Over at NRO, Ed Whelan has been following some bizarre manuevering by the federal district court judge in the Northern District of California who apparently is trying to have a televised “show trial” regarding Proposition 8.
Without getting into the merits of Proposition 8 or the legal challenges to it, I agree with Whelan that it seems highly unusual for a judge to authorize televised proceedings for this particular case as part of some new “pilot” project to see how televised proceedings work. Surely if there were going to be a test run of a new idea, it should be in a more run-of-the-mill case rather than this particular highly controversial one. Moreover, it does appear that public comment process has been completely short-circuited.
irksome1 says:
It is, perhaps, a bit of a stretch to make such changes to the rules under the guise of “immediate need,” but I can’t see much more wrong with it than that. Wouldn’t televising controversial subject matter first be a more fitting test for the way such a thing would work? People would be more likely to watch controversial subject matter, rather than some dry, procedural trial. Of course, I can see how short-circuiting the public comment process detracts from the utility of this approach.
January 6, 2010, 11:00 amarthur says:
This isn’t a “show trial” (“‘show trial’”?). It’s a trial. The only cases worth televising are the ones where people would watch, so it’s hardly surprising that a controversial case would be televised instead of a run-of-the-mill proceeding. Tis one will have excellent lawyers, important issues, and no jury, making it an excellent candidate for television.
Also, televising a trial in the United States is very far from a new idea.
January 6, 2010, 11:01 amFreedom!!!!!!!!!!! says:
A homosexual judge should never have been assigned this case. He should have removed himself from the case due to his obvious bias and conflict of interest.
There is already controlling precedent on this issue that this activist is bound to follow. We all know that he won’t though. Homosexuals think that they are above the law. It will be interesting to see how he contorts himself to try to get around it.
January 6, 2010, 11:03 amFreedom!!!!!!!!!!! says:
Sorry, but a homosexual judge presiding over a case in which he has all but declared how he is going to rule (before hearing a single argument) is a show trial.
January 6, 2010, 11:04 amHans says:
I agree with Professor Cassell. I opposed Proposition 8, including in comments at this very blog.
But Judge Vaughn Walker’s handling of this case has been a travesty. He has pandered to local public opinion (where Prop. 8 was unpopular, despite passing statewide) at every step.
In any event, lower court judges are bound to follow Supreme Court precedent until the Supreme Court overrules that precedent. The Supreme Court has upheld against a federal constitutional challenge a state’s refusal to allow gay people to marry. Baker v. Nelson, 409 U.S. 810 (1972). California has done far less than what the Supreme Court held was permissible in Baker, by allowing gay people to marry in all but name (civil unions).
As the Supreme Court observed in RODRIGUEZ DE QUIJAS v. SHEARSON/AM. EXP., 490 U.S. 477, 485 (1989), “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Moreover, the Supreme Court has not even rejected the rational-basis review that applied to sexual-orientation classifications at the time of Baker, meaning that there is even less reason for a lower court judge to ignore its decision in Baker. Baker v. Nelson controls, and the plaintiffs’ challenge should be dismissed.
January 6, 2010, 11:05 amFreedom!!!!!!!!!!! says:
Hans is right. Even though we disagree on Prop 8, at least Hans is intellectually honest. Baker is controlling. Walker has no choice but to dismiss the case if he follows the law. He won’t though. He’s willing to throw the rule of law out the window to satisfy his bias.
January 6, 2010, 11:07 amAndrew says:
I agree with Cassell and Whelan, and support Proposition 8 too. However, the first comment above by Freedom!!!!!!!!!!! is uncivil and should be deleted. Calling homosexuals vermin is not civil, and that kind of language should not be acceptable at this blog. If Judge Walker’s orientation is public knowledge, then that information might be tangentially interesting here in this thread, but it certainly should not disqualify him from deciding this case. What should disqualify him are his illegal and/or unethical antics (as described by Whelan).
January 6, 2010, 11:07 amSmooth, like a Rhapsody says:
Is Walker’s wikipedia entry accurate? Law and Econ type; nominated by GHW Bush; repped the USOC in their fight to preclude the use of the term “Gay Olympics”?
January 6, 2010, 11:14 amFreedom!!!!!!!!!!! says:
I refer to anyone who commits illegal and/or unethical antics as vermin, whether they are homosexual or not.
January 6, 2010, 11:15 amChris Travers says:
Actually I think this is almost the perfect area to have a trial run (pun intended) of cameras in the court room. One thing that is missing in this case is a party to the case which may have any interest in keeping cameras out.
January 6, 2010, 11:15 amarthur says:
For the record, the article linked by Freedom!!!! does not state that Walker is actually homosexual, or that anyone, even the anonymous sources, said he was homosexual. (opinion on the issue among his former law partners is reportedly divided and uncertain) The article does say he is unmarried. And a good thing, because a married judge would surely be disqualified from ruling on a case involving the right to marry. . . .
January 6, 2010, 11:16 amFreedom!!!!!!!!!!! says:
That was back when he was an attorney, as in when he was getting paid to take a certain position. Lawyers represent people that they disagree with all the time (for money.) That has nothing to do with the fact that he is claimed by many homosexual activists to be a homosexual himself, and has carried his biases with him on the bench.
January 6, 2010, 11:17 amFreedom!!!!!!!!!!! says:
A judge who is openly hostile to one side of a case, who has all but declared their ruling ahead of time, who has openly interfered with Appellate Orders, who has short-circuited the public comment process, and who has re-written rules because they want to televise their open contempt for the CONTROLLING law, should be disqualified, regardless of their sexual behavior choices.
January 6, 2010, 11:22 amU.Va. Grad says:
So, to be clear, Freedom!!!!!, you’re saying there’s about as much evidence that Judge Walker’s a homosexual as there is that President Obama is a secret Muslim.
January 6, 2010, 11:24 amFreedom!!!!!!!!!!! says:
Wrong. Many homosexual blogs are openly bragging about it. I merely posted one link for brevity’s sake. (Not to mention, many homosexual blogs have banner ads that aren’t work safe.)
People who know Walker personally are all crowing that the fix is in. His antics verify those comments.
January 6, 2010, 11:28 amFreedom!!!!!!!!!!! says:
The fact is, Baker v. Nelson is controlling whether Walker likes it or not. It appears as if he is willing to completely disregard controlling precedent because his homosexual proclivities take precedence over the rule of law.
He is willing to tell more than 13,000,000 Californians that their voice doesn’t matter. That he is “wiser” than they.
January 6, 2010, 11:30 amFreedom!!!!!!!!!!! says:
Here is more on the pathetic circus antics of this out of control maniac “judge.”
January 6, 2010, 11:38 amSteve P. says:
This thread is off to a promising start.
January 6, 2010, 11:41 amVisitor Again says:
I can’t think of a better case to televise. The public has huge interest in this one.
If Judge Walker has behaved in a biased way on the bench, then one of the parties should move to disqualify him from sitting on the case. That he may be a homosexual is hardly reason to disqualify him, though. If it were, then black judges would be disqualified from sitting on civil rights cases involving black plaintiffs merely because of their race.
If Judge Walker is wrong in holding that prior Supreme Court precedent is not controlling here and does not require dismissal of the case, then that is available as a ground of appeal. That’s the usual way judicial errors are corrected.
And if a disgruntled party does not want to wait for an appeal, then extraordinary relief by a writ of mandamus might be available.
Those are the avenues open to all disenchanted litigants. I don’t see why they should not be sufficient to satisfy disgruntled litigants in this case.
I see no reason for the disgraceful vitriol leveled at Judge Walker in the comments above. I think they reflect a frantic fear that an evidentiary hearing will expose in full public view the weakness of the pro-Proposition 8 position on the merits.
I’m looking forward to watching the hearing. The public will likely take great interest in it, too.
January 6, 2010, 11:41 amCan't find a good name says:
I notice that the proposition is called 8 over here, and 13 at the linked National Review blog.
January 6, 2010, 11:43 amFreedom!!!!!!!!!!! says:
As others have pointed out, “The constitutionality of Proposition 8 is not really a matter for a trial of fact. It’s a question of law. But Judge Walker ordered one anyway. Why? Ordinarily a trial judge’s rulings of fact cannot be questioned by higher courts. So the more of his opinions that Judge Walker can stuff into the box of “trial of fact” instead of “review of law,” the more power he will have over this historic case.”
January 6, 2010, 11:44 amSteve P. says:
Freedom!!! (ironic!) is the author of 11 of the 22 currently posted comments. That’s usually indicative of someone who isn’t, you know, rabid.
I also love how the best evidence that Judge Walker is gay is that he set of some random guy’s “gaydar”. Vermin, indeed.
January 6, 2010, 11:54 amFreedom!!!!!!!!!!! says:
People who worked for Walker admit that he is a homosexual.
I only posted one link. Walker’s homosexuality is openly bragged about by homosexualists all over the web.
I find it rather amusing that the very people who would accuse me of focusing on walker’s homosexuality, are doing the exact same thing. Ignoring the fact that a matter of law shouldn’t be on “trial” anyway, and the other illegal and unethical antics that this “judge” has enaged in.
January 6, 2010, 12:01 pmfirst history says:
Expediting a rule for televising a trial does not make it a “kangaroo court.” Per Wikipeida:
Judge Walker’s ruling on disclosure of campaign materials was properly overturned by the Court of Appeals, the proper forum for disagreements with rulings, and no one has been denied the right to appeal. (And no kangaroos have been involved.)
Like most open government advocates, I favor televising of judicial proceedings. As related in the NRO column, “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.”
Fear of embarrassment or intimidation should not prevent the televising of these proceedings. If a witness is threatened before or after testimony, prosecute the intimidator. Put up a “blue dot” on the screen to hide their faces. There are many less restrictive means to protect truly threatened witnesses than banning cameras.
And in any event, even if there are no television cameras, their names will be part of the trial record and therefore available to the public.
January 6, 2010, 12:33 pmzuch says:
Can we request that “Freedom!!!!!!!!!!!” be admonished to at least desist from posting half the comments in the thread, if not banned?
Thanks in advance,
January 6, 2010, 12:42 pmKen Arromdee says:
It’s easy to intimidate someone in ways that can’t be prosecuted. Who are you going to prosecute when people keep calling you at 3 AM or throw rocks through your window?
January 6, 2010, 12:43 pmfirst history says:
It’s easy to intimidate someone in ways that can’t be prosecuted. Who are you going to prosecute when people keep calling you at 3 AM or throw rocks through your window?
Telephone calls can be traced and cameras or police can catch vandalism. There is no way to completely avoid harrassment or intimidation unless trials are conducted in secret. Is that what you are suggesting?
January 6, 2010, 12:52 pmfirst history says:
People who worked for Walker admit that he is a homosexual.
Not that there is anything wrong with that. :-)
January 6, 2010, 12:54 pmDilan Esper says:
worst comments thread ever.
1. the word is ‘gay’. seriously, not being able to say it correlates pretty precisely with bigotry.
2. there’s nothing at all wrong with televising the trial. indeed, one of the big problems with the gay marriage debaate is that anti-gay mariage types are often making outlandish claims about the alleged threat that gays pose. sunlight is the best disinfectant.
3. walker’s alleged sexual orientation is both his own business and irrelevant to this case. the same logic would say that a white judge could not hear a challenge to affirmative action or a female judge could not hear a gender discrimination claim.
4. the only thing encouraging in this discussion is that some gay marriage opponents are distancing themselves from the gay-baiting of judge walker. but the fact remains, a lot of folks in this country still believe that there’s a state interest in discouraging homosexuality, and this is scary.
January 6, 2010, 12:55 pmMark Field says:
As would white judges.
January 6, 2010, 1:10 pmLN says:
the same logic would say that a white judge could not hear a challenge to affirmative action or a female judge could not hear a gender discrimination claim.
The only “logic” here is that conservative white heterosexual men are neutral and unbiased, while everyone else is inherently suspect and deviant.
January 6, 2010, 1:14 pmzuch says:
The people who commit these acts? Who were you suspecting?
This is not a new problem, you know.
Cheers,
January 6, 2010, 1:15 pmDon de Drain says:
I have not followed the goings on in Walker’s courtroom very closely. If he has taken actions which would leave an objective observer that he has a certain viewpoint which favors one side over the other, I would be SHOCKED! I have NEVER seen a judge do this in many years of handling cases in various courts. (cough, cough)
Judges have lots of discretion in how they handle their cases. They make lots of people unhappy (including me and some of my clients) on a frequent basis. (That’s why we give them lifetime tenure.) That is no reason to show disrespect to them. If they step over the line, there are remedies available, as pointed out by others.
With respect to televising the proceedings in the Prop 8 case, if the Judge is acting inappropriately, what better way to capture it than on television/video? More to the point, the case is of high public interest. Why would the Court want to televise a “run of the mill” case first? So that people can snooze their way through a boring tax case like my last trial or an even more boring securities law or patent law trial? What better way to educate the public about the what happens in federal courts than to televise court proceedings that are of interest to lots of people?
