quote:Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. United States District Court The clerk is DIRECTED to enter judgment without bond in favor of For the Northern District of California 18 plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.
IT IS SO ORDERED.
VAUGHN R WALKER United States District Chief Judge
Oh, and this judge was appointed by Daddy Bush.
[ August 04, 2010, 05:25 PM: Message edited by: Lisa ]
Posted by Samprimary (Member # 8561) on :
ACTIVIST JUDGES FLAGABABALBABAL
Posted by Samprimary (Member # 8561) on :
aw man this is like an early birthday present.
HUZZAH
/edit
my favorite part here is that the anti-same-sex-marriage crowd's argument for putting a stay on the judge's decision is that they didn't want gay people to get married during the appeals only to get their marriages annulled or something later on
'cuz, y'know, now they care
Posted by Shanna (Member # 7900) on :
WOOT!
Posted by Anthonie (Member # 884) on :
quote:Originally posted by Samprimary: aw man this is like an early birthday present.
HUZZAH
HOORAH!
I totally agree! I can't say how happy I am!
Happy uhm.... UNbirthday!! Posted by Lisa (Member # 8384) on :
Oh, who cares. What about Illinois?
(just kidding; this is great)
Posted by MightyCow (Member # 9253) on :
About time.
Come on SCOTUS!
Posted by August (Member # 12307) on :
CUE RAINBOW WAVE! Posted by Samprimary (Member # 8561) on :
Netflix is delivering "8: The Mormon Proposition" to me pretty soon.
... this decision will likely make the viewing much more tolerable.
Posted by advice for robots (Member # 2544) on :
Did you rent it to torture yourself?
Posted by Samprimary (Member # 8561) on :
A movie like that is usually going to be mildly annoying when it's just conspiratorial agitprop, and greatly annoying when its presenting things which are verifiable and really creepy/terrible. So it'll be like rewatching Jesus Camp after Ted Haggard got outed as a guy who had methamphetamine fueled bouts with gay prostitutes. A surreal postscript.
Or it might just be like watching Zeitgeist (pure torture).
Either way, oh boy can't wait for the expectations surrounding the SCOTUS response!
Posted by Herblay (Member # 11834) on :
Dang! Why do they have to give rights to minorities.
Next thing you know, they'll treat illegal immigrants the same regardless of their country of origin. Can you imagine an Arizona law racially profiling Germans?!?! "Excuse me sir, is that a mole on your face? Is that a mustard stain?"
Posted by Samprimary (Member # 8561) on :
quote:What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.
The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite "tradition" as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.
The second argument I often hear is that traditional marriage furthers the state's interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?
This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What's more, it is pernicious to think marriage should be limited to heterosexuals because of the state's desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.
Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.
The simple fact is that there is no good reason why we should deny marriage to same-sex partners. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society. No matter what you think of homosexuality, it is a fact that gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.
This was a very straightforward example of a bad, bigoted law suffering the consequences of its truly unconstitutional and bigoted intent.
The defense of Prop 8 was pathetic tap-dancing around the true intent of the law's supporters, who tried as hard as they could to craft an artificial rationale in the hopes that it could have passed a secular test. The end result, a very poor and nonpersuasive set of arguments in its defense, an ultimately overwhelming case in its prosecution.
It, in fact, mirrors the resulting shortcomings of anti-miscegenation laws in many ways.
It will be remembered no more fondly than we recall our anti-miscegenation laws today.
Which all makes the expected torrent of judicial abuse all the more entertaining.
[ August 04, 2010, 07:28 PM: Message edited by: Samprimary ]
Posted by Samprimary (Member # 8561) on :
oh, also, if you want some entertainment, tune into Michael Savage right now. He's claiming that this is all just part of a plot to bring forth a one-world communist government.
Posted by lobo (Member # 1761) on :
What did you expect a gay judge to decide?
Posted by MattP (Member # 10495) on :
quote:What did you expect a gay judge to decide?
I know where you're going with this, but the popular conception of gays being above average in legal acuity and fair-mindedness is not validated by any rigorous analysis. Any decent judge would have decided this case correctly, not just a gay one.
Posted by MattP (Member # 10495) on :
On a more serious note, have you read the transcripts? The defense absolutely crumbled. One of the defense witnesses eventually agreed with the major points argued by the prosecution during cross-examination, effectively becoming a witness for the prosecution.
I can't find the quote right now, but I recall David Boise commenting in an interview that the defense was so easy to take down because they aren't accustomed to actually defending their position. They take their various arguments against SSM as self-evident facts which don't actually need to be justified. They tend to go before a series of friendly audiences regurgitating their talking points. Boise said something along the lines of "When you give a speech you aren't subject to cross examination."
Posted by Tresopax (Member # 1063) on :
While I agree that Prop. 8 seems to cause more harm than good, the logic used by this judge to overturn it relies on sweeping principles that aren't sound. The judge essentially says there is only a "moral" basis for the law and no "rational" basis, which implies that morality is not a rational basis for law. Such a prinicple, if applied honestly to the rest of our legal system, would invalidate countless good laws that are built fundamentally on moral assumptions (like "parents have a responsibility to their children" or "the poor ought to be helped" and so on.)
Posted by Paul Goldner (Member # 1910) on :
"The judge essentially says there is only a "moral" basis for the law and no "rational" basis, which implies that morality is not a rational basis for law."
When you can rationally defend a moral viewpoint, the moral viewpoint might be a rational basis for a law. But when the moral viewpoint cannot be rationally defended, then the moral viewpoint is not sound basis for law.
Posted by Tresopax (Member # 1063) on :
You can rationally defend the moral viewpoint of Prop. 8. Like any rational defense of any moral viewpoint, though, it requires accepting certain moral assumptions - in this case, assumptions that are highly disagreed upon.
It sounds like in this case, the defense did a poor job of its attempted rational defense. But if that's true, I'd have rather the judge say that in a way specific to this case, instead of making a sweeping claim implying that morality is not a rational basis for law.
Posted by Paul Goldner (Member # 1910) on :
"You can rationally defend the moral viewpoint of Prop. 8"
No you can't.
"Like any rational defense of any moral viewpoint, though, it requires accepting certain moral assumptions - in this case, assumptions that are highly disagreed upon."
Because the assumptions are not rational. Making the moral viewpoint for prop 8 irrational.
"stead of making a sweeping claim implying that morality is not a rational basis for law. "
When people fall back on morality as a basis for law, its almost always because they can't justify the law in rational terms.
Posted by Samprimary (Member # 8561) on :
that's exactly what happened here. The defense completely fell apart. The organizations defending proposition 8 know they cannot apply their true objections to gay marriage, which are religious. They contrive an artificial set of arguments to pass the secular, 'rational' requirements of what the law's interest serves. They're excellent in a speech or a sermon, terrible when subjected to rational review.
