The Supreme Court, nearly an hour after its 4 pm deadline passed, just handed down a 17-page per curiam opinion enjoining broadcast of the gay marriage trial going on in the Northern District of California pending resolution of an anticipated cert petition or petition for mandamus. Justice Breyer, joined by Justices Stevens, Ginsburg, and Sotomayor, dissented.
Most of the discussion concerns the Court’s concerns about the manner in which the rules were changed. The discussion of “irreparable harm” is relatively brief, and focuses on conerns about harassment. See slip op. at 13.
I think a clue to the authorship of the per curiam can be found in the following three paragraphs:
The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial without any considered standards or guidelines in place. The arguments in favor of developing procedures and rules to allow broadcast of certain cases have considerable merit, and reasonable minds can surely differ over the general and specific terms of rules and standards adopted for that purpose. Here, however, the order in question complied neither with existing rules or policies nor the required procedures for amending them.
By insisting that courts comply with the law, parties vindicate not only the rights they assert but also the law’s own insistence on neutrality and fidelity to principle. Those systematic interests are all the more evident here, where the lack of a regular rule with proper standards to determine the guidelines for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments. These considerations, too, are part of the reasons leading to the decision to grant extraordinary relief.
* * * * *
The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.
Slip op. 13–14, 16–17. For more on this subject, see Ed Whelan’s comprehensive continuing coverage on the subject.
Steve says:
Where is the irreparable harm? I do not believe the opinion identifies any.
It is hard to see this decision as motivated by anything other than visceral opposition to the broadcast of high-profile federal trials. In any other context, it would be laughable to assert that a comment period which resulted in a whopping 138,574 comments from members of the public was “not long enough,” and to grant a stay on such a shaky foundation with no finding of irreparable harm. Steve(Quote)
Orin Kerr says:
Bush v. Gore, the 2010 Edition. Orin Kerr(Quote)
Elliot says:
OK. So, who is the author? Elliot(Quote)
Glenn says:
Walker will not be happy. Let’s see what circus antics he pulls out of his hat next. Glenn(Quote)
ArthurKirkland says:
Shorter version: Although we have been invited to enter the Twentieth Century, we take judicial notice that this is not the Twentieth Century. ArthurKirkland(Quote)
Glenn says:
The Court says that the Conservatives who have been complaining about Walker’s incredible Bias are correct:
“The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.” Glenn(Quote)
Can't find a good name says:
My understanding is that the “138,574 comments” included an online petition with 138,000+ signatures — not 138,574 separate comments. Can’t find a good name(Quote)
Blue says:
Shorter version: if you must hold a witch trial you may not televise it. Blue(Quote)
Glenn says:
The vote break down signals that Kennedy hasn’t completely bought the homosexual agenda. There was a reason that he drew the line in Lawrence at some point before “governmental recognition”.
Walker just might win the battle and lose the war. Glenn(Quote)
wm13 says:
Wow, Kozinski and his brethren are really determined to force gay marriage on the masses, aren’t they? It’s a pretty shocking display of arrogance. wm13(Quote)
ArthurKirkland says:
Maybe this will be the case that causes the Supreme Court to examine anew the constitutional term “no law” as it concerns abridging dissemination of information — in particular, public information concerning the public courts of law.
Those who think it beyond the court to discover “new” wrinkles of this type must have missed Heller. ArthurKirkland(Quote)
ArthurKirkland says:
Are you suggesting the proponents of Proposition 8 are the intellectual heirs of those who pressed witch trials?
Come to think of it, that’s a good point. ArthurKirkland(Quote)
Anon321 says:
Sounds like Kennedy to me, particularly this part: “the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments.” Needless to say, I’m completely speculating, though. Anon321(Quote)
Glenn says:
They have got to recognize that there are probably 5 votes to uphold traditional marriage on the Supreme Court at this point. I wonder if they would risk their cause by ruling against Prop 8 now. They know that if they pull the trigger, that SCOTUS is going to take the case. It’s a huge risk for them. There is little doubt that Walker is going to overturn Prop 8, he’s basically declared as much. However, the Ninth Circuit might well overturn Walker on some technical ground in order to keep the case out of SCOTUS hands. (Assuming the Olsen and company realize the same thing that the Ninth would in that circumstance.) Glenn(Quote)
ruuffles says:
Kennedy isn’t stupid. He knows that the opinion will be written, whether in 2011 or 2061. His ego is big enough that he’s not deciding whether to vote for SSM, but whether he can get away with it. He wants his name on it as the author. ruuffles(Quote)
Steve says:
Wow, Kozinski and his brethren are really determined to force gay marriage on the masses, aren’t they?
