The Ninth Circuit has stayed Judge Vaughn Walker’s decision requiring California to begin issuing marriage licenses to same-sex couples starting Wednesday. The Ninth Circuit also sped up the appellate briefing process and specifically directed the appellants to address the very interesting Article III standing issue raised by the Supreme Court’s decision in Arizonans For Official English v. Arizona. Here is the order:
Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)
(HT: Rex Wockner)
Orin Kerr says:
Wow.
So Dale, does this mean the motions panel (Leavy, Hawkins, Thomas) is going to take the merits of the case on that schedule? Or might they pass the case to another panel when the briefing is submitted?
August 16, 2010, 6:58 pmJakeD says:
Wow, indeed!!! No gay marriages Wednesday at 5:00 p.m. at least.
August 16, 2010, 7:02 pmSoronel Haetir says:
Too bad they didn’t schedule the argument for after the new state officers are sworn in. (I hope, though do not know, that the cited rules provide those particular days and that the judges didn’t have a great deal of flexibility once they went expedited).
August 16, 2010, 7:03 pmSteve says:
This kinda illustrates the difference between a trial court, which has to sit there and painstakingly analyze the legal factors pertinent to a stay request, and an appellate court, which can just do whatever it feels like by means of summary orders. Not that there’s anything particularly unjust or unusual about this order, mind you.
August 16, 2010, 7:05 pmOrin Kerr says:
I should add my overall sense that this is a good development: The Supreme Court was probably ready to smack down the CA9 and Judge Walker if they didn’t stay the ruling, and that would have just raised the already-hot temperature of the case. Quickly stepping in lets things cool down a bit, which is a good thing.
August 16, 2010, 7:06 pmDale Carpenter says:
I think a different panel hears the merits, and that the merits panel will be announced shortly before the oral argument the week of Dec. 6, but I’d like hear from Ninth Circuit gurus about that.
August 16, 2010, 7:07 pmJakeD says:
State law (and especially a Governor / Attorney General who refused to defend a provision deemed part of the California Constitution by the State Supreme Court) can create appellate standing.
August 16, 2010, 7:07 pmOrin Kerr says:
Steve,
On the other hand, circuit court judges need at least one more vote to do anything: At the District Court level, “the Court” is just one person.
August 16, 2010, 7:09 pmJakeD says:
Prof Kerr:
I doubt the Ninth Circuit has “cool[ed] down” anything.
http://www.wikio.com/video/palm-springs-prop-rally-turns-ugly-594689
August 16, 2010, 7:12 pmSteve says:
Well sure. Frankly, it’s probably a good thing appellate courts don’t normally treat us to a lengthy discussion of “likelihood of success on the merits” before they actually hear the appeal, particularly when you’re talking about an entirely different panel.
August 16, 2010, 7:13 pmDissenting Reason says:
So what about the appeal of the Imperial County motion to intervene? Is that separate or has it been consolidated?
August 16, 2010, 7:15 pmKamal says:
Doesn’t this ruling presume that there are dangers for his order not being stayed? Did they say what those are?
August 16, 2010, 7:16 pmOrin Kerr says:
JakeD: I doubt the Ninth Circuit has “cool[ed] down” anything.
Appellate courts are powerful, but I don’t think orders handed down today can be blamed for unrest that happened in November 2008.
August 16, 2010, 7:16 pmJamie Ward says:
I doubt the American Citizens that are facing continued discrimination and denial of their fundamental liberties find it is a good development.
August 16, 2010, 7:16 pmJakeD says:
Dissenting Reason:
Imperial County filed a joinder in the pending stay motion (although I haven’t seen an order granting said joinder), and the order above is worded in the plural “appellants”.
August 16, 2010, 7:18 pmDilan Esper says:
Boo. I don’t understand what’s dangerous about handing out licenses for this. They have already issued thousands. Doesn’t this ruling presume that there are dangers for his order not being stayed?
This. Isn’t the Prop 8 proponents’ argument for a stay really weird? They aren’t saying– they can’t say– that they themselves will be injured. They have to be saying that the married gay couples themselves might end up injured if the litigation later vitiates their marriage licenses. But any gay couple that sees that as a central concern doesn’t have to get married– they can wait it out. Presumably, the petitioners do want to get married and are willing to take the risk that they will lose on appeal and lose their marriage license. So what’s the argument for staying the ruling?
August 16, 2010, 7:19 pmCommentus Anonymus says:
No one is denied any fundamental liberty as a result of this order. It preserves the rights of the voters of California (albeit only for a few more months at this point).
August 16, 2010, 7:20 pmJakeD says:
Prof. Kerr:
I am not blaming them for PAST violence.
August 16, 2010, 7:20 pmA.W. says:
well, let’s note that the 9th circuit HAS to deal with the merits, not kick it on some BS standing issue, unless it is willing to vacate all of it.
To let Walker’s POS ruling be the last word on the subject is inappropriate in our system. i am not saying they have to agree or disagree, just that Walker can’t be the last word.
August 16, 2010, 7:21 pmChris Travers says:
On one hand…
Wow… That’s an expedited schedule.
On the other hand, duh, of course they are going to issue the stay. That’s practically routine.
August 16, 2010, 7:21 pmNinth Circuit attorney says:
The motions panel will not hear the case. It will be re-routed to a merits panel. For those of you who don’t know, that means that three judges from the Ninth Circuit will be randomly selected to decide the case. We’ll find the panel out the Monday the week before argument week — i.e., by November 29. I believe I’ve found out my argument panel with even more notice, but I don’t entirely remember.
I suspect this case will ultimately go en banc, so the panel composition is irrelevant.
August 16, 2010, 7:22 pmOrin Kerr says:
James Ward writes:
Every time this case gets up to the Supreme Court on a procedural matter and gets swatted down by a divided Supreme Court, the chances that the Supreme Court will simply reject a constitutional right to gay marriage inches upward. So if you want the Supreme Court to recognize a right to gay marriage, you probably should want the stay that was just ordered.
August 16, 2010, 7:22 pmiowan2 says:
Their fundamental liberties were never in danger, their ability to access each others SS benefits and relief from inheritence taxes are.
August 16, 2010, 7:23 pmJakeD says:
Chris Travers:
Norwalk was already preparing to stay open late and issue marriage licences Wednesday. This is going to come as a huge shock to a few couples at least.
August 16, 2010, 7:24 pmOrin Kerr says:
Chris Travers:
I’m curious, Chris, where did you get your knowledge of appellate litigation? I was under the impression that you are not an attorney.
August 16, 2010, 7:24 pmChris Travers says:
Somewhat off-topic but:
The Language Log had a great discussion of spellchecker attacks and noted that one lawyer submitted to the court in some case a while back a brief where his spell checker had changed “sua sponte” to “sea sponge.”
August 16, 2010, 7:25 pmSteveW says:
It appears that the appeals court, and possibly the Supreme Court, will decide the issues of both standing and merits at the same time. It seems to me that deciding both issues at the same time is a benefit to the plaintiffs. The judges will be divided into four possible groups:
(1) Judges who think the defendants have standing and are right on the merits.
(2) Judges who think the defendants have standing and are wrong on the merits.
(3) Judges who think the defendants do not have standing and are right on the merits.
(4) Judges who think the defendants do not have standing and are wrong on the merits.
The conventional wisdom is that conservative judges will be in group 3, and liberal judges will be in group 2. It is quite possible that a large majority of judges, even at the Supreme Court level, will side with the plaintiffs on at least one issue.
August 16, 2010, 7:25 pmDilan Esper says:
The motions panel will not hear the case. It will be re-routed to a merits panel. For those of you who don’t know, that means that three judges from the Ninth Circuit will be randomly selected to decide the case. We’ll find the panel out the Monday the week before argument week — i.e., by November 29. I believe I’ve found out my argument panel with even more notice, but I don’t entirely remember.
This is normally the case, however, it is not guaranteed. I can name some 9th Circuit cases (e.g., Coalition for Equality v. Wilson) where the motions panel took the appeal and decided it.
August 16, 2010, 7:25 pmCommentus Anonymus says:
That is, if you want the Supreme Court to invent a right to gay marriage, or allow Vaughn Walker to invent one.
August 16, 2010, 7:27 pmGuy says:
I’m skeptical that it would be in the public interest for a state to start issuing marriage licenses when it’s not clear whether or not the resulting marriages will remain valid. Seems like a lot of unnecessary chaos.
August 16, 2010, 7:27 pmOrin Kerr says:
JakeD: I am not blaming them for PAST violence.
I don’t follow your argument, then.
August 16, 2010, 7:27 pmJakeD says:
More violence is coming.
August 16, 2010, 7:30 pmDilan Esper says:
Guy:
“Chaos” and “injury to the intervenors” are two different things.
August 16, 2010, 7:31 pmSteve says:
It sounds like YOU want the Supreme Court to recognize a right to gay marriage, since you said it was a good development, not just a good development for people who feel a certain way.
August 16, 2010, 7:31 pmOrin Kerr says:
Back on your meds, JakeD.
August 16, 2010, 7:32 pmCJS says:
Ed Whelan noted that the proponents had already discussed the applicability in their brief for standing. http://www.nationalreview.com/bench-memos/243232/prop-8-proponents-motion-ninth-circuit-stay-standing-ed-whelan
Does that note in the order to stay mean the 9th Cir. disagrees with the reasons to distinguish that the Prop 8 proponents have already laid out?
August 16, 2010, 7:32 pmK. Chen says:
I wonder if the standing issue is going to be the part that makes it into casebooks in the end.
August 16, 2010, 7:36 pmBruce Hayden says:
Whether or not this stay makes sense depends somewhat, I think, on how you view the status quo. The problem for the antis is the argument that if there isn’t a stay, gay people will get married as a result, and then if the initiative is ultimately held not to violate the U.S. Constitution, then they can’t expect to be dis-married (I didn’t use “unmarried” because that has other meanings). But if the opponents of the initiative win, then gays can always get married later (or go somewhere else to get married). It has to do with the quasi-permanence of marriage, that once someone goes through a legitimate marriage ceremony, they really can’t expect to have that revoked, at least without any consent or action on their part.
August 16, 2010, 7:37 pmfirst history says:
Cite?
August 16, 2010, 7:37 pmOrin Kerr says:
Steve,
Your reasoning is faulty. If I like something, and I think some particular group of people would probably like it too, that does not mean I part of that particular group.
In my case, I happen to think the stay is good because I want decisions to be handed down calmly, without the clock ticking, so judges can have the time they need to think through what they’re doing — whatever they decide to do. True, on balance I suspect the stay will decrease the chances of the result I happen to think is correct here. But that’s okay: My preference for orderly process and distaste for rushed decisionmaking is pretty strong.
August 16, 2010, 7:38 pmJamie Ward says:
It desecrates the Constitution for a few more months…
August 16, 2010, 7:38 pmCrazyTrain says:
I don’t think they are supposed to do that. But they will know (unlike us) who has been assigned to the panels for that week.
August 16, 2010, 7:39 pmbhaal says:
That ‘system’ includes clear limits on judicial capacity to decide cases before them. Otherwise the courts would be flooded with thousands of pressure groups litigating claims that had absolutely nothing to do with them (and judicial power would increase tenfold). Procedural issues have to be obeyed strictly, however little you may appreciate why that must be so.
August 16, 2010, 7:41 pmGuy says:
Right, I was thinking of the standard as if it were reversed. I have a bad habit of making that mistake way too often – I usually catch it before embarrassing myself in front of others.
August 16, 2010, 7:42 pmeyesay says:
Why do so many lawyers, including judges, ignore the rule that a comma is required following the year in constructions like “order of August 4, 2010 pending appeal”? The comma is necessary to prevent the year from binding more closely with what follows it than with the rest of the date.
August 16, 2010, 7:42 pmCommentus Anonymus says:
No, if anything they stayed Vaughn Walker’s attempted desecration of the Constitution for a few months.
August 16, 2010, 7:43 pmJamie Ward says:
Like voting away the rights of your fellow citizens based on 30 second advertisements and 10 seconds in a voting booth?
August 16, 2010, 7:43 pmTammy Cravit says:
Of course, those in support of Judge Walker’s ruling and opposed to Proposition 8 would argue that the case is about the right to marriage, not a right to gay marriage. Did Loving v. Virginia represent a judicially-created right to interracial marriage, or an extension of the right to marriage to interracial couples?
In the interests of factual accuracy, Judge Walker stated in his opinion that he viewed the case not as creating a right to “gay marriage”; to the contrary, he held that what the plaintiffs sought was not the right to “gay marriage”, but an extension to gays and lesbians of the already extant right to marriage.
You certainly are free to disagree with this conclusion, just as I’m sure a certain segment of the population probably complained 40 years ago that the Constitution provided no “right to interracial marriage”. But I think it’s intellectually dishonest, whatever your personal feelings may be, not to acknowledge the controversy on this issue.
August 16, 2010, 7:45 pmSteve says:
I think a denial of the stay would suggest the court does not agree there is a ticking clock. Yes, if they would feel rushed otherwise, they should probably issue a stay, but maybe they wouldn’t feel rushed otherwise.
August 16, 2010, 7:46 pmDilan Esper says:
Why do so many lawyers, including judges, ignore the rule that a comma is required following the year in constructions like “order of August 4, 2010 pending appeal”? The comma is necessary to prevent the year from binding more closely with what follows it than with the rest of the date.
Eugene, Eugene, where are you when we need you?
August 16, 2010, 7:46 pmCrazyTrain says:
I love that an appellate court thinks that “expedited” means that they have over 30 days after briefing is complete and oral argument.
August 16, 2010, 7:47 pmKamal says:
Orin, your love for order is commendable but do you believe that orderly and deliberate decision making could possibly affect the decisions of any of the judges on the 9th or supreme court? Specifically on this issue, where I doubt few are undecided.
August 16, 2010, 7:49 pmJakeD says:
first history:
Start with the Diamond v. Charles case, quoting Prof. Adler “the Supreme Court noted that state law may create interests that are sufficient to confer standing, and I am persuaded that California law, as interpreted by the California Supreme Court, does so here.”
Prof. Kerr:
You just wait and see (Jamie Ward is not typing what he / she REALLY thinks ; )
August 16, 2010, 7:50 pmSomeone Interested says:
Mr. Kerr,
What content of the briefings will be different from the stay request? It seems that the argument on the ability to win in the case was the central debate of what would be in the briefing anyway.
August 16, 2010, 7:50 pmKamal says:
Yup, because I think the very first amendment to that constitution says “We are a Christian Empire and must enforce that morality upon our subjects. All hail The Hypnotoad”
August 16, 2010, 7:51 pmptt says:
I’m just glad it’s going to be heard after the election.
Now that the heat is turned down a bit, how about we all agree that the nation would benefit greatly if the proceedings were televised…
August 16, 2010, 7:53 pmOrin Kerr says:
James Ward,
If you’re interested in actually debating these issues, I’d be happy to.
August 16, 2010, 7:53 pmCommentus Anonymus says:
Yes, I’m familiar with Vaughn Walker’s dishonest, biased, and illogical statements.
I don’t find any analogy at all between race and sexual behavior, especially as they relate to marriage.
August 16, 2010, 7:54 pmJakeD says:
I just want to know if LEAVY, HAWKINS and THOMAS issued said Order from Hawaii or not ; )
August 16, 2010, 7:55 pmKamal says:
Nor did racists find an analogy between the rights of whites and the rights of blacks. I’m assuming your over 40, but if not, let’s talk again in 30 years.
August 16, 2010, 7:56 pmCommentus Anonymus says:
Your comment reveals nothing but your own prejudice.
August 16, 2010, 7:57 pmCJS says:
Assuming arguendo that there is a Constitutional right for you to enter into a union with the adult of your choice and call it a marriage for the purpose of governmental benefits, can we dispense with the blanket claim that having your rights voted away is somehow disallowed by the Constitution? I know economic and property rights are just so unimportant, but we allow these rights to be taken away from certain groups all the time – mostly based on annual income, but also based on citizenship. (Yes, there are certain reasons the government is prohibited to use when taking away rights – that’s not the claim that I keep reading, though…).
August 16, 2010, 7:57 pmJakeD says:
Kamal:
What good is it to type here? Go outside and make your opinions known!
August 16, 2010, 7:58 pmCommentus Anonymus says:
Oh, I see – you don’t know what an analogy is.
August 16, 2010, 7:58 pmJohn Herbison says:
I note that the Court of Appeals directed the appellants to brief Article III standing. What if no party files a notice of appeal(other than Imperial County, whose only dog in the fight to this point is the trial court’s denial of their motion for intervention)? The injunction was directed to the Defendants and those under the Defendants’ control, not to the Defendant-Intervenors.
August 16, 2010, 7:58 pmTammy Cravit says:
Yes, I know that. My point was, you’re assuming that your failure to find an analogy means that the point is uncontroverted. In fact, there’s significant controversy and debate (which predates both Judge Walker’s ruling and the enactment of Prop. 8 in the first place) about what this definitional issue, and about the contours of the right to marry in general.
I happen to find the idea that gays and lesbians want a separate and distinct right to “gay marriage”, as opposed to an extension of the existing liberty interest in “marriage” equally as unpersuasive as you find the counter-argument, but I acknowledge that not everyone happens to agree with me on that issue. Your comment, on the other hand, does not so acknowledge.
Personally, I was always taught that an effective and useful debate came from acknowledging and addressing your opponent’s point of view, not using linguistic hand-waving to pretend it doesn’t exist.
August 16, 2010, 7:59 pmOrin Kerr says:
Kamal,
Yes, I’m sure it could *possibly* effect it.
Further, I think you’re wrong that everyone knows where they come out on all these issues. Everyone on the Internet does, of course: The Internet is a vast sea of extraordinary certainty on all issues relating to law (especially among those with no legal training). But most judges don’t actually reach decisions on issues until they read the briefs, and there are some tricky issues here.
August 16, 2010, 8:00 pmA Berman says:
This is the third time that Walker has been overruled by a higher court on this case. And each time, it was the same party which appealed and won. Meanwhile, Ed Whelan is publishing example after example of Walker’s errors and unfathomable rulings.
At what point do we all admit that– whatever one might think of the ethics, legality, or constitutionality of gay marriage or gay marriage bans– that this judge was hopelessly biased?
How dirty a win would this be for the proponents of gay marriage, should they win based on Walker’s trial?
August 16, 2010, 8:00 pmGuy says:
What do you mean? The issue of standing is being briefed so that the Ninth Circuit can determine its own jurisdiction, not the jurisdiction of the district court.
August 16, 2010, 8:02 pmJamie Ward says:
Well, you might start with the fact that the Appellants really had no legal basis to be given the extraordinary relief of a stay.
August 16, 2010, 8:02 pmJakeD says:
A Berman:
Hopefully, that very issue is one “appellants wish to raise on appeal” if you know what I mean.
August 16, 2010, 8:03 pmCommentus Anonymus says:
No at all. Some people believe Elvis is still alive. I don’t know that any point is uncontroverted. We can stipulate that many people believe many wacky things.
August 16, 2010, 8:03 pmJakeD says:
Jamie Ward:
You mean, only if you ignore the status quo for the past 2,000 years, right?
August 16, 2010, 8:05 pmKamal says:
Orin,
August 16, 2010, 8:05 pmI get that, in a lot of cases, but in this case, isn’t their decision necessarily dependent on a premise they either support or reject; allowing same sex marriage is harmful to society?
Kamal says:
Which ignored the “status quo” of the Romans.
August 16, 2010, 8:07 pmJohn Herbison says:
Would Strom Thurmond have married the (black) household help? (Her race didn’t stop him from sexing her.)
August 16, 2010, 8:08 pmJakeD says:
Kamal:
There were many good reasons why Rome fell (some of us are trying to prevent history from repeating itself as to America).
August 16, 2010, 8:09 pmKamal says:
Yes, because of the gays. Of course.
August 16, 2010, 8:10 pmScott says:
So the new rule is that it’s only allowable under the Constitution if it’s at least 2000 years old? In that case, you won’t object if we limit your right to bear arms to Iron Age weapons. How good are you with that gladius anyway?
August 16, 2010, 8:10 pmJakeD says:
John Herbison:
Same question as to DEMOCRAT Thomas Jefferson?