I do think that televising criminal jury trials poses different issues than televising civil bench trials. And watching Judge Ito abdicate control of his courtroom in OJ’s trial was painful to me. But the public certainly did learn quite a bit about court proceedings from watching OJ’s criminal trial.
Regardless of one’s views on the merits on the Prop 8 trial, or of one’s views on the Judge’s conduct, televising the proceedings will help educate society about the goings on in federal courts. I see that as a good thing.
January 6, 2010, 1:29 pmSk says:
OJ was over ten years ago. Show trials are already a part of our culture. That horse has been out of the barn for a long long time.
Sk
January 6, 2010, 2:09 pmDoug InSanDiego says:
1. For anyone to say, “Walker’s sexual orientation is not relevant” is the most absurd thing I have ever heard. How ridiculous ARE you; how STUPID do you think others are?
2. The militant, antisocial and hateful actions of the Gay Gestapo have grown way past wearisome. I was appalled when the names of contributors to Prop 8 were posted online by the Gestapo, melded to Google maps so any activist could type in a zip code and see the names/addresses of “the enemy” – with the clear message, “GO GET ‘EM!” THIS I will never forget.
3. For anyone to complain another has “posted too many comments here and should be censored” is a disgraceful insight into the complainer’s bigoted mind. You think only YOUR side should be allowed to speak? You think YOU are the arbiter of how much free speech another should be permitted? DISGUSTING, you are!
4. There is little doubt Walker will spit on the law he is supposed to uphold. There is little doubt he will spit on the citizens of the state. There is little doubt he is biased. There also is little doubt he will be overturned. So, then, what is the point? That much IS clear: Walker offers yet another bully pulpit for the homosexual community to proselytize about their ‘rights’, ‘demands’, and about the evil of anyone who opposes them. I, for one, have had quite enough of that.
January 6, 2010, 2:11 pmptt says:
As a dedicated homosexualist (a step up from “practicing homosexual”???), I think Freedom’s posts should remain in all their glory. His is hardly a rare bias and is, in fact, one of the primary reasons the pro-Prop-8 folks don’t want this trial televised. Many of the witnesses will be just like Freedom.
January 6, 2010, 2:15 pmDavid Nieporent says:
Or, at least, if not banned entirely, banned from posting really stupid and dishonest comments, like this one?
For those of you who were scared to check out the link, a slightly more accurate title would have been: “One anonymous person who claimed to work for Walker said that he didn’t get a sense that Walker was gay, but an unnamed friend of his who also supposedly worked for Walker was ‘adamant’ that he was, even though Walker never said anything to that effect, and a second anonymous person said that it was ‘well known around SF’ that he’s gay.”
January 6, 2010, 2:20 pmKen Arromdee says:
How are you going to do that? The police are not legally required to protect any particular person, and probably won’t be standing by your house all hours watching to see who’s throwing rocks. And good luck tracing a five second phone call.
Besides, there are plenty of other methods of harassment. Minor methods of harassment can add up, and can occasionally produce major results even on their own, and the police and legal system are probably not going to bother investigating or prosecuting them, if they even can. Nobody’s going to prosecute anyone for filling out a false magazine subscription in your name.
January 6, 2010, 2:22 pmFreedom!!!!!!!!!!!! says:
“Tolerance.”
January 6, 2010, 2:25 pmzuch says:
Ahhhhh. So anyone who is teh gay is a card-carrying member of the notorious and perfidious Gay Gestapo?
May I turn your questions on yourself: “How ridiculous ARE you; how STUPID do you think others are?”
Cheers,
January 6, 2010, 2:28 pmKen Arromdee says:
The problem’s not really that it’s a high interest case, the problem is that it’s a case where harassment is an issue. I’m sure there are plenty of cases that aren’t run of the mill yet where nobody worries about harassment.
January 6, 2010, 2:29 pmFreedom!!!!!!!!!!!! says:
gay
GAY, a.
1. Merry; airy; jovial; sportive; frolicksome. It denotes more life and animation than cheerful.
Belinda smiled, and all the world was gay.
2. Fine; showy; as a gay dress.
3. Inflamed or merry with liquor; intoxicated; a vulgar use of the word in America.
GAY, n. An ornament. [Not used.]
Demonstrably false. There is no reason for a trial in the first place. The Constitutionality of Prop 8 is a matter of law. Walker is merely trying to muck around with the facts so he can stack the deck in favor of the homosexualists when the case is inevitably appealed.
And, Walker is bound by Baker v. Nelson, even if he doesn’t want to admit it.
Wrong.
1. Race is not a behavior choice.
2. Walker is clearly letting his particular behavior choice influence his thinking and it is affecting his ability to preside over the case.
Why won’t you acknowledge that the actions that this judge has taken would lead a reasonable observer to question his impartiality.
January 6, 2010, 2:30 pmzuch says:
You forgot to add: “I wish they’d stop shoving it down my throat <*wink,wink*>”
Cheers,
January 6, 2010, 2:31 pmFreedom!!!!!!!!!!!! says:
gay
GAY, a.
1. Merry; airy; jovial; sportive; frolicksome. It denotes more life and animation than cheerful.
Belinda smiled, and all the world was gay.
2. Fine; showy; as a gay dress.
3. Inflamed or merry with liquor; intoxicated; a vulgar use of the word in America.
GAY, n. An ornament. [Not used.]
You might want to do some more self-examination before you pose those questions.
January 6, 2010, 2:31 pmzuch says:
The same way they track down other criminals that don’t bother to volunteer to come forth and admit their crimes. As I said, this is not a new problem.
I suspect you’re ignorant of the technology.
Cheers,
January 6, 2010, 2:34 pmzuch says:
Care to explain that to, ummm, let’s say, blacks? … or, to pick another example, gays….
Cheers,
January 6, 2010, 2:37 pmCato The Elder says:
Freedom!!!!!! reminds me of a couple of distasteful “Beating Heart” anti-abortion billboards I passed by on the highway as I made my way back home from vacation — how can you possibly think you are appealing here with such an uncouth manner?
January 6, 2010, 2:38 pmptt says:
Hey, it works in Uganda. Can’t blame ‘em for trying it here…
January 6, 2010, 2:46 pmDoug InSanDiego says:
Zuch: Ahhhhh. So anyone who is teh gay is a card-carrying member of the notorious and perfidious Gay Gestapo?
I’ll take your word for that. Of course, I didn’t nor would i say that, but inasmuch as you are the expert, I’ll assume you are correct.
Idiot radar is setting off bongs from here to the moon.
January 6, 2010, 2:47 pmDoug InSanDiego says:
Zuch: “Care to explain that to, ummm, let’s say, blacks? …”
Zuch – if you would so like to be black, you should have ‘gone black. Oh – wait – you can’t DO that.
January 6, 2010, 2:49 pmCrazyTrain says:
This comment seems to clearly violate the civility guidelines around here.
January 6, 2010, 2:58 pmzuch says:
I can’t “go gay” either. Can you? Be honest….
Cheers,
January 6, 2010, 2:59 pmCrazyTrain says:
Just because Vaughn Walker is a Republican does not mean he cannot be fair to those advocating liberal causes. And just because he represented the US Olympic Committee in a lawsuit to bar others from using the term “gay olympics” does not mean he cannot be fair to gay people. You need to open your mind and stop stereotyping Republican lawyers who have represented private parties in “anti-gay” lawsuits. They should get a chance too.
January 6, 2010, 3:03 pmDilan Esper says:
1. Race is not a behavior choice.
Even if we indulge your assumption (disputed by many) that being gay is about nothing other than sexual behavior choices, we can cut through it with another analogy– it’s like saying no religious judge can hear a religious freedom case. After all, believing in a religion is a behavior choice, right?
January 6, 2010, 3:04 pmegd says:
I find this post particularly amusing, in an ironic kind of way.
January 6, 2010, 3:04 pmzuch says:
Here’s what you said:
While it may be a mistake to attempt to tease any logical inferences out of your spouting, giving you the benefit of the doubt on your ability to string together an ‘argument’ here, one might conclude you were inferring exactly what I stated you did. Care to reconsider your claim?
Cheers,
January 6, 2010, 3:06 pmzuch says:
Nine of 58 (counting this one). Not “half” (which is basically what “Freedom!!!!!!!!!!!” was up to at the time of my comment, many of which were unsolicited, ad hoc emanations).
Cheers,
January 6, 2010, 3:11 pmRandy says:
Doug: “Zuch — if you would so like to be black, you should have ‘gone black. Oh — wait — you can’t DO that.”
So do tell — what would it take to make you turn gay? Just askin’
January 6, 2010, 3:22 pmPaul Cassell says:
I apparently need to remind several of the posters on this thread to be civil. I will also be deleting a comment using the term “vermin”, which is inappropriate.
January 6, 2010, 3:24 pmDoug InSanDiego says:
Zilch: “Here’s what you said:
1. For anyone to say, “Walker’s sexual orientation is not relevant” is the most absurd thing I have ever heard. [...]
2. The militant, antisocial and hateful actions of the Gay Gestapo have grown way past wearisome.
While it may be a mistake to attempt to tease any logical inferences out of your spouting, giving you the benefit of the doubt on your ability to string together an ‘argument’ here, one might conclude you were inferring exactly what I stated you did.”
Zilch – as I am sure your parents said, “Say it ain’t so, Zilch!”
In THIS case the “ain’t” refers to your apparent inability to either: (a) be honest; or, (b)follow a logical discourse. Just because (2) FOLLOWS (1) does NOT indicate (1) causes (2). I know, difficult for you to follow. Maybe just sleep on it. Geesh!
Zilch: “I can’t “go gay” either. Can you? Be honest….”
Zilch – since many have returned from the abyss, it stands to reason that you can ELECT to enter the abyss (or to NOT ENTER!) You were born an infant; not a sexual preference. You- at some time thereafter – volunteered for what some call “The Dark Side”.
As for your question: No, I cannot (nor would I wish to). I am not self destructive.
January 6, 2010, 3:27 pmRandy says:
Actually, the really amusing part will be when both Doug and Freedom both claim that they are NOT homophobic — they are just trying to expose the nefarious nature of gay people.
“You– at some time thereafter — volunteered for what some call “The Dark Side”.”
Gosh — please do tell me when and why any one would enter the Dark Side? Is it because of all the benefits that accrue — such as the continual discrimination from society, prohibition to marry, ease of being fired from a job? Or perhaps we just loved being bullied by people like you when we were kids? Yup, that Ellen DeGeneres, one of the most self-destructive people on the planet!
January 6, 2010, 3:35 pmDoug InSanDiego says:
Randy: “So do tell — what would it take to make you turn gay? Just askin’”
Heck, I can’t imagine. Nervous breakdown of some sort? I don’t know – some personal tragedy that sent me on a self destructive bent.
You? Just askin.
January 6, 2010, 3:36 pmDoug InSanDiego says:
Randy:
It seems very ironic that you charge OTHERS as being bullies.
From where I sit, the Gay gestapo is perhaps the bully of the decade just ended. THAT is why so many people have gone from indifferent to very, very angry and combative toward the GG’s demands. And, I think, THAT is why so many people are just fed up as all get out with the misuse of the legal system to circumvent the will and decision of the society you live in.
January 6, 2010, 3:40 pmFreedom!!!!!!!!!!!! says:
Do the religious preferences of the judge cause him to engage in circus antics? Does the judge’s religious belief cause him to declare his intentions to rule against one side without hearing arguments? Does the judge openly advocate for an appellate Court for en banc review of an order that struck him down? Does the judge violate judicial ethics?
If yes, then the religious judge should be disqualified as well.
January 6, 2010, 3:41 pmFreedom!!!!!!!!!!!! says:
There is no such thing as “homophobia.” It’s a Kirk & Madsen talking point.
January 6, 2010, 3:42 pmFreedom!!!!!!!!!!!! says:
Tolerance.
January 6, 2010, 3:44 pmspasticblue says:
wasn’t really as assuming as i was hoping.
January 6, 2010, 3:44 pmmidasear says:
/shrug
What else should we call a trial that serves no purpose other than to put witnesses, some of whom have already been subject to harassment and intimidation, on public display. There is no genuinely relevant issue of fact at issue in this case, and Walker knows this as well as anyone.
Walker’s weird New Years Eve antics give the game away entirely, besides. His behavior here is a sad blemish on an otherwise honorable career.
January 6, 2010, 4:01 pmDon de Drain says:
Ken A–
If there is good reason to be believe that televising a trial will, in and of itself, result in death, serious harm, and the like to witnesses, etc., then there is good reason to not televise the trial or to modify the manner in which the trial is televised. “Harassment” is an imprecise term. You need to be more precise as to what could happen to witnesses if you want to ask a court to somehow “protect” them. And you need something more than speculation that witnesses need to be protected. In a criminal trial involving a member of the Mexican Mafia, you don’t need much “proof” to conclude that jurors, witnesses, etc. could be in danger. In a civil case involving Prop 8, I think you need some concrete evidence that witnesses are in danger before you start protecting them in some matter. Rantings of militants who a “certain” that their allied witnesses will be “harassed”– just like rantings of militants who are “certain” that a judge will rule a certain way– don’t count for much.