Posted by MattP (Member # 10495) on :
I think the difference here is that the "moral" basis required to rationally support SSM is much simpler and more universal than the basis to prevent it, which tends to be tied to a specific set of religious viewpoints.
So the bulk of the argument for SSM is rational, with relatively few, simple, and universal moral axioms like "harm is bad" while the bulk of the argument against SSM is moral with axioms like "God exists" and "God doesn't want people to be gay" which are explicitly religious. In the latter case the rational portion of the argument is just enough to tie the religious components together and little more.
Posted by Samprimary (Member # 8561) on :
The religious motivations and underpinning entirely aside, tresopax, here's the skinny.
in a long quote.
which is worth reading.
quote:On August 4, 2010, Federal Judge Vaughn R. Walker ruled that California’s Proposition 8, which prohibits California from recognizing same-sex marriage, is unconstitutional. The ruling was stayed pending appeal—which means that nothing will happen until a Federal Appeals court reviews it. As you might imagine, it will be appealed. The ruling itself is 138 pages long. I’ll summarize.
The previous lawsuit challenged Proposition 8 on procedural grounds. My post on that case is here. The California Supreme Court disagreed with me. Since the California Supreme Court gets the final say on the California Constitution, it got the last word.
The new suit was brought by two same-sex couples on different grounds. And, since it was brought in Federal court, the California Supreme Court doesn’t get a say at all. Something strange happened. California’s government was sued. The Attorney General said, essentially, “I agree that this thing is unconstitutional.” The other government groups said, “I’m not going to bother defending this.” So did a number of other people, including “ProtectMarriage.com - Yes on 8.”
The people who brought the lawsuit (“the Plaintiffs”) claimed two things. First, they claimed that marriage is a fundamental right under the 14th Amendment of the U.S. Constitution. (There is some decent precedent on this—the only question is whether the protected marriage is the one man/one woman kind of marriage). If the 14th Amendment protects same-sex marriage, the court reviews the case using “strict scrutiny” which I’ll discuss below. Second, they claimed that Prop. 8 discriminates against gay men and lesbians. Generally, the state is allowed to discriminate—but it has to have an adequate reason to discriminate.
For example, racial discrimination is still okay in prisons to prevent gang-violence along racial lines. Since race is what’s called a “suspect class,” the government needs to have a really, really good reason to discriminate. (“Narrowly tailored to a compelling government interest.”)
Gender, on the other hand, is only a “quasi-suspect class” so it gets “intermediate scrutiny.” This means that the state needs to have a pretty good reason to discriminate. For example, we can have gender-segregated bathrooms but not race-segregated bathrooms. (The discrimination must “further an important government interest in a way that is substantially related to that interest.”)
Most things get “rational basis review.” We don’t really have a history of discrimination of people who have brown hair—so hair color falls into this “everything else” category. This means that the government can discriminate so long as it has an actual reason. (“Rationally related to a legitimate government interest.”) Rational basis scrutiny generally means that the government wins … unless the government’s goal is not a legitimate government end or its reasons are so laughably horrible that it is irrational.
There is a point to this digression. The question raised was whether sexual orientation is a “suspect class,” a “quasi-suspect class,” or a not really suspect class. The most recent Supreme Court that weighed in on it said that rational-basis scrutiny applied (but still overturned a Colorado Constitutional Amendment on the grounds that discriminating against gays was not, in itself, a legitimate government interest). The Plaintiffs claim that strict scrutiny should apply because sexual-orientation is a protected class. Since this is a fairly extreme claim, they also said that Prop. 8 is irrational or not based on a legitimate government purpose. (In this context irrational means that there are no rational reasons—which is a very high bar. Similarly, “legitimate government purpose” can be very broad. It does not, however, include promoting a religious view point.) The 9th Circuit—which is binding law in this case—seems to say that intermediate scrutiny should apply.
A trial happened. This means that the judge made findings of fact. He found that there was no evidence that Prop. 8 served a legitimate government interest. This is important because the case will be appealed. The appellate court will review the judge’s legal reasoning without giving any deference to what the judge decided. (“De novo”.) However, the factual findings will remain intact unless the trial judge did a terrible job. (“Abuse of discretion.”) When the trial court found the testimony of the anti-gay-marriage expert unreliable, it will keep that “unreliable” label through appeal. And when the judge says, “the trial evidence provides no basis” for something there will continue to be no evidence unless the appellate court finds an abuse of discretion.
The court found no basis for the claims that:
- California has an interest in refusing to recognize marriage between two people because of their sex - California has an interest in differentiating between same-sex and opposite-sex unions - It also found that Proposition 8 could only be supported by a moral disapproval of gay people.
I should point out that Judge Walker knew the case would be appealed. His ruling essentially written to survive an appeal. For example, rather than disqualifying one of the anti-gay-marriage experts who lacked relevant degrees or peer-reviewed publications, he waited to decide whether the expert was qualified and determined that 1) the expert was not qualified, and 2) that even if the expert was qualified, he wasn’t credible.
Because an appeal is virtually guaranteed, the most significant portion of this case is the findings of fact. As the legal maxim goes, bad facts make bad law. And Judge Walker laid out some very good facts. He found that Prop. 8 served no legitimate interest and that it was passed for the purposes of discrimination and advancing a private moral or religious agenda.
Judge Walker also makes these legal findings:
- Same-sex marriage meets the historical requirements to be “marriage” rather than some new thing. - Domestic partnerships are not close enough to the same thing as marriage. - Prop. 8 does not serve a legitimate government interest—let alone a compelling government interest. - Prop. 8 discriminates on both sex and sexual orientation. - The highest level of scrutiny should be applied. - Even if we used the lowest level of scrutiny, Prop. 8 would fail because Prop. 8 satisfies no government interest. - A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation - Proposition 8 was ruled unconstitutional.
So what happens next?
Nothing happens yet. The 9th Circuit Court of Appeals will review the case. After that, the U.S. Supreme Court will probably review it, regardless of what the 9th Circuit says. If the current ruling survives that, same-sex marriage will essentially become legal in every state. There was nothing to limit this holding to Prop. 8.
Will it survive appeal?
Maybe. The factual findings, as I mentioned, were pretty specific. And the opinion is quite persuasive. But if the Supreme Court doesn’t feel like legalizing gay marriage everywhere, it’s not going to, regardless of how well the facts were laid out.
Some portion of the ruling will probably be narrowed. I would expect the court to choose a level of scrutiny other than strict scrutiny for sexual orientation discrimination.
This opinion has a very good chance of surviving appeal. On the other hand, the current Supreme Court has been handing down some very narrow rulings. This Prop. 8 opinion is pretty sweeping—so the court might either reverse it or find a way to reach the same conclusion on much more narrow grounds.
Was this judicial activism?
