael (24797a)

  146. one final nitpick before i crawl into bed.

    > if the SCOTUS tosses DOMA on standing grounds because it infringes on the states’ power to define marriage

    that’s conflating two arguments:

    (1) the standing argument is that, for seperate reasons, neither DOJ nor BLAG have standing to appeal the district court decision. DOJ doesn’t have standing, in that theory, because it agrees with the district court so there’s no controversy; BLAG doesn’t have standing for various reasons (either because Congress can never have standing in this kind of situation, because BLAG only represents one house and not both, or because BLAG had no legal authorization to intervene until January 5 2013, and the authority can’t be granted retroactively; all three theries are in play).

    (2) i have to admit i don’t fully grok the federalism argument because the briefs i read focus on the equal protection argument and it’s hard to discern the main thrust of the federalism argument from yesterday’s questioning, but my sense is that it boils down to something along the lines of “the feds have always simply imported the state definition of marriage, and when they suddenly changed to use a definition which wasn’t just importing the state definition of marriage, they needed a really good reason for adopting the specific provisions of the new definition and they don’t have it” or something along the lines of “by not simply using the state definition of marriage in these 1100 federal laws which use marriage as a criterion, they are undermining the state institutions of marriage”.

    It’s interesting to note the similarity between the first of these two arguments and what I perceive as the underlying fear in the prop 8 standing case — the attempt to stop simply blindly using the state definition of marriage is being attacked on federalism grounds, and the fear is that a *future* attempt to stop simply blindly using the state decision on who is an acceptable delegate *will* be attacked on federalism grounds.

    Anyhow, my point here is that standing and infringing state power are two seperate arguments, not one argument.

    aphrael (24797a)

  147. I have not been paying that much attention to the DOMA arguments since I am still trying to recover emotionally from the devastating news that Puffy Face will not be running for Senator from Kentucky in 2014.

    daleyrocks (bf33e9)

  148. 141. Steve57 – sure, California established limits.

    But if the federal courts rely on California’s limits, they’re basically saying that *for federal law purposes*, whatever limits the state imposes are fine.

    …I think the right solution is to say that, as a matter of state sovereignty, a state can delegate its appeal rights to anyone it wants to.

    Comment by aphrael (24797a) — 3/27/2013 @ 9:55 pm

    aphrael, oddly enough I’m not disagreeing with you.

    I agree as a matter of state sovereignty the state can delegate its powers to defend and appeal challenges to its laws (whether established by the normal legislative process, ballot initiative, or referendum) to whomever it wants.

    I just find it odd that the justices are asking these questions as if they’re dealing with a hypothetical rather than dealing instead with what the Kali Supreme Court actually did. It isn’t that I agree with the limits the California Supreme Court established in this case because these are the limits I wish to use whereas I wouldn’t approve of different limits if I didn’t want to use them. I find it odd they’re entertaining issue raised in amici briefs that don’t have anything to do with the case but rather with what some other state may do.

    But again, I agree that as a matter of state sovereignty it isn’t up to the SCOTUS to pass judgement on whether or not the state acted wisely when it delegates its authority to represent the state interest in federal court. Just that states do have that power and it’s not a matter a matter for federal review. If the states later decide they didn’t act wisely when they delegated that authority then it’s up to them to fix the problems or live with the consequences. Not the SCOTUS.

    Steve57 (be3310)

  149. But the argument on the other side is that that way lays chaos – if California can choose to authorize *anyone* to proceed in federal court, then a whole host of traditional federal law standing doctrines fail. Nobody on the court is really comfortable with that.

    How so?

    Those suing on behalf of the state in federal court must still seek relief from a concrete injury to a particularized legal interest of the state, or they lack standing. California does not decide what constitutes a concrete injury or a particularized legal interest for Article III standing purposes.

    Thus, Prop 8 proponents would not have had standing to appeal the DOMA cases unless they can show that the judgment striking down DOMA caused, or threatens to cause, a concrete injury to the state’s interest in enforcing Proposition 8.

    I think the issue is that the federal judiciary wants a rule that they can apply to determine *who* a state can delegate its authority to. It’s difficult to base that rule in the nature of the initiative system, because there’s no basis in federal constitutional or common law for such a distinction. So they’re casting around for some other rule to use … because if there *is* no rule, then they can’t avoid the “just anyone” hypothetical nightmare.

    Thsi would open a can of worms beyond the initiative process.

    Edith Windsor, the plaintiff in the DOMA case, is suing not in her personal capacity, but that of the estate of Thea Spyer. Her duties as an executor are determined by New York state law.

    The litigants, district court, and Second Circuit all agreed she had standing. But if federal courts can limit whom states can delegate authority to represent its interests, why could it not do the same with respect to private individuals. Could the Supreme Court say to Windsor, “We don’t care that New York law gives you full power to litigate the interests of the estate. Your state law does not meet our standards, you lack authority to represent the estate in our courts, and we dismiss your case for lack of standing.”

    It is one thing for federal courts to require an allegation of a concrete injury to a particular legal interest, and for those seeking to indicate the interests of others to demonstrate their authority. It is a whole other thing for federal courts to tell us that we can not authorize people to represent our protectable legal interests.

    We would be seriously limited in our ability to choose who may act on our behalf.

    Michael Ejercito (2e0217)

  150. They’ve been made aware in the Kali case.

    Concerning Arizona, they enacted SB 1210.

    Michael Ejercito (2e0217)

  151. DOMA is unconstitutional. Throw it out. Want the federal government to have the power to define what marriage is? Then, amend the Constitution to allow them to do so.

    Dave Surls (46b08c)

  152. 151. DOMA is unconstitutional. Throw it out. Want the federal government to have the power to define what marriage is? Then, amend the Constitution to allow them to do so.

    Comment by Dave Surls (46b08c) — 3/28/2013 @ 3:38 am

    So it’s your contention that it’s unconstitutional for the Department of State to define who is an Eligible Family Member who qualifies for a Family Member Appointment at a US diplomatic mission overseas?

    That’s flat ridiculous.

    Steve57 (be3310)

  153. Who has the authority to decide what the DoS must define as an EFM if not the federal government? The Massachusetts Supreme Court?

    Steve57 (be3310)

  154. DOMA is a tax. In order to receive credit from that tax, you must be in a heterosexual marriage. According to Roberts Obamacare ruling, this is completely consistent.

    NJRob (fe68e7)

  155. #96 OK, so that was my point but where in the Federal Constitution does the Feds have any control over its definition or benefits thereof?

    Equal Protection means just that equal so if marriage is defined as man/women then ….. they can change it at the ballot box and if not tough luck. Or better yet not define marriage at all and let it be whatever for whatever reasons. So long as they have a bona fide license, why is it anyone’s business.

    Anyway, I think the flaw in logic is to assume sexual orientation and “feelings of love” MUST BE synonymous with marriage. And that this Paradigm needs to be shoved down everyone’s throat via SCOTUS.

    Rodney King's Spirit (951136)

  156. #151 Heck I am all for no definition at all of marriage. If you have find an Officer of the Peace and he wants to marry a post op women to a post op man then go for it. She is he and he is she. Whatever.

    Rodney King's Spirit (951136)

  157. > Equal Protection means just that equal so if marriage is defined as man/women then

    See, that’s the crux of the argument.

    If marriage is defined as white man / white woman or black man / black woman, but not white man / black woman, it violates equal protection because the distinction is based on race, and any classification based on race must be narrowly tailored to meet a compelling state interest.

    The SSM-is-constitutional argument is: defining marriage as man / woman but not woman / woman is either a distinction based on sex or a distinction based on sexual orientation. Both such distinctions, the argument goes, require some level of heightened scrutiny.

    [It's clear from precedent that sex-based discrimination requires some level of heightened scrutiny. The Supreme Court has never said what the appropriate level of scrutiny is for classifications based on sexual orientation; the answer to that question is part of the current legal fight.Generally speaking people who think that classifications based on sexual orientation should be subject to heightened scrutiny believe that the equal protection clause mandates recognition of same sex marriage. Generally speaking people who think that classifications based on sexual orientation should get no heightened scrutiny and are simply subject to rational basis review believe that the equal protection clause does not mandate recognition of same sex marriage. As with all broad generalizations there are outliers. ]

    > So long as they have a bona fide license, why is it anyone’s business.

    The fight is over what rules a state can impose on who can get a bona fide license.

    aphrael (24797a)

  158. #157

    If marriage is defined as white man / white woman or black man / black woman, but not white man / black woman, it violates equal protection because the distinction is based on race, and any classification based on race must be narrowly tailored to meet a compelling state interest.

    I understand. And the 14th Amendment exists for that reason?.?.? But the point is marriage is not defined that way.

    “The fight is over what rules a state can impose on who can get a bona fide license.”

    That is my point. Why are they involved at all. Let freedom reign. If you can find a Justice of the Peace who thinks two goats and a guy can get married, go right ahead.

    My viewpoint is it either means something really important (marriage) and the State needs to protect it even at the expense of hurting some or it does not mean anything.

    But to sit around and say the definition changes as social fashions bob up and down in the water ….

    Rodney King's Spirit (951136)

  159. On the subject of Rico’s current post:

    http://www.volokh.com/2013/03/28/the-chief-justices-excellent-hypothetical-under-our-system-of-federalism-can-you-be-both-married-and-unmarried-at-the-same-time/

    Which, of course, doesn’t settle the problem of standing. The solution to strike down DOMA can hardly occur if the case must summarily be dismissed.

    gary gulrud (dd7d4e)

  160. I don’t see the inconsistency, that is alleged to the right.

    narciso (3fec35)

  161. I’m beginning to feel like Federal cases on Prop. 8 will be vacated and DOMA cases dismissed.

    gary gulrud (dd7d4e)

  162. MD in P, I wouldn’t even want to begin to guess about possible ramifications, beyond again noting my long-held concern that by their very success in courts, proponents of gay rights* deprive same-sex couples of the basic political legitimacy that would otherwise accompany society’s (and legislatures’) growing acceptance of them….
    Comment by Beldar (ff2834) — 3/27/2013 @ 2:09 pm

    Fair enough answer, given there is only so much time in a day and so many important things to do.

    While my philosophical/ethical views tend to be more deontological/ process based than utilitarian/ outcome based, there are two caveats to this:
    1) As a physician, even though one makes decisions based on basic principles of physiology, etc., clinical decisions are always based on “how to I get to the desired outcome”.
    2) I look at considering the consequences of a decision like “checking your answer” in math. If one did everything correctly, the answer should be correct, but if you works backwards and you find a consequence you don’t want to live with, maybe one needs to review the original process.
    - If this was done more often with adequate wisdom and intellectual honesty then I think the poison of unintended consequences could be avoided sometimes or at least minimized.

    The general principle is, “What harm could possibly be done by overturning 4,000 years of history, anyway”?

    MD in Philly (3d3f72)

  163. An example where thinking about the outcome and the consequences would have been helpful (or even observation after the fact before before the disaster):
    http://news.investors.com/ibd-editorials-perspective/122012-637924-faults-community-reinvestment-act-cra-mortgage-defaults.htm?p=full

    MD in Philly (3d3f72)

  164. A kid-glove treatment of Congress on DOMA:

    http://proteinwisdom.com/?p=48295

    gary gulrud (dd7d4e)

  165. “I understand. And the 14th Amendment exists for that reason?.?.? But the point is marriage is not defined that way.”

    Rodney – The 14th Amendment was a post-Civil War Amendment specifically designed to address slavery and reconstruction. I keep getting the sense that it has been stretched way beyond its original intent, much like the commerce clause, to justify popular nonsense of the day, but that’s just me.

    daleyrocks (bf33e9)

  166. 166. Agreed, and they’re won’t be 5 votes this time out to make the next leap.

    gary gulrud (dd7d4e)

  167. “So it’s your contention that it’s unconstitutional for the Department of State to define who is an Eligible Family Member who qualifies for a Family Member Appointment at a US diplomatic mission overseas?”

    No, it’s my contention that the federal government has no enumerated power that allows them to define what marriage is or isn’t. It’s none of their business, and DOMA is unconstitutional.

    Dave Surls (46b08c)

  168. >157. Equal Protection means just that equal so if marriage is defined as man/women then

    See, that’s the crux of the argument.

    If marriage is defined as white man / white woman or black man / black woman, but not white man / black woman, it violates equal protection because the distinction is based on race, and any classification based on race must be narrowly tailored to meet a compelling state interest.

    The SSM-is-constitutional argument is: defining marriage as man / woman but not woman / woman is either a distinction based on sex or a distinction based on sexual orientation. Both such distinctions, the argument goes, require some level of heightened scrutiny.

    Comment by aphrael (24797a) — 3/28/2013 @ 6:41 am

    It’s an argument completely without merit. In fact to make these argument first one must rewrite or deny history (as Judge Walker did up to and including falsifying the trial record). Even Justice Kennedy (Transcript, pp48-49):

    MR. Olson) And those issues that I’ve been describing are certainly fundamental to the case. And — and I don’t want to abuse the Court’s indulgence, that what I — you suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial — prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.
    JUSTICE KENNEDY: It was hundreds of years old in the common law countries. This was new to the United States.
    MR. OLSON: And — and what we have here -­
    JUSTICE KENNEDY: So — so that’s not accurate.

    For Olson to compare the laws concerning marriage to anti-miscegenation laws, he must distort history. Because as I’ve pointed out before, anti-miscegenation laws were never part of the common law which was hundreds of years old before the laws Olson is talking about were created. Regulating procreation and child-rearing was the central purpose of marriage and part of the common law, but banning interracial marriage was not and as Kennedy points out was new to the United States.