One problem you face is that the trial is already open to the public. Someone bent on “harassing” a witness can do so even if the trial is not televised. Televising a trial exposes the name and face of the witness to larger numbers of people, but you can televise the trial in a way so as to not show the witnesses’ face. That to me is a sensible step, easily done. But as long as trials are done in public, where the identity and testimony of a witness are available to everyone, the “harm” to witnesses done by televising the trial (particularly where the faces of witnesses are not shown)– where there are no other concerns about witness safety– is de minimis.
If a witness formally expresses a fear to the judge about testifying if the matter is televised, I think it is incumbent upon the judge to explore that fear in advance of trial and determine if it is well founded. We want witnesses to testify fully and truthfully. Similarly, a judge should give plenty of warning to the parties of his intent to televise the trial so things like witness fears can be presented to the court formally.
I understand that there are people who attempt to “retaliate” against witnesses and others through conduct that annoys but does not create significant danger. I don’t condone their conduct. But not televising the trial does not make them go away.
And I understand that there are reasoned arguments for not televising any trials at all. I just don’t find them persuasive.
January 6, 2010, 4:04 pmLN says:
I’m trying to imagine what could possibly create such feelings of fear and loathing. I mean, when I imagine two men or two women together, I basically shrug my shoulders.
But apparently some people find that their hearts start pounding, their knees start shaking…
January 6, 2010, 4:12 pmptt says:
Courtesy of Andrew Sullivan, some insight
January 6, 2010, 4:26 pmDoug InSanDiego says:
LN says: “… I basically shrug my shoulders … But apparently some people find that their hearts start pounding, their knees start shaking…”
I am sure you are baiting and simply expecting someone to reply, “or my stomach to start churning”. But I will not do so, and will instead correct your basic misperception.
You assert people are displeased because of what goes on in the privacy of one’s home. This is false. While I would prefer homosexuals find their way back to a more fulfilling and happy life, I allow that this is THEIR life and they are free to choose their own (private!) actions.
HOWEVER!
Many people do, as you allege, feel “loathing” (doubt the ‘fear’ thing). Why? Because of the extreme antisocial behavior of the activists, which behavior is ANYTHING but ‘private’. Many people see the Gay Gestapo as the poster child of all bully organizations. Many people do NOT like bullies. Therefore, it would be predictable that many people would NOT like the Gay Gestapo.
January 6, 2010, 4:27 pmKen Arromdee says:
I shouldn’t need to explain it to them. They should be the last people to deny that such harassment exists.
January 6, 2010, 4:27 pmDoug InSanDiego says:
ptt:
I might add:
http://www1.voanews.com/english/news/africa/east/Uganda_Anti_Gay_Bill-79127677.html
courtesy of the Voice of America (Douglas Mpuga, Washington DC)
January 6, 2010, 4:30 pmTwirip says:
Can we call him a “teabagger”? I gather that particlar insult passes muster with the liberals here.
January 6, 2010, 4:31 pmPintler says:
(referring to tracing calls). I may not have been keeping up. How do you trace a prepaid cell phone purchased for cash?
Neither is playing the ukelele, watching pro football, wearing bermuda shorts, or listening to opera, but that doesn’t mean it’s right for the government to favor or disfavor any of those behavior choices.
January 6, 2010, 4:31 pmKen Arromdee says:
Not televising the trial makes them much less high profile targets. You seem to be saying that because it can’t eliminate 100% of harassment it can’t keep it much more manageable, which doesn’t follow.
January 6, 2010, 4:34 pmTwirip says:
It is perfectly right for the government to favor or disfavor any of those behavior choices. And the government does so.
January 6, 2010, 4:36 pmTwirip says:
Would you say the same about a judge whose racial orientation was “KKK member”? If not, why?
January 6, 2010, 4:40 pmptt says:
Uh… OK. Your assistance (mysterious as it is) is appreciated.
January 6, 2010, 4:41 pmLN says:
I am sure you are baiting and simply expecting someone to reply, “or my stomach to start churning”. But I will not do so, and will instead correct your basic misperception.
No, I was thinking more like “You — you shook me all night long.”
January 6, 2010, 4:42 pmsometime juror says:
To be devil’s advocate, witnesses sometimes have to reveal some pretty personal details on the stand – perhaps one side wants to impeach their credibility by exploring the details of their marriage breaking up (and not at a divorce trial), or explore their finances (how did they scrape up the cash for the extortion payments without their wife knowing). Certainly, interested parties can go to court, or get a copy of the transcript, but that’s a lot different from televising it for every acquaintance to see.
Televising testimony by a subpoenaed witness against their wishes strikes me as pretty bad manners, and if it makes them any less likely to tell the unvarnished truth, it’s bad public policy as well. There is a civic benefit to public trials – the government can’t commit mischief in private – but you get most of that benefit by having the courtroom open to the public. Televising them (or parts of them involving unwilling people) for entertainment doesn’t seem to add much benefit.
January 6, 2010, 4:49 pmzuch says:
I realise this. I think I covered it:
If you were just stringing non sequiturs together, pardon me for mistaking that for “discussion” or something resembling “argument”.
So what percentage of teh gay are arm-band-wearing members of the Gay Gestapo, you think? Do you consider Judge Walker to be in the Gay Gestapo cadres? If so, why didn’t you just say that instead of your incoherent insinuations? If not, why did you bring it up? Did you just find it necessary to express your hostility and fears towards (some) gays? If so, why?
I’d note this is a non-answer (not that I’m surprised; I never seem to get an honest response when I ask this). Apart from the questionable “ex-gay” propaganda (“many have returned from the abyss”) that no reputable psychological organisation recognises, I’d note that you’re enormously hard of reading:
… which is probably a load off my wife’s mind, I guess.
Cheers,
January 6, 2010, 4:54 pmDilan Esper says:
Would you say the same about a judge whose racial orientation was “KKK member”? If not, why?
You give the game away with the term “racial orientation”. Really, the status of homosexuality and KKK membership are simply two different things, and only a bigot would think otherwise.
January 6, 2010, 5:00 pmzuch says:
That’s why Haldol was invented. Ask the docs to titrate it up a notch.
Cheers,
January 6, 2010, 5:02 pmzuch says:
Yes. Then I present the rest of your prior comment:
Why should we be more solicitous of homophobes?
Cheers,
January 6, 2010, 5:06 pmkrs says:
The troll quotient is significantly higher on this thread than the usual. I clicked on the comments link half-expecting to see knee-jerk trashing of Ed Whelan without regard to his actual arguments…. not so much.
The “Gay Gestapo” reference makes me think of a musical with people in Nazi uniforms skipping in the streets, like something out of the Producers.
January 6, 2010, 5:09 pmscattergood says:
With regards to SSM, this thread is representative of all other threads on the subject. The real issue is the level of determinism for homosexual behavior.
On the one hand are posters like Zuch who assert that homosexual behavior is wholly deterministics and thus discriminating against people on the basis of this behavior is bad / wrong.
On the other hand are the folks like Freedom!!!!! who assert that homosexual behavior is not deterministic and thus disciminating against people on the basis of this behavior is just fine.
The fact of the matter is that all scientific evidence points out that homosexual behavior is NOT wholly deterministic. There is no deterministic explanation that would account for twins not uniformly engaging in homosexual behavior, nor for people engaging in exclusively homosexual and exclusively heterosexual behavior at times in their lives, nor for people who engage in both concurrently.
So, then the pro-SSM folks say, ‘well, no it is like religion, religion isn’t determistic but yet it is a protected class!’. Unfortunately for this line of reasoning, society as a whole has decided to protect religion as a class but has specifically decided to NOT protect homosexual behavior. If it really is up to society to choose, SSM will go down in flames as it has on 30+ votes so far.
The pro-SSM folks are in a quandry. The facts aren’t on their side.
January 6, 2010, 5:11 pmTwirip says:
I’m impressed by the way in which the left-wing commenters here can get away with constantly using moronic insult in place of argument. I don’t know exactly why that’s the case. Maybe it’s the soft bigotry of low expectations and the powers that be here figure that is all you are capable of.
January 6, 2010, 5:14 pmzuch says:
I believe that prepaid cell phone purchases, even if paid for in cash, must by law be done producing ID in some places. Nonetheless, even if not, the POP can be established. The calls themselves most assuredly can be traced and wiretapped (and caller location recorded), even if it’s not always possible on that basis alone to identify the caller. It’s possible to call on stolen or cloned cell phones too, but that’s no guarantee of avoiding identification and prosecution.
Cheers,
January 6, 2010, 5:16 pmzuch says:
Where did I say that? I must have been napping; I missed it.
Cheers,
January 6, 2010, 5:21 pmSmallholder says:
Can a straight guy join the gay gestapo?
Sounds like mercilessly oppressing all the good Christian straights would be a whole lot of fun.
And by oppressing, I mean allowing gays to have the same rights as the good Christian straights.
I’m telling you – when we let the gays be equal, it will be worse than the Gulag.
January 6, 2010, 5:23 pmDoug InSanDiego says:
Zilch:
Sorry to hear you are so familiar with Haldol. I had to check to see exactly what kind of a little slur you were hurling; you, apparently, live in a HFW (that’s ‘Haldol Friendly World’) and for that, i both apologize and pledge to be much easier on you and less demanding of actual logic and insight. Again, my apologies.
Regarding tracing calls (this is something I am a bit of an expert at): you are correct; prepaid phones often require some form of ID here in the US. Use of a coin operated pay phone does not. Regardless, phony drivers licenses are not difficult to obtain for those with the notion … and, tracing a call to the callers general location is rarely helpful in identifying the individual. Maybe in the middle of the Mohave. Not in a populated area.
Re: Zilch: ;”Why should we be more solicitous of homophobes?”
First – you claimed to have a wife (actually, you inferred as much), apparently as proof you are NOT homosexual. Hmmmmm. The – why the “We?”
Second: Other than the 78-year old geezers who were punched in the face by a Storm Trooper for having the temerity to display a “Yes on 8″ placard on their own front yard, few are “afraid” of homosexuals or homosexuality. It’s NOT a ‘fear’ thing. It is, rather, a feeling of disgust and rebuke toward the behavior of the Gestapo.
Re: Zilch: “I can’t “go gay” either.”
I can’t “go human”. That does not mean I am not human. You claim to not be able to “go gay”. That does not mean you are not gay. Why should I assume otherwise, given your comments?
January 6, 2010, 5:35 pmspasticblue says:
I’ll probably regret this, but I’m curious: as to Doug, et al. who feel bullied and harrassed by gays, I’d like to know how exactly they are being bullied. I sincerely want to know what harm they are experiencing over and over at the hands of those who support gay rights. And I’m not speaking of theoretical or anecdotal harm–actual personal harm.
I’ve had things thrown at me. I’ve been punched. I’ve been called names and had my property vandalized. And that’s just the personal attacks–luckily they aren’t very numerous, and hardly ever happen any more, but still I have been personally harmed by anti-gay acts.
I’m sure some of those on this site would have no sympathy for me–even those who cry for sympathy because they are being attacked by gay rights advocates. But whenever someone goes on and on with such vitrol about being harrassed and bullied by “teh geys” I have to ask, what harm is it that has been done to you? I seriously want to know.
January 6, 2010, 5:39 pmDilan Esper says:
With regards to SSM, this thread is representative of all other threads on the subject. The real issue is the level of determinism for homosexual behavior.
No, the real issue is relevance. Being gay is completely irrelevant to your ability to be a good worker, parent, soldier, citizen, etc. And yet a significant minority of people want to use either the law or their power in private commerce to punish people for being gay.
That creates a situation where, just like with black civil rights, it is necessary for the government to step in and mandate that gays be treated equally.
Yes, it makes the argument slightly stronger if homosexuality is innate. But since homosexuality is irrelevant and people who are offended by it shouldn’t get to punish gays and lesbians, it really doesn’t matter that much even if it isn’t innate.
January 6, 2010, 5:45 pmzuch says:
Thanks.
Where? Have you seen one lately? But FWIW, that doesn’t prevent tracing the call, as I pointed out above.
It does seem you need the Haldol titrated up. See if you can figger it out. If you’re still having difficulty, let us know, and we‘ll explain it in small words.
Because to assume I’m gay is a mistake in logic. It is a fallacy of “question begging”. The implicit assumption here is that anyone making the comments I’ve made must be gay, an assumption that is categorically not true. If you assume I’m gay, you’ve already headed over the the “Dark Side”, logically speaking.