If “judicial activism” means that a judge did something conservatives didn’t like, then yes, it was judicial activism. Aside from that, this was a very well-reasoned opinion. Everybody got a fair trial. And one side won resoundingly.
Sometimes I wish I could become a judge so I could write like this.
--j_k
Posted by Wingracer (Member # 12293) on :
quote:Originally posted by James Tiberius Kirk:
quote:IT IS SO ORDERED.
Sometimes I wish I could become a judge so I could write like this.
--j_k
Feel free to write in all caps all you like but be prepared to get a tongue lashing (or would that be finger lashing?) for it. Posted by Amanecer (Member # 4068) on :
Does this ruling have an effect on states outside of California? Since it's a federal court, does that mean it's rulings are applied federally? If so, would this still be limited to California because it was specifically dealing with a Cali proposition?
Just curious on the ramifications. And I'll add to the chorus of yays. Yay!
Posted by Amberkitty (Member # 12365) on :
If it goes to SCOTUS, it could mean that banning gay marriage would be declared unconstitutional.
Posted by docmagik (Member # 1131) on :
Actually, this judge basically just ruled it unconstitutional, and he's a federal judge, not a California court judge. Which means, if unchallenged, this decision does mean all state- defined marriage laws, ordinances, and amendments are unconstitutional.
Which means it will be challenged.
And the judge knew that, which is why he's not allowing California to move forward with homosexual marriages yet, but waiting for the appeal.
Here is what really happened today: A judge said, "Look, I know a higher level court than me is going to make this decision, but here's what I hope they'll consider when they do." And then he wrote a 130 some odd page "ruling" that's really a brief for when the case goes to the next level. Everyone is either finding it brilliant or silly depending on what attitude they had about prop 8 to begin with, and with little actual basis in what he really said, or the actual legal definitions of terms he used that might mean something different than they do in their standard definition.
That's the long and the short of it.
Consider it the legal equivalent of the boss's secretary saying, "I like you and I'm going to put in a good word for you," when you're about to interview for a promotion. It's not nothing, but it's not a final decision by any means, and how much it matters depends on whether or not the boss values the secretary's input, and whether you make as good an impression on the boss as you did on the secretary.
It's off to the 9th circuit we go.
Posted by Samprimary (Member # 8561) on :
quote:Originally posted by Amanecer: Does this ruling have an effect on states outside of California?
Yes, which is why the organizations that are most opposed to gay marriage (Focus on the Family, the mormon church via NOM, etc) are now kind of in damage control mode. Assuming this breezes a circuit court review and goes to the SCOTUS, it's engendering the possibility of making gay marriage legal country-wide far sooner than it would have normally come about.
Which is a fitting irony.
quote:Inside Block Party, "The Gayest Store on Earth," owner Larry Block yelled out, " 'Repeal Prop. 8' shirts half price — Thank God!
Posted by Samprimary (Member # 8561) on :
quote:Originally posted by docmagik: Here is what really happened today: A judge said, "Look, I know a higher level court than me is going to make this decision, but here's what I hope they'll consider when they do." And then he wrote a 130 some odd page "ruling" that's really a brief for when the case goes to the next level. Everyone is either finding it brilliant or silly depending on what attitude they had about prop 8 to begin with, and with little actual basis in what he really said, or the actual legal definitions of terms he used that might mean something different than they do in their standard definition.
That's the long and the short of it.
Little more than that. It is not just a 'brief' -- a lot of it holds. Even the high court has been boxed in by this ruling, to some extent.
quote:The ultimate outcome of the California case cannot be predicted, but appeals court judges and the justices at the highest court in the land could find themselves boxed in by the careful logic and structure of Judge Vaughn R. Walker’s opinion, legal experts said.
In his ruling, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and women.
To opponents of same-sex marriage, the ruling was a travesty that usurped the will of millions of California voters. Brian S. Brown, the executive director of the National Organization for Marriage, called it "a horrendous decision" that "launched the first salvo in a major culture war over same-sex marriage and the proper purview of the courts."
But Andrew Koppelman, a professor at Northwestern Law School, said "if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision."
The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law -- such as the proper level of scrutiny to apply to Proposition 8 -- findings of fact are traditionally given greater deference.
“They are supposed to take as true facts found by the district court, unless they are clearly erroneous," he said. "This opinion shows why district courts matter, even though the Supreme Court has the last word."
And to that end, Judge Walker’s 136-page opinion lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial. The 2008 initiative campaign to ban same-sex marriages was suffused, the judge said, with moral comparisons of these unions and heterosexual marriage, with the clear implication that "denial of marriage to same-sex couples protects children" and that "the ideal child-rearing environment" requires marriage between a man and a woman.
Judge Walker wrote, however, that the Supreme Court has stated that government cannot enforce moral or religious beliefs without an accompanying secular purpose. The judge suggested that the defendants shifted their arguments for the courtroom, with a focus on "statistically optimal" child-rearing households and by arguing that they were abiding by the will of California voters.
California’s law, he wrote, demanded discrimination on the basis of sex and sexual orientation. "Proposition 8 places the force of law behind stigmas against gays and lesbians," he wrote, including the notion that "gays and lesbians are not as good as heterosexuals" and "gay and lesbian relationships do not deserve the full recognition of society."
quote:Actually, this judge basically just ruled it unconstitutional, and he's a federal judge, not a California court judge. Which means, if unchallenged, this decision does mean all state- defined marriage laws, ordinances, and amendments are unconstitutional.
No. Federal judges still have regions of jurisdiction. The ruling only applies insofar as the area the judge is a judge for. If a higher court decides to hear an appeal and then upholds the ruling, the area of effect will increase.
Right now, it only applies for California (and there might or might not be a stay while it is on appeal), and if the next court up declines to hear the appeal, that is all it will hold for. For instance, there are a variety of issues on which federal courts in different areas have disagreed, but the Supreme Court has not yet ruled. The law of the land is, effectively, different in the jurisdictions of those different courts (pending a Supreme Court verdict -- they frequently pick cases dealing with such disagreements in order to settle the disjunction).
Of course, even if something is not binding precedent for other courts, that doesn't mean they aren't paying attention.
Posted by Lisa (Member # 8384) on :
quote:Originally posted by Samprimary:
quote:Originally posted by Amanecer: Does this ruling have an effect on states outside of California?
Yes, which is why the organizations that are most opposed to gay marriage (Focus on the Family, the mormon church via NOM, etc) are now kind of in damage control mode. Assuming this breezes a circuit court review and goes to the SCOTUS, it's engendering the possibility of making gay marriage legal country-wide far sooner than it would have normally come about.
Which is a fitting irony.
QFT
Posted by Lisa (Member # 8384) on :
quote:Originally posted by James Tiberius Kirk:
quote:IT IS SO ORDERED.
Sometimes I wish I could become a judge so I could write like this.
