So gay!!!

[Hopper]

This would not be the first time the courts have recognized such rights after a delay, or even reversed previous rulings on these rights.

Yeah, Eric, there's always the possibility that this Supreme Court will reverse it's prior rulings. It's rare, but it happens. On the whole the Court strives to follow it's own precedents, in the interest of stability, consistency, and predictability if for no other reasons. But, that aside, Supreme Court decisions are generally well-thought out and contain reasoning and wisdom worth following and adhering to.


I've yet to see any expert commentators (not that I've looked for many) that expresses much optimism that this Walker ruling will be upheld on appeal. I actually think the high-handed and unorthodox way in which this decision was reached will create some negative backlash in the appellate courts and perhaps cause it to be received with prejudice.

I don't think the fact that Walker failed to even discuss prior Supreme Court decisions on the gay marriage issue and attempted to forcibly (as the initial trier of fact) convert opinion to "fact" will endear him to appellate judges or give them the impression that Walker's opinion was well-considered or impartially arrived at. I could easily be wrong, of course. I guess we'll see.

Edit: I see now that s soon as he lifted his stay, the appellate court immediately reinstated a 1 year stay. "The appeals court granted an emergency motion for a stay made last week by the initiative's sponsors. The court's order halted preparations under way in some counties to marry same-sex couples starting at 5 p.m. Wednesday, which Walker had set as the launch time for enforcement of his ruling."
https://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/16/MNEE1EUOIF.DTL#ixzz0wqVOTuls

 

[Hopper]

Former U.S. Attorney General Ed Meese (obviously a conservative) said this in the Washington Post:

"Walker's ruling is indefensible as a matter of law wholly apart from its result. By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker's is a clear exception because the U.S. Supreme Court has spoken on whether a state's refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court's action establishes a binding precedent in favor of Proposition 8. But Judge Walker's ruling doesn't mention Baker, much less attempt to distinguish it or accept its findings...

...according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have "no rational reason" to oppose gay marriage....These "findings" derive from arbitrary and capricious non-analysis and are forcefully contradicted by evidence in the court record. No appellate court should allow the ruling to stand. The rule of law demands more careful consideration of this important issue than Walker's decision delivered."

https://www.washingtonpost.com/wp-d.../08/16/AR2010081604254.html?hpid=opinionsbox1

=====

Other side of the aisle (from the author of "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America."):

"...gay men and women across the country are celebrating unreservedly. I only wish I could join them...as a gay man, a leading proponent of gay marriage and half of a same-sex marriage myself (my partner and I got married in the District of Columbia in June), I find so much to celebrate. How could I not?

I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is "beyond debate." In an unpredictable world, that kind of sweeping certainty would leave any Burkean gulping.

So I think the decision is a radical one...in his use of the Constitution to batter the principles of its two greatest exponents - Madison and Abraham Lincoln, a Burkean who was steadfast in his belief that ideals must be leavened with pragmatism.


History will, I believe, vindicate Walker's view of marriage. Whether it will see him as having done gay rights a favor is less clear. For all its morally admirable qualities, his decision sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty."

https://www.nydailynews.com/opinion...rriage_challenges_p.html?page=0#ixzz0wqq23KKw

=====

Robert Nagel, a U. of Colorado constitutional law professor, whose view may or may not be typical, found nothing to praise about Walker's "coup:"

"The good judge took pains to present himself as a workmanlike lawyer rather than a recklessly arrogant philosopher king. His opinion is designed so that it appears merely to apply legal propositions laid down by the Supreme Court and to evaluate factual evidence meticulously...Here is how it works: Where there are undeniably reasons (debatable reasons, to be sure) behind the traditional definition of marriage, Judge Walker simply announces that those reasons are illegitimate and therefore don’t count. And where the reasons are undeniably legitimate, Judge Walker dismisses them on the basis of sweeping factual claims that he cannot possibly support.