    Really, the anti-miscegenation laws were an attempt to redefine marriage. There never was a federal anti-miscegenation law, and those laws never existed at all times in all states.

    So Olson is being inaccurate, and I’d have to say deliberately so since he’s an intelligent man (and it isn’t the first time he’s distorted the record when discussing this case when he obviously knows better) when he says the SCOTUS was entering “uncharted” waters when it struck down anti-miscegenation laws. Even his own contradictory formulation of the sentence when he makes that preposterous claim shows it’s untrue:

    It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial — prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.

    First of all I don’t believe Ted Olson doesn’t know the history of anti-miscegenation laws in this country, but let’s assume ignorance. The fact that 34 states had already entered those and charted those waters as these laws only “still existed in 16 states” when they were struck down is, as far as I’m concerned, all the evidence you need to understand he knows perfectly well he’s making a false comparison. And Kennedy called him on it.

    Then to argue that our marriage laws are based upon a distinction based upon sex or sexual orientation is to rewrite history again. The historical record is clear; marriage laws were intended to regulate conduct. Specifically reproduction and child rearing. Nature discriminates on the basis of sex. Heterosexual couples can have children. Marriage laws were an attempt to regulate that conduct by channeling it into marriage. The consequences of conduct which will occur anyway whether marriage existed or not were recognized as socially destructive unless regulated.

    This is why Olson’s argument that banning SSM is unconstitutional but banning polygamy isn’t is another empty assertion based upon a distortion of history (pp46-47):

    MR Olson: Well, you’ve said — you’ve said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it’s prohibiting conduct.

    If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It’s selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you’re picking out a group of individuals to deny them the freedom that you’ve said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case.

    There is not a single question raised by the polygamy issue that isn’t raised simply because heterosexual behavior results in procreation and consequently children to raise. Marriage laws were always attempts to regulate conduct because men and women can have de facto polygamy and multiple partners in any case with all the same results as if polygamy were legal. Which is why society attempted to regulate that conduct by channeling it into marriage and by banning other types of conduct such as adultery and fornication outside of marriage.

    Frankly, it’s absurd for Olson to claim laws recognizing only same sex marriage means gays and lesbians are being denied a fundamental right based upon status because it’s only in the last few decades that such a status has even been asserted. Homosexuality as an “orientation” never existed as a social concept.

    Certainly the founding fathers were aware of homosexual acts as the Articles of War the Continental Army made them court martial offenses. But the Articles of War (which was in force until after WWII when the UCMJ was adopted) never banned homosexuals from serving based upon “status” because the idea that there was such a status never would have occurred to them. Like marriage laws the Articles of War only ever attempted to regulate conduct because that’s the only way for most of our history people could have even thought about it.

    Steve57 (be3310)

  169. *Even Justice Kennedy knows that*

    Steve57 (be3310)

  170. There is not a single question raised by the polygamy issue that isn’t raised simply because heterosexual behavior results in procreation and consequently children to raise.

    I should also point out that the issues of abuse and exploitation aren’t unique to polygamy but occur in every conceivable form of human relationship. In that sense polygamy is not an entirely different thing as Olson asserts.

    Steve57 (be3310)

  171. Folks, meet ChadP aka Lars. Aka beerandcoffee

    FYI – the following names are associated with the IPs that Lars and beerandcoffee have utilized, and there are undoubtedly more.

    In no particular order …

    Imdw

    Comment by JD (b63a52) — 3/27/2013 @ 6:47 pm

    Imdw? Holy carp.

    carlitos (49ef9f)

  172. 168. “So it’s your contention that it’s unconstitutional for the Department of State to define who is an Eligible Family Member who qualifies for a Family Member Appointment at a US diplomatic mission overseas?”

    No, it’s my contention that the federal government has no enumerated power that allows them to define what marriage is or isn’t. It’s none of their business, and DOMA is unconstitutional.

    Comment by Dave Surls (46b08c) — 3/28/2013 @ 11:25 am

    For federal agencies to know who will be recognized as a spouse the feds must define marriage. It has never been unconstitutional for the federal government to define marriage for such purposes precisely because that is their business.

    Don’t you recognize the absurdity of saying the feds can have a definition of “Eligible Family Member” but not a definition of who is and isn’t a spouse? And that you can’t have a federal definition of spouse without a definition of marriage.

    It really doesn’t matter; the justices have already recognize the absurdity of your argument (DOMA transcript pp76-77).

    MR. CLEMENT: And it doesn’t have the authority to regulate marriages, as such, but that’s not what DOMA does. DOMA provides certain — DOMA defines a term as it appears in Federal statutes, many of those Federal statutes provide benefits. Some of those Federal statutes provide burdens. Some of those Federal statutes provide disclosure obligations. It appears in lots of places, and if any one of -­
    JUSTICE ALITO: Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term “married” from the United States Code
    and replacing it with something more neutral. It could have said “certified domestic units,” and then defined this in exactly the way that Section 3 — exactly the way DOMA defines “marriage.” Would that make a difference? In that instance, the Federal Government wouldn’t be purporting to say who is married and who is not married; it would be saying who is entitled to various Federal benefits
    and burdens based on a Federal definition.
    MR. CLEMENT: That would make no difference, Justice Alito. It does — the hypothetical helpfully demonstrates, though, that when the Federal Government is defining this term as it appears in the Federal Code, it is not regulating marriage as such. And it is important to recognize that people that are married in
    their State, based on either the legislative acts or by judicial recognition, remain married for purposes of State law.

    And again:

    GENERAL VERRILLI: What Section 3 does is exclude from an array of Federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.

    CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say “marriage” in Federal law, we mean committed same-sex Couples as well, and that could apply across the board.
    Or do you think that they couldn’t do that?
    GENERAL VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.
    CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn’t — you don’t think it would raise a federalism problem either, do you?
    GENERAL VERRILLI: I don’t think it would raise a federalism problem.
    CHIEF JUSTICE ROBERTS: Okay.

    It’s absurd to argue that the federal government has no enumerated power that allows it to define marriage when SG Verrilli’s opening statements bring up one such enumerated power. Article I Section 8: “To make Rules for the Government and Regulation of the land and naval Forces.”

    DoD must have a definition of terms like “marriage,” “dependent,” and “spouse” so the land and sea services can write regulations from everything concerning who is authorized to be issued an ID card to how to determine child support payments when no court order has been made. And when the services must and when they are prohibited from imposing child support obligations (they can’t take the child support payments if the location or welfare of the child is unknown or if the former spouse doesn’t have physical custody of the child).

    Steve57 (be3310)

  173. The general principle is, “What harm could possibly be done by overturning 4,000 years of history, anyway”?

    Comment by MD in Philly (3d3f72) — 3/28/2013 @ 9:26 am

    MD, I’m not picking on you. Several over the folks here have talked about “thousands of years of history” on marriage in the past few days; yours was just illustrative and convenient.

    It’s true that Christianity co-opted (embraced?) the Greco-Roman concept of monogamy. Obviously, this concept did not include male Romans having sexual relations with prostitutes or slaves, which were just fine. Are you aware that emperor Nero married Pythagorus? I think that most same-sex unions back then involved some sniggering etc., but still, it was happening even back then.

    I think that there were some same-sex unions in France (enfrerement) and in China too.

    (not that I’m looking to Nero for a moral compass, just curious)

    carlitos (49ef9f)

  174. No, it’s my contention that the federal government has no enumerated power that allows them to define what marriage is or isn’t. It’s none of their business, and DOMA is unconstitutional.
    Comment by Dave Surls (46b08c) — 3/28/2013 @ 11:25 am

    – It’s a good thing for DOMA, then, that it does not define what marriage is at all.

    Icy (12c6ee)

  175. Yeah well, the problem with the “federalism grounds” argument is that it’s total bullsh*t. DOMA does not order, compel or force the states to do (or not do) anything.

    Icy (12c6ee)

  176. Carlitos-
    There may have been all sorts of sexual behavior that was seen in society as permitted in various circumstances, especially in the context of slavery, autocratic rulers, and temple prostitution, etc., but my limited knowledge of the practices at the time includes the quote about things one does for pleasure vs the things one does as a responsible member of society in the raising of children. In such a limited context, it seems even those who favored the practice of homosexuality did not see it as an equivalent of the institution of marriage.

    I did not know about Nero’s personal relationships, but as you acknowledge, neither do I care, nor as to which tune it was he was playing on his fiddle.

    MD in Philly (3d3f72)

  177. Thanks MD.

    The fiddle tune was no doubt “Orange Blossom Special.”

    carlitos (49ef9f)

  178. Possibly, carlitos. at least it would have been a good choice.

    MD in Philly (3d3f72)

  179. I should also point out that the issues of abuse and exploitation aren’t unique to polygamy but occur in every conceivable form of human relationship.

    Under rational basis, these concerns are sufficient to reject a constitutional challenge to anti-polygamy laws. It matters not that monogamy can also involve abuse. It matters not that the state does nor require evidence or even allegation of abuse to prohibit a particular polygamous union. It matters not whether there is evidence that polygamy is more abusive than monogamy. See FCC v. Beach Communications, 508 U.S. 307 at 315 (1993)

    All that matters under this level of scrutiny is that a lawmaker can reasonably believe that polygamy involves abuse more often than monogamy does, and banning polygamy would serve this interest to a greater degree than banning monogamy.

    Under strict scrutiny, the fact that the state does nor require evidence or even allegation of abuse to prohibit a particular polygamous union would be sufficient to hold that concerns about abuse are insufficient to justify anti-polygamy laws.

    If lawmakers can reasonably believe that homosexual relationships are more abusive than normal relationships, does banning SSM pass rational basis?

    Michael Ejercito (e545b1)

  180. “The general principle is, “What harm could possibly be done by overturning 4,000 years of history, anyway”?”

    MD in Philly – What did the public opinion polls say 4,000 years ago? That’s what I want to know. Just like AGW, we are on the blade of the hockey stick.

    daleyrocks (bf33e9)

  181. 174. It’s true that Christianity co-opted (embraced?) the Greco-Roman concept of monogamy. Obviously, this concept did not include male Romans having sexual relations with prostitutes or slaves, which were just fine. Are you aware that emperor Nero married Pythagorus? I think that most same-sex unions back then involved some sniggering etc., but still, it was happening even back then.

    I think that there were some same-sex unions in France (enfrerement) and in China too.

    (not that I’m looking to Nero for a moral compass, just curious)

    Comment by carlitos (49ef9f) — 3/28/2013 @ 12:41 pm

    carlitos, whatever Nero may have done it wasn’t legal under Roman law. No one else could have gotten away with it.

    The Julian marriage laws (nos. 120-123, etc.)

    In 18 B.C., the Emperor Augustus turned his attention to social problems at Rome. Extravagance and adultery were widespread. Among the upper classes, marriage was increasingly infrequent and, many couples who did marry failed to produce offspring. Augustus, who hoped thereby to elevate both the morals and the numbers of the upper classes in Rome, and to increase the population of native Italians in Italy, enacted laws to encourage marriage and having children (lex Julia de maritandis ordinibus), including provisions establishing adultery as a crime.

    …120. Men must marry. Rome, 131 B.C. (fr. 6 Malcovati. L)

    Speech of the censor Quintus Caecilius Metellus Macedonicus [16] about the law requiring men to marry in order to produce children. According to Livy (Per. 59), in 17 B.C. Augustus read out this speech, which seemed “written for the hour”, in the Senate in support of his own legislation encouraging marriage and childbearing (see no. 121).

    “If we could survive without a wife, citizens of Rome, all of us would do without that nuisance; but since nature has so decreed that we cannot manage comfortably with them, nor live in any way without them, [17] we must plan for our lasting preservation rather than for our temporary pleasure.

    121. Prizes for marriage and having children. Rome, 1st cent. A.D. (Dio Cassius, History of Rome 54.16.1-1. Early 3rd cent. A.D. G)

    [Augustus] assessed heavier taxes on unmarried men and women without husbands, and by contrast offered awards for marriage and childbearing. And since there were more males than females among the nobility, he permitted anyone who wished (except for senators) to marry freedwomen, and decreed that children of such marriages be legitimate.

    Men and women had to marry by a certain age in order to be legally permitted to inherit. The ages were different for men and women, but they had to marry while they were still of what the Romans considered child producing age.

    Western civilization’s understanding of marriage is that its central purpose is procreation.

    The Greeks and the Romans didn’t think marriage limited a man’s sexual options. Prostitution was just fine. They had different rules about whether or not you could have sex with slaves depending on time (and in Greece place). Concubinage was legal; it was a contractual arrangement and while the man was obligated to support any children they weren’t recognized as legal heirs.

    Adultery was defined as a woman having sex outside of marriage or a man having sex with a married woman.

    You can’t really say the Christians adopted the Greco-Roman concept of monogamy because (after they figured out the Second Coming might be a while off) when they did wholeheartedly endorse marriage they applied the same rules of adultery to men as the ancients only applied to women.

    But no matter how much perceptions about how many women could be involved or what the spouses owed each other in terms of fidelity one thing never changed. The central purpose of marriage was to have and raise children.

    Steve57 (be3310)

  182. i might marry some guy too if he had a really big theorem

    happyfeet (4bf7c2)

  183. “It’s absurd to argue that the federal government has no enumerated power that allows it to define marriage…”

    No, it’s absurd to argue that there is an enumerated power to do so, unless you can point to where in the Constitution that power has been delegated to the federal government.