Yul Brynner: "So let it be written. So let it be done."
Jean-Luc Picard: "Make it so."
Hmm... I think you're right. IT IS SO ORDERED has a certain simplicity to it.
Posted by Tresopax (Member # 1063) on :
quote:The religious motivations and underpinning entirely aside, tresopax, here's the skinny.
in a long quote.
which is worth reading.
That was a clear explanation of the judge's reasoning in this case, and I agree the argument would hold if all the findings of fact were true. But as the article points out, "bad facts make bad law", and in this case everything hinges on a statement of fact that just isn't true:
"- A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation"
Moral views are a common basis for legislation. There are no shortage of laws that boil down, in some way or another, to some fundamental moral belief that is accepted only because a majority of voters think it is true. The notion that the government should recognize marriages is one very relevant example - the reason we recognize marriages and give them special benefits is a moral belief that marriages and the effects of marriages are good and should be supported. Or, if a bunch of people in my state watched Avatar and decided it was morally wrong to chop down old trees, and had enough people agreeing with them to get such a law passed, that should fly as a justification for the law.
Posted by Lisa (Member # 8384) on :
Tres, moral views alone are neither a common nor a valid basis for legislation.
Posted by Rakeesh (Member # 2001) on :
I should say, moral views alone are never a sufficient grounds, particularly when the majorities are slim, the issue is controversial, the views have their roots in religion in a secular state, and a host of other reasons. Now, we live in a representative society, so of course it will happen, but that's a very different thing.
Posted by Tresopax (Member # 1063) on :
The justifications for countless laws boil down, eventually, to fundamental beliefs about what is good or bad, right or wrong, fair or unfair, etc. The fact that almost everyone in the U.S. agrees without question upon most of those moral fundamentals doesn't mean they aren't moral propositions. As an example, I don't think one could come up with a justification for driving-under-the-influence laws without at some level assuming something is good or bad or right or wrong. Everyone agrees that needless death and killing is bad, and that people should have a responsibility for the effects of their decisions, but those two things are still moral claims.
Posted by Chris Bridges (Member # 1138) on :
It's not that discriminatory practices based solely on moral law are automatically suspect, it's that this particular law also had a strong moral basis for being struck down -- the belief that society would be strengthened, or at least not injured, by the allowance of gay marriage, and the belief that homosexuals were being done harm by such discrimination.
What Walker did was step past the competing moralities to look at the facts. He gave both sides every chance to present their case, and only one side seemed to have any facts to present.
Posted by Rakeesh (Member # 2001) on :
They're not just moral claims, though, Tresopax. You don't need to be a human of any specific kind of morality at all to say 'needless death and killing is bad'. Because, after all, that discourages needless death and killing, increasing your own chances of survival. That's not morality, that's pragmatism.
And of course there's a world of difference between justifying laws against needless death and killing and laws rooted almost entirely* in religion sanctioning some people and not others.
*By 'amost entirely' I mean there are, like, other claimed reasons but the truth is none of them hold so much as an ounce of water, but I just thought I'd mention it.
Posted by AchillesHeel (Member # 11736) on :
quote:Originally posted by Herblay: Can you imagine an Arizona law racially profiling Germans?!?! "Excuse me sir, is that a mole on your face? Is that a mustard stain?"
I would be in alot of trouble if that happened, I look as kraut as a hessian and I do in fact love mustard.
Posted by Amanecer (Member # 4068) on :
Thanks to everyone that answered my question about the ramifications of the law!
quote:That's not morality, that's pragmatism.
Isn't pragmatism used in that way just a system of morality that says what works is what is best? And isn't "what works" subject to opinion? In order to accept that "needless death and killing is bad" you have to accept the completely non-fact based axiom that human life is valuable. Just because almost everybody agrees with this, it's still a moral view.
While I agree with this portion of Tres' argument, I don't agree that this was a bad law. I think that we do have a secular morality that is based on ideas about minimizing harm and that is what our laws are based on. I think that's appropriate since the axioms that standard is based are almost universally agreed on and are not comparable to highly disagreed upon moral axioms. Consequently, that is what the Prop 8 supporters tried to argue on- that forbidding same sex marriage minimized harm to children and society. With minimization of harm as the standard, their arguments were less convincing.
Posted by Amberkitty (Member # 12365) on :
quote:Originally posted by Lisa: Tres, moral views alone are neither a common nor a valid basis for legislation.
This.
There also has to be legitimate reason for such views to be translated into law. For Prop 8, there is none.
Posted by Wingracer (Member # 12293) on :
quote:Originally posted by Amanecer: Consequently, that is what the Prop 8 supporters tried to argue on- that forbidding same sex marriage minimized harm to children and society. With minimization of harm as the standard, their arguments were less convincing.
But where are the FACTS supporting that claim? The other side showed studies where children raised by gay couples were no worse off than anyone else and may in fact have been better off.
I can say the sky is red all I want but without some sort of FACTUAL evidence to support it, no one is going to believe me.
Posted by Samprimary (Member # 8561) on :
quote: Consequently, that is what the Prop 8 supporters tried to argue on- that forbidding same sex marriage minimized harm to children and society. With minimization of harm as the standard, their arguments were less convincing.
They were, in fact, completely unconvincing. The defense of the case was dismal. It was when I read said defense as the judge adjourned to make the decision when I went "oh. oh, this ... i think this is probably going somewhere."
Seriously, everyone who's whining about ACTIVIST JUDGES MORALIZING FROM THE BENCH need to realize what a solidly unconvincing pile of tripe that prop 8 levied for the court challenge.
Posted by Amanecer (Member # 4068) on :
quote:But where are the FACTS supporting that claim? The other side showed studies where children raised by gay couples were no worse off than anyone else and may in fact have been better off.
We seem to be agreeing with each other.
Posted by Nighthawk (Member # 4176) on :
quote:Originally posted by Lisa:
quote:Originally posted by James Tiberius Kirk:
quote:IT IS SO ORDERED.
Sometimes I wish I could become a judge so I could write like this.
Yul Brynner: "So let it be written. So let it be done."
Jean-Luc Picard: "Make it so."
Hmm... I think you're right. IT IS SO ORDERED has a certain simplicity to it.
I think the SCOTUS should punctuate every decision by proclaiming at the end, in unison, "SO SAY WE ALL!"
Posted by Darth_Mauve (Member # 4709) on :
One other point on the Morality As The Basis of Law--its one thing to base a moral law on something that limits your own self, and another to create a moral law who's only limitations is on others. For a man to say "Morally speaking, women should not vote" is not fair or moral. This is a law constructed by straight folks limiting the rights of homosexuals. That I find highly immoral.
