Judge Stuffs Stupid Argument, Film at 11

The drive to have the ruling which declared California’s Prop 8 unconstitutional vacated because the judge who issued it might conceivably one day wish to marry his same-sex partner meets a welcome and unceremonious end. This from the ruling (pdf link):

Finally, the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

Let’s get the response from the same sex marriage hating out of the way: Blah blah blah activist judge blah blah blah eroding moral standards blah blah blah will of the people blah blah blah SLIPPERY SLOPE WHERE ONE DAY MEN WILL MARRY THEIR SISTER WHO IS ALSO A LESBIAN BADGER. I think that covers it.

Oh, and a federal bankruptcy court ruled that the Defense of Marriage Act is invalid. Plus: New York state within one vote of legalizing same-sex marriage. Busy day.

(Incidentally, the ruling document is worth the read, not only for the reasoning but for lines like this:

In this context, [a] “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather a “well-informed, thoughtful observer” who “understand[s] all the relevant facts” and “has examined the record and law.”

Nice.)

252 thoughts on “Judge Stuffs Stupid Argument, Film at 11

  1. Oh, look, the Mallet of Loving Correction wants to come out and play! Well, we’ll just keep it in its special warming chamber for now. But I’ll remind people that as this is often a contentious topic, it’s especially nice to play well with others while discussing the the issue at hand. Thanks.

  2. SLIPPERY SLOPE WHERE ONE DAY MEN WILL MARRY THEIR UNDERAGE SISTER WHO IS ALSO A LESBIAN BADGER (missed that)

  3. This is a good day for some civil news!!

    (although the Lesbian badger bit almost made me snort Iced tea onto my keyboard)

  4. I personally don’t care if someone wants to marry a goat, a train a lesbian badger or a fire hydrant. More power to them. However, I do have a problem with the activist judge thing. If you can’t get the legislation through the proper channels just backdoor them (not a pun no matter how it looks). Executive, Legislative and Judical – one of these things is moving out of it’s constitutionally appointed lanes. Guess which one.

  5. Aaaaand Elgion gets the first “I apparently don’t have the slightest clue how the Constitution works” award for the thread. Hint to Elgion: Just because you don’t understand how the Constitution works (or alternately, you wish it worked other than how it does) doesn’t mean that the Constitution, and any particular branch of government it created, isn’t working as it’s supposed to.

    Also, this “activist judge” was appointed to his current post by George H.W. Bush. Always inconvenient when an “activist judge” is appointed by a Republican.

    Also also, if I didn’t make it clear by mocking it in the original article, “activist judge” is a phrase which nudges the Mallet of Loving Correction closer to release, because it bespeaks a certain poverty of understanding which I do not encourage here. Let’s try not to use it, all right? Thank you.

  6. (reads post #8… pops some popcorn…)

    And it’s lesbian HONEY badgers, John. Details matter.

  7. Speaking out of turn as usual I would like to say that anyone who chooses to get married to anyone/anything/whatever deserves all the sympathy they can get and should be allowed to just get on with it.

  8. I am a proponent of same sex marriage but the ‘slippery slope’ argument is probably not fair to dismiss out of hand. In Canada right now there is a judicial review on the criminalization of polygamy and the legalization of same sex marriage and many of the arguments used to support it are being brought out in favour of repeal. Had this occured ten years ago before the legal arguments in support of same sex marriage had been accepted as sufficient to warrant changes in the law, the challenge would be dead in the water without a legal precedent to stand on. While I honestly can’t say whether polygamy ought to be criminalized or not (I have poly friends but also see the inherent abuse in places like Bountiful) it is crystal clear that legalizing same sex marriage is what opened up the door to reviewing the legal status on polygamy.

    Same sex marriage opponents can be demolished on their dozens of vacuous claims but that it offers a slippery slope is the only one they have that actually has truth to it, and dismissing it offhandedly with the rest of their nonsense isn’t honest.

    Changing the legal status of a non-mainstream lifechoice is going to have other non-mainstream lifechoices try for the same social and legal acceptance using the same arguments. Anyone who claims otherwise is being naive and willfully blind.

  9. Elgion @8: Replace “someone wants to marry a goat, a train a lesbian badger or a fire hydrant” in your comment with “a black family wants to send their kids to the same school as white people”, and you have the same very argument made by some people after Brown v. Board of Education.

  10. Yay! One more step to where all people who love each other can have the same thing my wife and I do! Like hospital visit rights!

    I never understood why anyone would want to keep two people who love each other from visiting when one is in the hospital. Even if they aren’t married! Where did this family only thing come from???

    What will interest me from a sociological standpoint is what this will do to the divorce rate in the future…

    Lower? Higher? Steady? It will be interesting to watch!

  11. Beth:

    “the ‘slippery slope’ argument is probably not fair to dismiss out of hand.”

    Sure it is, because the slippery slope in these cases never go to “consensual polygamy among adults,” they always end up at “marrying a horse or one’s sibling.” Not all slippery slopes are the same, and not all of them are legitimate concerns.

    For the record, my position on polygamy.

  12. Beth – as long as the people in a poly marriage are consenting adults I guess I don’t see the problem. That’s really the issue here or at least part of it – that the state should stay out of who can marry what in what arrangement as long as the parties involved are 1) legal adults and 2) freely consenting.

  13. However, let’s try not to turn this into a thread on the virtues (or not) of polygamy; it’s a bit of a derail from the primary topic at hand.

  14. What continues to amaze me about the backers of Prop. 8 is that they seem to think that their argument-from-tradition is enough to carry the day. Still! It was good enough for them and should be good enough for anyone else, and only special circumstances would rule against them.

    I read Judge Walker’s decision. It was a beauty, but basically, he decided based on the fact that the Prop. 8 people did not make a case; no facts, no studies, just assertions.

    “Activist judge”=”Judge who rules against you”

  15. “…will of the people blah blah blah…”

    Heh. Every now and then I have to remind someone (fortunately not the same person) that this country isn’t ruled by the majority, it’s ruled by the Constitution. So just because Prop 8 got a majority of votes doesn’t make it law.

  16. Changing the legal status of a non-mainstream lifechoice is going to have other non-mainstream lifechoices try for the same social and legal acceptance using the same arguments.

    I honestly don’t see the problem with that. If legalizing same-sex marriage (or anything else) causes people to re-examine their previous positions, I don’t see why that’s a bad thing. We should rethink our long-held positions from time to time. This is what I don’t like about the “slippery slope” argument: it assumes people are incapable of determining whether similar situation is truly analogous.

  17. Good to smack down the Activist Judge label. Our legal system calls on judges to determine whether or not a law approved by the democractic process has, to use Elgion’s phrase, stayed in the constitutional lane. The fact that the law in question is a product of democracy is beside the constitutional point. Imagine California’s Proposition 8 outlawed not gay marriage, but allowing gays to own property. Or vote. Judge Walker could and would strike down such a law, and would do so safely within his “constitutionally appointed lane.”

    As for the judge’s duty to disclose, I would freely concede that if the litigation involved a small, discrete group of people whose rights were in question, and if the judge were a member of that group, then the better practice would be to disclose. But to me, the question turns largely on (a) the size of the group, and (b) the strength of the link between the case before the judge and the group’s interests.

    For example: if a judge were a member of a country club that was being sued over its segregation policy, I would hope the judge would at least disclose his club membership; in fact, I’ll go further and suggest that the judge has a duty to recuse himself. If the judge were not a club member, but a golfer who sometimes played at the club? Different question. If a judge were a member of the Kiwanis Club, he should consider (depending on the facts of the case) whether he should recuse himself from presiding over a trial where the Kiwanis Club is a party. But the Kiwanis chapter being sued or suing doesn’t have anything to do with the judge’s local chapter, maybe recusal wouldn’t be necessary. Or maybe so. Recusal questions invariably turn on the specific facts of each case.

    Here, to try and apply the judge-in-an-interested-party grounds of disqualification solely on the basis of his being gay is nonsense. That group — gay people — is too big and too diverse to let a reasonable person believe that the judge’s personal interests are necessarily at stake. Judge Ware’s opinion states it well: “the mere fact that an individual is in a relationship with a person does not necessarily imply that that individual is interested in getting married to that person at all[.]” Indeed.

  18. Jim C. @2:

    Are the lesbian badgers the best when it comes to competitive badger grooming?

    Because that would be FABULOUS!

    The real question, though, is: can lesbian badgers impartially judge the sport of competitive badger grooming?

  19. @8,Eglion

    I personally don’t care if someone wants to marry a goat, a train a lesbian badger or a fire hydrant. More power to them. However, I do have a problem with the activist judge thing. If you can’t get the legislation through the proper channels just backdoor them (not a pun no matter how it looks). Executive, Legislative and Judical – one of these things is moving out of it’s constitutionally appointed lanes. Guess which one.

    So, the Judicial has no right to declare a law as unconstitutional? So, how do you feel about Loving v. Virginia or Brown v. Board of Education?

    @22,KSB

    Good to smack down the Activist Judge label. Our legal system calls on judges to determine whether or not a law approved by the democractic process has, to use Elgion’s phrase, stayed in the constitutional lane. The fact that the law in question is a product of democracy is beside the constitutional point.

    Indeed. Remember anti-miscegenation laws? Very popular back in the day before Loving V. Virginia ruled them uncostitutional but I think only the most racist fo bigots would call that ruling the work of an “activist judge”.

  20. Let me be clear. Same-sex marriages are okay by me in the context of our constitutional republic if duly enacted into statute by the elected representatives of the people or amended into the State or Federal Constitutions through the legal constitutional process.

    What bothers me about California’s Proposition 8 being vacated by the judge is that the legal consitutional process was in fact followed to make Prop 8 part of the California statutory system. Those opposed to Prop 8 should have mounted their own campaign to change the law through the statutory/constitutional process.

    Ah, but they did in the courts some say. No. No. No. I do not think any judge or bank of judges including the US Supreme Court should be able to declare a part of a Federal or State Consitutional Amendment duly adopted as “unconsitutional.” Judges may have judicial review of statutes. No judges have or should have judicial review of the language of any Constitution. Period. If a Consitutional change is wrong-headed then let the people repeal it as was done with the repeal of Prohibition of Alchohol. The Consitution itself in a State or at the Federal level to me is above judicial review. Yes, even State Consitutions should not be judicially reviewed by the Federal US Supreme Court.

    And yes, I know. Some State might amend their Consitution to be at variance with the Federal Consitution. So be it. The States created the Federal government and Consitution, not the other way around. If such a variance occurs the Feds can cut off Federal funds to the state. But a Constitution is the Supreme Law. Judges should not have judicial review over them. Prop 8 became part of the CA Consitutional law. In my view the judge who vacated it (and was upheld in that action) simply did not have jurisdiction to make the ruling.

    Otherwise, how do the majority of people ever have the right to make their own Constitutional law without their efforts blocked at times by a minority of the people. To accept the vacating of Prop 8 as legal is to be opposed to majorities having ultimate say and control over Constitutional law.

    And for the record, I usually vote for Democrats. I am not a right-wing nut.

  21. hugh57 @23:

    Would those be activist lesbian badger judges?? You know what – probably still fabulous…

    To make a borderline serious point, I personally LOVE the slippery slope argument. I especially love reversing it – if marriage between two women is illegal, how long before marriage between a woman and a man is made illegal? And then where will it end? Soon enough marriage between a woman and her Savior will illegal!! Won’t someone think of the nuns?? Sometimes pointing that out makes folks realize how stupid the whole “slippery slope” concept is when it’s applied to things that aren’t truly analgous, but usually they just walk away muttering under their breath.

  22. I am always amazed by the logic to protect an institution we must limited who can participate in that institution. One of my great passions is for equality, if you’re to treat people differently you had better have some stellar reasons in my book.

  23. I don’t want to pile on, but really, Mr. Willis? You write: “Some State might amend their Consitution to be at variance with the Federal Consitution. So be it. The States created the Federal government and Consitution, not the other way around.”

    Yes, true, but in doing so the states agreed that the United States Constitution was the supreme law of the land. It’s in the Supremacy Clause. For real! It says that the United States Constitution is binding even over the constitution or laws of any state! I know, I know — crazy Founders.

    So, when you write that “Judges should not have judicial review over [state constitutions],” that’s just flat out wrong. I think your error comes in conflating state constitutions with the federal one. I don’t know how else to explain your statement that “No judges have or should have judicial review of the language of any Constitution. Period.” Um, well, what if the California Constitution were amended to prohibit you from posting comments to Whatever? Is that okay? Or do you want a judge to review your First Amendment claim?

    And if you think that state constitutions can never violate the federal constitution, that’s just not correct. Would that it were so.

  24. Or did it? Did Prop 8 amend the CA Consitution or just add a CA statute? Being from Texas, I thought the Prop votes in CA amended their constitution. If CA Prop votes only create a new statue, disregard my point on consitutional law above. The judge could certainly judicially review a statute change. If a statute, sure judicially review it. If a consitutional change enacted by proposition vote, then no judicial review allowed. That was my central point.

  25. @25, Gary Williams

    Ah, but they did in the courts some say. No. No. No. I do not think any judge or bank of judges including the US Supreme Court should be able to declare a part of a Federal or State Consitutional Amendment duly adopted as “unconsitutional.”

    A state constitution cannot violate the US Constitution. So if a state makes their constitution violate something such as, oh, the Equal Protection Clause of the US Constitution, then yes, the judge can rule a state constitutional amendment as unconstitutional in regards to the document that all laws must be judged from in our country. Sorry, that argument doesn’t float.

    Otherwise, how do the majority of people ever have the right to make their own Constitutional law without their efforts blocked at times by a minority of the people.

    One could argue that things such as the Equal Protection Clause were specifically designed to protect the rights of the minority against the unfairness of the majority.

    To accept the vacating of Prop 8 as legal is to be opposed to majorities having ultimate say and control over Constitutional law.

    When the majority inacts a law that is, by nature, unconstitutional, it doesn’t matter that they were the majority.

    And for the record, I usually vote for Democrats. I am not a right-wing nut.

    Is that the political version of someone saying something biased and saying “It’s ok for me to say this, I have X-minority friends?”

  26. There is no daylight, as far as the Supremacy Clause goes, between state constitutions and state laws. So your central point is beside the point.

    Okay, okay. I’m done.

  27. Gary Willis:

    “Same-sex marriages are okay by me in the context of our constitutional republic if duly enacted into statute by the elected representatives of the people or amended into the State or Federal Constitutions through the legal constitutional process.”

    However, those are not the only ways by which, under our constitution, same-sex marriages may become legal in our country. And of course, whether those other ways are okay by you is neither here nor there as regards their validity in a legal and constitutional sense.

    If you want to change that, you better get to changing the Constitution of the United States.

  28. @26 gary
    The 14th admentment incorporates the states into the US Constitution, the states cannot legally be in variance to the US Constiitution, they are bound by it. (1861-1864 settled the question.) Supreme Court case laws establishes ‘marriage; as a ‘right’, so the throny question is how much leeway do the states have in adjuctating this right. There arghuments that can be made against the ruling throwing out Propr 8, but the argument the people passed it so it rules is not one of them,

  29. @25 says “And yes, I know. Some State might amend their Constitution to be at variance with the Federal Constitution. So be it. The States created the Federal government and Constitution, not the other way around.”

    We kind of fought a war around that point, and your side lost it. Or do you think we ought to set the Confederacy back up again?

  30. The argument that a gay judge can’t rule impartially on homosexual issues sure sounds like a nice example of the definition of prejudice.

  31. Jim C: @26:

    Would those be activist lesbian badger judges??

    That would be a concern, yes. But in a country the size of the US, I’m sure we could find some conservative lesbian badger judges to balance things out. ;-)

  32. UnholyGuy:

    Let’s be careful making assumptions about Mr. Willis’ core beliefs regarding the Civil War and/or the Confederacy, please. We’re wandering toward an ad hominem argument that doesn’t do anyone any good.

  33. KSB @ 29

    Oh, yeah, the Supremacy Clause. I concede your point. But why should that clause be given more weight than say the tenth amendment? For more than a century the Feds have made laws boldly accreting power to themselves that was reserved to the States. And we ignore the tenth amendment when they do. Why not ignore the Supremacy Clause when it comes to it? Here is thought experiment. A state amends their Consitution to prohibit private ownership of guns in their State. The Fed second amendment as recently interpreted says US citizens can own them. So in that State one could argue that State citizens living there can no longer own guns in that State, but any non-State (US citizen) can be in the State on business, vacation, etc. and still own and carry (properly permitted from home) their gun. Like I said, a thought experiment.

    Truth is, the Supremacy Clause seemed like a good idea at the time, but it may have run out its day. I am tiring of watching our Federal government accrete power to itself that the States reserved to themselves.

  34. Gary Willis:

    “Why not ignore the Supremacy Clause when it comes to it?”

    Suggesting that parts of the Constitution should be ignored is not at all a persuasive legal argument.

    Likewise:

    “For more than a century the Feds have made laws boldly accreting power to themselves that was reserved to the States.”

    Cites, please, otherwise this is chalked up as hyperbole. To make your argument effective, please cite cases where, in fact, it was not determined that the state law/constitution ran counter to the Constitution of the United States.

  35. @40, Gary Willis

    But why should that clause be given more weight than say the tenth amendment?

    Because in this case it directly applies to the situation and thus should have more weight?

    Why not ignore the Supremacy Clause when it comes to it?

    Because the structure of the government as it stands is such that you can’t. Reality is difficult, I know.

    Truth is, the Supremacy Clause seemed like a good idea at the time, but it may have run out its day. I am tiring of watching our Federal government accrete power to itself that the States reserved to themselves.

    Ok? And how does that have any actual impact on the conversation at hand?

  36. The other big legal decision today was the Wisconsin Supremes declaring (4-3 on party lines) that a Dane County judge overstepped her authority in declaring the Walker Anti-Union law should not take effect because the legislature didn’t comply with Wisconsin Open Meeting laws.

  37. Gary Willis@40: If the state can override the constitution, the all of the rights in the bill of rights are essentially meaningless. That would have been obvious to those who wrote both.

  38. Thank you John. I really don’t much care anything about the US Civil War. Equal protection of the laws when added to our Consitution post Civil War was to make it clear that the newly freed black folk has the same rights (and responsibilities) the white folk had from day one. But after a century I observe that the phrase has been expanded to mean far more than what it meant when ratified.

    Take marriage. One does not go to a Federal court to get married. One goes to a local courthouse to get that marriage certificate. So to me “marriage” is wholly an issue for the various States to decide for their State. Why we could have 50 different definitions of marriage under our system. Equal protection means that in any State one ethnicity of citizens cannot be denied marriage permitted to others. Equal protection does not extend to gender issues. Otherwise, why did we attempt an equal rights amendment for women (which failed)? Just thinking out loud about how simple phrase are stretched far beyond their orignial meaning in our court system and the new meanings somehow become law shortcircuiting the representation process of our legislatures. I do not much care for legislative interpretation of law, even consitutional law, being expanded by judges to suit the spirit of the times. Make the changes legislatively.

  39. I definitely didn’t want to turn this into a polygamy discussion but was trying to point out that already the ‘slippery slope’ has started being encountered. The same occured following the Lawrence v. Texas (decriminilization of sodomy) and Perez v Sharp (decrimilinilzation of miscegenation) and a very reasonable argument could be made that these current rulings on same sex marriage are in fact the slippery slope of those rulings. It is a fundamental and core feature of the common law system that precedent will slowly expand in scope over time. This is how we got from Santa Clara County v Southern Pacific Railway to Citizens United v Federal Election Commission, the slow and gradual expansion of precedent to broader and less related issues.

    You are definitely correct that some same sex marriage opponents use rediculous overexageration for the slippery slope impacts this may have (at least within the forseeable future) but the majority of them have restricted their commentary to polygamy, incest, and age of consent issues where this legitimately could impact legal decision making.

    Also I should be clear that simply because this does potentially expose the legal system to slippery slopeitis is not a sufficient reason to oppose same sex marriage, merely that dismissing it as being just as silly as the rest of their grab bag of bigotry is not a reasonable or fair response. The fact that they are wrong about everything else doesn’t necessarily mean that they are wrong about this. There is plenty of basis to oppose and mock them with their other arguments without exposing ourselves as closemindedly ignoring legitimate (if overblown) points.

