While the Supreme Court’s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here — split along familiar ideological lines, with Justice Kennedy joining (and Orin suggests, writing for) the majority — paints a picture of a district judge and to some extent an appellate court acting hastily and lawlessly to make special rules to favor one side in a single case.
That may or may not be what the district court did, but that’s what five Justices have concluded. As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial.
The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses based on criticisms and retaliatory action some claim to have faced after Prop 8 passed. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.
All in all, it’s a bad start for the judicial challenge to Prop 8.
Kent Scheidegger says:
Criticisms? No. Harassment and threats are what this is about. And you don’t take these claims seriously?
I concluded long ago that every movement’s worst enemy is its own lunatic fringe. The gay rights movement is no exception. People who are doing exactly what the Ku Klux Act was passed to prohibit, threatening people with violence for exercising their rights to participate in the political process, must be taken seriously and vigorously denounced by the rational folks on their own side of the aisle.
January 13, 2010, 7:18 pmyarrrrr says:
http://twitter.com/FedcourtJunkie/status/7727549067
http://twitter.com/FedcourtJunkie/status/7727589137
O’Rly?
January 13, 2010, 7:27 pmSteve says:
Hard to disagree with Dale here. The conservative majority clearly has a low opinion of what’s going on in the district court (and maybe they should, but that’s beside the point).
Justice Kennedy is big on propriety.
January 13, 2010, 7:33 pmruuffles says:
Are you referring to Chief Judge Kozinski or the three judge panel (Silverman, Paez, and Bea)? None of the four are raging liberals, especially not Bea.
January 13, 2010, 7:42 pmConway says:
Kennedy made clear in Lawrence that he didn’t want the opinion extending governmental recognition to homosexual relationships.
It’s clear that he hopes off the train when it comes to finding a “right” to same-sex “marriage” in the Constitution.
January 13, 2010, 7:48 pmTwirip says:
Good grief! What would it take to convince you that that is what the district court did?
It’s disturbing that you cannot set aside your own biases far enough to recognize such an obvious fact.
It was a bad start long before the SCOTUS noted the improper behavior on the part of the district court.
January 13, 2010, 8:13 pmMark Field says:
Isn’t this a case where you didn’t need a weatherman to know which way the wind was going to blow? Seems to me that the basic strategy of the case is flawed and this ruling only highlights that flaw: the inability to count to 5.
January 13, 2010, 8:14 pmTwirip says:
Well “if they should” then one would expect the liberals on the court to agree. So it’s not beside the point.
January 13, 2010, 8:16 pm801d2d says:
A crystal ball, perhaps? Maybe some animal entrails? Some actual evidence to prop up assumption would surely do the trick.
January 13, 2010, 8:18 pmTwirip says:
I’d be interesed in seeing Mr Carpenter try to make the case that Judge Walker has been anything other than completely biased and unprofessional in his handling of this case.
January 13, 2010, 8:21 pmzuch says:
A boycott!! The indignity. Imagine had this been poor Ku Klux Klanners! They wouldn’t be able to run their businesses (at least with black customers)….
Cheers,
January 13, 2010, 8:52 pmzuch says:
What’s really annoying is that the merits of broadcasting trials are being decided here on the basis of whether this trial should be publicly broadcast. FWIW, I think that all court proceedings (with certain limited exceptions) should be publicly available/accessible….
Cheers,
January 13, 2010, 8:58 pmzuch says:
How so?
And their testimony will not be a matter of public record?!?!?
Cheers,
January 13, 2010, 8:59 pmzuch says:
The Pro-Prop. 8 witnesses may testify differently depending on whether people see them testify?!?!? I can see why this might concern the court (as it concerns me), but I don’t understand why that means the public can’t see them testify. It brings to mind this excellent Glenn Greenwald blog post….
Cheers,
January 13, 2010, 9:09 pmVisitor Again says:
I was one of what must be thousands on thousands of interested members of the public who were eager to watch the trial over the Internet, but who were hugely disappointed when the Supreme Court stepped in to block this step towards tranparency in government by the least understood governmental branch, the judiciary.
The majority opinion’s discussion of irreparable harm is hilarious. It shows the lengths these five right-wing justices will go to block the opportunity for the public to become informed about one of the vital issues of our time and about how the federal judicial branch operates. Rarely, if ever, has any court accepted claims of intimidation so unsubstantiated, so conjectural. To issue extraordinary relief on this flimsy basis is, well … extraordinary.
Moreover, to reach this result, the majority had to invent a new role for the Supreme Court, micromanagement of district court administration. Apparently the right wing on the Court fears transparency in government, it fears an educated and informed public.
The rightist Supreme Court majority won’t be able to stop the trial, which will expose how empty the claims of the Proposition 8 proponents are and put it on record. Even if the plaintiffs eventually lose this case, quite possibly at the Supreme Court level, the public discussion it will engender–albeit limited by this Court decision precluding television coverage–will help the struggle for recognition of the same-sex right to marry. It’s only a matter of time.
January 13, 2010, 9:10 pmSteve says:
What’s really annoying is that the merits of broadcasting trials are being decided here on the basis of whether this trial should be publicly broadcast.
It’s not an accident. Opponents of televised trials within the federal judiciary seem to take the position that the more high-profile a case is, the more likely it is to become a circus and thus kept off the airwaves. Of course, the high-profile cases are precisely the ones people want to watch, hence the problem.
January 13, 2010, 9:33 pmBob from Ohio says:
Doubling down on stupid.
The next reversal will be clearer, I`d wager.
January 13, 2010, 9:42 pmSmallholder says:
The opposition to you tube is NOT based on fear of retribution. The anti-gay folks’ names are in the open record and their witnesses’ names and affiliations are being widely reported in the print and internet media. If (and it is a big IF) gay thugs are laying for them, it is going to happen whether or not the video is broadcast.
The real reason to oppose broadcast is because the visual record of the case will make clear even to non-court followers that the arguments against gay marriage are very week. Bigotry does not thrive in the light of day.
January 13, 2010, 9:48 pmMark Field says:
This is quite possibly the most offensively stupid claim I’ve seen on this site. Let’s consider some of the relevant distinctions:
1. Blacks have always been a minority in American life, constituting roughly 10% of the population. Those who oppose gay marriage are a majority even today, and in the past a much larger majority.
2. Blacks are readily identifiable in public. Broadcasting this trial to 5 extra courtrooms will increase the identifiability of the witnesses by a trivial extent.
3. The history of race in this country is replete with disgusting acts of violence directed against blacks. There not only is no such history against the opponents of gay marriage, there is to the contrary an unpleasant history of violence against gays.
4. There is no evidence in the record — not a scintilla — that any of the potential witnesses have been threatened with violence. Their concerns about that, if they indeed have any, are entirely a matter of fear and speculation.