August 16, 2010, 8:11 pmbhaal says:
Anybody can file a notice to appeal in any case, just like anybody can sue anyone else about almost anything (see eg birther cases) – doctrines such as standing, and the necessity of a case in controversy and a substantial federal question are the things that stop those cases from actually being heard. You could appeal the denial of a preliminary injunction in a standard patent case between X Co and Y LLC if you wanted to, but the judge would simply throw it out because you obviously lacked standing to appeal.
The defendant-intervenors notice to appeal is valid, unless they lack standing to appeal, which the Ninth Circuit has specifically directed the parties (meaning the original defendant-intervenors who have actually indicated they are appealing and the original plaintiffs, but no others) to address.
Simples?
August 16, 2010, 8:11 pmrilkefan says:
“some of us are trying to prevent history from repeating itself as to America”
Come for the law instruction, stay for the comedy. But don’t eat the paint chips or you’ll suffer Rome’s fate.
August 16, 2010, 8:12 pmCommentus Anonymus says:
But obviously “allowable under” and “required by” are not at all equivalent. Is anyone arguing, here or anywhere else, that the Constitution prohibits SSM?
August 16, 2010, 8:13 pmJakeD says:
Scott:
Not so bad (you are correct that nuclear weapons are not mentioned in the Constitution ; )
August 16, 2010, 8:13 pmKamal says:
Be nice, i’m sure he just watched Glen Beck the other night.
August 16, 2010, 8:13 pmKamal says:
—
August 16, 2010, 8:14 pmSo the new rule is that it’s only required under the Constitution if it’s at least 2000 years old?
Orin Kerr says:
Kamal:
No, of course not. There are judges that actually follow law, and that is not the legal question raised by the case.
August 16, 2010, 8:15 pmScott says:
Neither are semi-automatic handguns. I might be generous and let you have that black-powder musket, since that would clearly have been considered an “arm” by the Founders.
August 16, 2010, 8:15 pmJohn Herbison says:
Actually, an appellate court is required to review standing, both in the district court and on appeal, as a threshold inquiry. My question was, (slightly rephrased,) what if no named Defendant files a notice of appeal? Is the notice filed by Imperial County sufficient to invoke the jurisdiction of the appellate court?
August 16, 2010, 8:16 pmbhaal says:
I’m sad to say that the already poor comments on this site have hit a new low – no explanation, no evidence, no reasoning or logic or analysis, just vague and unsubstantiated claims which are linked only by innuendo and the author’s imagination to the topic at hand.
Disgusting, depressing and amusing, all at the same time.
August 16, 2010, 8:16 pmTammy Cravit says:
Aside from the heated debate pro and con on the merits of Judge Walker’s decision, I’m really trying to understand the procedural stuff about standing, which I find really fascinating. So, a question for those with more knowledge of the FRCP and FRAP than I:
Are there other cases out there in which a party was granted the right to intervene at the trial court and was subsequently denied that right on appeal? If so, what do those cases say that might be analogous here?
Would the answer change if the Governator or the Attorney General had appealed? You wouldn’t have the question of whether the appeal was barred on Article III grounds, of course, but would a party that intervened in the trial court remain an intervenor in the subsequent appeal, or would they have to again move to intervene at the appellate court level and independently establish their interest in the case?
On another note, I notice that the California Constitution places upon the Attorney General the responsibility to uphold both the California Constitution and the US Constitution. What then would be his duty when those two Constitutions conflict with one another? Suppose Prop 8 had been an attempt to deny Muslims (or some other disfavored group) the right to be free from unreasonable search and seizure. I could see, particularly a few years ago, that such a proposal might have gotten onto the ballot. Would that make the AG automatically obligated to defend it, even knowing that it clearly violated the Fourth Amendment?
Whatever one’s feelings about gay marriage, I think these questions demonstrate the problem with California’s initiative system. When the Constitution can be amended to say whatever a simple majority of the voters wants, what function does the Constitution play? If majority rule can make the Constitution say whatever it wants, does it lose its function as an instrument to “withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts” (cf. West Virginia Bd. of Ed. v. Barnette)
August 16, 2010, 8:17 pmTammy Cravit says:
Aside from the heated debate pro and con on the merits of Judge Walker’s decision, I’m really trying to understand the procedural stuff about standing, which I find really fascinating. So, a question for those with more knowledge of the FRCP and FRAP than I:
Are there other cases out there in which a party was granted the right to intervene at the trial court and was subsequently denied that right on appeal? If so, what do those cases say that might be analogous here?
Would the answer change if the Governator or the Attorney General had appealed? You wouldn’t have the question of whether the appeal was barred on Article III grounds, of course, but would a party that intervened in the trial court remain an intervenor in the subsequent appeal, or would they have to again move to intervene at the appellate court level and independently establish their interest in the case?
On another note, I notice that the California Constitution places upon the Attorney General the responsibility to uphold both the California Constitution and the US Constitution. What then would be his duty when those two Constitutions conflict with one another? Suppose Prop 8 had been an attempt to deny Muslims (or some other disfavored group) the right to be free from unreasonable search and seizure. I could see, particularly a few years ago, that such a proposal might have gotten onto the ballot. Would that make the AG automatically obligated to defend it, even knowing that it clearly violated the Fourth Amendment?
Whatever one’s feelings about gay marriage, I think these questions demonstrate the problem with California’s initiative system. When the Constitution can be amended to say whatever a simple majority of the voters wants, what function does the Constitution play? If majority rule can make the Constitution say whatever it wants, does it lose its function as an instrument to “withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts” (cf. West Virginia Bd. of Ed. v. Barnette)
August 16, 2010, 8:17 pmbilly q. says:
I keep putting it in, but sometimes people give me weird looks.
August 16, 2010, 8:17 pmbhaal says:
A State official is bound to disregard their own State’s laws, even their own State’s Constitution
August 16, 2010, 8:20 pmbhaal says:
A State official is bound to disregard their own State’s laws, even their own State’s Constitution when it conflicts with the Federal Constitution, because of the Supremacy Clause.
August 16, 2010, 8:21 pmJakeD says:
bhaal (however you pronounce it):
Look, I’m not here to explain, provide evidence, or even “reasoning or logic or analysis”. All I wanted to know was if LEAVY, HAWKINS and THOMAS issued said Order from Hawaii or not ; )
August 16, 2010, 8:22 pmptt says:
A visceral aversion to same-clause punctuation…
August 16, 2010, 8:23 pmmichael H says:
It’s not about a right get married, its the right to not be discriminated against. I think the supreme court already ruled that the government can’t take away people’s rights to get married (i.e., prisoners can still get married) so if people are going to be given that right then the government cant give it out but also discriminate at the same time.
August 16, 2010, 8:26 pmPat Cahalan says:
Elvis’s death or life is a matter of empirical fact. Choosing to believe that Elvis is still alive is choosing to believe that the physical evidence of his death was falsified, requiring some sort of leap of faith into wackyland.
The questions of whether or not gay people should be allowed to “marry”, or whether or not “marriage” is in fact a fundamental right, or even if the state has or ought to have a role in household composition, are in fact philosophical questions, not a question of empirical fact.
They may still be wacky, but they are in no wise wacky in the same manner that disputing Elvis’s death is wacky. You equating them indicates that you are putting the philosophical questions onto the same framework as the empirical question, which implies that you believe that anyone who disagrees with you must in fact be the intellectual equivalent of a flat-Earther.
Which kind of makes you an ass. Just sayin’. You are, in fact, stating that it is unreasonable for anyone to disagree with you in the same way that it is unreasonable for someone to dispute Elvis’s death.
August 16, 2010, 8:28 pmfirst history says:
Prof. Adler’s statement is an opinion, I am more interested in case law citations supporting that view.
August 16, 2010, 8:29 pmKamal says:
Orin,
August 16, 2010, 8:30 pmWalker seemed to make it pretty clear that if the law’s only intended purpose to to impose a private moral view, and that the law had no purpose to society other than that, it is unconstitutional. If that is correct, if you can’t have a law that restricts a group of people without any benefit to society except imposing a private moral view, then “allowing same sex marriage is harmful to society” is a premise that is completely relevant, and most likely already decided.
Michael Ejercito says:
It was not in the order itself.
Of course, I would like an explanation as to why Imperial County could not intervene, but San Francisco could.
And if intervention is denied because they would not be subject to the orders of the district court in this case…
Public policy reasons.
What happens if the 9th Circuit or the Supreme Court overturns the district court ruling? Do the marriages revert to domestic partnerships?
It was a prudent measure, in case the 9th Circuit and U.S. Supreme Court refused to grant a stay.
What I wonder is what the amicus briefs would be from pro-SSM groups? Would they try to argue that the defendants have standing?
True.
But how would having looser standards for standing for an appeal than for origination
of a lawsuit start flooding the lower courts?
In suits challenging the constitutionality of laws, there should be looser standards for standing to defend, lest you have a situation where a state attorney general can simply effectively repeal legislation by not defending a law.
The Glucksberg test.
His duty would be to provide for defense of the law.
And this case is not like the above case, as Proposition 8 does not clearly violate the 14th Amendment. In fact, the Supreme Court had dismissed, for want of a substantial federal question, an appeal that alleged that denial of a marriage license to a couple based on the gender of the partners violated the due process and equal protection clauses of the 14th Amendment.
August 16, 2010, 8:33 pmMichael Ejercito says:
So what does that mean regarding outright prohibitions on prostitution and gambling?
Or bigamy, for that matter?
August 16, 2010, 8:35 pmJohn D says:
Wait a minute. In an earlier thread, you were suggesting that there would be a rain of fire in the manner of Sodom and Gomorrah. Now you’re suggesting what? That Odoacer is going to depose the President? Or do we move things forward and assume that Angela Merkel would do the task (it seems quite unlike her).
August 16, 2010, 8:35 pmGuy says:
Oh, I misunderstood, I thought you were asking how the jurisdiction of the District Court could have been determined if no one had bothered to appeal.
August 16, 2010, 8:38 pmKamal says:
I think such prohibitions are bad and think they will eventually be repealed, but I do think they have measurable negative affect on society and don’t apply to this reasoning.
August 16, 2010, 8:39 pmsecond history says:
It is the Free Republicization of The Volokh Conspiracy.
August 16, 2010, 8:39 pmDilan Esper says:
Public policy reasons. What happens if the 9th Circuit or the Supreme Court overturns the district court ruling? Do the marriages revert to domestic partnerships?
Again, the standard for a stay pending appeal is that the moving party is likely to succeed on the merits and is going to suffer significant injury should a stay not be granted. The only people who would be injured in the scenario you posit are the gay couples themselves, and the intervenors have no standing to invoke their rights (and have no business saying what is best for them anyway).
August 16, 2010, 8:41 pmsecond history says:
Interestingly, today is the 33rd anniversary of the King’s death.
August 16, 2010, 8:42 pmScott says:
Which makes the brief on Article III standing for the D-Is practically a rehash of the rational basis portion of the district court ruling, doesn’t it? Unless, that is, they’ve discovered some compelling new logic regarding the harm of SSM to heterosexuals.
August 16, 2010, 8:45 pmGuy says:
There is a public interest prong, it’s just that it can’t support the stay on its own.
August 16, 2010, 8:45 pmCommentus Anonymus says:
But in fact I didn’t say that.
August 16, 2010, 8:49 pmsecond history says:
Per Wikipedia (yeah, I know):
San Francisco also filed a motion to intervene in the case. The City cited its work in the earlier cases that had provided “extensive evidence and proposed findings on strict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination”. City Attorney Dennis Herrera said that his office is “singularly well-prepared” to help “put anti-gay discrimination on trial based on the facts”.[16] Walker permitted only San Francisco to intervene, as it could speak to the impact of Proposition 8 on local governments.[17] He also ordered the attorney general to assist San Francisco in analyzing Proposition 8′s impact. Walker stated that necessary speed and swiftness “on an issue of this magnitude and importance” were required and that the intervention of additional groups would only complicate and stall the case.
August 16, 2010, 8:51 pmRichard Riley says:
Speaking of bigamy, I don’t get why any Equal Protection principle that requires ignoring the SEX of people wanting to get married doesn’t also require ignoring the NUMBER of people who want to get married – and hence holding that states cannot forbid legally sanctioned polygamy and polyandry if they want to allow marriage at all. If SSM is legislated, sure, a law can be written that says two and only two people can be married, whatever their sex. But how can a judge say, under the Constitution, that “marriage” is necessarily a relationship between two and only two people, if the judge has already rejected the idea that “marriage” necessarily involves a man and a woman. No appeal to tradition helps the argument – tradition is already out the window when you’ve said the Constitution requires ignoring the sex of the marriage partners.
I’ve never gotten a good answer to that question. Prof. Carpenter took a shot at it in a comment thread last year some time, but he fell back on the idea that society can decide what marriage is. Well, sure, but that’s an argument for legislative changes to the definition of marriage. I still don’t see any principled Constitutional reason for accepting SSM while still maintaining that a state cannot be required to accept “marriages” between more than two people.
August 16, 2010, 8:52 pmJakeD says:
Michael Ejercito:
Of course it was “prudent”. I’m just thankful it was unnecessary.
John D:
I’ve never suggestion that would happen — I merely pointed out the “worse-case scenario” if gay marriage is legalized — I’m now celebrating that won’t happen this year at least.
August 16, 2010, 8:52 pmBZ says:
Sigh. I hate to interject some actual law here, much less procedural law, and even worse [shudder] STANDING law, but, as I pointed out in Prof. Adler’s earlier thread, I was attorney of record in Arizonans for Official English v. Arizona, the case everyone is harping about. As noted in that thread, Justice Ginsburg, for all her dicta, never got a majority to find no standing, and there are good legal reasons for that. Here is a BRIEF summary:
There are THREE types of standing, each of which can be found in some fashion in the Prop. 8 case: defensive standing, standing by a grant of rights, and traditional standing.
a) Defensive: enactors have rights: Chadha, Coleman v Miller, Karcher v May. Under initiative law, as in Calif., the deprivation of rights gives defensive standing. UCFW v Brown Group. As the Ninth Circuit (Reinhardt, with now-Prof. Michael Dorf as clerk) held in AOE, the separate rights, duties and enforcement risks differentiate initiative proponents from the rest of the citizenry. Warth. That is enough to remove the case from Diamond v. Charles, where the anti-abortion doctor had nothing to do with the law he was challenging.
b) Grant of rights. This is what Prof. Adler was referring to, but let’s hear it from Justice O’Connor in Diamond: “actual, present interest that would permit [it] to sue or be sued by appellees or the State . . . , or anyone else, in an action sharing common questions of law or fact with those at issue in this litigation” is enough for a grant of right sufficient for standing. Permissive intervention on standing, even after judgment: United Airlines v. McDonald; Zipes. Reaching out and grabbing a facial constitutionality challenge is probably enough alone to grant standing.
c) Traditional “offensive” standing: Meyer v Grant, Valley Forge (three-part test). Are they injured by the denial of their rights from the failure to appeal? Here is a quote from my Reply in AOE, the case the 9th Circuit has asked for briefing on:
We now return you to your regularly-scheduled debate. . .
August 16, 2010, 8:58 pmGuy says:
A rational basis is preventing fraudulent marriages by limiting each person to one partner, there are others, but one is sufficient.
Sex classification triggers intermediate scrutiny, number classification does not.
August 16, 2010, 8:58 pmScott says:
In which case you need to either redefine your worst-case scenario or explain the continued territorial integrity and lack-of-burny-death in Massachusetts, Canada, Argentine, etc.
August 16, 2010, 9:00 pmMichael Ejercito says:
The Supreme Court used this reasoning in two cases related to polygamy. (Murphy v. Ramsey and Davis v. Beason)
“Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co- ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”
But Judge Walker’s ruling proposes a new constitutional paradigm, one where denial of “social meaning” and “cultural meaning” constitutes discrimination.
Even if we stipulate that there are good reasons to deny some of the legal incidents of marriage to polygamous unions, what reason is there to deny them a marriage license, even if it is just a feel-good license with the same legal force as adoption certificates that came with Cabbage Patch Kids?
August 16, 2010, 9:02 pmaphrael says:
Richard Riley: because heightened scrutiny is only required when, among other things, the classification being used has historically been used as a basis for “invidious discrimination” against classes of people.
I don’t think you can find a history of discrimination, let alone invidious discrimination, against groups of people consisting of more than two people.
August 16, 2010, 9:02 pmKamal says:
Because at this time, polygamy hasn’t been discussed enough in the public. Don’t worry, we will address it at some point. We will also have to face robosexual marriage (marriage with robots. Thank you futurama).
August 16, 2010, 9:02 pmleo marvin says:
The Internet in a nutshell.
August 16, 2010, 9:07 pmMichael Ejercito says:
If you look at the history of Utah, you would conclude differently.
It was discussed extensively in the 19th century though. Congress passed a series of laws to stamp out the practice in the territories, and the Supreme Court upheld all of those laws in full.
August 16, 2010, 9:08 pmJakeD says:
Scott:
No, I don’t.
August 16, 2010, 9:13 pmGuy says:
Number classification gets rational basis, sex classification gets intermediate scrutiny, neither fact is likely to change anytime soon.
August 16, 2010, 9:15 pmOwen H. says:
Had the people voted in a provision making slavery legal in CA, should the Governor and/or AG still defend it?
August 16, 2010, 9:16 pmKamal says:
When did Mormonism start gaining traction?
August 16, 2010, 9:18 pmArthur Kirkland says:
Is anyone familiar enough with the appellate rules to know whether this means Wednesday’s nationwide fire-and-brimstone event is off?
I assume tickets would be refunded at place of purchase (minus convenience fees, of course).
August 16, 2010, 9:19 pmSteveW says:
Is it possible (and probable) to certify the California law question regarding standing to the California Supreme Court?
August 16, 2010, 9:19 pmBe careful what you ask for… « California TCOT says:
[...] 8/16/10 Ninth District Issues Interim Stay on Prop [...]
August 16, 2010, 9:24 pmShelbyC says:
Gays and Christians?
August 16, 2010, 9:30 pmJohn Herbison says:
I realize that this is off topic and apologizefor that, but as I have pointed out in other threads, the authority of Congress to prohibit polygamy in the territories was not at issue in Reynolds v. United States. The claim there was that application of the prohibition to that particular criminal defendant violated the free exercise clause of the First Amendment, because the defendant’s practice of polygamy was based upon his religious beliefs.
Davis v. Beason has been specifically abrogated and declared to be “no longer good law” in Romer v. Evans, except to the extent that that case held that a person can be disenfranchised as the result of a criminal conviction.
That Michael Ejercito continues to cite these cases in the manner that he does speaks badly of his intellectual integrity.
August 16, 2010, 9:31 pmRichard Riley says:
But didn’t Judge Walker strike down Prop 8 on a rational basis theory, despite sex discrimination generally triggering intermediate scrutiny? Walker is sailing pretty close to a theory that would require states to recognize polygamy, group marriages, etc. I think that’s one of the reasons Prof. Carpenter has said he is wary of the Walker opinion – proves way too much and is thereby pretty rickety on appeal.
And really, are SSM supporters (even those who are dubious of the Walker opinion) saying that it is only the completely nontextual and pretty silly rational basis/intermediate scrutiny/strict scrutiny analytical paradigm that keeps states from having to recognize polygamy etc.? Ridiculous.
August 16, 2010, 9:31 pmCommentus Anonymus says:
Sounds like you just made that up, ala Vaughn Walker.
August 16, 2010, 9:31 pmAndy Rozell says:
I know in Texas a lawyer can be disciplined for ignoring a legal matter entrusted to him, and I assume the same holds true for California.
If that is correct, did the California Attorney General violate this ethical standard by refusing to defend the law? If so, who could file a grievance?
August 16, 2010, 9:34 pmSteve says:
Also, the right of a State to exclude women from the practice of law was decisively upheld in Bradwell v. Illinois, so there you go.
August 16, 2010, 9:40 pmGuy says:
It’s the rational basis test, of course I just made it up.
August 16, 2010, 9:42 pmDebrah says:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
August 16, 2010, 9:46 pmThe one thing that bothered me, the one thing that stayed in my mind and I couldn’t get rid of it, that haunted me, was why. Why would she lie? What was her motive for lying? If my client is innocent, she’s lying, why? Was it blackmail? No. Was it jealousy? No. Yesterday I found out why. She doesn’t have a motive, you know why? Because she’s not lying… And ladies and gentlemen of the jury, the prosecution is not going to get that man today, no, because I’m gonna get him! my client, the Honorable Henry T. Fleming, should go right to fucking jail! The son of a bitch is guilty!
