So gay!!!

[sirkickyass]

Also overlooked in all this legal instruction we've been receiving from Kicky is the fact that the California Supreme Court upheld Prop 8, even after it had struck down an identically-worded statute for being "unconstitutional."

The identically worded statute was invalidated based on provisions of the California Constitution. Prop 8 amended the state constitution, undercutting the rationale behind the decision. Prop 8 was introduced as a Constitutional amendment specifically so that it woudl reverse the previous ruling.

In particular, the court determined that the voters had effectively voted to create an exception to the state's equal protection clause on the specific subject of homosexual marriage, which is why they upheld that homosexuals still constituted a protected class for purposes of the state constitution.

As far as I know, the California Supreme Court has and had full authority to strike down prop 8 on the the grounds that it violated the U.S. Constitution, even if it didn't violate the California constitution.

This is true, but misses some of the complexity of the situation. Judges are sensitive about being overruled and a state supreme court is the ultimate arbiter of the meaning of its own constitution. They are virtually unoverturnable on the meaning of their own constitution. They are very overturnable by federal courts on the meaning of the federal constitution. Cabining the decision to the meaning of its own state constitution when the controversy was assuredly going to the Supreme Court anyway is hardly surprising given that context. Everyone knew this was going to federal court regardless of which side won.

Two questions:

1. Have you actually read the opinion?

2. Have you thought about what I'm telling you at all in light of how the opinion is actually textually structured (i.e. page 54-108 are titled "Findings of Fact" while pages 109-134 are titled "Conclusions of Law")?

 

[Hopper]

I've given you several reasons why your argument is surely wrong in this instance.

Kicky:

1. I said an argument could be made, I didn't try to give a conclusive, irrebutable resolution of that argument, as you have. Maybe you should apply for a Justice position on the U.S. Supreme Court, eh?

2. Wiki says that a court does not have jurisdiction to decide a case where there is no actual controversy. You say: "Even if you were correct, the defendants in this action didn't litigate standing at the trial level so they have waived it as a defense for appellate purposes." I don't believe questions of lack of jurisdiction can ever be "waived" however. Any such rulin is void ab initio, aint it?

3. You say: "Two experts testifed on behalf of the defense side even though the state chose not to participate." Experts in what? Did they offer opinion testimony, or "factual" testimony?

4. Do you care to respond to other comments I have made about your unqualified claims that "factual" findings cannot be challenged on appeal?

 

[Scat]

This is just a short summary of a study performed in Denmark regarding the causes of homosexuality. Nothing conclusive but interesting.

Homosexuality Influenced by Childhood Family Situation
Linda Ames Nicolosi

A major study is about to be published in the prestigious peer-reviewed journal, Archives of Sexual Behavior, which provides striking new evidence for the influence of childhood family factors on sexual-orientation development.

The study used a population-based sample of 2,000,355 native-born Danes between the ages of 18 and 49. Denmark - a country noted for its tolerance of a wide variety of alternative lifestyles, including homosexual partnerships, and the first country to legalize gay marriage.

With access to the "virtually complete registry coverage of the entire Danish population," the study sample therefore lacked the problematic selection bias that has plagued many previous studies on sexual orientation.

Parental Influences on Sexual Orientation Development

The authors conclude: "Our study provides population-based, prospective evidence that childhood family experiences are important determinants of heterosexual and homosexual marriage decisions in adulthood."

Assuming that people who marry heterosexually are almost always heterosexual - especially in a country where homosexuality carries little stigma, and gay marriage is legal - and people who marry homosexually can be presumed to be homosexual, the study's findings offer intriguing evidence about family factors separating homosexual from heterosexual persons.

The following are findings from this new data:

-Men who marry homosexually are more likely to have been raised in a family with unstable parental relationships - particularly, absent or unknown fathers and divorced parents.

-Findings on women who marry homosexually were less pronounced, but were still associated with a childhood marked by a broken family. The rates of same-sex marriage "were elevated among women who experienced maternal death during adolescence, women with short duration of parental marriage, and women with long duration of mother-absent cohabitation with father."

-Men and women with "unknown fathers" were significantly less likely to marry a person of the opposite sex than were their peers with known fathers.

-Men who experienced parental death during childhood or adolescence "had significantly lower heterosexual marriage rates than peers whose parents were both alive on their 18th birthday. The younger the age of the father's death, the lower was the likelihood of heterosexual marriage."