Interesting that the mere televising of testimony that presents the case for and against gay marriage is equivalent to “forcing gay marriage on the masses.” Gosh, if people hear the arguments, they might change their minds and we can’t have that.
The federal judiciary is simply backwards on the issue of televising. Apparently we further the public interest in seeing the courts in action by televising only the trials that no one is interested in watching. It’s as if C-SPAN decided to show only quorum calls. Steve(Quote)
DjDiverDan says:
Breyer’s Dissent is laughable, and the fact that three other Justices joined it is really frightening. There are indeed 4 Justices on the Court who are completely unconcerned with following the law any time the law creates an impediment to what they want to do — like televise a show trial, intended solely to harass and intimidate anyone who opposes gay marriage. As a purely philosophical matter, I think restricting Gay Marriage is rather silly. But I also think that these kind of political tactics by Gay Marriage supporters are more likely than not to turn around and bite them on their collective asses (but maybe they’re into that). DjDiverDan(Quote)
ruuffles says:
I’d just like to point out that all these shanagians occured with Reinhardt et al on the sidelines. The (super) en banc circus has yet to come. ruuffles(Quote)
Mark N. says:
I’m curious whether it would’ve been 6–3 had Souter still been on the court rather than Sotomayor, given his often-expressed strong hostility to televising judicial proceedings. Mark N.(Quote)
Mike says:
The bigots simultaneously claim that they are mainstream while also being terrified of mainstream attention. The logical disconnect is hilarious.
Also, you often hear conservatives complain of “liberal censorship” on issues like gay marriage. Well, boys and girls, here’s your chance.
Like roaches, they hide from the light. Mike(Quote)
SuperSkeptic says:
I’m not familiar with the case, but shouldn’t the issue be decided by legislatures not “testimony [in federal courts] that presents the case for and against gay marriage”? That’s how everybody else gets their marriage status, no? Television seems to me a secondary problem. ...Orthogonal, if you will... SuperSkeptic(Quote)
Glenn says:
Your ad hominem juvenile banter aside, 31 out of 31. Remember that.
Conservatives are justifiably afraid of the death threats, arsons, assaults, and terrorist attacks that the pink mafia has perpetrated after the voters approved Prop 8.
Nonsense, it’s quite obvious that this “trial” is a joke. You people were waiting with bated breath to cut up youtube clips and have a sympathetic media trying to paint Prop 8 supporters as “bigots.”
Real people are too busy working to play such games on the internet. That’s why you lefties have such a free reign.
If we went by internet opinion, everyone would be homosexual. The internet tends far to the left of the actual population.
31 out of 31. Glenn(Quote)
yarrrrr says:
I don’t really care much about gay marriage... but I hope this gets to the supreme court and the gays lose... just to see how the rhetoric about stare decisis changes at confirmation hearings... yarrrrr(Quote)
DangerMouse says:
I don’t really care much about gay marriage... but I hope this gets to the supreme court and the gays lose... just to see how the rhetoric about stare decisis changes at confirmation hearings...
Heh. That would be funny.
This case is a model for cases in the future. If you want to win, you have to stack the deck with the judges who agree with you in advance. The key is to make sure that you stack the deck with judges at all appropriate levels.
It’s a great lesson for those looking to overturn Roe, for instance. DangerMouse(Quote)
CrazyTrain says:
A little bit of hyperbole never hurts. But if Orin means that just like Bush v. Gore, the case for irreparable harm to justify a stay is weak to nonexistent then I agree 100 percent. CrazyTrain(Quote)
Steve says:
I’m not familiar with the case, but shouldn’t the issue be decided by legislatures not “testimony [in federal courts] that presents the case for and against gay marriage”?