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Joseph Slater says:
Yeah, you do. All you folks predicting horrible stuff will happen if SSM is allowed have to deal with real world examples of SSM being allowed and horrible stuff not happening. Well, I guess you could ignore it, but then it would be even harder to take you seriously.
August 16, 2010, 9:46 pmCommentus Anonymus says:
I mean you just made up your application of the test. “I think X is rational, therefore X passes the rational basis test” is not an argument.
August 16, 2010, 9:46 pmCommentus Anonymus says:
Who said the damage would happen immediately, or in a few short years? Please cite your source. Thanks in advance.
August 16, 2010, 9:49 pmGuy says:
Aside from being granted the right by state law, how would they have standing under these rationales? How clearly established is the alleged right under state law?
August 16, 2010, 9:50 pmGuy says:
You don’t think that’s a rational relation to a legitimate state interest? Why not?
August 16, 2010, 9:51 pmNesterT says:
In that case, I guess we’re just going to have to wait until some other judge decides to unilaterally “amend” the Constitution again…or maybe just “adjust” the scrutiny levels a bit.
Richard Riley’s point is a valid one. Divorcing the law from its moral underpinnings does–and will, have consequences; some of which cannot be foreseen from where we’re sitting. The anti-majoritarianism embodied in the Constitution doesn’t stretch this far. As some point, society needs to be able to make its own rules based on its collective morality (and don’t go back to arguing that race and sexual behavior is the same thing or that sexual behavior was contemplated by the drafters of any portion of the Constitution–it will make me laugh too hard). Otherwise, the tyranny of our black-robed overlords will be complete.
August 16, 2010, 9:55 pmCommentus Anonymus says:
It’s your assertion, it’s up to you to defend it.
August 16, 2010, 9:55 pmJakeD says:
BZ:
Thank you.
August 16, 2010, 9:56 pmMark F. says:
A libertarian would disagree, saying that free choices have a positive impact on society, compared to the alternative.
August 16, 2010, 10:00 pmJoseph Slater says:
Heck, I can find quotes from folks blaming 9/11 on the limited toleration we had of gays and lesbians in 2001. But I see that you are now shifting the debate to, “well, nothing bad has happened yet, but something — we have no particularly persuasive argument as to what — but something bad may happen at some unspecified time much further in the future. And when it does, it will certainly be the fault of gay marriage.”
Also, let’s recall whom I was talking to about what. JakeD has been making claims that gay marriage would bring “violence” and maybe even an “end of the Roman Empire” scenario for the U.S. To get to the point I was actually making, if you think current, real-world experience is irrelevant to questioning those fantastic assertions, be my guest. And feel free to cite your sources in support that facts don’t matter.
August 16, 2010, 10:01 pmGuy says:
So the fact that sex discrimination is quasi-suspect is the result of the constitution being judicially amended?
August 16, 2010, 10:01 pmGuy says:
The government saves money by reducing benefits, letting each person have one spouse is a fair way to ration them.
August 16, 2010, 10:02 pmJohn Herbison says:
Speaking of rational basis analysis, I submitted this comment on another thread, seeking input from fellow commenters. Perhaps those on this thread can help me.
Some courts, for example, the Court of Appeals of New York and the U.S. Court of Appeals, Eighth Circuit, have opined that a state court prohibition on same sex marriage is rationally related to a governmental interest in promoting stability and permanence in heterosexual marriages, which unions are more likely than same sex couplings to produce offspring. With due respect for the courts that have so ruled, I am puzzled as to how this is so.
How does the government’s exclusion of couples, whose sexual acts with one another cannot result in conception, from eligibility to marry foster or promote stability or permanence among heterosexual married couples? Or for that matter, among heterosexual unmarried couples? (Gametes do not ask one another about their progenitors’ marital status before merging.) I do not ask to be polemical or argumentative, but I honestly do not grasp the concepts underlying that suggestion.
Each of us, to at least some extent, filters political questions through our own experience, so please indulge me a bit of background here about my own perspective. During my adult lifetime, I hae been single, then married in a union that bore one daughter, then divorced, then married in a union that produced no children. For the past four years I have been widowed, and I am engaged to be married in the fall to a wonderful woman, whom I love very dearly.
I have lived since birth in a Southern state that has never permitted same sex marriage; however, I would be no less inclined to remarry if my state were to permit gays and lesbians to marry one another, nor if the Fourteenth Amendment were interpreted to include same sex couples in the fundamental right to marry.
I remember the Saturday morning when my daughter was conceived. I specifically recall that my then-wife and I had no conversation whatsoever of whether gays and lesbians were or would ever be able to legally marry one another. (This was in 1986.) Did we err by omitting that discussion?
During the next few months or years, my finacee and I will decide on whether to attempt to conceive one or more children. Does anyone contend that we should take into consideration whether the ability of gay and lesbian couples to marry in some states, but not in others, in making our decision? What are the pros and cons of conceiving, or of not conceiving, under these circumstances?
Suppose my young adult daughter comes to me and says that a man has asked her to marry him, but he also says that if it were lawful for him to do so, he would instead marry a man that he has the hots for. Should I encourage or discourage her marrying such a fellow?
How about it, people? Help me out here.
August 16, 2010, 10:03 pmJakeD says:
Debrah:
“And Justice for All”
August 16, 2010, 10:04 pmrilkefan says:
In a few years the clear collective morality will be for allowing SSM. I take it you’ll be happy with your reasoning at that point?
August 16, 2010, 10:06 pmNesterT says:
Where do you think the “classifications” and “levels of scrutiny” scheme comes from?
August 16, 2010, 10:06 pmScott says:
And how long will you use that excuse? “Yes, I know there’s been no observable negative effect in the last fifty years, but it’s coming, and you can’t convince me otherwise!”
August 16, 2010, 10:07 pmJakeD says:
John Herbison:
One possible explanation could be if your third future ex-wife (good thing we have you to uphold the whole “sanctity of marriage” thing) decides to leave you for a woman as soon as same-sex marriage is forced down your State’s throat by unelected judges too.
August 16, 2010, 10:11 pmNesterT says:
Of course. I may not like the end result (assuming that you’re correct about the collective majority just loving SMM), but that’s the way the Country is supposed to work. The people are supposed to make the rules and the courts are supposed to interpret the law according to the peoples’ will expressed when the rules were enacted.
August 16, 2010, 10:12 pmrpt says:
Well then, let’s let Ed (unbiased of course) Whelan decide the case!.
August 16, 2010, 10:13 pmSciFiLaw says:
Whatever you say it is all irrelevant. Marriage is an optimal environment for procreation and rearing children. Similar to fertile soil.
August 16, 2010, 10:13 pmWe need to maintain that soil whether or not some of the seed are sprouting or not.
Scott says:
…and any sympathy I might have had for you goes out the window. That was uncalled-for.
August 16, 2010, 10:15 pmjrose says:
Although Walker rejected it in is findings of fact, the theory is same-sex marriages will tarnish marriage as an institution among heterosexuals, who will then be less likely to marry. That strikes me as a weak argument, but unlike Walker, I don’t see facts that negate its rationality.
August 16, 2010, 10:16 pmGuy says:
Ok, Let’s just have judges apply the Constitution without interpreting it then.
What I meant was do you think it’s an unnatural or inappropriate interpretation?
August 16, 2010, 10:18 pmScott says:
It’s at least a testable hypothesis, although I presume that if there were clear evidence to support it, the Prop 8 proponents would have presented it at trial. Unless they really were THAT incompetent, which I’m inclined to doubt.
August 16, 2010, 10:19 pmCommentus Anonymus says:
I think we’re already seeing the negative effects of separating marriage and procreation, in the 40% illegitimacy rate. It’s reasonable to assume that number will get worse if/when the government at all levels proclaims as official policy that marriage has nothing to do with procreation.
But really, as Vaughn Walker demonstrated, those favoring SSM don’t seem to care much about any evidence.
August 16, 2010, 10:20 pmleo marvin says:
Damn, and I paid extra to get cable hooked up in the bomb shelter before Wednesday.
August 16, 2010, 10:25 pmJakeD says:
Scott:
I’m not here to win a popularity contest.
August 16, 2010, 10:26 pmjrose says:
As I understand rational basis review, no evidence is required.
August 16, 2010, 10:28 pmShelbyC says:
Of course, the flip side of this post is, “People never argue in bad faith.”
August 16, 2010, 10:29 pmJoseph Slater says:
Ah, so you will take trends that began many decades before gay marriage and, if they continue after gay marriage, blame the continuation of the trends on gay marriage. And then tell others they don’t care about “evidence.”
August 16, 2010, 10:29 pmAJK says:
While this comment has generated some silly responses, are you claiming that the Romans did not use the same definition of marriage as the California Constitution?
August 16, 2010, 10:30 pmScott says:
Which is not an argument, in my mind, against presenting your strongest case at trial. Admittedly, IANAL, so there may be some nuance of legal strategy that I’m unfamiliar with which is at work here, but if you had evidence that supported a rational basis, would you NOT present it?
August 16, 2010, 10:31 pmLet It Ring says:
Well said.
August 16, 2010, 10:34 pmDebrah says:
Excellent!
August 16, 2010, 10:35 pmGuy says:
Presumably if the justification were not rational on its face, it could be saved with evidence indicating a connection. But intermediate scrutiny is the appropriate test, and legislative findings are required.
August 16, 2010, 10:36 pmjrose says:
I would present it, but if my understanding of rational basis review is correct, the outcome of the case wouldn’t depend on whether or not I did.
August 16, 2010, 10:36 pmNesterT says:
In a word–yes. Race is an immutable characteristic and sexual behavior is, well, behavior. One you can control and the other you can’t.
The willingness of the courts to summarily overrule the people (who, let us not forget, have consistently voted against SSM–when they’ve been allowed to vote that is) and take a radical departure from both the plain text and original understanding of the Constitution just a few years ago (see Bowers v. Hardwick in 1986) is very troubling.
I have no problem (and I don’t think anyone else does either) with two people doing whatever it is they like to do. The problem, as I see it, is when the proponents of SSM try to make sweeping societal changes without the consent of the people. The jump from rational basis to intermediate scrutiny, to even strict scrutiny by judicial fiat against 220 + years of tradition, Constitutional precedent, and the wishes of the majority of the people (even in California!) cuts against the most basic rule of law–the people must decide how, and by what rules, they are to be governed.
August 16, 2010, 10:37 pmShelbyC says:
Oops.
August 16, 2010, 10:40 pmJoseph Slater says:
Scott: How is the “if we allow SSM, then marriage will be tarnished for heterosexuals and they will engage in it less” a testable hypothesis? I don’t know of any evidence that say, after Mass. allowed SSM, anybody in Mass. or the country said, “well, if gays and lesbians can get married, then screw it, the engagement is off” or “I was going to ask MarySue to marry me, but now, forget it.” I don’t know of any evidence that anyone thought their own marriages were somehow less valuable. More to the point, I don’t know how you would test such a thing.
And Jrose: this seems to me to be testing the outer limits of “rational basis.” Yeah, you don’t need evidence to meet rational basis. But at some point, could counter-evidence be admitted? What if, say, in Mass. after SSM was legalized, marriage rates went up and divorce rates went down?
August 16, 2010, 10:40 pmCommentus Anonymus says:
That’s how someone of very low IQ and/or honesty might interpret what I said, yes. Thanks for the input.
August 16, 2010, 10:41 pmScott says:
Which is not actually the point I was arguing, but based on my (limited) understanding of rational basis review, I would agree.
August 16, 2010, 10:41 pmGuy says:
I’m not talking about behavior, I’m talking about sex, as in gender.
August 16, 2010, 10:41 pmjrose says:
If this case turns on whether sexuality is primarily immutable, I’d expect Kennedy to vote for SSM.
August 16, 2010, 10:41 pmGuy says:
Completely irrelevent to the Constitutional question.
August 16, 2010, 10:42 pmjrose says:
If this case turns on whether Proposition 8 triggers intermediate scrutiny because it classifies on the basis of gender, I’d expect SCOTUS to uphold Proposition 8.
August 16, 2010, 10:44 pmJoseph Slater says:
That’s what somebody who has no substantive response might say, especially if that person was a jerk. You’re welcome and good night.
August 16, 2010, 10:45 pmJohn Herbison says:
JakeD, if a woman’s commitment to the institution of marriage is so shaky that it depends on whether same sex marriage is available to her, she is not a good candidate for marriage anyway. And the hypothetical about leaving that you posit is less likely where a husband enjoys cunnilingus and is patient and attentive enough to develop some skill at it.
Although that fear does explain quite a bit.
August 16, 2010, 10:45 pmNesterT says:
Ibid.
August 16, 2010, 10:46 pmCommentus Anonymus says:
It’s a lie that the pro-Prop 8 side didn’t present evidence. Walker simply ignored what they presented.
http://www.nationalreview.com/bench-memos/243159/judge-walkers-phony-finding-versus-defendants-modesty-about-predicting-future-ed-
August 16, 2010, 10:47 pmScott says:
Look at year-by-year issuance of marriage licenses in the relevant areas (making sure to examine only licenses granted to opposite-sex couples) and analyze whether any trend is significantly correlated with the allowance of SSM. It’s not a perfect experiment – you’d have to use non-SSM states as controls, and attempt to account for possibly confounding factors like the state of the economy (economic hardship *may* mean that fewer couples get married – or it may not), and of course the numbers can’t say anything directly about motivation – but unlike the “wrath of an angry God” predictions, there’s at least relevant and collectable data.
August 16, 2010, 10:48 pmJohn D says:
They most definitely did not. Roman marriage law differed from what is in the California constitution on several points.
Let me see: fathers could withhold consent, in which case their children (even as adults) could not marry; fathers could kill adulterous daughters and their lovers (if caught in his house); women were completely subjugated to their husbands (or their fathers-in-law, if he were alive).
August 16, 2010, 10:50 pmGuy says:
Classifications based on sex trigger intermediate scrutiny, SCOTUS might “discover” a “marriage exception” to this rule, but it wouldn’t make much sense.
August 16, 2010, 10:50 pmGuy says:
But if the question is whether it should trigger intermediate scrutiny, not whether it will be found to, of course it should. Ask yourself this: Of people who have a problem with homosexuality, why is that? Isn’t it because they’re not doing what a person of their sex is “supposed” to? Isn’t it because a gay man isn’t the right kind of man? Or not a “real” man at all?
Walker also made some factual findings about how Prop 8 was motivated by gender bias.
August 16, 2010, 10:54 pmcmh says:
Actually the stay may end up being of assistance to the dems in Nov. as well it seems as if the issue of standing has created some fairly unusual legal head scratching.
I think it is disingenuous to claim that those favoring SSM don’t care about evidence. I think its more accurate to say they don’t think the evidence of heterosexual failings has anything to do with the other. Nor should it in my opinion. Frankly, and this is no legal argument, gay people’s lives shouldn’t be polemic to an ideology of marriage that straight people have already abandoned. Gays are not responsible for these failures, they have nothing to do with these failures (I would argue in many respects gays have more of a right to vote out the option of heterosexual divorce than the other way around since most gays have parents of heterosexual origin) But I digress, the question is whether this ideal of marriage should rest on its own merits and also, in order to achieve this ideal, it must actively exclude gays, both in the religious arena and in civil law. THAT is weak.
August 16, 2010, 10:54 pmJoseph Slater says:
Scott:
I just see too many other variables in marriage rates. Also, what are the “relevant areas” / why are non-SSM states valid “controls”? If we are to presume some folks aren’t going to get married because gays can, why does it matter if it’s in the same state or not, especially given the national nature of much media.
Granted, I find the whole idea that somebody would decide not to get married just because gays could ridiculous in the first place. But to do your “control,” you would have to assume some significant number of folks, in, say, Maine, wouldn’t get married if Maine allowed SSM but would get married if Maine didn’t allow it even if Mass. and Vermont did. SSM only tarnishes marriage in the eyes of heterosexuals if it’s in the same state?
August 16, 2010, 10:55 pmjrose says:
We discussed this previously when I gave my argument as to why the law doesn’t trigger intermediate scrutiny. But, who cares what I think. What is far more important is that most courts have refused to apply intermediate scrutiny, and SCOTUS refused to apply intermediate scrutiny in Lawrence. It doesn’t appear to me to be a winning argument.
August 16, 2010, 10:55 pmArthur Kirkland says:
It is kind of you to remember my impetuous, righteous youth, Debrah.
August 16, 2010, 10:57 pmScott says:
There’s no evidence cited anywhere in that article. If both sides admit that they can’t perfectly predict the future, and the plaintiffs say “but based on the evidence to date, there is no reason to believe that there are negative consequences from SSM, and there is a growing body of evidence to the contrary”, I would hope that the defendants would have a better rebuttal than repeating “but we can’t perfectly predict the future!”
August 16, 2010, 10:57 pmDavidcus says:
Orin:
I’ve been a practicing attorney for 14 years and I am astonished you can possibly believe the statement you make below regarding judges–at least as it relates to cases involving “important social issues” as opposed to run of the mill business/tort/criminal litigation. No one who has been paying the least bit of attention for the past 40 years could rationally believe that judges in “important social issues” cases don’t decide how they want the case to come out first and figure out how to rationalize it later–that’s where they really “earn” their pay. Come on, seriously now….
August 16, 2010, 11:01 pmGuy says:
SCOTUS refused to apply intermediate scrutiny in Lawrence precisely because it would have required them to find intermediate scrutiny in the context of same sex marriage – that’s why they didn’t address the issue. This is the argument that they’ve been avoiding for decades, they might finally face it and discover a “marriage” exception, but that doesn’t change the fact that it’s an irrational cop-out.
August 16, 2010, 11:03 pmArthur Kirkland says:
I also have fond memories of what followed that presentation: “Hold it! Hold it! I just completed my opening statement.”
August 16, 2010, 11:04 pmScott says:
I agree, personally, that the idea is ridiculous, but I’d rather have an actual discussion of a possible test than another round of arguments based on the personal morality of the commenters.
The controls aren’t perfect, but I couldn’t think of a better way to produce temporally-parallel data for comparison. I *did* assume that the stigma of allowing SSM would only adhere to the granting agency, so that Maine would be unaffected if Mass allowed SSM. (Not a social scientist either!)
August 16, 2010, 11:04 pmCommentus Anonymus says:
And there you have it.
August 16, 2010, 11:05 pmMalvolio says:
A libertarian would not say that! Free choices have a positive impact on the choosers, certainly, but not all choices are free of externalities.
For example, if I enjoy throwing rocks off overpasses, then my choosing to do so would make me happy, but the people getting hit are worse off, and in the net, society is worse off.
Gay marriage has all sorts of externalities: tax benefits, legal privileges, and so on. Some of those are probably positive — I would guess that on average, a spouse, same-sex or otherwise, is better equipped to make medical decisions for a disabled patient than some randomly chosen blood-relative — and many are neutral (the lower tax rate for some married couples would be exactly balanced by the increased demand for tax revenues).
If I had to guess, I would say that the net is either positive or so small a negative that it’s outweighed by the abstract benefit of having a more free society, but it’s in no way axiomatic or a consequence of libertarian principles.
August 16, 2010, 11:06 pmDebrah says:
My pleasure.
I adore all things Pacino. One of the greats.
August 16, 2010, 11:15 pmScott says:
Let me be more specific: the article does not assert that positive evidence was produced by the Prop 8 defenders. It asserts that they claimed that it was impossible to predict the effect of SSM, and that Judge Walker did not give sufficient deference to that claim. These are not equivalent assertions.
August 16, 2010, 11:16 pmJGTK says:
That might suffice to defeat a facial challenge against bigamy laws, but couldn’t three people bring an ‘as applied’ challenge by showing that there is no fraud in their proposed multi-party marriage? Seems to me Walker’s argument would have to prevail since he decided that society is not in the business of deciding what kinds of relationships adults may want to establish. Similarly, why couldn’t a dying adult bachelor marry his spinster sister so that she could get various benefits (corporate health insurance, social security, pension, etc.) that would accrue from the marriage. There’s no fraud involved and no chance of adverse procreation, so an ‘as applied’ challenge to laws preventing sibling marriage should succeed under Walker’s theory.