-"The shorter the duration of parental marriage, the higher was the likelihood of homosexual marriage...homosexual marriage rates were 36% and 26% higher among men and women, respectively, who experienced parental divorce after less than six years of marriage, than among peers whose parents remained married for all 18 years of childhood and adolescence."

-"Men whose parents divorced before their 6th birthday were 39% more likely to marry homosexually than peers from intact parental marriages."

-"Men whose cohabitation with both parents ended before age 18 years had significantly (55% -76%) higher rates of homosexual marriage than men who cohabited with both parents until 18 years."

-The mother's age was directly linked to the likelihood of homosexual marriage among men - the older the mother, the more likely her son was to marry another man. Also, "only children" were more likely to be homosexual.

-Persons born in large cities were significantly more likely to marry a same-sex partner - suggesting that cultural factors might also affect the development of sexual orientation.

"Whatever ingredients determine a person's sexual preferences and marital choices," conclude the study's authors, "our population-based study shows that parental interactions are important."

("Childhood Family Correlates of Heterosexual and Homosexual Marriages: A National Cohort Study of Two Million Danes," by Morten Frisch and Anders Hviid, Archives of Sexual Behavior Oct 13, 2006; [E-publication ahead of print])

For what it's worth...

 

[Hopper]

In particular, the court determined that the voters had effectively voted to create an exception to the state's equal protection clause on the specific subject of homosexual marriage.

Yeah, the issue has been raised about whether this is really a political issue or a legal one. Mixed in have been a bunch of opinions about what is "right." To quote the California Supreme Court in an excerpt from the opinion in the Strauss case:

"[O]ur task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

Two questions:

1. Have you actually read the opinion?

2. Have you thought about what I'm telling you at all in light of how the opinion is actually textually structured (i.e. page 54-108 are titled "Findings of Fact" while pages 109-134 are titled "Conclusions of Law")?

No, I haven't, and I have no current intention of readin 136 pages about this.

 

[sirkickyass]

Kicky: I don't believe questions of lack of jurisdiction can ever be "waived" however. Any such rulin is void ab initio, aint it?

Depends on the type of jurisdiction, but in this instance you are wrong.

You can't waive subject matter jurisdiction. That can be raised independently by the court all the way up to the Supreme Court level.

You can waive personal jurisdiction (and do automatically if it's not the first thing you contest), venue, and standing. Sometimes defendants strategically waive this requirements.

3. You say: "Two experts testifed on behalf of the defense side even though the state chose not to participate." Experts in what? Did they offer opinion testimony, or "factual" testimony?

Read the opinion. The answer is obvious.

4. Do you care to respond to other comments I have made about your unqualified claims that "factual" findings cannot be challenged on appeal?

I'm a lawyer, you're going to law school on wikipedia. I don't feel particularly threatened when you characterize my claims as "unqualified." Anyone that wants to do the legwork can.

I'll direct anyone who wants a broad view of why the opinion is structured the way it is and why it is more difficult to overturn than a straight law finding to this NYTimes article on the issue: https://www.nytimes.com/2010/08/06/us/06assess.html?_r=1&src=twt&twt=nytimes

I consider the matter closed here.

 

[sirkickyass]

No, I haven't, and I have no current intention of readin 136 pages about this.

In other words, you're bringing a knife to a gunfight.

 

[Hopper]

This is just a short summary of a study performed in Denmark regarding the causes of homosexuality. Nothing conclusive but interesting. [quotation of study omitted] For what it's worth...

Very interestin, Marcus. Just curious--would you (or you, Kicky) consider the conclusions in that report to be ones of "fact" or of "opinion?" I wonder if this study was "presented as evidence" in this recent prop 8 case, eh?

 

[sirkickyass]

I wonder if this study was "presented as evidence" in this recent prop 8 case, eh?

If you read the opinion you'd know.

Of course, if you'd read the opinion you'd also know that the causes of homosexuality weren't in issue at the case.

If you had the most basic understanding of the federal court system, you'd know that we're talking about legal conclusions vs. factual findings rather than facts vs. opinions.

Then again, you wouldn't be aint if all those things were true.

Sho'nuff.

 

[Hopper]

I'm a lawyer, you're going to law school on wikipedia. I don't feel particularly threatened when you characterize my claims as "unqualified." Anyone that wants to do the legwork can.

I consider the matter closed here.