January 13, 2010, 10:12 pmOrin Kerr says:
Visitor Again,
Given that Justice Kennedy is the very likely author of the opinion today, and that he also wrote Lawrence v. Texas and Romer v. Evans, isn’t it highly conjectural to say that this was the action of a “right wing” Court that was trying to keep people from learning about how strong the case is for gay marriage?
January 13, 2010, 10:12 pmChris says:
“As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial.” Unless you lose at the trial court! But, I gather, that seems unlikely.
January 13, 2010, 10:38 pmArthurKirkland says:
Hear, hear!
(And see, see!)
January 13, 2010, 11:11 pmAndrew Berman says:
I love how–all of a sudden–people who have never previously had a word to say about broadcasting court cases now are piping up about how important it is. Give me a break.
Let me be perfectly clear: Many of those whom are clamoring that the trial be broadcast are absolutely expecting and hoping for harassment of the defenders of Proposition-8. “What are they hiding?” “Why are they afraid to show their faces?” Given what has happened to so many Proposition-8 proponents, we know exactly why they are afraid to show their faces on YouTube and the taunts made against them are the taunts of bullies.
January 13, 2010, 11:24 pmDNJ says:
I’d say Paez is one of the most liberal federal appellate judges in the nation. But you’re right about the others.
January 13, 2010, 11:27 pmPerseus says:
If that were true, the Court would have ruled that the public shall never have access to any of the proceedings in any form. So please spare us the hysterical hyperbole.
January 13, 2010, 11:37 pmVolokh Groupie says:
What’s really annoying is that the merits of broadcasting trials are being decided here on the basis of whether this trial should be publicly broadcast. FWIW, I think that all court proceedings (with certain limited exceptions) should be publicly available/accessible….
Except it really isn’t. Have you read the opinion?
It specifically went out of the way to point out that it was taking no opinion on the issue in general. The case was decided based upon whether the court complied with local rules (and which the dissent suggests is a case of SCOTUS overstepping its bounds). I’ll even quote it for you despite the fact it been linked on this blog multiple times:
And there is precedent on the issue of broadcasts (again stated in the opinion and the dissent) and the specific distinction between their potential effects on witnesses and the case [whose purpose is to adjudicate, not provide c-span additional programming] as opposed to simply having the text of the case on record that specifically cites cases like Estes v. Texas to the Sony BMG case that address the intricacies and issues involved.
January 13, 2010, 11:40 pmSteve P. says:
The majority opinion is quite correct in that you can’t unring a bell. If this had bad consequences, it would be just about impossible to reverse the damage.
That said, so what? I’m always in favor of more information over less, regardless of what that information is. Hiding things from the citizens is one of the worst attributes of the government, in my opinion.
If there truly are harassment and threats, those should be dealt with by law enforcement, and anyone who violates a law should suffer the consequences. I certainly hope it isn’t the judiciary’s job to worry about what people might or might not say.
January 13, 2010, 11:45 pmVolokh Groupie says:
You do realize insolence and immaturity aren’t an argument right? This goes DIRECTLY to the central point involved in broadcasting cases – whether they have a ‘chilling effect’ on testimony. We might feel that those who advance and argue in favor of views that are repugnant to our should meet social censure, but that censure shouldn’t arise from potential testimony in a courtroom, where one looks to get uninhibited and honest testimony.
January 13, 2010, 11:46 pmSteve P. says:
I should point out that I recognize my comment above is not on point as to the validity of the decision. I was writing off-the-cuff, addressing the policy questions at hand rather than the legal minutiae.
January 13, 2010, 11:50 pmVolokh Groupie says:
The opinion here was pretty clear that it isn’t simply an issue of ambivalence over potential repercussions that witnesses may have to face versus transparency but rather it was about the fact that witnesses may altogether alter or refuse honest and valuable testimony based upon their own fears of reprisal. The belief that any illegal repercussions they face will then be dealt with law enforcement probably wouldn’t comfort them and wouldn’t do anything to minimize a ‘chilling effect’.
The broadcast issue is also a fairly large one (and has been discussed here and other places). Oral arguments before the SCOTUS clearly are different than cases like these
January 13, 2010, 11:51 pmJeff Walden says:
I’m all fine with increased coverage, recording, and broadcast of court proceedings — but if that is to happen, it should be as part of a general change to the law. It should not be as part of the procedures in a massively hyped, one-of-a-kind case like this one. It should not be in a case just because one side or the other reached sufficient hysterics, or because the judge leaned that way. Hard cases make for bad procedures, to borrow a phrase.
(Also: Chief Justice Roberts, as far as faster argument releases are concerned, go go go! I can’t imagine how much worse off I’d have been if I started following these things five or so years back, when you didn’t even get same-day oral argument transcripts, let alone occasional same-day delayed audio. Video’s probably a stretch — but just getting same-day audio would be amazing.)
January 14, 2010, 12:11 amKevin says:
I wonder if, looking down the road at how the whole appeals process is likely to play out, the plaintiffs might be better off asking for a new judge to hear the case. (I assume the defendants would probably agree with such a request.) A ruling from a court whose judge is seen as more impartial or less obnoxious by a majority of the Supreme Court might stand a much better chance of being upheld on review. Of course it would be a tough strategic call to seek a tougher forum in the court hearing the case at present for the speculative advantages to be gained months or years down the road. (Assuming this is a serious case the plaintiffs are attempting to win and not just a publicity stunt.)
January 14, 2010, 12:24 amKevin says:
Starting out by hastily arranging to broadcast a high profile case is probably a bad idea. Better to experiment with lower profile cases and work out the kinks (legal, technical and PR-wise) and gradually expand. The best way to discredit broadcasting federal cases would be to start with a high profile circus where the critics will have the perfect example of why this should not be done.
January 14, 2010, 12:28 amjakecollins says:
The anti-SSM “witnesses” are atrocious bigots who should be called out for the human cockroaches that they are. The fact that they aren’t willing to let their evil come into the light of day tells you everything you need to know about the marriage inequality movement… they will go down in infamy just as the people who opposed interracial marriage did!
January 14, 2010, 12:43 amPerseus says:
Please include this guy’s statement as testimony for the anti-Prop. 8 side!
January 14, 2010, 1:07 amArthurKirkland says:
I doubt anything the litigants or judges did (or did not do) has affected how the Supreme Court majority addressed this dispute.
Many of them are on a mission from God. The mere movements of mortal men are unlikely to influence their judgment.
January 14, 2010, 1:10 amMichael Ejercito says:
Have any of you heard of Bonilla v. Hurst ?
“Two New Orleans men want a federal judge to rule that they have a fundamental right to a marriage license under the U.S. Constitution and international law despite Louisiana’s prohibition of same-sex marriages. Kristoffer Bonilla and John Thomas Wray argue in a lawsuit that the state has ‘permanently deprived them of the ability to sanctify their committed relationship and to exercise all of the rights and benefits attendant to marriage.’
The Louisiana law also prohibits civil unions.