    Which I doubt that you can.

    “It’s a good thing for DOMA, then, that it does not define what marriage is at all.”

    Better take that one up with the Congress…

    “Public Law 104-199″

    “104th Congress”

    “An Act To define and protect the institution of marriage.”

    Dave Surls (46b08c)

  184. To whom it may concern, everyone in MN now figures the SSM law in committee is going to pass thru with flying colors.

    gary gulrud (dd7d4e)

  185. 174. “It’s true that Christianity co-opted (embraced?) the Greco-Roman concept of monogamy”?!

    Sick ‘em narciso before I get my scalp up(dander is too understated in this case).

    gary gulrud (dd7d4e)

  186. :| :?:

    carlitos (49ef9f)

  187. Well Saul of Tarsus, wouldn’t have to preach on it, in Romans otherwise.

    narciso (3fec35)

  188. Michael @180, I don’t see how lawmakers could have a rational basis to believe something if there’s no evidence to support it.

    In fact that’s what Judge Walker said when he falsely claimed there was no evidence to support the notion that procreation and child rearing was every central to the definition of marriage, and indeed the prop 8 proponents had said “you don’t have to have evidence of this point.”

    In fact throughout his decision he inserts such statements as:

    Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriagelicense is more than a license to have procreative sexualintercourse.

    As if the fact that the state doesn’t inquire into each couple’s ability or willingness to procreate is evidence that procreation was never the central purpose of marriage or the state’s legitimate interest in marriage.

    But then he goes on to say things like:

    34. Marriage is the state recognition and approval of a couple’schoice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents. Tr 187:11-16; 188:16-189:2; 201:9-14 (Cott).

    And:

    48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.

    The curious thing is that if the fact the state doesn’t inquire into each couple’s actual ability and willingness to procreate means procreation is a characteristic of marriage, then how can Walker claim that all these other items the state also doesn’t inquire into, for each couple, in terms of actual ability and willingness be characteristics of marriage? And determine the state’s legitimate interest in marriage?

    Does the state try to determine if a couple seeking to get married really intends to remain committed to one another? Whether they actually have feelings toward one another? Whether they actually can and will financially support one another? In 19th century Germany a man had to prove to the state he had the financial wherewithal to get married before he could legally married, but here we don’t actually try to find out nor do we do dowries/bride prices.

    I’d have to say that since we don’t inquire into whether or not each and every engaged couple has or intends to have a “happy, satisfying relationship,” intends to form “deep emotional bonds,” and a “strong commitment” then actually finding out if the relationship will be abusive or exploitive isn’t really the state’s concern. So shouldn’t the same standard should apply to polyamourous relationships?

    They clearly can have some of the characteristics of any other marriage. And if they statistically have less of a chance of having some characteristic that we currently attribute to marriage or defines the state interest in marriage, Judge Walker has provided the rationale for concluding it really isn’t a characteristic of marriage or a legitimate state interest.

    The state doesn’t inquire into each and every individual’s ability and willingness to actually do it.

    After all, marriage is a fundamental right. I don’t see how you can deny it to people who want to state to recognize their multiple partnering any more than you can deny it to people who merely want the state to recognize their coupling.

    41. The tangible and intangible benefits of marriage flow to a married couple’s children.

    56. The children of same-sex couples benefit when their parents can marry.

    Aren’t the children of cohabiting polyamorous relationships harmed when society denies their parents the use of the term marriage? Wouldn’t the same tangible and intangible benefits flow to them in just as much quantity as to any other child when their parents can marry?

    I really don’t know what level of scrutiny a reasonable judge would believe is appropriate. I just know what an activist judge did. Based upon his decision and the level of scrutiny he thought should be applied to determine not only what the state’s legitimate interest in marriage is but the level of scrutiny that needs to be applied to each and every couple to see if that marriage will conform to the state’s interest, there is nothing in Walker’s decision that would prevent a court from finding a constitutional requirement that the “fundamental right to marry” extends to polyamorous marriages as well.

    Steve57 (be3310)

  189. *…means procreation isn’t a characteristic of marriage…*

    Steve57 (be3310)

  190. Better take that one up with the Congress…
    “Public Law 104-199″
    “104th Congress”
    “An Act To define and protect the institution of marriage.”
    Comment by Dave Surls (46b08c) — 3/28/2013 @ 2:08 pm

    – It defines what constitutes a legal marriage in any of the 50 states, does it?

    NO basis for overturning it on federalism grounds.

    Icy (12c6ee)

  191. MD in Philly – What did the public opinion polls say 4,000 years ago? That’s what I want to know.
    Comment by daleyrocks (bf33e9) — 3/28/2013 @ 1:33 pm

    Pharaoh was favored 2:1, but the smart money was on this runaway guy come back named Moses.

    MD in Philly (3d3f72)

  192. You still have to answer the question, are there *federal constitutional limits* on how the state can delegate its authority *to act in federal courts*?

    Let us assume arguendo that Congress could restrict how states can delegate authority to act in federal courts, including prohibiting states from authorizing initiative proponents to defedn their initiatives.

    Under current law, they did not. None of the briefs arguing against jurisdiction cited a statute that purpoted to restrict the manner in which states authorize persons to defend their interests in federal court. Congress’s inaction on that issue should be interpreted to mean that there are no such limits on states.

    Michael Ejercito (2e0217)

  193. 187. Carlitos, Hebrew polygamy was a legacy of their Aramaic nomadic past. Their entire upper echelon were dragged into captivity to Babylon c. 590 BC. What remained was entirely an agrarian culture.

    Alexander the Great died 323. Nazareth was a mornings hike outside Sepphoris, a Greek city of 50K, home city of one of the Herods.

    Monogamy was long the norm by Christ’s time, especially the poor folk. Your snippet of history is anachronistic.

    gary gulrud (dd7d4e)

  194. “It defines what constitutes a legal marriage in any of the 50 states, does it?”

    They don’t get to define what marriage is…period. They have no enumerated power to do so…period. Not their business. DOMA is unconstitutional.

    Dave Surls (46b08c)

  195. Great Dave. The power “To make Rules for the Government and Regulation of the land and naval Forces” per Article I Section 8 of the Constitution doesn’t mean the feds can define what marriage is for pay and benefits purposes?

    Gee, Dave, it’s sort of implied. The Constitution doesn’t place limits on what the Congress may do to regulate and govern the land and sea forces.

    But if you’re right, it’s actually only implied they have to power pay servicemembers at all. Congress has the power to ” raise and support Armies” and “provide and maintain a Navy” but nowhere does it say it actually has the power to pay the soldiers and sailors.

    Perhaps room, board, and then rules of plunder is within their power? Lots of armies and navies have been “supported” and “maintained” without salaries. And since nowhere in the Constitution will you find an enumerated power to actually pay, well then.

    I totally see your point.

    Just kidding. No one sees your point. Your point, that “[t]hey don’t get to define what marriage is…period,” has already been laughed out of court.

    The bus has left the station; even the anti-DOMA side is arguing over what the federal definition of marriage should be. Not that there shouldn’t be a federal definition.

    Steve57 (be3310)

  196. That brings us to the Air Force. There is no enumerated power that gives the feds the authority to have an Air Force.

    Steve57 (be3310)

  197. you’ll never say hello to you until you get it on the red line overload is my understanding

    happyfeet (8ce051)

  198. The tenth amendment seems pretty easy to understand to me. If the feds have an enumerated power to define what marriage is…show it to me in the Constitution.

    I ain’t holding my breath waiting.

    Dave Surls (46b08c)

  199. And, I agree that we ought to amend Article I, Section 8 and add in:

    To provide and maintain an Air Force;

    Dave Surls (46b08c)

  200. 200. And, I agree that we ought to amend Article I, Section 8 and add in:

    To provide and maintain an Air Force;

    Comment by Dave Surls (46b08c) — 3/28/2013 @ 10:03 pm

    So then the feds shouldn’t be paying servicemembers at all, let alone defining marriage for pay and benefits purposes, until we put the exact words in the Constitution that say providing and maintaining land and sea forces includes actually paying sailors and soldiers a wage?

    Steve57 (be3310)

  201. it all falls under provide for the common defense, when we get back into space, there will be space force, of some kind, like the Moonraker fleet.

    narciso (3fec35)

  202. “To raise and support Armies…”

    I reckon that gives them an enumerated power to pay the troops (amongst other things). Probably a good idea unless they can induce people to serve in the army for free.

    Doesn’t have anything to do with an imaginary federal power to define what marriage is.

    Dave Surls (46b08c)

  203. 203. “To raise and support Armies…”

    I reckon that gives them an enumerated power to pay the troops (amongst other things). Probably a good idea unless they can induce people to serve in the army for free.

    Don’t be silly. Just because you’re not paying them doesn’t mean they’re serving for free. It’s a matter of historical fact that lots will serve without pay just for the chance to sack and loot a rich city.

    Doesn’t have anything to do with an imaginary federal power to define what marriage is.

    Comment by Dave Surls (46b08c) — 3/28/2013 @ 10:27 pm

    What dictionary are you using? “Support” doesn’t mean defining whose significant other gets an ID card and can shop at the base commissary or exchange? “Support” only means the servicemember can get treated in a military medical facility, because the feds have no authority to define which significant others might also qualify for treatment?

    Steve57 (be3310)

  204. 157. My dilettante impression of Roman history is that its one of mostly excess punctuated by prudes.

    http://en.wikipedia.org/wiki/Pythagoras_(freedman)

    Which Pythagoras not to be confused with the mathematician of 5 centuries earlier.

    gary gulrud (dd7d4e)

  205. Still waiting to see what part of the Constitution gives the federal government the power to define what marriage is…and, I’m going to be a long time waiting.

    DOMA is unconstitutional on 10th Amendment grounds, and it ought to be tossed out.

    Dave Surls (46b08c)

  206. Still waiting to see what part of the Constitution gives the federal government the power to define what marriage is…and, I’m going to be a long time waiting.

    DOMA is unconstitutional on 10th Amendment grounds, and it ought to be tossed out.

    Suppose Congress passes a law defining sex offense for federal law purposes (such as denial of federal benefits), and that it defines sex offense to exclude offenses solely consisting of urination in public.

    How does that interfere with states’ power to punish public urination as a sex offense?

    Michael Ejercito (2e0217)

  207. 206. Still waiting to see what part of the Constitution gives the federal government the power to define what marriage is…and, I’m going to be a long time waiting.

    DOMA is unconstitutional on 10th Amendment grounds, and it ought to be tossed out.

    Comment by Dave Surls (46b08c) — 3/29/2013 @ 6:52 am

    No Dave, you’ve totally ******* converted me. The fact that the Constitution give Congress the power to make “Rules for the Government and Regulation of the land and naval Forces” doesn’t mean it can define marriage for any reason whatsoever.

    So if New York says you can marry your Weber grill and Oregon says you can marry a Shetland Pony that means when you transfer to Naples you and your spouse get base housing.

    Because the Constitution says the feds have no power to define marriage so it can’t say, “No, that’s not it.”

    Sheer genius, Dave. Really.

    Steve57 (be3310)

  208. Good news, folks. If you work for NOAA in Seattle and marry a building you get a family separation allowance if they transfer you back to DC.

    Steve57 (be3310)

  209. In 18 B.C., the Emperor Augustus turned his attention to social problems at Rome. Extravagance and adultery were widespread. Among the upper classes, marriage was increasingly infrequent and, many couples who did marry failed to produce offspring. Augustus, who hoped thereby to elevate both the morals and the numbers of the upper classes in Rome, and to increase the population of native Italians in Italy, enacted laws to encourage marriage and having children (lex Julia de maritandis ordinibus), including provisions establishing adultery as a crime.

    121. Prizes for marriage and having children. Rome, 1st cent. A.D. (Dio Cassius, History of Rome 54.16.1-1. Early 3rd cent. A.D. G)

    [Augustus] assessed heavier taxes on unmarried men and women without husbands, and by contrast offered awards for marriage and childbearing.
    — Comment by Steve57

    That’s interesting and another example of how, when it comes to human nature, the old is the new again, and visa versa.

    Ancient Greece’s dealings with issues involving homosexuality and the words of that society’s famous philosophers like Plato also are surprisingly relevant centuries later, even though we’re supposedly living in a hip, innovative, sophisticated, first-time-evah! age. Guess again, all you latte-drinking, Ipad-lovin’ liberals.

    I almost missed your description of ancient Rome until just now. That’s why I wish Patterico would combine more of his blog entries that relate to one another, since the conversation in one thread would be less likely to fade out because of a similar conversation starting up in another thread.

    Mark (212a14)

  210. DOMA is unconstitutional on 10th Amendment grounds, and it ought to be tossed out.

    What is or isn’t constitutional, post-Obamacare, is sort of like defining the meaning of “is” is.

    We’re a severely dumbed-down nation, and its Constitution (and entities like the Supreme Court) sure as hell won’t prevent that from getting worse and worse.

    Mark (212a14)

  211. “Because the Constitution says the feds have no power to define marriage…”

    Yup, that’s what it says all right. They have no enumerated power to define marriage. That’s a power reserved to the states or the people…like it says in the Tenth Amendment.