August 16, 2010, 11:18 pmJohn Herbison says:
Actually, Justice Kennedy did not specify what standard of review the Court was applying in Lawrence, and lower federal courts since then have drawn different conclusions as to the standard of review of claims based upon Lawrence. Some Courts of Appeals have applied some form of heightened scrutiny; others have applied rational basis review.
If Perry reaches the Supreme Court, I hope that we get at least some clarification as to what level of scrutiny applies to regulations that impinge upon the right to marry and to regulations that disadvantage gays and lesbians as a class.
August 16, 2010, 11:19 pmCommentus Anonymus says:
You’re right, I copied the wrong link.
August 16, 2010, 11:20 pmhttp://www.nationalreview.com/bench-memos/243083/judge-walker-and-supposed-lack-evidence-marriage-s-procreative-purpose-ed-whelan
Sonicfrog says:
It is called Christianity. Its slow but steady spread weakened the strength of the empire from within, and eventually split it in two.
PS. This is by no means an anti-Christianity rant…. it is just history.
August 16, 2010, 11:22 pmScott says:
Thanks for the correction. I will freely admit that my knowledge of the rules of evidence is wholly insufficient to evaluate this claim (again, IANAL). This should not be construed to indicate that I concede your point. I’d be interested to hear what others have to say on the matter.
August 16, 2010, 11:26 pmJohn D says:
Okay, so they quoted Kingsley Davis, who died in 1997. He might have been a compelling witness, had he not died thirteen years ago. As it is, you can’t cross-examine a corpse. It’s also impossible to predict if Davis would have been a witness for the intervenors had he been alive. He might have been busily citing work that supported the plaintiffs’s case. He might have said that his words were being taken out of context. He might have refused to be called as a witness. We’ll never know, since he’s dead.
Come on, quotations from a dead man? Is that the best they can do? And does Ed Whelan really expect us to start admitting the statements of the dead?
(Unless, of course, as part of JakeD’s “worst things that can happen (except they really can’t)” scenarios, the dead come back from beyond the grave to rebuke us for allowing same-sex marriage. Nooo! Nooo! Scary.)
August 16, 2010, 11:37 pmjrose says:
The confusion from Lawrence was over whether sexual behavior is a fundamental right, not over what Guy is arguing, that there was gender discrimination.
The Court might find Proposition 8 triggers strict scrutiny because marriage is a fundamental right, or they might find intermediate scrutiny because there is gender discrimination, or they might find intermediate scrutiny because sexuality is quasi-suspect, or they might apply rational basis.
The only one I have a good feel for is they will reject gender discrimination, and I think that is correct even though Guy calls that a cop-out.
August 16, 2010, 11:39 pmKamal says:
I don’t disagree. Saying that this free choice has a negative impact on society is not to say it doesn’t have a positive impact as well. Basic logical principal. I for one think the positive impact is far greater for these.
August 16, 2010, 11:43 pmGuy says:
I’ve never seen an as-applied challenge against the rational basis test succeed, the whole point of the rational basis test is that as-applied challenges are pretty much irrelevant. Do you have a cite of one?
August 16, 2010, 11:46 pmGuy says:
Okay, maybe I’m crazy, but why? The law classifies on sex, and recent precedent is clear that that’s sufficient at least for suspect classes, is there a case that says you need more than that for intermediate scrutiny?
August 16, 2010, 11:49 pmJakeD says:
John D:
God cannot send fire and brimstone down on San Francisco?! Cite please.
August 16, 2010, 11:53 pmAJK says:
None of which makes marriage anything but a union between a single man and a single woman.
August 16, 2010, 11:53 pmJohn D says:
Given the absence of active volcanoes in the Bay Area, a rain of fire and brimstone would be so unlikely as to be essentially impossible. No, I do not think God can send down fire and brimstone on San Francisco. That’s just not in accord with my conception of God.
God doesn’t make volcanoes blow, nor does God wish to forbid same-sex couples from marrying. Of course, neither your religious beliefs nor mine have any place in a legal discussion. Nevertheless, your religious beliefs certainly should not be used to forbid the denomination of which I am a member from not only blessing same-sex couples, but joining them in legal marriage.
Apart from a story in the Bible, whose historicity can be questioned, we have no evidence that God ever sends fire and brimstone. There is not, in the documentary evidence of the last two millennia, any evidence of such an event occurring.
Once again, people’s civil rights should not be subject to fears like this.
August 17, 2010, 12:02 amJakeD says:
That’s your “cite”? I at least gave an actual Supreme Court case and law professor when I was asked for a cite.
August 17, 2010, 12:10 amGuy says:
I don’t think the Supreme Court has ever squarely addressed the issue of whether God can rain fire and brimstone down on San Francisco.
August 17, 2010, 12:14 amJakeD says:
I didn’t ask for a “Supreme Court cite”.
August 17, 2010, 12:22 amtomemos says:
“One possible explanation could be if your third future ex-wife (good thing we have you to uphold the whole “sanctity of marriage” thing)…”
It’s a good thing we have Newt Gingrich and Karl Rove to uphold it, too. Think hard before you go down this road.
“…decides to leave you for a woman as soon as same-sex marriage is forced down your State’s throat by unelected judges too.”
What on earth does same-sex marriage have to do with leaving a man for a woman? People can do that whenever they want. A friend’s mother left her decades-long marriage to be with a woman, and she couldn’t marry her.
August 17, 2010, 12:28 amtomemos says:
NesterT: “The willingness of the courts to summarily overrule the people (who, let us not forget, have consistently voted against SSM–when they’ve been allowed to vote that is) and take a radical departure from both the plain text and original understanding of the Constitution just a few years ago (see Bowers v. Hardwick in 1986) is very troubling.”
Now this shows either impressive chutzpah or impressive ignorance of the Court. IANAL, yet even I know that Bowers was overturned “just a few years ago” by Lawrence v. Texas. You didn’t hear about that? It was in all the papers!
August 17, 2010, 12:31 amJohn D says:
And, then, what sort of cite did you want?
A law professor might suggest http://volokh.com/2010/08/14/historical-ignorance-on-the-right/
August 17, 2010, 12:33 amJakeD says:
Tomemos:
It happens, but how much more if it’s legal?
August 17, 2010, 12:35 amDavidcus says:
Assuming the case is “sent back down” for a new trial, does anyone think: (a) there is a chance that, and/or (b) the Ninth circuit ought to send it to a different judge? As a CA resident and atheist I did not vote for Prop 8 nor would I, but I did read the papers filed in support of the emergency stay and unless they totally mis-characterize the proceedings below, it would be difficult to make a good faith argument that Walker’s every action in the trial was not permeated with bias, to the point where his decision appears utterly irrational and virtually incomprehensible unless it is considered with the assumption that he was actuated primarily or totally by his own bias (completely ignoring–not distinguishing–but flat ignoring–relevant precedent being only the most obvious indicator, along with his effective pronouncement that the 7–8 million Californians who voted for the proposition (not to mention President Obama and notwithstanding 4000 years of recorded history) could have no conceivable basis for opposing gay marriage other than rank bigotry. Another question–when gays do finally get the right to marry (it is only a matter of time), will they have to designate one partner as the woman and one as the man, at least for the purposes of determining whose life automatically gets destroyed in the event of a divorce particularly if a child requiring child-support is involved? Or will gay divorces be specially privileged, in that courts presiding over gay marriages will actually be forced to look at the facts and consider what is truly fair and just when determining who should get custody, who should be evicted from their own home and be forced to pay the other party a substantial portion of their (actual or imputed) income for twenty years or go to jail? If so, will straight men have another argument that their equal protection rights are being violated because they are being treated differently than gay men in divorces, not getting the benefit of any reason/fact based determination of these questions while another class of men similarly situated do solely because of their sexual orientation?
August 17, 2010, 12:38 amSFAlphageek says:
Guy,
Wasn’t Judge Walker’s decision based on rational basis, not intermediate scrutiny?
In fact, rational basis looked like a pretty shrewd tactical decision on his part – accepting the implicit equivocation (sex/gender == sex/sexual orientation) in the argument for applying intermediate scrutiny to SSM would have given the 9th an easy way to punt, by applying Lawrence to the present case.
You seem to be arguing that the court should have applied intermediate scrutiny, or that in the future, some court should apply intermediate scrutiny to SSM, but I don’t see how it applies to this case?
August 17, 2010, 12:39 amJakeD says:
Davidcus:
Good questions.
August 17, 2010, 12:46 amtomemos says:
“It happens, but how much more if it’s legal?”
What are you talking about? It’s legal now. Are you in favor of eliminating divorce? Actually, if that was done there would be a lot more cause for banning gay marriage. But it’s not, so there isn’t.
August 17, 2010, 12:46 amGuy says:
Walker, I believe, found that heightened scrutiny is appropriate, but that the law fails rational basis anyway. I’m saying intermediate scrutiny applies because the law classifies based on sex. I don’t think this is equivocation, the sex classification is on the face of the law, the orientation discrimination claim is only one of disparate impact. The rights of a person, in terms of who they are allowed to marry, is determined by reference to their sex. Whenever the government classifies people in a way that determines rights, its triggers the level of scrutiny appropriate to that classification. Race and religion get strict scrutiny, gender gets intermediate scrutiny, and mostly everything else gets rational basis.
August 17, 2010, 12:52 amJakeD says:
Of course I’m in favor of banning divorce.
August 17, 2010, 12:52 amleo marvin says:
I’ll make you a deal. If God rains fire and brimstone on SF the day SSM is legalized, I’ll donate $10,000 to Sarah Palin. If he doesn’t, you march in a gay pride parade wearing a pink tu-tu and carrying a sign that says, “God loves gay sex.”
August 17, 2010, 12:53 amJakeD says:
Who said it will happen that day? Can’t I just gloat for awhile about the Ninth Circuit?
August 17, 2010, 1:03 amJohn D says:
I’ll match that $10,000 if God rains fire and brimstone on San Francisco within a year of same-sex marriage being legalized (after all, I’d be so scared, I might actually up it), although I would require the pride parade to be from the limited menu of New York, Los Angeles, or (of course) San Francisco.
Oh, and I should noted that Ezekiel blamed the fate of Sodom on their being uncharitable and harsh to strangers in their midst.
August 17, 2010, 1:03 amJohn D says:
Hell no.
We shall overcome.
August 17, 2010, 1:05 amJakeD says:
“Harsh to strangers” = “attempted homosexual rape”
August 17, 2010, 1:10 amSteve says:
If there is a new trial, the Ninth Circuit can certainly order that it be reassigned to a different judge. By the way, if you feel the judge was biased, it’s not necessary to preface your lengthy rant with a claim that oh by the way, you oppose Prop 8. We know, we know. The vast majority of the people who have problems with Judge Walker’s ruling are actually huge fans of same-sex marriage who are just deeply concerned by the judge’s disregard of the law, dontcha know! Not that I’m suggesting you are arguing in bad faith or anything.
August 17, 2010, 1:16 amJohn D says:
BS. Ezekiel makes it quite clear:
“Did not aid the poor and needy” does not equal “attempted homosexual rape”
August 17, 2010, 1:17 amHugo Mendez says:
BZ,
Thanks for the excellent clarification. This shows Judge Walker’s ruling on standing for what it is: a bizarre judicial fiat.
Actually, you have just written the brief that Prop 8 proponents need to defend the rights of the people of California.
August 17, 2010, 1:19 amJakeD says:
Genesis 19:4-5 describes what happened:
But before they lay down, the men of the city, the men of Sodom, both young and old, all the people to the last man, surrounded the house; and they called to Lot, “Where are the men who came to you tonight? Bring them out to us, that we may know them (KJV: know them, RSV: know them, NIV: can have sex with them , NJB: can have intercourse with them).”
August 17, 2010, 1:30 amRandy says:
“Okay, so they quoted Kingsley Davis, who died in 1997. He might have been a compelling witness, had he not died thirteen years ago.”
And prior to 1997, there wasn’t anyplace in the world where SSM was legal. Today, there are about 12 countries, and several states. Surely they could have found someone who could analyze the data and see if marriage and divorce rates have changed. But apparently they could not.
Davidcus and Jake: ” Another question–when gays do finally get the right to marry (it is only a matter of time), will they have to designate one partner as the woman and one as the man, at least for the purposes of determining whose life automatically gets destroyed in the event of a divorce particularly if a child requiring child-support is involved? Etc. ”
Why are you asking us? You do know that SSM is legal in several states, including Massachusetts, Connecticut, Vermont and Iowa. How is divorce handled there nowadays? Perhaps if you asked someone from there, they could give you the answers you seek.
August 17, 2010, 1:37 amRandy says:
Jake: “Genesis 19:4–5 describes what happened:”
All I can say is that those angels must have been extraordinarily hot that even straight men demanded to have sex with them.
August 17, 2010, 1:41 amJakeD says:
The only question I want to know the answer to is if these three Judges are in Hawaii.
August 17, 2010, 1:42 amSFAlphageek says:
That doesn’t ring true – the history of discrimination against polygamists in this country goes back at least to the Republican platform of 1856, which promised “to prohibit in the territories those twin relics of barbarism: polygamy and slavery.” Then there’s the Mormon War, in which President Buchanan dispatched the US Army to put a stop to the scourge of polygamy. In more modern times, religious groups that practice polygamy have suffered terrible persecution at the hands of our society. In one case, the husband was denied the defense of marriage against a charge of statutory rape. The defense – which would have been available to a member of a singular marriage – was not allowed because the plural marriage was found the be invalid. So, yes, one can make a case for “invidious discrimination” against people who just want to be married to more people than our backwards society approves of.
And I don’t think much of the argument for intermediate scrutiny based on sexual orientation (and apparently, neither do the courts.) Denying same sex marriage is based on orientation, not gender (a woman is just as free to marry a man as a man is to marry a woman.) Of course, those trying to differentiate SSM from polygamy are free to argue that there’s no broad discrimination against numbers of people as there is against people with a particular sexual orientation. In fact, they could argue that three people can do anything they want in our society except get married, so what’t the harm?
And, I don’t have a dog in the SSM fight (or the polygamy fight, for that matter), but I think its disingenious to pretend that the argument is over whether sexuality is immutable. I doubt that you’ll be able to find evidence that a predisposition towards homosexuality is somehow more immutable than a lot of other desires that we expect people who have them to keep under control, on pain of seriously long prison spells.
One hundred and fifty years ago, a thirty year old male marrying a 14 year old female was unremarkable, while men could go to jail for following their (sexually immutable orientation) and snogging each other. Now the (sexually immutable) behavior of a grown man who prefers teenage females is reprehensible and evil, and its hip to be gay. Whatever.
No, the argument is over whether SSM is “acceptable” to society, not whether it’s immutable or a lifestyle choice. Unfortunately, there doesn’t seem to be any way to figure out what acceptable to society means. If only there were a way to, I don’t know, get everybody together and talk about the pros and cons, and then count how many people were OK with SSM. Then we’d know what to do.
I also think its disingenious to the point of willfulness to pretend that there’s a fundamental rights argument that supports SSM against the will of the voters, but the same argument doesn’t apply to plural marriage, although it’s a lot a lot of fun watching SSM proponents twist themselves into knots trying to defend that position. Reduced to its essentials, however, the SSM is nothing like polygamy position comes down to “Don’t worry – the plural marriage folks aren’t nearly as well funded as we are, and they don’t have our lobbyists working for them.” (See also Goose v. Gander and Pot v. Kettle.)
And I now fully understand Professor Kerr’s point about the process having the potential to antagonize the Supreme Court. A month ago, if you had asked me my stand on SSM, I’d have said that it’s a decision for the voters in each state to make, and if it came to a vote in my state, I’d probably be for it, because, really why not?
Now I’m ready to donate money to help fund a constitutional amendment to ban SSM outright, allow prayer in public schools, and require that all teachers be nuns – not because I think it’s the right thing to do, but because I’m so disgusted by the flagrant federal usurpation of state power, and the judicial usurpation of legislative power.
Hey, you know what would make the system much more efficient – before any law is enacted, at the state or federal level, no matter what it does, whether or not there’s any legitimate constitutional issue, let’s just get Justice Kennedy to sign off on it first, right from the start. He’s apparently the only person in the whole damn country whose vote counts anymore, so why not frontload the whole process.
August 17, 2010, 1:43 amMikeybackwards says:
JakeD – you’re putting the horse after the cart again. The decision to destroy had already been made based upon Sodom’s sin (if one believes the myths of Bronze-age Sheep Herders sitting around a fire in the Middle East). The decision to destroy (if it in fact happened – non-Biblical cite please) occurred long in advance of the sending of the ?angels? to the home of Lot and his family [to warn Lot and his family to flee the city's imminent destruction], so the actions of the townspeople to that specific situation cannot reliably be cited as the reason of the predetermined destruction of said city.
Of course that does bring up a rather interesting point of debate. Supposedly Lot was the one holy/righteous man of the cities of Sodom and Gomorrah. However, he was willing to give over his daughters to the rape of the townspeople. So realistically, can we even agree that Lot was an upstanding guy or that Old Testament morality should apply; since someone who felt it was okay to let his daughters be gang-raped was seen as a paragon of rectitude? This seems to me to hardly be a shining example of why we should follow the dictates of said God who apparently had no problem with that in defense of marriage, especially since said God also endorsed the polygamy you seem so afraid will come about as a result of allowing gays to enjoy civil equality in marriage.
August 17, 2010, 1:47 amSFAlphageek says:
Immediately above, the second sentence of the second paragraph:
“Denying same sex marriage is based on orientation, not gender”
should read
“Denying same sex marriage is based on orientation, not gender isn’t persuasive”
August 17, 2010, 1:49 amJohn D says:
You know, the verb know doesn’t necessarily have a sexual connotation. The verb used here means just as it does in English, as in “I don’t know you.” There’s nothing sexual about it.
August 17, 2010, 1:50 amJakeD says:
Great points, SFAlphageek.
August 17, 2010, 1:51 amSarcastro says:
Alas, JakeD, only G_d can make your correlation into a causation.
And I gotta say SFAlphageek‘s reactionary voting plans are awesome. Basing substantive policy choices on rage at the opposition’s methods will be the foundation for any good society. Especially because Conservatives never use the judiciary for their preferences.
August 17, 2010, 1:52 amJakeD says:
If anyone wants to debate “know” (in the Biblical sense), let me know (no pun intended ; )
August 17, 2010, 1:55 amSFAlphageek says:
Is there a case where a court applied intermediate scrutiny to sex in the sense of sexual orientation as opposed to sex as in gender, and had it upheld? I was under the impression that there wasn’t precedent for that line of argument.
August 17, 2010, 2:10 amSFAlphageek says:
You’d think a guy with a name like Sarcastro would recognize hyperbole when he saw it . . .
August 17, 2010, 2:11 amJohn Herbison says:
I don’t know the answer to the question. Since the Ninth Circuit Judicial Conference is meeting in Hawaii, I surmise that they are there. A partial schedule for the conference is available at:
http://www.ce9.uscourts.gov/jc2010/schedule.html
Why does the present location of the three judges matter? The Clerk of the Court is in San Francisco, and the stay order would have been filed with the clerk, no matter where the individual judges are.
I am curious. How is the question pertinent?
August 17, 2010, 2:19 amSarcastro says:
Awww, but your points were so good! JakeD was a big fan!
[I also plead Poe's Law.]
August 17, 2010, 2:19 amJohn D says:
Sure. How’s your Hebrew?
August 17, 2010, 2:19 amaphrael says:
Why does the present location of the three judges matter? The Clerk of the Court is in San Francisco, and the stay order would have been filed with the clerk, no matter where the individual judges are.
I am curious. How is the question pertinent?
It seems particularly odd given that panels of the ninth circuit regularly meet in Hawai’i to hear arguments (because it’s the circuit which includes the state). Surely conducting court business while panels are there is a solved problem for them.
August 17, 2010, 2:40 amleo marvin says:
I don’t want no angels smiting me for being ungenerous, so I’ll give you the same year John D does.
August 17, 2010, 2:42 amSFAlphageek says:
That would be a misapplication of Poe’s law, since it wasn’t a satire of a given position (in this case, anti-judicial intervention), but rather a use of exaggeration to make a point about how the Prop 8 opponents have managed to alienate (at least one) former passive supporter of SSM. Frankly, I don’t care much about SSM one way or another. I certainly don’t see it as a fundamental right, up there with life, liberty and property. It’s probably something we should get around to sooner or later, in acknowledgement of shifting social mores, if not this year, then sometime before 2050. I suspect that a goodly percentage of the 45-49% of people who “support” SSM share my attitude.