Romer v. Evans remains the law of the land. States can’t pass an amendment based solely on animus against a disfavored class. Steve(Quote)
CrazyTrain says:
I know, totally. The radical, feminist movement totally stacked the decks in the Supreme Court before Roe — using its strong influence on President Nixon, they secured the appointment of three solid, pro-Roe votes in the Chief Justice, Justice Powell and Justice Blackmun (the author). Through its stranglehold on Eisenhower, the feminazis had put Justices Brennan and Stewart in place as well so that there was a guaranteed five for overturning the nation’s abortion laws in 1973. Cunning plan by the feminists.
Later, by 1992, they used their awesome powers of stacking the decks by having Presidents Reagan and Bush elected and then having them put up three pro-choice Justices (and only two anti-choice Justices) to guarantee that “the central holding of Roe” would be reaffirmed in Casey. These cunning feminists with their allies in Presidents Bush, Reagan, Nixon and Eisenhower made sure that the decks were stacked. . . . CrazyTrain(Quote)
Mike says:
Yes, when given a secret ballot, people behave as bigots. The KKK wore white hoods, and you hide behind the white curtain of a voting booth.
That bigotry prevails when no one is watching, is not disputable. That you are afraid of being exposed as a bigot, too, is also indisputable. Mike(Quote)
CrazyTrain says:
Yeah, except that the plan as it reached the Supreme Court was not to have the trial put up on YouTube, but just to be “broadcast” to a few other federal district courts. Too bad when the facts get in your way. CrazyTrain(Quote)
ArthurKirkland says:
American history has not, over time, been kind to bigots, even those who have an impressing average in their first 31 at-bats. I see no reason to believe this issue will change or avoid that trend.
The point about bigots preferring privacy in practicing their craft is a good one — at least, after the tide begins to work against them. ArthurKirkland(Quote)
Cato The Elder says:
Weird; I agree with the dissent of the liberal justices. Have the petitioners actually presented a tangible threat that would constitute “irreparable harm”? I don’t see it myself; anyway, there’s already heightened media scrutiny enough so that broadcasting the trial wouldn’t be particularly revealing more than is already known about the witnesses. I mean, one can believe Judge Walker is taking the wrong action here and flaunting his own court’s rules but if they haven’t met the precedential standard then they haven’t met the standard... Cato The Elder(Quote)
yarrrrr says:
“Yes, when given a secret ballot, people behave as bigots.”
Yes, and they’re also less likely to join unions that way too... to bring out progress to the peoples common future we must remove the secret ballot... yarrrrr(Quote)
yarrrrr says:
“American history has not, over time, been kind to bigots,”
Hasn’t been kind to fetuses either... yarrrrr(Quote)
SuperSkeptic says:
Okay... But Romer v. Evans is easily distinguishable because this Proposition 8 merely said “only marriage between a man and a woman is valid or recognized in California”. http://ballotpedia.org/wiki/index.php/California_Proposition_8_(2008)
whereas Romer v. Evans ruled “against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action from recognizing homosexual citizens as a Protected class”. (emphasis added). http://en.wikipedia.org/wiki/Romer_v._Evans
Huge difference there, it seems to me; the Prop 8 supporters and their lawyers may even have read Romer v. Evans, who knows? (Then again, why it is permissible to designate any class of citizens a “protected class” I will never know.)
Either way, you side-stepped my (two) question(s), which were:
SuperSkeptic(Quote)
yarrrrr says:
“Have the petitioners actually presented a tangible threat that would constitute “irreparable harm”? ”
It would just take a few YOUTUBE videos to call BS on this... yarrrrr(Quote)
Steve says:
Either way, you side-stepped my (two) question(s)
Nope, I answered your question, you just didn’t like the answer. Whether Prop 8 has a legitimate basis or was simply motivated by the same sort of animus as the amendment in Romer is an issue that will be determined through this trial. You can’t just assume a lack of animus based upon differences in wording.
If you really want my larger opinion on whether some sacrosanct principle says that the rights of minority groups must be decided through majoritarian processes, my answer is “of course not.” You might as well call Loving v. Virginia an illegitimate decision. Steve(Quote)
badlaw says:
Now comes the tricky part of proving the sole basis for upholding traditional marriage is because they hate gay people.