If you were an honest sort, you would not infer that I had made the nonsensical and misleading statement (under your posited circumstances) “I can’t ‘go gay’” because I was already gay; a presumption of reasonableness would lead you to the correct conclusion. It’s your prejudices that have led you astray. You ought to take note of that.
Cheers,
January 6, 2010, 6:02 pmVader says:
There is a certain irony in the fact that the judge is anxious to let the public watch him rule on whether the vote of the majority of the public will be allowed to stand.
Could make for some highly entertaining television, if anyone involved picks up on the irony.
January 6, 2010, 6:03 pmDoug InSanDiego says:
Zilch.
You are amusing.
You chastised me for (in your misguided belief) not reading your comment “I can’t ‘go gay’”. I then alerted you to the OTHER possible interpretation of that little statement – which, coupled with your belligerent and radical views, would – to most – make that interpretation the more likely correct interpretation.
Instead of simply recognizing your error (which, by the way, lends more credibility to the interpretation), you then attempt to conceal your error through more slurs. It’s your bigotry and insecurity that give YOU away, my little friend.
January 6, 2010, 6:12 pmElfwreck says:
I tend to compare it with religion–a matter of personal identity which may-or-may-not be “inborn” in any identifiable way, which is expressed publicly by choice.
Any Jewish person could, of course, pretend to be Christian in order to avoid persecution–but our laws say this is not necessary. It is illegal to discriminate against visible Jews, and it does not matter if they were raised Jewish or converted as adults, nor does it matter if the religious affiliation is a matter of inborn traits or conscious choices.
Discrimination by sexual orientation is illegal in California, regardless of the cause of the sexual orientation. The causes of any particular orientation should be of interest to some scientists, but not to lawyers.
January 6, 2010, 6:13 pmShelbyC says:
Well, some folks see determinism as an issue because of the somewhat artifical distinction in the law between suspect classes based on things like race and gender, and classes defined by behavior (murders, theives, guitar players, gays). Typically a lower standard is required to regulate behavior (or treat people differently based membership in a class defined by behavior) than by a characteristic like race.
January 6, 2010, 6:17 pmYourish Dikshun says:
How about a “televised” compromise? Six (or 12 or 24 or more?) months after the verdict is rendered, the video becomes web-stream available to the public. Might work for the USSC too?
January 6, 2010, 6:18 pmDon de Drain says:
Ken A–
No, what I am saying is that exposing a witness’ name and testimony to lots more people via television is not ordinarily per se “harm” that justifies not televising the testimony of that witness. You believe that televising the testimony of a witness will result in some ill-defined “harassment” of the witness in the Prop 8 case that would not occur if the trial would not televised. I am unwilling to make that assumption. Just like others may assume that witnesses who may testify in favor of those defending Prop 8 are only leary of testifying because they are afraid of public ridicule (which is distinct from harassment). I do not make that assumption either.
I already noted that, if a witness formally expresses a concern about testifying at a televised trial, the judge should look at that concern, along with whatever evidence is presented in support of that concern, and determine if that concern is valid. They should then take “appropriate” action based on their conclusions.
If a witness is concerned about testifying in a televised trial, I suspect the witness may also be concerned about testifying in a public courtroom where the trial is not televised. There may be situations where the mere fact of televising the trial creates a valid threat to witnesses. I am not willing to assume that is the case in the Prop 8 trial.
Sometime Juror–
Much to my own chagrin, what was considered “private” is now much less so. I heard a talk by Alex Kozinski on this topic a couple of years ago. He pointed out that, where we as a society invite TV cameras into our homes, and engage in other similar conduct etc., we may be changing our “reasonable expectations of privacy.” Very interesting talk. And a bit scary.
I agree with the principle that we want to encourage witnesses to testify truthfully, etc. And there are situations where televising the trial may impede the search for the “truth” or may result in danger to witnesses or an unwarranted invasion of privacy. But there are also situations where televising the trial might further the cause of “truth.” If you spend any time in a court room you know that the testimony of some witnesses is not “accurate.” (I’ll use a less perjorative term here.) There are some unscrupulous witnesses that would have no problem giving “inaccurate” testimony in front of counsel and judge (and jury) but who might otherwise give “more accurate” testimony if they know their testimony is being watched by others outside of the courtroom.
The bottom line, however, is that a judge can look at the question of the effect of televising on witnesses and their testimony on a case by case basis and call “BS” when someone is trying to blow smoke and prohibit televised proceedings where it would create a problem.
January 6, 2010, 6:20 pmptt says:
Sure there’s a deterministic explanation. The explanation is that sexual orientation has a very strong genetic component but is not determined by genetics alone.
But you, of course, knew that.
January 6, 2010, 6:24 pmDoug InSanDiego says:
SpasticB
The US Government keeps track of hate crimes. About 3 months ago a new Report was issued tabulating hate crimes by region, type, etc for the prior year. To my recollection, there were – in the entire U.S. about 1,400 hate crimes committed on the basis of sexual orientation for the entire year. Of those, only about 300 (again, per recollection) were physical assaults – most of the few reported hate crimes were for name calling, etc. wooo hooo.
I, too, have been punched (well, not since childhood), called names, had property vandalized, etc. I never once thought those acts happened because I am heterosexual.
The bully of the Gestapo, generally, takes a different twist. True – yesterday I read on a “We hate ex-gays” website someone advocate killing heterosexuals who do not comply. True – I have several friends whose businesses were targeted for financial retaliation simply because the Troopers thought the owner had supported Prop 8. True – the Campaign Manger of the “No on 1″ organization in Maine declared he would “not rest until I know the address of every on of those {Yes on 1} votes”. True, the Troopers melded Google maps to the list of “Yes on 8″ contributors in an apparent “Go Get ‘Em!” cry. True, a friend who made a large contribution to “Yes on 8″ had his Hotel picketed simply because he contributed. True – potential witnesses to this particular trial object to televised coverage explicitly because they have received death (or other violent) threats, etc. I will not go into details of the personal intimidation I have received – not because it did not happen, but because i do not consider it significant. However, the widespread hatred expressed online and in the real world against anyone who does not agree to the Gestapo Demands is appalling. And this widespread, near ubiquitous hatred IS very, very significant.
January 6, 2010, 6:28 pmDilan Esper says:
Well, some folks see determinism as an issue because of the somewhat artifical distinction in the law between suspect classes based on things like race and gender, and classes defined by behavior (murders, theives, guitar players, gays).
Shelby, your point isn’t really wrong (although religion is a counter-example), but I would note that 2 of the examples you give of behaviors are serious and harmful crimes (murder, theft) and the third one is a group that hasn’t faced much historical discrimination (guitar players).
The key to understanding why there has to be a standard of equal treatment for gays and lesbians is the combination of the irrelevance and harmlessness of the conduct involved (as compared to murder and theft) and the historical public and private discrimination gays and lesbians have faced (as opposed to guitar players).
January 6, 2010, 6:28 pmfirst history says:
Notonly does the judge want the trial on television, but also on Youtube. From the Los Angeles Times:
Horrors.
January 6, 2010, 6:31 pmptt says:
I’m a little confused about these witnesses who are allegedly going to be afraid to publicize their names and identities. Who is likely to be called as witnesses? Is either side going to pluck some previously anonymous person off the streets to testify how 1) their marriage was harmed by gay people getting the same rights or 2) being unable to marry is an infringement of their human rights?
The people who will be called to testify on the pro-Prop-8 side (which is the side which objects to televising the trial) are all either 1) leaders of the campaign who already quite well known or 2) anti-gay “experts on homosexuality” who are also quite well known.
It’s not their identities they don’t want exposed, it’s the absurdity of their ideas.
January 6, 2010, 6:33 pmDon de Drain says:
Sometime Juror–
Just had another thought, my last on this topic for the day. Another possible solution is a “time delay” in televising the trial. That way, if something unexpected happens on cross, i.e., the witness breaks down and admits to having 25 mistresses, or admits to having gone hunting with Dick Cheney, or admits that they watch “Barney the Dinosaur” videos, that part of the video can be edited out.
January 6, 2010, 6:40 pmzuch says:
Which is a twisted interpretation of what was a straight-forward statement. That you should have chosen this interpretation — when, for rhetorical purposes, it would make no sense WRT my ultimate point there — just shows that you have prejudices that you need to address.
… only in the mind of a prejudiced and particularly obtuse person. You may think that this should have been the “more likely correct interpretation”, but that simply shows that your judgement and discernment faculties aren’t all there … in terms you might understand, you’re a few cans short of a six-pack in the logical department. Assumptions, particularly unfounded ones, and especially wrong ones, lead to fallacious conclusions. Which may explain a lot of what you say here. Of course, simple bigotry may also suffice, and I won’t presume to know what part each plays in your behaviour.
Cheers,
January 6, 2010, 6:41 pmDoug InSanDiego says:
ptt: Or those who provided financial or other support.
First: Walker’s motive here is simply to provide a bully pulpit for the homosexual activists. He KNOWS his apriori reached decision will not stand. The only reason this “trial” exists at all is to further indoctrinate the masses. You Tubing the proceedings are a God-send to his goal.
January 6, 2010, 6:42 pmDoug InSanDiego says:
Zilch;
Do you REALLY believe that by behaving as a snide child you will win more arguments?
REALLY????
January 6, 2010, 6:45 pmzuch says:
Ummm, more petitio principii here? That is, ignoring the horrible grammar, category errors, and confusion of law (criminal acts are prohibited, a [supposed] criminal nature is not).
Cheers,
January 6, 2010, 6:47 pmptt says:
Another group whose identities are already public through the legally required campaign finance documents, no?
Thanks, again, for (mysteriously) bolstering my points!
January 6, 2010, 6:51 pmShelbyC says:
Did I say it was? You gotta do better at readin’.
January 6, 2010, 6:53 pmspasticblue says:
Doug, I asked for your personal experience, not anecdotes about others. Of the things you mentioned, half of them relate to the businesses of friends (and are purely commercial–how is not spending money harassment?) and they other show no actual damages.
I hear on this site a lot that gays are bullies and intolerant of those who oppose them, and that makes them horrible (though not the only thing that makes them horrible, according to some). But I find that very naive considering the long history of discrimination and harassment of gay people. There is a historical (and contempory) context ignored by the argument that the lack of civility in the debate comes from gays. I don’t want to play the “I’ve had it harder than you, I win” game, but I really don’t see the victimhood of the pro-prop 8 crowd as real or significant compared to the experiences of gay people.
January 6, 2010, 7:00 pmDon de Drain says:
ptt–
I have no idea who the witnesses will be at trial. But one or more of them may have or express a fear that they will be threatened in some way merely because they testify at the trial, not because they become known as supporters of Prop 8 by testifying at trial. That fear may or may not be well founded. If they are already publicly known suporter of Prop 8 and have no specific evidence of a threat to them, and have not been “harmed” previously while publicly supporting Prop 8, it will be difficult for them to prove that the fact of their testifying at trial will result in bad things happening to them. On the other hand, if they have received a note saying that bad things will happen to them if they testify at trial, their fear may be well founded. I don’t think you are in a position to make a blanket call on this without knowing the facts. But because– in the threatening note scenario– the person making the threat is likely to be monitoring the trial to see if the person testifies, televising the trial is not likely to materially increase the danger to the witness, in the absence of other facts.
January 6, 2010, 7:02 pmfirst history says:
To my recollection, there were — in the entire U.S. about 1,400 hate crimes committed on the basis of sexual orientation for the entire year. Of those, only about 300 (again, per recollection) were physical assaults — most of the few reported hate crimes were for name calling, etc. wooo hooo.
According to the 2008 Uniform Crime Reports, there were approx. 1,600 crimes committed against 1,700 victims. Of the 1,600, nearly 1,200 fell in the following categories: murder/manslaughter; forcible rape; aggravated assault; and simple assault. Aggravated and simple assault constituted 44% of the crimes and intimidation 26%.
January 6, 2010, 7:05 pmzuch says:
No. Some people are immune to reason. This needs to be pointed out to others, but is not something that is likely to impress itself on the sensorium of the subject; any attempts to do such are likely doomed to failure (albeit you can’t say I didn’t give you a chance). But you’re making more assumptions here that are not true. I’d say that the “snide child” appellation may lay much more fittingly on the person who keeps using the bolded name above in addressing his opponent.
And with that, I’m done with you. Anyone that wants to know what’s going on need only scroll up.
Cheers,
January 6, 2010, 7:07 pmPerseus says:
Where is a wise Latina judge when we need one? Surely one could be found in California to decide whether a “show trial” is in order.
January 6, 2010, 7:28 pmAndrew says:
While television coverage may be detrimental to some witnesses, it would provide a huge career boost for others. What better forum to display one’s drama skills than before a TV audience of millions?