Despite all its cerebral and legalistic trappings, Judge Walker’s opinion is not an exercise in some detached and impartial form of rationality. Like the law it invalidated, his opinion is a reflection of aspirations, fears, guesses, and moral judgments. ....What is at least as frightening as the unruly world of politics is the supercilious and resolutely self-satisfied world occupied by judges like Vaughn Walker."

https://www.weeklystandard.com/articles/judge-voters-drop-dead?page=1

 

[moevillini]

To a certain degree, this whole business of citing any particular legal scholar(s) and/or decision(s) to support or refute your argument seems a bit pointless, particularly when it gets to the degree of nit-picky ridiculousness that's evident here. That there is going to be disagreement is a given - even among the best and the brightest. Otherwise all court decisions would be unanimous, and there would be no need for an appeals process whatsoever because there'd be no reason to disagree with a ruling. (except in cases where there's new evidence, or some form of mistrial occurred)

I'd be curious to know who, other than Hopper, finds this type of discussion worthwhile.

/rant

 

[Gameface]

To a certain degree, this whole business of citing any particular legal scholar(s) and/or decision(s) to support or refute your argument seems a bit pointless, particularly when it gets to the degree of nit-picky ridiculousness that's evident here. That there is going to be disagreement is a given - even among the best and the brightest. Otherwise all court decisions would be unanimous, and there would be no need for an appeals process whatsoever because there'd be no reason to disagree with a ruling. (except in cases where there's new evidence, or some form of mistrial occurred)

I'd be curious to know who, other than Hopper, finds this type of discussion worthwhile.

/rant

Me too!

 

[Hopper]

Mo, like I done said:

I doubt that many who have contributed to this thread actually give a rat's *** about the law or the legal standards to be applied in a case like this. It seems that most merely want to state their personal view or their preferred outcome, and then say THAT should be the law. But anyone who actually wants a better understanding of how the law applies in such cases could take a look at the Bruning case here:

There a number of political and social issues underlying this case, such as separation of powers, minority rights, etc., but that doesn't mean anyone is this forum is interested in discussing them, I realize that. My sense is that very few are, at least not at any serious level. Most people just want to put in a "hooray" or a "boo" and leave it at that.

I really didn't quote any of these guys to support or refute an argument so much as to see if anyone thought the type of thoughts they are expressing stimulated any discussion.

 

[One Brow]

In theory I could "choose" about anything, Eric. Don't mean I'm gunna.

Heh, if you believed it "when I said it," perhaps you could show where I said that, ya know?

Happy to oblige.

Maybe, who knows? Maybe he feels like his duty to his pet snake is also a higher duty. That aint the question, though. The California Supreme Court upheld the constitutionality of prop 8. Schwartzenegger took a solemn oath to uphold and defend THAT constitution. He did not swear to uphold the U.S. constitutuion, as such.

When California joined the USA, it agreed that its constitution and laws would be of lesser status that federal laws and the US Constitution. I am fairly sure California did not agree to such provisions regarding the governors pets. So, when the governer sees a state provision that he believes contradicts a federal provision, it's his duty to follow the federal provision.

The day after the California Supreme Court ruling the suit naming him as a defendant was filed in San Francisco. He refused to "defend." If you think such pleadings are reseached, composed, edited, rewritten, and ready for filing in court overnight, then you are mistaken. This was obviously part of a well-prepared "contingency plan."

I'm sure.

Yeah, Eric, there's always the possibility that this Supreme Court will reverse it's prior rulings. It's rare, but it happens. On the whole the Court strives to follow it's own precedents, in the interest of stability, consistency, and predictability if for no other reasons. But, that aside, Supreme Court decisions are generally well-thought out and contain reasoning and wisdom worth following and adhering to.

Agreed.

I've yet to see any expert commentators (not that I've looked for many) that expresses much optimism that this Walker ruling will be upheld on appeal. I actually think the high-handed and unorthodox way in which this decision was reached will create some negative backlash in the appellate courts and perhaps cause it to be received with prejudice.

One thing that both Brown vs. Board of Education and Loving vs. Virgina had was that the lower courts followed prior Supreme Court precedents, true.

On the other hand, Perez vs. Sharp went completely against these precedents, was was not overturned. The Supreme Court might simply not hear this case.

Finally, one additonal quote from Loving vs. Virginia:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Apparently, the Supreme Court of New York does not feel this applies to same-sex marriage, and Walker does.

Twenty years from now, gay marriage in the USA will be a fact of life. It's just a question of when and by what path.