Boies and Olson took the Perry case to presumably advance the cause of gay rights. Would not Bonilla have been a better choice, since the law in question goes much further than California’s Proposition 8?
January 14, 2010, 1:17 amzuch says:
I’ve long believed (and stated) that the U.S. Supreme Court ought to open its doors to TV cameras. I note some movement in this regard in audio being released and near-real-time transcripts. But we still have a ways to go….
Cheers,
January 14, 2010, 1:48 amzuch says:
Yes, it did say this (and Dubya v. Gore said it was very worried about the slightest problems in “equal protection”). It also talked at length about the horrible harms that would likely occur should the trial be opened up to broadcast. Agreed, they had to “find” such to satisfy one prong of the triple-prong test for issuing stays.
Cheers,
January 14, 2010, 1:54 amzuch says:
… particularly if witnesses will say different things under different circumstances? You’d think that this purported fact would raise some eyebrows, but occasion a different judicial response.
Cheers,
January 14, 2010, 1:58 amzuch says:
So they’ll be “honest” only if no one is watching?!?!?
Cheers,
January 14, 2010, 1:59 amJay says:
“Boies and Olson took the Perry case to presumably advance the cause of gay rights. Would not Bonilla have been a better choice, since the law in question goes much further than California’s Proposition 8?”
I’m guessing they found their prospects a little more promising in San Francisco district court followed by the 9th Circuit than in New Orleans followed by the 5th Circuit. A plaintiff-favorable COA ruling comes close to forcing SCOTUS to take the case, while a ruling for the state is likely dealt with in one line on an order list.
January 14, 2010, 2:00 amRodger Lodger says:
I do not know what the relevance of testimony by supporters of Prop 8 is. Anybody out there know? Is it about “discriminatory intent” in legislating? Saying the voters intended to discriminate begs the question of whether gays have a right to marry, does it not?
January 14, 2010, 7:47 amyarrrrr says:
Did anyone else see this? What case is this?
http://www.scotusblog.com/prop-8-court-tv-blocked/
January 14, 2010, 7:59 amSCOTUSblog » Thursday round-up says:
[...] N.E.?” Its answer: “Given the split, it’s hard not to wonder.” Dale Carpenter at the Volokh Conspiracy sees the stay as “a potentially ominous development for the pro-[same-sex marriage] [...]
January 14, 2010, 8:23 amGuy says:
Can anyone reconcile this quote from the dissent:
with this one from the majority:
?
Is this extraordinary spin from one side?
January 14, 2010, 8:54 amBlue Neponset says:
I assume they would testify as to the need to ban homosexuals from getting married. I have yet to hear a practical reason to ban gay marriage. Maybe these witnesses will come up with one.
January 14, 2010, 8:54 amAJK says:
As I understand it, most (all?) of the favorable comments were actually signatures on a petition to allow broadcasting.
January 14, 2010, 9:49 amTweets that mention The Volokh Conspiracy » Blog Archive » A Leading Judicial Indicator? -- Topsy.com says:
[...] This post was mentioned on Twitter by Ted DeCorte and Eugene Volokh, Eugene Volokh. Eugene Volokh said: A Leading Judicial Indicator?: While the Supreme Court’s per curiam opinion today deals with legal matters apar.. http://bit.ly/4Z2749 [...]
January 14, 2010, 10:36 amSoronel Haetir says:
And that petition occurred after the decision had been made, no? Basically they wanted the already approved plan to go forward, not submitting comments trying to sway the commission during their deliberative process.
January 14, 2010, 10:39 amJoe says:
I wonder how Justice Souter would have voted here, given his strong opposition to televisions in the court room (at least his own) … that would have been interesting.
January 14, 2010, 11:03 amJoe says:
It is suggested that there is a belief that the district court judge acted as he did because he supports the conclusions of one side. But, if this is true, how about the appellate court below as a whole? Did Judge Kozinksi, e.g., vote the way he did for that reason? Is there a reason here not to let the lower court deal with its own proceedings, or is the whole panel biased on the merits?
It also seems to me that it is not the merits but the nature of the trial that would logically make the trial judge think it would be a good choice. The breadth of interest, e.g., would make it useful to expand the feed to more courthouses — as is the specific issue at hand — to make it easier for media or even specific people involved in the case (which I reckon is sizable, including family members and so forth) to view the proceedings.
The Supreme Court, for instance, singles out a few cases of interest, not obscure ones (that is, much of their actual caseload), for immediate audio release. This quite arguably misleads the public, encouraging them that the exciting cases are typical. Overall, there is a certain heavyhandness at play here. Let the 9th Cir. panel deal with the judge. It is less easy to stereotype the panel overall (though some will try) as some gay fellow traveler type.
January 14, 2010, 11:13 amFlexSF says:
Conway, while your theory may be correct, could you please cite your references?
January 14, 2010, 11:47 amBABH says:
Seems to me that depends on whether you expect the composition of the Court to remain the same by the time this case reaches it. Plus you really never know when the Justices might be swayed by reason rather than ideology. It’s more than a little cynical to assume that all of them are unmovably prejudiced in this case.
January 14, 2010, 11:53 amMichael Ejercito says:
Why is a practical reason necessary?
Here is my reason. Same-sex couples are different from married couples due to fundamental differences in gender, therefore, the states and the people reserve the right to use different names for such unions. Whether or not people in same-sex unions are entitled by the United States Constitution to any legal benefits married couples have is an open question.
Calling different things by different names is not discrimination.
January 14, 2010, 12:09 pmMichael Ejercito says:
Why would there be worse prospects in New Orleans, considering that New Orleans is dominated by liberals just like San Francisco?
Perry basically rests on what names the state may use to distinguish same-sex couples from married couples; Bonilla is about the total exclusion of any legal benefits that married couples have.
January 14, 2010, 12:13 pmDon de Drain says:
The majority opinion is nothing more than a judicial activist slap down of Judge Walker. Clearly Walker took some unusual steps to get to the point where he could order that the trial be broadcast to other courtrooms. Criticism of Walker’s failure to take a more deliberate approach is valid, but the question of whether the Supremes should have issued the stay is governed by legal standards, not by whether you like or don’t like what Walker did.
As the dissent points out, both sides have been aware of this issue for a few months. There appears to be no claim by the defenders of Prop 8 that they did not have an adequate opportunity to present whatever evidence they wished in support of their position that the trial should not be broadcast to other courtrooms and over the internet. To me, that is an important question. Parties should be given an adequate opportunity to prove that broadcasting and videotaping the trial to show publicly will adversely affect the integrity of the trial or could result in real (not speculative) harm to witnesses.
What the majority held was that there has been a showing of irreparable harm if the trial is broadcast to other courtrooms around the US. That is absurd.