Kicky, by unqualified I simply meant just that. You presented your claims as ABSOLUTE and UNQUALIFIED. This fallacious "IMMA BOTTOM-FEEDER, DAMMIT" argument from authority aint gunna fly except with those too weak to see through it. You can respond to the substance, or not. It wouldn't surprise me if you refuse to do so, but don't pretend that you have by asserting your supposed dispostitive expertise, eh?

You can consider the "matter closed" all you want. You always do as soon as you pronounce the answer (as you see it). Weak, sorry.

 

[Hopper]

In other words, you're bringing a knife to a gunfight.

Oh, and your're the big-*** gunfighter, eh, Kicky? None of the questions I've raised are intended to start a "fight," and few, if any, of them are dependent on what this one judge says in his personal opinion.

I wonder if you'll ever get over yourself, eh?

 

[sirkickyass]

Kicky, by unqualified I simply meant just that. You presented your claims as ABSOLUTE and UNQUALIFIED. This fallacious "IMMA BOTTOM-FEEDER, DAMMIT" argument from authority aint gunna fly except with those too weak to see through it. You can respond to the substance, or not. It wouldn't surprise me if you refuse to do so, but don't pretend that you have by asserting your supposed dispostitive expertise, eh?

You can consider the "matter closed" all you want. You always do as soon as you pronounce the answer (as you see it). Weak, sorry.

I would hardly say the statement was "unqualified" given that a) I've framed it as "harder to overrule" rather than "impossible to overrule" and b) provided in one post a variety of ways that the court conclude the other way.

I've also provided you a link to an article with quotes from a professor explaining the standard in this instance for challenging the fact findings as "obviously erroneous."

You have provided no substance that's responsive and have demonstrated repeatedly in a variety of threads that you know almost less than nothing about the law and legal procedures, including making blanket statements in this very thread like that jurisdictional issues can "never" (i.e. absolutely and without qualification) be waived.

You've given no evidence that any appeal would be "de novo" which is that basis upon which an appeal would have to undertaken in order to allow a "re-do" on all factual findings. You've not even claimed that defendants would be entitled to a de novo appeal.

At a certain point, you have to pay for legal education or I have to start billing you. As is, you're wasting my time arguing about an opinion that you haven't even read or apparently even looked at the table of contents because even that would have answered some of your questions.

 

[Hopper]

Kicky, by unqualified I simply meant just that. You presented your claims as ABSOLUTE and UNQUALIFIED. This fallacious "IMMA BOTTOM-FEEDER, DAMMIT" argument from authority aint gunna fly except with those too weak to see through it. You can respond to the substance, or not. It wouldn't surprise me if you refuse to do so, but don't pretend that you have by asserting your supposed dispostitive expertise, eh?

In particular, do you have any (substantive) response to this post?:

Factual testimony was the bulk of the hearing and that's what can't be challenged...if a reviewing court looks at the case they are stuck with the factual finding...

"You state this as an absolute, Kicky, but it aint, and you should know that. Are you just trying to fool someone into accepting the erroneous claim you make, that it?

If the judge had found as a supposed "fact" that "the moon is made of green cheese," the higher courts would by no means be "stuck with" a finding that "can't be challenged."

Furthermore, callin sumthin a "factual" findin don't make it one. If I find, as a "fact," that Ginger is more hotter than Mary Ann, it's still just a matter of opinion, know what I'm sayin?

 

[sirkickyass]

Oh, and your're the big-*** gunfighter, eh, Kicky? None of the questions I've raised are intended to start a "fight," and few, if any, of them are dependent on what this one judge says in his personal opinion.

I wonder if you'll ever get over yourself, eh?

Well I guess no one will ever accuse you of having a high level of film knowledge given you missed that one entirely.

 

[Hopper]

I would hardly say the statement was "unqualified" given that a) I've framed it as "harder to overrule" rather than "impossible to overrule"

No, that is NOT the way you presented it in the posts of yours which I've quoted.

I've also provided you a link to an article with quotes from a professor explaining the standard in this instance for challenging the fact findings as "obviously erroneous."

A quote from the article you cited, eh?:

"Even some of those who applauded the opinion, however, said the path ahead for it was not clear or easy. Doug NeJaime, an associate professor at Loyola Law School, Los Angeles, said that while he considered Judge Walker’s ruling “a great opinion,” he was skeptical that the strategy behind it would survive through the federal courts. Despite Judge Walker’s efforts to set a factual foundation and the traditions of deference, Mr. NeJaime said, the Supreme Court is not completely constrained by lower court findings of fact." We’ve seen time and time again that the Supreme Court can do whatever it wants” with the factual record, and “I don’t see five justices on the Supreme Court taking Judge Walker’s findings of fact to the place that he takes them.”