And you can’t just assume the presence of it based on an undesirable outcome. The rhetoric of the Prop 8 organizers centered around protecting religious freedom, the ability of the people to have a say in fundamental policy decisions without judicial intervention, and traditional marriage. It wasn’t a campaign based on demonizing homosexuals for being so. That impression derives from the opponents’ vantage point. badlaw(Quote)
Black says:
SuperSkeptic:
When an individual (or a group of people) is alleging that a right guaranteed to them by the U.S. Constitution has been violated, the appropriate forum in which to seek redress is the courts. Indeed, it is the courts’ function to ensure that the Constitution prevails, regardless of what the legislature decrees. Black(Quote)
nice strategy says:
The case is intended to establish that government discrimination against homosexuals is unconstitutional. How the trial harasses or intimidates anyone is beyond me.
The anti-gay crowd has tried to stop schools from preventing harassment and intimidation of gay students and those perceived to be gay. The hypocrisy here is breathtaking.
Effectively, when in the majority, anti-gay people tried to shut up any discussion about sexuality and intimidate homosexuals to stay in the closet or risk getting fired, being shunned, being disowned, etc.
Now they are planning to be a minority, knowing that it will soon be socially unacceptable to be intolerant, and they don’t like that feeling.
Cry me a river. The victim complex on the right is disturbing as part of a quasi-fascist brew of anti-elitism, authoritarianism, fearmongering, etc., but in this case, I hope, I hope, that it might engender a tiny bit of empathy for what it is like to be an actual persecuted minority.
If you are going to advocate that the government should discriminate against people in a way that will lower their quality of life, those people, their friends, and those that respect them are going to think less of you. That’s the deal. If you truly think society should expect gay people to marry opposite sex partners, or remain lonely and celibate in life, then you really don’t care much about our quality of life, or you are too stupid to admit that some people are wired to be gay in the first place. In either case, government discrimination against a class of people with an immutable trait should not be compared to social disapproval against people who hold an irrational prejudice. nice strategy(Quote)
Steve says:
And you can’t just assume the presence of it based on an undesirable outcome.
I’m not assuming it, I’m explaining why the issue is being tried. Steve(Quote)
SuperSkeptic says:
...and thieves, murderers, torturers, jailers, etc. When you vote you are complicit in all the forceful actions of the state. It’s no surprise then that voting is done with shameful secretiveness — like masturbation. Things would be a lot different if we all had to wear a D or R (or L! or G or whatever) sticker on our foreheads everyday. The decision to thrust us (or the litigants here) into such an environment should not be made lightly or impulsively. My major disagreement with Breyer’s decision was the countenancing of the non-notice & comment period. But then again, I have this naive notion that notice and comment actually means notice and comment — but we all know they don’t really read the comments and the decisions are a foregone conclusion. People like Breyer don’t care about notice and comment — that token concept they’ve left us — it is an obstruction to the imposition of their will. SuperSkeptic(Quote)
Chris says:
Baker v. Nelson, 409 U.S. 810, 1972, remains the law of the land. It, not Romer is the case on point. Baker establishes that States are free to limit marriage to one man and one woman.
Nothing in Romer or Lawrence overturned or undermined Baker in the least. Baker is the law, you need to accept that. Chris(Quote)
Blue says:
It’s also about publically outing and identifying individuals who merely signed a petition. Blue(Quote)
SuperSkeptic says:
I surely agree. But, exactly what right is it that they are asserting is “guarenteed to them by the U.S. Constitution” and has been violated? SuperSkeptic(Quote)
Steve says:
Baker v. Nelson, 409 U.S. 810, 1972, remains the law of the land.
No, actually, there’s a very serious question about that. Only the barest fig leaf makes the Supreme Court’s order in Baker any different from a denial of cert.
Regardless, look, you can present your bald assertions to someone who cares. I didn’t claim Romer dictates the result here, merely that it provides the basis on which the federal courts are reviewing a majoritarian decision. Steve(Quote)
Fredrick says:
The government doesn’t discriminate against homosexuals. Marriage is available to everyone, homosexuals and heterosexuals, on exactly the same terms. The terms require a spouse of the opposite Sex, because that is what a marriage is.