I understand and respect (but disagree with in the context of this case) the argument that broadcasting the trial nationally over the internet or TV should not be allowed. But the majority opinion explicitly states that they are not addressing that issue. A conclusion that broadcasting the trial to other courtrooms, where cameras are not allowed, where there is courtroom security, etc. can cause “irreparable harm,” where there are multiple people “live blogging” the trial and where the trial is being covered closely by other media, is nothing more than a judicial power grab on a much smaller scale than the judicial power grab in Bush v. Gore. The majority decided that, if Judge Walker could do a judicial power grab to get the trial broadcast outside of his courthouse, they could do their own power grab to smack him down.
January 14, 2010, 12:29 pmBlue Neponset says:
You can’t treat two groups of people differently just because you want to. You have to a reason to justify the discrimination.
That isn’t a reason to do it.
Why are you taking the action in the first place? There are people who want to get married and the gov’t says they can not. What overriding gov’t interest is at stake which justifies stopping two adults from getting married?
January 14, 2010, 12:39 pmMark Field says:
Well, color me cynical. I think the composition of the Court IS going to change, but I’d wait for it rather than take the chance of another Plessy v. Ferguson.
January 14, 2010, 1:10 pmMichael Ejercito says:
And the scope of the alleged discrimination is not important?
I disagree.
Same-sex couples are different from married couples; that is the overriding government interest in using different names.
And of course, you fail to mention that gender discrimination is not held to the same standard as racial discrimination. See Minor v. Happersett and Rostker v. Goldberg .
January 14, 2010, 1:24 pmBlue Neponset says:
I still haven’t read a reason to deny gay people the ability to marry. What greater good is served by not allowing gay people to marry?
You keep trying to claim it is a name issue only. If that is true why not call all marriages domestic partnerships? Why waste money administering two different systems?
January 14, 2010, 1:45 pmADF Alliance Alert » Dale Carpenter on Cal. marriage trial: “All in all, it’s a bad start for the judicial challenge to Prop 8.” says:
[...] Supreme Court order in the California marriage litigation trial, Dale Carpenter writes at the Volokh Conspiracy: “The majority here . . . paints a picture of a district judge and to some extent an [...]
January 14, 2010, 1:49 pmMichael Ejercito says:
Who wrote different systems ?
Different names under the same system.
January 14, 2010, 1:53 pmBlue Neponset says:
You fill out a different form to get married than you do if you want to get a domestic partnership. Would it be ok to make gay people file different tax forms simply because they are gay? It seems like you think so.
Also, I have answered your questions would you please answer mine. What greater good is served by not allowing gay people to get married?
January 14, 2010, 2:17 pmMichael Ejercito says:
No. It would be a bad idea.
Maintaining social distinctions, of course.
What greater good exists by allowing gay people to get married?
January 14, 2010, 2:23 pmBob from Ohio says:
yarrrrr
I’ve been wondering if Olson is not an agent provocateur here. Get a case to the S/C while the majority is likely to rule that there is no equal protection violation.
January 14, 2010, 2:30 pmkeypusher64 says:
I do not know what the relevance of testimony by supporters of Prop 8 is. Anybody out there know?
Yes, I am curious about this too. Anyone have a real answer (i.e., a non-snarky one)?
Also, Walker is accused of showing his bias in favor of the gay-marriage side. What (besides trying to televise the trial) is this based on?
I’ve been wondering if Olson is not an agent provocateur here. Get a case to the S/C while the majority is likely to rule that there is no equal protection violation.
I do not believe Olson or Boies would ever be a party to something like that.
January 14, 2010, 2:34 pmBlue Neponset says:
I don’t know what that means.
Allowing gay people to marry automatically gives them rights (hospital visitation, inheritance, etc.) they would otherwise have to obtain piecemeal. Obtaining these rights piecemeal is an unnecessary step and is therefore a waste of resources.
January 14, 2010, 2:40 pmegd says:
The government interest in providing a marriage benefit is to provide for a safe and stable family which provides a stable family unit for children to be raised. The state’s interest in raising children should be self-evident.
A child receives a benefit by being raised by his parents, and therefore the government should provide benefits to encourage the parents of a child to stay together. Because incentives are the best way to create human action, the government provides a series of benefits for couples to marry and raise children.
Therefore, marriage benefits are provided to encourage men and women to enter into a monogamous relationship, bear children, and continue the relationship to raise the children.
That said, some people may take advantage of the system, not having children, not being monogamous, or not continuing the relationship. But it is seen as an excessive intervention into the privacy of individuals to inquire as to child bearing or monogamy, and we have decided that the continuance of the relationship should be easy to avoid.
Therefore, we assume that people who enter into this arrangement will accept the benefits from the state and benefit the state in turn.
There are, of course, other ways of bringing children into a family other than through the marital bed, adoption being the most common. However, we expect that people who enter into adoption make a conscious choice to do so and are generally in more stable and wealthy situations. These people, if they’re not already married, know and understand that they are engaging in a long term commitment to raise a child. There is therefore a lesser chance that the new parents will go their own ways and forsake a child.
Therefore, there is greater concern for the welfare of a child, as it relates to social costs, for children biologically brought into a relationship as opposed to those adopted into a relationship. Therefore, the government has an interest in preserving and encouraging heterosexual relationships that is not present in homosexual relationships.
…and that’s just one reason.
January 14, 2010, 2:53 pmyankee says:
The plaintiffs are attempting to show that the basis for Prop 8 was anti-gay animus. Plaintiffs will be calling the Prop 8 supporters as hostile witnesses and try to use their testimony as evidence that the campaign was about bigotry.
January 14, 2010, 3:01 pmegd says:
Assuming the case law of Romer v. Evans is valid case law and that the facts of this case fit within that framework, then the testimony by Prop 8 supporters is relevant.
If “the amendment seems inexplicable by anything but animus toward the class that it affects,” it may be unconstitutional under Romer. Therefore, if the Prop 8 supporters only explanation for Prop 8 was denying same-sex benefits to homosexuals, then the amendment should be overturned as unconstitutional.
Obviously there are problems with the reasoning in Romer, for example the holding that “a class of persons [has] right to seek specific protection from the law…” seems irreconcilable with the 14th amendment. And the “animus” test, IMO, is not the legal standard the court applied, but rather it applied the “rational basis” test and cloaked it in “animus.” Under the rational basis standard, this case should be thrown out. But the judge here is entertaining a novel reading of the case law and letting the anti-prop 8 proponents put on a show trial.
January 14, 2010, 3:02 pmyankee says:
That’s not relevant in this case. In California, domestic partnerships provide all the rights and responsibilities of marriage, at least as far as state law goes. Prop 8 is purely symbolic.
Of course there are differences in federal rights, but the plaintiffs are attacking Prop 8, not DOMA.
January 14, 2010, 3:05 pmMichael Ejercito says:
So would passing a law that defines gay partnerships and then gives them the same inheritance, hospital visitation, and other rights that are also component to marriage.
If so, then anti-bigamy laws would be unconstitutional since history clearly shows they were passed because of animus towards Mormons.