Posted by Samprimary (Member # 8561) on :
moar
quote:In the end, Walker wrote, laws that limit marriage to straights are rooted in beliefs about the moral appropriateness of homosexuality itself, something he said the Constitution does not permit. In doing so, Walker echoed language from the 2003 Lawrence v. Texas Supreme Court decision, which overturned state statutes making gay sex a crime, when he said it takes more than moral indignation to justify a law. "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," he wrote. "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples."
This, I think, is wording that needs to be looked at.
A private moral view that same-sex couples are inferior to opposite-sex couples.
Straight talk here: it's true. And that's important. It would be vociferously denied by most prop 8 supporters, not because it's 'necessarily incorrect,' but because the language is too straight. It's something they want to coach in more favorable terms. This? This sounds ugly. Because it is ugly. And, ultimately, the more that can be obfuscated, the better, since it really is a poor rationale. You have to construct or construe a different argument that states necessity of discrimination, such as the procreation argument and the argument that gay marriage harms 'real' marriage.
We just saw how well those artificial props worked in court. We just saw how well they do when they are subject to critical review.
The method of dissonance is immediate and eminently predictable. The judge must immediately be disclaimed as an 'activist' or that it is an emotionally compromised ruling because the judge is gay. Nevermind that most law junkies and wonks have looked at the assembled material and concluded 'this is a damned strong case, designed to survive appeals, and designed well' and that it makes a persuasive and consistent case that is hard to deny and draws carefully off of the weaknesses of the proposition's defense. It must be the judge. It must be judicial activism. Gay marriage must absolutely be a danger to 'real' marriage. The narrative cannot be deviated from, because it would force bigots (sorry, that's the word!) to cast a harsh and uncomfortable light on the viability of their own beliefs, and whether or not they can realistically justify stripping rights from californians to protect their vision of marriage, procreation, and the Constitution as an extremely frail set of things that is imperiled so easily as by allowing gays to marry each other.
Posted by Geraine (Member # 9913) on :
quote:Originally posted by Darth_Mauve: One other point on the Morality As The Basis of Law--its one thing to base a moral law on something that limits your own self, and another to create a moral law who's only limitations is on others. For a man to say "Morally speaking, women should not vote" is not fair or moral. This is a law constructed by straight folks limiting the rights of homosexuals. That I find highly immoral.
There are plenty of immoral and discriminatory laws out there. You can argue for or against a law, but if you want to bring morality into it then it begins to be a slippery slope.
A person or group may have a different view of morality than another. In this case, a majority though it was immoral to give the homosexual community the ability to marry. Others thought that it was immoral to KEEP them from having the ability to marry. Who makes the final decision on what is moral and what isn't?
If it is immoral to define marriage as being only between a man and a woman, wouldn't it also be immoral to have marriage laws against other types of marriages?
Aren't all laws based on morality? Murder, pedophilia, theft, drug use, immigration, and even welfare are based on morality. Who decides what is moral and what isn't? Who decides if there should be a law based on those morals? We have seen that the majority does not make the decision, so who is it?
From my perspective, the judge DID practice judicial activism. The judge made his decision based on his understanding of morality and not the morality of the majority.
I've been outspoken on the subject in the past. I'm not trying to get into it with others here, it would be beating a dead horse. What I am asking is how you define morality, and who decides what is moral and what isn't?
Posted by sinflower (Member # 12228) on :
quote:If it is immoral to define marriage as being only between a man and a woman, wouldn't it also be immoral to have marriage laws against other types of marriages?
It's not immoral so much as arbitrary. What is the difference between a same sex and different sex marriage, besides the fact that it is a same sex instead of a different sex marriage?
I'd have to work to formulate an airtight response to your question on morality. My immediate response is something like
1) Laws should only be built on moral axioms that are nearly universally accepted. So very basic ones, like "harm is bad," "health is good," and so on. Exceptions for minor laws, so maybe something like "the more effect a law would have, the higher the threshold for how universally accepted its axioms must be."
2) People who would be affected more by a policy should have more of a say in how it's formulated and carried out (to avoid tyranny of the majority and maintain minority rights).
Posted by Raymond Arnold (Member # 11712) on :
I agree with Geraine insofar as all laws are morality, so making a distinction for "moral laws" is silly. The issue is not legislating morality. The issue is that the US already has legislated, at the constitutional level, a moral tenet that says "everyone has equal protection under the law." The only way to argue that denying marriage to a group of people ISN'T violating that is to say that marriage isn't a fundamentally ingrained part of our society. And if you really believed that, you wouldn't be motivated to deny it to some random group of people to start with.
Everyone knows (or almost uniformly believes, which in this case makes it true) that marriage IS important, and telling a group of people they can't have it violates a constitutional amendment. That's not judicial activism. That's the judicial branch doing exactly what its supposed to do.
Posted by Samprimary (Member # 8561) on :
quote:Originally posted by Geraine: From my perspective, the judge DID practice judicial activism. The judge made his decision based on his understanding of morality and not the morality of the majority.
I've been outspoken on the subject in the past. I'm not trying to get into it with others here, it would be beating a dead horse. What I am asking is how you define morality, and who decides what is moral and what isn't?
You absolutely need to read the entirety of the text I posted explaining the moral v. rational justification. It responds to this comprehensively.
Posted by Paul Goldner (Member # 1910) on :
"From my perspective, the judge DID practice judicial activism. The judge made his decision based on his understanding of morality and not the morality of the majority."
No, he made his decision based on constitutional principles. If he'd made his decision based on the morality of the majority, THAT would have been judicial activism.
Posted by Samprimary (Member # 8561) on :
quote:Originally posted by MattP: On a more serious note, have you read the transcripts? The defense absolutely crumbled. One of the defense witnesses eventually agreed with the major points argued by the prosecution during cross-examination, effectively becoming a witness for the prosecution.
I can't find the quote right now, but I recall David Boise commenting in an interview that the defense was so easy to take down because they aren't accustomed to actually defending their position. They take their various arguments against SSM as self-evident facts which don't actually need to be justified. They tend to go before a series of friendly audiences regurgitating their talking points. Boise said something along the lines of "When you give a speech you aren't subject to cross examination."
quote:A person or group may have a different view of morality than another. In this case, a majority though it was immoral to give the homosexual community the ability to marry. Others thought that it was immoral to KEEP them from having the ability to marry. Who makes the final decision on what is moral and what isn't?
In this case, someone who asked both sides to defend their position with actual facts. One side did.
Posted by Geraine (Member # 9913) on :
quote:Originally posted by Chris Bridges: In this case, someone who asked both sides to defend their position with actual facts. One side did.
Right, and I am fine with that. My argument is that if you are going to bring morality into the argument, then facts are usually thrown out the window. I'm not arguing that the judge made the right or wrong decision. I'm arguing that those people that see it as a moral issue (be they for or against it) aren't looking at it from a rational standpoint. From a moral standpoint, the majority decided what was moral, and they decided against allowing gay marriage. From a rational standpoint, it can be argued that there is discrimination taking place.