Honestly, I wouldn’t at all mind seeing SSM set back by a few years or so, or even a decade, over fallout from Walker v. US Constitution. I wouldn’t really want a constitutional amendment, but if the case energizes the conservatives politically and Kennedy surprises us all and does the right thing constitutionally, and that kills SSM for awhile, I’d be very OK with that. Not because I care much one way or the other about SSM, but because I care very much about what the last 40-50 years of legislating from the bench has done to the country. I’d very much like to see a strong backlash against the judiciary that starts reversing the trend, and, sorry, but I’d rather see it happen in a case where I just don’t care that much about the outcome.
And, pettily enough, I admit, I’d really like to see the anti Prop 8 people (as opposed to gays in general) get it in the neck, and have the great Walker edict snatched out from under them, and the political tide turn against SSM for awhile – sorry if that screws a lot of homosexuals who could otherwise have married in Ca in 2012 after the next referendum – but right now I’m pretty disgusted with the whole “whoo-hoo! in your face, voters! its a fundamental right, bitches, so suck it! walker p0wned your votage” vibe that I saw after the ruling.
There’s a huge difference between “stay the hell out of my bedroom” (Lawrence) and “I want society’s official seal of approval(tm)” (Perry.) If you want the community to grant a formal impramatur to your activities that they’ve so far withheld for the last 2 millenia, you ought to be willing to wait until they agree. Honestly, the plaintiffs in Perry v Schwartzenegger look more like my five year old nephew when he doesn’t get his favorite toy right away than anything.
And I’m glad I wrote this response, instead of blowing you off (my first instinct) because it crystallized my thinking on the whole subject. Here’s my position on Prop 8:
1) There’s no fundamental right to SSM, not in natural law, and not in the US Constitution
2) but given the social mores in this time and place, it would be nice of the community to offer it to people who want it.
3) but when asked, the community said “not now, maybe later”
4) it would also be nice to let my nephew play with his favorite Star Wars toy, but when his Mom says “not now, maybe later” its decided. If Mom didn’t teach him to read, it would be a different matter, but he doesn’t have a fundamental right to his toy, so she gets to decide.
5) when Mom says no, if nephew throws a temper tantrum, he doesn’t get the toy right away, he has to wait even longer. Otherwise, he throws a temper tantrum every time he doesn’t get his way.
So, yeah, there turns out to be a grain of truth in my last post. I actually do hope that, in this case, enough people feel like I do to create a backlash that (temporarily) derails SSM. If that happens, maybe next time people will work the political process and go back to the ballot box instead of torturing the constitution all out of shape to achieve their policy preference du jour.
Take that for what it’s worth and feel free to flame away.
August 17, 2010, 3:25 amBrendan says:
Well, there is the issue of impacting existing marriages. The State has an interest in preventing fraud. Now, simply ruling bigamy laws unconstitutional would open the door to fraud. There are no laws requiring that someone inform their spouse of their intent to marry someone else… and doing so still requires an additional separate contractual arrangement. The major difference between the polygamy and SSM issues is this: allowing polygamy has an impact that could affect the existing marriages of couples. The Pro-SSM lawyers in the Iowa case explained this very well.
Will allowing same-sex marriage lead to polygamy
Allowing SSM has zero impact on existing marriages which would continue on exactly as they were. They abide by the same laws that opposite-sex couples do and opposite-sex couples abide by the same laws they always have. If polygamy is allowed by ruling bigamy laws unconstitutional, a man could decide he really wants that family in another state and is under no legal requirement to inform his spouse. Under current law, even if SSM is allowed, if a man wants that other family, he must divorce his current wife first. Basically, polygamy requires an alteration of the institution that affects everyone… SSM does not.
August 17, 2010, 3:42 amJohnny In Georgia says:
As expected, the discussion is only slightly informative, a tad amusing and overwhelmingly sad — the usual peanut gallery of haters and bigots, gross misunderstanding of fundamental rights and voting, inability to process the written word or analyze arguments, and assertions of stereotypes, cliches and the bible/natural law as fact, etc. Tiresome actually.
August 17, 2010, 6:19 amMikeybackwards says:
The problem with your line of reasoning – even if your interpretation is correct is that we have this pesky thing in this country called Freedom of Religion. Now while I will vehemently defend your right to believe how and what you will without the government telling you what or how to believe; similarly I will fight you and anyone else tooth and nail who attempts to enshrine their religious edicts and beliefs into law binding upon those who are not their co-religionists.
I believe this both defends government from the encroachment of religion into the secular realm, and defends those who are religious from facing legal burdens on their belief systems.
So it really is irrelevant what your or any scripture says about homosexuality or marriage – because our system of government does not, indeed should not, take such sources into account when deciding what laws to make binding on all of us equally. Nothing in any of the schemes for extending civil marriage to include same sex marriage will or should require religious communities to perform ceremonies with which they disagree. While performance of religious ceremonies to solemnize a marriage may be one way of entering into a civilly recognized marriage nothing in the law requires or provides special recognition of such religious ceremonies over a civil ceremony before a duly licensed and appointed civil officer empowered to conduct marriage ceremonies. Thus, even if or when same sex marriage becomes the law of the land it will not infringe upon the realm of the religious. Proof of this can be seen in the application of marriage laws where someone who obtaining a civil divorce does not create a burden upon Catholic priests from presiding over or conducting a subsequent re-marriage of that person in contravention of the Roman Catholic beliefs that refuse to recognize such civil divorce and consider any such subsequent marriage to be bigamous or adulterous.
You might not like the idea of same sex marriage. You may believe it to be immoral, or sinful in accordance with your beliefs and interpretations of your scriptures. However that does not entitle you or anyone to impose such sectarian beliefs on those who do not share them and bar such non-co-religionists from obtaining a civil (versus a religious) marriage.
August 17, 2010, 6:26 amGuy says:
I’m willing to stipulate that rape is immoral, whether homosexual or otherwise.
August 17, 2010, 7:00 amDebrah says:
Culturally insightful.
Intellectually robust.
Astoundingly rich.
Just short of orgasmic, really.
This Star Trek venture into a Vulcan rendition of “marriage” should pause for the Klingons’ approval.
August 17, 2010, 7:00 amGuy says:
It’s my understanding that the law of hospitality said that if someone wishes to do harm to your guests, you must offer up a member of your household to take their place.
August 17, 2010, 7:05 amGuy says:
When such laws have been struck down, it’s not on that basis. I would argue Oncale, (finding that a man can sue another man for sexual harassment under Title VII as long as that harassment is “because of… sex”), though not a decision in the Constitutional context, at least acknowledges the basic principle. I’m not aware of precedent discussing the issue, although the argument is frequently made in the briefs of relevant cases (as in Lawrence, where the primary argument on the other side was, there can’t be intermediate scrutiny here because then it would apply to marriage). It certainly is the case that any sex classification ordinarily triggers intermediate scrutiny, and I’m not aware of any ruling explaining why that rule wouldn’t apply when regulating sexual behavior, it certainly would be a special exception to the general rule, if such were the case though.
August 17, 2010, 7:23 amjrose says:
A reminder of what we already discussed:
You invoked Parents Involved to argue that but-for his race a student would be able to go to his first choice school, and thus the law classified by race and strict scrutiny applied. You analogized by saying but-for his gender, a man could marry his male lover, and thus the law classified by gender and intermediate scrutiny applied.
I countered that if the gay man were a gay woman, he wouldn’t want to marry his original male lover, his lover would now be a woman. So, it isn’t but-for his gender that he could marry his lover (unless he were bisexual). To the contrary, it is but-for being gay, that he can’t marry his lover.
You said my observations on the nature of sexuality play no part in the formalism of determining whether there is gender or sexuality discrimination. I disagree, and so apparently does SCOTUS.
August 17, 2010, 7:53 amMikeybackwards says:
Cite please? I don’t know enough to categorically dismiss your position but would need something stronger than your assertion as to what the ‘law of hospitality’ would require. However, I don’t think that such laws would require offering up one’s daughters for gang-rape. Instead, I would think the law of hospitality would require defending those protected under such status rather than offering up a member of one’s own house/family as a surrogate for the violence desired to be done upon the guest(s).
Of course given that women were treated as nothing much more than chattel-property, perhaps I am wrong.
Again, I don’t don’t see how this is an example we would or should follow as to proper and correct behavior and hardly speaks well of someone that he would offer up his daughters in such a fashion. Instead, I would say that Lot was neither good nor righteous, but rather was just as debased and debauched as the residents of the mythical cities of Sodom and Gomorrah were supposed to be.
Additionally, I don’t see any relevance Bronze-Age myths that putatively are about homosexual rape have to a discussion about permitting adults to mutually and consensually enter into a marriage with the spouse of his or her choice and whether strongly held beliefs regarding the topic grant one standing in a modern United States court, other than a puerile attempt to try to conflate same sex marriage with homosexual rape.
August 17, 2010, 8:10 amJoe says:
The intervenors have now called the plaintiffs standing into question:
If Appellees are correct that Proponents lack standing, then the court below
August 17, 2010, 8:13 amlikely lacked jurisdiction (and its judgment must therefore be vacated) because the
Attorney General agreed that Proposition 8 was unconstitutional. See GTE Sylvania,
Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 383 (1980) (“there is no
Art. III case or controversy when the parties desire ‘precisely the same result’ ”
(quoting Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971)
(per curiam))); League of Women Voters of California v. FCC, 489 F. Supp. 517,
520 (C.D. Cal. 1980) (dismissing constitutional challenge to federal statute for lack
of case or controversy where defendant FCC declined to defend because it “agrees
that the statute is unconstitutional”).
Guy says:
You’re framing the issue strangely, first, I’ve never known a case in the recent era in which the test wasn’t classification: i.e. lack of gender-blindness. The simple fact is that the law on its face looks at people’s sex, and couldn’t care less about their orientation, orientation only has a disparate impact claim. Also, “marry his preferred lover”? That standard is highly manipulable, and a strange way of looking at the issue, like if I said Loving is okay because he can’t “marry a person of another race”, which is unaffected by his race, it’s not but-for race, it’s but-for “different race attraction”. Or that the problem with segregation is that it discriminates but-for the desire to be in the non-corresponding area, not but-for race. The question isn’t whether Adam can marry his preferred lover, the law isn’t even capable of identifying Adam’s preferred lover, the question is whether Adam can marry Steve, and but-for his sex, he would be allowed.
Now you might think framing it as “preferred lover” is more important, but that doesn’t matter, maybe Adam doesn’t want to marry his preferred lover, he wants to marry Steve, the nice guy who can provide a stable home, even if he’s not too attracted to him. The real question is whether the law needs to be able to know Adam and Steve’s relative sex, and the answer is yes. A and B are getting married, to know if it’s legal, you have to know about their relative genders, knowing their orientations doesn’t help, because it’s perfectly legal for a lesbian to marry a gay man. A lesbian presumably wouldn’t want to marry a gay man, but that’s her problem, unless she wants to bring a disparate claim based on sexual orientation discrimination. But what is happening if she tries to marry a woman she is denied her license because of the relative genders of the two people. What I find most strange about this interpretation is that it ignores the concrete classification on the face of the law in favor of a disparate impact claim on the basis of another classification that can’t even be defined without defining the first classification first.
Also, are you really arguing that bisexuals somehow get an as-applied challenge to the law on the grounds of sex discrimination?
August 17, 2010, 8:24 amGuy says:
Basically this is a question of the precedents call “disparate impact” versus “disparate treatment”. The “disparate treatment” is on the basis of sex, while it’s only “disparate impact” on orientation. but disparate treatment on the basis of sex alone is sufficient for intermediate scrutiny. The whole point about making the test be about gender-blindness or color-blindness or what-have-you is that it prevents people from being able to manipulate the issue by reframing the effect of the law in terms of other classifications.
August 17, 2010, 8:31 amGuy says:
Think about it mathematically in terms of functions, so that we’re being formal and unbiased, whenever you change one variable, you have to specify what are the other variables that are being left unchanged (for example, if you increase volume, are you leaving density unchanged? Or mass? you can’t preserve both). You’re saying that it’s possible to leave whether they are homosexual or heterosexual unchanged, that’s true, but it’s also possible to leave whether they are androphilic or gynophilic (not sure whether those are real words, but you see what I mean) unchanged. So which one matters? Neither, because a court would never have to inquire into either type of status to determine legality, and even if it did, it wouldn’t help, the court has to inquire into sex.
August 17, 2010, 8:41 amJakeD says:
Mikeybackward:
You have it all backwards. I’ve never once posted that our system of government should take such sources into account when deciding what laws to make binding (that simply makes me more certain). “Morals” are not necessarily “religious” either. Even I admit that there must be a legitimate, secular reason to ban same-sex marriage. One such reason would be to encourage bi-sexuals to choose opposite-sex relationships.
August 17, 2010, 9:07 ambhaal says:
With Respect, I am not convinced by BZ’s argument at all, because
a)the central thesis of his argument that ‘defensive enactors’ have standing relies on quoting the Ninth Circuit decision in AOE that distinguished initiative proponents from the abortion doctor in Diamond v Charles. However, that decision was clearly disapproved of in the Supreme Court decision, even if only in dicta.
b) The ‘grant of rights’ argument refers to ‘reaching out and grabbing a facial constitutional challenge’. I am honestly not sure what that means. I’m only a trainee English solicitor, but I have studied American Law as well and continue to keep up with the latest cases. I just don’t know what BZ is attempting to say by using that phrase.
Anyway it appears to me that Diamond says the test should be whether the defendant-intervenors could have been sued by the plaintiffs. If Walker had ruled the other way the answer to that question is certainly ‘no’ – defendant-intervenors had no influence over whether Proposition 8 was enforced whatsoever. If plaintiffs had lost they would have appealed against Schwarzenegger et al, not ‘Yes on Prop 8′.
c) The traditional standing portion of BZ’s argument explicitly rehashes a brief from the 9th Circuit AOE case. Again, AOE was decided on other grounds, so the Supreme Court’s comments on this are dicta, but they clearly disapproved of using this argument to give appellate standing.
So none of BZ’s arguments work, unless I’m missing something. His post relies too much on arguments which have already gone to the Supreme Court and were already disapproved of (if only, technically, in dicta). He may make a compelling policy argument for allowing appellate standing in this kind of case but not, I am afraid, a legal one.
August 17, 2010, 9:26 amJakeD says:
Aphrael:
If the three Judges are actually at the same conference where Walker (and Justice Kennedy) are, that might be a bit awkward.
August 17, 2010, 9:44 amTammy Cravit says:
Setting aside whether this is true for a moment, I do feel compelled to point out that standing and jurisdiction are not the same thing. Though it seems a number of people, here and elsewhere, are fond of conflating the two, they mean different things and have different requirements. Those arguing the viewpoint expressed above ought to be thinking about whether the harmless error doctrine applies – I’m sure the 9th Circuit will be thinking about it.
Apropos of this discussion, another question: How did the proponents not see this issue coming? All my experience with litigation has been in state court, not Federal (I’m a paralegal) but a standard pre-litigation conversation my supervising attorneys and I always had was “what objections can we expect to be raised to our arguments, and how should we best address them?” Why did the proponents not anticipate that this issue might come up and brief it in their initial motion for a stay?
Absent that briefing, it makes me wonder if nobody on the proponents’ legal team seriously thought they’d lose at trial. If they had considered the possibility of a loss at trial, then “what happens if the Governator and the AG don’t appeal?” would seem to me to have been an obvious question to be asking themselves much, much earlier in the proceeding.
August 17, 2010, 10:03 amGuy says:
I’m not sure I completely understood BZ’s post either, but assuming I do, the “defensive” standing seems irrelevant because Proponents didn’t enact the law, the people of California did, which leads to what I think is the second point: It’s possible that California law allows proponents to represent the interests of the voters with respect to this law, but that’s not clear, and even if it did, it’s not clear this would create standing. The third point seems completely irrelevant; there is no real particularized harm.
Finally, as you note, BZ seems to rely on a brief that he submitted to the Court making an argument that it strongly disapproved of in dicta. I don’t know why BZ tries to characterize it as “just” Ginsburg’s dicta, since the language was joined by a unanimous Court.
It’s possible I misunderstood the argument or am missing something, but if not, I’m not very persuaded.
August 17, 2010, 10:10 amShelbyC says:
Well, Art III standing is an element of whether or not there is a justiciable case or controversy before the court, and therefore whether the court has jurisdiction. So if a court doesn’t have parties with Art III standing, it doesn’t have jurisdiction.
August 17, 2010, 10:12 amJK says:
City of Cleburne v. Cleburne Living Center, Inc.
August 17, 2010, 10:34 amScott says:
Following up: the NRO article indicates that Cooper had entered relevant evidence into the trial record, and specifically mentions his willingness to discuss work by Kingsley Davis and Blackstone. The evidentiary submissions from both parties are available in full at https://ecf.cand.uscourts.gov/cand/09cv2292/evidence/index.html. There are no articles by either of those authors entered into the record by the D-Is. In fact, there are no articles that purport to discuss the negative social consequences of same-sex marriage at all, except possibly the works by D-I David Blankenhorn, who was rejected as a valid expert witness by Judge Walker. The closest that the D-Is come to an argument about the negative consequences of SSM is a 2004 article by Norval Glenn in Society, which says in its opening paragraph:
Again, IANAL, and so there may be fine points of trial strategy that are evading me here, but it seems to me that if your case relies even in part on published evidence from experts, you should enter that evidence directly into the record, rather than assuming that secondary literature which refers to it will be sufficiently persuasive to make your case. This does nothing to change my opinion that either the counsel for the D-Is were inept bordering on incompetent, or there is simply no evidentiary case to be made against SSM.
August 17, 2010, 10:41 amGuy says:
Is that really “as-applied” in the sense of carving out a special exception? It’s really more just cutting out a whole part of the statute. What I meant was that as-applied challenges in the sense of “my special case doesn’t fit the rational basis” generally fail, because there’s no requirement the law be narrowly tailored. What JGTK is asking for is the creation of a resource-consuming process to make a distinction, so it survives rational basis anyway. Also that case is usually seen as an example of “rational basis with bite”.
August 17, 2010, 10:53 amJohn D says:
Scott,
So to make this clear, Whelan is accusing Walker of acting in bad faith because Walker failed to take in account the published writings of a dead man which the defendant intervenors never entered into evidence in the first place.
Not only now does Whelan feel that the dead should be presented as expert witnesses (despite the impossibility of a cross examination), but that Walker should have been introducing evidence into the trial himself.
This whole matter leads me to view Whelan as a polemicist whose word can’t be trusted.
August 17, 2010, 11:05 amJakeD says:
The Sacramento Gay and Lesbian Center, which had planned to host individual wedding ceremonies on the west steps of the state Capitol as soon as couples began arriving from the clerk’s office on Wednesday, now is organizing a protest, said spokesman Ken Pierce.
“Things were looking pretty good. How could they do this?” said Pierce. “A lot of people are pretty angry right now. They almost had the green light, and now it’s turned yellow again.”
Simmersbach, 47, and Luiz, 50, planned to wear wedding whites when they arrived at the Sacramento County clerk’s office for their 5 p.m. appointment on Wednesday.
“White is for pure love. That is why we want to do this,” Simmersbach said.
Family members had purchased airplane tickets to Sacramento for the occasion, and the couple were looking forward to a celebratory dinner Wednesday night.
Simmersbach and Luiz have been to the clerk’s office twice this month already, only to be turned away.
“It’s really, really hard,” Simmersbach said. “This not only affects us, but our families, our friends, our employers, the caterers. Sometimes I have moments of real anxiety, and others I feel a deep calm. I’ve had my ups and downs.”
http://www.fresnobee.com/2010/08/17/2043804/appeals-court-puts-same-sex-marriages.html#ixzz0wsMhPT67
If a permanent stay is put into place, Wendy Rae Hill, Executive Director of the Sacramento Gay and Lesbian Center explained, “Same-sex couples will continue to suffer the indignity of being considered second-class citizens and we and our families will continue to be without the same rights and protections legally married couples have. Ether way those who are currently legally married suffer no consequences what-so-ever”.
http://www.saccenter.org/
Too bad, how sad! Even if the stay had not been granted, same-sex marriages would still have been “second-class” on the federal level and unrecognized in most States.
August 17, 2010, 11:08 amScott says:
A further follow-up: Norval Glenn’s article should more properly be called an “op-ed,” since he provides no citations to support any of his assertions.