Gun control laws would be unconstitutional because history shows that they were passed because of animus towards black people.
I wonder why more attention is paid to this case than the Bonilla v. Hurst case.
In Bonilla , the plaintiffs are challenging a Louisiana law that denies any benefit that married couples have to same-sex couples. It is a much broader law than Prop. 8.
January 14, 2010, 3:18 pmkeypusher64 says:
yankee, egd
Thanks. I had forgotten about Romer v. Evans.
January 14, 2010, 3:21 pmBlue Neponset says:
Again, you are wasting resources by doing this. There is already a way to give gay people these rights, let them get married. Why create a separate system? And it is a separate system. The requirements are different, the reporting agency is different, the forms are different, the price is different.
January 14, 2010, 3:32 pmDaniel Chapman says:
Zuch: Did you ever consider putting your thoughts into one post instead of doing three or four in a row? At least you use that nice, colorful avatar photo so I can easily skip past all but the first…
January 14, 2010, 3:40 pmBlue Neponset says:
Disagree. You are treating two similar groups differently. There is nothing symbolic about that.
January 14, 2010, 3:41 pmptt says:
Not true. The Supreme Court of California pointed out nine differences between marriage and domestic partnership. Most trivial. A few not.
Also, you’re ignoring — as virtually everyone seems to — the differences in portability.
A California opposite-sex marriage is recognized in all foreign countries.
A California same-sex marriage is recognized in some foreign countries (remember, there still exist ~18,000 of them).
A California domestic partnership (same-sex or opposite-sex) has no value in many of the jurisdictions which would recognize them if they were legal marriages.
January 14, 2010, 3:46 pmDaniel Chapman says:
I don’t think all foreign countries are going to “recognize” a same-sex relationship no matter what you call it. This lawsuit isn’t going to change that. I also don’t think it’s a very convincing argument (except to those who already think SSM should be legal everywhere) that California HAS to allow gay marriages because then everyone else in the country would have to recognize them when they don’t have to recognize domestic partnerships.
January 14, 2010, 4:02 pmegd says:
Cocaine laws would also be repealed because of animus.
But you’re forgetting stare decisis, which means roughly that long acknowledged constitutional violations are OK because they’ve been around for a while. Democrats make a big deal about it when a Conservative judge gets nominated.
January 14, 2010, 4:05 pmMichael Ejercito says:
They are two different groups.
Why would a separate reporting agency be necessary?
Because portability is an issue of foreign law beyond the reach of the courts.
Yes, they are.
An issue concerning foreign law. The interpretation of the equal protection clause is not dependent on what foreign states do or do not.
These differences can be ironed out with legislation or even judicial action.
Of course, it has yet to be answered whether or not the U.S. Constitution entitles same-sex couples to any benefit that married couples have.
January 14, 2010, 4:07 pmptt says:
If that was in response to me, I think you need to re-read my post.
January 14, 2010, 4:09 pmptt says:
I’m not trying to argue the issue, I’m just pointing out that it is wrong to say that marriage and domestic partnership are the same.
As for ironing out the differences, there has been no attempt to do so, as far as I know.
January 14, 2010, 4:12 pmMichael Ejercito says:
So how would courts reconcile Romer with anti-bigamy, gun control, and cocaine control laws? (Although McDonald v. Chicago would likely place limits on gun control laws without citing Romer . )
January 14, 2010, 4:14 pmDaniel Chapman says:
ahhh… You’re right. I read that too fast. Your argument is still not convincing, but also not a fallacy.
January 14, 2010, 4:15 pmCMH says:
It’s referring to the petitioner’s reply brief in Citizens United. The PC opinion cited this reply brief on page 2 of its opinion as an example of reprisals for exercising free speech.
January 14, 2010, 4:18 pmMichael Ejercito says:
Nothing is stopping anyone from lobbying legislatures and petitioning courts to iron out the differences.
There is also another lawsuit, Bonilla v. Hurst , which had been filed in the U.S. District Court in New Orleans challenging Louisiana’s definition of marriage and its denial of any marital benefits to same-sex couples.
January 14, 2010, 4:19 pmyankee says:
Under in re Marriage Cases and Strauss v. Horton same-sex couples are entitled to all the rights and benefits of marriage, so any substantive difference between DP’s and marriage is presumably unconstitutional.
As for portability, has any non-California court actually ruled on whether or not a domestic partnership that’s legally equivalent to a marriage but not denominated a “marriage” can be recognized under that jurisdiction’s law? Is the district court in a position to determine whether or not Norway would recognize a California domestic partnership?
January 14, 2010, 4:28 pmptt says:
Another re-read is in order. I’m not presenting an argument. I’m reminding folks that there are differences.
January 14, 2010, 4:33 pmDaniel Chapman says:
Of course you’re not :)
January 14, 2010, 4:39 pmbadlaw says:
But it’s not imperative that people keep explaining that reasoning until you buy it.
Gay people aren’t denied the right to marry. Gay couples aren’t allowed to legally call themselves married, but the individual right to marry someone of the opposite sex hasn’t gone anywhere. Also, the law isn’t discriminatory on the basis of sexual orientation, it’s just not compelled by it in either direction.
To keep having to make that point sounds glib, but it’s amazing how people keep ignoring it.
January 14, 2010, 4:49 pmptt says:
And the remedy that case resulted in was struck down by Prop 8. Unless I’m missing something, Prop 8 did nothing to remedy the differences between marriage and domestic partnership (for either same-sex or opposite-sex couples). Again, I’m not arguing “shoulds”, I’m pointing out the situation as it stands.
I believe it was Spain (can’t find the link), where both marriage and civil partnership exist for same-sex and opposite-sex couples. A California marriage would be treated as a marriage in Spain (those 18K again, along with all opposite-sex marriages). A California DP would be treated as a CP (which, unlike California’s, is very different from a marriage).
And, for the third time, I’m not arguing about how — or whether — a court should deal with these issues. I’m just trying to correct the false statement that marriage=DP in California.
January 14, 2010, 4:49 pmptt says:
That the facts weaken your argument is not my doing. As for whether my bringing up the clarification is primarily to argue the larger point is speculation on your part. I have witnesses who will testify that I’m just annoying this way in general.
:-)
January 14, 2010, 4:51 pmptt says:
For example, now that I’ve thought about it, I wonder if a Spanish court would now decide differently and grant marriage-equivalent recognition to a post-Prop-8, same-sex, California DP, since marriage is no longer available to same-sex couples. Hmmm….
January 14, 2010, 5:00 pmspasticblue says:
Many here argue that the legal rights and obligations of marriage are available under domestic partnerships in full. Assuming that is true (though I’m not necessarily conceding that it is), then the main benefit of Prop 8 is to maintain two seperate instititions with a difference in name only.
My question is, if the two institutions operate exactly the same (as many argue), what rational reason is there to use different names? From the state’s standpoint, they operate exactly the same. So what is the state’s interest in different names?