 

[Hopper]

For example, one of these articles raises the question: Does morality have any place whatsoever in law? Many argue that virtually all laws are based on a moral judgment. Judge Vaughn basically says that "morality" is not a valid concern, and seems to equate "morality" with religion. The atheists I talk to routinely assure me that they have moral values. So is all morality simply a result of religious indoctrination, or not?

"Consider the argument that homosexual conduct is immoral...To the extent that these reasons are religious, Judge Walker rejects them on the ground that it is impermissible to base public policy on religious ideas...Judge Walker discards all the secular moral arguments on the basis of a puzzling assertion, repeatedly made in the opinion, that moral disapproval is “not enough” to justify a public policy."

 

[One Brow]

I really didn't quote any of these guys to support or refute an argument so much as to see if anyone thought the type of thoughts they are expressing stimulated any discussion.

It may indeed be too much, too soon, as the middle essay indicates. If Meese is claiming that there was substantial evidence and plain common sense that Walker ignored, I would be interested in the specific details of that, if Meese can provide any. As for Nagel, his quote read more like character assassination than a review of the decision itself.

 

[One Brow]

"Consider the argument that homosexual conduct is immoral...To the extent that these reasons are religious, Judge Walker rejects them on the ground that it is impermissible to base public policy on religious ideas...Judge Walker discards all the secular moral arguments on the basis of a puzzling assertion, repeatedly made in the opinion, that moral disapproval is “not enough” to justify a public policy."

Putting a sentence back in, Nagel said: "Of course, not all moral arguments against homosexuality are religiously based. Judge Walker discards all the secular moral arguments on the basis of a puzzling assertion, repeatedly made in the opinion, that moral disapproval is “not enough” to justify a public policy."

Doea Nagel ever list these non-religious arguments against homosexuality? I have been waiting to see some presented for years. If Nagel claims such arguments exist, but does not produce them, that makes his position far less credible.

 

[Hopper]

So, when the governer sees a state provision that he believes contradicts a federal provision, it's his duty to follow the federal provision.

This is a recurring claim in this thread, and I find it very puzzling. It is not a Governor's duty to follow what he personally believes SHOULD be the law. It is to enforce the law, whether he personally agrees with it or not. No federal law has held that bans against gay marriage are illegal. Quite the contrary.

 

[One Brow]

This is a recurring claim in this thread, and I find it very puzzling. It is not a Governor's duty to follow what he personally believes SHOULD be the law. It is to enforce the law, whether he personally agrees with it or not. No federal law has held that bans against gay marriage are illegal. Quite the contrary.

Unless there is a conflict with the 14th Amendment, that is.

 

[Hopper]

I have been waiting to see some presented for years. If Nagel claims such arguments exist, but does not produce them, that makes his position far less credible.

Waiting for years? Hmmm, not looking, just waiting? It may never come, that way. I think what you're really saying here Eric, is that if you don't hold a particular moral value, then it must be no more than a religious doctrine, without any reasonable basis.

 

[Hopper]

Unless there is a conflict with the 14th Amendment, that is.

NO! Absolutely wrong. Unless THE COURTS HAVE FOUND a conflict, OK? Not "because there is" and the reason I say there "is" is because I personally believe there is, or "should" be. That is NOT a Governor's job or his right. It is in fact a blatant violation of his duties to take that position.

 

[One Brow]

Waiting for years? Hmmm, not looking, just waiting? It may never come, that way. I think what you're really saying here Eric, is that if you don't hold a particular moral value, then it must be no more than a religious doctrine, without any reasonable basis.

If you choose to actively look for evidence of arguments that you doubt are accurate, fine. However, I don't see you making a lot of posts that include the results of such research. As far as I'm concerned, it the responsibility of those who claim such secular arguments exist to produce them. Yes, I did note you made no such claim.

NO! Absolutely wrong. Unless THE COURTS HAVE FOUND a conflict, OK? Not "because there is" and the reason I say there "is" is because I personally believe there is. That is NOT a Governor's job or his right. It is in fact a blatant violation of his duties to take that position.

If the California legislature, or voting public, agrees with you, I beleive they can remove the governor from office. Outside of that, your position stikes me as convenient posturing.