And an anecdote: I worked on a gay-rights campaign in 2001, opposing one of the many “no special rights” movements that sprang up around that time in the wake of the Cincinnati decision. The AFA was at that time circulating a document that outlined what they claimed were the negative health consequences of gay sex, with citations to the literature. Having a background in science and access to the relevant literature, I decided to investigate their claims for myself. The articles that they asserted to “prove” that homosexual activity has negative health consequences were all studies of either self-identified HIV+ or other STD-infected individuals, or sex workers; obviously neither of these can be generalized to the LGBT population as a whole. Inability to correctly refer to the literature appears therefore to be something of a chronic problem among anti-gay activists.
August 17, 2010, 11:15 amJakeD says:
SAN DIEGO — A ruling by a federal appeals court on Monday put same-sex marriage on hold, delaying a local couple’s wedding plans until at least December.
One Crown Point couple told 10News that instead of going on a honeymoon this weekend, they will join other San Diegans to protest the latest ruling.
“[We're] surprised and disappointed,” said Tony Dylan-Hyde.
His partner Tyler Dylan-Hyde agrees.
“Disappointed is definitely right there,” he said.
The two have been together for 15 years. They were already wed legally in Massachusetts and were set to legally marry in San Diego this Thursday.
They held a reservation number at the county administration building and were crushed when they received word about the judges’ ruling.
“Being three days away from the day that same sex marriage would again become legal in California and then to have that come down so quickly was a bit of a shock,” said Tony Dylan-Hyde.
But Pastor Jim Garlow of Skyline Wesleyan Church in La Mesa was pleased with the ruling. Garlow told 10News, “It is a joy when the oppression of a judicial tyranny is halted.”
http://www.10news.com/news/24654923/detail.html
August 17, 2010, 11:16 amJakeD says:
I would be PISSED if my marriage of 53 years were suddenly invalidated too. There would certainly not be just peaceful protests!
August 17, 2010, 11:18 amMichael Ejercito says:
The exact passage from Romer.
Of course, it is questionable that Davis even had such holdings. From Murphy v. Ramsey:
They must have known that a court ruling may be appealed.
I wonder why the activists never tried to campaign for amending state constitutions (except for one activist in Colorado) or even the United States Constitution.
August 17, 2010, 11:43 amJakeD says:
They know that liberal judges are their only hope (in this lifetime at least).
August 17, 2010, 11:47 amMark Field says:
No, standing and jurisdiction are technically distinct. A court can have jurisdiction over the parties and over the controversy even if the plaintiff lacks standing to sue.
For example, assume a CA plaintiff sues a NY defendant for breach of contract for an amount in excess of the jurisdictional limit. The NY defendant has the requisite minimum contacts with CA. The court has jurisdiction; all elements have been satisfied.
Now suppose that the evidence shows that plaintiff actually assigned his rights under the contract to a third party. The plaintiff lacks standing even though the court had jurisdiction.
August 17, 2010, 11:54 amRandy says:
Alphageek: Well, since marriage isn’t a fundamental right, in your view, and those who want it should wait until the public agrees, then you are saying that all the court cases that struck down interracial marriage were decided wrongly.
In 1940, virtually every state in the union had banned interracial marriage. Only a few were repealed by the legilatures, none by popular ballot. By the time of the Loving case, about seven states still had bans. Moreoever, shortly after Loving struck down all the marriage bans, a poll indicated that 80% of all Americans disapproved of interracial marriage, and that was in 1967.
Just a few years ago, Alabama had a popular vote to ratify interracial marriage, and it was approved, but not by a very wide margin, indicating that many people there still oppose it.
So, are you really arguing that blacks and whites that wished to marry should have waited until popular ballots (or at least state legislatures) would have allowed it? If so, how long should the Lovings have waited until they could get married? Ten years? 20 years?
Would you be willing to tell your fiancee that well, gosh, we should be able to get married now, but the public isn’t ready just yet, so we might have to wait half our lives to get married?
August 17, 2010, 11:56 amScott says:
Or, alternately, they believe that Constitutional amendments to dictate narrow ends of social policy are misguided no matter which side of the issue you take. The history of Prohibition is somewhat instructive in this regard. (It’s also instructive as a reminder that a Constitutional amendment is not, in fact, the last word on an issue.)
August 17, 2010, 11:58 amJakeD says:
No, Mark. The Court has jurisdiction over the third-party assignee in your hypothetical and, I would argue, lacks jurisdiction over the [purported] plaintiff and defendant.
August 17, 2010, 11:58 amJakeD says:
Scott:
Whether gay-activists are against such amendments on principle or not is irrelevant since they KNOW (in the non-Biblical sense) that they don’t have the votes. Unlike Prop. 8, for instance, which did have the votes.
August 17, 2010, 12:00 pmGuy says:
Aren’t you confusing subject-matter jurisdiction with the case or controversy requirement? If no plaintiff has standing then there’s no case or controversy over which the court can exercise jurisdiction.
August 17, 2010, 12:10 pmL says:
I think Mark’s confusing personal jurisdiction with the other jurisdictional requirements. In his example, the court (assuming a CA court) has personal jurisdiction over the defendant.
Either way, you are right – in federal court, standing is jurisdictional, through the case or controversy requirement. Ditto ripeness and mootness.
August 17, 2010, 12:29 pmSmooth, like a Rhapsody says:
Randy:
Weird stat, if correct, that 43 states allowed gay marriage in 1967, but 80% of those individuals polled “disapproved”. Could it be that “disapproved” means something other than “it should be legally prohibited”; as in “I disapprove of strip clubs, but recognize that the law allows for them”?
Also, what was the full faith and credit status of interracial marriage in ’67?
August 17, 2010, 12:35 pmMark Field says:
In the spirit of Prof. Kerr’s post, I’ll say that it’s possible that I am wrong on this. But consider: in my hypothetical, the court had to make a finding of the assignment and then order dismissal on that basis. Does res judicata apply? If so, the court had jurisdiction.
August 17, 2010, 12:44 pmJakeD says:
For Mark Field’s hypothetical, I was assuming it was federal court and that the assignment was effective (including novation).
August 17, 2010, 12:46 pmNesterT says:
My point exactly, and thanks for the reiteration (I pointed to Bowers as the last case to hold with the original understanding of the Constitution re: homosexuality). Until Lawrence, no one had ever “found” the supposed right to homosexual sodomy hidden in the Constitution.
August 17, 2010, 12:51 pmGuy says:
That only means that the court had jurisdiction to consider its own jurisdiction, not that it had jurisdiction over the actual claims.
August 17, 2010, 1:04 pmJohn D says:
It should be noted that one of the criminal charges against the Lovings was that they had married out of state (specifically in D.C.) in order to evade Virginia’s marriage laws. The police officers who entered their home were hoping to catch them having sex as that would have been a further criminal charge. (This case does end up looking a lot like the later Lawrence case.)
Certainly, Virginia felt that it need not recognize an out-of-state interracial marriage. There was no racial DOMA, merely the presumption that states did not have to recognize marriages that violated public policy.
At the time of Loving, seventeen states forbade interracial marriage (all in the South). Had the Lovings moved away from family to a northern state, their marriage would not have been contested. I’m aware that some southern interracial couples did just that. However, they should not have been obligated to do so
August 17, 2010, 1:10 pmJakeD says:
http://gltnewsnow.com/2010/08/17/community-action-alert-capitol-protest-wednesday/
Where: The west steps of the California State Capitol Building, 10th Street and Capitol Mall.
When: Wednesday, August 18, 2010, 5:00pm Gather and Sign Making – 6:00pm Start
August 17, 2010, 1:27 pmScott says:
Your point being?
August 17, 2010, 1:30 pmGuy says:
Should I be concerned about this?
August 17, 2010, 1:36 pmMark Field says:
That’s parsing it pretty fine under the circumstances of my hypothetical. The determination of the assignment affects both standing and the merits.
August 17, 2010, 1:41 pmJakeD says:
Guy and Scott:
There could indeed be violence there (not by me, as I am in Connecticut ; )
August 17, 2010, 1:45 pmGray Peterson says:
They really bought plane tickets? Really? I’m a supporter of marriage equality, but that is just STUPID!
August 17, 2010, 1:46 pmJakeD says:
More news about planned protests:
http://sdgln.com/news/2010/08/17/same-sex-couples-across-california-cancel-wedding-plans
August 17, 2010, 1:49 pmScott says:
And equally there could not. And the implication of your continued posting about LGBT disappointment and plans for protest rallies is that you expect violence to occur and are eagerly anticipating the actual occurrence of it as vindication of your prejudices about gays, which – if true – is beneath contempt.
August 17, 2010, 1:58 pmL says:
Unlikely.
Connecticut has legalized gay marriage. The resulting punitive hail of fire and brimstone has destroyed (among other things) the state’s entire electronic infrastructure, and interferes with radio signals within the state’s borders. The fact that you are posting on the internet makes it pretty much impossible that you’re located in the sin-cursed wasteland that once was Connecticut.
On another note, it’s really awesome to hear that the reason you won’t be engaging in violence in defense of discrimination is that you can’t make it.
August 17, 2010, 1:58 pmJakeD says:
Scott:
I don’t think there’s an “equal” chance.
August 17, 2010, 2:12 pmJohn D says:
Connecticut? You mean you haven’t run off to the safety of Rhode Island?
August 17, 2010, 2:12 pmptt says:
He’s trapped in his mother’s basement and is hoping that his disinformation about impending violence on the west coast will distract the same-sex hoards surrounding his house just long enough for him to escape or at least make a run to the 7-Eleven for more Pepsi and Cheetos.
August 17, 2010, 2:32 pmJakeD says:
No License, NO PEACE!
Members of SAME, in conjunction with other groups, will hold a sit-in at the San Diego County Clerk’s office at noon Thursday – the day after Judge Vaughn Walker’s administrative stay was set to expire, and the day many already had made appointments to obtain their long-awaited marriage licenses.
http://sdgln.com/news/2010/08/17/video-no-license-no-peace-say-activists-preparing-protest-thursday
August 17, 2010, 2:32 pmShelbyC says:
Keep in mind I’m talking about Art III standing in federal court. Art III standing is an element of a case or controversy, which is required to be covered under the judicial power of the US, which is required for a federal court to have jurisdiction. AFAIK other types of standing don’t implicate the court’s jurisdiction.
August 17, 2010, 3:08 pmShelbyC says:
Keep in mind I’m talking about Art III standing in federal court. Art III standing is an element of a case or controversy, which is required to be covered under the judicial power of the US, which is required for a federal court to have jurisdiction. AFAIK other types of standing don’t implicate the court’s jurisdiction.
August 17, 2010, 3:08 pmAlessandra says:
Actually homo activists have a chronic problem spreading outlandish myths as well. Color me flabbergasted and surprised that you forgot to mention it. Usually these myths serve two functions: to reinforce a blown-up victim stereotype that liberals constantly drum out for homosexuals. Second, to lie or trivialize any problem concerning dysfunctional or violent behavior by homosexuals.
One of the most distorted myths bandied about is the issue of teen homosexuals and suicide. Homo activists continue to repeat in the media that there is a huge number of such suicides, which plays so nicely to conservative bogeyman propaganda liberals love to hear.
The myth goes like this: it is conservatives who do not normalize homosexuality who drive millions of homosexuals to suicide. The actual numbers of teens with a homosexual problem who commit suicide is minimal. And obviously, homo activists conceal and obscure any life history factor which led the teen to suicide, and which is not related to homosexuality, and speak only of their homosexuality psychology. (We won’t even mention methodology and sample size issues).
Another myth refers to discourse about sexual abuse. The latest myth bandied about is that homosexuals do not abuse minors, only heterosexuals do. (Apparently in the simple-minded discourse of liberals, bisexuals don’t exist). As two examples, a large percentage of molestation by teachers in public schools is perpetrated by homosexuals. And a majoritarian number of incidents of abuse in the Catholic Church scandal involved homosexual perpetrators. The same myth goes around about sexual harassment and domestic violence (these problems only exist for heterosexuals).
One particular ironic myth is that in college campuses and high schools, homo activists insist that certain “safe zones” be created because “homosexuals are at such danger from those awful, brutal, frothing conservatives.” However, by colossal numbers, it is homosexuals who perpetrate violence and assault to other homosexuals (in their dysfunctional personal relationships).
If education settings were serious about protecting homos from violence, they would need to start protecting them from themselves. And this makes the “safe-zone” particularly ridiculous because surveys indicate whenever you have a significant number of homo and bisexuals professors and teachers, there is a significant number of sexual harassment cases. Of course, students can’t be safe from that kind of harm in a tolerant (read seriously violent) setting. Liberals do not want to hear that it’s themselves they need to start checking for violent and harassful behavior. They prefer to beat their chests against conservatives, and blow up a victim myth for homosexuals. How else can they inspire all this hatred of conservatives and get those election votes?
Lastly, “although only a small percentage of American men report having sex with other men, this group accounts for nearly half of all people in the United States living with HIV and more than half of all new HIV infections in this country each year. It is noteworthy that some men who have sex with men also have sex with women, meaning an HIV-infected man in this population could also spread the virus to a heterosexual woman. (National Institutes of Health 2010)
That’s because they have so very few dysfunctional and irresponsible attitudes and relationship behaviors!
August 17, 2010, 3:12 pmRandy says:
Smooth: “Weird stat, if correct, that 43 states allowed gay marriage in 1967, but 80% of those individuals polled “disapproved”. Could it be that “disapproved” means something other than “it should be legally prohibited”; as in “I disapprove of strip clubs, but recognize that the law allows for them”?
No, I was talking about interracial marriage in 1967. The question in the poll was do you approve of interracial marriage. When 80% of the people are against it, you can pretty much assume that quite a few don’t want to overturn the ban.
Evidence? Alabama.
NesterT: “. Until Lawrence, no one had ever “found” the supposed right to homosexual sodomy hidden in the Constitution.”
Until Lawrence, there were several states that prohibited opposite sex sodomy as well as gay sodomy. Are you upset that SCOTUS found a constitutional right to get a blowjob from your wife? I daresay the vast majority of Americans believe that the Constitution gives us rights, and those include the right to consensual sex in our own bedrooms, but if you believe that the government may regulate our sex lives, please show us where in the Constitution it may do so.
August 17, 2010, 3:16 pmScott says:
Citations, Alessandra. Otherwise you’re just proving my point. (And “National Institutes of Health 2010″ is not a valid citation – you can’t reasonably expect a reader to locate a specific citation with so little information.)
August 17, 2010, 3:17 pmJakeD says:
Alessandra:
Did you see the first video link I provided above documenting an actual assault by homosexuals against an elderly Prop. 8 supporter?
August 17, 2010, 3:22 pmJohn D says:
That would be the woman who disobeyed police orders to stay with her group of protesters, wading into the group of anti-Prop 8 protesters and started striking people with her cross, until the people around her prevented her from committing further assault by taking her weapon away? I saw that video.
August 17, 2010, 3:38 pmJakeD says:
Alessandra?
August 17, 2010, 3:59 pmkevin says:
The voter passed initiative is part of Ca. law (rightly or wrongly). How then can the AG and the Gov. decide not to defend the law in court on the grounds that they believe another branch of gov’t (the courts) will ultimately find the law unconstitutional. Isn’t a vigorous argument in front of the court by both sides part of the process that enables a good court decision. It seems to me that among all the other issues we have here one is that the democratic process has been challenged. As a general rule can the Ca. AG decide which laws he will enforce and which he won’t.
August 17, 2010, 4:08 pmFor instance, here in Ma. gay marriage is legal. If a justice-of-the-peace refused to preside at a gay marriage I would hope that the district attorney would pursue the matter…. regardless of how he (the DA) thinks the Supreme Courts may ultimately rule.
Scott says:
Hopefully she’s out finding those citations for me. I look forward to reviewing them.
August 17, 2010, 4:09 pmWallace says:
You repeat this talking point often… yet you don’t seem to realize that your very own talking point betrays your agenda. The fact that by 1967 only a very few States still had such bans, (most WERE repealed by State Legislatures), completely dismantles your pathetic attempts to draw an analogy here, as the exact OPPOSITE has occurred with this issue. (A fact that will not be lost on Justice Kennedy.)
That’s real simple, find a church that supports your ideology, and get married there. The Metropolitan Community Church will “marry” you. The fact that you think that only a certificate from the government can validate your relationship betrays your true intentions. Imposing your will on others. That is, after all, what you are after. You need to have the government tell you that you are just as normal as everyone else. You then want to use government force to impose your ideology on anyone who dares to disagree. That is what is really going on here. You want the government to initiate force on your behalf. You want to silence dissent, and impose your will on others. This isn’t about benefits, because in States that have granted “Civil Unions” you are granted every State benefit that a marriage gives. You want the government to give you the word “marriage”.
I have news for you. The government is incapable of giving you what you are really after. To borrow a phrase popular with the left, “You can put lipstick on a pig, but in the end, it is still just a pig.” Government is incapable of changing the fact that two men or two women are biologically different, and that their union can never result in biological offspring. The government is incapable of making these faux ‘marriages’ the equivalent of real marriage. All you are doing, is “putting lipstick on a pig.” And all you will succeed in doing, is further pushing us to the point where we get rid of said oppressive government, and institute new guards for our future security.
August 17, 2010, 4:09 pmJakeD says:
Wallace:
In Jesus’s Name, Amen!
August 17, 2010, 4:11 pmScott says:
That’s a good question, Kevin. There’s a spirited and reasonable debate about what is legally required of the CA AG in cases like this. Whatever happens with regard to Prop 8, it would be a good idea for Californians to have a measured and thoughtful discussion about what changes are necessary in state law to make the lines of responsibility less ambiguous. This could either be an explicit clarification that the AG’s duty to “enforce” state law includes the duty to defend it in court, or a provision that allows the AG to delegate authority to a designated third party, with the necessary legal language that would preserve that party’s standing to appeal.
Having said all that, what my cynical side thinks we’re likely to get instead is a poorly-worded ballot referendum that will be argued at a high emotional pitch and that may or may not actually clarify the legal situation, but I’ve been wrong before.
August 17, 2010, 4:17 pmWallace says:
You are a lunatic or a liar. Which is it?
August 17, 2010, 4:19 pmAlessandra says:
Citations that everything I’ve mentioned is wrong. You do have that info, don’t you? Otherwise, you’re the one proving my point that homo activists spread myths by distorting or fabricating numbers.
August 17, 2010, 4:19 pmJakeD says:
Here’s the video (again) showing her calmly walk in front of a gang of homosexuals who do physically assault her while she is no physical threat to them (toward the end of broadcast):
http://www.youtube.com/watch?v=znXHJQSX78o
August 17, 2010, 4:20 pmAlessandra says:
Hi Jake, no, I hadn’t. Will look at it now…
August 17, 2010, 4:20 pmJohn D says:
Neither. At 2:40 in that video, she strikes someone with the cross. It is immediately taken from her.
Are you a lunatic or a liar?
August 17, 2010, 4:26 pmScott says:
I don’t, actually, because I’ve not bothered to keep up with the latest hysterical accusations against the LGBT community. In any event, the common standard is that the burden of proof rests with the accuser, so: citations. Please.
August 17, 2010, 4:26 pmyankee says:
I have no idea what’s legally required, but for rule-of-law reasons I think the executive should be defending any law that can be nonfrivolously defended. Otherwise you are opening the door to letting the executive branch nullify any law it doesn’t like by refusing to defend it in court. I support the plaintiffs and believe Judge Walker made the right call but I still think Moonbeam and the Governator should have defended the law.
The law should not be defended if any defense would be frivolous (MA’s ban on blasphemy is still on the books) but there’s no way that’s true here.
Welcome to California!
August 17, 2010, 4:27 pmyankee says:
What about the possibility that John D is Lord?
August 17, 2010, 4:32 pmJohn D says:
Oh, I think there’s little chance of that. Or does that work into the bit in The Life of Brian in which Brian says that he isn’t the messiah, and one of those who want to follow him says, “only the messiah would deny that he was the messiah!”
I deny it.
August 17, 2010, 4:39 pmJakeD says:
John D:
At 02:40 in that video, the (styrofoam) cross is already on the ground being stomped upon. She did not hit anyone in that video.