January 14, 2010, 5:05 pmLeftahead says:
So, what’s to prevent us from just deciding that inquiring into the respective genders of the interested parties isn’t a similarly ‘excessive burden’ (as we have with making sure the prospective couple is the same race before approving the marriage…) as long as they meet all the other proper legal criteria?
Isn’t that what basically happened with inter-racial marriage? The argument that miscegenation was a ‘different thing’ than a same-race marriage eventually became recognized as too finely parsed, as drawing ‘distinctions’ that existed in fact but had no ethical weight. That’s what I’ve come to be largely certain is the long-term history of this particular issue.
January 14, 2010, 5:23 pmMichael Ejercito says:
The ruling in Strauss v. Horton provides precedent for any future judicial remedies on the application of marital benefits to domestic partnerships.
Recognizing social differences, for one.
January 14, 2010, 5:23 pmspasticblue says:
P>Recognizing social differences, for one.
Like what?
January 14, 2010, 5:30 pmMichael Ejercito says:
Differences in gender are fundamental.
January 14, 2010, 6:14 pmegd says:
Except that’s not what happened. The racial issue never became an issue of privacy, it was struck down because miscegenation statutes discriminated on the basis of race, a protected class. More importantly, the court invoked its often used “racism against blacks is different” strategy to strike down the statute.
I think it is an open question whether miscegenation statutes would have been struck down if the case had concerned a marriage between a Hispanic and Asian.
Of course, that’s the great thing about living in a country this size, there are plenty of favorable plaintiffs around, you just have to wait for one to show up.
January 14, 2010, 6:16 pmGuy says:
Separate but equal?
Gender is a quasi-suspect classification, you have to do a little better than “just because” to justify the distinction.
Husbands and wives used to have different rights and obligations, that’s no longer the case, the opposite gender requirement is nothing more than a vestigial component of the view that wives are property, and that marriage is not a symmetrical relationship. It’s continued existence is backed up by nothing more than sexism and heteronormativity.
January 14, 2010, 6:24 pmspasticblue says:
How so? Bare assertion doesn’t prove anything.
January 14, 2010, 6:34 pmMichael Ejercito says:
It is pretty obvious.
Just read articles on dating.
January 14, 2010, 7:26 pmspasticblue says:
Okay, so you’ve got nothing to say. Anyone else care to respond?
January 14, 2010, 7:39 pmRandy says:
Michael: “Maintaining social distinctions, of course.
What greater good exists by allowing gay people to get married?”
Very simple. PLease let EGD explain it:
“The government interest in providing a marriage benefit is to provide for a safe and stable family which provides a stable family unit for children to be raised. The state’s interest in raising children should be self-evident.
A child receives a benefit by being raised by his parents, and therefore the government should provide benefits to encourage the parents of a child to stay together. Because incentives are the best way to create human action, the government provides a series of benefits for couples to marry and raise children.”
And there are currently thousands of gay couples who are raising children. Therefore, as EGD eloquently explains, the government has an interest in providing a safe and stable family for these kids and it should encourage the parents of the children to stay together.
This is exactly why the state has an interest in SSM. Of course EGD somehow conveniently forgets that gay couples do in fact have children. Or perhaps, he and you both think that if you prevent SSM, gays somehow will stop having or adopting children (hasn’t work yet, though). Or maybe you just don’t really care what happens to the children of gay parents.
Badlaw: “To keep having to make that point sounds glib, but it’s amazing how people keep ignoring it.”
So in other words, I can’t marry my boyfriend, but I can go out and marry your daughter and you think that’s all I really want in life?
January 14, 2010, 7:55 pmkeith says:
Michael Ejercito, so if differences in gender are fundamental, are you saying we should have 3 types of unions, one for heterosexuals, one for gay men and another for lesbians? If you want to put gay men and lesbians into one type of union, then it’s not an issue of gender at all, is it?
Also, what about people who are inter-sex? Where do they fit into this?
January 14, 2010, 7:56 pmPhatty says:
spasticblue,
You seriously don’t know the differences between genders??? How do you know your own gender? It must be quite a struggle for you everytime you need to use a public restroom and you have to decide whether to walk into the men’s or the women’s room.
January 14, 2010, 8:00 pmRandy says:
Phatty: You miss the point, as does Michael. Of course there are gender differences. And there are also intersexed people, those with both male and female organs. and then there are people who have XXY chromosomes. So are you saying those people have no right to marry anyone? Or are XXY people required to marry only XXY people? Of course not.
Therefore, gender isn’t the issue. If it were, we would require XXY people to either marry only XXY people or none at all, but there are no such laws. (And intersexed people are not extremely rare, either).
The point is that under our law, there is no need for two people to be opposed sexed to marry. None. And in fact, we already HAVE same sex people married — in five states. (Six if you include those grandfathered in CA). You may not like the fact that they are married. You may not personally recognize them as married. But the fact remains that under the law they are treated exactly the same as opposed sex marriages. If it can happen there, and in the eight or so other countries that allow SSM, then why can’t it happen in the rest of the US?
Michael refuses to explain how his theory of gender difference ‘prevents’ SSM, especially when the evidence is clear that it is wholly immaterial.
January 14, 2010, 8:21 pmRandy says:
But it keeps coming back: Why would you treat the children of gay parents differently from the children of straight parents? Why should they be denied the benefits of having married parents?
January 14, 2010, 8:23 pmspasticblue says:
Just saying “gender” and walking away does not answer my question. How is gender rationally related to having two supposedly different institutions that differ in name only? What about gender necessitates the name difference?
“It’s obvious” isn’t an answer–it’s an avoidence.
January 14, 2010, 8:42 pmThrobert McGee says:
Well, why not?
January 14, 2010, 9:10 pmPhatty says:
Randy,
I believe intersex individuals have the option of choosing whatever gender they most associate with. I’ve never seen any government form that was Gender: Male__ Female__ Other___. Everyone is pigeon-holed into either male or female, even if biologically a person has attributes of both genders. Ironically, intersex people have more options than anyone else, not less, as you implied. Want to marry a male? — identify yourself as a female. Want to marry a female? — identify yourself as a male.
spasticblue,
You received a simplistic answer because it’s a simple question. If I asked, “What is your justification for calling the color blue and the color purple by two different names?” the response I should expect is, “The color blue and the color purple are different colors.”
Your real question seems to be, “What is the value in making the distinction between same-sex and opposite-sex unions?” As an example, I believe it would be constitutional if the State of California decided to classify unions between a man and a woman where the man was older than the woman as an “A-type Marriage” and a union between a man and a woman where the woman was older than the man as a “B-type Marriage.” Clearly, there is a difference between the two. In one, the husband is older and in the other the husband is younger. But, what is the value in classifying these two types of marriages in this fashion? Probably none. It’s a waste of time and serves no purpose. Legal? Yes. Rational? Yes, it serves to identify whether the husband is older or younger in a marriage. Does it serve any practical purpose? No. Is it a waste of time and money and a dumb law? Yes.