The SCOTUS is going to be challenged on this one. Facts aside, they need to determine if marriage is a right given by the Constitution. There isn't any language in the Constitution that specifically mentions marriage, so they will have to make that call. It's a tough one. You realize that this may go to the SCOTUS and they may have to give a federal definition of what marriage is and who is extended the opportunity. If and when this happens, you will see other groups of people that take part in other non traditional marriage types coming forward demanding they be extended the same rights.
No matter what the outcome, I find this whole thing fascinating. I can't wait to see how it plays out.
Posted by Samprimary (Member # 8561) on :
quote: There isn't any language in the Constitution that specifically mentions marriage, so they will have to make that call.
re-iterating that you need to read the article I quoted in here. On page one.
What matters is the test of discrimination. The government can't, for instance, not let gay people drive while letting straight people drive, regardless as to whether or not the constitution specifically mentions cars.
Posted by Darth_Mauve (Member # 4709) on :
quote: Facts aside, ...
That is the difference between law and politics. In politics, you can set facts aside to make your case. I the law, facts have a definitive importance.
Posted by Samprimary (Member # 8561) on :
and of course, the most hilarious organization/front group of them all, the National Organization of Marriage, chimes in with the best reactionary scare-tactic quote so far.
quote:If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.
Those in power will call it tolerance, they will call it pluralism, but in truth same-sex marriage is a government takeover of an institution the government did not make, cannot in justice redefine, and ought to respect and protect as essential to the common good.
SOVIET STYLE
Ah, but here comes a member of the american family association to up the ante!
quote:Judge Vaughn Walker’s ruling yesterday, in which he trampled on the will of seven million Californians, is a monstrous, egregious, reprehensible expression of judicial activism and tyranny.
According to Judge Walker, it is not longer “We the People,” it is now “I the Judge.”
Although almost no other organizations other than the American Family Association are making an issue of this, Judge Walker should have recused himself from this case since he is a practicing homosexual. This created a clear conflict of interest, and he had no business issuing a ruling on a matter on which he had such a huge personal and private interest.
His own personal sexual proclitivies utterly compromised his ability to make an impartial ruling in this case. After all, the bottom line issue is whether homosexual behavior, with all its threats to psychological and physical health, is behavior that should be promoted in any rational society.
Judge Walker has already decided this issue for himself, and has no business putting himself in a place where his own personal value judgments could be substituted for the express will of the people of California.
He is Exhibit A as to why homosexuals should be disqualified from public office. Character is an important qualification for public service, and what an individual does in his private sexual life is a critical component of character. A man who ignores time-honored standards of sexual behavior simply cannot be trusted with the power of public office.
in other news, I guess thurgood marshall should have recused himself more often for being black.
Posted by dabbler (Member # 6443) on :
Would AFA have suggested that a married "practicing heterosexual" also has a conflict of interest, as the defense of Prop 8 is to defend heterosexual marriage?
Posted by Amberkitty (Member # 12365) on :
Laws are based upon morality, but certain morals are held to more strongly than others. Constitutionally, the default moral standard is based on three unalienable human rights - life, liberty, pursuit of happiness. Pitting the moral belief that gay marriage shouldn't happen just because - taking the defense's argument of .. well .. nothing - against the moral belief that we have the unalienable right to pursuit of happiness (which marriage falls under even though the right to marriage isn't explicitly mentioned in the constitution) AND the overwhelming factual case that gay marriage doesn't hurt anyone else AND the related case that banning gay marriage hurts people, the defense loses out.
Sorry. Not all morals are created equal. And not all morals are going to be judged equally under law either.
Posted by scholarette (Member # 11540) on :
If they had honestly thought getting a non-gay judge was something they had the legal grounds to do and was legit, why didn't they ask the judge to recuse himself at the beginning? Maybe cause there is no way you can argue that one with a straight face in a legal situation? Though soundbites are wonderful cause you can say the stuupidest things and be taken seriously.
Posted by Amberkitty (Member # 12365) on :
quote:Originally posted by scholarette: If they had honestly thought getting a non-gay judge was something they had the legal grounds to do and was legit, why didn't they ask the judge to recuse himself at the beginning? Maybe cause there is no way you can argue that one with a straight face in a legal situation? Though soundbites are wonderful cause you can say the stuupidest things and be taken seriously.
A lawyer addressed this exactly:
quote:I really, really hate – as in, this is extra special slimy, even for them – the fact that only now, since the Prop 8 proponents have lost, is the whole "he's gay, should he have recused himself" meme starting to take hold. Folks, if you think your judge should recuse himself, you put on your big boy or girl pants and you file the damn motion. 22 years ago I did a jury trial for a client who was charged with molesting his kid. The judge originally assigned had handled the civil restraining order, and I felt that created bias, so I filed a motion to recuse, which he granted. (By the way, with a different judge, the jury acquitted in 55 minutes.) About a week later, I ran into that judge and started to apologize for the motion. He cut me off before I could finish and he said, "You should never, ever apologize for doing your job. Ever." The point is this: if you are a good lawyer, and you've got grounds, you file that motion. And if you don't file it, either a) you're not a good lawyer, or b) you got no grounds in the first place, and you know it.
And the Prop 8 proponents knew it. And didn't file it. Because there was nothing to file. It's no more bias to be gay in this case than it would to be African American, Latino, Jewish or female in a discrimination case. This is a smear. And a cowardly smear at that. Nothing less.
quote:Originally posted by Amberkitty: Laws are based upon morality, but certain morals are held to more strongly than others. Constitutionally, the default moral standard is based on three unalienable human rights - life, liberty, pursuit of happiness. Pitting the moral belief that gay marriage shouldn't happen just because - taking the defense's argument of .. well .. nothing - against the moral belief that we have the unalienable right to pursuit of happiness (which marriage falls under even though the right to marriage isn't explicitly mentioned in the constitution) AND the overwhelming factual case that gay marriage doesn't hurt anyone else AND the related case that banning gay marriage hurts people, the defense loses out.
This doesn't hold. "If it makes you happy and doesn't harm anyone, its ok!" is not a valid argument.
The phrase was in the Declaration of Independence, not the Constitution. The Bill of Rights does not even include the "Pursuit of Happiness". The 5th amendment mentions that someone cannot be deprived of life, liberty, or property, but does not mention the pursuit of happiness at all.
Even though it is not set forth in the Federal Constitution there are many STATE Constitutions that include this phrase.
I REALLY don't think the SCOTUS is going to uphold the ruling. They will most likely refer it back to the state and the ban will go into effect. Since marriage has been considered a state issue in the past I can't see them changing that. It would open up a can of worms that would have all of the people that practice other types of marriages such as polygyny ,polyandry, group marriages, and cousin marriages coming out of the wood works.