  40. Okay John, try on Education. Where in the granted powers to the Federal government were they given power to legislate in regard to public education. Education was one of the many powers reserved to the States. Yet, now we have a Department of Education and slews of Federal education legal statutes. I teach. I know. What constitutional amendment granted the Feds power to legislate at on on the issue of public education? Answer. None.

    Using the premable “to promote the general welfare” as was done to justify the Education legislation essentially strips away any constraint on what the Federal government can or cannot do. One can always argue that the new Federal law promotes the general welfare of the nation. Hence, using the Consitution’s preamble to justify Federal legislation seems to me to be where we went wrong almost as soon as the ink dried on the document.

  41. @45, Gary Willis

    Equal protection means that in any State one ethnicity of citizens cannot be denied marriage permitted to others. Equal protection does not extend to gender issues. Otherwise, why did we attempt an equal rights amendment for women (which failed)?

    And you continue to be wrong. Equal protection has been ruled in regards to everything from skin tone to racial background, ethnicity, gender, sex, religion, and any other number of protected statuses through a variety of court cases.

  42. Philosophically, the struggle remains between Statists who would concentrate power in the central authority and Non-Statists who would preserve a dual system of Federalism. One can argue that the Civl War result resolved the issue in favor of the Statists. Prop 8 was a CA approved change. One enacted it applied equally to every citizen of CA (so no equal of protection issue could emerge). If only a statute addition, then sure judicially review it. If a CA consitutional change, then hand off CA judges. Federal judges under the supremacy clause could look at it (I conceed the point commentators), but no on equal protection grounds. What ground remain for Federal judicial review?

  43. Matt @49

    Oh, you are so right. Equal protection has been expanded to all the parties you mention. My point was that that very expansion was done by judicial interpretation, not by consitutional amendment to include all the added parties. I would prefer we change the meaning of phrases and language in our consitution by amendment, not by interpretation.

  44. The gay judge SHOULD recuse himself, as the law would effect him. Likewise, any straight judges should also recuse themselves, for the same reason (since DOMA, Prop Str8, etc are “protecting” their marriages, actual or potential. Bisexual judges ditto. In short, if a judge can, or can’t, be legally married they have a vested interest.

    I’m open to suggestions as to what type of judge could be impartial — maybe an amoeba with a JD? But then it would have to be appointed and confirmed to a Federal Court, which the Republicans have apparently decided isn’t going to happen until one of their own occupies the White House.

    It is a puzzlement.

  45. I googled CA Prop 8. It was an amendment to the CA Consitution. A Federal judge vacated it on judicial review (okay by the Supremacy Clause). At the end of the day I am taking exception to the judge’s rational that it violated the US Constiution in any way form or fashion. It applied to all CA citizens of any race, gender, sexual preference, etc. so no equal protection issue could shoot it down. Plus, defining what marriage is or is not legally is a State power, not a Federal one. No seeks their marriage certificate at a Federal courthouse. 50 different States could have 50 different definitions of marriage. I think this last point is what many cannot stomach, that we can have far more diversity in this nation of ours than we do at present.

    Got other things to do. Enjoyed the conversation all.

  46. Gary Willis:

    Well, you can take exception to it all you like. It doesn’t change the validity of the ruling, however. Likewise, you have a lot of established case law going against your interpretation.

  47. “Aaaaand Elgion gets the first “I apparently don’t have the slightest clue how the Constitution works” award for the thread. Hint to Elgion: Just because you don’t understand how the Constitution works (or alternately, you wish it worked other than how it does) doesn’t mean that the Constitution, and any particular branch of government it created, isn’t working as it’s supposed to.”

    How do we know how it’s “supposed” to work on this issue? It’s all a matter of subjective interpretation and judgement. As I read it, the Constitution requires marriage laws to provide the same rights to same-sex couples as opposite sex ones. But that’s just my (very inexpert) legal opinion. I wouldn’t pretend it has the status of objective fact.

  48. Gary you really don’t seem to grasp how the law or the Constitution works.

    Equal protection is violated because it DOES apply differently to different citizens. Likewise if we installed a machine at the door of all buildings that let you in if your skin reflected a sufficient amount of light it would still be racial discrimination because by PURE COINCIDENCE that restricts the people we were trying to end run the law around to discriminate against.

  49. We have, in this here republic, a constitutional tradition—not of the oldest vintage, but now fairly well-established—that it is a bad idea for the law to treat women and men differently. Such laws are not regarded with as much suspicion as laws that treat black and white people differently, but they are still frowned upon. This is the foundation for judicial decisions regarding same-sex marriage in Massachusetts (represent!), Iowa, and California.

    If the Zero-One-Infinity Rule were likewise part of our tradition, then a fair-minded judge would have to permit groups of any size to form marital unions. However, that is not the case. So there is no slippery slope leading from same-sex marriage to polygamy by judicial fiat.

  50. Jamestown:

    “How do we know how it’s ‘supposed’ to work on this issue?”

    By knowing the Constitution well enough to understand what powers are given to each branch of government, and likewise to understand that they are co-equal.

  51. Philosophically, the struggle remains between Statists who would concentrate power in the central authority and Non-Statists who would preserve a dual system of Federalism.

    Statism means “concentration of economic controls and planning in the hands of a highly centralized government often extending to government ownership of industry”. How on earth is striking down laws that tell people they cannot marry statist? Besides, I don’t think requiring states to follow the U.S. Constitution means consolidating power in a central authority. States have had to follow the U.S. Constitution from either the day it was ratified, or the day the joined the union.

    One can argue that the Civl War result resolved the issue in favor of the Statists. Prop 8 was a CA approved change. One enacted it applied equally to every citizen of CA (so no equal of protection issue could emerge). If only a statute addition, then sure judicially review it. If a CA consitutional change, then hand off CA judges. Federal judges under the supremacy clause could look at it (I conceed the point commentators), but no on equal protection grounds. What ground remain for Federal judicial review?

    The problem is that the courts don’t see it your way on the equal protection issue. Yes, if the court agreed with you that there was no violation of the U.S. constitution, then federal judges would not have reviewed it. But they didn’t. Sorry.

    It applied to all CA citizens of any race, gender, sexual preference, etc. so no equal protection issue could shoot it down. Plus, defining what marriage is or is not legally is a State power, not a Federal one. No seeks their marriage certificate at a Federal courthouse.

    The same argument could be made for laws against interracial marriage: it equally prohibited a white person from marrying a black person as it did a black person marrying a white person. Sorry, but that logic has been rejected.

    By the way, just because marriage laws are a state responsibility does not give the states a right to enact marriage laws that violate the constitution, no more than the state’s responsibility for trying most murder cases gives them the right to try those cases in a way that violates of the constitution.

  52. Gary’s argument, that marriage is within the purview of the states, is a point I take seriously. And on that basis I would say DOMA is unconstitutional. Some states have common-law marriages and some don’t for example.

  53. hm.

    so

    if
    the local diner gets its business license from the local town it is in.
    and
    the local town says that segregation based on race is legal.
    then
    the federal government cannot override?
    rights in the federal constitution do not applly?

    that has to be the dumbest argument I have heard in a long time.

  54. so if a law is passed via elected representatives (congress and president) then the judicial branch cannot rule it unconstitutional without gaining the ‘activist judge’ label?

    that means that all laws are always constitutional.

    brilliant. the founding fathers are spinning in their graves.

  55. I was half asleep when I read the first post as “The Mullet of Loving Correction,” which to me is a lot more terrifying.

  56. Man, that was a terrible argument that would have made a mess of the courts. It was so obviously flawed. I hate prop 8, but I would have hated the argument against the judge even if it sprang from a different case. So, double yay.

    Bob @#62: No lie. I don’t know which I’d fear more – the business or the party.

  57. Gary Willis @52, “50 different States could have 50 different definitions of marriage. ”

    It’s called the “full faith and credit clause.” While they may have different laws, they need to respect the laws of other states. DOMA is still working through the courts (IIRC), but more than likely will be struck down (IMHO) because it’s in opposition to the full faith and credit clause.

    Next up, the well worn and wrong argument that “States shouldn’t be defining marriage.”

  58. Just to be clear, the correctness of Judge Walkers ruling with respect to the California Constitution is still in doubt and still being litigated.

    This ruling (which was correct in my view) was a side-show attempt to have the case re-tried by claiming the judge should have recused himself because he’s gay. Which is as absurd as saying a black person must recuse themselves on an affirmative action case.

    The underlying dispute over Proposition 8′s validity is still pending in an appeals court.

  59. >I personally don’t care if someone wants to marry a goat
    -
    Assuming male human and fem goat and a non sexless
    marriage that would be cruel to the goat: The human penis
    is something like way to big around and non self lubricating
    for nanny to like.
    So, I’m going go be all ASPCA on you ;p
    -
    BTW, I saw a youtube video of a honey badger catching
    and eating a cobra.
    Men who haven’t been circumcised should note that cobras
    have hoods.

  60. What if she is a European Badger and not a good wholesome American Badger and you suspect the whole thing is front for a green card marriage? Where will it end?

  61. I thought it was a lesbian box turtle. Where did this whole “badger” line of thinking come from?

  62. “By knowing the Constitution well enough to understand what powers are given to each branch of government, and likewise to understand that they are co-equal.”

    Since people far more learned in the Constitution than you disagree strongly about what that document means with respect to this issue, this isn’t terribly helpful.

    But never mind. You’re in your silly mode. I get it.

  63. Since people far more learned in the Constitution than you disagree strongly about what that document means

    Since there is no reference, no substance to the statement, this is a silly statement to a serious statement.

    Try again. Put some effort to it, this time. And remember, assertions are NOT arguments, so don’t insult our intelligence.

  64. thus far there have been three references in this thread that are hilarious.

    all laws are constitutional if passed by elected politicians.

    anything that is bureaucratically administered at the state or local level is completely immune from federal rights in the constitution.

    badgers.

    because badgers are hilarious.

  65. Jamestown:

    “You’re in your silly mode.”

    And you’re in your “rather obtusely missing the point,” mode, apparently. You’re focusing on the outcome of the particular case; I’m discussing the constitutional mechanisms that allow the judiciary, legislature and executive branches to do their work in a co-equal manner. These are two separate things. Please try to keep up.

    As regards what I am talking about, there are almost certainly people who would suggest that the mechanisms of each branch of government don’t work as they do, constitutionally speaking. But regardless of their position, if they are making such an argument, they either don’t know the Constitution as well as I do, or they do but are happy to suggest it says/means something else for their own purposes.

  66. As regards what I am talking about, there are almost certainly people who would suggest that the mechanisms of each branch of government don’t work as they do, constitutionally speaking.

    Well, personally, I think it would help jamestown’s argument if he actually SAID who those people were and what their reasoning is. I think it’s enormously unhelpful to state an argument as an assertion, without support.

    Not to mention silly.

  67. “The same argument could be made for laws against interracial marriage: it equally prohibited a white person from marrying a black person as it did a black person marrying a white person. Sorry, but that logic has been rejected.”

    Actually, the decision in Loving v. Virginia was based on the premise that anti-miscegenation laws systematically discriminated against racial minorities. They were not designed to impose an equal burden on all races, but to maintain white supremacy. I think it would be very difficult to make an equivalent argument that laws against gay marriage systematically discriminate against one gender. The group they discriminate against is defined by sexual orientation, not by gender. It’s tempting to make a constitutional argument that prohibiting gay marriage is a form of sex discrimination because gender classifications are subject to a higher standard of review — strict scrutiny rather than rational basis — but legally I don’t think it’s likely to work. In his ruling declaring Prop 8 unconstitutional, Judge Walker struck down the law on the grounds that it fails even the rational basis test.

  68. The sad thing is that there are people on both sides who don’t want an end to this issue. There are those on the right who raise a lot of money to fight same sex marriage (and pocket a lot of it themselves) and there are those on the left who could care less about the issue or the people for whom it’s important, but raise a lot of money to promote same sex marriage (and pocket a lot of it themselves).

    In talking about this issue over the years, there seems to be one solution that makes most reasonable people happy. The solution is this – get rid of marriage licenses entirely and in their place have all local governments issue paperwork for a civil union that is available to any two people of legal age wanting to enter into a consensual relationship. Then, if that couple wants to have a religious ceremony as well, it’s up to them to find a church that will marry them. Not only does this eliminate dispute from those with legitimate religious opposition to same sex marriage, because those opposed can now join a church that doesn’t perform them, it also eliminates those who claimed religious opposition as political cover and those who claimed righteous support while only seeking to fan the flames.

  69. Gary Willis – If you can’t come out and say that Loving V Virginia was wrongly decided, you’re not really making an argument that marriage is something only states can decide on for themselves.

    You may not *go* to a federal courthouse, but marriages (and other similar contracts) that are only good in one state, and not in others, mean less than spit in today’s modern world where people do this amazing thing called *moving* from state to state.

  70. Well, personally, I think it would help jamestown’s argument if he actually SAID who those people were

    Um, the justices of the California Supreme Court who voted to uphold the Proposition, for example.

  71. Yes, John. Your argument is to declare that you know the Constitution better than your opponents. Powerful stuff, that.

  72. John Scalzi @53

    You are so right. A lot of established case law runs counter to my argument. Why? Case law, emphasis on case. I think I am arguing for laws by legislation rather than by case. Judges rule on specific cases, but if “case” law is made in the process, then I would prefer that the legislative process be used to affirm the case law and make it statute, unmake the case law, or amend the Constitution letting the States ratify or not ratify the change. Sure, it would slow down the progress of law on its upward march to a better society, but it would be our law as citizens rather than law decreed to us because judges ruled on a specific case on a particular set of facts and circumstances. Is this idea so reprehensible? That legislatures not judges should make our laws?

    As for the judge unmaking CA Prop 8 for failing the rational test, human culture for thousands of years defined marriage as a male-female union. All Prop 8 did was make that long history of definition a part of the CA constitution because the millenia old definition had come under relentless attack. Sounds pretty rationale to me for Prop 8 supporters to reaffirm in the supreme CA law what has been human law since before recorded history commenced. Prop 8 supporters were attempting to place the definition beyond the easy reach of the attackers. That is a pretty rationale thing to do.

    But like I said earlier, I’ve no problem with any State re-defining what it takes to get in a marriage license in their State. I just find it unsettling that a Federal judge can undo a State consitutional amendment that does not conflict with the US Constitution. Shoot, we have a Federal statute with the same definition of marriage. Of course the attackers of Prop 8 don’t like the DOMA either.

    Enough. Dreamland calls.

  73. Jamestown:

    Actually, my argument is that you were arguing something different than what I was. And I was right!

    And yes, in fact, if someone wishes to maintain the three branches of government are not co-equal or work as they actually do, I can confidently say I know more about the Constitution than they do.

    Now, Jamestown, please feel free to snark again, but be aware that you’re making a really bad show of it so far.

    Gary Willis:

    “I would prefer that the legislative process be used to affirm the case law and make it statute, unmake the case law, or amend the Constitution letting the States ratify or not ratify the change.”

    Well, you get on that constitutional amendment, then.

  74. @Seth Gordon #56:
    If the Zero-One-Infinity Rule were likewise part of our tradition, then a fair-minded judge would have to permit groups of any size to form marital unions.

    Freedom of assembly, First Amendment. Groups of any size cannot be prevented from joining to work toward common goals. I think it would probably be risky to assume that this principle can’t possibly be applied to marriage.

  75. Picking up the thread several hours later…
    John,
    1. Sorry about the activist judge thing…I didn’t want to cause a problem.
    2. i latched on to your statement about activist judges and didn’t make myself clear. I have no problem with a judge declaring a law unconstitutional – in fact that is their job (I am hereby demonstrating my cluefulness to you).
    3. I could give a badgers ass about what president appointed what Judge, since a Libertarian president has yet to appoint a judge.
    4. I still have a problem with judges who make up their own laws as they go along – I believe legislating from the bench is different than an “Activist Judge”.. or do you believe that it is constitutional right of a judge to make law.

    If any of this come across as being a smart ass, it is not meant to.

  76. Erick@79: get rid of marriage licenses entirely and in their place have all local governments issue paperwork for a civil union that is available to any two people of legal age wanting to enter into a consensual relationship. Then, if that couple wants to have a religious ceremony as well, it’s up to them to find a church that will marry them.

    You know, the funny thing is, the local government issues a marriage license, and then it still is up to the couple to find a church to marry them. The government doesn’t force any church to marry anyone they don’t want to. It already is that way right now, except for the part about any two consensual people being able to get the paperwork, cause right now its mostly just het couples that can get the paperwork.

    Usually the “get rid of the marriage license” argument is offered by libertarians. Because libertarians think the best solution to just about any problem is to get rid of the government involvement in the problem. Because libertarians are universally convinced that the source of any problem is government involvement, and if you remove that, the problem will magically disappear.

    Government involvement isnt the problem here. Marriage as a legal concept has a lot of legal benefits that NO ONE WHO IS MARRIED AND NOT A LIBERTARIAN would ever want to give up. Examples of these benefits include things like your spouse being able to visit you in the emergency room, being able to make end-of-life decisions for you if you are comotose and unlikely to regain consciousness, having legal protections in place for child custody should the couple divorce or one parent die, having legal protectiosn in place for dealing with property rights fairly between two spouses should the couple divorce, having legal protectin in place for the surviging spouse for inheritance should the other die without a will.

    Anyone suggesting that the government stop issuing marriage licenses is generally arguing that the government get itself out of passing and supporting all of the above laws in place for married people.

    Libertarians, bless their hearts, think this would be an improvement. Replace pesky governmetn intervention with contracts between people. Which is hilarious when you think about it for even a split second, because the things that the law does includes dealing with people who died without writing a will, or go into an irrecoverable coma without a living will, or who divorce without ever signing a prenuptual agreement, or had children without ever writing up a “who gets custody incase we divorce” contract.

    A lot of what the government does around marriage is say “this is what will happen in situations where a married couple never signed a contract about this or that particular issue”.

    Libertarians in this particular issue or marital rights can pretty much be written off as completely disconnected from reality when they suggest anything resembling “get the government out of the business of issuing marriage licenses”

    Its not that they’re providing a solution that anyone else would actually want. Rather they see a problem, see that government is somehow tangentially involved, and through a non causa pro causa fallacy, jump up and down and say somethign to the effect of “SEE! It’s government intervention mucking things up”.

    No. The problem isnt’ that Americans want the govenment out of marriage and replace it with individual contract law. The problem is bigotry, pure and simple, and bigots using bigoted laws to get the government to enforce bigotry, rather than having to run around in hooded white sheets and get their own hands dirty.

  77. Just to be clear, the correctness of Judge Walkers ruling with respect to the California Constitution is still in doubt and still being litigated.

    Wrong. The correctness of his ruling is being appealed. That does not mean that his original ruling is doubtful, weird or should be treated as some kind of nonruling because it is being appealed.

    The folks flapping their gums about legislating from the bench and judicial activism? Have not read the opinion. Or, if they did, they have no freakin’ idea what any of it means. Because overturning a law that is unconstitutional is not “making law”; it is preserving law. Judicial activism and legislating-from-the-bench would be an opinion that says “Aw, let ‘em have standing” and “but gays, ew.”

    By the way, I have yet to have anyone – and by that I include legal professionals – explain to me why Judge Walker’s ruling is legally incorrect. Sure, plenty of people disagree with it or say that they don’t think the 14th Amendment exists or whatever, but nobody has ever managed to coherently say “See, he said that the law is X but it’s really Y, and as you see he made a logical error here.”

    Every so often I see an article complaining about this ruling in a legal periodical. And you know what the complaints boil down to? “Waaa, Judge Walker is a biased homo and liberal San Francisco courts and marriage badgers arglebargle.” And if people who are getting paid to show how mountains of case law and legislative history prove that up is down cannot come up with anything better than badgers, then I really, really think all this “legislating from the bench” bullshit is, in fact, bullshit from people who either don’t know any better or damn well should know better.

  78. Greg @ #87:

    Right on.

    Another thing that bothers me about the “Let’s make governments do ‘civil union’ and make ‘marriage’ an exclusively religious ceremony” business is that IMO it’s fairly mean to non-religious folks like me and my family.