January 6, 2010, 7:30 pmShelbyC says:
Exactly, and that’s kinda the point I was trying to make, by having a list like that, although you said it way better. But we are typically much more deferential to govt regulating behavior, even though it’s just as bad to punish someone for choosing to engage in gay conduct (or wanting to engage in such) as it is for being black, female, etc. Personaly I believe homosexuality is protected under a broad vision of SDP that protects alot of other conduct as well, and not under the more narrow grounds of EP and Privacy that some argue for.
January 6, 2010, 7:41 pmange says:
I hate to say this – and I am no homophobe believe me, but as a matter of judicial ethics, if Walker is gay, I think he needs to recuse. Walker is, per Prop 8, denied to right to marry another man. This is not a case involving some garden-variety civil rights claim folks (like whether one has a first amendment right to speak for more than 2 minutes at local zoning board meetings.) Even if the judge in such hypothetical case were a potential beneficiary of his ruling (meaning he too as a result would get to speak for more than 2 minutes if he were at a zoning meeting), the Prop 8 case is far different. Walker is poised to invalidate the decision of the citizenry of the largest state in the country on one of the hottest button social policy issues of our time. He would, if he overturned Prop 8, thereby grant a major, significant benefit and privilege to himself that he does not currently enjoy and which the voters of California denied to him. He will be listening to evidence about the nature of homosexuals and homosexuality. In contrast, a heterosexual judge already has the legal right to marry and thus has nothing to gain by a ruling one way or the other. This is deeply troublesome. No judge should have a personal stake in any case nor be a beneficiary of his own ruling. Aside from the issue of what Walker’s sexual orientation might be, his “shenanigans” as National Review so accurately described it, in rushing through changes in the rules on televising trials (including an outrageous short-circuiting of the public comment period) is appalling and seriously diminishes litigants’ and public confidence in the neutrality and integrity of the federal courts. He essentially started a petition campaign by organized gay groups demanding he televise the trial over which he is to preside and his order coincides with that lobbying effort. IMHO, he ought to recuse or get yanked off this case by an appellate court and grieved.
January 6, 2010, 7:54 pmElfwreck says:
Would you believe that if any of the Supreme Court justices in 1967 were both umarried and resided in Virginia, they should’ve recused themselves in the case of Loving v Virginia? By the laws of the state, they were unable to marry a black person, and ruling to override that law could work to their benefit.
As far as is known, none of them had any such wish. However, if Walker had a wish to marry a man, he’s had opportunity to do so, fairly recently; that he might have such a wish in the future, and benefit by his own ruling if he does, doesn’t seem much of a reason for recusal. (Do we request the recusal of judges who might move into the districts they make rulings about?)
If the argument is, “if/when he wants to marry, it would ONLY be a man, and then the law would prevent him unless he changes it”–that is exactly the key issue tackled in Loving v Virginia: that the right to marry is not “the right to marry someone,” but “the right to marry a person of one’s choice, barring a societally compelling reason to prevent it.”
Bigger in scope–but how is it legally, ethically different to rule on whether one has a first-amendment right to speak in some situations that may benefit one in the future, and ruling on whether one has the right to marry a category of people who are currently forbidden?
January 6, 2010, 8:07 pmSW says:
This makes little sense. If he does not want to marry, he has no such interest. More importantly, a heterosexual Judge would, using your standard, be just as biased – given the claim that homosexual marriage damages heterosexual marriage. Most importantly, if the parties think he is biased, they should move to recuse. If they don’t, you have no basis for your assertions and innuendo.
January 6, 2010, 8:15 pmDilan Esper says:
By the way, if the trial is going to be on youtube, will there be a comments thread? That ought to be fun.
January 6, 2010, 8:38 pmSW says:
Pray it’s not carried, here. We don’t need another thread like this.
January 6, 2010, 8:43 pmSarcastro says:
[Looks like this thread has been featured on the front page of Free Republic. So we got that going for us. Which is nice.
It also looks like my work is being taken care of on this thread. I hope you guys are having as much fun posting as I just did reading!]
January 6, 2010, 8:55 pmGuy says:
Of Course, the pro-prop 8 side does have an interest. They know they won’t be able to say outrageously hateful or false things without hurting their cause significantly if the trial is televised, and they also know that televising the trial is most likely, where it has any effect at all, to turn public opinion against them by revealing the weakness of their legal arguments, and the irrationality of their policy goals. Whether that’s a valid interest or not is, I suppose, open to debate.
January 6, 2010, 9:13 pmGuy says:
You took the side of the gays, therefore you must be gay, therefore your opinion is invalid, both logical steps are airtight conclusions from the premise. The beauty of this simple and obvious theorem, of course, is that it allows one to reach the corollary that, a priori, only arguments against gay rights are credible.
January 6, 2010, 9:19 pmspasticblue says:
FYI, here is the defendant-intervenor’s witness list filed last month:
https://ecf.cand.uscourts.gov/cand/09cv2292/files/292.pdf
Other than the plaintiffs themselves and government representatives (to testify about marriage and domestic partnership records), all of the witnesses are experts.
January 6, 2010, 9:21 pmptt says:
Using the term “experts” loosely, of course.
January 6, 2010, 9:30 pmKen Arromdee says:
I’m not sure what you’re trying to ask, but it sounds like you’re saying “you admit that gays can get harassed, but here’s a quote from you saying that homophobes can get harassed. Why should we care about the homophobes getting harassed?” To which the answer is when the homophobes are getting harassed for their political stances, they deserve as much protection from harassment as anyone else, even gay people.
January 6, 2010, 9:52 pmKen Arromdee says:
If the person making the threat is a professional criminal who is a perfectly rational actor when committing crimes, that might be true. If he acts like a human being, however, he might be more incensed at a trial that he can watch, even if being televised doesn’t actually change the trial. In general, vigilantes and mobs get stirred up easier against things that can be seen and heard.
January 6, 2010, 9:58 pmDon de Drain says:
Wonder if we will see any motions in limine asking the court to prevent testimony of “experts” because they don’t satisfy the Daubert standards.
Can’t imagine that any experts would object to appearing on TV. They’ll probably buy extra copies of the video and use them as promotional materials.
January 6, 2010, 10:07 pmDon de Drain says:
Ken A–
So they are afraid of vigilantes and mobs if the trial is televised, eh? What about newspaper coverage? Internet coverage? Coverage on VC? Heck, VC coverage seems pretty inflammatory, especially the comments section.
Got any proof that adding television coverage to the coverages that already exist will cause vigilante mobs of anti Prop 8 militants to tar and feather the witnesses after they testify? Sorry, I don’t buy that one. I sense a slight problem of cause and effect. Yes, seeing a brutal war scene on film can trigger a much stronger reaction than reading about it in print, but I have difficulty imagining that seeing someone sitting in a witness box testifying is going to trigger a tar and feathering that would otherwise not happen.
January 6, 2010, 10:29 pmBrian G. says:
There is nothing wrong with what the judge is doing. America should be able to see its courts in action and it should hear the evidence of how the bigoted Mormons in California controlled the vote to make sure that gays would not be allow to marry because they want to impose their religious views on all of us. The uproar over gay marriage is a product of Bush doing everything to poison people against gays. Bush did everything but burn gays at the stake. One of the reasons Obama got elected is because he is of the biggest supporters of gay rights, and that is the public opinion we should be looking at, not the actions of a few right wing religious nuts that are bigots.
January 7, 2010, 12:11 amzuch says:
Didn’t I already quote above the amount of protection you said that police afford those harassed? Why, yes I did:
As I said (to repeat myself repeatedly), why should we be more solicitous of homophobes? Do they perhaps have much thinner skin? I suggest maybe salt-water baths and vigourous scrubbing with pumice or Bill O’Reilly’s loofah.
But special legal solicitousness is what you suggest for this exemplary bunch. I don’t see it.
Cheers,
January 7, 2010, 12:16 amzuch says:
Guess the next wars (and the news at 11) shouldn’t be broadcast (not to mention yanking FauxSnooze’s license). Just causes more trouble than it’s worth. Riles the rubes, yaknow.
Cheers,
January 7, 2010, 12:21 amKen Arromdee says:
You could always protect both groups against harassment. I’m surprised you seem to miss that. That is what “as much protection as” means, after all.
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January 7, 2010, 2:41 amfsfsfsfsfsfsfs says:
I strongly advocate a fully moderated comment system on volokh.com.
Having unmoderated comments on a blog like this just wastes everyone’s time and diminishes the value of the discussion.
I have heard two excuses for why moderated comments are not used:
(1) “The bloggers are too busy to moderate their threads.” The flaw in this excuse is that it’s now the readers who have to sift through all the trolling and inappropriate comments, rather than one moderator. So it doesn’t really save time, it wastes a huge amount of time in the aggregate (i.e., one person reading one improper comment and deleting it versus 5000 people reading the same comment and ignoring it and its replies).
(2) “Moderation is antithetical to the freedom of speech values the blog espouses.” No it isn’t, because there are huge numbers of other places to opine on any topic at will, and because this blog is not government-sponsored. More important, by not moderating, much reasoned or interesting comment is forestalled or precluded because the threads get so overwhelmed with idiocy.
I think bloggers should be responsible for moderating their own comments. Doing so would lead to more, not less, interesting discussion.
January 7, 2010, 2:54 amLargo says:
Responsible to whom, pray tell?
January 7, 2010, 6:12 amChairm says:
This is just the latest of a series of actions/decisions by Walker that indicates his impartiality.
Ed Whelan has blogged about this at Bench Memos.
On the matter of selecting a particular trial for a ‘pilot’ program, Whelan offered the following minimum criteria in the form of three questions:
Whelan’s own assessement is,
He goes on to say,
And concludes his letter,
The concern about trial participants facing intimidation, harassment, or abuse may be heightened for persons on both sides of this highly contentious issue.
For those who pre-judge the pro-8 trial participants to be “homophobes”, are you saying that they would deserve to be subjected to intimidation, harassment, or abuse? I’d hope not, but that has been strongly suggested in comments above.
January 7, 2010, 6:35 amChairm says:
Here is the link to Whelan’s remarks, (quoted in my previous comment) which he made in a letter to Judge Walker as per Walker’s notice for public comment.
Dear Chief Judge Walker
January 7, 2010, 6:38 amFreedom!!!!!!!!!!!!!!!!!! says:
There shouldn’t be a “trial” at all. This is an issue of LAW, not an issue of Fact. It’s obvious that Walker is merely trying to stack the deck for his homosexualist pals.
January 7, 2010, 7:32 amsometime juror says:
I agree there are people who are only too happy to be on TV, by signing up for a reality TV type show or whatever. That desire is, however, far from universal.
January 7, 2010, 9:06 amJurors and witnesses are not volunteers. We compel their presence because justice requires it. In general, I have yet to hear why broadcasting trials is a fundamental prerequisite of a just trial. The strongest argument I have heard is that greater exposure to trials will enhance the publics understanding of the law. If that is so, surely we can find enough trials where the participants are all willing to fill a few cable channels. However, if witnesses or jurors prefer to forgo their five minutes of fame, it seems rather ungentlemanly to disregard that preference in order to provide entertainment.
egd says:
I’m not exactly sure how you came up with that number.
According to Table 4 (linked from the site you linked to), of the (approximately) 1,600 offenses, 419 were intimidation and 324 were destruction/damage/vandalism.
Adding up murder/manslaughter; forcible rape; aggravated assault; and simple assault, I only get 744.
So I’m curious where your numbers come from.
On an unrelated note: Freedom!!!!! 17, Zuch 20.
My previous point stands.
January 7, 2010, 9:57 amShelbyC says:
Zuch, I don’t think the word “faux” is pronounced the way you think it is.
January 7, 2010, 10:02 amDavid Schwartz says:
I’m curious. Should a black judge recuse himself from cases involving allegations of racism?
January 7, 2010, 10:19 amThe Watcher says:
The Watcher recalls an old war story from her younger days, so long ago she just wasn’t second chair, she was 20th chair.
A trial judge really wanted to reveal an investigator’s identity. The investigator was effective in acting against a class of (legally) criminals that the judge liked.
The court of appeals ordered the judge not to reveal the identity. The judge then called the court into order, called the press in, and read the court of appeals order.
He then read his own order from the bench, ordering himself and all the parties not to, in any way, mention that the investigator was named John Smith, and that he lived at 123 Smith Lane.
Sometimes a show trial is not just to make a point.
January 7, 2010, 11:15 amzuch says:
Ken Arromdee stated that their political views deserve some protection:
I respectfully disagree. The freedom to criticise the political views of others (and in the most vituperative terms even) is part and parcel of our freedom of speech (and indeed is considered by some to be the most important function of freedom of speech). Harassment of gays is not the same as harassment of people who choose to make a political statement.
Cheers,
January 7, 2010, 11:42 amzuch says:
Of 151+. Is that “half”? “Fuzzy math”, I guess.
Cheers,
January 7, 2010, 11:45 amChairm says:
Zuch, in your response to my comment, 1) did you presuppose that the trial participants on the side of the CA marriage amendment are homophobes and 2) did you predict that their testimony will consist of political statements?