Wasn't there a lawsuit in Massachusettes regarding SSM as well? I heard that the MA lawsuit would probably make it to the SCOTUS before the California case. Does anyone have any information regarding that lawsuit?
Posted by Raymond Arnold (Member # 11712) on :
quote:This doesn't hold. "If it makes you happy and doesn't harm anyone, its ok!" is not a valid argument.
Um, what? Why?
I DO have a feeling that the Supreme Court would find a way to sidestep this similar to how they sidestepped the Pledge of Allegiance "Under God" thing.
Posted by Amberkitty (Member # 12365) on :
MY BAD.
Though given what was presented during the trial, i.e. no defense vs the government really has no interest in upholding this ban, I don't disagree with logic of the ruling. And the argument that legal enforcement of certain morals is acceptable SIMPLY because they are morals is still invalid.
quote: I REALLY don't think the SCOTUS is going to uphold the ruling. They will most likely refer it back to the state and the ban will go into effect. Since marriage has been considered a state issue in the past I can't see them changing that.
Most legal scholars right now seem to be saying that it is a close decision. The articles I have read have mostly agreed that the court is split down liberal/conservative lines 4-4 on this one with Kennedy being the swing vote. Which way Kennedy will go is open for a lot of debate. Personally, I see Kennedy having a hard time ruling in favor of prop 8. He has already stated in Lawrence V Texas(a case about sodomy laws) that morality alone is not a reason to ban a behavior and that public opinion on an act was not sufficient grounds to ban it.
This is certainly likely to be a case that the SC rules on. It is absolutely within their purview. It is almost identical in nature to Loving vs Virginia which ruled that banning interracial marraige was a violation of the equal protection clause and was not bannable by states. While marriage itself has been run by the state, the conflict with prop 8 is with the federal constitutions equal protection clause which would put it decidedly in the federal arena. I can see the court wanting to narrowly tailor their decision as much as possible to avoid having far reaching effects but it seems likely to be difficult for them. If they determine that homosexuals are a protected class for example, it will have far reaching consequences.
Posted by Anthonie (Member # 884) on :
quote:Originally posted by Geraine: The SCOTUS is going to be challenged on this one. Facts aside, they need to determine if marriage is a right given by the Constitution. There isn't any language in the Constitution that specifically mentions marriage, so they will have to make that call.
quote: I think it's really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we're talking about, by the United States Supreme Court. The Supreme Court -- the freedom to marry, the freedom to make the choice to marry.
The Supreme Court has said in -- I counted 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is. And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it.
The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.
Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.
Gallagher: This biased judge made that conclusion but I will tell you ..
Cooper: Why do you think he's biased?
Gallagher: .. That the majority of courts and the majority ..
Cooper: Why do you think he's biased?
Gallagher: .. Of Americans have rejected the idea that same-sex union .. same sex marriage is a civil right and I think in the end we will win this ..
Cooper: Why .. why do you think he's biased?
Gallagher: .. In the court of law, and the court .. why? .. I don't know why he's biased ..
(hint: she had already said on NOM's site that he's biased because he's gay.)
Posted by TomDavidson (Member # 124) on :
I have to admit that the National Organization for Marriage once deeply, deeply annoyed me, but that was before I realized the whole thing was elaborate satire intended to make opponents of gay marriage look like idiots.
Posted by Rakeesh (Member # 2001) on :
quote:Constitutionally, the default moral standard is based on three unalienable human rights - life, liberty, pursuit of happiness....
News to me...
Posted by Orincoro (Member # 8854) on :
Gallagher: This biased judge made that conclusion but I will tell you ..
Cooper: Why do you think he's biased?
Gallagher: .. That the majority of courts and the majority ..
Cooper: Why do you think he's biased?
Gallagher: .. Of Americans have rejected the idea that same-sex union .. same sex marriage is a civil right and I think in the end we will win this ..
Cooper: Why .. why do you think he's biased?
Gallagher: .. In the court of law, and the court .. why? .. I don't know why he's biased ..
(hint: she had already said on NOM's site that he's biased because he's gay.)
The utter pathos of the opposition to civil rights in this country is comforting at times. I guess it should be disturbing how inanely stupid they can be, and that they "represent" some kind of near majority, but honestly, you have to laugh at the lameness of their arguments in latter days.
Posted by Dan_Frank (Member # 8488) on :
quote:Originally posted by Rakeesh:
quote:Constitutionally, the default moral standard is based on three unalienable human rights - life, liberty, pursuit of happiness....
News to me...
Come on now. The actual line is in the Declaration, sure, but the Constitution is based, in a sense, on the Declaration. The founders said so, the Supreme Court has said so. You know: The Declaration is the thought and the spirit, the Constitution is the body and the letter.
So you may be technically correct (and, as the bureaucrat on Futurama said, that is the best kind of correct.) But isn't it kind of quibbling to give someone a hard time about it?
Posted by Orincoro (Member # 8854) on :
Not really. Considering how poor an understanding of the philosophy of their own country and constitution most Americans seem to have, I'd say we should be sticklers for accuracy and clarity.
Posted by MightyCow (Member # 9253) on :
You should always strive to show someone that they are wrong, when their being wrong encourages and supports a hurtful state of being.
Posted by Orincoro (Member # 8854) on :
And in this case?
Posted by Samprimary (Member # 8561) on :
in this case it's an acknowledged slip
quote:Originally posted by Amberkitty: MY BAD.
so
Posted by Rakeesh (Member # 2001) on :
I wasn't intending to give Amberkitty a hard time so much as to point out, somewhat dryly, "That isn't actually in the Constitution," and I'm sorry if I came across harsher than that.
quote:Come on now. The actual line is in the Declaration, sure, but the Constitution is based, in a sense, on the Declaration. The founders said so, the Supreme Court has said so. You know: The Declaration is the thought and the spirit, the Constitution is the body and the letter.
It's just that my opinion is that when dealing with such an enormously powerful document as the US Constitution, it's actually pretty vital to have (among other things) the ideals espoused in the Declaration guide its ongoing creation and interpretation, but for the document itself, well, technicalities are as important as its built-in allowance for change.
Posted by Dan_Frank (Member # 8488) on :
quote:Originally posted by Samprimary: in this case it's an acknowledged slip
quote:Originally posted by Amberkitty: MY BAD.
so
I'm confused, were they saying their bad was about the origin of the phrase "life, liberty and the pursuit of happiness?" I took the statement of their badness to be more relevant to the actual discussion they were having, about the court ruling, but perhaps I misread.
And in terms of understanding the philosophy and constitution of our country... the morality expressed the constitution is based on the ideas laid out in the Declaration of Independence. Not solely, certainly, but the documents are not unrelated.