The "likely" conclusion, about what even the "liberal judges" are likely to do?:

Ultimately, Professor NeJaime said, even the four more liberal justices on the Court might shy away from a sweeping decision that could overturn same-sex marriage bans across the country. “The Supreme Court rarely likes to get too far ahead of things,” he said.

That's completely consistent with all I've really said on this topic, yet you pretend to have completely annhilated my observations based upon your claimed "legal expertise," eh, Kicky?

 

[sirkickyass]

No, that is NOT the way you presented in the posts of yours which I've quoted.

Your statement that I have never presented qualification is incorrect. In the original post I did not claim the decision was impossible to overrule either, merely that it was more difficult while giving the reason why it was more difficult than it otherwise would be.

Examples:

https://jazzfanz.com/showthread.php/1626-So-gay!!!?p=40533&viewfull=1#post40533

https://jazzfanz.com/showthread.php/1626-So-gay!!!?p=40511&viewfull=1#post40511

https://jazzfanz.com/showthread.php/1626-So-gay!!!?p=39557&viewfull=1#post39557 (this is the original post on this issue: note the use of words and phrases like "usually," "generally," "in that sense," etc. )

A quote from the article you cited

That is not inconsistent with my description of how the court could frame legal conclusions as factual ones, etc etc. The higher up portion of the article, which you have completely chosen to ignore, states the argument clearly and then provides the hedge, in the form of your quote below, that the court is unpredictable.

I don't know what your beef is, but this is yet another example of you losing every issue and making a semantic argument about a single ancillary issue in order to keep the debate alive, while everything you lose goes by the wayside (I'll note you've completely dropped your standing objections for example and now seem to be pretending they never happened.) This is one of many reasons you have the lowest reputation on the board. I frankly have better things to do.

Post less and please delete your account.

 

[Darkwing Duck]

Post less and please delete your account.

Well, if he did one of those things, the other would come as a (bonus?) side effect.

 

[Hopper]

(I'll note you've completely dropped your standing objections for example and now seem to be pretending they never happened.)

Post less and please delete your account.

Wrong on all counts.

1. To begin with, I NEVER raised any "standing" issues, notwithstanding the fact that you tried to pretend I did.

2. Likewise, I NEVER raised any issues of "personal jurisdiction," even though you tried to pretend I did.

The issues I raised pertained to SUBJECT MATTER (not personal) jurisdiction based upon the "cases and controversies" clause of the constitution and subsquent interpretations of that clause. A court has NO JURISDICTION to "decide" cases where there is no actual controversy and this is not a problem that a plaintiff can waive by not objecting to "standing" or lack of subject matter jurisdiction, as you claimed. "Standing" doesn't have a damn thing to do with it, as you would know if you had any kinda competence in law, I spoze.

Since you don't seem to know the difference between issues of standing and subject matter jurisdiction, let me help you out a little. I can't sue you for hitting a friend of mine because I didn't like it. I have no "standing" to sue you for that. My friend does, but I don't.

If a justice of the peace is NOT authorized to adjudicate matters involving felonies, any attempt he makes to do so will be void from the outset, with or without any objection from the parties in front of him about his lack of jurisdiction.

Two totally separate concepts.

 

[Hopper]

That is not inconsistent with my description of how the court could frame legal conclusions as factual ones, etc etc.

Nor does it acknowledge, let alone address, my prior observation than an attempt to "frame" legal conclusions as "factual ones" is merely an exercise in sophistry which is in no way binding upon appellate courts.

 

[moevillini]

This is just a short summary of a study performed in Denmark regarding the causes of homosexuality. Nothing conclusive but interesting.

Homosexuality Influenced by Childhood Family Situation
Linda Ames Nicolosi

A major study is about to be published in the prestigious peer-reviewed journal, Archives of Sexual Behavior, which provides striking new evidence for the influence of childhood family factors on sexual-orientation development.

The study used a population-based sample of 2,000,355 native-born Danes between the ages of 18 and 49. Denmark - a country noted for its tolerance of a wide variety of alternative lifestyles, including homosexual partnerships, and the first country to legalize gay marriage.