    My wife and I got married in a lovely non-religious ceremony. We got a license, we exchanged our vows before our friends and family, we had a cool party with theramins and a magic show, and our friend who officiated sent the documents to the state. As far as we’re concerned, we’re as married as anybody else, and we mean our vows as strongly as anybody else.

    But when I hear people propose to make religion the exclusive provenance of religions, I wonder if they’ve considered how much that would single out couples like us, sociologically speaking. Under such a proposal I worry that everybody but us — everybody from the Buddhists to Scientologists — everybody from the Yârsân to the Yazidi — would keep societal sanction to call their marriages marriages, while we’d be the odd ones out, stuck with a mere “union”.

  79. Gary Willis: Sure, it would slow down the progress of law on its upward march to a better society, but it would be our law as citizens rather than law decreed to us because judges ruled on a specific case on a particular set of facts and circumstances. Is this idea so reprehensible? That legislatures not judges should make our laws?

    Dude. I will answer your questions. But first I have a question for you:

    WHY????

    Why in Gods green earth would you propose something that you yourself admit would slow down the progress of law on its upward march to a better society????

    That’s my question to you.

    In answer to your question, what we have are two mutually exclusive principles in operation. One principle is the principle behind your position, which could be viewed as nothing more than an overly technical and mechanical aproach to one very specific part of law in overriding all other aspects of law. Specifically, your principle is the tenth ammendment of the US constitution: states rights.

    And what is the other principle at play here? Human rights. Human equality. Specifically that gay individuals have the same legal protections afforded to married individuals.

    What you are doing is taking the rights of an artificially created entity that only exists in legal jargon (the state) and giving that artificial entity more priority and more concern than actual real, live human beings.

    And yes, I absolutely find that reprehensible.

    There are basically two types of people who make the argument for “states rights” as being more important than individual, real live human being, rights:

    THe first type are bigots, plain and simple, who are hiding behind the law to camoflage their bigotry. “Oh, absolutely segregation is a horrible thing, but the federal government shouldn’t interfere with a state’s slow path to righteousness. We know segregation is wrong, but we oppose the federal government forcing us to do the right thing. We will do the right thing if the feds would just leave us alone. And they have no right mucking about in our affairs. And princicpled people that we are, we must oppose this infringment and insult to the constitution fo the united states and maintain segregation until the federal government withdraws. After that time, then and only then, can we fix segregation at the state level where it should be addressed.”

    The second type are, well, basically, libertarians. Because libertarians think all problems stem from government intervention and could be fixed if you removed the government intervention and simply let people freely choose. And if you can’t completely get rid of government intervention, a libertarian will take as second choice a conglomeration of fifty independent states with a federal government who handles the post office, the patent office, and the copyright office, and the military, because those powers are specifically outlined as federal responsibilities in the constitution. Everything else, must go to the states. Libertarian thinking then goes like this: If I can’t get complete freedom from government, and complete personal choice, then at least I can try to get 50 independent states, adn then I’ll just move to the state that most closely matches my personal tastes. All of which is complete fantasy. But its fantasy they entertain at the expense of real people suffering at the hands of real bigots, and are either clueless or indifferent to the damaging effects created by clinging to their fantasies

    So, in answer to your question, yes, absolutely, I find it reprehensible to hold the rights of some artificially created entity like the “states” (enumerated in the tenth ammendment) as higher priority than the rights of real live human beings (enumerated in the self evident truth that all men are created equal and elsewhere in our founding documents) who suffer blatant and obvious bigotry at the hands of bigots in those states.

    Now that I’ve answered your question, how about answering mine:

    WHY??? Why you support something that you acknowledge would slow down the progress of law on its upward march to a better society????

    What principle is so much more important that you ask people suffering at the hands of bigots to suffer even longer?

    If your answer is “the tenth ammendment” and states rights, then can you find no principle in the Constitution that would give more weight to the rights of individual human beings than to the rights of some artifical entity like “the state”?

    And if you answer “no” to that question, if it were you who were suffering some form of bigotry on an individual and personal level, do you honestly think you would continue to rank “states rights” as more important than your individual rights?

  80. Pardon me while I go on a rant… hopefully it will be an interesting and informative rant.

    First of all, the “slippery slope” argument is easily answered. People seem to consider it a tough question because they *want* it to be a tough question. All you have to do is come up with sane criteria that we can all agree on. For instance, Margaret Farley lays out seven criteria for just sex in her book Just Love – A Framework for Christian Sexual Ethics:

    1) Do No Unjust Harm – Treat people as ends for themselves, not as sexual objects. Sexuality is partly defined by vulnerability, dropping your walls and opening yourself completely to the other… and thus you open yourself not just to physical but emotional and psychological harm. Such harm obviously needs to be avoided in any relationship, sexual or otherwise, but particularly in a relationship that is defined to such great degree by vulnerability.

    2) Free Consent – Of course both parties must freely consent. This should need no explanation at all.

    3) Mutuality – Both partners should be equally or near-equally committed to the sexual relationship as a sexual relationship. Put in coarse terms, it’s bad if one partner is jonesing for sex all the time, and the other just allows himself or herself to be used. That’s not exactly an ideal relationship.

    4) Equality – This is the criteria that is most often pointedly ignored by the people who advance the “slippery slope” argument. The fact is, any sexual relationship must embody a certain power equality. Clearly a 40-year-old has more power than a 12-year-old in any relationship. While this is natural for a parent-child or teacher-student relationship, it is wildly inappropriate and morally appalling for a sexual relationship, because it fundamentally allows coercion. The 12-year-old really has no choice in the matter. And neither would a pet, television, or football. I can’t help but think that people who advance this argument are being sarcastic or are just not considering the question very seriously, because it’s clearly a specious argument.

    5) Commitment – Robin Morgan notes that “Commitment gives you the leverage to bring about change – and the time in which to do it.” For Farley, it is a means rather than an end… she is not out-of-hand ruling out single people having sex with other single, consenting adults. But commitment obviously can ease tensions and fears of jealousy, and she argues that it should ultimately be normative for sexual relationships, because it allows for growth that one-night stands don’t. Which leads to:

    6) Fruitfulness – This is another element which is often attacked when it comes to gay couples. After all, they can’t have children (I will note, as an aside, that it seems odd to label this in any way bad, since the world is so overpopulated already). But the fact is that a loving sexual relationship between two people can lead to many other things than just children – like nourishing other relationships, providing role models, mutual growth of both partners in countless ways, the raising of other people’s children, etc etc etc. I think it would be a hard argument to say that a straight couple that decided not to have kids could in no way be fruitful in their relationship, both for themselves and for society at large.

    7) Social Justice – I’ll simply quote Farley directly on this one: “This norm derives from our obligation to respect relationality, but not only from this. It derives more generally from the need to respect all persons as ends in themselves, to respect their autonomy and relationality, and thus not to harm them but support them… It points to the kind of justice that everyone in a community or society is obligated to affirm for its members as sexual beings. Whether persons are singled or married, gay or straight, bisexual or ambiguously gendered, old or young, able or challenged in the ordinary forms of sexual expression, they have claims to respect from the Christian community as well as the wider society. These are claims to freedom from unjust harm, equal protection under the law, an equitable share in the goods and services available to others, and freedom of choice in their sexual lives – within the limits of not harming or infringing on the just claims of the concrete realities of others. Whatever the sexual status of persons, their needs for incorporation into the community, for psychic security and basic well-being, make the same claims for social cooperation among us as do those of us all.”

    Those criteria are all you need. The only things it doesn’t rule out are close familial sexual relationships. And hey, there are countries where first cousins getting married is A-OK. The dicey one is siblings. You’d have to come up with some special rules to exclude that. Of course, we can argue about all of these, add and subtract rules. But it really isn’t difficult to come up with a sexual ethic that rules out animals and inanimate objects and yet includes gays. Even simply the criteria of free consent and equality alone go a long way.

    Secondly, this whole thing really isn’t about marriage. It never was. Because you’re right to say that having a piece of paper signed by the state doesn’t really mean all that much just for itself. What this is really about is the *acknowledgment* of the union by society at large. That’s really the purpose behind marriage. It’s an announcement to society that two people are devoted to each other and plan to make their lives together. That’s why they’re such big family affairs, and why weddings have so many guests… it’s the public blessing that people support the couple’s new life together. A marriage certificate only means something if the people in your community recognize it as legitimate… but if instead they always turn away and tell you you’re going to hell, then it’s just words on paper with no meaning at all. It’s about – to use Farley’s phrase – “psychic security and basic well-being.” Would you enjoy everyone telling you you’re evil and a bad person because you loved someone sexually? That’s a day-in, day-out battle on your peace of mind, just trying to live your life.

    That’s why I think that the argument on both sides has been fundamentally misdirected. Homosexuals often frame the argument say “it’s none of your business who I want to marry, your opinion shouldn’t matter because it’s my individual right to get married.” Well, actually, in a macroscopic sense the opinions of others *do* matter, because marriage fundamentally *is* the blessing of the union by the community… otherwise people wouldn’t bother to get married, they’d just decide to be together and not bother to tell anybody. But the societal acknowledgement and blessing *is* the marriage. So at the bottom of it, gays aren’t asking to be married as such, just to have the piece of paper, they’re fundamentally asking to be accepted. Because the fact is that they’re going to be together no matter what anyone else says… but they may be scorned and spurned from society for doing so.

    But the fundamental point against the anti-gay marriage folks here (or even simply anti-gay folks in general), for which I’ve never heard a satisfactory response, is exactly who is hurt by gays getting married, or just being together. I just don’t get it. We constantly hear these sound bites about how gays are a “threat to America” or a “threat to our way of life.” What exactly does that mean? What threat? Gays are no more sexually perverted or more likely to be sexual predators than straight people. They’re not evil. They don’t “convert” people. So what exactly is this “threat”?

    Can anyone tell me? I don’t have the first clue. That’s the part that I fundamentally don’t understand. Why is homosexuality wrong? Criteria are never given… people simply state that it is. Exactly *how* is accepting gay marriage “damaging to the morality of our society”?

    Of course, I have heard responses to this question from those who oppose gay marriage, but I don’t find any of them satisfactory.

    1) There is first the notion that sanctioning homosexual relationships will cause/encourage others to become homosexuals. I think that, just perhaps, the true absurdity of this view is beginning to become apparent to Americans at large, although I do know people who believe this. The fact is that sexual orientation is never a conscious choice. That there is voluminous scientific evidence for this hardly matters, because there’s a basic common-sense test which proves it, and that is the fact that if you really ask yourself whether you can *decide* who you are attracted to, you have to admit that such a choice is not possible. For instance, in the States we have an ideal body type that is very skinny (almost certainly too skinny from a strict health perspective), and yet many of us find ourselves hopelessly attracted to skinny people. We cannot arbitrarily choose to be attracted to very heavy people. How much harder to choose to be attracted to members of one’s own sex? Of course, we can choose to *have sex* with anyone, regardless of whether we are attracted to the person or not. Rape in prisons is sufficient example. But men who rape other men in prison aren’t gay… they’re raping other men because they get off on dominance and violence. A homosexual orientation is quite different. The only manner in which the societal sanctioning of gay relationships will increase the gay population is in freeing people who are too afraid to admit their orientation to express who they really are. So yes, there will be more gays *apparently*, but only because more people are admitting it.

    2) There is the notion that sex must always be procreative. I take this to be patently silly. The fact is that many heterosexual couples engage in sex that is not procreative, sex that harms no one, and enhances their relationship. How exactly is sex between an infertile couple wrong? How about sex between a married man and a woman who is over 50 and can no longer have children? Sex has many purposes; it is not always engaged in simply to produce children. I don’t think I would exactly be venturing out on a limb to say that most sex between even heterosexual married couples is not necessarily intended to produce children. The Catholic Church – which is the Church I’m most familiar with, since my mother is Catholic – itself sanctions “natural family planning.” That alone is admission that sex need not always be procreative. And the fact is that procreation can never be the sole criteria for a morally correct sexual relationship… there are situations, for instance, when a woman may be forced to endure unwanted sexual advances by her husband. This goes back to the criteria presented in my earlier post. Procreation is, of course, a necessary part of human life – but it need not be a decisive criteria for sexual morality. And the fact is that for most heterosexual couples, it already isn’t.

    3) Homosexual acts are somehow a crime against God. For this I must ask, what evidence do we have of this? There are, of course, six passages in the Bible which supposedly comment upon homosexual acts. But there are many, many reasons why these passages themselves and the position that the Church has taken regarding their moral authority is suspect. First, the fact is that with only six passages that are *maybe* discussing homosexuality, it clearly wasn’t a big concern for the Biblical authors. If it was, there would be a lot more material. They were much more concerned with the proper place of women as below men, the immorality of divorce, codes of proper diet, etc. Secondly, the ancient Hebrews had no concept of homosexuality as an unchangeable psychological condition, a part of human identity. Such an identity is a modern discovery and a modern concept. The passages discussed refer only to the bare acts themselves, and not to a romantic inclination. Thirdly, and more specifically, five of the passages probably refer either to the rape of opposing soldiers after a victorious battle, or to male sexual fertility rituals performed in pagan temples, such as the worshippers of Ba’al. It is worth noting, however, that the Greek words malakoi and arsenokoitai, the two words now often translated as “homosexuals,” do not necessarily refer to homosexuality at all, but only to debauched people (in the general sense) and anal intercourse, which need not be with a man. And the most famous story, the Sodom and Gemorrah story, can only be seen as a parable against homosexuality on a very strained interpretation. While Sodom becomes a constant symbol of sinfulness in the Old Testament, Sodom’s sin is *never* explicitly identified as homosexuality. In fact, it *is* identified explicitly in several places, most notably Ezekiel 16, that Sodom was morally and ethically lax, ignoring the poor and practicing the worst inhospitality. Further, none of the other passages traditionally understood as condemning homosexuality made any reference to the Sodom story. Fourthly, it has been widely noted that the Bible sanctions many practices which are ethically reprehensible nowadays, such as the selling of women and children into slavery, or in justly murdering your enemies. There are other Biblical sanctions which we would regard as totally ethically neutral, such as the wearing of polyester clothing. Fifthly and most simply, I myself and many others do not accept the Bible as authoritative. One may claim that revelation is infallible, but our *human judgment that some teaching or other is infallible* must always be suspect. The idea that a a collection of 66 books that is over a thousand years old, and written in a wildly different cultural context, has settled everything for all time, strikes me as very odd indeed. It may be very comforting to some people to believe that they need not think for themselves, but merely need to crack open a book for answers to all their questions, but life just isn’t that simple. No book contains all the correct answers. If it did, presumably the world would be in a better state than it is now.

    Those are the arguments I can think of at the moment. As I have stated, I find them all inadequate. The fact is, some people are gay. We still don’t know exactly how or why homosexuality came to exist. But it does. And it seems very cruel to me, cruel and petty at the most basic level, to deny sexual closeness to anyone simply because it is not heterosexual sex. I can see no way in which there is any harm done to anyone by homosexual sex between consenting adults, but can see many ways in which the lives of both the partners themselves and the lives of those around them can be enriched by their devotion. If someone can tell me ways in which homosexual sex and homosexual relationships *are* harmful to other individuals or to society, I would like to hear them, because I certainly can’t think of any.

  81. Elgion: 3. I could give a badgers ass about what president appointed what Judge, since a Libertarian president has yet to appoint a judge.

    As I said, there are only two kinds of people who consistently argue that states rights are more important than individual real live human being rights: bigots and libertarians. Bigots because they want to keep on bigotting. ANd libertarians because they’d rather have a country full of bigots than have a government that could force bigots to stop acting like bigots. An individual’s freedom of choice to be a bigot gets higher priority than the individual suffering the bigotry.

  82. Greg @ #91:

    What’s more, the 10th Amendment is not in fact the controlling part of the Constitution here. Look at the 14th Amendment! Even if the 10th amendment had given states permission to abrogate other rights at will, the 14th amendment’s language specifically forbids the states from “deny[ing] to any person the equal protection of [their] laws.”

    (The Privileges and Immunities clause would also seem to be relevant if we’re doing a precedent-free reading of the 14th amendment: you can make a fine case that it was meant to be the part that applied the bill of rights to the states.)

  83. Greg@49: ” One enacted it applied equally to every citizen of CA (so no equal of protection issue could emerge)”

    No, actually, it didn’t, which is part of the problem. According to the CA Supreme Court, Prop 8′s ban began November 5, 2008, and was not retroactive. Thus, there are now two classes of gays in CA: those who, like my wife and I, who got married between June and November, and those who didn’t. Similarly, there are two classes of adults who want to marry people they’re not related to: those who want to marry people of another gender and are allowed to, and those who want to marry people of the same gender, who cannot do so. So leaving everything else aside, this part of your argument is wrong.

  84. Inasmuch as I strongly suspect he and I were talking about different things, I don’t know if such a naming is in the offing.

    Well, you’re smarter than me, because I have no idea what he’s talking about. Doesn’t match with anything in my frame of reference and I’m too tired to try and puzzle it out.

  85. You are so right. A lot of established case law runs counter to my argument. Why? Case law, emphasis on case. I think I am arguing for laws by legislation rather than by case.

    This, I think, runs counter to much of my understanding of law, because you really can’t have one without the other. For one, that strikes out much of common law, upon which much of legislative law is based. For another, no legislative law is sufficiently unambiguous (nor can it be) to be applied without interpretation. In fact, I think the harder one tries to write law strictly by legislation, the more there will be judicial law to interpret it; the more a legislature tried to define, the more it will leave it.

    This is an argument that seems to collapse on itself, both in practice and in theory.

    Not to mention that this seems to be antithetical to the spirit of the constitution, holding one process to be superior to others.

  86. Nick M @90: I don’t think they’ve considered you at all; as we say in the law, they haven’t reached that issue. That’s because all they’re really considering is how to stop the darn gays from getting married.

    “The government should abolish marriage and call it civil unions” is a glass mountain argument. You know: all those fairy tales where the noble peasant hero wants to marry the princess, and her father the king says “Why sure! You can marry my daughter, peasant scum, just as soon as you bring back the treasure that lies atop the unclimbable mountain of glass. Try not to trip over the corpses of all her other would-be suitors on the way.” The king isn’t, of course, really suggesting that the hero can get what he wants if only he follows this cunning plan; the glass mountain is a distraction, a way to shut up the stupid peasant and get rid of him.

    “The government” is not going to abolish marriage and call everything “civil unions”. It is simply not going to happen that all fifty states will persuade the voters that they should abolish the M-word and start calling everything “civil unions” (and quickly and efficiently dealing with the legal fallout). Proposing this instead of same-sex marriage is offering a stupid and impossible goal in lieu of a sensible, fair and attainable goal. But, like the glass mountain, it makes a handy roadblock.

  87. Sure, it would slow down the progress of law on its upward march to a better society, but it would be our law as citizens rather than law decreed to us because judges ruled on a specific case on a particular set of facts and circumstances. Is this idea so reprehensible?

    Oh, I missed this.

    You want a poorer society. You want continued curtailment of rights. You a rule of men, rather a rule of law.

    Yes, I do think that idea is reprehensible,

  88. It’s in the Supremacy Clause.
    How could a Canadian know this instantly, yet a literate U.S. citizen does not? That’s just embarrassing. Come on people, we have to share a common border with you, please don’t make it look like we live next door to one of the less gifted branches of the Clampetts!

  89. The Supremacy Clause applies because marriage allows for the joint filing of federal taxes. It also allows for the transfer of social security benefits to the legally married spouse of a deceased person. Because these are benefits extended by the federal government based on what states define as marriage, we cannot invoke amendment 10.

  90. The Anglican Archbishop of Sydney, Peter Jensen, used that very slippery slope argument. Same sex marriage will lead to polygamy and incest. He left out the third corner of the holy triumvirate, bestiality, though.

    http://www.smh.com.au/national/samesex-marriage-will-lead-to-polygamy-says-jensen-20110610-1fx29.html

    [sarcasm]It is obvious that gay men, for example, will be lining up to marry their brothers and dogs (male of course). Gay, polygamy, incest and bestiality all at the same time. Luckily our legislators and religious leaders are here to protect us from such abhorrent behaviour.[/sarcasm]

  91. I could give a badgers ass about what president appointed what Judge, since a Libertarian president has yet to appoint a judge.