 

[Hopper]

"Defense of Marriage Act is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. Under the law, also known as DOMA, no state (or other political subdivision within the United States) needs to treat as a marriage a same-sex relationship considered a marriage in another state (DOMA, Section 2); the federal government defines marriage as a legal union between one man and one woman (DOMA, Section 3)."

The willingness, I should perhaps say zealous eagerness, with which lawlessness on grounds of subjective belief is advocated is somewhat disturbing.

 

[Hopper]

If the California legislature, or voting public, agrees with you, I beleive they can remove the governor from office. Outside of that, your position stikes me as convenient posturing.

If the governor, in a fit of anger, guns down several legislators who have opposed him, I believe he can be removed from office. Any claim that his lawlessness should in any other way be opposed or halted is merely convenient posturing.

 

[Hopper]

Give me an honest answer to this question, Eric:

Suppose the situation was reversed. Suppose the voters overwhelmingly passed a constitutional amendment making gay marriage a right. Suppose the Supreme Court upheld that amendment. Now suppose the Governor stated that he didn't agree with the voters or the court, and he thought federal courts would disagree too. Does this relieve him of the duty to uphold and defend the law?

 

[Hopper]

If you choose to actively look for evidence of arguments that you doubt are accurate, fine. However, I don't see you making a lot of posts that include the results of such research. As far as I'm concerned, it the responsibility of those who claim such secular arguments exist to produce them. Yes, I did note you made no such claim.

The law professor you dismiss was writing a short op-ed piece. They did not want 136 pages from him, but you criticize him for not going through the court opinion line by line it seems. His claim was merely this: "Judge Walker discards all the secular moral arguments on the basis of a puzzling assertion, repeatedly made in the opinion, that moral disapproval is “not enough” to justify a public policy."

Have you even read the opinion? Have you seen where the judge repeatedly claims that (non-religious) moral arguments are "not enough?"


The Bible says thou shall not kill. Does that make all legal proscriptions against murder, and any supposed "morality" they are based on, merely an attempt to "establish" a religion, contrary to the constitution?



One excerpt from the opinion, if you haven't read it:

"Conjecture, speculation, and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.”

1. Notice here that the judge does not say moral disapprobation IF it is founded upon religious belief is "not enough." He's saying any and all moral disapproval is insufficient, i.e., that moral beliefs have no place in law.

2. Whether one's moral beliefs are founded upon religious belief or not is irrelevant for constitutional purposes.

 

[One Brow]

"Defense of Marriage Act ..."

The willingness, I should perhaps say zealous eagerness, with which lawlessness on grounds of subjective belief is advocated is somewhat disturbing.

The Defense of Marriage Act would still be subordinate to the Constitution.

If the governor, in a fit of anger, guns down several legislators who have opposed him, I believe he can be removed from office. Any claim that his lawlessness should in any other way be opposed or halted is merely convenient posturing.

Because gunning down legislators is exactly like forming a reasoned opinion of the protections offered by the 14th Amendment.

Give me an honest answer to this question, Eric:

Suppose the situation was reversed. Suppose the voters overwhelmingly passed a constitutional amendment making gay marriage a right. Suppose the Supreme Court upheld that amendment. Now suppose the Governor stated that he didn't agree with the voters or the court, and he thought federal courts would disagree too. Does this relieve him of the duty to uphold and defend the law?

You mean, by testifying in favor of it or having his government defend the law he personally disagrees with? Yes, I think that governor should stay out of that battle.

For that matter, IIRC Iowa has legal marriage by a court decree. Let's say the governor is planning on appealing that decree. In the mean time, a clerk refuses to grant a marriage application. As long as the issue is in dispute, I support the right of the governor to refuse to discipline or remove that clerk until the case has been decided.

 

[One Brow]

Have you even read the opinion? Have you seen where the judge repeatedly claims that (non-religious) moral arguments are "not enough?"

I have not read the opinion. More to the point, I have not read the secualr arguments against homosexual marriage. I did not expect Nagel to procude a line-by-line criticism. I would like to see some evidence that, at some time, he (or anyone else) presented an legitimately secular argument against same-sex marriage (as opposed to marriage in general).

The Bible says thou shall not kill. Does that make all legal proscriptions against murder, and any supposed "morality" they are based on, merely an attempt to "establish" a religion, contrary to the constitution?

I believe you can find many secular reasons for prohibiting murder.