    Dave Surls (46b08c)

  212. I find that position somewhat odd.

    Assuming that Congress has the power to levy the estate tax (for example), it follows that it has the power to determine the rules for that tax and when it will apply. If it chooses to grant an exemption from the tax for people in certain relationships, it has the power to define when that exemption applies. If it uses the term ‘marriage’ to refer to the relationship which triggers the exemption, surely it has the power to define ‘marriage’ _for the purposes of that exemption_.

    I think as a policy matter that the thing which makes the most sense for most of the 1100 uses of ‘marriage’ in the federal code is to say that, if you’re married in the state of domicile, you’re married for the purposes of the federal code. But I have a hard time seeing where it’s constitutionally required.

    aphrael (24797a)

  213. 212. “Because the Constitution says the feds have no power to define marriage…”

    Yup, that’s what it says all right. They have no enumerated power to define marriage. That’s a power reserved to the states or the people…like it says in the Tenth Amendment.

    Comment by Dave Surls (46b08c) — 3/29/2013 @ 8:49 am

    I totally agree. Which is why if if you work for the USFWS and get hitched in Wyoming which has legalized bestiality the feds MUST give the marmot you married survivor benefits upon your demise.

    At first I was resistant to your ideas, Dave, but then I realized you’re just making all kinds of sense.

    Steve57 (be3310)

  214. In Steve’s world, a marmot can give legal consent.

    That explains a lot.

    Leviticus (17b7a5)

  215. Dave, in your esteemed opinion if the marmot you married in Wyoming happened to be deaf can the USFWS just send over the documents or do they have to dispatch someone who can do marmot sign language to explain the relative merits of taking the death benefit in the form of an annuity or a lump sum payment?

    Steve57 (be3310)

  216. 215. In Steve’s world, a marmot can give legal consent.

    That explains a lot.

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 9:15 am

    Speciesist! Marmotaphobe!

    Steve57 (be3310)

  217. As long as you and your marmot wife can get a mad scientist help you produce abominable man-marmot offspring, you have satisfied the sole purpose of marriage – procreation – and the State should support your marriage wholeheartedly. The State cares only that offspring are produced. The State demands constant insemination.

    Leviticus (17b7a5)

  218. I value a homosexual human over a heterosexual marmot. This is where Steve and I part ways.

    Leviticus (17b7a5)

  219. “Which is why if if you work for the USFWS and get hitched in Wyoming which has legalized bestiality the feds MUST give the marmot you married survivor benefits upon your demise.”

    Given the state of the law, I’d say that was a possibility. What of it?

    Dave Surls (46b08c)

  220. 218. As long as you and your marmot wife can get a mad scientist help you produce abominable man-marmot offspring, you have satisfied the sole purpose of marriage – procreation – and the State should support your marriage wholeheartedly. The State cares only that offspring are produced. The State demands constant insemination.

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 9:23 am

    No, man, you’ve enlightened me. Marriage is all about the state recognizing and validating the relationship.

    So you have a problem with a marmot self-actualizing?

    Steve57 (be3310)

  221. The State cares only that offspring are produced.

    But if The State cares more about whether people’s feelings are hurt or not, such what’s true in the increasingly deranged US of the 21st century — where a nutty Islamicist was tolerated by no less than the US military so as to not damage his self-esteem—at least until the Fort Hood massacre occurred — and even more so when animal rights are moving closer and closer to a position of honor as high as that given to human rights, the marmot and his lover must be protected.

    Mark (212a14)

  222. “Assuming that Congress has the power to levy the estate tax (for example), it follows that it has the power to determine the rules for that tax and when it will apply. If it chooses to grant an exemption from the tax for people in certain relationships, it has the power to define when that exemption applies. If it uses the term ‘marriage’ to refer to the relationship which triggers the exemption, surely it has the power to define ‘marriage’ _for the purposes of that exemption_.”

    aphrael – If Congress is writing rules which only apply to the federal government, as I believe is the case with DOMA, I agree that it seems silly that they can’t write rules which only apply to themselves. There is already significant diversity between state and federal tax policy on many matters so I fail to see why consistency should suddenly become a requirement.

    daleyrocks (bf33e9)

  223. I value a homosexual human over a heterosexual marmot.

    How about a heterosexual human over a bisexual marmot?

    Mark (212a14)

  224. “So you have a problem with a marmot self-actualizing?”

    Steve57 – In New Mexico they worry about the state animal, the Chupacabra, self-actualizing.

    daleyrocks (bf33e9)

  225. It haunts us, honestly. I haven’t slept in weeks.

    Leviticus (17b7a5)

  226. “How about a heterosexual human over a bisexual marmot?”

    - Mark

    Yeah. Cause of its a marmot.

    Leviticus (17b7a5)

  227. But as I discussed last night, even the fear of the chupacabra is not enough to make New Mexicans stop loving their home.

    aphrael (24797a)

  228. “But as I discussed last night, even the fear of the chupacabra is not enough to make New Mexicans stop loving their home.”

    aphrael – Codependent relationships can be difficult to fathom to outsiders.

    daleyrocks (bf33e9)

  229. No sir. Makes us love it more, frankly.

    Also, roadrunners are New Mexico sprites. And I love that too.

    Leviticus (17b7a5)

  230. ==aphrael – Codependent relationships can be difficult to fathom to outsiders.==

    This. Take Cubs fans, for instance.

    elissa (572ec5)

  231. Ok, maybe the marmot thing is a stretch.

    So, let’s say the New Jersey state legislature declares the great apes have human rights. Like the Spanish parliament did back in 2008.

    UK Mail Online: The disturbing question posed by IQ tests – are chimps cleverer than us?

    NBC: Baby chimps given human love ace IQ tests

    Some of them could give better informed consent that some people. So if Judge Walker and Leviticus are right and there’s no rational basis to think the state ever had any legitimate interest in recognizing marriage as a means to promote responsible procreation but rather

    48. Same-sex primate couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex primate couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex genus or opposite-sex different genus.

    …why couldn’t you marry a bonobo?

    You know, they form deep emotional bonds and are capable of happy and satisfying relationships, too.

    Steve57 (be3310)

  232. elissa – Good point with the Cubs. This year is the year!

    daleyrocks (bf33e9)

  233. Bonobos apparently have pretty active and varied sex lives. (Please don’t tell Mark.)

    elissa (572ec5)

  234. Ah, but daley— the men on MY team wear black and white and the fans actually understand and care about the rules of baseball.

    I have recently successfully converted a lifelong Cubs fan over to the Sox. This is pretty much the equivalent of converting a low information flaming liberal over to Hayek and Reaganomics. Yep.

    elissa (572ec5)

  235. I saw a bit on TV about them once and how they were once thought to be a variety of chimp, until it was determined they were indeed a different species.

    Apparently they do have very active and varied sex lives…
    it also appeared they were downright bored with it all, and a sexual encounter as a greeting took less time than some handshakes.

    MD in Philly (3d3f72)

  236. The tenth amendment seems pretty easy to understand to me. If the feds have an enumerated power to define what marriage is…show it to me in the Constitution.
    Comment by Dave Surls (46b08c) — 3/28/2013 @ 9:57 pm

    – And once again, the tenth amendment allows each state to define marriage however it chooses to do so. DOMA does not abrogate that right at all. It doesn’t tell the states “You MUST define marriage this way.”

    Icy (5dd8c0)

  237. OK, elissa, I was going to make the Cubs the victim of a joke, but controlled myself on your behalf, but I guess I didn’t have to

    so…

    daley, you mean the world only has until the end of October?

    MD in Philly (3d3f72)

  238. elissa – You have the conversion backwards methinks. Plus I only go Wrigley to check out the crowds in warm sunny weather these days, IYKWIMAITTYD.

    daleyrocks (bf33e9)

  239. MD in Philly – Of course not, there’s always next year!

    daleyrocks (bf33e9)

  240. == Plus I only go Wrigley to check out the crowds in warm sunny weather these days, IYKWIMAITTYD.==

    I understand, daley. Really I do. The Northwestern coeds mostly go back home for the summer. So, what’s a red blooded guy gonna do for visual entertainment in Chicago?

    Why, go to Weigley and watch the Cubs lose amidst a sea of pink tank tops and pony tails, of course! NTTAWWT.

    elissa (572ec5)

  241. 222. So we’re talking mar-men (re Zoolander)

    http://www.hughhewitt.com/mark-steyn-on-the-marriage-debate-at-the-supreme-court/

    Comment by narciso (3fec35) — 3/29/2013 @ 9:35 am

    I see Mark Steyn noticed the same thing I did.

    MS: Well, I must say I’m astonished. Ted Olson is a smart guy, and I’m astonished by the weakness of the arguments. I mean, I don’t, just to be fair ahead of all that, I think there is something absurd and ridiculous in an appellate court defining an institution that predates the United States by a couple of millennia. I think that’s taking judicial supremacism to an absolute point of absurdity. But given that, I’m not a big fan of Justice Kennedy, but I thought he made an incredibly obvious point when, like everybody else, Ted Olson said well, you know, once upon a time, we banned interracial marriage, so this is exactly the same as Loving V. Virginia, the 1967 case that struck down interracial marriage. And you know, Justice Kennedy said you know, what are you on about? He said in that case, the interracial marriage is basically an invention of 19th Century America that was at odds with existing common law marriage as it had been for hundreds of years.

    HH: You mean the ban? You mean the ban, the ban on interracial marriage, yeah.

    MS: Yeah, the ban. Yeah, so the ban on interracial marriage was the innovation, and a disgusting, localized innovation in Virginia and other American states at odds with every common law jurisdiction in the British West Indies, for example, or in India. In India, one out of every, during the Raj, one out of every three British men is estimated to have married an Indian woman out there. So in other words, in other common law traditions, there was hundreds of years of experience with interracial marriage. It’s a completely irrelevant, it’s an entirely irrelevant comparison, and I’m astonished by the laziness of Ted Olson and others who rely on that Loving V. Virginia case.

    Unlike Steyn I can’t attribute this to laziness, though. Just dishonesty. Like Walker’s ruling (which is why I’m making fun of it along with the “if you want to pretend one thing is the same as another just ignore the differences” sophomoric reasoning by bringing the bonobos into it). Because let’s remember the exact words of the exchange:

    MR. Olson) And those issues that I’ve been describing are certainly fundamental to the case. And — and I don’t want to abuse the Court’s indulgence, that what I — you suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial — prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.
    JUSTICE KENNEDY: It was hundreds of years old in the common law countries. This was new to the United States.
    MR. OLSON: And — and what we have here -­
    JUSTICE KENNEDY: So — so that’s not accurate.

    I couldn’t say that with a straight face. Could any of you? Declare that the SCOTUS went into uncharted waters when it invalidated laws that didn’t exist in two thirds of the country?

    Steve57 (be3310)

  242. “why couldn’t you marry a bonobo?

    You know, they form deep emotional bonds and are capable of happy and satisfying relationships, too.”

    - Steve57

    Can a bonobo give legal consent?

    Simple question. Will you give the simple answer, or will you dodge it like you dodge all simple questions that destroy your arguments?

    Leviticus (17b7a5)

  243. (Please don’t tell Mark.)

    Too late, Elissa. Your comment piqued my curiosity.

    There apparently is a lot of “B” in the “GLBT” of the bonobo:

    news.nationalgeographic.com: The bonobo, an African ape closely related to humans, has an even bigger sexual appetite. Studies suggest 75 percent of bonobo sex is nonreproductive and that nearly all bonobos are bisexual. Frans de Waal, author of Bonobo: The Forgotten Ape, calls the species a “make love, not war” primate. He believes bonobos use sex to resolve conflicts between individuals.

    Other animals appear to go through a homosexual phase before they become fully mature. For instance, male dolphin calves often form temporary sexual partnerships, which scientists believe help to establish lifelong bonds. Such sexual behavior has been documented only relatively recently. Zoologists have been accused of skirting round the subject for fear of stepping into a political minefield.

    “There was a lot of hiding of what was going on, I think, because people were maybe afraid that they would get into trouble by talking about it,” notes de Waal. Whether it’s a good idea or not, it’s hard not make comparisons between humans and other animals, especially primates. The fact that homosexuality does, after all, exist in the natural world is bound to be used against people who insist such behavior is unnatural.

    Yet scientists say we should be wary of referring to animals when considering what’s acceptable in human society. For instance, infanticide, as practiced by lions and many other animals, isn’t something people, gay or straight, generally approve of in humans*.

    [Robin] Dunbar [a professor of evolutionary psychology at the University of Liverpool, England] says the bonobo’s use of homosexual activity for social bonding is a possible example [of evolutionary traits in primates being similar to what happens in humans]…

    For instance, the Spartans, in ancient Greece, encouraged homosexuality among their elite troops. “They had the not unreasonable belief that individuals would stick by and make all efforts to rescue other individuals if they had a lover relationship,” Dunbar added.

    ^ Simply put, there is a lot of free will and free choice in human behavior. So sexuality therefore is surprisingly fluid, and not analogous to, for example, skin color, eye color, hair color, height, type of genitalia, shape of nose, etc.

    When various people in black America become insulted at GLBTers who compare their situation and plight to that of blacks, I can now fully understand such a reaction.
    _____________

    * But the act of abortion has become so widespread, or disquiet about it has grown increasingly nonchalant in an increasingly liberal society, that we’re not necessarily all that different from animals when it comes to infanticide too.

    Mark (212a14)

  244. I find this whole notion that we have collectively progressed by dint of civilization thru social constraints, pressures and coercion beyond that of Sargon the Great or Hammurapi, enlightened despots, roughy 5 and 4 millenia ago, the most fatuous, gratuitous, vapid nonsense.