    Well, that’s nice. But anyone who seriously wants to argue that Vaughn R. Walker is some kind of far-left “judicial activist” are ignoring terrifying amounts of objective reality — not least why his initial nomination to the bench by the arch-pinko Ronald fraking Reagan stalled in 1987. (Nancy Pelosi could explain it for you, since she lead the Democratic opposition in the House.)

  92. Then again, we are talking about the same people who seriously argue that Ted Olson isn’t really a conservative, but spent his entire adult life doing a pretty damn good impersonation of one on the off chance he’d get an opportunity to advance the homosexual agenda.

  93. Folks:

    Multiple sequential posts by the same authors is one of the things that makes me irrationally a little bit nuts. Please aggregate your replies and comments into a single post moving forward. Yes, it takes slightly longer to do it this way. Take the time. Thank you.

  94. A bigot could pretend to be a libertarian and say get rid of all marriages, thus creating an actual threat to marriage, blame said threat on the “gays” and thus prove pushing for gay marriage is a threat to the institution of marriage itself owing to the bat-shit responses of gay-marriage opponents.

    On the side issue of the slippery slope to poly, I have no opposition to people organizing their lives in a polyamatory way, but it would be much harder to fit poly units into the public nexus of benefits/rights we associate with marriage and also much easier to exploit/abuse in various ways. So while I am open to being convinced that you could create a fair and workable structure for poly family units to integrate with the legal institution of marriage, as a practical matter I think it would not work. On the flip side, I think same sex marriage strengthens the institution or at the very least, is neutral. And I don’t think we will get poly marriage because of same sex marriage: the friction on that particular slope is closer to 1 than 0.

  95. I find it ironic that many (but not all) advocates of having government prohibit same-sex marriages, are the same advocates screaming against “big government” interfering in the lives of its citizens. They demand that government stay away from providing universal access to health care, yet insist that big government get involved in the nation’s bedrooms, regulating relationships and sexual activity between consenting adults.

  96. In talking about this issue over the years, there seems to be one solution that makes most reasonable people happy. The solution is this – get rid of marriage licenses entirely and in their place have all local governments issue paperwork for a civil union that is available to any two people of legal age wanting to enter into a consensual relationship.

    People opposed to same-sex marriage usually frame it as something that will destroy marriage. Meanwhile, people in favor of same-sex marriage say they don’t want to destroy marriage, they want gay couples to be able to get legally married.

    This is a solution that (1) actually destroys legal marriage, and (2) does not allow gay couples to get legally married. How does this please “most reasonable people”? It pleases nobody except the people making this argument. It’s as if Solomon really wanted to divide the baby.

  97. Oh, hey, I forgot to mention that bringing up the “I think the government should get out of marriage” is a classic derail trope for same sex marriage threads, i.e., it makes the conversation NOT about the topic at hand, and makes it about what the derailer wants to talk about, which has nothing to do with reality nor likely ever will.

    Dear derailer: This isn’t a conversation about you and your politics.

    Dear other people: Please don’t feed the derailer more rail.

  98. What!? Someone acutally thought that the judges personal opinions and lifestyle might impact rulings? How silly is that, right there along with the notion that if a preacher or so-called religious fanatic is elected president it might somehow cause the earth to be hurled into the sun. Such thinking…..

  99. John: the few times I’ve posted on a political topic, I’ve gotten warned re: the Mallet as going off the rails. I’m responding to Gary Willis from further upthread about the nature of the federal government’s involvement in this issue, and I think as such I’m staying within the bounds of the thread. Sorry if I’m wrong and I’ve simply failed to internalize the lessons of the Loving Mallet.

    @47 Gary, you mention education as something the federal government has no right to be involved in, yet does. Putting aside whether a broad reading of the Commerce Clause contradicts that (I can see an argument that it does) you seem to have missed that federal education policy is through the “power of the purse.” The federal government has said, “if you play by our rules, we’ll give you lots of money.” The money is enough that no state can turn it down, and none does.

    As for the “general welfare” clause, it isn’t the one in the Preamble that is being used. Rather, Article I Section 8 provides that taxes can be collected and spent for “…Debts and provide for the common Defense and general Welfare…” So the Department of Education and all of its programs fall under that.

    Finally, as John has pointed out repeatedly, your underlying concern seems to be with the Federal judiciary acting as “refs” in the game of representative democracy. That was established in Marbury v. Madison in the first decade of the 19th century. The concept also finds backing in “The Federalist Papers” concerning the “tyranny of the majority.” My point is that this feature was viewed as “built in” by the Founding Fathers themselves; I personally believe in a “living Constitution” but even strict adherents to the “dead” document usually acknowledge the powers of the Federal judiciary.

  100. I want to address this whole “slippery slope” thing. If somebody wants to marry a badger, more power to them. But, you have to get the badger’s consent, and therein lies the tricky part. People say the legalizing same sex marriage will lead to incest, child abuse, betiality, etc, but these things exist anyway. Saying that legalizing same sex marriage will lead to an increase in those things is just ludicrous.
    As for whether a church recognizes the marriage, why does it have to? The important part is that all people should be afforded all the same rights as anyone has. I might be being a bit simplistic here, but people’s beliefs should have no place in the law. Beliefs are too rigid, too unyielding to reasonable debate to be the basis of any laws.

  101. Fair enough, John.

    What I’m actually wondering is how likely it is that Walker’s decision would actually be upheld on appeal to the Supreme Court. At least some people think it could be, but it strikes me as peculiar that the highest federal court might find a state constitutional amendment in violation of the federal constitution for its discriminatory denial of a basic right, when DoMA is still on the books, i.e. when federal law itself still does exactly the same thing. Of course challenges to DoMA are also underway, but it seems strange to my non-lawyer self to get it in this order.

    On the bright side, the amazing changes in public opinion polls suggest that, in many states, the question of popular opinion vs. basic rights will be moot very soon. 50%+1 support in a poll doesn’t necessarily do it, mostly because of demographics: support for gay rights is overwhelmingly biased toward the young, and the pool of active voters is strongly biased toward the old, especially in off-year elections. But we’re getting there at what seems to be accelerating speed.

  102. Matt @118: DOMA is silly, but that is not the issue before the court. The question is whether California amended its constitution in a way that violated the US constitution.

    For folks confused about why a state constitutional amendment is at issue in a federal court: Imagine that California voters had amended their Constitution to reinstate ‘race-based’ slavery. Pretty darn clear conflict with the 13th Amendment, no? We would expect people to challenge such an amendment in federal court. And we would not expect a ‘states’ rights’ argument to get very far.

  103. Suppose, though, that at the same time there was a federal law explicitly allowing race-based slavery that had not yet been successfully challenged under the 13th amendment. Could the federal courts use this as an indication that there was no actual question of constitutionality?

    (This isn’t a rhetorical question; I really don’t know.)

  104. Greg @ 91: What you are doing is taking the rights of an artificially created entity that only exists in legal jargon (the state) and giving that artificial entity more priority and more concern than actual real, live human beings.

    And yes, I absolutely find that reprehensible.

    THIS!

    Your entire comment was fabulous, but this is the heart of it. Thank you.

  105. regardless of popuular opinion about the specifics of gay marriage, the popular opinion of the basic concept of equality has already been ratified by the states. It is something Americans have said ‘we commit to this principle’ and even bound themselves to that principle in a commitment ceremony known as constitutional congress and ammendment process.

    In that regard the judicial branch does sort of act as a ref, enforcing rules that the people have already agreed to play by.

    the judicial branch enforces higher principles on lower level laws. thats their job. principles that we, as a people, already agreed to in some form or other.

    so the states that recognize gay marriage because of judicial decisions are recognizing gay marriage because the judge said, hey, over here you promised to treat people equally as a fundamental commitment. this ban against gay marriage is in direct conflict with your larger commitment for equality. get rid of the ban and hold to your larger commitment.

    invariably, when discussing constitutional issues with an extremist, it generaly emerges that the extremist has no concept of commitment as coded into the constitution. they generally often have no concept of prioritizing conflicting commitments either. rather they look at the constitution as ‘authority which must be obeyed’ then find in that authority a scrap of a phrase that matches what they want everyone else to do. and then they jump up and down and say ‘see! it says so right here so you have to obey’.

    equality, due proocess, civil rights, freedom of speech, freedom of dissent, these are all principles we already agreed to uphold. and I find it hard to take seriously someone who takes these kind of individual freedoms we committed to and subverts them to some bureacratic process just because that bureacratic process is ALSO in the same document.

    in my view that shows a complete lack of perspective and a complete inability to recognize basic priorities. our commitment to treat everyone equally before the law ought to take priority over some bureacratic concept like ‘states rights’.

    insisting the process is more important than the commitment to individual equality takes the view of the constitution as a set of committed (marriage) vows between all the people and turns it into some kind of prenuptual agreement that requires sex at least once a week and limits how much money each ones gets if there is a divorce.

  106. @120 I feel strongly, No. While a court could look at things like co-existant federal laws as providing an important contextual value in cases where the language of the Constitution is open to debate, the 13th Amendment is so cut-and-dried that no court would look at its bald prohibition of slavery and say that the hypothetical state law could stand.

    DoMA does provide context in the instant case, and should not be excluded from consideration completely. However, I think that the overall weight of evidence is very much in favor of construing the 14th amendment’s guarantee of equal protection as applying to both marriage as a right and sexual orientation as a protected class.

    For folks that point to the 14th amendment as only applying to race, I have a thought to consider: Belief that the term “person” in the third sentence of the 14th amendment (which provides due process/ equal protection) applies only to race (and should not apply to gender, religion, sexual orientation, etc) creates tension with the use of them term “person” in the first sentence of the same section of the same amendment, which grants birthright citizenship. Does that mean that only the citizenship of male babies at birth is protected?

  107. Salient point: I am a Republican.
    Interesting comment: I agree with the ruling.
    Speculative assertion that I believe is true: My opinion is similar to the majority opinion of my fellow Republicans.

  108. Those that are attempting to repress our fellow citizens just don’t get it, they’ve already lost. I think 20 to 30 years from now people will be as shocked about the homophobes as we are now about Jim Crow.

  109. @ 91/ 93 Greg: True enough. But be careful about being too quick to throw the process overboard. The enduring vindication of personal rights will only be possible if it takes place in the context of a consistent, transparent process. There is some tension in calling for gays and lesbians to have the “same legal protections” as others while simultaneously dismissing an entity (the state) “that only exists in legal jargon.” It reads a little like “legal protections = when the law gives me what I want” and “legal jargon = when the law does not give me what I want.”

    Lots of “states’ rights” advocates are bigots and libertaians, to be sure. But there is a broad defining principle in play, and it’s unfair to cast that principle aside completely. To the contrary, it is that principle — federalism — which gave Judge Walker the authority to issue the ruling he did.

    The idea that states, in agreeing to united under a single federal authority, reserved certain powers to themselves is neither remarkable nor inherently offensive. When the states proved unable or unwilling to treat their citizens in a manner consistent with the principles set forth in the Bill of Rights, then the constitution was amended (that’d be #14) to force their hand. In the process, states gave up a lot of their “rights.”

    It bears considering whether the preemption of local laws by the federal government is necessarily a good thing. In the 1990′s, state courts were generally ahead of federal courts in recognizing the rights of gays and lesbians. I know cites matter, so consider the Kentucky Supreme Court’s 1992 opinion holding that state’s sodomy law was unconstitutional under the state constitution. (Commonwealth v. Wasson, 842 S.W.2d 487 (1992).) This was not the United States Supreme Court’s view at the time (see Bowers v. Hardwick, 478 U.S. 186 (1986)).

    Or, to frame the states’ rights / preemption issue more cleanly, you can take the discussion out of the context of marriage altogether. Californa, for example, has had to defend environmental laws against claims that they are preempted by federal law. (California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987). Recently, the United States Supreme Court issued a big win for business by holding that federal law preempted California’s attempt to prevent enforcing unconscionable arbitration provisons. (AT&T Mobility LLC v. Concepcion.)

    Yes, there are distinctions to be drawn, as there usually are in these discussions, but my points is that sometimes states are more protective of the individual, sometimes less.

  110. KSB, my point was to get the commitments of individual rights and the commitments of process and hold BOTH in perspective simultaneously.

    nothing in my post even hinted at throwing the process overboard.

    we have comittments to treat human beings equally before the law and we have commitments to have an electoral college in presidential elections. one of those commitments is more important than the other. priority doesnt mean discard.

  111. [skipping] Quiet “Huzzah!” I don’t see anywhere in the Federal Constitution where it says anything about marriage as such. Many state constitutions don’t. (Here in Minnesota, we’re going to try to put a same-sex ban into ours; “NO!” I say.) This is all just blatant “you do what I believe”-ism, and needs to be smacked down whenever and where ever it raises its ugly head.

  112. There are a lot of animal references here. I think, I hope, most of the people making them are just joking, but just in case.
    Marriage is a legal contract, and dogs, cats, badgers, jilla monsters . . . cannot sign legal contracts. If you find one who can, go ahead and marry it if you want, it’s OK by me.
    Animals, other than humans, are not capable of consenting, so if someone decides to have an affair with his/her parakeet, that someone will still be breaking the law and abusing an animal.
    As far as polygamy goes, people who want to do that are already doing it. When they abuse people in the process, mostly by forcing an underage girl to marry someone she doesn’t want to marry, they are again breaking the law and need to be, in my humble opinion, castrated.

  113. What I think is interesting about this ruling is that it essentially dismisses the argument that “only straight people are impartial.” This is important because our legal system is still, daily struggling against precedent that assumes only “white, male” people are impartial, on multiple levels. (For examples, I refer to the bruhaha over our last two Supreme Court appointees, current incarceration statistics re race, and the rape proposed given in the hearing.)

    (IIRC, there were similar kerfuffles over having a Catholic president, a Black/Mixed-Race president, and Catholics on the Supreme Court.)

  114. This stupidity that inflicts many of my fellow conservatives on this issue is maddening. Vaughn Walker was the guy you wanted in any sort of constitutional issue favored by conservatives. He ruled on a Fifth Amendment Takings Case in Half Moon Bay in favor of a landowner that a more statist or left-wing judge (I don’t mean to conflate those two, there are plenty of statist conservatives out there) would have found a way to avoid. Vaughn Walker is the platonic ideal of a good judge — or ought to be, given what conservatives say they want out of the courts.

    On a side note, he was just one of a handful of judges to whom I applied for a clerkship out of law school, although he didn’t have wisdom enough to ask to interview me. (hey! maybe he was a bad judge all along!)

  115. Because overturning a law that is unconstitutional is not “making law”; it is preserving law.

    But overturning a law that is constitutional is usurping the power of the legislature, which is why people complain about judicial activism in cases where they believe judges have done this.

    By the way, I have yet to have anyone – and by that I include legal professionals – explain to me why Judge Walker’s ruling is legally incorrect.

    It’s not that the ruling is “incorrect” but that it rests on subjective political/philosophical/moral beliefs that many people disagree with. There is no “correct” answer to the question of the precise scope of broad constitutional principles or the precise boundaries of the powers held by each branch of government. There are just opinions. Constitutional law is more akin to the study of literature or history than to science or math.

  116. John@119: Fair enough — I will try much harder to have my first and second thoughts much closer together. Unless I forget, in which case I will learn to love that Mallet thingy I hear so much about.

    TonyDye@#124: My opinion is similar to the majority opinion of my fellow Republicans. Honestly, I don’t think there’s very many people — full stop and period — lying awake at night worrying about gay marriage as opposed to whether this is going to be the day the recession eats them alive. But in my experience, I find it interesting that the most vocal opponents of things like marriage equality and repealing DADT are the ones who will swear blind that they don’t know any fags. It becomes a lot more difficult to rationalise your homophobia away (for a lot of people) when your prejudice has a human face — and you happen to like the person that face is attached to.

    The Pathetic Earthling@#131: QFT. Anyone who takes a look at Vaughn Walker’s record (or Ted Olson’s come to that) and tries to argue he’s not a “real” conservative is not living in the same universe as the rest of us.

  117. Jamestown@132: overturning a law that is constitutional

    the only people I have run into who are invested in this sort of law being consttutional are bigots and libertarians. have yet to encounter a third alternative. feel free to create a new category if you can back it up.

    bigots have no concept of constitutional ideas such as equality. therefore their opinion on the consttutionality of a law is worthless. law to them is nothing more than authority through which to enforce their bigotry. And these are EXACTLY the sort of people the judicial branch should smack down. and there is no way to smack them down without them crying and howli.g about how grossly UNFAIR it is that some judge took away their bigoted law.

    fuck em.

    the only other group who has any serious investment in a law like this being constitutional are some flavor of libertarian. they may self label with a different party name, like conservative, or tea party, or some third party label, but the libertarian behavior is an overwhelming paranoia of government power. overwhelming to the point that it outweighs all other concerns. and so it is a libertarian who will argue for whatever approach can possibly kneecap the power of the government in any way. in this case, they take a divide and conquer approach. the feds are monolithic power so libertarians will generally support any solution that difuses that power. so give it to the states. if you dont like how georgia treats its slaves, a libertarian will tell you to move to another state and will reflexively oppose any federal attempt to end slavery.

    it is the libertarian train of thought that suggests the notion that government shouldnt issue marriage licenses at all. get the government out of the process.

    those are the only two folks I have ever encountered who would have any vested interest in allowing bigotry a safe haven at the state level. bigots want bigotry. and libertarians are so damned terrified of the New World Order and Black Helicopters that they would rather see people suffer real bigotry rather than allow the world to slippery slope any closer to their paranoid delusion that might someday come true.

  118. Gah! My phone hit submit halfway through. I didn’t mean to de-feng-shui the thread.

    Jamestone@132: There are just opinions. Constitutional law is more akin to the study of literature or history than to science or math.

    The difference between literature and this law, of course, is that if a mob of idiots manage to get some horrible piece of literature published, they can’t force anyone to read it, whereas if a mob of bigots and libertarians manage to push through this legislation, then real people suffer real consequences of this bigotry.

    So, no, this isn’t like literature. You can read total crap and it doesn’t harm anyone else.

    And the thing about people who argue “this is subjective” is that they invariably use the argument only to make space for their point of view, without realizing that if the issue REALLY WERE SUBJECTIVE, then the opposition point of view would also be a legitimate subjective interpretation of the facts.

    So, what you just argued there is that a legitimate interpretation of the events is that the state ban on gay marriage was nothing more than blatant bigotry which violated the federal constitution, which the federal government had a right to enforce.

    If it really were subjective enough that this is all nothing more than opinions, then the above interpretation would be just as legitimate as whatever your interpretation would be.

    Think about that for a moment.

    Now, please explain to me why, given that real people are suffering at the hands of real bigotry, and given that one legitimate subjective interpretation of law is that the state law violated federal rights so the federal government has the power to protect the people being harmed by this law, please explain to me why, oh please why, would you side with some other interpretation where real live people continue to be harmed by bigotry?

    Barring a direct answer, I can only assume you don’t mean its ALL subjective, what you really meant to say was that your position was subjective and therefore your position should be granted more legitimacy by virtue of being an “opinion” as if it were nothing more than you expressing the opinion that you liked some novel or that you like strawberry shortcake.

  119. TonyDye@#124: My opinion is similar to the majority opinion of my fellow Republicans.

    This would seem to be news to pretty much the entire GOP contingent in both the House and the Senate right now. Perhaps you and your fellow majority of Republicans should write your respective senators and let them know.

  120. @jamestones, 132

    But overturning a law that is constitutional is usurping the power of the legislature, which is why people complain about judicial activism in cases where they believe judges have done this.

    If a law is over-turned for being unconstitutional, then it, by definition, was not constitutional to begin with and thus there wouldn’t be any “usurping the power of the legislature” since it is judges, not the legislature, who have the authority and responsibility to judge what is and is not “constitutional”.

    If people have an issue with a judge’s ruling, they can appeal the ruling and, perhaps, a judge higher up on the chain will agree with the plaintiffs that the law is constitutional and it will stand, which is the reason why we have the appeals process to begin with.