January 14, 2010, 9:15 pmkeith says:
Phatty,
But if you’re allowing intersex people to choose which sex they are for the purposes of marriage, then you’re basically admitting that gender is not a key issue with regards to marriage, and thus there is no real reason to have a separate legal category for heterosexual versus homosexual marriage.
January 14, 2010, 9:52 pmRandy says:
Keith is right. Plus, you haven’t addressed the issue of the children of gay parents. Do they or don’t they deserve the same rights and protections of having married parents? Or is that too inconvenient for anyone to answer?
January 14, 2010, 10:31 pmyankee says:
And the Coquille Indian Reservation. And seven foreign countries. And the District of Columbia, starting in March.
January 14, 2010, 10:34 pm10-K says:
“The real reason to oppose broadcast is because the visual record of the case will make clear even to non-court followers that the arguments against gay marriage are very week.”
The average American is not going to be swayed by David Boise arguing six-dimensional metaphysics. I think the millions who vote for gay marriage bans already know their reasons are emotional and religious. This show trial is a s**t-faced strategy that runs the risk of a federal Prop 8.
We’re stuck on stupid with this fixation on the courts. It’s better for gay rights opponents to hear from their closeted gay family members than publicity-seeking lawyers.
January 14, 2010, 10:51 pmyankee says:
I agree. The problem is that there’s no Gay Agenda Central with the power to decide whether or not someone is going to file a lawsuit. The institutional gay-rights movement had decided that filing more anti-8 lawsuits was not going to be a winning move, but Olson and Boies went ahead and filed their lawsuit anyway.
January 14, 2010, 10:55 pmGuy says:
I know, whatever happened to the shadowy cabal? They used to run such a tight ship.
January 15, 2010, 1:15 amGuy says:
Ok, you convinced me with your stunningly eloquent argument. My mind’s been completely changed.
January 15, 2010, 1:16 am10-K says:
“Seems to me that the basic strategy of the case is flawed and this ruling only highlights that flaw: the inability to count to 5.”
Actually, I don’t think winning/losing in SCOTUS is the strategic issue. Does anybody remember the Federal Marriage Amendment? Senators voting no on the FMA covered their ykw by saying marriage was a ‘state issue’ and the FMA was ‘unnecessary.’ So now we want to force marriage into a federal issue and make it necessary? We leave the Dems totally exposed on gay marriage and expect Harry Reid to do what–stand on principle?
Why does anybody think SCOTUS has the final say?
If the FMA comes out of Congress, it sails through the states. So our only line of defense is a bunch of weasly Democrats with no political cover who don’t even support gay marriage in the first place.
January 15, 2010, 2:04 amaphrael says:
PTT, all that Prop 8 did was revoke the use of the word ‘marriage’. The rest of the in re Marriage Cases decision still stands: sexual orientation is a suspect classification under California law and laws which discriminate on the basis of sexual orientation receive strict scrutiny – and gay couples have the right under the state constitution to all the rights and responsibilities of marriage.
To the extent that state law treats DPs differently than marriages, that law is unconstitutional.
January 15, 2010, 2:33 amegd says:
Actually I did acknowledge that gay couples do have children. But you seem to have omitted the fact that children do not spring from homosexual relationships. While I haven’t conducted any empirical studies on the issue, I am 100% certain that no child will result when two men or two women have sex.
You seem to take the position that the “marriage” label carries with it some immutable characteristic that benefits children. This is absolutely false.
The value of marriage is providing a social contract intended to keep two people together. A kid doesn’t care if his parents are married, only that they remain together and support him. Divorce doesn’t hurt a kid because his parents aren’t married anymore, it hurts him because his parents aren’t together anymore, providing a safe structured household.
As I pointed out, adoption is different. It is different because adoptive (or surrogacy) parents make a conscious choice to have children and plan out the situation in advance. There are also counseling and investigations into the adoptive parents to make sure that the kid is being delivered into a stable home.
Therefore, the adoptive family is at less risk of being dissolved than the biological family.
Ergo, there is at least a rational basis for government discrimination in the marriage area, sufficient enough to get summary judgment at the district court level.
At least, assuming the federal judge were applying current case law.
January 15, 2010, 8:23 amThrobert McGee says:
Tu quoque.
You were the one who brought up “separate but equal” as though it were some obvious absurdity. But I don’t see why “separate but equal” is obviously unworkable in the present case, because we’re not talking about access to a finite resource such as school funding. Under school segregation, it was clear that separate could not be equal because there was a zero-sum game going on — in principle, every dollar that went to white schools was a dollar that became unavailable to black schools.
But hospital-visitation rights and inheritance-rights and so forth aren’t finite, exhaustible resources. It’s NOT the case that if a married heterosexual couple have durable power of attorney over each other, then there’s “one less durable power of attorney” in the world, and consequently a gay couple with an “everything but the word marriage” civil union must be forced go without the protection of a DPOA.
So why, then, should any fair-minded, gay-friendly person feel embarrassed or backwards for endorsing a “separate but equal” solution of heterosexual marriage and homosexual civil-unions, provided that the civil-union laws are sufficiently comprehensive in their protections?
January 15, 2010, 9:09 amTammy Cravit says:
That might be true, but that doesn’t solve the problem of what happens to the adoptive children of unmarried spouses (gay or otherwise) if their relationships dissolve. If a married heterosexual couple adopts a child and then the relationship falls apart, someone will be paying child support, the court will make visitation orders to ensure the child is allowed to continue to see the people who cared for him/her, and so forth. If an unmarried homosexual couple breaks up, the family court has no involvement and no ability to ensure the financial and emotional welfare of the child.
Stepping back from whether the gay parents are being treated differently by not being able to marry, the current status quo seems to discriminate against the children of gay parents, treating them materially differently than the children of heterosexual parents because of the conduct of their parents over which they have no control. Is this really a just manifestation of a policy grounded in protecting the welfare of children? I’m not saying it is or isn’t, but I think the “second order consequences”, if you will, of anti-SSM laws, bear consideration given that the “second order consequences” of traditional marriage seem one of the main justifications for the preservation of the status quo.
January 15, 2010, 1:29 pmspasticblue says:
Phatty:
I asked what the state’s interest was, not what the distinguishing feature between the two groups. So the question isn’t analagous to asking why we call blue and purple different names (and that question isn’t that simple either, considering the numerous ways the visual spectrum can be divided up).
You do bring up the fact that couples can be classifed in numerous different ways–by age, race, religion, beverage preference, etc. But the state doesn’t have different institutions for any of these other classifications–only based on the sex of the individuals in the couple. So why does the state waste time and money to do this? Once again, what is the state interest?
January 15, 2010, 2:12 pmptt says:
Maybe so, but it has not be declared unconstitutional and the differences between marriage and DPs in California still exist (unless someone is awfully slow in updating their websites).