You might want to ask the Prop 8 witnesses that received death threats. And the people who were assaulted by homosexual maniacs. And the churches who were burned. And the Mormon Temples who were sent Anthrax Letters.
No, people have opposed “fisting” classes for children and bullying curriculum designed to paint only homosexuals as victims.
No, people don’t want naked perverts tramping through the streets. People don’t want to be sued and forced to photograph homosexual weddings. People don’t want to be forced to provide elective procedures for homosexuals that violate deeply held religious beliefs. People don’t want the word “marriage” redefined.
Keep telling yourself that.
So you concede that you advocate persecuting religious people?
Many people are more than willing to give you guys everything except the word marriage. That’s not good enough for you. Someone on a homosexual blog betrayed your real intentions: “The word marriage carries with it the implicit approval of society.” That’s what this is really about. You want to use government force to make society approve of your sexual behavior.
It’s all about forcing others to approve of you.
Sexuality is not fixed and immutable, no matter how much you would like to insist otherwise. The fact that you want to resort to terrorism to silence those who demonstrate that fact doesn’t change reality. Fredrick(Quote)
nice strategy says:
Which is why many of their advertisements featured children. There’s no animus in drawing a connection between gays who are in a monogamous relationship and pedophiles!
People outside California that didn’t understand the visceral reaction by gays when Prop 8 passed didn’t have much of a context for the slimy messaging that went on. It wasn’t explicit, but it was there. I don’t think it should matter that the animus was motivated by irrational fears, however sincere. It is still animus, and that it is based on people wanting the government to conform to their religious views makes it all the more repugnant. nice strategy(Quote)
Chris says:
Wrong. “[U]ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial”. Hicks v. Miranda, 422 U.S. 332, 344 (1975).
“[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction”. Mandel v. Bradley, 432 U.S. 173, 176 (1977). Chris(Quote)
Steve says:
Wrong. “[U]ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial”. Hicks v. Miranda, 422 U.S. 332, 344 (1975).
Right, but don’t bet on the Supreme Court ultimately ruling in this case that Baker v. Nelson is dispositive of the issue, nevertheless.
The Court used to be required to accept jurisdiction by statute in a broad range of cases. Because they didn’t want all these state-court cases clogging up their docket, they developed the practice of summarily deciding many of them on the basis that they “failed to present a substantial federal question.” But they had to maintain the fiction that these were summary dispositions on the merits, you see, because if they said “we’re just exercising our jurisdiction not to hear these cases” they would be admitting to violating a Congressional mandate. But everyone, including the Supreme Court, knows that’s exactly what they were doing, and that’s why everyone is careful about assuming that Baker v. Nelson carries any precedential weight. Steve(Quote)
Brian K says:
thank you for putting this first. it saved me the trouble of having to read yet another long tedious post from an anti-gay bigot. Brian K(Quote)
nice strategy says:
On this we agree. Gay people do not enjoy having to choose between social acceptance and personal happiness, and it sure seems to me that some advocates of Prop 8 are mostly concerned with being able to pass down their prejudices against gay people to their children with a minimum of cognitive dissonance.
Now, that isn’t all this is about; the effects of discrimination by the law are real, too.
As for your assertions about sexuality, they are ignorant and mean. I hope you never happen to have a gay child. Chances are you won’t, but if you do, please don’t destroy his or her soul. Read “Not Like Other Boys” or, look in the eyes of a flamingly effeminate boy, say age 10. Sorry, he’s gay, and he can’t change it, and you need to get over it. Being in the closet damages people, sometimes very badly. Please stop trying to hurt people that you obviously do not know or understand. nice strategy(Quote)
EH says:
Man, the woodwork is coming alive, positively alive, with fair-weather commenters. EH(Quote)
Black says:
I am assuming the Plaintiffs will argue that they have a fundamental right to marriage, denial of which violates Due Process, and that they are being unfairly singled out as a group in violation of the Equal Protection clause. Regardless of whether they will ultimately succeed, I don’t think these are frivolous arguments. My point was that constitutional challenges are decided by the courts, not by a popular vote. Black(Quote)
Fredrick says:
Sorry, you don’t get to redefine words just so you can force others to accept you. You don’t get to use government force to get others to accept you. (Like you people did with the Elane Photography case.)