In effect, are you saying that, yes, they would deserve to be subjected to intimidation, harassment, or abuse — provided that it is politically driven?
January 7, 2010, 12:22 pmzuch says:
No and no.
Ken Arromdee stated that political speech deserves to be protected from “harassment”. Do you think that Prop. 8 was not a political question?
Cheers,
January 7, 2010, 12:29 pmElfwreck says:
Bigotry should be subject to some types of intimidation; public censure is one of the nonviolent ways we have to convince people to stop spreading hate. That doesn’t mean bigots should be subject to the legal definition of harassment or assault–but many people can’t tell the difference between “he told me he doesn’t like me” and “he’s harassing me.”
January 7, 2010, 12:48 pmFreedom!!!!!!!!!!!!!!!!!! says:
One of the most revealing comments on here. I guess it all boils down to what we define as “bigotry” right?
So, if we were to subscribe to your method, it would be ok to use “some types of intimidation” against atheists, homosexuals, and liberals. Right? Or do you get to define what is “bigotry” and what is not?
Tolerance.
January 7, 2010, 1:33 pmSmooth, like a Rhapsody says:
zuch:
“Harassment of gays is not the same as harassment of people who choose to make a political statement.”
How is “I don’t like you because you are gay”, differ from “I don’t like you because you are a Republican”?
January 7, 2010, 1:34 pmDon de Drain says:
Sometime Juror–
Let’s focus on non-jury trials for the moment, even though my comments apply to jury trials as well. The absolutely best way to create a record of the trial for appellate courts is to videotape the trial and have a stenographer create a transcript. I have had trials where the typed transcript could not come close to capturing what happened in the courtroom when a particular witness testified. Partly because of that fact, the day will come when the “record” on appeal routinely includes a videotape of the trial. And that videotape will be part of the trial record, and, as such, available to the general public, although it can be edited where it is appropriate to protect witnesses, etc. Which means the tape can be shown on TV.
No one is arguing that videotaping/broadcasting trials is a “fundamental prerequisite of a just trial.” Trials are public, and we have that pesky thing called the 1st Amendment. Videotaping trials has an undisputed benefit, as explained above. Routine videotaping of trials is going to happen at some point in the future, and thus, so is the showing of the videos on TV.
Witnesses are already compelled to testify in public. Courts can protect witnesses and the integrity of the trial by editing the video, etc. where there is an appropriate showing. There will be some interesting discussions about where to draw the line regarding the editing of videos (e.g., how to deal with jurors in jury trials), but that is no reason to not videotape the trial or to not allow the broadcast of the trial on TV.
BTW, are you aware of any vigilante mobs or other harm that resulted from showing Congressional proceedings on CSPAN? The analogy is not perfect, but I think you will agree that the benefits of televising Congressional proceedings outweighs the “harm.” I don’t agree that the only “benefit” to showing trials on TV (via videotape that can be edited when necessary) is that public is educated about what happens in the Courtroom. But even if that were so, the proper question to be answered is what “harm” will result from the televising of (edited) videotapes of trials and what should be done to remedy that “harm.” Unless you want to change the First Amendment.
January 7, 2010, 1:35 pmzuch says:
First of all, being Republican is (arguably, but see Lykken’s work) a choice. And there’s a difference between being a Republican while sitting and reading one’s newspaper on a train (ooops, Republicans don’t ride trains, my bad), and publicly and consciously making a political statement. Hope that’s clear. You open your mouth, you invite responses. That’s the beauty of free speech.
Cheers,
January 7, 2010, 1:57 pmElfwreck says:
In what way does “homosexual” mean “bigot?”
Bigotry: 1. stubborn and complete intolerance of any creed, belief, or opinion that differs from one’s own.
Homosexuals who declare that heterosexuals should be punished for their sexuality should be censured. Atheists who declare that theists are delusional and incapable of taking part in rational discourse should be censured. Liberals who rant about how all conservatives are evil should be censured.
However, none of those three traits contains inherent bigotry.
January 7, 2010, 2:05 pmSmooth, like a Rhapsody says:
zuch
non-responsive.
You implied that harassment of gay people is more culpable than harassment of Republicans. Harassment is not the same as a “response” invited by a contentious political statement (query: like signing a petition?).
January 7, 2010, 2:11 pmAnd how does the harasser of gays know that he is harassing a gay person unless the gay person makes a (political/non-political) statement to that effect?
first history says:
I’m not exactly sure how you came up with that number.
I didn’t notice the property crimes section of the table. My bad.
January 7, 2010, 2:52 pmzuch says:
No. I said that harassment of gays is more culpable that harassment of someone for their voluntary and public political speech. Is this hard to understand?
No. Harassment is one such possible response. But some people might think that such a response is harassment (and for some responses, they may be right; if so, that might be a matter for the law to deal with).
There’s plenty of ways. You know, like blog commenters insisting based on single source anonymous accounts that someone is Teh Gay (and vermin)….
Cheers,
January 7, 2010, 3:30 pmSmooth, like a Rhapsody says:
zuch
I think I understand your point, but I do not understand the logic behind it.
Whether John beats up/throws tomatoes at/pickets the business of Joe because he saw Joe holding hands with Jim, or because he saw Joe’s name on a petition, the punishment ought to be the same. The only victims that normally get privilege in our system are: 1. children; and, 2. symbols of the system itself (judges, cops, Presidents, etc…)
January 7, 2010, 3:48 pmAnatid says:
An attorney I know recently argued a patent case that was videotaped and aired. For the parts of the trial that involved confidential information or trade secrets, the cameras were turned off, and then turned back on for the rest of the proceeding.
Why not just do this? Viewers may feel jilted, but witnesses will feel free to testify and the large majority of the proceedings will still be publicly available.
January 7, 2010, 4:41 pmParenthetical Greg says:
Already happened (mid-December Walker dealt with the usual pretrial stuff). Walker will allow all of them to appear, but on at least one he put off his final decision on Daubert until the trial (bench trial, so no real harm done from permitting the testimony). IIRC, it was the Prop 8 expert who was to testify about the nature of marriage from time immemorial. She’s a religious studies professor in Canada. She specializes in Hinduism (?).
January 7, 2010, 5:04 pmegd says:
I take offense to the suggestion that any rational human being would choose to be a Democrat.
No problem, I was just trying to figure out where you were coming from.
I would tend to disagree. Grandstanding is regular in Congress, while reasoned debate is generally in short supply. A lot of this is because of broadcasting this information on CSPAN.
Why do you think that the Democrat leadership is refusing to allow CSPAN cameras in the reconciliation process? Could it be because they think that broadcasting the process will have some negative political impact?
January 7, 2010, 5:07 pmDon de Drain says:
Agreed. But I think that phenomenon pre-dates CSPAN.
I don’t know how you can determine the extent to which “grandstanding” increased after CSPAN started televising Congressional proceedings. I suspect there was an increase, but some people would argue that having CongressCritters grandstand is better than having them pass laws. And I’ll trade some increased grandstanding for the ability to watch lots of proceedings on TV.
January 7, 2010, 5:25 pmAndrew says:
There are some kinds of trials where a YouTube broadcast would be more appropriate than others. For starters, one might pick a trial that is not likely to require editing by the judge, who of course is fallible. Thus, maybe a trial involving a mafia informant would not be the optimal vehicle for a YouTube civics lesson. Or a rape trial. Or any trial where one of the parties has credible objections. Or any trial sufficiently controversial that the prospect of future harassment of witnesses will potentially influence what is said or who testifies.
As far as I know, the Ninth Circuit, in its haste to provide “immediately needed” audiovisual material for Rachel Maddow, Keith Olberman, and Chris Matthews, has neglected to formulate any such guidelines.
January 7, 2010, 7:04 pmzuch says:
Did I say differently?
When it comes to “/throws tomatoes at/pickets the business of…”, the same applies. If no punishment is warranted, then perhaps the same censure or disapprobation, however you (or anyone else) feel about the merits.
When it comes to harassing calls in the middle of the night, I’d say the person that publicly made a political statement ought to expect to have thicker skin than the person just minding their own personal business. Politics is a rough-and-tumble sport, even here in the U.S….
Cheers,
January 7, 2010, 8:07 pmzuch says:
… and, judging from recent events, ought to expect noisy disruptions in their town halls and people marching about outside packing heat.
Cheers,
January 7, 2010, 8:13 pmFreedom!!!!!!!!!!!!!!!!!! says:
So is homosexuality.
Oh, so provided that Republicans stay quiet and to themselves, it’s ok for them to have their beliefs? Can we apply that same logic to homosexuals too?
But you would seek to prohibit exercising those same free speech rights against homosexuals or others that you agree with. In other words “Free speech for me, but not thee.”
January 7, 2010, 8:22 pmFreedom!!!!!!!!!!!!!!!!!! says:
Just as I thought. You get to dictate what “bigotry” is, and then you get to censure anyone who doesn’t conform to your ideology.
Liberal “Tolerance.”
January 7, 2010, 8:23 pmzuch says:
Was this the same guy as said this?:
Why … lesseee. Ummm, yes, it is.
Cheers,
January 8, 2010, 2:07 amzuch says:
Ummm, where? Where did I say such a thing?
Cheers,
January 8, 2010, 2:09 amChairm says:
Zuch, the CA marriage amendment was decided through an election, so, sure, the question on the ballot was a political question decided by a political process. The proponents of either side made their statements in that context. Millions judged and voted.
My questions earlier are asked in the context of testimony made in a judicial process in which a high priority is on ensuring fair treatment of the litigants.
For instance, if one does not presuppose bigotry, and you said you do not, and if one does not predict the testimony of the trial participants will be political statements, as you said you do not, then, your question to me does not follow my questions to you.
Elfwreck, some people cannot tell the difference between the legitimate affirmation of the opposite-sexed basis of marriage and the political statement that “support for Prop8 is anti-gay bigotry.”
The legal representives on the anti-8 side have mapped out a strategy to restate that political message. Judge Walker appears to be prejudicially remaking his courtroom into a stage for amplifying that political message.
The testimony of the other side will be on the question of law and the legal facts.
So, would you answer yes and yes to the two questions I had asked earlier?
1) did you presuppose that the trial participants on the side of the CA marriage amendment are homophobes and 2) did you predict that their testimony will consist of political statements?
Would you answer the third question differently in the context of treating litigants fairly? I re-ask because the concern is not just about reacting to assaults made, for example, but pro-actively dealing with the prospect of such things in such a way as to provide for a fair bench trial.
In effect, are you saying that, yes, they would deserve to be subjected to intimidation, harassment, or abuse — provided that it is politically driven?
January 8, 2010, 4:01 amAnatid says:
Freedom!!!!!!!!! does have a point. After all, just like with homosexuality, there are neurological markers that correlate with conservatism, which in turn correlates with Republicans. Although we currently do not have rat and fruit fly models in which we can genetically or hormonally control the rat or fly’s choice of political party, like we have with sexuality. If we ever figure out how to tell if a fly is a conservative, then we’ll get back to you.
Of course, there are also neurological correlates with violent criminal behavior, but we don’t let murderers off the hook just because their orbitofrontal cortex is small. But we do grant leeway for certain arbitrary types of mental illness. Really, the notion that our legal system accurately reflects what is “innate” and what is a “choice” is laughable.
Meanwhile, if you haven’t already, I recommend everyone here take a basic course on behavior and development. Fascinating stuff.
January 8, 2010, 4:19 amMichael Ejercito says:
This is a much more important issue than the judge’s private behavior for which he is responsible only to the LORD.
What this judge should have done is kick the ball, so to write, to the Ninth Circuit (who would likely kick it to the Supreme Court). Perhaps the Supreme Court would have remanded the case back to Judge Vaugh for trial, perhaps not. Either way, there is controlling precedent which can only be overridden by the United States Supreme Court.
January 8, 2010, 10:09 amzuch says:
Which “lord”? I thought we had abolished titles of nobility in this country….
Cheers,
January 8, 2010, 11:16 amSmooth, like a Rhapsody says:
Which “lord”? I thought we had abolished titles of nobility in this country
I think he means ‘Jack Lord’: Hawai’i is in the 9th Circuit, right?…
January 8, 2010, 12:37 pmElfwreck says:
Starting with the end–Harassment and abuse, no. Intimidation for bigotry–for claiming that some people are inferior and don’t deserve the same legal & social rights as others, based on their innate identity–depending on form, yes, whether or not it was politically driven. The difference between “social censure/intimidation” and “harassment” is left as a judgment call, either among the individuals involved, or if necessary, to be established in court.
Mashing 1 & 2 together:
I’ve seen no evidence that support of Prop 8 was caused by anything other than homophobic bias. I’ve heard no arguments against same-sex marriage that did not hinge on either “my religion thinks it’s immoral, therefore it should be illegal,” or “I would be very, very disturbed if a person of my own sex thought I was potential marriage material.”