Here’s what the California Secretary of State has to say:
see here
January 15, 2010, 3:11 pmMichael Ejercito says:
Those differences can be ironed out by the legislature, or even the courts (given fourteenth amendment case law on gender discrimination).
January 15, 2010, 3:22 pmRandy says:
egd: “But you seem to have omitted the fact that children do not spring from homosexual relationships. While I haven’t conducted any empirical studies on the issue, I am 100% certain that no child will result when two men or two women have sex.”
True. But so what? They are still children who need to be cared for and raised just as must as other children do. And there is no distinction made between straight parents who have natural children, and straight parents who have adopted children. In both situations, the state treats the families exactly the same, as they should. If you have any evidence that there is or should be different treatment, please let us know.
“You seem to take the position that the “marriage” label carries with it some immutable characteristic that benefits children. This is absolutely false.”
No, I didn’t take that position — YOU did. You argued that the state has an interest in providing a stable environment for children. If you now wish to retract that argument, then you have every right to.
“As I pointed out, adoption is different. It is different because adoptive (or surrogacy) parents make a conscious choice to have children and plan out the situation in advance. There are also counseling and investigations into the adoptive parents to make sure that the kid is being delivered into a stable home.
Therefore, the adoptive family is at less risk of being dissolved than the biological family.
Ergo, there is at least a rational basis for government discrimination in the marriage area,”
This is just nuts, and shows the mental gyrations opponents go through to justify banning SSM. This doesn’t even pass the laugh test. Following your logic, couples who have no children are the least stable, and therefore the state should do what — encourage them to marry or encourage them NOT to marry?
Regarding the adoptive kids, Do you have any stats that show that adoptive families divorce less than others? And regardless, divorces DO occur anyway. IF you can articulate any sort of statement from any court, state or federal, or any policy statement from any state, or anything at all other than just making stuff up to support your notion that the state has less an interest in providing marriage to adoptive parents than non adoptive parents? And even if it were true, how would the state know? At the time of marriage, many people think they will have children, and they find out only much later that adoption is the better alternative.
Tammy is right — by banning SSM you are treating the children of those relationship differently from those of straight, even if they are in an identical situation (adoption, child from a previous marriage, biological child of one of the parents) and you provide no basis for it.
January 15, 2010, 3:24 pmRandy says:
McGee: “So why, then, should any fair-minded, gay-friendly person feel embarrassed or backwards for endorsing a “separate but equal” solution of heterosexual marriage and homosexual civil-unions, provided that the civil-union laws are sufficiently comprehensive in their protections?”
Precisely because they are NOT equal, that’s one obvious reason. For instance, only married couples get the benefit social security benefits, and civil unioned couples do not. Hospitals don’t question it when you say you are the spouse of a patient, but will often require documentation for civil unioned people. How often do you carry these documents on your person in case of an emergency?
Actually, all your arguments are perfectly good arguments why marriage isn’t a problem. There is no zero sum arguments for SSM — gay people getting married doesn’t harm anyone else’s marriage, or diminish it in any way. So why not just allow SSM? It currently exists in five states to no ill effect, and several european countries, right?
Michael: “Those differences can be ironed out by the legislature, or even the courts (given fourteenth amendment case law on gender discrimination).”
Nope, because then people will howl about the activist courts and the black robed masters. And you can’t trust the legislature, as we saw in Maine, because they are elitist and ignore the interests of the people. Your side fights every step towards gay rights — in fact, just this past November, they fought domestic partnership in Oregon. Heck, in Rhode Island, the governor was afraid that if one person dies in a gay partnership, and you allow him to treat his partner’s body for burial as a married couple does, that that somehow is an attack on traditional marriage. So we can’t even bury our partners now without your side complaining that this too close to marriage.
Ironing out by legislature or the courts is time consuming and piece meal. No straight person would stand for this, and yet you expect gay people to.
I’ve asked many times — gays are currently getting married in five states in the US. What’s the big problem? Divorce rates are the same, marriage rates are the same, child birthing rates are the same — nothing has changed. So what’s the problem that you have to come up with such convoluted gyrations, as egd has, to deny this right?
January 15, 2010, 3:39 pmptt says:
You keep saying they can be, which strikes me as an acknowledgment that they haven’t been, and continue to assert that there are no differences between marriage and DPs. The polite term for that would be cognitive dissonance.
Is it really so hard or so damaging to your argument to stick an “almost” in your statements?
January 15, 2010, 3:45 pmMichael Ejercito says:
That is an issue concerning federal law.
People in same-sex “marriages” do not get social security benefits that married couples have.
That is purely due to hospital policy.
Do you think hospitals would cease to do this to same-sex couples even if the state pretends that they are married.
It was not my side in the battle.
I have always stated that I have no problems with same-sex couples getting equal rights in a separate institution.
So was the battle for women’s suffrage.
January 15, 2010, 4:50 pmChris Travers says:
There is one thing to consider here. I have watched some cases where cases seemed like they were clean cut, where the judge seemed to take a clear side in pretrial motions in order to remove all hint of bias when the ruling was eventually handed down.
In other words, I am not sure one can read anything into this. It could be:
1) Judges taking a stand against cameras in court.
2) Judges taking an apparent stand with the supporters of Prop 8 on a minor issue so that when more substantive issues go against them there will be less in the way of accusations of activism
3) A substantive and biased stand with the plaintiffs.
I would expect #3 to be the least likely.
January 16, 2010, 3:13 pmChairm says:
I don’t think the Supremes took a stand on cameras nor have they struck a pose to cover for a potential decision in favor of the plaintiff’s complaint against the CA marriage amendment.
They have chastized Judge Walker and they explained their reasoning.
* * *
Olson’s strategy looks less like a courtroom strategy to win over the judge in a bench trial, or even Supremes on appeal, and more like a political strategy to address a wider non-juducial audience.
If there is to be no broadcasting, then, the Olson strategy may well prove to be impotent. It is not like people across the country haven’t already read about the now cliched talking points of the SSM side.
Judge Walker’s interest in setting the stage for that strategy (with a wild goose chase for some kicking new irrelevant testimony) will be unfulfilled. The case won’t be decided by new facts. It will be about a question of law. And Walker’s “making history” won’t be televised.
Walker may end-up deciding against the plaintiffs on the question of law. It would be hard for him to decide otherwise, really, without exagerating some bit of irrelevant testimony. He may be panning for gold, but there’s little chance, if any, that some new fact will be found that will be decisive.
Should Walker decide in favor of the CA amendment litigators, then, the anti-8 side could not credibly claim that Judge Walker had not done enough and was biased against them prior to nor during the bench trial.
Walker is an oddball on the bench.
January 17, 2010, 12:29 amEd Health says:
Now onto the causes of male impotence: There are several groupings that can be listed; Mental or psychological, physical, hormonal, vascular, neural, medication and lifestyle.
March 28, 2010, 12:22 pm