    Look at the world around you. More people have been slaughtered in the preceding century by Stalin, Mao, Pol Pot,…, than lived prior to the origin of the species outside China.

    We are but months from global war in which millions more will die.

    The one unifying conviction in our country is that our governments do not listen to us or pursue our good. Yet here the fact they fall all over themselves to do your will means vindication?

    Really, what do some number of you use for brains?

    gary gulrud (dd7d4e)

  245. bonobos will love you and love you and love you and then one day they will wake up and tear off your face and rip out your eyeballs with their freakish super bonobo strength

    so that’s something to consider

    happyfeet (4bf7c2)

  246. 246. “than lived prior [since] the origin of the species”

    gary gulrud (dd7d4e)

  247. “And once again, the tenth amendment allows each state to define marriage however it chooses to do so.”

    And, once again the federal government has NO power to do so. And, that’s why DOMA is unconstitutional.

    Dave Surls (46b08c)

  248. I don’t dodge your simple questions. It’s just that my answers don’t penetrate your simple mind. I’ve already answered your stupid canard about “infertile” couples being allowed to marry, what, a dozen times?

    I think I’ll wait until you embarrass yourself a little more, Leviticus. I have an answer.

    Keep in mind my bonobo scenario was conditioned on the fact that first the great apes would have to have human rights under the law. Which is what the animal rightists insist should happen because we share so much of our DNA with them (animal rightists reason the same way as Judge “if you want to pretend one thing is the same as another just ignore the differences” Walker). And the animal rightist have succeeded in getting their way in some countries.

    Also keep in mind the mentally retarded, which are defined as someone who 1) has an IQ below 70-75; 2) is limited in two or more adaptive skill areas (daily living skills needed to live, learn, work, and play in the community); and 3) the condition has present from childhood (defined as age 18 or younger), have the same legal rights as anyone else with human rights. They can drive cars, own property, and marry, and they aren’t tested for mental competency.

    With that I’ll let you stew a bit more.

    Steve57 (be3310)

  249. 244. Simple question. Will you give the simple answer, or will you dodge it like you dodge all simple questions that destroy your arguments?

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 10:58 am

    You lead a rich fantasy life.

    Steve57 (be3310)

  250. “And, once again the federal government has NO power to do so.”

    Dave – The federal government is not defining marriage for the states in DOMA. In the federal tax code, who has the power to define marriage?

    daleyrocks (bf33e9)

  251. “You lead a rich fantasy life.”

    - Steve57

    So you’ve chosen the dodge, then?

    Leviticus (c4ea61)

  252. bonobos will love you and love you and love you and then one day they will wake up and tear off your face and rip out your eyeballs with their freakish super bonobo strength
    so that’s something to consider
    Comment by happyfeet (4bf7c2) — 3/29/2013 @ 11:06 am

    – Sounds like marriage to me!

    Icy (5dd8c0)

  253. No, Leviticus, you’re just dense.

    http://en.wikipedia.org/wiki/Speciesism#Great_ape_personhood

    Great Ape personhood is a concept in which the attributes of the Great Apes are deemed to merit recognition of their sentience and personhood within the law, as opposed to mere protection under animal cruelty legislation. Awarding personhood to nonhuman primates would require that their individual interests be respected or taken into account, rather than regarding them merely as members of a group.[17]

    As always.

    If it’ll make you feel better why don’t you ask again if the only male female couple in the history of the universe which lost all their reproductive organs in tragic car crashes and then found each other and fell in love should be allowed to answer.

    That question I’ll answer right away. Again.

    This one I think I’ll string out a bit longer.

    Steve57 (be3310)

  254. *should be allowed to answer marry.*

    Steve57 (be3310)

  255. – Sounds like marriage to me!

    LOL. Happyfeet’s writing in #247 also makes me laugh and think of what would be a hilarious scene in “The Simpsons.”

    Great Ape personhood is a concept in which the attributes of the Great Apes are deemed to merit recognition

    In this day and age, the slippery-slope argument can no longer be cited as too absurd. Anything is possible when f-e-elings are ascendant to common sense.

    Mark (212a14)

  256. 257. In this day and age, the slippery-slope argument can no longer be cited as too absurd. Anything is possible when f-e-elings are ascendant to common sense.

    Comment by Mark (212a14) — 3/29/2013 @ 11:46 am

    Any guesses on how I’ll answer eventually Leviticus’ question?

    Steve57 (be3310)

  257. Any guesses on how I’ll answer eventually Leviticus’ question?

    Not exactly sure, Steve57, but this is the song that — in this age of insanity, in this era of Obama-ized politics — should always be playing in the background. Call it the ideal sound score of this time in history.

    Mark (212a14)

  258. Any guesses on how I’ll answer eventually Leviticus’ question?

    I think you already have, and effectively BTW.

    beer 'n pretzels (6ef50f)

  259. 254. I am reminded by the photo of a still-born lamb from Gaza say 18 months back.

    The creature had an eerily human face.

    gary gulrud (dd7d4e)

  260. byof

    gary gulrud (dd7d4e)

  261. “If it’ll make you feel better why don’t you ask again if the only male female couple in the history of the universe which lost all their reproductive organs in tragic car crashes and then found each other and fell in love should be allowed to [marry].”

    - Steve57

    It would make me feel better! So nice of you to offer! So: if “the only male/female couple in the history of the universe which lost all their reproductive organs” in tragic Dodge accidents found each other and fell in love, should they be allowed to marry?

    Leviticus (2ad05b)

  262. I don’t understand why people say the state has the right to prohibit a marriage among three or four people.
    After all, if a person has an inherent right to marry whom they love, that right should’t be restricted simply because the person they happen to love also happens to love two or three other people.

    You people must be bigots. Or something.

    Elephant Stone (a5acfc)

  263. 263. It would make me feel better! So nice of you to offer! So: if “the only male/female couple in the history of the universe which lost all their reproductive organs” in tragic Dodge accidents found each other and fell in love, should they be allowed to marry?

    Comment by Leviticus (2ad05b) — 3/29/2013 @ 12:20 pm

    Yes, of course. AGAIN!

    Society’s legitimate interest in marriage is to encourage responsible procreation and child rearing. Heterosexuals as a class can reproduce. These two fall into that classification. Why wouldn’t they be allowed to marry?

    Steve57 (be3310)

  264. Elephant Stone, in the other thread I offered a summary of the argument which was not rejected or objected to by aphrael or anyone else (at least not that I’ve seen since)

    the given assumption is that same-sex attraction is just as normal as heterosexual attraction,
    so if two heterosexuals can get married, two people of same sex attraction should be able to get married
    of course, this also assumes that the desire for polygamy is not as normal as typical heterosexual or same-sex desire, so those who desire polygamy do not deserve equal protection under the law
    that seems to me to be the most logical argument for those who favor SSM but not polygamy (or perhaps there is an argument that polygamy is not as important in the stability of society as SS monogamy)

    the idea that many heterosexual males by nature would prefer multiple partners, if given the opportunity, is either seen as not as normal, or not in the interest of society

    Clearing all of the smoke and making it an easy if A and B then C argument

    Now, it was stated before that the idea that homosexuality is inferior to heterosexuality is the idea that is being rejected, or wants to be rejected
    and it would be assumed I presume by many that the Bible supports such a view, and is one reason why the Bible is rejected by thoughtful and non-bigoted people
    while that argument could be made, the more consistent and overwhelming argument is that people are inferior to God’s standards in all manner of ways, and the big issue is the need of all for forgiveness, not the particulars of one kind of sin vs. another
    that was why Jesus had an interesting assortment of friends and enemies, he said everybody was in trouble, but also that everybody had hope of forgiveness
    some people, like the woman caught in adultery, knew they had some problems and were joyful at the news of forgiveness
    others, like the religious leaders who thought they had their acts together and were better than others, didn’t like to be lumped into the same boat

    today we still have lots of people who think needing forgiveness is a bunch of BS because they think they are too good to need it
    people who know they need God’s forgiveness are in shorter supply, because if there is no such thing as sin anyhow, why would one need to be forgiven for it

    anyway, that is offered as a Good Friday meditation

    MD in Philly (3d3f72)

  265. 265. Walk to the light my darlings, walk to the light.

    C.S. Lewis’ the “Great Divorce” supposes that many here and now that appear on this side of eternity to be marginally good and bad and religious will be more clearly divided in the Light into those who can live joyously with the God Who Lives and those who cannot suffer Him.

    “I wish that you were either hot or cold, but because you are not I will spit you out of my mouth”.

    gary gulrud (dd7d4e)

  266. Comment by Elephant Stone (a5acfc) — 3/29/2013 @ 12:25 pm

    After all, if a person has an inherent right to marry whom they love,

    Cliches, cliches. There are people where at least one of a couple is married to other people who therefore cannot marry the person they love.

    Sammy Finkelman (d22d64)

  267. Surls busily searching the COTUS for the phrase “Congress shall have the power to define marriage”.

    Icy (5dd8c0)

  268. Guys, I’m sorry if I caused confusion.
    I wasn’t speaking in my voice, rather, I was speaking facetiously in the voice of a utopian left winger.

    But it is a question I’d like one of the obnoxious lefties to answer—-why does the state have the right to limit marriage between anyone (gay, straight, bi, transgender)to merely two partners ?
    After all, if the same-sex marriage proponents assert that the state cannot say that same-sex marriage is not normal, or that same-sex marriage is not in the better interest of society, then how in the hell does the state all of a sudden retain the right to determine that polygamous marriages are not normal or are not in the better interest of society ?

    Elephant Stone (a5acfc)

  269. “Society’s legitimate interest in marriage is to encourage responsible procreation and child rearing.”

    - Steve57

    That’s two separate interests. Are we expanding the list of legitimate State interests in marriage, or did you misspeak?

    Elephant Stone,

    MD in Philly likely remembers my response to the polygamy question on the other thread. You were on that thread, too so you should remember it yourself.

    Leviticus (17b7a5)

  270. Leviticus, refresh my memory. When have I not said the legitimate state interest in marriage was to promote responsible procreation and child rearing.

    The State cares only that offspring are produced. The State demands constant insemination.

    I take by your earlier mockery that, then at least, you recognized I’ve been consistent on this point.

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 9:23 am

    What’s changed with you between then and now?

    Steve57 (be3310)

  271. Or perhaps you’ll make the specious claim that I’ve never linked procreation with child rearing?

    In which case perhaps you’d like to address this comment from an earlier thread:

    187.

    How could this come to pass!? Steve57 has dictated that only the Procreators may marry.

    Comment by Leviticus (17b7a5) — 3/26/2013 @ 2:18 pm

    Why do you lie so often? Steve has never made nor inferred “that only the Procreators may marry.”

    I believe this statement from What is Marriage? is more inline with what Steve has stated.

    There is no wrong side of history; there’s only the wrong or right side of the truth. Marriage is founded on the anthropological truth that men and women are different and complementary, the biological truth that reproduction involves a male and female, and the social truth that children benefit from a mother and father.

    I believe this statement is true. My wife and I were married in 2004 and without a miracle there is no chance my wife and I will have any more children than we already have because of age. However, our marriage is still valid. Your statement is a straw man argument.

    Comment by Tanny O’Haley (4c5a96) — 3/26/2013 @ 2:41 pm

    Por favor, law student.

    Steve57 (be3310)

  272. Leviticus, I sincerely apologize if I don’t recall all of your comments from every thread.
    If you have the time to spare, be so kind as to enlighten me with an answer to my specific question posed in #269.

    Thank you. And may Clint Dempsey’s goal-scoring celebrations bring you future happiness, as they do me.
    :)

    Elephant Stone (a5acfc)

  273. Prop 8 Arguments Today in Supreme Court…

    198. Ed Whelan has done a good job of documenting the myths and distortions of the pro-gay marriage people trying to get Prop 8 declared unconstitutional.

    Anti-Prop 8 Myths #1 to #5

    There is a lot wrong with the Supreme Court brief filed by Ted Olson and David Boies on behalf of the anti-Prop 8 plaintiffs in Hollingsworth v. Perry. Prop 8’s proponents will of course address the major argument flaws in their reply brief (due March 19). In a few posts, I’m instead going to expose some of the lesser myths and distortions that the brief propagates. Let’s get started:

    Myth/Distortion #1: The Supreme Court’s previous descriptions of the right to marry can plausibly be interpreted outside the understanding of marriage as a union of a male and a female. (See Brief at 1 (stating that the Court has “described [marriage] at least 14 times as a right protected by the Due Process Clause”).)

    Reality: In the opening line of their brief, plaintiffs purport to quote the 1978 case of Zablocki v. Redhail as stating that marriage is “the most important relation in life.” (Brief at 1.) But that passage in Zablocki is actually a quote from the 1888 ruling in Maynard v. Hill, which likewise describes marriage as “the foundation of the family and of society” (and which—unremarkably, of course—quotes in passing excerpts from other courts referring to marriage as “the relation of husband and wife” and to the “rights of husband and wife). It is the male-female nature of marriage, and the procreative potential of heterosexual intercourse, that explains why the Court has repeatedly recognized marriage as “fundamental to our very existence and survival.” E.g., Loving v. Virginia (1967). Indeed, Zablocki itself involved a child conceived outside of wedlock, and it protected the plaintiff’s right to “marry and raise the child in a traditional family setting.”