Usually, those points are hidden behind a couple of layers of “but it’s never been that way before!” as if we only grant pre-existing civil rights.
(And wow, this has drifted from the televising issue. Hmm. I think the whole thing should be recorded on video, and available as part of the public record; I’m less certain there’s any overwhelming benefit to televising it live. I like the idea, but can also see the value in enough time-delay to remove confidential info, should any arise.)
January 8, 2010, 1:45 pmMichael Ejercito says:
At the time of its ratification, the Fourteenth Amendment was not understood to subject gender discrimination to the same level of scrutiny as racial discrimination. Indeed , the Supreme Court Minor v. Happersett rejected the argument that the amendment required states to grant voting privileges equally on the basis of gender.
The original colonies defined marriage to be between one man and one woman. Care to blame that on homophobia?
January 8, 2010, 2:43 pmElfwreck says:
They did not define marriage to be “between one man and one woman,” or there would have been no perceived need for Morrill Anti-Bigamy Law in 1862.
I blame the fact that same-sex marriages were not considered possible on a combination of homophobia and sexism–in the 19th century, a marriage in which the woman claimed the right to refuse sex, keep her own name & property, and determine the rearing of her children, was considered a sham, not a real marriage. In that setting, a marriage between members of the same sex was not permissible (even if the societal homophobia could be overcome) because marriages were not allowed to have two legally equal partners.
January 8, 2010, 3:00 pmChairm says:
Elfwreck, the questions I asked are directly relevant to the televising issue which endangers the paramount judicial responsiblity of ensuring fair treatment of the litigants.
You said that the trial participants deserve to be initimdated, whether or not that intimidation is politically driven.
You said that they deserve to be intimidated, if they claimed “that some people are inferior and don’t deserve the same legal & social rights as others”.
The trial participations have not made that claim before and they have given no indication that they would make such a claim in their testimony.
Given that your answer was conditional, and in light of the lack of the claim you proposed, does that mean your answer is actually, no?
* * *
You said:
“I’ve seen no evidence that support of Prop 8 was caused by anything other than homophobic bias.”
The trial participants are not on trial. The millions of voters who voted Yes are not on trial. At issue is a question of law. The anti-8 litigants have presented their strategy of impugning the motives of the trial participants on the side of Prop 8. You seem to be in favor of Judge Walker’s efforts to give a political stage for the amplification of the political message of the anti-8 side.
You said:
I’ve heard no arguments against same-sex marriage that did not hinge on either “my religion thinks it’s immoral, therefore it should be illegal,” or “I would be very, very disturbed if a person of my own sex thought I was potential marriage material.”
Again, this is irrelevant to the question of law.
A voter’s opinion, and hence voting decision, can be informed by his religious beliefs, morality, and social values. That is not at issue before the court. This bench trial ought not become a political forum to rehash the arguments of the political campaigns.
That said, of course there are sound arguments in favor of the CA marriage amendment. There are secular, liberal, libertarian, irreligious, conservative, religious, and social scientific arguments on the pro-ammendment side — as there are on the other side. The people with whom you disagree are not the cardboard cutouts you’d portray them to be.
The problem with the televising of this bench trial is that it is impartial. Time-delay is not a solution to a bad decision in this instance. Besides, this so-called “pilot” has no guidelines for a nuanced presentation — time-delayed or otherwise. It would be controlled by Judge Walker, whose neutrality is now disputed due to the series of biased steps he has already taken before the trial begins.
January 8, 2010, 3:31 pmElfwreck says:
Whether or not they directly make that claim in those words, insisting that the law should favor one innate category of people over others at least strongly implies that claim.
I’ll posit a lack of interest in the intimidation of expert witnesses whose purpose is to speak about legal procedures and how they were followed. However, by their willingness to support discrimination–even indirectly and abstractly, by participating in fact-finding details with the known purpose of supporting discrimination–I’m rather lacking sympathy.
Would they “deserve” intimidation? Probably not. Should effort be made to prevent it? I’m less sure of that, since the efforts to prevent that intimidation also serve to reduce public awareness. There’s a difference between “what people deserve, as sensible people believe” and “what efforts the government should make to provide them with that.”
I’m of the opinion that any trial whose transcripts are available to the public, should have its video available to the public. I wouldn’t (yet) go so far as to say the court should shoulder the cost of providing those videos–but I gather that plenty of agencies are willing to take on those costs in this case, and plenty of others.
1) I’m aware that I’m so strongly anti-8 that I’m not impartial when considering facts and “shoulds.”
2) I don’t consider that a major stumbling-block. We all have biases, including officers of the court; I’d rather they were known than that the courts pretend they didn’t exist.
3) Convincing me of anything is irrelevant. I am not a judge, not a lawyer, not a juror (and not likely to be; mentioning FIJA during the general questioning seems to be a quick ticket out of the box); I’m allowed to have strong, irrational opinions, even on matters of law.
4) On an abstract level, I’m aware that I’d like an impartial judge in all cases. That said, I’m certainly not filing any paperwork to suggest that Walker should recuse himself; it’s not my job to sort out if a judge seems to be biased toward “my side.” If one side thinks he’s unfit, it’s their task to take legal steps about it.
5) I expect any “pilot” program of changes in publicity for trials is going to be attached to a high-profile, controversial case. I like this one–no jurors, no “ordinary” witnesses, no likelihood of personal details being revealed on the stand. Issues of data-facts and law, not interpretations of personal experiences. Regardless of bias in this case, we could choose worse for televising.
January 8, 2010, 3:59 pmange says:
For those few defending Walker’s actions, I notice that none of you defend his appalling actions in trying to change the rules. His first attempt was blatantly illegal. When caught, he then “erased” the record of his order by yanking it off the court’s website. He then substituted an equally lawless order on New Year’s eve that short-circuited applicable statutes and judicial conference rules on public comment. He undermined completely the purpose of those rules. When his misconduct was raised, what did he do? He compounded his lawlessness by eliminating entirely the established procedure for public comment and abusing the “immediate need” provision to impose his will. He does this in a highly charged political case where there is uncontestable evidence that witnesses are fearful and have refused to testify for quite reasonable fear fear of harassment. Prop 8 proponents and even those who dared to support Prop 8 or contribute money to the cause have been subjected to all manner of grotesque harassment by gay marriage militants. How can any lawyer, whatever his political bent, even pretend to defend this judge’s actions? All should condemn it. As for the Loving v. Virginia analogy, it is a false one. If Walker is gay, he would not only grant himself a right to marry (a right the justices in Loving already had), but have (and undoubtedly seize)the opportunity to dismiss (if not ridicule) as narrow-minded bigotry the basis for Prop 8 on the false contention that the intiative had to do with bigotry and revulsion at homosexuality- which is utter nonsense. Many people who support civil unions for gays (precisely because they are not bigots) also oppose gay marriage for legitimate reasons. Plus, Walker’s condemnable conduct on the televising issue is itself powerful evidence that he is allowing his personal interests to overcome his duty of neutrality and impartiality. At the very least, his conduct has created the APPEARANCE of impropiety and impartiality and every party and most especially the public, have a right NOT to have the smell of suspicion around a judge. I think the 9th Circuit should not only enjoin Walker’s order but exercise its supervisory authority and order Walker off the case in consequence of the egregiousness of his conduct. Here you have the Prop 8 proponents forced to take this judge on and file an emergency writ. They should not have to face him again. Walker forfeited his right to preside over this case.
January 8, 2010, 9:12 pmAnatid says:
I would hope that our laws more closely reflect our nation’s core values (such as freedom and equality), basic bureaucratic pragmatism (it’s more expensive to have parallel systems for marriage and domestic partnership than to have a single system), and empirically-established fact (homosexual couples are not significantly different from heterosexual couples in marriage stability or childrearing) than the opinions of a bunch of folk who think that all of the above don’t matter.
Social science? Name one.
January 8, 2010, 10:04 pmRick DeLano says:
Have you noticed how rapidly support for the pre-natal murder of defenseless little babies has been slipping the last few years?
Go billboards!
January 8, 2010, 10:33 pmChairm says:
Ange made very good points that are directly on-topic:
Agree, or disagree, her comment is chocked-full of points that go the judicial priority of ensuring fair treatment of litigants.
January 9, 2010, 3:46 amChairm says:
Anatid, regardless of what you think, voters may inform their opinions, and their voting decisions, as they wish.
For example, a person in favor of SSM such as Elfwreck has acknowledged that he is “allowed to have strong, irrational opinions, even on matters of law.”
He has one vote. As does the next person who might agree with him but for very different reasons. As does the next person, again, who might disagree for reasons that use the very same principles as either of the previous two voters.
But none of that is on trial here. Or, at least, it ought not to be given our judicial process. That goes to the principles of good governance and the framework of our form of self-government (i.e. our society’s core values).
* * *
When you asked for an example of a social scientific argument (on which side, btw?), is that your admission that you have not followed the controversey close enough to have discerned such an argument?
Or is it your signal that you would like to debate the merits of such an argument here in this discussion about the judicial responsiblity to provide fair treatment of litigants?
I ask because the bias of Walker to set the stage to amplify the grandstanding of the anti-8 litigators is a conflict with our nation’s core values.
January 9, 2010, 4:09 amChairm says:
Elfwreck, the trial participants have not insisted “that the law should favor one innate category of people over others at least strongly implies that claim.”
The anti-8 side has asserted such a claim was made. Their strategy is to make that political assertion again and to smear the pro-8 side be grandly embellishing that assertion to impugn the motives of the proponents of the marriage amendment.
If your answer is conditional on an assumption to that the asserted claim was made by the trial participants — or that they will make such a claim — then, your yes answer is not impartial, as I think you’ve admitted anyway.
The Judge should not, by virtue of his role as an impartial adjudicator, be led by such impartiality. If he finds it beyond his human talents, he should not pretend to be neutral and so he ought to feel duty-bound to recuse himself.
You, on the other hand, are under no such duty, of course, as a spectator to the proceedings. Indeed, the political staging underway here counts on fanning that very sentiment. That is a strike against televising.
* * *
The text of the marriage amendment discriminates, yes, but not between ‘innate groups’ but rather between marriage and nonmarriage. Most of the nonmarriage category is two-sexed, not one-sexed, so the amendment was not discriminating on the basis of the one-sexed category. No sexual orientation criterion is in the amendment. No such criterion is in the marriage law.
Discriminating between marriage and nonmarriage is legitimate, lawful, and constitutional, as per controlling precedents. an impartial federal judge not have gone to trial on the weak basis that Walker has chosen.
January 9, 2010, 4:25 amChairm says:
Apologies for the typos that I did not catch:
– If your answer is conditional on an assumption that the asserted claim was made by the trial participants — or that they will make such a claim — then, your yes answer is not impartial, as I think you’ve admitted anyway.
–
Discriminating between marriage and nonmarriage is legitimate, lawful, and constitutional, as per controlling precedents. An impartially performing federal judge would not have proceeded to trial on the weak basis that Walker has chosen.
January 9, 2010, 4:31 amMichael Ejercito says:
A trial would only be necessary if there were factual issues involved.
There is no dispute that Proposition 8 defines marriage as between one man and one woman.
The question in the suit is a question of law- whether or not the Fourteenth Amendment requires states to recognizes same-sex unions as marriages.
January 9, 2010, 12:24 pmParenthetical says:
There’s more to that question than what Prop 8 defines. For those who have followed the proceedings, it’s clear that there are other questions.
Much the testimony goes to (quasi)-suspect factors. Since Lawrence, one can certainly argue that the EP status of gay people as a class is an open question in the Ninth Circuit. Appellate panels have struggled with the lack of any clear factual record to make a determination in the handful of relevant cases that reached it.
More controversially, Walker has thus far been willing to entertain evidence that the Prop 8 campaign deliberately appealed to voter bias against gay people. And the Ninth Circuit has tentatively accepted that line of inquiry.
Obviously some believe that Baker v. Nelson foreclosed any further inquiry into the questions presented by the plaintiffs. Courts haven’t responded uniformly to that claim. For now, Walker seems to be joining the Eighth Circuit (Citizens for Equal Protection v. Bruning). That position scarcely makes him a loose canon.
Walker’s rush to televise his proceedings is troubling (to use a polite term). That, however, is entirely separate from whether the Perry claims deserve to be heard at trial. To be sure, the Prop 8 folks dispute the scrutiny-related facts that Perry posits. Is Walker biased because he’s willing to give plaintiffs an opportunity to prove those facts? I don’t see why that would be.
January 9, 2010, 12:57 pmpopgun says:
For now, Walker seems to be joining the Eighth Circuit (Citizens for Equal Protection v. Bruning). That position scarcely makes him a loose canon.
If I read you correctly, then you are saying Walker is leaning towards rejecting claims a state constitutional amendment offends equal protection. Yet what I’m reading above tends to promote Walker as a loose cannon with respect to settled law.