You people fight for a word. You don’t want benefits. You want the approval of society.
What will you do when a State completely deregulates marriage in response to this nonsense? There are States out there that would withdrawal government from marriage altogether before they give a homosexual a certificate that “carries with it the implicit approval of society.”
So the fight will be all for naught.
Wrong. I personally know ex-homosexuals and ex-lesbians. They are good people. Their sexuality was a choice. You people have abused, assaulted, harassed and lied about ex-homosexuals for a long time now, because you are desperate to perpetuate the myth that sexuality is fixed and immutable.
I won’t.
I’ll pass on the propaganda.
Nonsense.
Yet, you’d gladly throw ex-homosexuals in that closet. Why?
Your Kirk & Madsen aside, why do you try to hurt ex-homosexuals and ex-lesbians? Fredrick(Quote)
Twirip says:
Romer v. Evans is not “the law of the land”. It’s just one more in a long line of incoherent and nonsensical Supreme Court rulings.
There is no Constitutional basis for such a proposition, or for the notion that the SCOTUS is supposed to set itself as mindreader and “animus” detector. While I’m at it, let me point out there these is no mention of “class” in the Constitution either, whether “disfavored” or otherwise. Twirip(Quote)
nice strategy says:
Not Like Other Boys
Growing Up Gay: A Mother and Son Look Back
by
Marlene Fanta Shyer and Christopher Shyer
This book alternates between chapters written by Chris and his mom Marlene. In it, she admits that she knew that Chris was probably gay from the time he was in kindergarten. Read chapter 3 and look at the pictures of Chris as a child and as an adult. He’s gay to the core. Not all gay people have such overt characteristics, but the fact that some do enables most fair-minded people to accept that homosexuality is not a choice for most.
Propaganda, memoir, whatever. Everyone who loves an unrepentant homosexual is just part of the mafia, enacting an agenda.
Ex-gays? I don’t know what to make of them. Maybe they retreat back into the closet, maybe they were bisexual to begin with, maybe they have psychological issues I just can’t relate to at all. But presuming that all homosexuals could choose to cure themselves is bigotry, plain and simple.
Love your gay children, and other people’s gay children. Trying to reprogram a gay adolescent is an evil, evil act. nice strategy(Quote)
Adam B. says:
Prop 8 removed the label “marriage” from gay couples, but did not remove any of the substantive rights obtained via marriage. There’s no explanation other than to express disfavor towards gays, and under Romer, City of Cleburne Living Center and Moreno, you just can’t do that. Adam B.(Quote)
Steve says:
I don’t really think the gay marriage movement is the same as the civil rights movement, but man, some of the arguments I’m seeing definitely have a vintage flavor to them.
I’m interested to know if there is a historical analogue to the Prop 8 supporters who have started rumors that the judge hearing the case is secretly gay in an effort to discredit him. Did civil rights opponents start rumors that federal judges were part-black or somesuch? Wouldn’t surprise me, but I don’t know either way. Steve(Quote)
John D says:
Who then does get to redefine words and for what purposes can these redefinitions be put? Words do sometimes change meaning. Sometimes subtly. Sometimes it’s not so subtly.
I suspect that if Cotton Mather were to land in any part of the United States, he would look upon how we practice marriage with disfavor. Do you really think he’d approve of Maggie Gallagher? And not just because he’d take offense at her religious affiliation. What might he think of Rush Limbaugh? Cotton Mather would probably tell us that marriage, as it is practiced in the United States today, is not marriage.
The Reverend Mather would be wrong because we get to determine the contours of our cultural practices. No one gets ownership. John D(Quote)
Relic says:
The difference between Mather’s opinions on our marriage’s and redefining marriage to include gays is that marriages as we know them now are the product of organic growth and drift over hundreds of years, whereas attempts to recognize gay marriage have been unorganic, undemocratic, and take place over the course of a judicial opinion. Relic(Quote)
Mark Field says:
You mean like the way Dinesh D’Souza outed the gay and lesbian students at Dartmouth? Mark Field(Quote)
Relic says:
Mark Field:
And that makes it so much more justifiable here. Also, that particular article is of questionable quality. Do you have another? Relic(Quote)
Mark Field says:
Just noting the hypocrisy involved.