August 17, 2010, 4:42 pmJohn D says:
As I viewed the video, it seemed to be 2:40. Perhaps on your viewing it was 2:39. She strikes a man on the back. Further, eyewitness reports indicate that off camera she had struck another person with the cross.
Ms. Burgess had a long history of protesting Palm Springs gay rights events. Her intent was to get front-and-center with the camera. Further, as I noted before, she had been told by the police to stay away from the other side.
August 17, 2010, 4:47 pmAlessandra says:
OMG! I had NOT seen that! And did you see how the “No Prop 8″ men insisted on covering the TV camera lens so that we couldn’t see if they were going to attack her physically? It seemed someone did something to her at the very end of the clip, but we can’t see clearly.
That’s how tolerant they are. I’m surprised they didn’t go at her with metal bars. Maybe if the TV reporters hadn’t been there…
And this–John D says:
That would be the woman who disobeyed police orders to stay with her group of protesters, wading into the group of anti-Prop 8 protesters and started striking people with her cross, until the people around her prevented her from committing further assault by taking her weapon away? I saw that video.
======================
What is this?!! “striking people???!!! Is this guy on acid???!!!!
Imagine one of these “No Prop 8″ as a “witness” in a trial:
She came at us with swinging a spiked club, a trident, and a cross! She was two feet taller than we were and about to kill us… ALL. We were meek, silent, and passive, but we had to defend ourselves, Your Honor. That’s why bludgeoned her in the head with a brick! All self-defense…
August 17, 2010, 4:48 pmJakeD says:
Dissenting Reason:
The Ninth Circuit has also expediated Imperial County’s appeal for hearing the same week.
http://www.ca9.uscourts.gov/datastore/general/2010/08/17/10-16751_order.pdf
August 17, 2010, 4:48 pmL says:
Maybe the rule should be (and maybe the rule is) that you can’t get default judgment where the question is legal and/or the relief sought is injunctive.
It’s one thing to default on a fact question: if I allege you breached a promise to pay me $20,000, and you don’t defend, the court will reasonably find that you owe me $20,000, and I’ll get a default judgment. But if I allege you owe me $20,000 and I seek an injunction ordering you to be my personal slave for a year, and you don’t defend, no court will grant my injunction. The court has the tools to look at the law and recognize that the law does not require (or allow) such a remedy.
Here, the plaintiffs wanted the law declared unconstitutional and the defendants enjoined from enforcing it. Not as extreme or bizarre an example, but I think it still holds.
August 17, 2010, 4:50 pmAlessandra says:
You’re the one accusing me of making hysterical accusations. Citations, please.
August 17, 2010, 4:51 pmptt says:
She reportedly hit and knocked over a man on crutches on her way to the front of the line. This, unfortunately, was not captured on video, though it did get into police reports. As I recall, the police asked her if she wanted to file charges. As the fellow she had assaulted was offered the same option — and both he and she declined — no charges were filed in the Great Cross Stomping Incident.
August 17, 2010, 4:51 pmJakeD says:
John D:
You’ve provided no evidence (unlike the actual video we’ve provided) as to the police instructions or any other eyewitness accounts.
August 17, 2010, 4:52 pmMichael Ejercito says:
And this can cause problems further down the road. There are other cases challenging DOMA and state marriage amendments (Bishop v. USA, Smelt v. United States, Gill v. Office of Personnel Management) and there maybe more potentially on the way.
What would happen if the California case is not appealed and the Ninth Circuit or Supreme Court issued a ruling in those cases that undermined the legal interpretation in Judge Walker’s ruling. Do the same-sex marriages become domestic partnerships. Will the case have to be relitigated if there is a later decision from a higher court that conflicts with the lower court decision?
August 17, 2010, 4:52 pmJakeD says:
John D:
At 02:38, there is a downward motion of the cross (not by the elderly lady but by the man trying to snatch it from her). She did not assault anyone on the tape we are reviewing so far at least.
August 17, 2010, 5:02 pmJakeD says:
Professor Alder has a new thread up on the Imperial County appeal.
August 17, 2010, 5:16 pmleo marvin says:
She tried to provoke an ugly confrontation. That makes her an ass. The protesters took the bait. That makes them asses. That anyone would show that video as an advertisement for their side is pathetic. That I spent 3 minutes of my life (which I’ll never get back) watching it makes me…?
August 17, 2010, 5:27 pmjrose says:
This, and most of the rest of your post, is another of way of restating that sexuality should be ignored in the formal analysis. Again, I disagree. Sexuality is at the heart of marriage and sexual relations to the point that I don’t believe it is merely a disparate impact anymore than I believe a ban on yarmulkes has only a disparate impact on Jews. While anyone can wear a yarmulke, there is an inextricable link between them and Jewry. While anyone can maary a person of the same sex, there is an inextricable link between doing so and being gay.
Yes, I believe a bisexual person has a plausible, gender discrimination, as-applied challenge.
Your point about androphilia and gynephilia is interesting. Our understanding of what constitutes sexuality will change the analysis (if you believe as I do that sexuality is key to the analysis). I’m not an expert on the issue, but as I understand it, gay and straight are how most view sexuality. It’s possible that transgendered and intersexed people might alos have as-applied challenges.
August 17, 2010, 5:46 pmGuy says:
I would vote for ban on voter initiatives (self-contradictory? perhaps) so it’s hard for me to get worked up over the issue. But generally my position is that the executive should be able to refuse to enforce any law it believes, in good faith, to be unconstitutional without a court order. A lot of people think of courts as the oracles for the Constitution we go to whenever we’re curious, but the truth is they’re only there for when there is an intractable disagreement between two or more parties, with no chance of settlement, in which someone’s rights are at stake (hence the case or controversy requirement).
August 17, 2010, 5:51 pmGuy says:
I think we’re at an impasse, clearly I’m a formalist and you’re a pragmatist. Though I think your position that a bisexual has an as-applied gender discrimination challenge but not heterosexuals or bisexuals is extremely counter-intuitive.
It seems to me that’s an artificial construction, most people think of it in terms of “gay” or “straight” only because that way the more usual gender-orientation pairings are put together in the same category, and it’s not obvious to me that how “most view” something should control the issue, rather than objective reality. It seems to me that a gay man has more in common with a straight woman than a lesbian from an objective perspective, almost definitionally (though I think ultimately the similarity of both being attracted to men is a largely superficial one). What gay men and lesbians have in common is a shared cultural experience, not any sort of shared nature.
August 17, 2010, 6:02 pmWallace says:
You are flat out lying. She didn’t hit anyone. She was walking peacefully in front of the crowd with the cross. Some activists tried to block her with signs. Someone else pulled the sign from one of the activists, then the activists pounced on her like lions. Like I said, liar or lunatic, which is it?
August 17, 2010, 6:18 pmMark Field says:
I think the internet equivalent of Gresham’s Law has reared its ugly head in this thread, but I’ll slip this in:
The problem arises when the judge has to make factual findings preliminary to the determination that there is no standing. If you take the position that the case was void ab initio for lack of subject matter jurisdiction, then he can’t have made those findings; it becomes a metaphysical black hole. In order to get around the problem, there needs to be a distinction made, however fine, between standing and jurisdiction.
August 17, 2010, 6:27 pmNesterT says:
SCOTUS shouldn’t be “finding” new rights at all!
As I mentioned above, I couldn’t care less what people do behind closed doors; but such drastic cultural changes, vehemently opposed by the people, instituted from the top down at the hands of an unelected judiciary certainly cannot be the answer. Removing the people’s power to decide the issue for themselves in this way was not contemplated by the founders (least dangerous branch my foot Mr. Hamilton!).
I would like someone to opine as to what limitations on power, if any, are applicable to SCOTUS if not the actual text and meaning of the Constitution. If we cave to this type of Constitutional “interpretation” (i.e. constantly “finding” new undiscovered rights–whatever their source), what holds the judiciary in check? Stare decisis is obviously no safeguard and a Constitutional amendment too unwieldy.
August 17, 2010, 6:36 pmyankee says:
The Ninth Amendment is part of the actual text and meaning of the Constitution. If the Ninth is justiciable, then finding new unenmuerated rights has got to be part of the job of the judiciary. Do you agree with Robert Bork that it’s an uninterpretable inkblot?
Of course, whether something is a “new” right or an “application” of an existing right is what’s in dispute in most of these cases anyway.
August 17, 2010, 7:04 pmmark says:
I believe Federalist and anti-Federalist 84 discusses this. It seems Hamilton and Brutus were both wrong–and right.
August 17, 2010, 7:51 pmSFAlphageek says:
First, I never said that marriage wasn’t a fundamental right. I said that the state giving its blessing to same sex marriage isn’t a fundamental right. Whether marriage is a fundamental right is a matter for canon law, not civil law. If the state got out of the marriage business entirely and left it to the celebrants’ church to decide who was eligible for the sacrament of marriage, I don’t think you could argue that there would be a violation of a fundamental right – beyond the moral station and special recognition of status (which is what the SSM agenda is about, given that CA has civil unions), marriage is just a particularly inflexible variation of contract law.
The state (read society) has decided that certain relationships deserve a special impramatur and special protection, for moral reasons, or to protect the offspring of the union, or just because that’s how we’ve done it for 2000 years, or for some combination of those. Society has decided that other relationships deserve no protection (in, say, Arizona), or, in California, the same protection with lesser recognition and status – civil unions.
There are a lot of reasons Loving is distinguishable from Perry, so the argument that “if you’re against SSM, you must be against multi-racial marriages” is a false analogy.
First, and most important, race is what you are, sexual orientation is what you do. Race refers to a set of physical and superficial heritable aspects that influence physical appearance to a greater or lesser degree. You can’t (Michael Jackson aside) decide not be black or white or Asian in appearance. You can decide not to engage in homosexual acts, or to take on a homosexual lover. You might be less happy than you would have been otherwise. Your life might be unfulfilled. But you can choose not to act on a homosexual orientation.
And note that I’m not making the argument that “homosexuality is a choice.” I’m saying that, regardless of how immutable a homosexual orientation is, you can decide whether or not to act on it – which draws a clear distinction between sexual orientation and race.
More broadly, and to rehash my earlier post, there are lots of behaviors that appear to be, to a greater or lesser degree, driven by immutable impulses. I’ve seen the research that suggests that, at least with males, homosexual orientation is immutable. I’ve also seen research that suggests that pedophilia is immutable, that serial killers are driven by immutable impulses, and that war heroes (the real ones, the ones that jump on grenades, or charge machine gun nests) act the way they do largely because of unconscious drives. Nonetheless, society heaps opprobrium on those who act out their impulse for statutory rape or murder, and they hold in highest regard those who display exceptional courage under fire.
So again, race and sexual orientation are not equivalent concepts. It strikes me as beyond the pale to penalize someone for what they are; deciding which behaviors that society should condemn, tolerate, or hold up for emulation strikes me as a different matter.
There’s a good argument to be made that homosexual behavior is one of those behaviors that should at least be tolerated, and that the right thing to do is to allow people who wish to be in a committed homosexual relationship to express that through marriage. There’s also an argument to be made that homosexual marriage trivializes the institution of marriage, that it goes way beyond social tolerance to social approval, and so on. Those arguments, on both sides, were made, and the voters made a decision. If you don’t like the decision, the right way to approach the matter is to do a better job of convincing the voters of the rightness of your position, and have another go at it.
And, besides the being/acting dichotomy, race is rightly handled differently than other claims of discrimination or unequal protection. Ever since James Madison passed John Rutledge a note that had “Is 3/5′s OK with you guys?” written on it, we’ve had a moral obligation to expiate the Constitution’s original sin. That’s why race does get and should get strict scrutiny. That’s why you can make all but the most hard core libertarians look like they walked into a door by mentioning Heart of Atlanta in the context of property rights. That exceptional deference doesn’t and shouldn’t extend to any group of people that happens to feel aggrieved that day.
In short, both because I see a distinction between being and acting, and because there’s not a history of special discrimination written into the constitution they can point to, I reject the attempt by SSM proponents to draw parallels between sexual orientation issues and race issues. From a tactical point of view, using the “its just like racism” theme is no doubt a good idea, because Americans are disposed to give exceptional deference to claims of racism. I’m sure playing the race card by proxy accounts for some amount of support for SSM in the general population, but I don’t think that it’s a legitimate argument.
August 17, 2010, 7:53 pmyankee says:
How is this a distinction from Loving? You can’t choose your race, but you can choose not to date outside your race. If anything, the element of choice was much stronger in Loving, since very few people are attracted only to members of a specific race while the vast majority of people are attracted only to people of a specific sex.
August 17, 2010, 8:27 pmmgarelick says:
Burden of proof. It is the proponent of state action that impinges a fundamental right or treats similarly situated parties dissimilarly who has the burden of establishing a rational basis. If the proponent produces no evidence that would support a rational basis, the plaintiff has no burden to “negate its rationality.” The proponents of Prop. 8 produced no evidence that SSM would have any negative effect on OSM; counsel for the proponents said that he did not know of any such evidence.
August 17, 2010, 8:39 pmSFAlphageek says:
Because the practical effects of the being / acting dichotomy work unequally for race, and not for sexual orientation. Consider a woman who is classified racially as black (by whatever arbitrary standards miscegenation laws provided.) She couldn’t draw partners from the same pool of candidates as a woman classified as white, or vice versa. Thus, the class / pool of marriageable people available to a given person varies based on race. Therefore, the two similarly situated women receive unequal treatment under the law.
Now consider a woman who prefers sexual relationships with other women. She can draw partners from exactly the same class of marriageable people as a straight woman. She may prefer to have a different pool available to her, but she’s not, per se, being treated unequally.
August 17, 2010, 8:58 pmSFAlphageek says:
That strikes me as an ahistorical interpretation of the 9th amendment. The origins of the 9th were to keep Congress from using the BoR as an excuse to exceed its enumerated powers (using the theory that if the BoR doesn’t explicitly preclude Congress from doing something, it is implicitly authorized to exceed its enumerated powers to do so.)
Now that Congress, de facto, has general police powers instead of enumerated powers, the 9th is less helpful than it was intended to be.
Plus, even given the most expansive interpretation of the 9th, I don’t see how you can pull SSM out of the “great residuum” of rights as understood at the time of adoption. And even in its most activist decisions, the Supremes never got a majority to accept that your interpretation of the 9th as creating new rights by judicial fiat, either (also, the 9th has never been incorporated against the states, anyway.)
If I remember correctly, what Bork actually said was something along the lines of “if any other part of the constitution were covered with an inkblot, judges wouldn’t be allowed to make up what was under the blot.”
August 17, 2010, 9:26 pmShelbyC says:
There a distinction. Art III standing is necessary to establish jurisdiction in federal court. And despite the metaphysical black hole, the universe hasn’t exploded. Here’s some quick googling so it’s not just me saying it: Here, and a 1911 SCOTUS case here.
August 17, 2010, 9:30 pmRandy says:
Wallace: ” This isn’t about benefits, because in States that have granted “Civil Unions” you are granted every State benefit that a marriage gives. You want the government to give you the word “marriage”.”
None of the states that grant civil unions offers all the same rights as marriage, as there are many federal benefits. Furthermore, in the states that have granted civil unions, the religious right has tried to take them away, such as in Oregon.
“I have news for you. The government is incapable of giving you what you are really after. To borrow a phrase popular with the left, “You can put lipstick on a pig, but in the end, it is still just a pig.” Government is incapable of changing the fact that two men or two women are biologically different, and that their union can never result in biological offspring. The government is incapable of making these faux ‘marriages’ the equivalent of real marriage. All you are doing, is “putting lipstick on a pig.” And all you will succeed in doing, is further pushing us to the point where we get rid of said oppressive government, and institute new guards for our future security.”
I am not interested in the government changing biological facts. What I am interested in is the government recognize our relationships as equal in worth and value as heterosexual unions, and that we are given the same benefits.
As for the poll on interracial marriage, we actually have had several legislatures approve of SSM, such as Connecticut, Vermont, and California. Unfortunately, people like you were not happy with that and blamed them for granting us those rights.
August 17, 2010, 9:33 pmRandy says:
Alphageek: “First, and most important, race is what you are, sexual orientation is what you do. Race refers to a set of physical and superficial heritable aspects that influence physical appearance to a greater or lesser degree. You can’t (Michael Jackson aside) decide not be black or white or Asian in appearance. You can decide not to engage in homosexual acts, or to take on a homosexual lover. You might be less happy than you would have been otherwise. Your life might be unfulfilled. But you can choose not to act on a homosexual orientation”
You contradict yourself. You obviously recognize that a gay person has attractions only for the people of the same sex, whereas straight people only have attractions for those of the opposite sex. Sure, I can decide not to engage in gay acts, just as you can choose not to engage in straight sex either. So what’s your point? That fact is that we do.
Futhermore, not only do we do engage in those acts, some of us decide, like you, to form longlasting committed relationships. Some of us have children, through various means, and sometimes through adoption.
Basically, your solution to the whole issue is, as Wallace hopes, for gays to just go back to the closet, be celibate for their entire lives, give up any hope of having any sort of meaningful relationship, and then you don’t have to deal with it anymore.
Sorry, but that’ ain’t gonna fly anymore. And considering the fact that the majority of Americans now think that being gay is nothing problematic, and that we can and should have the right to live our lives as we choose, your solution will find very few takers.
Catholic priests are the only people who take a vow of celibacy (and you see how well that worked out), but that’s a choice they made. I didn’t choose to be gay any more than you did, and I have a right to live my life, as you do.
Now, of course, I will be willing to strick a bargain. If you truly believe that celibacy is the best course, then I invite you to be celibate yourself, for the rest of your life, and to forgo any relationship with another person forever. If you can do it, so can I. But if you can’t make that commitment, it’s rather unfair of you to suggest it to anyone else just because you don’t know how to handle it.
August 17, 2010, 9:43 pmGuy says:
But not the same pool as a man, which is why I’ve been pointing out this is sex discrimination, it’s exactly the same situation as Loving if you substitute sex for race and “must be different” for “must be the same”. I don’t understand how you can claim this is “equivocation” as you did upthread and then make this argument, it seems you’re contradicting yourself. You say “no, it’s not really about the facial classification based on sex, it’s about orientation, but that’s okay because it treats people the same no matter what their orientation is – it only treats them differently based on their sex. But remember, you can’t claim sex discrimination because this is really discriminating based on orientation.”
Well, which is it? I don’t understand your position. It’s like you’re claiming the discrimination somehow gets lost in the gap between sex and orientation, like change between couch cushions, or maybe it always stays in a blind spot in the corner of your vision, so that when you look at one it jumps to the other.
August 17, 2010, 9:48 pmRandy says:
Alphageek: “Now consider a woman who prefers sexual relationships with other women. She can draw partners from exactly the same class of marriageable people as a straight woman. She may prefer to have a different pool available to her, but she’s not, per se, being treated unequally.”
On the contrary, a lesbian is limited to the pool of other lesbians. She doesn’t “prefer” other women, and if you really think that, you have a profound misunderstanding of sexual orientation.
If you really think it’s a preference, then please tell me what guys you would have sex with any old day.
Sure, a gay man sometimes is capable of having sex with a woman (although I certainly am not). And sometimes a straight man is capable (sometimes quite willing) to have sex with another man. But that doesn’t make one straight and the other gay. Sexual orientation deals with your attractions, and those are not changeable. (Doubt me? Go to Exodus, the leading so-called ex-gay organization. Even they say that for the few people who “stop” being gay, it’s a lifelong challenge, and that almost no one can change from gay to straight).
But no matter. The fact is that as more people know gays, they realize that we are not out to destroy civilization and that we just want what you want — a quiet peaceful relationship on the same terms as you have. Several states have already granted that, and now over ten countries have as well.
What’s the problem?
August 17, 2010, 9:51 pmcustard says:
And Lott, being the upstanding man that he was, offered the crowd his two virgin daughters instead to “do ye to them as is good in your eyes” (Genesis 19:8). Which may go some way to explaining, given the tremendous moral guidance provided by their father, why his two daughters subsequently got Lott drunk and then raped him, and bore his children (Genesis 19:31-38). I guess God must have been out of fire and brimstone at that point.
I do so love to look to the bible for moral guidance.
August 17, 2010, 9:52 pmMichael Ejercito says:
The Supreme Court provided a clue as to what rights the Ninth protected in Washington v. Glucksberg.
The Ninth protects rights that are “deeply rooted in this Nation’s history and tradition…”
Just like none of the states that grant same-sex marriage offer all the same rights as marriage, as there are many federal benefits.