    Did the drafters of the brief really imagine that by failing to note that Zablocki was quoting Maynard and by failing to note the facts of Zablocki they could obscure that the Court in Zablocki was obviously referring to marriage as the union of male and female that it had always been understood to be? Would they really have us believe that the Court in 1972 in Baker v. Nelson would have dismissed a constitutional claim for same-sex marriage as not even meeting the low threshold of presenting a substantial federal question, yet that the “14 times” before and after Baker that the Court has referred to marriage as a right protected by the Due Process Clause might plausibly be understood to extend to the radically novel and emerging reconception of marriage to include same-sex couples?

    Myth/Distortion #2: Prop 8 proponents’ definition and conception of marriage is not grounded in historical reality but rather is “imagined,” “newly constructed,” and “litigation-inspired.” (Brief at 2, 21.)

    Reality: The only thing “imagined,” “newly constructed,” or “litigation-inspired” is plaintiffs’ conception of marriage as blind to the opposite-sex nature of the spouses. This is amply demonstrated in Prop 8 proponents’ brief which, as plaintiffs admit (Brief at 39 n. 6), relies “on historical writings by dozens of philosophers, sociologists, and political scientists—from Locke to Blackstone, Montesquieu to Kingsley Davis.”

    Myth/Distortion #3: Proponents’ responsible procreation argument “consumed very little of their attention at trial,” and only “now,” before the Supreme Court, do they contend that marriage is designed to address the problem of “opposite-sex couples who might beget children “unintentionally.’” (Brief at 39 (emphasis in original).) Proponents “abandoned at trial the main Protect Our Children argument they made during the Prop 8 campaign.” (Brief at 38.)

    Reality: The link between marriage and responsible procreation has always been the central theme of proponents’ defense of Prop 8. In the summary judgment brief (see pp. 63-68) they filed before trial, for example, Proponents argued at length that “the traditional institution of marriage promotes stability and responsibility in naturally procreative relationships.” Proponents maintained this focus on responsible procreation at trial. See, e.g., Proponents’ Proposed Finding of Fact #7 (“A core purpose of marriage is to guarantee that, insofar as possible, each child is emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world.”); PFF #8 (“As a matter of biological reality, societies must develop a method to bind men to their offspring.”); PFF #200 (“Unintended pregnancies, which can only occur in opposite-sex relationships, present society with unique challenges.”).

    Myth/Distortion #4: Proponents “abandoned at trial the main Protect Our Children argument they made during the Prop 8 campaign.” (Brief at 38.) The Prop 8 “campaign materials even suggested that Proposition 8 was necessary to protect children from gay men and lesbians themselves.” (Brief at 11 (citing J.A. Exh. 103).)

    Reality: The “Protect Our Children” argument from the Prop 8 campaign in large part was the responsible procreation argument, i.e., that the traditional institution of marriage protects children by encouraging their mothers and fathers to stay together and raise them. The Yes-on-8 campaign argued that Proposition 8 would protect children by protecting marriage, not by protecting them from gays and lesbians. See, e.g., PX0001 at 56 (“Proposition 8 protects marriage as an essential institution of society. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father.”); PX0097 (“Protecting the interests of children is the reason the state has for regulating marriage to begin with.”); PX0138 (“Marriage … provides the ideal relationship to commit men and women to each other, to provide for the procreative continuation of civilization and to raise children with both a mother and father.”).

    The only supposed “campaign material[]” cited by Plaintiffs that can fairly be thought to support their claim (J.A. Exh. 103) was not produced by the official Yes-on-8 campaign. Rather, it was a letter written by Hak-Shing William Tam, who testified that he had no involvement in formulating the official campaign’s strategy or messaging, see Trial Transcript at 2002, and that he did not share his views on homosexuality with anyone from the official campaign at any time during the campaign, id. at 1989.

    Myth/Distortion #5: Proponents’ “construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether.” (Brief at 2 (emphasis in original).)

    Reality: The link between marriage and responsible procreation explains why the tradition of marriage has developed as a male-female union. The tradition, as it has in fact developed, is open to opposite-sex couples, and it has never required the administration of Orwellian fertility tests. (The purpose of marriage is advanced even when a husband and wife can’t procreate together because one of them is infertile, as the marital obligation of fidelity helps ensure that the fertile spouse doesn’t have children outside the marriage.) It is that traditional understanding of marriage that the Due Process Clause protects.

    Anti-Prop 8 Myths, #6 to #9

    Anti-Prop 8 Myths #10 to #14

    Comment by Steve57 (be3310) — 3/26/2013 @ 3:07 pm

    Leviticus, when have I ever said or implied that marriage isn’t about both procreation and raising children?

    Steve57 (be3310)

  274. “I think you are dodging the polygamy question, Leviticus.”

    - MD in Philly (on the other thread)

    Fair enough. I am, kind of.

    Here’s the best answer I can give, at the moment:

    I think there are a number of purposes for marriage (including promotion of procreation, including marital fidelity, including effective childrearing, including expression of love and devotion, including promotion of responsibility and mutual support, etc.). Provided that polygamist marriages fulfill some of these purposes, I don’t see how I could object to them in full consistency with the arguments I’ve been making re: gay marriage.

    I think at some point a numerically over-expansive group marriage would be hard pressed to effectively fulfill any of these purposes.

    I don’t know. It’s a really difficult question.

    Leviticus (17b7a5)

  275. polygamy is trashy I think

    you shouldn’t do the polygamy

    if you are doing the polygamy you should stop right away

    just knock it off

    happyfeet (8ce051)

  276. Confucius say, “Man with two wives gets nagged in stereo.”

    Icy (5dd8c0)

  277. “Leviticus, when have I ever said or implied that marriage isn’t about both procreation and raising children?”

    - Steve57

    Sorry. I must have missed those four highlighted words in your 1,123 word Wall O’ Copypasta.

    I think it would fair to say that you’ve focused way more on the “procreation” than the “childrearing” aspect of things, but if you believe that marriage is about childrearing in addition to procreation than I would agree with that.

    Gay couples may not be able to procreate, but they can certainly raise children. So aren’t they exactly like the heterosexual couple that we’ve been talking about – that can’t reproduce themselves but may still contribute to society by raising healthy, stable children within the confines of a stable and faithful relationship?

    Leviticus (17b7a5)

  278. Funny, too, that you’ve quoted three people – none of them you – in support of the proposition that your comments have clearly evidenced the dual purpose of marriage for procreation AND childrearing. Funny, too, that you seem to think that these words –

    “The State cares only that offspring are produced. The State demands constant insemination.”

    - have anything to do with childrearing.

    Leviticus (17b7a5)

  279. But whatever. For the sake of moving the discussion along, I’ll stipulate that you have consistently acknowledged that the State has two interests in marriage – responsible procreation, and childrearing.

    Leviticus (17b7a5)

  280. homo is trashy i think shouldn’t do trashy i think if u are doing trashy stop stop
    knock it off! [cock'em-sock'm robots!)
    ] Humans have thumbs

    pdbuttons (2648f1)

  281. I thought about it and what I decided is I think that is hyperbole, what you said Mr. buttons

    about the homo is trashy

    I just don’t agree I know lots of gay people and they don’t seem trashy to me they certainly dress a lot better than the people what do the polygamy

    but I guess it’s possible you could do the homo polygamy and if that were the case I think that would be trashy for reals

    but just being gay no i do not think that is trashy same as having sister wives and such

    happyfeet (8ce051)

  282. I’d be open to having dinner with polygamers to see if maybe they might could change my mind I guess

    I only really know the tv ones

    happyfeet (8ce051)

  283. I’m just afraid they’d serve nasty polygamy food like creamed corn and white bread dinner rolls and green beans from the can and some gloppy casserole

    but they probably make pretty good pie I bet

    you get enough wives and it’s a fair bet one of em is gonna make some tasty pie

    happyfeet (8ce051)

  284. well..I’ll be damned! I just wanna marry a lighthouse keeper
    and keep him company/live by the side of the sea/////////////////////i’ll polish the lamps by the light of day
    so the ships can find their way

    okay?
    Coal reef parties /clam bakes on the shore
    invite the neighbours in/ and sea gulls by the score
    yup-I wanna marry a lighthouse keeper

    pdbuttons (2648f1)

  285. The gay people you know don’t eat gloppy casserole?

    Leviticus (17b7a5)

  286. more research is needed Mr. Levi they sure do like my mom’s chicken spaghetti, which is gloppy as all get out

    but not in a cream of mushroom soup kinda way

    happyfeet (8ce051)

  287. they always ask though if the pasta is whole wheat, and I say yes of course

    happyfeet (8ce051)

  288. what’s disturbing to realize is that a tasty lasagna is really a gloppy casserole

    or even enchiladas

    Leviticus (17b7a5)

  289. you raise some excellent points

    happyfeet (8ce051)

  290. here are some polygamy recipes

    mmmm

    Pan Fried Grouse Nuggets!

    happyfeet (8ce051)

  291. All this talk of casseroles and pie makes me fear you’ve fallen off the low carb train, Mr. Feets. This is worrisome.

    elissa (572ec5)

  292. it’s been tough the new job is insane with the 12+ hour days and such and this past week I didn’t do well

    I’m waking up tomorrow with conviction in my heart though to do better

    happyfeet (8ce051)

  293. “What was most striking to me was how very weak the arguments are for denying gays and lesbians of the right to marry.”

    - Erwin Chemerinsky

    “I must say I’m astonished. Ted Olson is a smart guy, and I’m astonished by the weakness of the arguments [for gay marriage].”

    - Mark Steyn

    Leviticus (17b7a5)

  294. I’m astonished Mark Steyn doesn’t realize yet that the debate is over.

    happyfeet (8ce051)

  295. Knock knock
    who’s there ?
    debate team..
    No you’re not..
    Yes.. we are
    Okay, you win

    pdbuttons (2648f1)

  296. hi debate team today’s resolution is that everyone should have guns and stuff for in case of bad people doing bad stuff

    hi debate team today’s resolution is that America should drill the oils to where they’re not underground anymores so we have more jobs and cost efficiencies and such

    hi debate team today’s resolution is that the Estados Unidos spends too many borrowed monies and they should knock it the eff off

    hi debate team I made some tasty grouse nuggets please to come in plus I think one of the gals made some pie

    happyfeet (8ce051)

  297. 293. Good luck. B spectrum vitamins.

    gary gulrud (dd7d4e)

  298. ok I’ll do a 4-hr energy

    happyfeet (8ce051)

  299. i mean 5-hr I think

    happyfeet (8ce051)

  300. 295. If you mean the debate for legality in a bakers dozen of states, you’re prolly correct.

    gary gulrud (dd7d4e)

  301. 281. But whatever. For the sake of moving the discussion along, I’ll stipulate that you have consistently acknowledged that the State has two interests in marriage – responsible procreation, and childrearing.

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 3:41 pm

    Indeed you should. These are additional quotes from the comment @275 I copied from the other thread.

    the Court has repeatedly recognized marriage as “fundamental to our very existence and survival.” E.g., Loving v. Virginia (1967). Indeed, Zablocki itself involved a child conceived outside of wedlock, and it protected the plaintiff’s right to “marry and raise the child in a traditional family setting.”

    …“A core purpose of marriage is to guarantee that, insofar as possible, each child is emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world.”

    …“As a matter of biological reality, societies must develop a method to bind men to their offspring.”

    …The “Protect Our Children” argument from the Prop 8 campaign in large part was the responsible procreation argument, i.e., that the traditional institution of marriage protects children by encouraging their mothers and fathers to stay together and raise them.

    …Proposition 8 would protect children by protecting marriage, not by protecting them from gays and lesbians.

    …“While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father.”

    …“Protecting the interests of children is the reason the state has for regulating marriage to begin with.”)

    That’s in addition to the four words I highlighted. The problem isn’t that I haven’t said marriage is about having and raising children. The problem is you’ve been blind to that fact.

    280. Funny, too, that you seem to think that these words –

    “The State cares only that offspring are produced. The State demands constant insemination.”

    - have anything to do with childrearing.

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 3:39 pm

    Umm, I never said those words have anything to do with child rearing.

    218.

    As long as you and your marmot wife can get a mad scientist help you produce abominable man-marmot offspring, you have satisfied the sole purpose of marriage – procreation – and the State should support your marriage wholeheartedly. The State cares only that offspring are produced. The State demands constant insemination.

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 9:23 am

    Those were your words. I was quoting you and your distortion of my position.

    Steve57 (be3310)

  302. 279. Gay couples may not be able to procreate, but they can certainly raise children. So aren’t they exactly like the heterosexual couple that we’ve been talking about – that can’t reproduce themselves but may still contribute to society by raising healthy, stable children within the confines of a stable and faithful relationship?

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 3:36 pm

    I have never said that gay people can’t contribute to society and certainly I’ve never said they can’t do so by raising healthy, stable children.

    What I’ve said, consistently, is that if the definition of marriage is changed so it leads heterosexuals to believe that marriage is not a prerequisite to having children the slight gain in children being raised in stable gay relationships does not outweigh the cost in children being raised in unstable heterosexual relationships.

    Try to focus. I have, consistently have I not, deplored the fact that the median age at which a woman has a child is now below the median age at which a woman gets married.

    For the first time in US history.

    That over 40% of births in the US now are to unwed mothers. That over 80% of women who are high school dropouts have kids as single moms.

    I’m going to spare everyone a rehash of all the evidence I’ve cited.