January 9, 2010, 1:48 pmPopgun says:
Yet what I’m reading above tends to promote Walker as a loose cannon with respect to settled law.
Actually, the loose cannon aspect of this thread is about his wishes to televise the proceedings. Why would he want to do that? Could it be, for example, he wants to uncover the feeble attempts by the State of California to uphold it own law, fought for and specified by it’s people twice before? I have heard the defense the state is using is lame, scarecrows that are full of holes.
I think Walker wants to demonstrate the corruptness of the government in defending its own laws.
January 9, 2010, 2:10 pmParenthetical says:
I meant for my reference to be to the Eighth Circuit’s position on Baker v. Nelson (that summary disposition is worth a passing mention, but does not preclude fresh analysis of the EP claims).
It’s less clear to me how Walker is inclined to rule on the ultimate question. He seems to acknowledge a substantial basis for heightened scrutiny on the EP claim. I see no real indication on the substantive due process question.
I’d be surprised if Walker ruled differently than Eighth Circuit unless he’s persuaded by the quasi-suspect class argument (and believed he has latitude to reach that result under 9th Cir. precedent). That said, Walker is as independent as a hog on ice, so throwing darts may be a more reliable predictor.
January 9, 2010, 2:21 pmParenthetical says:
I don’t see Walker as a loose cannon on settled law. He does, however, gravitate to open spaces among settled cases with great gusto. That is, to Walker’s lights, where the fun part of being a judge is.
Well, there is another fun part in being Judge Walker. Presiding over counsel, particularly making them dance to Walker’s unpredictable tune, seems to bring a smile to his face every time. I don’t see any political motivation to his desire televise this case. Rather, he seems to think that everyone will enjoy watching him have fun. (I’m not joking.)
January 9, 2010, 2:30 pmJohn D says:
Chairm,
When you asked,
you seem to have forgotten your earlier comment:
Since you brought this up in this discussion of whether or not Walker ought to be allowed to televise the proceedings, I would think it had some relevance to the issue at hand.
I’m certainly aware of “secular, liberal, libertarian, irreligious, conservative, religious, and social scientific arguments on the anti-amendment side. I’m not aware of any honest or consistent arguments, other than religious ones, on the pro-amendment side.
Non-religious arguments are typically not related to how marriage is actually practiced in the United States and are phrased as supposed absolutes with big exemptions. “Marriage is for procreation (except when it isn’t).
I suppose this is in part important in the question of whether or not Perry is a “show trial,” that is, a trial whose conclusion is determined before the actual trial (although I’ve been assured that Supreme Court cases (state and federal) are typically decided on the briefs, which would make the hearings part of the show). It would seem that there is a real question of impermissible discrimination to settle here.
As for whether the trial should be televised, my thought is that courtrooms are typically open to the public (although in some rare cases one might be forced to submit to a urine test as a spectator, although that’s not how it’s supposed to go). Televising the proceedings is just widening the spectator bench. If I could quietly watch from the courtroom, then I should be able to watch from home (where my murmurings are unlikely to disrupt proceedings).
January 9, 2010, 3:13 pmChairm says:
Michael Ejercito says:
The common practice on this type of challenge to the man-woman criterion has been to rule as a matter of law and not to proceed to trial. Neither the 14th nor federal precedents have changed sufficiently, if at all, to prompt this trial.
Michael Ejercito says:
Walker has enabled the anti-8 litigators’ strategy of putting the amendment’s sponsors on trial.
A supposed factual inquiry into the attitudes and motivations of the sponsors does not provide a legitimate basis for deciding whether or not the amendment is constitutional.
The campaign material is on the record. The operation of the marriage amendment is clear. Its meaning is merely a reaffirmation of the opposite-sexed basis of marriage that is in in accord with precedent.
Michael Ejercito says:
Fair enough. But that does not hinge on the motivations of the amendment’s sponsors.
* * *
Beyond that, the anti-8 strategy and Walker’s strange maneuveres lean heavily against televising the proceedings at all. The latter ought to disqualify Walker to sit as judge for this trial.
The Prop-8 litigators’s have no interest in impugning the motivations of the anti-8 plaintiffs. But that’s the entire strategy of the anti-8 ligitators, although the supposedly new question of law does not depend on a ‘fact finding’ inquiry of that sort.
The upshot is that the grandstanding that Walker has enabled, and his push to televise has amplified, works to make for unfair treatment of the litigants. It serves political effect and detracts from the judicial process. I’d go further: it corrupts the judicial process by subverting it to the political message of the plaintiffs.
January 9, 2010, 3:32 pmParenthetical says:
FYI, those are mostly my postings you quoted (rather than Michael Ejercito, as you cited).
In the three passages you quoted from me, I was talking about suspect-class factors. Those are, in large part, factual issues. And, they have nothing to do with the attitudes of the proposition’s proponents. The suspect-class inquiry deals with whether or not homosexuality in general constitutes a discrete class for Equal Protection purposes, whether the class has been the object of invidious discrimination, and what political power the class may have to remedy the discrimination through ordinary means. This is a quite generalized inquiry in which neither the plaintiffs’ nor the defendant-interveners’ attitudes or experiences mean much. It is the historical experience of the entire class that matters. Hence all the professors testifying as experts.
The proponents, of course, vigorously dispute all but one of the relevant suspect-class facts. Hence, Walker’s rather unremarkable resort to a trial so that the finder-of-fact has some testimony and other evidence upon which to determine the truthiness of it all.
Where things get a bit more contentious is in whether the proponents actually sought to exploit the voters presumed biases against the homosexual hoard. Strictly speaking, it matters not what the individual proponents feel. Rather, it’s a matter of how the electorate was “activated” by the campaign’s messages and tactics. Assuming Walker even finds some facts in all that mess, it’s not entirely clear how relevant that is to a Romeresque analysis (Colorado amendment that was struck down as the product of irrational animus toward the aforementioned hoard). Walker hasn’t evinced any interest (that I can detect) in the personal opinions/feelings of this or that proponent. In this sense, the proponents aren’t on trial except insofar as they exploited the alleged (and either illegitimate or irrational) biases of electorate.
So, I find the resort to a trial unremarkable (by virtue of the suspect-class claims). Trying to sort out how/if the electorate was motivated by animus is pretty murky. Whether difficult or easy to discern that in action, the inquiry may indeed be relevant.
January 9, 2010, 4:24 pmMichael Ejercito says:
Why would this be relevant?
January 9, 2010, 6:58 pmParenthetical says:
If the court proceeds under a rational-basis analysis, I can’t see how it would be relevant (even under Romer, the animus was presumed). But the level of scrutiny is in play.
January 9, 2010, 7:32 pmMichael Ejercito says:
In Minor v. Happersett, the U.S. Supreme Court struck down a 14th Amendment-based challenge that state laws allowing men, but not women, to vote was unconstitutional. Clearly the level of scrutiny that gender-based discrimination is subject to was insufficient to forbid states from denying suffrage on the basis of gender. Even if sexual orientation were subject to the same level of scrutiny as gender, would it be sufficient to forbid states from denying marriage on the basis of gender of sexual orientation? Would a separate institution that provides equal rights be sufficient for states that do not offer same-sex “marriage”?
Note that in United States v. Virginia, the Supreme Court refused to rule on the question on whether or not separate but equal on the basis of gender was constitional.
January 9, 2010, 7:47 pmParenthetical says:
I struggle to see how Minor illuminates anything about suspect-class jurisprudence. Care to elaborate?
January 9, 2010, 8:46 pmMichael Ejercito says:
Why was the 14th amendment insufficient to prohibit states from denying suffrage on the basis of sex?
January 9, 2010, 9:05 pmChairm says:
Apologies for misattributing those passages.
* * *
He took the extraordinary step of ordering the pro-amendment side to submit their confidential communications — internal communications as well as communications with contractors.
Individuals have received a subpoenas from the anti-8 litigators who have already mapped-out for the Judge their strategy of delving into the trial participant’s views on homosexuality.
While a preliminary order against Judge Walker’s order has been issued by the 9th Circuit, Walker’s order has not been totally over-ruled.
I doubt that evidence of hatred would be found, anyway, however it is a fishing expedition into personal motivation that begins with putting aside the First Amendment privilege.
Let’s suppose that the order for confidential documents is over-ruled.
That would leave for consideration the campaign’s public communications which the judge can readily find without further testimony from campaigners and their contractors.
Also, let’s suppose that sexual orientation is deemed some level of suspect classification. The marriage amendment does not classify on that basis.
The marriage amendment’s meaning is clear in terms of requiring equal participation of both sexes.
I think it is an over-reach for this Judge to have proceeded to trial instead of taking the more common approach. His bias was shown in a series of steps that favored the anti-8 side and disfavored the pro-amendment side. If his bias is unintended, does that really matter when it comes to ensuring fair treatment of the litigants?
January 10, 2010, 5:30 amParenthetical says:
And the Ninth Circuit reversed that order already (the order is essentially final, BTW; it’s been amended & rehearing already voted on and denied). As for communication with the public, the parties can’t seem to agree on the facts. There isn’t much beyond the voter guide on which they agree. Frankly, I find this line of inquiry dubious (unless there was real ambiguity about the operation of the amendment, rather than it’s genesis).
Regardless, I can’t find any suggestion in the trial brief, proposed findings of facts, witness list, exhibit lists, etc. that suggests that any of the proponents’ feelings are relevant. There are some facts (fewer than ten out of 200+) that go to what the proponents said in front of this or that segment of the electorate. Can you point to something in the record to suggest the plaintiffs are delving into the campaign proponents’ views on homosexuality? (Obviously, the experts views on homosexuality are in there; surely that’s perfectly appropriate for trial.)
As near as I can tell, you’re just presuming facts. Perhaps I should expect that from someone who decries the use of a trial in a suit where facts are vigorously disputed.
January 10, 2010, 12:10 pmChairm says:
I thought it was a preliminary order. I stand corrected.
My point remains: Judge Walker’s order was biased in the first place and went to the motivations of the pro-amendment sponsors and their contractors. It is among other steps he has taken that suggest impartiality.
The anti-8 lawyers have described their legal strategy which is as I described it earlier. To wit: show — or at least strongly suggest — that the sponsors are motivated by bigotry.
Howso? The amendment’s operation is independant of such views. Why might you presume otherwise?
January 10, 2010, 10:35 pmChairm says:
Heh, I said impartiality when I meant to type partiality.
January 10, 2010, 10:37 pmParenthetical says:
Much of the expert testimony focuses on whether gay people are a (quasi) suspect class. You know: are gay people insane or not, have they been the object of discrimination, etc. Usual fare for a suspect class claim. It is in this context that I find such expert testimony about homosexuality unremarkable.
Of course, that’s largely separate from the operation of the law. There will be some testimony about how being married or not married helps/harms couples.
January 11, 2010, 12:40 pmMichael Ejercito says:
We know that during the Revolutionary War, a Lieutenant Frederick Gotthold Enslin was convicted of attempted sodomy and “His Excellency the Commander in Chief approves the sentence and with Abhorrence & Detestation of such Infamous Crimes orders Lieutt. Enslin to be drummed out of Camp tomorrow morning….”
Were homosexuals persecuted for having a homosexual disorientation, or were they punished for committing the abhorrent and detestable act of sodomy? Were homosexuals persecuted even if there was no proof that they engaged in sodomy?
January 11, 2010, 2:13 pmChairm says:
That is the point I had attempted to raise earlier.
If that is the line of inquiry, then, that changes the case from one questioning the constitutionality of the marriage amendment to one questioning the constitutionality of society discriminating between marriage and nonmarriage in the first place.
The nonmarriage category is broad and is comprised of two-sexed, one-sexed, twosome and moresome, and many other subcategories of relationship types and kinds of living arrangements. As with the marriage category, the nonmarriage category is not defined by a gay-straight dichotomy.
A trial is not required to discover these facts, surely.
Gayness is not a criterion for ineligiblity to marry; straightness is not a criteriion for eligibility to marry. This, too, is a know fact that Walker’s court need not search for in the testimony of experts, surely.
January 11, 2010, 2:41 pmTomas Mendoza says:
You are absolutely right, we have to change our way of thinking in total.
May 29, 2010, 3:22 pmMichael Ejercito says:
I can cite Ninth Circuit precedent on this issue.
High Tech Gays v. Defense Industrial Security Clearance Office 909 f2d.375. Their ruling held that homosexuals did not constitute a suspect or quasi-suspect class under federal equal protection precedent.
May 29, 2010, 7:45 pmPeter B says:
Yeah, High Tech Gays was decided before Lawrence and Romer and was 2 decades ago. Subsequent rulings by the 9th Circuit indicate a case for heightened scrutiny.
You might as well cite Bowers v. Hardwick as evidence that anti-sodomy laws are still constitutional.
June 23, 2010, 3:39 pm