  121. It’s not that the ruling is “incorrect” but that it rests on subjective political/philosophical/moral beliefs that many people disagree with. There is no “correct” answer to the question of the precise scope of broad constitutional principles or the precise boundaries of the powers held by each branch of government

    You are correct! Which is why there is a system within the American government whose job it is to adjudicate these kind of disputes and come up with an answer. This system is called the “judicial system,” and it appears to be functioning exactly as designed.

  122. Jamestown @132: Since Proposition 8 was an initiative, and not passed by the legislature, it would be a neat trick indeed for overturning Prop 8 to be “usurping the power of the legislature”. But as others have already pointed out, unless you are in that handful of people who thinks Marbury v. Madison was an unconstitutional power grab, ruling on the validity of laws is the power of the courts. Not the legislature.

    It’s not that the ruling is “incorrect” but that it rests on subjective political/philosophical/moral beliefs that many people disagree with.

    Specifics, please. Telling me that people disagree on the scope of equal protection is a non-answer. What, exactly, in Judge Walker’s decision “rests on subjective political/philosophical/moral beliefs”, such that a reasonable person may conclude he was wrong on certain points?

    The Pathetic Earthling @131: While I have a high opinion of Judge Walker too, I would not say he is in all things perfect; he got some serious and in my opinion well-deserved flak for his handling of the case in the mid-1990s where a group of logging protesters had pepper spray applied to their eyes by police (IIRC, he tried to ship the case up to not-exactly-logging-protester-friendly Shasta County twice). That said, he has an excellent reputation and from my one brief appearance in front of him I have no reason whatsoever to doubt that as a judge he was always intelligent, thoughtful and well-prepared.

  123. John: As the derailer you mentioned, I respectfully disagree. Namely because, by your own words (actually the words you quote) the standard being set is that the position be one that a reasonable person would accept as legitimate. I would content that changing the language of the dispute to eliminate the dispute (since a lot of it is about the use of a religious word in a secular manner) is something that a reasonable person would accept.

    The primary argument for people opposed to same-sex marriages is that it is against their religion and that the government is forcing them to accept something to which they are morally opposed. (Whether we agree or disagree with this position is irrelevant in as much as it’s their opinion, not ours – and for the sake of this discussion, much simplified.)

    If the government issued civil licenses rather than “marriage” licenses, that argument disappears. Those opposed can belong to a religion that chooses not to recognize same sex couple and all people regardless of how they partner can get the civil benefits of a legally recognized union, including all legal protections, etc. etc. As far as those who are not religious, I would say that this would be a change that would only matter to those who oppose same-sex unions. Everyone else can still call it a marriage, even if that’s not the actual word on the legal document that rarely ever look at.

    Will that ever happen? No, but none of the other alternatives being discussed will ever lead to a happy resolution either because one group feels their right to be legally recognized as a couple is being denied while the other side feels their religious views aren’t being respected. You can’t make both sides happy unless you eliminate the language that’s causing their dispute.

  124. Erick:

    You can disagree all you like, but it’s my site, and I say it’s a derail, and it’s my call to make. So drop it in this thread, please.

  125. @Erick (the Derailer), 140

    No, but none of the other alternatives being discussed will ever lead to a happy resolution either because one group feels their right to be legally recognized as a couple is being denied while the other side feels their religious views aren’t being respected. You can’t make both sides happy unless you eliminate the language that’s causing their dispute.

    I would argue that the law doesn’t give a lick about whether or not people are “happy” with a decision. The law is not there to make people happy. If we bowed to people’s happiness then I think a lot of the legal decisions that were in many ways unpopular at the time they were made with at least certain percentages of the population, Loving V. Virginia to name legal decision regarding the ability to marry, then such decisions wouldn’t have happened.

    Your argument is especially flawed when you consider that ruling Prop 8 unconstitutional does not, in any way, infringe on their religious beliefs; they are as free to believe that gays are of the devil or that gay marriages are invalid, the same way racists are free to believe that mixed marriages are wrong. What they aren’t being allowed to do (I hope), and shouldn’t be allowed to do, is inflict their religious beliefs on other people who may not agree with them or deny the freedoms that they claim to others.

  126. Nothing on this thread? Are you referencing some other time you’ve talked to me?

    I was replying while you were as well and, yours being shorter, got posted first but my page view didn’t refresh until after I responded; I wouldn’t have commented to him if I’d seen your response. I apologize.

  127. the only people I have run into who are invested in this sort of law being consttutional are bigots and libertarians.

    Name-calling is one way you can go. It’s not likely to get you very far in a court of law, though.

    Specifics, please. Telling me that people disagree on the scope of equal protection is a non-answer.

    In its ruling upholding Prop 8, the California Supreme Court found that the claim that the equal protection clause encompasses a right to same-sex marriage is “entirely without foundation in this court’s teachings.” You may not agree with the court’s interpretation of the clause, but that doesn’t mean it isn’t an answer. Judge Walker claimed that “the state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” But enforcing a (secular) moral belief IS a secular purpose. All laws ultimately rest on premises about what people ought to be allowed to do.

  128. Jamestown @145:

    In its ruling upholding Prop 8, the California Supreme Court found that the claim that the equal protection clause encompasses a right to same-sex marriage is “entirely without foundation in this court’s teachings.”

    You don’t provide a citation, but the only ruling you could possibly be thinking of is Strauss v. Horton, which you can read for yourself by clicking on the huge-ola PDF at that link. Strauss didn’t address whether or not same-sex marriage is OK, but whether California voters can indeed pass an initiative such as Prop 8 (which, per the court’s opinion, they can). The substantive ruling from the California Supreme Court on same-sex marriage, you may recall, agreed with the In Re: Marriage Cases lower court ruling and permitted same-sex marriage.

    But here’s an interesting thing; when I do a word search on “entirely without foundation in this court’s teachings” in Strauss, I get no hits. If I plug that phrase verbatim into Google, I do indeed get a hit. It’s a quotation not from the Court’s opinion, as you claim, but from the intervenor’s opposition brief, as posted at Free Republic.

    So, again, what specifically did you think was legally wrong with Judge Walker’s ruling?

  129. Erick@140: The primary argument for people opposed to same-sex marriages is that it is against their religion and that the government is forcing them to accept something to which they are morally opposed.

    But… but… but… that entire argument rests on an authoritarian view, rather than a committed view, of the legal system. And an authoritarian view is like, so… I don’t know…. feudal… It’s divine right of kings, “it’s wrong because I say it’s wrong”, kind of bullshit. I mean jesus, didn’t we give up on “because I said so” divine-right-of-kings bullshit, like centuries ago? I think the very definition of “Modern History” is the era from the point that Divine Right Of Kings was called bullshit, forward.

    So, unless we regressed a few centuries and I didn’t get the memo, the “because I say so” approach to the State and the legal system, isn’t something to coddle. It isn’t something to go, “Oh, how about we implement this bullshit backdoor bigotry so you feudal thinking mother fuckers don’t have your sensibilities offended.”

    No.

    Feudal thinking mother fuckers need to get their heads pulled out of their asses and upgraded to committed viewpoint of government and law. faililng that, they ought to be treated like the flat earthers they are, and handled with tongs to keep them away from anyting important. Not coddled.

    The basic phrase is this:

    governments are instituted among men, deriving their just powers from the consent of the governed

    That’s a committed view of government. The government derives its power from the people it governs. “This is how we commit to living amongst each other”. And if one of the things you commit to is “all men and women are created equal” then you either hold to that commitment or your government is in default.

    divine right of kings and “because I said so” approach to state would allow whoever has the power at the moment to decide the rules of what is right and wrong and impose those rules on everyone else. It’s right because I said so. It’s wrong because I said so.

    Contrast with the commitment approach where the people as a whole take a vow as to what they decide is right and wrong, because that’s the commitments they came up with and agreed to as a people. Consenting adults agree to what rules they will all live by and create a government to hold those rules.

    That’s the difference between rule of law and rule of men. Bush did a hell of a number on this country pushing us way into the “rule of men” approach to government. Obama, bless his heart, has taken that approach and run even further with it. Given Obama is a constitutional lawyer, I would really like to know at what point they started telling students at law school that the constitution was to be considered optional overhead to be disregarded when inconvenient. But I digress.

    The point being that this rule of men notion, this divine right of kings notion, this “because I said so”, notion of government, has to be beaten out of people’s head whenever encountered. And people who oppose same sex marriage because it is against their religion and therefore they need to prevent anyone else from doing it is divine right bullshit, not commitment derived from the governed as a whole. Its “because I said so”, rather than “what will we as consenting adults commit to live by in our government?”

    sayign “the government is forcing them to accept something to which they are morally opposed” ignores the fact that the government derives its power from ALL the governed, and from ALL the governed, it implements and codifies things that EVERYONE is committed to. Which means, its not simple that the “government is forcing them” but rather the people as a whole aren’t committed to the same things they in particular are. Just because they are morally opposed to something doesn’t mean the government MUST enforce it. That’s “because we said so” rather than “What do we as a people agree to?” approach.

    And last but not least, every time I hear about how “the government is forcing” people to accept gay marriage, I want to smash my monitor. Really? The government is forcing??? The govenment is FORCING BIGOTS TO STOP FORCING THEIR BIGOTRY ON A MINORITY???? The BIGOTS are the ones being FORCED here????

    That sort of language used to frame this kind of issue drives me up a fucking wall. It is totally loaded framing and deserves to be highlighted for the total disconnect from reality that it is. If anyone is FORCING anyone else in this issue, it is the BIGOTS who are FORCING gay people into a second class citizen status by denying them a right everyone else has.

    Consent of the governed includes gay people. Forcing them into second class citizen status is trying to disenfranchise them and turns the state into the STRAIGHT people telling GAY people what they can and cannot do… BECAUSE THEY SAID SO.

    No one should be allowed to ever, EVER, use the phrase “the government is forcing them” when the “them” are people who are using the force of the state to withold someone else’s rights.

    EVER.

    Bigots are using teh force of the state to force others to do what they deem right and wrong, rather than the state deriving its power from EVERYONE and basing its approach to law on what the people as a whole agree to commit to.

    I don’t care if that’s their argument. It’s a total bullshit argument, front to back, top to bottom, beginning to end. And I’m tired of people saying “Well, this is what they say, lets try to find a way to make them happy”.

    No. The only reason we have any semblance at all of a government by (all) the people, the only reason we have any semblance at all to the concept of rule of law rather than rule of men and “because I said so” and some divine right of how the ruling class is magically better than those they rule, is because people demand it and because people oppose “rule of men” and “because I said so” and all that bullshit when they see it.

    Stop coddling this bullshit. Coddling would be to find a way these flat earther feudal thinking thugs can keep their flat earth feudal thinking ways and everyone tip toes around them so their flat earth feudal thinking “sensibilities” never get offended. If we want to maintain any semblance of government by the people and rule of law, then we have to fight for it, and we have to fight any attempt by flat earth feudal thinking morons to try and force the world to regress a couple centuries of progress just so they don’t have to fan themselves vigorously at the thought that someone else might be doing something that they don’t approve of.

  130. @145 Jamestown: Huh? The California Supreme Court did not address the federal equal protection guarantee in the case upholding Prop. 8 (that would be Strauss v. Horton, 46 Cal. 4th 364, if you’re following along). The case rested exclusively on the validity of the process used to amend/revise (that was the key distinction) the California Constitution. The opinion is long, but my search for the language you quoted came up empty. That leads me to conclude that either (1) my search was flawed and I just missed the language you quote, (2) you are quoting someone else’s (erroneous) interpretation of the case, or (3) you are making stuff up. Wanna clarify where you found that language?

  131. Greg @91
    I value human rights as much as do you. I am simply more patient than you appear to be. The 14th amendment equal protection language originally was framed in the context of race only. Freed blacks enjoyed the same rights as whites. Over time since the phrase has been expanded to include other meanings, classes of people. I prefer to wait for legislatures and consitutional amendments to expand the meaning of the phrase. I do not care for judges to add a new class and then be called a bigot by you or anyone else because I disagree with the judge adding the new meaning to the phrase. When the judge expands the meaning, we the people have been left out of the loop. My problem is that the judge expanded the meaning. I see no reason why sexual orientation can’t be a part of equal protection, but let’s let Congress legislate to make that clear. My problem is with judges having the power to amend the constitution via interpretation. And yes, as Mythago @ 139 notes there are some of us out here who think that Marbury vs Madison was a power grab. If the Supreme Court is to hold the power of judicial review, Congress only needs to enact a statutue to make judicial review part of the Court’s jurisdiction. Congress never has. You focus on the same-sex issue and miss the bigger issue. Who decides what equal protection means and what rights are human rights? I think we do as the people represented by our legislatures. I think unelected Federal judges have usurped our right as citizens to decide these issues. I for one am patient enough to wait for our legislatures to act whether State or Federal. I am not elevating some State entitity over the human rights as you suggest, I am standing for our human rights as a people to decide these issues even if a slower process. I think that answers your question to me.

    Nat @ 115
    So Congress can use tax money for the common defense and general welfare, thus the Feds can do Education with their power of the purse. Okay, I can buy that argument. Dangle some Fed Ed goodies out to the States, they take it, they then take the rules that come with it. So is there anything Congress can’t do so long as they are willing to send us some Fed tax dollar incentives first? Guess not. And I am one of those who think Marbury vs Madison a power grab (see Mythago @ 139 who says some few are such). Like you, for most of my life I have bought into the idea that Consitution is a living document. I certainly thought that when I read Marbury vs Madison in a college class “Civil Liberties Under the Constitution” back in 1972. The older I get and watch that process play out with judges effectively amending the Consitution through rullings on specific cases, the more skeptical I have become. As I note in my response to Greg in the preceeding paragraph I think we citizens are being increaslingly left out of the loop. I understand the concept of common law, judicial review, and how the two together act to broaden our legal system. They have worked a thousand years. For the last five decades it seems to me that too many judicial rulings have been blows to the guts of the majority’s right to decide our laws right down to the meaning of phrases like equal protection and what exactly are the human rights which society sanctions as being such. The role of any disaffected minority view is to fight to change the majority view to achieve their goals for legal change. Not just file a lawsuit to force the change. Like I said, I am just getting skeptical as I age and watch the discord created by what has been a sound system of common law for a thousand years. Maybe all I am saying is that the pendulum has swung too far away from the people deciding to judges deciding the great questions of the day.

    Mythago @139
    Guilty. As commented to Nat in the preceeding pararagraph, I am losing my faith in judicial review, and yes, Marbury vs Madison was a power grab–one that succeeded wildly and continues strongly two centuries later.

  132. Strauss didn’t address whether or not same-sex marriage is OK, but whether California voters can indeed pass an initiative such as Prop 8 (which, per the court’s opinion, they can).

    I’m not sure what you mean exactly by “whether or not same-sex marriage is OK,” but the court explicitly rejected the petitioners’ claim that Prop 8 is unconstitutional. The people of California decided, by majority vote, that the equal protection clause does not encompass the right of same-sex couples to marry, and the Court upheld that decision.

    So, again, what specifically did you think was legally wrong with Judge Walker’s ruling?

    I just gave you a clear example: his claim that the law does not have a secular purpose. It’s hard to understand why he thinks that enforcing a secular moral belief does not qualify as a secular purpose. As I said, all laws ultimately rest on beliefs about what people ought to be allowed to do (and not do).

  133. Jamestown @152:

    The people of California decided, by majority vote, that the equal protection clause does not encompass the right of same-sex couples to marry

    Really? When did they do that? Certainly not in Proposition 8, they didn’t; it says nothing whatsoever about the Equal Protection clause. Are you thinking of some other initiative? Or are you somehow thinking that a popular initiative can never ever be unconstitutional?

    I just gave you a clear example: his claim that the law does not have a secular purpose. It’s hard to understand why he thinks that enforcing a secular moral belief does not qualify as a secular purpose.

    It isn’t hard to understand if one actually bothers to read the opinion, which I encourage you to do.

  134. @Gary, 151

    The 14th amendment equal protection language originally was framed in the context of race only.

    You continue to be wrong. Here is the text of the Equal Protection Clause of the 14th Amendment which you clearly have not read based on your insistence that it has to do with just skin tone: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    Notice that there is no mention of race, nor of religion, creed, ethnicity, sex, gender, sexual orientation, or any other category. If you’re going to claim the US Constitution as your support for your arguments it would help if you read it.

    Freed blacks enjoyed the same rights as whites.

    Your lack of historical knowledge is either horribly ignorant or willfully blind. Same rights as whites? Please, do tell me then why whites could enter into every business but blacks, until the ’60′s, could be forbidden from particular, public establishments? Please tell me, if they shared equal rights, why there had to be a Supreme Court case that made it so the segregating schools was against the Constitution’s Equal Protection Clause?

    My problem is with judges having the power to amend the constitution via interpretation.

    Oh, this should be rich. Give us an example where a judge amended the Constitution.

  135. Really? When did they do that? Certainly not in Proposition 8, they didn’t; it says nothing whatsoever about the Equal Protection clause.

    The fact that the Proposition doesn’t explicitly mention the equal protection clause is irrelevant. You’re now claiming that the people of California voted for a law that they consider unconstitutional.

    It isn’t hard to understand if one actually bothers to read the opinion, which I encourage you to do.

    I have read the opinion, and no, it doesn’t answer the question. Perhaps you could explain why you think that enforcing a secular moral belief does not count as a secular purpose.

  136. Jamestown:

    “You’re now claiming that the people of California voted for a law that they consider unconstitutional.”

    Well, you’re arguing that this is what she’s claiming; I’m seeing no evidence of that.

    I think your belief that the people who voted Proposition 8 into the California Constitution gave much thought to the equal protection clause before voting is charming. I also suspect it’s not close to being correct.

  137. Jamestown @156: Again, please indicate when, if ever, the people of California “decided, by majority vote, that the equal protection clause does not encompass the right of same-sex couples to marry”. They decided, by majority vote, that same-sex couples should not be permitted to marry. Are you really arguing that those two are the same thing?

    And as I said, your question about “secular purpose” is answered right there in the opinion. First, Walker points out (with legal citations! and everything!) that the law needs to have a secular purpose – it is not a Constitutional argument to say “God hates fags” – and second, that the Prop 8 defenders completely failed to show that such a purpose exists. If you really had read the opinion you could find that in ten seconds with a word search.

    BTW, if you wonder why I’m doubting that you have actually read the opinion, it’s because you have repeatedly said things that are flat-out untrue – such as claiming that a phrase in an opposition brief was actually uttered by the California Supreme Court in its majority opinion. If you haven’t read these cases then it’s plausible to chalk that up to error rather than malice.

  138. I doubt that ordinary people who vote for any law on any issue give much thought to the Constitution when they do so. But it also seems unlikely that most people would vote for a law that they considered to be unconstitutional. Do you have any evidence that the people of California did so in this case?

  139. Jamestown @159: Did what in this case? Your first and second sentences contradict each other.

    As you’re the one arguing that the people of California made an affirmative decision about the Equal Protection Clause (“decided, by majority vote, that the equal protection clause does not encompass the right of same-sex couples to marry”), then I kinda think that the person responsible for showing the voters a) thought about the constitutionality of Prop 8 and b) voted accordingly is your burden.

  140. They decided, by majority vote, that same-sex couples should not be permitted to marry. Are you really arguing that those two are the same thing?

    No, I’m arguing that they’re not likely to vote for a law that they themselves consider unconstitutional. The Court presumes that by virtue of voting for the law the people deem it to be a constitutional law. Unless you can show otherwise, I’m not sure what basis you think you have for challenging that presumption.

    First, Walker points out (with legal citations! and everything!) that the law needs to have a secular purpose

    Yes, a law needs to have a secular purpose. That’s not the question I’m asking you here. The question is why Walker, and you, believe that enforcing a secular moral belief does not qualify as a secular purpose. I keep asking and you keep evading the question.