    Straight marriage is the real issue By David Frum, CNN Contributor

    But while straight young Americans support marriage for gays, increasingly they opt against marriage for themselves. Nearly half of American children, 48%, are now born to unmarried women. Among women without college degrees, and of all races, unwed motherhood has become the norm.

    But the evidence leads me to believe that there is a real danger in adopting as official government policy that procreation (and the resultant child rearing) is entirely separate from marriage. That the two have nothing to do with each other.

    Leviticus, I’m not arguing from bad faith. I have no personal animus towards aphrael or anyone else. I have no secret agenda. I am sure if you go back to look at my previous comments you’ll see this is entirely my concern.

    Steve57 (be3310)

  303. Well, maybe not entirely. I may have voiced other concerns. But I think I’m safe to say it’s been my main concern.

    Steve57 (be3310)

  304. Well we’ve run this story into the ground, so a change of pace;

    http://www.theblaze.com/contributions/attack-on-palin-and-sarahpac-misses-the-mark/

    narciso (3fec35)

  305. “Umm, I never said those words [e.g. The State demands constant insemination] have anything to do with child rearing.”

    - Steve57

    Well… you kinda did. You said that you had consistently claimed that “the legitimate state interest in marriage was to promote responsible procreation AND childrearing.” You then quoted my mockery – “the State cares only that offspring are produced. The State demands constant insemination.” – and inferred by that mockery that I was somehow recognizing that you had been consistent in claiming that “the legitimate state interest in marriage was to promote responsible procreation and childrearing.”

    My mockery was only directed at your claims about marriage and procreation; I didn’t mention your claims about childrearing (because you hadn’t made any up to that point). The only way for you to infer that my mockery had anything to do with claims about childrearing was to assume that offspring production/insemination is somehow necessarily linked with childrearing.

    Which is not the case.

    Which is why I said that it was “funny that you seem to think that the words “insemination” or “produce offspring” have anything to do with childrearing.”

    Leviticus (17b7a5)

  306. 295. “What was most striking to me was how very weak the arguments are for denying gays and lesbians of the right to marry.”

    - Erwin Chemerinsky

    “I must say I’m astonished. Ted Olson is a smart guy, and I’m astonished by the weakness of the arguments [for gay marriage].”

    - Mark Steyn

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 4:16 pm

    Let’s take a stroll down memory lane. Let’s flesh out what Steyn was talking about.

    357.

    342. Everybody loves them some history – except it’s myriad ugly parts. How’s this for history: once there were these things called miscegenation laws, and everybody thought they were fine, and then everybody realized that no, they were not fine, and then black people and white people started getting married sometimes, and then society was just completely fine.

    Comment by Leviticus (17b7a5) — 3/26/2013 @ 6:21 pm

    History. You ought to try reading some sometime, Leviticus.

    Miscenegaton laws were never part of the common law. And the only reason people with racist theories dreamed them up is precisely because everyone understood the centrality of procreation to the marital relationship. That’s exactly what they intended miscegenation laws to prevent; legal recognition of the offspring.

    You could go down to the slave quarters and have your way with the women all you wanted in the antebellum south. Later, you could knock up your maid if that’s what shook your peaches. But no way was the law going to recognize any progeny as your legal heir.

    See, I loves me some history so much I know you don’t even know what ours is, Leviticus.

    Comment by Steve57 (be3310) — 3/26/2013 @ 6:33 pm

    You may not have enjoyed the fact that Judge Kennedy shot down Olson’s fabrication for the exact same reason I (and I’m attributing good faith to you since though this equivalence is false it is widely taught as if it were true) shot it down when you attempted it.

    MR. Olson) And those issues that I’ve been describing are certainly fundamental to the case. And — and I don’t want to abuse the Court’s indulgence, that what I — you suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial — prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.
    JUSTICE KENNEDY: It was hundreds of years old in the common law countries. This was new to the United States.
    MR. OLSON: And — and what we have here -­
    JUSTICE KENNEDY: So — so that’s not accurate.

    But did you notice?

    Steve57 (be3310)

  307. Leviticus, I won’t argue about it. I thought I had made it clear I was talking about having AND raising children all along. Maybe I didn’t.

    Steve57 (be3310)

  308. Honestly, you’re right. I’m making this a pissing contest when it doesn’t need to be. My apologies.

    Since having children and raising children are both purposes of marriage – to your mind and mine – and since they don’t necessarily go hand-in-hand, would you say that there are two primary purposes to marriage?

    Leviticus (17b7a5)

  309. The Olson presentation, was on the whole pretty week, Kennedy was even suggesting to him, to bring up his game, Scalia was the only one who really asked probing questions, as for Kagan, the less said.

    narciso (3fec35)

  310. “You may not have enjoyed the fact that Judge Kennedy shot down Olson’s fabrication for the exact same reason I (and I’m attributing good faith to you since though this equivalence is false it is widely taught as if it were true) shot it down when you attempted it.”

    - Steve57

    I wouldn’t call it a fabrication. I would call it a different perspective.

    Let me ask a simple question: do you want to make the laws of other countries relevant to discussions of US law, or do you want to consider US law in a vacuum?

    You position (and Justice Kennedy’s position, indicating that miscegenation laws were an American innovation not known to the other common law countries) would seem to indicate that you want to discuss the law of other nations as thought it has a bearing on US law.

    Leviticus (17b7a5)

  311. Leviticus, here’s the difference between Chemerinsky and Steyn, Steyn is more honest about his opponents arguments.

    And that’s not a one-off snark about Erwin, I’ve despised him since I learned Constitutional Law from his mousy ex-wife, and had to read his vacuous columns in the California Bar Journal. Chemerinsky is notoriously dishonest in his oped pieces IMO.

    SPQR (768505)

  312. *Your
    *though

    Leviticus (17b7a5)

  313. The single issue I will be ignoring all others for is ruthless dismantling of government, with a top down strategy of decapitation.

    I know a lot of us are not tight with that program, and frankly most of that group will endure the biggest loss.

    Today it has become clear Cypriot depositors will loose everything over 100K euros in their accounts. The overwhelming majority Cypriot small businesspersons.

    The view of the observer falling into a blackhole is said to be unremarkable. Though they be lost to view from the outside, the stars will continue to shine for the lost.

    gary gulrud (dd7d4e)

  314. I’m not a huge fan of Chemerinsky either. His casebook is something of a slapdash affair, I would say.

    I still think he knows more about Constitutional Law than Mark Steyn, though. And I suspect I have the stronger argument.

    Leviticus (17b7a5)

  315. 310. Since having children and raising children are both purposes of marriage – to your mind and mine – and since they don’t necessarily go hand-in-hand, would you say that there are two primary purposes to marriage?

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 5:52 pm

    Yes. But I must point out that Judge Walker has accused of harboring irrational beliefs and hateful stone-aged bigotry for believing that one of those purposes might be a legitimate state interest.

    Which I can’t believe is a step forward.

    Steve57 (be3310)

  316. By “something of a slapdash affair,” I mean that it seems that he has thrown case upon case with little discussion or explanation in order to sell casebooks. Repeat as often as necessary (or, more likely, possible).

    Leviticus (17b7a5)

  317. Leviticus, I’m pretty serious about Chemerinsky. Many times, I read his oped pieces where he liked to assert that constitutional law “was” what he was arguing for, rather than what the actual Supreme Court decisions held. Be very cautious in reading his crap.

    SPQR (768505)

  318. - I thought the argument showing how outlawing interracial marriage was a recent and relatively brief phenomenon was interesting.
    - I actually think I said something sort of similar previously, but I was just thinking and shooting from the hip without much historical verification.
    - Hewitt talked about knowing Olson and wondered what it was like to argue a position he knew didn’t hold up.

    When Erwin Chemerinsky says something…well let me just say when I hear him I usually wonder what universe he is from.

    I will reprise my attempt at voicing what I think is the argument for yes SS but no to polygamy:
    A) The given assumption is that same-sex attraction is just as normal as heterosexual attraction
    B) So if two heterosexuals can get married, two people of same sex attraction should be able to get married, otherwise there is unequal treatment of those involved, whatever one thinks the purpose of marriage is and society’s interest in it
    C) OTOH, the desire for polygamy is not as normal as typical heterosexual or same-sex desire, so those who desire polygamy do not deserve equal protection under the law

    - At least that seems to me to be the most logical argument for those who favor SSM but not polygamy (or perhaps there is an argument that polygamy is not as important/equal in the stability of society as SS monogamy)

    MD in Philly (3d3f72)

  319. “But I must point out that Judge Walker has accused of harboring irrational beliefs and hateful stone-aged bigotry for believing that one of those purposes might be a legitimate state interest.

    Which I can’t believe is a step forward.”

    - Steve57

    Fair enough. Definitely fair.

    Let me ask my question a different way: if procreation and marriage have already been divorced in the heterosexual community (as your numbers indicate and I do not dispute), and gay couples want to do their part in contributing to childrearing – another primary purpose of marriage – aren’t the pros going to outweigh the cons? Or do you think that the cons (i.e. further damage to the marriage/procreation link) will outweigh the pros (strengthening of the marriage/childrearing link)?

    Leviticus (17b7a5)

  320. “Dave – The federal government is not defining marriage for the states in DOMA. In the federal tax code, who has the power to define marriage?”

    The states or the people have the power to define marriage. The feds do not. Per the Tenth Amendment.

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    And, because of that rule, DOMA is flatly unconstitutional.

    Dave Surls (46b08c)

  321. “A) The given assumption is that same-sex attraction is just as normal as heterosexual attraction
    B) So if two heterosexuals can get married, two people of same sex attraction should be able to get married, otherwise there is unequal treatment of those involved, whatever one thinks the purpose of marriage is and society’s interest in it
    C) OTOH, the desire for polygamy is not as normal as typical heterosexual or same-sex desire, so those who desire polygamy do not deserve equal protection under the law”

    - MD in Philly

    I think the problem with that argument is in premise A. Purely as a matter of statistics, same-sex attraction is not as normal as heterosexual attraction. But to my mind, that doesn’t matter if same-sex attraction can facilitate marriage. And that requires an analysis of the purposes of marriage in the context of same-sex attraction.

    I don’t think “normality” is the legitimating factor in the heterosexual/homosexual marriage debate. So it would be disingenuous of me to agree with you that “normality” could be the legitimating factor in the heterosexual/homosexual/polygamist marriage debate.

    Leviticus (17b7a5)

  322. I give up, let ‘em have Same Sex Marriage. Why shouldn’t gays be as miserable as the rest of us?

    SPQR (768505)

  323. Leviticus, I think that globally you could find a somewhat larger percentage of humanity engaged in polygamy than in homosexuality.

    SPQR (768505)

  324. it’s just like marriage except for it’s boy boy or girl girl I think Mr. SPQR

    but it CAN’T be boy girl or girl boy and still count as gay marriage then it’s just the regular kind

    we have to have rules

    happyfeet (8ce051)

  325. feets I think “we have to have rules” is a bad argument for gay marriage.

    “we have to have principles” is a better argument. then we argue which principles we’re talking about.

    Leviticus (17b7a5)

  326. The argument put forth in #319 is not an argument that I am putting forth, but the argument in a simplified, non-legalese version of what aphrael and others would say who think SSM is obvious and there is no reason to think polygamy is right behind.

    And yes, I think assuming “A” is very problematic, but it is putting that into law which seems to be the issue. If the issue was just equal treatment of SS couples and (hetero) marriage then civil union legislation, etc., could solve the problem.

    MD in Philly (3d3f72)

  327. You think the DOMA and prop8 cases have enough to make one scratch your heads…

    here you go in the “taste of your own medicine” department

    Apparently Smith College, an all-girl/female/women school in MA refused to consider an applicant who is a transgendered female (has male anatomy but consider him/herself female) and is now getting flack for it

    which is interesting for a college in MA, I would think, as public schools in MA, elementary through high school, must make such accommodations for transgendered students, such as allowing a transgendered girl (i.e. biological male) ro be on a female cheer-leading squad, including using the female locker room.

    Looking forward to seeing how this gets sorted out.

    http://news.yahoo.com/elite-womens-college-rejects-transgender-student-prompts-outcry-205108428.html
    via
    http://althouse.blogspot.com/2013/03/chaos-for-all-female-smith-college.html#more

    MD in Philly (3d3f72)

  328. Apparently Smith College, an all-girl/female/women school in MA refused to consider an applicant who is a transgendered female (has male anatomy but consider him/herself female) and is now getting flack for it

    which is interesting for a college in MA, I would think, as public schools in MA, elementary through high school, must make such accommodations for transgendered students, such as allowing a transgendered girl (i.e. biological male) ro be on a female cheer-leading squad, including using the female locker room.

    In their defense, they are a private college.

    Michael Ejercito (2e0217)

  329. Dave Surls – In the federal tax code, who has the power to define marriage? Do states and localities write the federal tax code?

    daleyrocks (bf33e9)

  330. In their defense, they are a private college.
    Comment by Michael Ejercito (2e0217) — 3/29/2013 @ 7:13 pm

    A good technical point, but what do you think the likelihood is that the majority of students and staff at Smith think the MA public school policy is wonderful?

    MD in Philly (3d3f72)

  331. “The argument put forth in #319 is not an argument that I am putting forth, but the argument in a simplified, non-legalese version of what aphrael and others would say who think SSM is obvious and there is no reason to think polygamy is right behind.”

    - MD in Philly

    Sorry, didn’t mean to imply that it was your argument – just that it was an argument that you were articulating.