Posted by Dan_Frank (Member # 8488) on :
quote:Originally posted by Rakeesh: I wasn't intending to give Amberkitty a hard time so much as to point out, somewhat dryly, "That isn't actually in the Constitution," and I'm sorry if I came across harsher than that.
quote:Come on now. The actual line is in the Declaration, sure, but the Constitution is based, in a sense, on the Declaration. The founders said so, the Supreme Court has said so. You know: The Declaration is the thought and the spirit, the Constitution is the body and the letter.
It's just that my opinion is that when dealing with such an enormously powerful document as the US Constitution, it's actually pretty vital to have (among other things) the ideals espoused in the Declaration guide its ongoing creation and interpretation, but for the document itself, well, technicalities are as important as its built-in allowance for change.
I'm pretty much in total agreement then. Posted by Amberkitty (Member # 12365) on :
quote:Originally posted by Rakeesh: I wasn't intending to give Amberkitty a hard time so much as to point out, somewhat dryly, "That isn't actually in the Constitution," and I'm sorry if I came across harsher than that.
It's just that my opinion is that when dealing with such an enormously powerful document as the US Constitution, it's actually pretty vital to have (among other things) the ideals espoused in the Declaration guide its ongoing creation and interpretation, but for the document itself, well, technicalities are as important as its built-in allowance for change.
We're in agreement.
I believe that at the very least one should make accurate statements from which logical arguments can follow. That line isn't in the Constitution, but I said that it was, so that was my mistake.
So no harm done. And I'm a big girl. I only cry over things like ruining a newly done manicure.
[ August 09, 2010, 01:53 AM: Message edited by: Amberkitty ]
Posted by Anthonie (Member # 884) on :
Here's a surprising twist on the appeals process for Prop 8.
Since Gov. Schwarzenegger and the CA Attorney General Jerry Brown support Judge Walker's decision to strike down Prop 8, they refuse to appeal it. As they are the official defendants, it appears possible that the courtroom defenders of Prop 8 may not have the standing to appeal the ruling.
quote:A private group that opposes same-sex marriage, ProtectMarriage.com, defended Proposition 8 during the trial Walker held earlier this year. The group wants to appeal but may lack legal standing to do so.
To have standing in federal court, a party must show that it has suffered an actual injury, and Walker said no evidence suggests that the campaign would meet that test.
...
Chapman University law professor John Eastman, who has been critical of Walker, said ProtectMarriage.com and its allies could try to prove standing by pointing to the fact that the California Supreme Court had given it authority to defend Proposition 8 in state court.
But UC Irvine Law School Dean Erwin Chemerinsky said the effort may be difficult. "Their injury is ideological, and there is a century of precedent that ideological injury is not enough for standing. I think this lets the 9th Circuit and the Supreme Court follow well-established law and avoid the hard constitutional ruling."
Ironically, the rules on standing have been toughened considerably over the last generation by conservative judges as a way to limit the types of cases that can be brought in federal court.
Posted by Samprimary (Member # 8561) on :
Lol, that's good. Because the more impotent the defenders are at actually getting this to the SCOTUS, the more liberal the SCOTUS is going to be by the time this gets to their doors. Meaning that we move from the likelihood of tortured conclusions which don't make it unconstitutional everywhere, to a nationwide mandate that gay marriage be legal.
Posted by TomDavidson (Member # 124) on :
quote:Because the more impotent the defenders are at actually getting this to the SCOTUS, the more liberal the SCOTUS is going to be by the time this gets to their doors.
I wouldn't count on that.
Posted by scholarette (Member # 11540) on :
Slate has a story asking if we really want gay marriage ok'd in CA on a technicality. The problem I see is that this technicality has been in place for a while. Environmental groups have been told they lack standing to bring up the cases they care about to the supreme court. So, yeah, maybe it would be nice for the challenge to be made and have a decisive ruling, but it seems like following the rules is important too. Now, if this is going to lead to a change in those rules for everyone (like Greenpeace gets standing to challenge a ruling on an environmental issue) that is a whole other situation.
Posted by Samprimary (Member # 8561) on :
quote:Originally posted by TomDavidson:
quote:Because the more impotent the defenders are at actually getting this to the SCOTUS, the more liberal the SCOTUS is going to be by the time this gets to their doors.
I wouldn't count on that.
Which justices do you think are plausibly going to retire or die in the time between here and 2016?
Posted by Orincoro (Member # 8854) on :
quote:Originally posted by scholarette: Slate has a story asking if we really want gay marriage ok'd in CA on a technicality.
This is not a mere technicality, this is a real constitutional issue. As for the grounds to appeal, would you prefer the normal requirements be waived in favor of the defense in this case? We should allow people to defend even if they have no standing? Why? That's a horrible precedent.
Politics and the courts, these things do not mix well.
quote: So, yeah, maybe it would be nice for the challenge to be made and have a decisive ruling, but it seems like following the rules is important too.
I'm not getting you here. This *is* following the rules. If you have a case to made in court that a decision is constitutional, and the court agrees, you are following the rules, and so are they. It was the proposition that was unconstitutional, not the court ruling. Everyone is following the rules here, that's the point, the rules are complicated, but nobody has broken them.
And yes, I would absolutely settle for a decision in the courts where the people have trampled on a minority's rights. There is absolutely no sense in waiting to be given rights you already deserve.
Posted by scholarette (Member # 11540) on :
My post was disagreeing with the Slate article. technicality perhaps should be put in scare quotes. It would be nice to have this be a the SC decision though because then it is national, not just for CA, but you can't simply bypass the rules we have established for the court regarding standing just because this time it is a conservative who is lacking standing. There is a part of me that would like for a larger view of what is standing though. I read somewhere a fairly large list of people who lacked standing and some of those cases, I thought it was a bit unfair that the groups could not actually defend their interests in court. So, I can see how conservatives are upset, but I would want the standing rules in general to be broadened, to apply to these other groups as well- not an exception for this one case.
Posted by Xavier (Member # 405) on :
quote: It would be nice to have this be a the SC decision though because then it is national, not just for CA.
This seems to be assuming that the SC would rule the same way. I personally am not eager for this to go to the SC, since a ruling that upholds Prop 8 is scary to consider.
California and its 37 million people are a huge victory.
Posted by scholarette (Member # 11540) on :
Though actually, the SC case I think would be the most defining for the movement would be if the SC upheld the ruling that DOMA denies state rights. Tossing out DOMA would extend a lot of rights and benefits to people at the federal level and is in some ways a very conservative, Constitutional ruling- it is preserving state's rights and seems to be in line with established precedence. The standing in that case seems undeniable. If you had the anti-DOMA and then the CA case upheld, I think that would pretty much guarantee gay marriage for everyone in the US. If DOMA is struck down, even if prop8 is allowed, I think overall it would still be a victory- just a little slower. But if DOMA is upheld, that really, really sucks.
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