AFAIK, there’s no dispute that he outed the students. The only debate was over his claim that he didn’t use private correspondence to do so. Here is a report of it in the Boston Globe. Mark Field(Quote)
Relic says:
Mark Field:
Much appreciated. Relic(Quote)
Blue says:
Um, sure. That’s an argument, right? Because it doesn’t appear to, you know, make any sense. Blue(Quote)
Michael Ejercito says:
There you go again with the bigot card.
The Morrill Anti-Bigamy Law of 1862 defined marriage as between one man and one woman, and yet no one has credibly argued that the authors of the law were targeting homosexuals. Michael Ejercito(Quote)
Michael Ejercito says:
Very good. Michael Ejercito(Quote)
John D says:
Funny, I thought expanding the franchise of marriage rights to include same-sex couples was due to the organic growth and drift over the last few decades. And, of course, many of the changes to marriage prior to this have been the result of judicial opinion. Can a married woman refuse her husband sex? The courts said yes. Can a married woman get credit in her own name? The courts said yes. This was not organic growth.
I realize that many opponents of same-sex marriage feel that those past judicial opinions have been good things that have improved society, yet this one is one change too far. I also realize that some of the opponents of same-sex marriage would like to turn the clock back to an imagined time roughly based on the early 20th century. John D(Quote)
Relic says:
There is simply no measure by which gay marriage as it stands now can be considered “organic”. Every time gay marriage has been put to a vote by the public at large, the measure has failed. Therefore, gay marriage does not have public support. Therefore, the public does not recognize gay marriage as legitimate. Therefore, the public’s opinion on marriage has not changed to accommodate gay marriage. If the public’s opinion has not changed to accommodate gay marriage, then recognition of gay marriage as marriage is not organic, and not democratic.
Neither the ability of a married woman to refuse her husband sex, nor the ability of a married woman to open a line of credit in her own name, qualify as a change to marriage in the same way that allowing gay marriage would qualify as a change to marriage.
I, personally, would prefer a world without smug internet commentators who have deluded themselves into thinking that dictating what the public has to accept is the moral high ground. Sadly, my world will never be. Relic(Quote)
Technically Legal » Blog Archive » SCOTUS Kills Prop. 8 Trial Broadcast says:
egd says:
Putting aside the issue of gay marriage and just focusing on the facts of whether the trial should be televised...
Is there anyone who can argue with a straight face that the court’s actions here were in any way excusable?
From what I read, changes to substantive rules must be either:
1) due to an emergency; or
2) preceded by a notice and comment period.
The court first tried to pass the rule without either, to which the pro-Prop 8 side objected. Then, the court passed the rule subject to a notice and comment period. Halfway through the period, the court claimed an emergency, retroactively applied the rule, and closed the notice and comment period.
The intent here of the court was clearly to rewrite the rules so that this particular case could be broadcast, over the objections of one side to the case.
By what measure have these acts been performed by a ‘neutral arbitrator?’ I could understand televising the trial if both sides consented. I could also understand televising the trial if the local rule had been in place (following an unbiased notice and comment period, because lets face it, if the period had been outside of the prop-8 arena, comments would have been very different in both content and authorship) prior to the lawsuit commencing.
For the court to decide that this particular isolated case, against the objections of one party, should violate the rules, is the height of judicial favoritism.
And I have heard it mentioned before that the first broadcasts of cases should be high profile cases. But for the reasons discussed in the SCOTUS opinion (technical details), the first broadcast case in a court should be relatively uneventful. At least that way you can get the cameras and internet feed working properly. egd(Quote)
nice strategy says:
Question: what was the decision making process when SCOTUS started releasing audio recordings of oral arguments? Wasn’t there a case with particularly high public interest that prompted an abrupt switch? nice strategy(Quote)
John D says:
You do realize that from my point of view you are a “smug internet commentator” and that you are trying to dictate morals to the public.