    Leviticus (17b7a5)

  332. No sorry necessary, just wanted to clarify

    MD in Philly (3d3f72)

  333. 329.Apparently Smith College, an all-girl/female/women school in MA refused to consider an applicant who is a transgendered female (has male anatomy but consider him/herself female) and is now getting flack for it

    I have some sympathy for transexuals. When I was very young, I felt that I was a man trapped in a woman’s body. But my situation was ameliorated by my birth.

    nk (c5b7ef)

  334. I have a lot of sympathy for transsexuals, especially those whose dilemmas weren’t as easily solved as yours, nk

    I don’t have sympathy for people who think it’s a bright idea to make a bunch of children of one sex accept a child of the opposite physical sex in the same bathroom or locker room

    not even grad school could give a person such an idea, must have come from a post-doc

    MD in Philly (3d3f72)

  335. An interesting tidbit in the table of contents here;

    http://www.adfmedia.org/files/HollingsworthAmicusSocialScienceProfessors.pdf

    narciso (3fec35)

  336. nk #334,

    Ha, ha, well played. Very witty.

    Elephant Stone (a6253f)

  337. Some things are immutable, no matter how much we may wish “not have happened”. For a person to be cut in horrible ways to acquire his or her “true” sexuality is as unnatural a thing as I can conceive of.

    nk (c5b7ef)

  338. 312. I wouldn’t call it a fabrication. I would call it a different perspective.

    I called Olson’s extremely weak argument a fabrication because he agreed that if the SCOTUS found a right to SSM in the Constitution it would be entering uncharted waters. But then he tried to claim it also entered uncharted waters in the Loving decision when it declared anti-miscegenation laws that still existed in 16 states unconstitutional.

    I haven’t been to law school. But I can do math. There were 50 states in 1967. And only 16 had anti-miscegenation laws? That means for the other 34 states, and the federal government which never had such a law, it was hardly uncharted waters.

    It was a painfully stupid argument to make, and a painfully stupid way to make it.

    Let me ask a simple question: do you want to make the laws of other countries relevant to discussions of US law, or do you want to consider US law in a vacuum?

    You position (and Justice Kennedy’s position, indicating that miscegenation laws were an American innovation not known to the other common law countries) would seem to indicate that you want to discuss the law of other nations as thought it has a bearing on US law.

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 5:58 pm

    The laws of other nations? How do you discuss the historical roots of this nation’s understanding of marriage without among other things discussing the common law tradition which helped shape this nation’s understanding of marriage?

    Discussing the common law tradition is valuable as a history lesson. Which is why earlier I discussed the Julian marriage laws of Rome. After all Roman law is still reflected in the laws of Western Europe, and consequently our own.

    But it doesn’t mean I think the laws of other nations are applicable. It only goes to how we derived our laws and our understanding of social institutions such as marriage that they touch on.

    Steve57 (be3310)

  339. Comment by Dave Surls (46b08c) — 3/29/2013 @ 6:13 pm
    Dave – The federal government is not defining marriage for the states in DOMA. In the federal tax code, who has the power to define marriage?”
    The states or the people have the power to define marriage. The feds do not. Per the Tenth Amendment.

    – How great would it be if you actually answered the question daleyrocks asked you?

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
    And, because of that rule, DOMA is flatly unconstitutional.

    – Article I, Section 8, Clause 1
    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
    Article I, Section 8, Clause 18
    “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
    – Congress has the power to lay and collect taxes; they are constitutionally bound (note the use of “shall”) to impose taxes in a uniform manner; and, they are empowered to make laws necessary to carry out their enumerated powers … and so, the power that is not delegated to the United States by the Constitution and is reserved to the states is WHAT?
    You keep singing this same song, but you also keep hitting the same sour note. DOMA does not,
    Does not
    DOES NOT!!! tell any of the fifty states what they must or must not define as “a marriage.”
    And NO, the states are not empowered to define what the Feds accept as “a marriage.” You’re not gonna have an IRS wading through 50 different definitions of marriage.

    Icy (82b7b0)

  340. Unless I’m mistaken, the first US state to actively ban gay marriage was Alaska, in 1998.

    There were bans on miscegenation in Virgina from the 1650s til 1967/

    Bans on gay marriage = ~15 years

    Bans on miscegenation = ~315 years

    Leviticus (17b7a5)

  341. 321. “But I must point out that Judge Walker has accused [us] of harboring irrational beliefs and hateful stone-aged bigotry for believing that one of those purposes might be a legitimate state interest.

    Which I can’t believe is a step forward.”

    - Steve57

    Fair enough. Definitely fair.

    Let me ask my question a different way: if procreation and marriage have already been divorced in the heterosexual community (as your numbers indicate and I do not dispute), and gay couples want to do their part in contributing to childrearing – another primary purpose of marriage – aren’t the pros going to outweigh the cons? Or do you think that the cons (i.e. further damage to the marriage/procreation link) will outweigh the pros (strengthening of the marriage/childrearing link)?

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 6:11 pm

    Let me put it this way; I believe the link between marriage and procreation has already been severely damaged.

    But it will be severed if it becomes official US policy that procreation and marriage are entirely unrelated. If Judge Walker’s reasoning is accepted (which I actually doubt because not even the 9th Circuit used it even though it arrived at the same place) the link will be said to never had existed.

    If we can agree on the statistics, 48% of births in the US are now to single moms. It’s over 50% if you’re talking women without college degrees. It’s about 80% if you’re talking about women who never got a HS diploma.

    How do you reach them if the government is telling them that marriage and having kids are entirely unrelated? Like they meet guys they’d want to marry anyway. Nobody in their part of town has a job. They want a baby, they meet a guy who is good enough to be the daddy but definitely not good enough to marry.

    And what makes it worse, now the people most likely to tell them they need to wait to get married to have kids if they want to get out of poverty, and not doom their kids to repeat the cycle, have been officially designated as bigoted homophobic ignoramuses.

    Yeah, I think the cons outweigh the pros. Again, it’s just math.

    gay couples want to do their part in contributing to childrearing

    There won’t be enough to take up the slack.

    Steve57 (be3310)

  342. 342. Unless I’m mistaken, the first US state to actively ban gay marriage was Alaska, in 1998.

    There were bans on miscegenation in Virgina from the 1650s til 1967/

    Bans on gay marriage = ~15 years

    Bans on miscegenation = ~315 years

    Comment by Leviticus (17b7a5) — 3/29/2013 @ 11:08 pm

    No, you’re not mistaken. But then the anti-miscegenation bans actually banned something the common law allowed. And had taken place. In fact the reason for the laws in Virginia was because a large number of plantation workers were indentured servants from Europe. They were intermarrying with blacks and as blacks became a larger part of the workforce this became a problem for the plantation owners. So to divide the two groups they came up with anti-miscegenation laws.

    To stop something that was taking place.

    But still there weren’t anti-miscegenation laws in all states at all times. And it never was federal law so interracial marriage was always legal in federally administered territories.

    So, again, not uncharted waters to strike down laws that in 1967 only existed in 16 states.

    But the Alaskan ban on gay marriage didn’t ban anything that had ever existed.

    How can you say something that never existed since the first English explorer set foot on this continent until the 21st century has only been banned for 15 years?

    Steve57 (be3310)

  343. “So, again, not uncharted waters to strike down laws that in 1967 only existed in 16 states.”

    - Steve57

    I think you’re unduly downplaying laws that existed in %33 of the United States for (at least) %33 of the Common Law era.

    If you are arguing that the term “uncharted waters” might be inappropriate when discussing miscegenation (and appropriate in discussing gay marriage) then I agree with you.

    If you are arguing that there’s absolutely no valid parallel between the two, then I most certainly do not.

    Leviticus (17b7a5)

  344. I submit that if the term “uncharted waters” can only apply to one but not the other then it is an invalid parallel.

    for (at least) %33 of the Common Law era.

    I have to dispute that statistic.

    But more to the point, earlier you said.

    You position (and Justice Kennedy’s position, indicating that miscegenation laws were an American innovation not known to the other common law countries) would seem to indicate that you want to discuss the law of other nations as thought it has a bearing on US law.

    Yet then you bring up laws that were in effect in Virginia in the 1650s.

    Whose colony was Virginia in the 1650s?

    Does not the fact you bring up laws in Virginia in the 1650s indicate the common law tradition is relevant to the discussion of marriage?

    Steve57 (be3310)

  345. Since you guys like ancient history (leaving aside the self-serving mistranslations by pederastic Englishmen), Pericles, the ruler of Athens who had the power to, and did, wipe out entire cities for not paying tribute, was not allowed to marry his foreign-born mistress and his children by her were not considered Athenian citizens. The rules against miscegenation were an extension of the monkey reflex “see the stranger, fear the stranger, hate the stranger”. Protect the group. As you guys have been pointing out, homosexuals cannot procreate among themselves, so there is no danger of polluting the pure Aryan heterosexual bloodlines with gay, mud people genes. Miscegenation laws are a red herring in the SSM debate.

    nk (c5b7ef)

  346. nk, you are of course correct. The pro-SSM people apparently think it’s a clever trick, and they get angry when we (or Justice Kennedy) tell them we see through it. So they keep bringing it up, almost as if to say, “we’re smarter than you and we thought this up so don’t you dare tell us you see through our brilliant smoke screen.”

    Steve57 (be3310)

  347. mostly I think the people what want to ban the gay marriagings are just afraid

    but gay marriage don’t scare me no sir

    things what scare me are include the 405 North, World of Warcraft, America’s obscene debt and all the spendings, raw chicken, facebook, the LAPD, and hitting a weight loss plateau

    happyfeet (8ce051)

  348. The laws of other nations? How do you discuss the historical roots of this nation’s understanding of marriage without among other things discussing the common law tradition which helped shape this nation’s understanding of marriage?

    Discussing the common law tradition is valuable as a history lesson. Which is why earlier I discussed the Julian marriage laws of Rome. After all Roman law is still reflected in the laws of Western Europe, and consequently our own.

    But it doesn’t mean I think the laws of other nations are applicable. It only goes to how we derived our laws and our understanding of social institutions such as marriage that they touch on.

    Justice Kennedy noted that interracial marriages were recognized under common law, and the Supreme Court often relies on common law to determine if a liberty interest is protected. See Washington v. Glucksberg, 521 U.S. 702 at 711-717 (1997) In Zablocki v. Redhail, Justice Powell noted that the case was about laws that interfere “with the decision to marry in a traditional family setting“, 434 U.S. 374 at 396 (1978) (Powell, J., concurring) (emphasis added) and that “State regulation has included bans on incest,
    bigamy, and homosexuality, as well as various preconditions to marriage,
    such as blood tests.” id. at 399 (emphasis added) And the Sixth Circuit observed, “marriage as it was recognized by the common law is constitutionally protected, but this protection has not been extended to forms of marriage outside the common-law tradition”) Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703 at 711 (6th Cir. 2001)

    For a purpoted liberty interest to be a fundamental right, it must be carefully described and be deeply rooted in our nation’s history and tradition. Glucksberg, 521 U.S. at 720-721 And it is plain and clear that the fundamental right to marry is a right to marry one person of the opposite sex. That alone should be enough to reject equal protection challenges on the basis that the government does not ban marriage as recognized by “the common-law tradition”. Vaughn, 269 F.3d at 711. One is protected by substantive due process, the other is not.

    To be sure, this would not apply if SSM was banned, but not other forms of marriage outside the common-law tradition such as polygamy. A court ruling striking down an SSM ban on the basis that polygamy is not banned would not be declaring SSM bans to violate equal protection on its face or that SSM is a civil right per se, but only as applied to jurisdictions that recognize polygamy.

    Michael Ejercito (2e0217)

  349. That said, there is in my opinion no way to recognize a constitutional right to SSM which does not also create a right to polygamy – and this was predicted by Scalia’s dissent in Lawrence.

    In his book Same-Sex marriage and the Constitution , Evan Gerstmann summarizes the counter-arguments to the arguments made by Olson about polygamy during Tuesday’s oral arguments.

    “When academics have addressed polygamy, they have treated it with the sort of contempt and indifference that they decry when directed at other marginalized people.” Gerstmann, at 106 (emphasis added).

    “[V]ague, speculative generalizing about the potential evils of nontraditional families [such as polygamous families] is exactly the sort of attack that has so often been used against same-sex couples.” Id. (emphasis added)

    “The argument equating polygamy with patriarchy is oddly indifferent to the views of the very women whom the polygamy ban purpotedly protects.” id.

    “As with the patriarchy argument, this [arguments that polygamy could diminish the emotional bond of marriage] is the sort of seat-of-the-pants sociology that some have used to paint same-sex relationships as shallow, perverse, and so forth.” id. at 107

    “[Some have argued that] polygamy has been rife with abuses- including forced marriages, sexual exploitation of minors, and welfare dependency. This is the sort of fallacious argument that all social scientists should avoid. When a lifestyle is illegal and driven underground, that circumstance can lead its practioners towards antisocial behavior. ” id. at 108, citing Chapman, Steve,

    Two’s Company; Three’s a Marriage, Jun. 5, 2001

    Of course, none of this means that anti-polygamy laws would fail rational basis. Concerns about abuse, steering procreation towards monogamous opposite-sex couples, upholding marital fidelity are each sufficient in themselves to reject constitutional challenges under this level of scrutiny.

    But under strict scrutiny, these asserted interests would not be sufficient, for the ban is not narrowly tailored to these interests, nor is the least restrictive means of achieving these interests.

    Michael Ejercito (2e0217)


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