  141. Jamestown: just to pile on – in any ruling regarding the constitutional validity of a given statue, act, order, or proposition, there will always be someone who believes the law in question to be constitutional. Rare is the blatantly unconstitutional law passed. And seldom does a government fail to defend it’s laws in court.* And finally, by definition, there has never been a constitutional law that was declared unconstitutional, as it is the judiciary, not the legislature nor the executive, who in responsible for making that determination.**

    Gary Willis: you’ve barked up this “power grab” interpretation of Maybury v. Madison before, and I gotta tell you, it’s just not smart. Because you, nor any other similarly minded proponent that I know of, has proposed a workable alternative to judicial review. Because without judicial review, what is to stop the legislature from writing whatever law they want? What keeps the chief executives from exercising what ever powers they want? Get rid of it, and you may as well get rid of the judiciary. Hell, the Constitution itself becomes moot, particularly that whole “Bill of Rights” part that you yourself reference as sacrosanct.

  142. Ack, more edits (sorry, John, I promise to stop after this):

    * This is what makes the Obama DoJ’s decision not to defend DOMA newsworthy. That and the fact that anything involving teh gheys (given that they seem to scare the bejeezes outta 1/3 of the country) is automatically newsworthy.

    ** I suppose you could say that every law is, by default, constitutional until ruled otherwise, bit that’s not really saying much of anything.

  143. Jamestown @161: What is your support for the claim that “The Court presumes that by virtue of voting for the law the people deem it to be a constitutional law”?

    As to the issue of “secular purpose”, I keep answering the question, and you keep ignoring the answer because you don’t like it. The issue is not what I, or Judge Walker, believes, but whether the law requires:

    A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947).

    Do you believe that this is an incorrect statement of the law?

  144. Doc, I don’t see anything in the paragraph addressed to me that conflicts with anything I’ve written. If you’re disputing something I’ve said, you’re going to have to describe it more clearly.

  145. Jamestown: way back at 132 you said

    But overturning a law that is constitutional is usurping the power of the legislature, which is why people complain about judicial activism in cases where they believe judges have done this.

    The first clause of that sentence, by definition mind you, cannot happen. The second clause is self-evident, but still wrong.

  146. What is your support for the claim that “The Court presumes that by virtue of voting for the law the people deem it to be a constitutional law”?

    This, for instance: “the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law.”

    I have to wonder what your point is here. Many states allow their constitutions to be amended by popular vote. The outcome of the vote is presumed to reflect the will of the people. If the amendment prohibits gay marriage, then it is presumed that the will of the people is a constitution that prohibits gay marriage.

    As to the issue of “secular purpose”, I keep answering the question

    No, you haven’t answered it. You just quote Walker: “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” But “enforcing private (secular) moral beliefs” IS ITSELF a secular purpose. Do you dispute this? If so, on what grounds? That enforcing such beliefs is not a purpose of any kind? That it’s a purpose, but not a secular one? Or what? The question seems pretty clear to me.

  147. Brief aside? One of the best things about Whatever is that the comment threads on contentious issues require a high degree of intellectual rigor. Unsupported assertions, half-baked arguments, misquoted texts — any and all of that will get called out, but quick. Here, for example, Jamestown has misquoted the California Supreme Court, and made a series of arguments that betray a sketchy understanding of Constitutional law and federalism. Jamestown conflates “secular moral belief” with “secular purpose.” (I know of no legal scholarship justifying discrimination as a “secular purpose,” er, sorry, “secular moral belief.” Probably because there isn’t any.) Jamestown’s comments stubbornly refuse to retreat from even obvious, indisputable errors. And thus, Whatever readers can participate in a valuable discussion, made more valuable by certain speakers revealing whether their arguments should be entitled to be taken particularly seriously.

    I do think that Jamestown has backed into a correct statement by saying “The Court presumes that by virtue of voting for the law the people deem it to be a constitutional law.” Not exactly, but a reviewing court will generally start from the presumption that the law is constitutional, and will try to reach a constitutional interpretation of a law, if such an interpretation can be made, consistent with the law’s text. Not possible for Proposition 8, alas. But you know why reviewing courts take that approach, Jamestown? Because that reduces the risk of judicial overreaching. On that, you and Judge Walker would likely agree.

  148. Gary Willis @151

    I value human rights as much as do you. I am simply more patient than you appear to be.
    Patience being a virtue, I’m glad you feel appropriately virtuous while arguing that minorities that aren’t you should suffer discrimination and indignity indefinitely for the sake of your ideological purity.

  149. The first clause of that sentence, by definition mind you, cannot happen.

    A judge rules that a law is unconstitutional and overturns it. A higher court reverses his decision, rules the law to be constitutional, and upholds it. The first judge overturned a constitutional law. This is what you claim “cannot happen.”

  150. Jamestown conflates “secular moral belief” with “secular purpose.”

    No, Jamestown does not do that. Jamestown points out that a law can have the purpose of enforcing secular moral beliefs, and that this purpose is a secular one. A secular purpose. I’m not sure what part of this KSB disputes, or on what grounds.

  151. I value human rights as much as do you. I am simply more patient than you appear to be.

    No, you simply tolerate more violations of human rights than others, without a corresponding balancing of that violated right. You are balancing human rights against preferred modes of change in laws, which is not a particularly good balancing act.

  152. Jamestown points out that a law can have the purpose of enforcing secular moral beliefs, and that this purpose is a secular one.

    Examples, please. (You tend to be shy about that). Most secular purposes do not tend to be moral.

  153. Jamestown @168:

    But “enforcing private (secular) moral beliefs” IS ITSELF a secular purpose.

    The “secular” in that quote does not appear in the court’s opinion; you have, again, put your preferred words in the court’s mouth. As the portion of that opinion that you snipped out of your quote clearly states:

    1) The law states that a private moral belief is not enough to support a law; there must be a valid secular purpose too;
    2) The grounds for #1 are binding Supreme Court precedent. (Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947)).

    You are disputing that this is true, and are claiming that Walker misstated the law; in your view, a private moral belief alone meets the “secular purpose” requirement as long as it is not a private religious belief. Could you kindly cite your authority for this statement?

    KSB @169: Indeed, a court will presume a law is constitutional until the challenging plaintiff meets their burden of showing it isn’t. But presuming the law is constitutional – which is really just requiring the plaintiff to prove its case – is very different from Jamestown’s assertion that if voters directly pass a law, they must have considered and then affirmatively decided that the law is constitutional. That’s frankly just bizarre.

  154. The “secular” in that quote does not appear in the court’s opinion;

    Right. I added it because I’m talking about a secular purpose, not a religious one. I agree that “enforcing religious moral beliefs” is not a secular purpose. But enforcing secular moral beliefs IS a secular purpose. For the umpteenth time, on what grounds do you dispute this?

    in your view, a private moral belief alone meets the “secular purpose” requirement as long as it is not a private religious belief.

    No, for about the tenth time, I’m saying that a law can have the PURPOSE of enforcing secular moral beliefs. This is a SECULAR PURPOSE. I don’t see how you can seriously deny this.

    And since “enforcing private secular moral beliefs” is itself a secular purpose, Judge Walker’s statement that a law with that secular purpose needs an “accompanying secular purpose” makes no sense. The law already has a secular purpose. His argument here is just totally confused.

  155. Examples, please

    Killing innocent people is wrong. Rape is wrong. Racial preferences are wrong. Same-sex marriage is wrong. These are all examples of moral beliefs. As I said way back, all laws ultimately rest on such beliefs.

  156. Jamestown @176: For the umpteenth time, Judge Walker’s statement is grounded in prior Supreme Court rulings, which are binding on lower courts (i.e., him) and which say that a “private moral belief” is not enough without an accompanying secular purpose. Have you reviewed the citations he lists, and do you think he is incorrectly stating what the law is?

    And for the umpteenth time, what is your legal authority for your proposition that a private moral belief alone constitutes an appropriate “secular purpose”?

    Where I think you may be getting hung up is on the misconception that “secular purpose” means “any old reason other than God Said So”, when it really means “a valid state purpose which is secular”. The any-old-reason interpretation is not only absurd – would ‘we white people really like having somebody to feel superior to’ be sufficient justificaton for a blatantly racist law, since it’s a secular reason? – but has been explicitly rejected by the Supreme Court, not only in Lawrence but in Romer v. Evans, 517 US 620.

  157. Mythago @#175: You are correct. The presumption of constitutionality is not one based on the premise that “voters are presumed to have concluded the law was constitutional.” There are, I am quite confident, no significant cases supporting such an assertion. Because, yes, that’s bizarre. I was just trying to be generous in finding a way that Jamestown, plainly unable or unwilling to grasp the legal underpinnings of the issues in play, might have stumbled onto a good point. Not sure why I felt like that generosity was warranted, but so it goes.

    I think comment #177 pretty much spells it out. It’s a simple point, and not one that is interesting or helpful in constitutional analysis, for the reasons you spell out quite well (and for the umpteenth time) in #178.

  158. @Jamestown, 171

    A judge rules that a law is unconstitutional and overturns it. A higher court reverses his decision, rules the law to be constitutional, and upholds it. The first judge overturned a constitutional law. This is what you claim “cannot happen.”

    I believe the common idea is that until the higher court reverses the decision, the lower court judge has overturned an unconstitutional law. When the higher court reverses that decision, no law has actually been overturned due to the fact that it was the determination of the law being unconstitutional that is being undone. So, technically speaking, no, judges don’t overturn constitutional laws, judges simply reverse decisions to potentially strike laws previously deemed unconstitutional.

  159. @Jamestown 177

    The fact that those are wrong (or believed to be wrong) is entirely separate from the secular purpose that the laws against them serve. The requirement is that the law not SOLELY serve a private moral belief but most also serve a valid secular purpose.

    Murder is illegal not because Buddha says killing is bad Karma but rather because it causes harm to a person and prevention of harm is a valid secular purpose. Rape is wrong not because the Bible alternately condemns and condones it but because it denies a person control over their own body and does not respect their right to consent or not to actions on it – a valid secular purpose. Racial discrimination is wrong not because Micheal Jackson declares that it doesn’t matter if you are black or white but because it treats people differently without (valid secular) basis.

    Opposition to same-sex marriage does not have a valid secular purpose to it, only propagation of personal and (some) institutional beliefs. If you want to make this argument you need to articulate what harm same-sex marriage causes (and not conforming to your beliefs is not a harm) or what rights are violated by permitting it. Failing that you need to acknowledge that just because you don’t like something doesn’t make legal decisions that support it legally incorrect. There are many legal decisions that I think are profoundly harmful that are properly legally decided and a handful I support that I think the legal justification is disturbingly incorrect.

    A final point – I have never seen it suggested that any person will be forced to approve of gay marriage or religion forced to perform their marriage ceremonies for a homosexual couple. Why can’t you believe that it is wrong without the law supporting your viewpoint?

  160. Jamestown:

    I don’t suspect you realize it, but in at least one (and I suspect more than one) case here, you’re trying to argue law with lawyers from California. And while I don’t wish to promote an argument from authority (as you erroneously tried to do earlier in the thread) as regarding their being more knowledgeable about the law in a general sense, it’s reasonably evident from the actual discussion that they know the facts of the law regarding this particular argument rather better than you do. Likewise that we’re at the point in the argument where everyone’s made most of the points they are going to, and from here we’ll likely just go into a tedious loop.

    Allow me, then, to amplify Mythago’s request that you find salient examples within the law supporting your assertion(s); if you can’t do that, then please admit that you’re arguing solely from a personal point of view, and make a final summation statement so the rest of the folks in the thread can go about their day.

  161. Gary@151: I value human rights as much as do you. I am simply more patient

    Those are mutually exclusive statements. Human rights means human beings this very moment suffering some inequity. You cannot look at someone suffering, tell them “be patient”, and then tell everyone else that human rights are your priority. No. Process is your priority.

    For what reason I don’t know. But I’ll guess its because you’ve got some libertarian thinking going on here. A libertarian’s fear of government would outweigh their concern for immediate human rights concerns.

    My problem is that the judge expanded the meaning. I see no reason why sexual orientation can’t be a part of equal protection, but let’s let Congress legislate to make that clear.

    You see no reason why sexual orientation shouldn’t be protected. That means you acknowledge that the human rights of certain orientations are being denied. And yet you argue that process must take priority over human rights.

    You do not get to say you value human rights as much as me.

    When the judge expands the meaning, we the people have been left out of the loop

    No. You haven’t. If we the people say that everyone should be treated equally before the law, if thats one of our commitments, then we haven’t been “left out of the loop” when some judge calls bullshit on some law that treats people differently from a legal standpoint.

    We the people agreed to a bunch of commitments, and one of those was equality, and when a law treats people unequally, and a judge holds that commitment as having higher priority than a specific law, then he is doing his job. He is keeping we the people in the loop because we already agreed to those commitments as being more important than specific law.

  162. Jamestown @171

    What about the opposite process: a lower court rules a law constitutional, its opponents appeal to a higher court, who reverses the lower decision. Did the upper court just rule a constitutional law as unconstitutional? Or did the lower court allow an unconstitutional law to stand?

    The answer is: neither. The determination of constitutionality is entirely within the purview of the court (i.e. the highest court asked to review the law). But, until you get to the USSC, that decision is not necessarily final, due to the appeals process. So, yes, a law can be constitutional, then unconstitutional, then constitutional again, as it works its way through the courts. This is, as we like to say, a feature, not a bug. And it’s only a problem for simple minded folks who recoil at the hint of ambiguity.

    Besides, this process isn’t what concerns you anyway. You are concerned about what happens when People-Who-Are-Not-Judges decide that a law is constitutional, but Judges decide otherwise. And my answer to you is that the PWANJ don’t get to make that determination.

  163. (phone is starting to really aggravate me now)

    Gary@52 . 50 different States could have 50 different definitions of marriage. I think this last point is what many cannot stomach, that we can have far more diversity in this nation of ours than we do at present.

    ah. so you prioritize ‘diversity’ over human rights. Where you define diversity not as different peoples and cultures treated equally, but different governments seperated from one another so as to limit their power.

    That is libertarian thinking through and through.

    that explains some things.

  164. Greg @ 151

    Ah, there is the crux when you morph, Greg, equal protection of the laws to “everyone should be treated equally before the law.” Whatever laws exist must be enforced/applied to everyone is the core meaning of the 14th amendment phrase, not that laws must treat everyone equally.

    Law does not and never has treated everyone equally. Majorities support laws that favor some activities over others. For most of our history our law has favored heterosexual marriage over all other human social relationships in the rational belief that doing so promotes a healthier society. CA Prop 8 was an attempt to continue that centuries old preference in the face of relentless attacks of some to elimnate such a preference in law. If we take your meaning that everyone should be treated equally then most of our current laws don’t pass the test. Something as simple as granting a tax credit for green windows must go. Giving a legal preference to poeple who buy new environomentally friendly windows treats the other guy unequally who buys old-style windows. This is not some slippery slope deal. I think majoritarian representative government gets to play favorietes in their laws. I am resisiting equal protection (enforcement) being rewritten into equal treatment, no preferences allowed.

    Of course, if I am the minority member wanting to eliminate laws that favor others over me, I can see the allure in thinking equal protection means equal treatment. Equal protection means when the law says no speeding, then we all can be ticketed for driving over the limit. Equal protection means when the law say only heterosexuals can be favored with the goodies that come with a marrrage certificate, then no marrired heterosexual couple can be denied the goodies. All married heterosexual couples get them.

    If law cannot play favorites, the mortgage interest Schedule A itemized deduction has been unconstitutional since the day one. Renters are being treated differently being denied any deductions related to renting their housing. Their lessor has certainly passed through to them in the form of rent any mortgage interest paid on the property. We could achieve equal treatment by requiring lessor report the amount to leasees so they could deduct them on their Schedule A.

    Think deeply about how many of our laws at all levels favor one group or a specific human behavior over other groups or behaviors. Your view of equal protection means equal treatment makes all the preferences unconsititutional.

    All that said, preferences in laws are not sacred. My comments earlier about being patient mean I am willing to watch as each of the 50 states deal with the marriage definition and possibly change their definitions. When they do so, great, their people changed their thinking and then their law. I prefer that to equal treatment being shoved down their throats under the mantle of equal protection.

    As for CA Prop 8 Scalzi cited that launched this thread, I still puzzle over how a CA consitutional change favoring heterosexual marriage can violate the US consitution when a Federal law that has not been declared unconstitutional, the Defense of Marriage Act, does the very same thing. Sure some think DOA a violation of the 14th, but at present it is the law of the land.

    Doc #162
    I am not opposed to judicial review per se and certainly see its benefits. Rather I think Congress should have (and still can) explicitely add it to the jurisdiction of the USSC since the language of the Constitution did not do so.

    Matt @155
    When I teach my English students any text I have a lot to say about context in which the text was created. Your point about the literal lanuage of the 14th is on point. Your greater point that race was not the central context of the 14th ignores history. My comments to which you reacted addressed the 14th from within the context of its creation. And, yes, every one of those Jim Crow laws passed in the South (or the North) were unconstitutional on their faces directly violating the 14th amendment. The fact they stood unchallenged successfully for seventy years reveals how not even our system of governance, as good as it is at times, does not always work as intended.

    You ask for an example of judges amending the Constitution. Here you go. Rowe vs Wade 1972 effectively amended the US Consitutiontion to include the right of any woman to abort her unborn child up to the end of the first trimester. The majority opinion asserted a penumbra about the rights to privacy inherrent in clauses against search and siezure and others demand this change. Since? 50 million have been aborted disporportionately minorities. Call it what you will. Before the ruling no Federal right to abortion existed; after the ruling the right existed. That is the essence of an amendment to the Consititution, only not done by the amendment process involving Congress and the States, but done by a majority rulling of the USSC. I deny the USSC has such power under our Consitution, but hey it happened and again we see how our system of governance does not always function as designed. AND PLEASE Whatever commentators do no go off onto the abortion arguments in this thread hereafter. This thread is not about abortion rights. Matt wanted an example of judges amending the constitution, so I gave him one. Save the abortion discussion for the next posting Scalzi does that launches the issue (if ever he does that again).

  165. Greg Willis @186:
    And yet, they haven’t bothered to. For more than 200 years. What does that tell you?

  166. Gary: Something as simple as granting a tax credit for green windows must go.

    oh my god. equal protection before the law regardless of who you ARE. laws can still differentiate based on what people DO.

    rob a bank. go to jail.

    rob a bank and get a longer sentence because you ARE black, no pass.

    their people changed their thinking and then their law. I prefer that to equal treatment being shoved down their throats under the mantle of equal protection.

    first of how did a basic commitment like equality get changed into a “mantle”. Your frame reveals your bias. you dont like anyone being able to hold a commitment and overriding mob vote. Which is what the judiciary branch does.

    second of all, WHAT THE FUCK? try using that argument when talikng about racial segregation and see how it sounds. you’d rather wait and let southern states change their laws to get rid of segregation??? the federal government should stay out of it even if blatant rights are being violated??? thats laughable if it werent so offensive.

    constitutional rights are there to prohibit the government from infringing those rights. if a state has gotten to the point of infringing those rights, then those rights are meant as a weapon to FORCE the atate to stop infringement.

    but thats what you want to avoid, right? you dont want the state being able to FORCE anyone to do anything. if the majority vktes for something then they should be able to have it. and one judge sitting in a courtroom shouldnt be able to take it away no mtter how evil that majority vote is. this is the ultimate libertarian nightmare. and the standard libertariann solution is to suggest that the very same mob that voted away someones rights should be allowed to come to their senses on their own schedule at which point they will see the error of their ways.

    That is quite reassuring to all the people whose rights have been voted away by the mob. but it seems perfectly reasonable to someone who isnt suffering any such mob violence. I will wager money you are straight white male. i will also wager money you are libertarian or at least sympathetic.

    and once again your “solution” reveals your true politic: government is something the people must divide and conquer. better to have fifty bigotted states thn to allow the federal government any legitimacy to override majority vote at a state level.

    in short, if the state passed it, it must be legal.

    it is a mechanical apllication of law. if they voted for it it must be acceptable and no judge ought be able to overrule.
    and mechanical application of law is another marker of libertarian thinking.
    tell me you dont tend towards libertarian politics and I will be shocked.

  167. Greg:

    As a piece of advice, when you get on a tear like this, you end up coming across as saying “YOU ARE A LIBERTARIAN AND THEREFORE EVIL.” Which does you not a lot of good. Try pointing out what you see as flaws in the argument without that part.

  168. Killing innocent people is wrong. Rape is wrong. Racial preferences are wrong. Same-sex marriage is wrong. These are all examples of moral beliefs.