With access to the "virtually complete registry coverage of the entire Danish population," the study sample therefore lacked the problematic selection bias that has plagued many previous studies on sexual orientation.

Parental Influences on Sexual Orientation Development

The authors conclude: "Our study provides population-based, prospective evidence that childhood family experiences are important determinants of heterosexual and homosexual marriage decisions in adulthood."

Assuming that people who marry heterosexually are almost always heterosexual - especially in a country where homosexuality carries little stigma, and gay marriage is legal - and people who marry homosexually can be presumed to be homosexual, the study's findings offer intriguing evidence about family factors separating homosexual from heterosexual persons.

The following are findings from this new data:

-Men who marry homosexually are more likely to have been raised in a family with unstable parental relationships - particularly, absent or unknown fathers and divorced parents.

-Findings on women who marry homosexually were less pronounced, but were still associated with a childhood marked by a broken family. The rates of same-sex marriage "were elevated among women who experienced maternal death during adolescence, women with short duration of parental marriage, and women with long duration of mother-absent cohabitation with father."

-Men and women with "unknown fathers" were significantly less likely to marry a person of the opposite sex than were their peers with known fathers.

-Men who experienced parental death during childhood or adolescence "had significantly lower heterosexual marriage rates than peers whose parents were both alive on their 18th birthday. The younger the age of the father's death, the lower was the likelihood of heterosexual marriage."

-"The shorter the duration of parental marriage, the higher was the likelihood of homosexual marriage...homosexual marriage rates were 36% and 26% higher among men and women, respectively, who experienced parental divorce after less than six years of marriage, than among peers whose parents remained married for all 18 years of childhood and adolescence."

-"Men whose parents divorced before their 6th birthday were 39% more likely to marry homosexually than peers from intact parental marriages."

-"Men whose cohabitation with both parents ended before age 18 years had significantly (55% -76%) higher rates of homosexual marriage than men who cohabited with both parents until 18 years."

-The mother's age was directly linked to the likelihood of homosexual marriage among men - the older the mother, the more likely her son was to marry another man. Also, "only children" were more likely to be homosexual.

-Persons born in large cities were significantly more likely to marry a same-sex partner - suggesting that cultural factors might also affect the development of sexual orientation.

"Whatever ingredients determine a person's sexual preferences and marital choices," conclude the study's authors, "our population-based study shows that parental interactions are important."

("Childhood Family Correlates of Heterosexual and Homosexual Marriages: A National Cohort Study of Two Million Danes," by Morten Frisch and Anders Hviid, Archives of Sexual Behavior Oct 13, 2006; [E-publication ahead of print])

For what it's worth...

So, in other words, heterosexuality is a LEARNED behavior. Children who grow up in environments where they lack the opportunity to learn those relationships, have a greater tendency to fall back on natural, biological urges and therefore may lean more towards homosexuality.

 

[sirkickyass]

The issues I raised pertained to SUBJECT MATTER (not personal) jurisdiction based upon the "cases and controversies" clause of the constitution and subsquent interpretations of that clause. A court has NO JURISDICTION to "decide" cases where there is no actual controversy and this is not a problem that a plaintiff can waive by not objecting to "standing" or lack of subject matter jurisdiction, as you claimed. "Standing" doesn't have a damn thing to do with it, as you would know if you had any kinda competence in law, I spoze.

Aint, this whole line of argument is embarassing for you and displays that you don't have a damn idea what you're talking about.

You say that standing and the "case or controversy clause" are entirely unrelated. Even the wikipedia article on the case and controversy clause states:

The Court and legal scholars commonly refer to the issue of whether a "case or controversy" exists as the concept of standing.

You're completely whiffing on the basics.

When you make a "case or controversy" claim, you're stating an objection as to the plaintiff's standing. That is different than subject matter jurisdiction.

I've given you multiple reasons in a post above why the requirements for standing have been met with explicit delineations between this case and a case you cited without reading. You've advanced not a single answer.

Standing, and a number of other jurisdictional issues, are waivable (in some instances, including this one. A defendant couldn't waive "mootness" as a standing objection for instance.)

Subject matter jurisdiction is not waivable.

You have not raised an argument regarding subject matter jurisdiction to the case at hand, nor could one raise an SMJ claim by citing the case or controversy portion of the constitution.

Aint, I wouldn't come into your place of business (if you have one) and pretend to know more about your profession than you do, particularly if my two sources of information were wikipedia and my own ***. Please extend the same courtesy.

In the alternative, delete your account.