No dispute there.
The constitutions of Texas, Oklahoma, Louisiana, and Wisconsin prohibit the enactment of civil unions.
August 17, 2010, 9:53 pmRandy says:
alphageek: “Now consider a woman who prefers sexual relationships with other women. She can draw partners from exactly the same class of marriageable people as a straight woman. She may prefer to have a different pool available to her, but she’s not, per se, being treated unequally.”
Let’s change a few words here. Now consider a black woman who is in love with a white man. (Like in Loving). She can draw partners from exactly the same class of marriageable people as a straight black woman, meaning straight black men. She may prefer to get married to Mr. Loving, but she’s not, per se, being treated unequally from other black woman who do marry black men.
Therefore, there is no need to remove the ban on interracial marriage. IF she just stop wanting to marry Mr. Loving and dates some black men, then the problem goes away, and we don’t have to deal with this issue anymore.
August 17, 2010, 9:55 pmGuy says:
Exactly, interracial marriage bans don’t discriminate based on race, they’re really discriminating based on the race you’re attracted to, but all people of the same race are treated the same no matter what race they’re attracted to, so they don’t discriminate on that basis either. I have therefore conclusively proved, without engaging in tortured logic at all, that there is no discrimination based on race, and also no discrimination based on the race you’re attracted to. Hence, miscegenation laws are not a form of discrimination at all. QED
August 17, 2010, 10:03 pmmark says:
When the question is, as Randy says:
Then, we are no longer talking about “rights”, but decisions. If that is the question, then, win the democratic argument.
August 17, 2010, 10:12 pmGuy says:
I would argue the right in question is the Equal Protection right, so an inquiry into whether the disparate treatment is arbitrary is unavoidable. But if we’re arguing SDP, I can do that to: The Constitution says that no person shall be deprived of liberty without due process of law, and the right to marry a person of the same gender is a “liberty” by virtually any understanding of the word, it therefore cannot be deprived without “due process of law”, now, some liberties (like the liberty to park next to a particular curb) can be extinguished by legislative act, others (like the right to keep and bear arms) cannot, rather they require a criminal conviction. Still other liberties (like the freedom of not being tortured) cannot ever be taken away without any amount of process. So the question is, what kind of liberty is this? Well, the Supreme Court has a sophisticated system to tell us the answer, but the most basic bottom line principle is that if a law deprives a person of liberty without any rational relation to a legitimate government interest, then it is unconstitutional. So “what’s the problem” actually is relevant to the legal analysis, like it or not.
Also, I didn’t understand Randy to be making a legal point with that question anyway, I think he was just asking.
August 17, 2010, 10:22 pmmark says:
And yet, we have many studies and a majority of public opinion which differs. (Before a cheesehead claims “cite”, go to ssrn. )
Should drugs be legalized?
We can point to many issues and arguments, but the bottom line is that society should have a right to choose. Unless not. Same issue, or different?
August 17, 2010, 10:50 pmMark Field says:
I agree that it’s not just you. Courts say it too; I found other examples besides the ones you linked. My point is that they’re overstating things.
Again, I’m not absolutely sure I’m right about this, but I’ve now run it by other lawyers here in LA and they agree with me, so I think I’m right.
August 17, 2010, 11:27 pmSFAlphageek says:
I remain unconvinced, but that’s the closest anyone’s come to making a persuasive fundamental rights argument. Had the Equal Rights Amendment actually passed, it might even be compelling (if I remember my ancient history correctly, most of the opposition to the ERA centered around just that sort of unforeseen consequence.) As it is, I don’t think you can carry the gender based discrimination argument, because the law differentiates based on sexual conduct, not gender, and not really even orientation. Viewed in that light, I don’t think you have a compelling reason to override the democratic process.
It seems to me that we’re arguing past each other here. You keep saying “how can you say there’s no discrimination” (with what I believe is the implicit assumption that, if you can only make me agree that its unfair that homosexuals can’t get married, that I’ll immediately agree that we should gut the constitution to make it right.) I keep saying that the there is a definitional difference between discrimination based on characteristics that can’t be changed and discrimination based on actions that are voluntary (no matter how compelling the impulse that motivates them.) In the absence of a conclusive argument that sexual orientation involves a fundamental right that somehow went unnoticed for the last 2000 years, my position is that we need to defer the question of whether or not discrimination based on sexual orientation to the democratic process.
And, for what must be the six hundredth time, I’m not defending the idea that the assertions about the effects of gay marriage on society that Prop 8 supporters make are correct. I’m defending their right to make public policy based on those beliefs, as long as they can get them implemented through the democratic process. And I’m not arguing that homosexuals should be just as content with the current definition of marriage as heterosexuals presumably are. I’m arguing against inventing a “fundamental right” out of whole cloth to override a democratic outcome.
Do homosexuals have a reason to feel that the current system is unfair? Sure they do. They should make that point to the electorate. Then the electorate can balance those arguments with other arguments about public morality and “the sacred institution of marriage”, about the potential effects of SSM on society as a whole, or about the relationship of marriage and children.
The law prohibits the rich man, as well as the poor man, from sleeping under a bridge. Does the burden of the law fall more heavily on the poor man? Absolutely. Is that unfair to the poor man? Sure. Does that make it an unconstitutional law? No. There’s no fundamental right to sleep under a bridge enshrined in the Constitution.
Presumably, the electorate took into account the unfairness to the poor person, and balanced with other concerns about vagrancy, increased risk of violence from mobs of poor people under bridges, and so on. Who knows, maybe they were even scared by fanciful stories of trolls that lived under bridges and ate people. Doesn’t matter.
The law prohibits the heterosexual as well as the homosexual from entering into same sex marriage. Does the burden of the law fall exclusively on the homosexual? Absolutely. Is that unfair to the homosexual? Sure. Does that make it an unconstitutional law? No.
Presumably, the electorate . . . (you see where I’m going with this.)
Mark said it better than I have:
August 17, 2010, 11:54 pmGuy says:
I just want to note that the Equal Protection Clause covers religion, which is not an immutable characteristic.
I honestly don’t understand this argument. To figure out if you can legally marry, the government has to look at your sex, so it “differentiates”, in the sense of disparate treatment, based on your sex, it also “discriminates”, in the sense of disparate impact, based on those other characteristics. Though a disparate impact (or even a disparate treatment) as you correctly point out, does not automatically prove unconstitutionality; it’s only the beginning of the legal analysis.
I don’t know what your interpretation of the Equal Protection Clause is, I was just pointing out a flaw in your argument. My interpretation is largely the same as the one currently set by case law, in particular, sex classifications need to be substantially related to a strong government interest. If you accept that settled principle, then it is only an application of the EP Clause, not a change in its meaning, to figure out whether this classification passes that test and determine its Constitutionality on that basis.
If you disagree with the precedent on this point, that’s fine, but I still think your argument that there isn’t a classification based on sex is missing the sex classification that exists on the face of the law. It explicitly categorizes people into men and women and determines what they can legally do on that basis.
August 18, 2010, 12:11 amyankee says:
Would you also say that the anti-miscegenation laws discriminated based on conduct rather than on race? After all, they only affected those who wished to engage in the conduct of marrying a member of a different race, just as bans on same-sex marriage only affect those who wish to engage in the conduct of marrying someone of the same sex.
August 18, 2010, 12:30 amJohn D says:
I’ve done a bit of reading and I have to conclude that the Hebrew verb yada’ really has no sexual connotation.
August 18, 2010, 12:32 amSFAlphageek says:
Sorry, I missed what we were arguing about entirely – I thought we were discussing whether there was a compelling fundamental rights argument to be made for gay marriage by reasoning by analogy from racial discrimination, and to a lesser extent, gender. I was denying the analogy.
I thought what you were saying is that sexual orientation discrimination should be considered equivalent to race or gender discrimination. If you’re just arguing that courts should apply intermediate scrutiny when applying the EP clause to sexual orientation, then, yeah, that argument’s been around for awhile, but case law (outside of the 9th circuit) doesn’t seem to be with you. Romer v Evans specifies rational basis, and while Lawrence doesn’t specify a level, it relies on Romer as precedent.
Of course, as I pointed out earlier, the entire SSM controversy will ultimately come down to what Justice Kennedy has for lunch that day. No way to run a republic.
August 18, 2010, 12:37 amSFAlphageek says:
No (Sfalphageek, supra at 8:58pm)
August 18, 2010, 12:41 amShelbyC says:
Interesting. I don’t thing I’ve ever heard anybody seriously disagree that Art III standing is required for federal jurisdiction. (Keep in mind my comments are limited to federal Art III standing, and not, say, prudential standing).
Which part of the following would you disagree with (or what am I missing)?
Standing is an element of a case or controversy.
August 18, 2010, 1:19 amA case or controversy is required for justiciability (i.e. to be within the judicial power of the United States.
Justiciability is required for a court to have jurisdiction.
ShelbyC says:
Here’s where SCOTUS says it recently, in Rains v. Byrd:
August 18, 2010, 1:25 amGuy says:
I feel like you’re still not quite getting my point. I’m arguing that, by looking at the situation objectively, the law classifies on the basis of gender (not orientation) as much as miscegenation classifies on the basis of race. I think there’s an orientation claim too, but it’s more of a disparate impact issue, and orientation doesn’t necessarily get intermediate scrutiny, both of those facts are serious hurdles.
If you agree with me that the classification is the same, then that triggers intermediate scrutiny. It doesn’t necessarily mean the outcome is the same as it is with miscegenation laws, because racial classifications get strict scrutiny.
As for case law, scotus has never addressed this particular argument, Romer actually was facially about orientation, because that was the classification created by the text of the law. Lawrence didn’t address the issue, since it went with the SDP argument instead of either of the EP arguments, though it was briefed on it by the parties. That the Court didn’t address the argument isn’t surprising to me, since it’s the most straightforward path to SSM under current precedents – United States v. Virginia,Oncale, Parents Involved, Loving, and others – and the Court would have wanted narrower grounds. As a matter of fact, the primary argument that was made on the other side against this argument was that it would compel intermediate scrutiny to the sex classification of marriage (i.e. even though it was consistent with precedent, the argument should be rejected because the result – potentially legalizing SSM, was undesirable).
August 18, 2010, 1:27 amGuy says:
Parents Involved was, of course, decided after Lawrence, but it didn’t really create a new Equal Protection principle, it merely made more explicit and clear a principle that started developing with Brown and Loving (and arguably misapplied that principle, but that’s a whole other argument).
August 18, 2010, 1:36 amShelbyC says:
The more I think about it, the more I’m troubled by the notion that state officials have standing to “defend” referenda that impose constraints on them. It seems analogous to sombody with standing suing me and asking that I be enjoined from paying income taxes, on the ground that the income tax is unconstutional. The income tax wouldn’t get much of a defense.
August 18, 2010, 1:46 amGuy says:
And more on case law – Because of the way the Canon of Avoidance and similar principles of judicial restraint work, that the issue wasn’t addressed by the Court in cases where the law was struck down indicates neither the strength nor the weakness of the argument; it simply means the Court settled the issue without having to worry about it.
August 18, 2010, 1:46 amGuy says:
What if the executive simply independently determined the law was unconstitutional, and decided not to enforce it? I guess then there would be more political accountability because they couldn’t say “Don’t blame me, I’ve got a court order!”, but legally it’s essentially the same result. I don’t see how Proponents can have Article III standing to defend the law unless they also would have had Article III standing to sue the state to enforce the law, and I’m not sure it’s clear that even Congress has standing to sue the President for enforcement of its laws, though maybe I should review the jurisdictional holding in Chadha before I make sweeping statements.
August 18, 2010, 1:54 amShelbyC says:
Well, he could be voted out of office and the next executive could enforce it. I agree with you wrt the proponent’s standing, for the most part, though.
August 18, 2010, 2:13 amyankee says:
I would make a distinction between laws that the executive enforces against third parties with civil or criminal penalties and laws that require the government to do or not do a particular thing. Declining to enforce violations of the former sort of law is classic prosecutorial discretion, but the executive branch deciding to violate the law (and failing to prosecute itself for the violation) is on much thinner ground. Liberals screamed bloody murder when Bush kept declaring via signing statement that he was going to refuse to obey statutes he deemed unconstitutional, and with good reason.
If the law is really transparently unconstitutional (say, a law requiring the executive to fire any government employee who took the name of the Lord in vain) I would say it is OK for the government to refuse to obey it, but otherwise it is best to let the courts be the arbiters of constitutionality.
August 18, 2010, 2:43 amGuy says:
True, if the injunction issues that binds the next guy unless he takes advantage of Rule 60(b), which isn’t a sure bet. I see the value on the other side of the issue, but its just a symptom of the lack of accountability that’s inherently associated with initiatives (who’s responsible for the law? no one! everyone!) So it doesn’t bother me too much, but that might just be my prejudice against initiatives shining through.
I’ll admit that it’s hard for me to get an good “feel” for the general issue thought, because I really think it would be bad for this case to go to the Supreme Court. Even though I think prop 8′s unconstitutional, it would destabilize the short-term political process and direct a lot of popular anger at the judiciary if scotus struck it down (somehow narrowly?), or especially if it legalized SSM nationwide. Of course, I don’t like the other possibility any better, getting an unfavorable precedent that could stunt Constitutional interpretation for decades, and still destabilize the political process.
August 18, 2010, 2:44 amyankee says:
I don’t think initiatives are unique in this respect though. It’s extremely common for the executive to inherit laws they dislike from previous executives, and occasionally laws are even passed over the executive’s veto. Conversely, some initiatives have the support of the executive at the time of passage, such as when the Governor uses the initiative process to make an end-run around the legislature.
In other words the problem rears its head whenever the executive branch dislikes the law it’s supposed to be defending, whether the law was originally passed by legislation or by initiative.
August 18, 2010, 2:52 amjrose says:
I don’t think so under Beech:
“a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.”
August 18, 2010, 8:01 amjrose says:
That’s not his argument. He is arguing there is discrimination on the basis of gender.
And while I disagree with Guy, if I accept your argument that who you marry or have sex with is merely behavior, then his argument is persuasuive. A woman is denied the ability to marry another woman simply because she isn’t a man.
August 18, 2010, 8:12 amShelbyC says:
Yeah, in theory, but in practice that doesn’t seem to be the case. I can think of several initiaves that were struck down by courts without being defended very enthusiastically, but not many legislative enactments.
August 18, 2010, 8:49 amDebrah says:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
But that would require respect for the decisions of others.
On most days this issue might provoke a laugh-fest and most people perhaps have developed a “so what?” attitude.
But when you take a closer look, it’s quite clear that the objective is to make mothers and fathers interchangeable.
Men as men and women as women must, necessarily, lose their significance for the SSM agenda to take root.
An irreducible maxim of human existence.
Gender interchangeably is the goal and I think this—although rarely voiced aloud by gay “activists”—will continue to create obstacles for them.
The authentic pheromone-inspired lust between a man and a woman enveloped in the throes of passion cannot be duplicated by any other coupling.
Aphoristic chatter from the gay koffe klatsch circuit, notwithstanding.
From time to time the interests of the state and civilization will bifurcate, and unless there is independence of thought and responsibility to truth, the cause of civilization is neglected.
August 18, 2010, 10:41 amMark Field says:
The only point I’ve made is that the line between standing and jurisdiction is a fine one and that the two points need to be analytically distinct in order to avoid certain problems.
This was expressly forbidden in the English Bill of Rights, and that prohibition seems to have been the origin of the “faithfully enforce” duty imposed under Art. II.
August 18, 2010, 10:42 amDavidcus says:
Funny you should say that Steve, as it is precisely that type of ad hominem automatic demonizing via mind-reading of anyone whose observations could even conceivably be characterized as less than 100% congruent with your own feelings that renders the disclaimer so obviously necessary. Since you have a mind-reading machine in your possession, apparently, it seems your time could be more profitably spent making trillions of dollars with it–you could then afford to re-arrange the world as you see fit–perhaps you could even throw in a “mind adjustment” feature that automatically resets the opinions of the target to the “correct” orientation–i.e., yours. But thanks for the insult–it will no doubt make me famous.
August 18, 2010, 11:09 amDavidcus says:
Funny you should say that Steve, as it is precisely that type of ad hominem automatic demonizing via mind-reading of anyone whose observations could even conceivably be characterized as less than 100% congruent with your own feelings that renders the disclaimer so obviously necessary. Since you have a mind-reading machine in your possession, apparently, it seems your time could be more profitably spent making trillions of dollars with it–you could then afford to re-arrange the world as you see fit–perhaps you could even throw in a “mind adjustment” feature that automatically resets the opinions of the target to the “correct” orientation–i.e., yours. But thanks for the insult–it will no doubt make me famous.
August 18, 2010, 11:10 amMichael Ejercito says:
No more so than anti-polygamy laws (like the one the Utah Supreme Court had recently upheld) discriminate on the basis of conduct than status.
An unfavorable precedent can be dealt with via constitutional amendment.
That is what happened with women’s suffrage.
August 18, 2010, 11:23 amyankee says:
I have to wonder how you know this.
August 18, 2010, 11:26 amDavidicus says:
BTW Steve, I notice you neatly failed to answer a single one of the three questions I posed in my original post and instead replied to your own straw man (after practicing for 14 years I am well aware that the 9th Circuit COULD assign the case to a different judge–my questions were “do you think they will” and “do you think they should” AND (paraphrasing) what are the implications of gay marriage (which as I already stated I believe is ultimately inevitable) on current divorce law at least as it is practiced–i.e., the “husband” almost always gets screwed and often ends up evicted from his own home, impoverished and/or jailed just because he is not the “woman” — will gay divorcees (apologies to Fred and Ginger) be specially privileged in that their cases will actually have to be rationally considered with respect to custody, spousal, property division, and child-support issues? If so, might not straight men being placed into the “auto-screw-you” line by the current system because they are men have a new arrow in their quiver re equal protection, because their cases are being treated differently and they are being blatantly discriminated against while gay men are at least being given rational consideration of relevant factors–based solely on the differing sexual orientation of one divorcing man v. the other? How about answer at least one of the three questions actually posed rather than imputing motives, insulting integriety, and demolishing straw men of your own manufacture? Just a thought..
August 18, 2010, 11:35 amJohn D says:
Davidicus,
If I can jump in here, I think that same-sex marriage will only strengthen considerations of equality. I do remember reading some years ago about a woman who took her ex-husband to court over his failure to pay alimony. The judge reviewing matters found that she had been making more than her ex and ordered her to start paying him alimony. Certainly in determining issues of property, custody, andsupport, judges ought to be looking at the couple as “Party A” and “Party B,” ignoring their gender.
If Party A has the high-paying job and Party B has been staying home with the kids, questions of custody and support should follow from that, even if Party A is a woman and Party B is a man.
I think same-sex marriage help family law shake off the last vestiges of gender inequality.
August 18, 2010, 2:06 pmAlessandra says:
another great VC commenter
August 18, 2010, 2:24 pmLymis says:
SFAlphaGeek
You’re either missing the point or dodging it.
Adam (straight), Eve (straight), Amy (lesbian), Genevieve (lesbian)
Eve can marry Adam.
Amy can marry Adam.
Neither one is being discriminated against on the basis of their orientation. Lesbians can (but don’t want to) marry men.
Adam can marry Amy.
Genevieve cannot marry Amy.
Genevieve cannot marry Amy for sole reason that she is a woman. If she had been a man, she could marry Amy. Adam can marry Amy because he is a man.
Genevieve is being discriminated against on the basis of her gender.
Eve cannot marry Amy.
Genevieve cannot marry Amy.
Again, neither woman is being discriminated against on the basis of her orientation.
But, Eve does not want to marry Amy, and Genevieve does, and that is the reason that law is the way it is, for the sole purpose of keeping two women from marrying.
The law discriminates on the basis of gender for the purpose of discriminating against people of a specific sexual orientation.
Your interpretation is very similar to saying that it is freedom of religion, equally applied, to say that only Lutheran Churches are allowed, and that people are free to choose which Lutheran Church to attend, or to attend none at all. Because such a law applies equally to everyone regardless of their actual religious affiliation, there is no discrimination.
August 18, 2010, 2:58 pmGuy says:
Well, the problem isn’t really that it’s “unfavorable” so long as it would be “wrong” and probably based on shoddy, ad hoc reasoning.
August 18, 2010, 4:17 pm