    No, they’re not. You’re merely asserting that they’re moral belief, when someone derive these from non-moral, more secular principles. I think you conflate the two.

  169. I think majoritarian representative government gets to play favorietes in their laws

    I think not. You need to justify that in terms of conflicting rights of individuals, which you have not done.

  170. And, actually, I tend to think of majoritarian arguments as something that’s distinctly non-libertarian in nature.

  171. Greg @188
    Last Republican President I voted for was Nixon in 1972. Voted for the Democratic candidate every time since. No, I am not Libertarian. I am a Democat with a strong distaste for judges deciding which rights are universal human rights and which are not. I think the people should decide the definitions in legislation and in explicit language in consitutitutions.

    Jim Crow laws were unconsitituional in face of the 14th amendment. Yet for seventy years they ruled the day. Sad, but true because our system is not perfect and does not always function as designed. I simply favor the deomocratic process of voters, elections, legislation, amendment procedures over the rulings of judges that extend beyond the case decided. Put another way, I do not much care for the way the interplay of judicial review by the USSC has evolved to give that bank of judges the right to define which rights are human rights and protected and which rights are not. I think those definitions the perogative of the elected representatives of the people. This is very traditional democratic thinking.

    Libertarians don’t much care for government. Government does lots of things I really like providing a social safety net for some of our sickest, oldest, poorest fellow citizens. You are not accustomed to reading views of a Democrat that prefers majority rule to judicial review. For too long many Democrats, frustrated at convincing majorities to agree with their ideas, have sought to short circuit the process to achieve their views through the courts. Courts are there to resolve civil disputes, adjudicate guilt and innocence. Courts are not there to be the final deciders of the very definitions of human rights for the rest of us. We decide those definitions in the language of our laws and constitution.

    And for what its worth on the issue of who people are contrasted to what people do? I think that heterosexuality, homosexuality, bi-sexuality, beastiality, etc. are learned behaviors and not who people are, as you seem to believe. This may be why I am content to let majority rule favor one group over the other. Don’t like who the majority favors in the laws, then work to change the minds of a majority of voters.

    You’ve said nothing, Greg, to counter my observation that you equal equal protection to equal treament. Contrasting who people are with what they do doesn’t let you off that hook.

  172. Gary: I think that heterosexuality, homosexuality, bi-sexuality, beastiality, etc. are learned behaviors

    Homosexuality is a choice or learned behavior? I recall that for the longest time white people talked about their burden for taking care of black people who they insisted were measurably inferior in various ways.

    Second of all, my religious belief might be a learned behavior. Does that suddenly mean they are not a function of who I am? And therefore the state can regulate who I worship?

    If you see no inconsistency in your language/argument here, then I am not sure how to explain the problem.

    Courts are there to resolve civil disputes, adjudicate guilt and innocence. Courts are not there to be the final deciders of the very definitions of human rights for the rest of us.

    Um, maybe the problem is that we are living in two different countries? Cause in the US, that’s exactly what the courts do and have been doing for centuries.

    You’ve said nothing, Greg, to counter my observation that you equal equal protection to equal treament. Contrasting who people are with what they do doesn’t let you off that hook.

    Given that your description of the court system as a whole is completely off the mark, I’m not sure that the problem here is a lack of explanation on my part.

    Rather, I am more and more getting the impression that you want the court system to be a certain way, and so you find proof that it should be that way. Even though it is decidedly NOT that way and hasn’t been for a couple hundred years.

    I’m not exactly sure how to proceed with someone who is so sure that the courts are a certain way when they most decidely have never been that way, ever.

  173. Gary Willis:

    “I think that heterosexuality, homosexuality, bi-sexuality, beastiality, etc. are learned behaviors and not who people are, as you seem to believe.”

    Even if sexual preference were a “learned behavior,” that in of itself does not mean it cannot or should not be protected under our system from the tyranny of the majority, unless you also think it’s okay to legislate against, say, Jehovah’s Witnesses or Green Party members, whose political and religious beliefs are also learned behaviors. The “learned behavior” nonsense is very suspiciously like code for “them people who do what I don’t like them doing,” whether you intend it to be or not.

    Beyond this, Greg, Gary, if you want to continue this further, take it into e-mail. From out here, it just looks like Gary’s fantasy of a world without judicial review vs. Greg’s determination that everything evil is libertarian, around and around and around. You don’t need the rest of us for this conversation.

  174. Yes sir, Sir John sir. But you must admit it was an interesting segment of the thread discussion until it got tiresome. Oh, I do conceed your point. Last I checked everything we do is learned behavior and we are socially constructed beings (at least in the praxis of literary theory these last few decades). On the whole I think we do pretty well here, judicial review and all. Though part of me wishes we were part of the British Commonwealth and enjoyed a parlimentary decomocracy. But that may be because apart from being Texas born and bred I am an aging Anglophile. Grew up with all those great movies like Ivanhoe, Robin Hood, Knights of the Round Table, A Man for All Seasons, Lion in Winter, and more.

  175. Gary, you continue to ignore what the 14th amendment says. It doesn’t say states shall not “deny to any person within its jurisdiction the equal protection of the laws on the basis of race.” That sentence ends after the word “laws”. Yes, the writers of the 14th amendment were worried about preventing discrimination on the basis of race, but they chose not to limit the 14th amendment to racial discrimination. They could have–for example, the fifteenth amendment, passed in the same era, dictates that the right to vote cannot be withheld “on account of race, color, or previous condition of servitude.”

    . I am a Democat with a strong distaste for judges deciding which rights are universal human rights and which are not.

    Judges have been deciding what rights the constitution protects since the early days of the republic. Maybe you don’t like this, but this is the constitutional framework that currently exists in our nation.

    I simply favor the deomocratic process of voters, elections, legislation, amendment procedures over the rulings of judges that extend beyond the case decided.

    You know what? I think almost everyone here would prefer that the voters in California had not passed Prop 8; that they could have stopped this unconstitutional law at the ballot box instead of in the courts. But sometimes the majority, in the heat of the moment, passes laws that violate the constitution, or has an understanding of the constitution that is flawed. There has to be a check to prevent the majority from overstepping their bounds. You talked about how Jim Crow laws were unconstitutional. You realize that southerners strongly disagreed as to their unconstitutionality, right? Without judicial review, blacks in the south would have had no recourse.

    Put another way, I do not much care for the way the interplay of judicial review by the USSC has evolved to give that bank of judges the right to define which rights are human rights and protected and which rights are not. I think those definitions the perogative of the elected representatives of the people.

    If the people are unhappy with how judges interpret the constitution, they have the option of amending the document to clarify its meaning. They also have the option of voting for presidents who will nominate judges with interpretations more to their liking. But if voters and their representatives get to decide what the constitution means on a case-by-case basis, you better believe that they will occasionally opt to blatantly ignore the bounds imposed by it.

    For too long many Democrats, frustrated at convincing majorities to agree with their ideas, have sought to short circuit the process to achieve their views through the courts.

    And thank God! People should not have to convince the majority that they are worthy of the rights guaranteed them by the constitution. Can you imagine if blacks in the south had to wait for that racist society to give them the right to vote, to have the same educational opportunities as whites, and so on. They might have been waiting forever.

    I think that heterosexuality, homosexuality, bi-sexuality, beastiality, etc. are learned behaviors and not who people are, as you seem to believe.

    Really? This runs contrary to what every LGBT person I’ve talked to says. By the way, when did you “decide” to be attracted to the people you are attracted to? Unless your limbic system works radically differently than most people’s, you are full of crap on this point.

  176. John @196: Sorry I didn’t see this comment before I posted my comment at @198. I’ll put a lid on it now. :)

  177. @186 re: context and the 14th Amendment. I mentioned this further upthread, Gary, and you seemed to have missed it. Context matters, but so does the “plain language” of the statute, in this case the amendment.

    Section 1 of the 14th Amendment says:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Note the use of the term “person(s)” in both the first and second sentences. Whatever rights are granted in the first sentence are also protected in the second sentence, for the same set of individuals, as demonstrated by the use of the same term. Note the use of “citizens” in the first clause of the second sentence, which indicates a different subset of people.

    The first sentence of the 14th Amendment has commonly been thought to convey “birthright citizenship,” although there have been some recent discussions casting doubt on that. Regardless of what set of rights are granted by that language, I don’t see how it is possible to argue that there is intended to be a different subset of individuals granted those rights than those whose rights are protected by the second sentence.

    If we accept that premise, it seems to me that it puts those arguing that the 14th Amendment only applies to distinctions of race in the untenable position of arguing that birthright citizenship (or whatever set of rights are converyed by that language) is only granted to male babies. If equal protection doesn’t cover gender, how can birthright citizenship go to both genders?

    Rather than such a bizarre result, I think we have to construe the 14th Amendment more broadly than the “context” in which it was created.

  178. John @ 196:

    Shades of my Southern Baptist-convert cousin who was of the opinion that because a “gay gene” hadn’t been discovered that meant that teh g4yz0rs chose to like the penis, and therefore it was OK to discriminate against them because his invisible sky-friend said so.

    We don’t talk much anymore.

  179. Nat Mund @ 201:

    The 14th Amendment is anathema among a certain segment because if one reads it literally, it seems to imply that if a pregnant woman comes here illegally and gives birth, that child is automatically a US citizen; c.f. the birthers.

  180. The 14th Amendment is anathema among a certain segment because if one reads it literally, it seems to imply that if a pregnant woman comes here illegally and gives birth, that child is automatically a US citizen

    Which is, in fact, how the Supreme Court reads the 14th Amendment.

  181. John: Greg’s determination that everything evil is libertarian

    Its not that hard core libertarians are evil. It’s that they’ve been proven wrong many times over, and yet they continue to hold that they’re right.

    hard core -> if you remove all government regulation, people acting freely and in their own self interests will produce the best possible outcome, better than any possible outcome with any form of government regulation.

    ideas like teh tragedy of the commons and prisoner’s dillema show this belief is wrong. Objectively prove it is wrong. And yet, hard core libertarians cling to their dogma.

    If I’m dealing with someone I think may be a hard core libertarian, and I think the hard core libertarianism is driving their argument, then I want to know to simply quit beating around the bush and get to the basic core libertarian argument, which has already been proven wrong repeatedly.

    Gary’s response sounds an awful lot like it is sourced by a libertarian argument. If he acknowledged that he is a libertarian then we can simply cut to the chase and show that the primary drive behind his argument, the basic premise upon which his argument rests, the core of his libertarian idea, is wrong. totally and absolutely wrong.

    It’s not that I want to know he’s a libertarian because “libertarians are evil”. Its because people usually have core ideas that act as premises to their arguments, and sometimes those premises are totally F’ed up. and if we can back up to the flawed premise, maybe it’ll show the flaw in the argument as a whole.

    Its not that all the ideas of libertarianism are evil. Some of the less hard-core ideas of libertarianism are fine. Freedom. Independence. Small government. Choice. But those ideas work inside of many different political parties and philosophies. One doesn’t have to be a hard core libertarain (laissez faire rah rah rah!) to support the idea of freedom.

  182. mythago,

    For the umpteenth time, Judge Walker’s statement is grounded in prior Supreme Court rulings, which are binding on lower courts (i.e., him) and which say that a “private moral belief” is not enough without an accompanying secular purpose.

    It doesn’t matter who said it. The claim that a “enforcing secular private moral beliefs” is NOT a “secular purpose” is simply nonsense. A law can obviously have the purpose of enforcing such beliefs, and that purpose is secular rather than religious.

    And for the umpteenth time, what is your legal authority for your proposition that a private moral belief alone constitutes an appropriate “secular purpose”?

    I don’t know why you keep asking me these strawman questions. I have not said, and do not believe, that “a private moral belief” is a secular purpose. The secular purpose here is the ENFORCEMENT of such a belief. Specifically, the purpose of enforcing the secular belief that same-sex marriage is wrong. Just as laws against murder can have the secular purpose of enforcing the private secular moral belief that murder is wrong.

    Where I think you may be getting hung up is on the misconception that “secular purpose” means “any old reason other than God Said So”, when it really means “a valid state purpose which is secular”.

    No, the term “secular purpose” means a purpose that is secular. Period. A “valid state purpose which is secular” is merely an example of a secular purpose. Walker did not write “valid state purpose which is secular.” He wrote “secular purpose.” You’re not allowed to rewrite his opinion to say what you think he should have written.

    As for your phrase “valid state purpose,” the state exists to serve the people, not to serve itself. Therefore, a valid state purpose can only be a purpose of the people. So why is enforcing the private moral belief of the people that same-sex marriage is wrong not a “valid state purpose,” anyway? Again, all laws ultimately rest on beliefs about what we ought to be allowed to do. That is, on moral beliefs.

  183. Beth,

    The requirement is that the law not SOLELY serve a private moral belief but most also serve a valid secular purpose.

    What “valid secular purpose” does laws against murder serve that is not a purpose of enforcing a private moral belief? It cannot be an interest of the state in protecting innocent life, because the only reason the state can have an interest in protecting innocent life is that the people the state is representing believe that taking innocent life is wrong. Ditto for any other state interest you might propose. It all ultimately comes down to the beliefs of the people about right and wrong behavior.

  184. Jamestown:

    “I don’t know why you keep asking me these strawman questions.”

    She’s not asking you strawman questions, she’s asking you for the legal citations to back up your argument. And I have told that you that unless you can do so, you need to wrap things up. So, moving forward, Jamestown, one or the other, please. Otherwise, you’re just in the arguing to argue phase.

  185. Jamestown @ 208:
    Seriously? Did you not give 5 seconds worth of thought to this? How about, “A society in which murder is legal will degenerate into blood-soaked anarchy by lunchtime.” Is that a secular enough purpose for you? Banning pork serves a private moral belief. Forcing stores to close on Sunday enforces a private moral belief. Banning murder makes it possible to have a functioning society.

  186. Jamesdown@208: All the state is doing, or is supposed to be doing, is protecting people from actual physical and economic (as well as provable emotional and psychological) harm. Same-sex marriage does not cause physical or economic harm to anyone. Nor does it cause emotional or psychological harm to anyone except bigots, who, frankly, need to grow up and out of their paranoia and bigotry.

    Law is not about morals, which is what you want (good and bad, as in evaluation with value judgments). It’s about ethics (right and wrong in terms of evaluation of actual harm – that which harms is wrong, and that which does not harm is by default right). State interest is in preserving the physical and economic security of its citizenry. Bigots detract from that security and thus must be reined in (with a curb bit if necessary). But law has zero to do with moral judgments.

  187. ok. so I went back and read through a bunch of Jamesstown posts. they seem to boil down into an argument from ignorance fallacy for the most part. ie this is all subjective interpretation of the constitution and law therefore all interpretations are equally valid. I can only assume that this is driven by the desire to make some room for whatever his interpretation is.

    the recent discussion seems to boil down to all morals are secular to some degree and therefore any law which enforces any moral is secular, and therefore acceptable.

  188. Greg:
    Well, he’s definitely trying to carve out a space where he gets to draw a line of equivalency between murder, rape, theft, and “people with teh ghey gettin marriedzors oh noes”. Interesting that the other commenters have focused on his poor understanding of law, rather than calling him out on the despicableness (if that’s not a word, it is now) of the mere implication of such a thing.

  189. I apologize if this doesn’t come out as cogent as it sounds in my head….

    why is it that the same groups who complain abount wanting a smaller government, less regulation (of businesses) are the same ones that want government to enforce morality (of individuals)? = more laws = bigger government. it seems to me that these things are mutually exclusive. Why would someone with a libertarian bent want the state to tell him/her whom they can or cannot marry? ( I thought libertarians didn’t want the state doing anything but fixing roads and running the army)

    maybe I’m getting less tolerant in my old age (42) but I find I have less and less patince for “conservatives” is it me or are they becoming more radical?- when I was in college it didn’t seem to me that people I disagreed with were all idiots and/or evil (over what is often a left vs right argument i.e. right to life vs right to choose) now it seems to me that the people ‘on the other side’ are all, I don’t know, just so ‘wrong’

    maybe I’m just lazy, is it so wrong that I assume that whatever posistion ‘conservatives’, ‘fundamentalists’, and (more and more) ‘republicans–hold is just wrong until I’m convinced otherwise?

  190. “Why would someone with a libertarian bent want the state to tell him/her whom they can or cannot marry? ”

    They wouldn’t. The problem is that most people who say they want a smaller government aren’t really libertarians. My experience with, for instance, Tea Party members who claim they want a smaller government is that they almost always mean they want to pay less taxes.

    Ron Paul isn’t a perfect example, but when he talks about smaller government, he actually means just that. Pulling out of the wars, ending the war on drugs at the federal level, and all sorts of things that aren’t popular with mainstream conservatism.

  191. Ron Paul isn’t a perfect example, but when he talks about smaller government, he actually means just that.

    He’s a very bad example if the subject is same-sex marriage.

  192. How about, “A society in which murder is legal will degenerate into blood-soaked anarchy by lunchtime.” Is that a secular enough purpose for you?

    You’re simply pushing the question back a step. You’re against “blood-soaked anarchy” because you think it’s wrong. It’s a moral belief. Just like “same-sex marriage is wrong” is a moral belief.

    All the state is doing, or is supposed to be doing, is protecting people from actual physical and economic (as well as provable emotional and psychological) harm.

    Again, the belief that people ought to be protected from harm is a moral belief. In fact, it’s a moral belief that rests on a particular kind of moral theory — consequentialism — which holds that the morality of an act depends on its consequences. But there are other kinds of moral theory, that do not rest on consequences. Some people believe that certain acts are just inherently wrong, that they are wrong in and of themselves, regardless of their consequences. This is the branch of ethics associated with Kant, “deontological” ethics. So even people who accept your claims that excluding same-sex couples from marriage is harmful may still oppose legalizing gay marriage on the grounds that it is just inherently wrong.

    Well, he’s definitely trying to carve out a space where he gets to draw a line of equivalency between murder, rape, theft

    I don’t believe that those acts are morally equivalent, and nothing I have written implies otherwise. What I’m saying is that laws against those acts, like all laws, including laws against same-sex marriage, ultimately rest on moral beliefs, on beliefs about what people ought to be allowed to do. So the idea that laws cannot be justified by “private secular moral beliefs” is nonsense.

  193. She’s not asking you strawman questions, she’s asking you for the legal citations to back up your argument.

    Yes she is. The premise of her question was that I had claimed that a private moral belief is a secular purpose. I had not claimed that and I do not believe it.

    As for precedent that Walker’s decision is legally incorrect, an example would be Baker v. Nelson, in which the U.S. Supreme Court ruled that a Minnesota law that exludes same-sex couples from civil marriage does not violate the federal Constitution.

  194. Jamestown@217:

    I don’t believe that those acts are morally equivalent, and nothing I have written implies otherwise.
    Jamestown@177:
    Killing innocent people is wrong. Rape is wrong. Racial preferences are wrong. Same-sex marriage is wrong.

    Nope, no implication there.

    Dude, you are twisting yourself into such knots trying to be “right” that honestly, I don’t know what our point is anymore, and furthermore, I no longer care. Good day.

  195. I don’t think the belief that two kinds of act are both wrong implies the belief that they are “equivalent,” which is the belief you falsely attributed to me. You don’t seem interested in responding to what I actually write, but only to your cartoon distortions of what I write.

  196. Jamestown @218: I don’t know whether you’re simply cutting and pasting what some columnist you’re fond of has said about these cases, or whether you’ve read and misunderstood them, or whether you’re deliberately lying and hoping against hope that, in the age of Google, nobody will fact-check you. Please be aware that there are a lot of people here very, very familiar with all the cases and arguments involved, and trying to pull a fast one like this will not only impact the credibility of your particular argument, but your credibility in general.

    Baker v. Nelson, a 1972 decision, wasn’t as helpful as the people you’re quoting would like it to be. SCOTUS dismissed the appeal from the Minnesota Supreme Court “for want of a federal question”, which may or may not be binding precedent as to the 14th Amendment – lower courts have split trying to figure this out. In any case, a lot of water has passed under the bridge since then, including Lawrence v. Texas. There’s also the question of whether the facts of Baker and the facts of Perry are similar enough to have altered Walker’s opinion. But you can answer that question, having read both cases, yes?