Just to throw in one angle to the morals argument, I belong to a religious denomination that decided a decade ago that the only moral stance is to permit same-sex couples to marry. Mind you, I’m perfectly fine if people choose not marry same-sex partners, or if their congregations decide not to hold same-sex weddings. But why do you get to make that decision for me? John D(Quote)
Goggins says:
To those who argue that Romer v. Evans precluded the people of California from amending their constitution as they did in Prop 8: If that is the case, then the people of the United States would also be precluded from amending the United States Constitution in the same way. Of course, that can’t be the case; there is no such thing as an unconstitutional amendment (except one that violates the “unamendability” clause of Article V). An amendment on a specific topic would impliedly alter any preceding provision to the contrary. So, as lawyers like to say, your argument proves too much. Goggins(Quote)
Adam B. says:
Actually, you’re completely wrong — the Romer case struck down an amendment to the Colorado Constitution on the grounds that it violated the federal constitution. Same thing can happen here — we’re not talking about an amendment to the US Constitution. Adam B.(Quote)
Relic says:
John D.
I haven’t proposed that anything be changed. How I’m “dictating” something is beyond me. All I know is that the people of the United States have, in every instance that the issue has been voted upon, said that gay marriage is not marriage. I’m not saying that’s moral. I’m saying that’s where we stand.
I don’t know what my denomination believes in this issue. I also don’t care. I decide my beliefs. Relic(Quote)
Randy says:
Badlaw: “Now comes the tricky part of proving the sole basis for upholding traditional marriage is because they hate gay people.”
Meet Frederic. He makes the case for us better than anyone else. Randy(Quote)
Goggins says:
Oops, you’re right, I’m wrong. Goggins(Quote)
Throbert McGee says:
Which is particularly tricky to prove given that “everything but the word marriage” domestic partnership laws continue to be in force in California, and were never jeopardized by Prop 8.
(IANAL, so I could be wrong on this, but it seems to me that Prop 8 would be a particularly bad test case for pro-SSM advocates to bring before the US Supreme Court, precisely because California’s very comprehensive domestic-partnership protections substantially mitigate any hardships created by the absence of same-sex marriage.) Throbert McGee(Quote)
Michael Ejercito says:
It certainly was not the best possible test case.
A better test case would be Bonilla v. Hurst , a petition for an injunction filed in the U.S. District Court in New Orleans, Louisiana, asking for the state to grant a marriage license to a same-sex couple.
Louisiana forbids same-sex couples from having any marital benefits. Michael Ejercito(Quote)
Adam B. says:
Actually, that’s what makes this so winnable. Because if there were legitimate motives beyond pure animus, why let gay couples keep all the rights and just take away the label? Adam B.(Quote)
Michael Ejercito says:
Yeah, buit taking away the label causes no harm. Michael Ejercito(Quote)
ptt says:
Sigh. I see my work will never be done. California Domestic Partnerships were never and are not now EQUAL to marriage, and the Supreme Court decision and the passage of Prop 8 did nothing to change the inequalities.
see here ptt(Quote)
ptt says:
As I pointed out in another thread, California DPs and marriage were never and are not equal.
You’ll have to check the other thread: for the link.
I tried posting it here, but the comment failed to appear... perhaps a victim of some anti-spam feature of the blog interface. ptt(Quote)
Adam B. says:
All it does is stigmatize one set of relationships compared to another. Adam B.(Quote)
Michael Ejercito says:
That depends on if society already stigmatizes gay people.
Pretending that same-sex unions are marriages is not going to cause society to unstigmatize them. Michael Ejercito(Quote)
badlaw says:
That doesn’t prove anything. No same-sex couple got married without understanding this issue was going on the ballot. In fact, part of the reason people rushed out to get married was to coerce others into voting Prop 8 down. They figured if a mass of them got married, people wouldn’t take their “rights” away. The state supreme court is responsible for that disparity, not the people of California. badlaw(Quote)
Adam B. says:
You’re missing the point — if there were legitimate state purposes to treating gay couples differently, you wouldn’t afford them the same set of rights which straight couples get.
And *society* can feel about gay couples however it wants; the *state* cannot act with animus. Adam B.(Quote)
Michael Ejercito says:
Read about this . Michael Ejercito(Quote)
Mick says:
The politization of the bench on both sides is dangerous and disgusting. Mick(Quote)