    Also, really:

    The premise of her question was that I had claimed that a private moral belief is a secular purpose. I had not claimed that and I do not believe it.

    vs.

    I agree that “enforcing religious moral beliefs” is not a secular purpose. But enforcing secular moral beliefs IS a secular purpose.

    Well, dude, pick one. Have you finally come to realize that, in fact, it is the law (and binding predecent) that a private, secular moral believe alone is insufficient to justify a law, and that there must also be a valid, secular state purpose?

  197. Take another good look at 177. You list four “wrongs”, two of which are among the most reprehensible things one person can do to another. You make no distinction for degree of “wrongness” between those things. You are implying that there is only “right” and “wrong”, and thus those four “wrongs” are, for all intents, equivalent. That you want to claim that you aren’t trying to imply this is not my fault, as I am drawing inferences based on the words you use, as well as some you conspicuously do not.

    It’s all about the framing. You decided to choose those particular “wrongs” and list them in that particular order. You did so to make a very particular point. You are going to have to deal with the implications, intended or otherwise, of your choice of framing.

  198. SCOTUS dismissed the appeal from the Minnesota Supreme Court “for want of a federal question”, which may or may not be binding precedent as to the 14th Amendment – lower courts have split trying to figure this out.

    The point is that there is Supreme Court precedent, on the specific issue of same-sex marriage, indicating that Judge Walker’s ruling is incorrect as a matter of law. As well as being based on the nonsensical claim that enforcing a moral belief is not a secular purpose.

    Well, dude, pick one.

    As I already told you, dude, contrary to your claim, I did not say that a moral belief itself is a purpose. The secular purpose here is ENFORCEMENT of a private secular moral belief. That’s twice I’ve had to point this out to you know.

    Have you finally come to realize that, in fact, it is the law (and binding predecent) that a private, secular moral believe alone is insufficient to justify a law, and that there must also be a valid, secular state purpose?

    As I have also already explained to you, all laws ultimately rest on moral beliefs. So the claim that enforcing a secular moral belief is insufficient to justify a law is simply nonsense. The state can have an interest in preventing and punishing murder, rape, theft, tax evasion, same-sex marriage or whatever else it may be only because the people it represents believe that those acts, either in themselves or through their consequences, are WRONG. That is a MORAL judgment. This isn’t even limited to acts against people. Laws against cruelty to animals rest on the belief that cruelty to animals is wrong. Your argument isn’t simply implausible. It defies basic common sense.

  199. Jamestown @223: again, we’re not going to get anywhere unless you actually read and understand the laws in question, which you clearly don’t. You’ve lied about what particular cases actually say, you ignore binding precedent when it doesn’t meet with your definition of ‘common sense’, and you blow up precedent of questionable application into “this invalidates everything”. At this point you’re convincing nobody but yourself, and as our host has said, unless you can come up with something other than a vague misunderstanding you pulled off Free Republic comments, I’m not sure if there’s any point in discussing further.

    I’m still waiting for somebody who knows what they’re talking about to have an honest discussion about why Walker’s opinion is legally incorrect. Kind of hoping somebody will pick up the torch here.

  200. mythago,

    You can drop your silly “Trust me, I’m a lawyer” shtick. It’s worthless.

    I’ve given you a Supreme Court case that specifically addresses marriage and that conflicts with Walker’s decision. I’ve explained to you repeatedly why the claim that enforcing moral beliefs is not a secular purpose and is not a sufficient justification for laws makes no sense. What “valid secular purpose” do you claim justifies California’s laws against murder, rape, theft, tax evasion, animal cruelty or anything else, if not the purpose of enforcing the belief that those acts, either in themselves or by virtue of their effects, are wrong?

  201. Jamestown

    this is your argument, in a nutshell (the post number where you made the comment is in (#) parenthesis):

    (1) premise: “the state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” (#145)

    (2) all laws … ultimately rest on moral beliefs (#217)

    (3) therefore: enforcing a … moral belief IS a secular purpose (#145)

    What you have argued is that ANY LAW HAS SECULAR PURPOSE, even if it is a law requiring people to carry a bible with them at all times, because all laws ultimately rest on moral beliefs (and are therefore indistinguishable from secular purposes), and enforcing a moral belief is a secular purpose.

    All I can say is this: wow

  202. Jamestown:

    “You can drop your silly ‘Trust me, I’m a lawyer’ shtick. It’s worthless.”

    However, an actual and practical knowledge of the law, its history and how it applies is not. Mythago has it and you quite evidently do not. What you have, Jamestown, is a legal theory that makes sense to you in your own head but not outside of it — or if it does, you have presented it so poorly that it amounts to the same thing. At this point you sound like someone infatuated with homeopathy dancing about after a medical doctor has already pinned them down. You’re not doing yourself or your argument any favors at this late stage.

    So: You’re done on this thread. Thanks for contributing, but it’s time to move on now. You may continue to contribute elsewhere on this site, but this thread’s over for you. Any subsequent comments by you will be snipped out.

    Other folks: You can comment on Jamestown’s last post, but don’t ask him any further questions on the matter, as he won’t be able to respond. Also be courteous when you reply, as I find it rude to snark on someone whom I have not allowed to respond.

  203. not specifically aimed at Jamestown:

    why do people who get thier “morality” from thier religion think it’s “OK” to try and enforce that morality via laws?

    why is it so hard to (for them) to comprehend that a PRIVATE moral belief, even if secular in nature, cannot/should not be imposed on the public- because not everyone shares those private moral beliefs. (IIRC, IANAL – that is WHY there needs to be a secular purpose for THE STATE to impose a law on everyone – the purpose/justification of the law has to transcend what an individual believes may be right/wrong to a purpose that is in the best interest of the population/state .

    the predicable objection to my last statement would be “but this is still codifying morality into law” – which may be true – but it’s codifying a “morality” that is defined/restricted/spelled out in the Constitution of the United States .

  204. Mythago @ 224: I’m still waiting for somebody who knows what they’re talking about to have an honest discussion about why Walker’s opinion is legally incorrect. Kind of hoping somebody will pick up the torch here. I love a good legal argument, rife with subtle policy issues, theoretical distinctions, and meaty jurisprudential disputes. But the gay marriage question is striking, because although there are plenty of people opposed to it, I have never heard any coherent argument justifying the exclusion of same sex couples from the state-sanctioned institution of marriage. (By “coherent,” I mean “not rooted in discrimination.”) The arguments all boil down to “Eew. Fags are gross.”

    The main argument will have to be that the drafters of the Constitution, including the drafters of the 14th Amendment, would not have believed gay marriage to be constituionally protected. (As in, “Thomas Jefferson also thought fags were gross.”) The best articulation of this view, such as it is, can arguably be found in Justice Scalia’s dissent in Lawrence v. Texas, 539 U.S. 558 (2003). Reading that dissent now, what it looks like is that Scalia is mostly using the sodomy issue to set up an attack on the Court’s abortion jurisprudence. He doesn’t do much to defend sodomy laws on their merits. He instead is rekindling his love affair with stare decisis.

    Note, however, the following passage from Scalia’s dissent:

    This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 585. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in § 21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

    On this point, Scalia is correct. And it is why Judge Walker’s ruling was also correct.

  205. :eyes Mallet: :scratches head: “‘Tis better to beg forgiveness ….”
    Mythago, can I ask you to talk about a hypothetical? I understand you can’t give actual legal advice, and I’m not asking for that, just the principles that actual lawsuits have to deal with.

    Apple and Bacon are “together”. Apple ends up unconscious, in critical condition, in the hospital through no fault of either Apple or Bacon, and Bacon has to make serious decisions about Apple’s care. Apple’s relatives appear and object to both the decisions Bacon makes, and that Bacon is making them. What are the differences in standing if Apple and Bacon’s “togetherness” is a) marriage, b) civil union, c) interlocking medical and legal powers of attorney, (as recommended by some for gay couples), and d) self-declaration (common-law marriage).

    Thank you. Scalzi, I’m sorry if this triggers the Mallet, it’s a point often missed.

  206. jason, a ‘young’ view of morality is an authoritarian view. its wrong because XXXXX said it is wrong. xxxxxx might start out being someones parents and then when they grow up they think theyre right because they memorized all the rules. its how a lot of cultures operated throughout history. it is part of our culture. it is in our TV and movies and comic books and novels and we think nothing of it.

    contrast that to the ‘adult’ view of morality that is based on empathy, commitment, and is the product of people coming together and deciding how they are going to live. historically, this idea doesnt show up on the radar until the enlightenment. and its a fricken complicated idea. when your kid is misbehaving, people often revert to the simpler ‘because I said so’ than trying to get into the idea.of commitment. it doesnt show up in our culture. box bluster movies seldom have the bad guy arrested and put through due process. usualy the system doesnt work and vigilantism is neededto stop the bad guy. Dirty Harry took it mainstream. 9/11 made it presidential imperative.

    authoritarianism is a black and white, oversimplified view of the world. it is enticing for someone who doesnt know history and doesnt have exposure to other cultures and doesnt know science and doesnt know the evolution of philosophical thought to simply pound their chestand say ‘I am right’.

  207. Not to sneak in here, but the answer, I’m almost positive, is that it depends on the state. A state’s laws and rules governing those sorts of issues are not generally something that would rise to the level of a constutional question (unless, say, the rules prohibited Black folks from making decisions about White folks). Federal medicare rules might bring the question within the reach of federal law, but I don’t know enough about that to say.

    Regarding medical care decisions for the disabled, the state’s rights crowd probably wins this one. That’s why it is so important to drive a constituional stake through the heart of the anti-gay discrimination inherent in gay marriage bans.

  208. Greg @ 231 – I guess I knew that – I was trying to be clever in the framing of my cristism but failed (at being clever)

  209. KSB@232 — Oh, I know it’s highly dependent on the state (and some other things.) But the standing that marriage gives (apparently, to my non-lawyer eyes) seems to be a trump card over a lot of those things.

  210. htom@233: A good question with a complicated answer. Broadly speaking, the law does not “care” whether you are married. In specific instances, however, it can matter a great deal. And there are a lot of those instances. Different tax consequences is an example we all know about. Others: the law presumes that a man married to a woman is the father of her children born during the marriage; there are privileges allowing one spouse not to testify against the other; a spouse can have greater inheritance rights if the person with whom they are “together” dies without a will. There are more, but that hopefully conveys the general sense of it.

    It’s the sum of those instances which rebut the “civil unions are good enough” argument.

  211. htom @230, I think KSB pretty much covered it – but one of the reasons marriage is a big trump card is that marriage is portable in a way that civil unions and powers of attorney are not. Your Florida power of attorney may be viewed with suspicion in Nevada, but your marriage license won’t be. (This, of course, is what DOMA is designed to prevent.)

    Common-law marriage, btw, IS marriage, just arrived at by different means. Only a few states still have the procedure but all states recognize the results as valid. Shacking up or “self-declaration” alone does not create a common-law marriage, but once a couple meets the requirements of common-law marriage, they’re simply married. “Common-law spouse” is often a euphemism for “long-term live-in SO” but not in the law.

    Regarding private moral views vs. legitimate secular purpose, of course a secular purpose can be (and usually is) informed by common notions of morality, but they’re not the same and they’re not interchangeable. “Abortion is wrong” is a private moral view, but it is not a legitimate state purpose; but, “preservation of fetal life” can be a legitimate state purpose – as shown by looking back at the law to see if the state has, indeed, deemed itself to have such an interest.

    Which is where Prop 8 falls down. “Why can’t the gays call it something else?” or “Marriage should be about a man and a woman” are private moral views, but they aren’t legitimate state purposes. “Promoting stable family units and a good home for children” is absolutely a legitimate state purpose, but how do you prove that only opposite-sex couples fulfill that purpose? (Answer: you don’t, at least not in California.)

    KSM @239: of course, Justice Scalia has also expressed his view that the Fourteenth Amendment doesn’t apply to sex, which kind of kills his claims to being a textualist instead of a judicial activist. That, or he doesn’t really believe any such thing but is telegraphing his views about the inevitable same-sex marriage case, because that supports the Scalia brand.

  212. I think “never get married” was some of the best advice I was ever given…
    that and “don’t pee against the wind”

  213. dont tug on supermans cape. dont spit into the wind. dont pull the mask off the old Lone Ranger. And dont mess around with jim.

  214. Thank you, KSB and mythago.

    The problem isn’t the marrying, it’s the way you treat your partner after you do marry. Act like they’re a possession and you’re in trouble. What is “yours” is your half of a relationship, not your partner’s heart, mind, soul, … just like you’d be in trouble before you were married. You’ll change, your partner will change. Bring it up, talk it out, wrap it up, put it away; the alternative is conceal it, blow it up, clean it up.

  215. As this conversation (apparently) winds down, at least for now, I note that no one rose to defend the position that Judge Walker should have disclosed his being gay. Maybe someone in the 240 prior comments made the pro-disclosure arguments, but it certainly wasn’t the center of gravity, if the point was raised at all.

  216. KSB, as far as I can tell, there are two types defending the idea of banning gay marriage: bigots and folks who want strong states rights to hobble the federal government tthey fear. bigots approach the issue with as much space between them and their bigotry as they can linguistically manage. they frame the issue as a states rights issue, or some technicality of the legal system, or popular vote should be able to pass a law without judicial activism. thats their preferred fram because if they just come out and say “I hate gays” then they dont get as much traction in the argument. people dismiss them as bigots.

    On some level, every bigot knows this.

    so it would be treading dangerously close to ‘I hate gays’ territory to say the judge should have recused.himself for being gay. because it carries with it a strong whiff of ‘gays judges cant be as correct as a straight jugde’ which is bald bigotry.

    so bigots tend to avoid that argument when bald bigotry gets called on the carpet.

    the other group, libertarians, dont neccesarily hate gays. they may think gays should be trated equally. but they fear the feds so much they’re willing to let gays suffer state bigotry if jt lates them dig their “moat” a little deeper to keep the feds out.

    since libertarians arent driven by bigotry, they wouldnt queztion the judges ruljng based on his orientation. they would challenge his ruling based on how little he understands the overbearing monolithic unassaillable tyrrany of the federal government. My god dont you see how horible they are?!??!

  217. Greg: You’d think that the gay marriage opponents would understand that saying Judge Walker should have recused himself for being gay treads perilously close to obvious bigotry, and that they therefore would steer clear of that argument. The argument raised in the Motion to Vacate Judgment, however, is essentially just that. The Prop. 8 defenders argued

    that Judge Walker had an actual interest in the case. Plaintiffs in the underlying case were same-sex couples who were challenging the constitutionality of a California Proposition that, Plaintiffs contend, stripped them of the right, as same-sex couples, to marry. At the time the case was assigned to him, Judge Walker was in a same-sex relationship. Defendant-Intervenors contend that Judge Walker had an interest in the case because if he were to decide that Plaintiffs were entitled to have their right to marry restored, even though there was no evidence that Judge Walker intended to marry, the sole fact that he was in a same-sex relationship placed Judge Walker in the position of deciding a case that could affect him if he were to desire to marry.

    The gay marriage opponents didn’t say “gay judges aren’t good judges.” They did, however, essentially say “Judge Walker will benefit from allowing gays to marry, because he’s gay.” That’s the only point Chief Judge Ware considered in the ruling that started this particular thread.

  218. [Deleted, again. Jamestown, show up in this thread again and you get put in the moderation queue -- JS]

  219. [Deleted. Jamestown, congratulations, you get to meet the moderation queue. Try to bypass it, and you get banned. Stop trying, and that includes trying to change up your name, e-mail address, etc. Basically, you're just being a bit of a dick at this point, and you're too obvious in your rhetoric to slip past.

    Edited to add: And of course the twit tried to get past it. Banned now. -- JS]

  220. Hmm, looks like this thread has wound down to an end. But one more query posed above needs a reply.

    Jasonmitchell @228

    “why do people who get thier “morality” from thier religion think it’s “OK” to try and enforce that morality via laws?”

    Because it is okay. We live in a representative democracy organized as a republic with a first amendment right to freedom of speech and religion. So religious folk can use their free speech to try to convince fellow citizens (of differing religious views or no religious views) to agree with them about moral issues of right and wrong behavior for humankind. Secure enough agreement from their fellow citizens and they can together elect representatives to enact the laws they seek that align with their private religious views.

    Your question implies that you think this not okay. Why would you think that? At the end of the day all laws are derived from the consent of the electorate. Why would it ever be not okay for voters of religious faiths to participate in the shaping of societial laws? Last time I checked, just because we are a secular State (as opposed to a theocracy) does not mean that people of no faith (secular only) beliefs get a special pass to be the ones to make our laws through our representative republic.

  221. Your argument is overbroad and has an unduly expansive view of majoritarian power. Laws which “align with . . . private religious views” are all well and good, unless the morality embodied in those laws conflict with the rights of citizens as set forth in the Constitution. In that case, the law has got to go. Laws enabling or enforcing discrimination, for example, are off limits. I know that bugs you, but the organizing charter of our country protects the minority from being shat upon. Even if the majority all agree that the minority are utterly sub-human.

    I think that was Jasonmitchell @228′s point.

  222. KSB @249
    If you are right about Jasonmitchell’s point @ 228, I have no problem and even agree. Yes, majoritarian views and law can oppress the minority and our system will work to put a stop to such laws. Jim Crow laws reigned for 70 years before they were shot down in Brown vs the Topeka Board of Education in 1954.

    I merely resist the notion that just because a group claims oppression does not make it so. Otherwise laws cannot be made ever that prefer some human activities over others, because those that don’t want to do the preferred activity or want to do the unpreferred activity, will always be an oppressed minority and their right to do what they want a civil right.

    Right now many laws prefer legal marriage over living together (say decision making in a hospital situtation). For now, it is not a civil right to have a say over medical care of your significant other partner IF you are not married (at least in most places). If we want that to happen, I merely argue for the majority changning the law to make it happen, not the courts by ruling it so on the basis of a new-found civil right. I am not arguing for mob rule to create Jim Crow laws. I am arguing for majority rule in most situations. Defining new civil rights to add to the list of those we already have, yes, I want the majority to do the definitions, not the judges.

  223. We’re just going around and around on this at this point, but I’ll leave with this thought. You say, Jim Crow laws reigned for 70 years before they were shot down in Brown vs the Topeka Board of Education in 1954. You leave out the key point: those discriminatory laws were shot down by judges. Judicial review! It’s a good thing! Except (apparently) when it’s not!

    You can’t seriously believe that judges are too stupid to realize that “just because a group claims oppression does not make it so.” Look, in our free country, anyone can claim anything. People make dopey arguments all the time. And judges sift through those arguments to figure out what makes more sense. Like they did in, um, oh, say, Brown v. Topeka Board of Education.

    I guess you trust majorities to respect minorities more than you trust judges to protect the rights of the powerless. Our history most decidedly does not support your position. Too bad, that.

  224. Gary@248, you missed the point of the question. no one is saying you have to be an atheist to vote in our secular democracy. anyone can vote in our democracy religious or not.

    but you and I have ALREADY AGREED by the constitution which binds us, to NOT ue the state to enforce religious beliefs. this is where you fail to grasp the legal requirement that a law serve a secular purpose. and its because you keep arguing that all laws are secular no matter what they try to enforce. we have had this discussion and you keep trying to spin the same mistake into different approaches to the same flawed argument.

    yes, religious people can vote just as much as atheists and agmostics. buudhists can vote as much as muslims as much as christians. bit NONE of you gets to pass a law which is inherently religious in principle. we all agreed by the ammendment that you yourself referenced that

    government shall make NO LAW respecting the establishment of religion or prohibiting the FREE EXERCISE thereof.

    here is the rub: if the only justification you have that gay marriage is wrong is your sacred texts then how do you outlaw it without that being an establishment of your religion?

    what if someone else’s religion says gay marriage is ok?

    if you outlaw it, you are barring their religion based on your religion. and if THAT is just how majority vote works for you then you really and truly are operating and defending mob rule. we agreed in the constitution that binds us NOT to use the state to enforce someones religious views on others.

    either that principle means something and outlawing gay marriage based on one particular flavor of religion is unacceptable, or it doesnt mean anything and the majority religion (and majority of voters) gets to tell everyone what is right and wrong.

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