Not until the end of the article reporting (something of which I had heretofore been aware) that Chief U.S. District Judge Vaughn Walker, “the federal judge who will decide . . . the landmark trial over same-sex marriage” is himself gay, does the reporter see fit to quote anyone critical of the judge. Instead, he first cites two left-wing gay activists praising the judge.
Now, I know very little about the judge, certainly not enough to call his overall impartiality into question–though the way he has conducted this trial certainly sets off some alarm bells. It strikes me as odd that he has allowed the plaintiffs to bring in certain witnesses whose commentary on gay marriage would certainly be relevant were the issue debated in the legislature or presented to the people, but is entirely irrelevant to a court considering whether a popular provision in the state constitution violates the federal constitution.
All reports (at least those I have read), for example, show that Jerry Sanders is a fine Mayor of San Diego, but he is no legal scholar. His remarks on gay marriage belong in a political campaign, not a court of law. That Judge Walker allowed his testimony as well as other personal stories suggests poor judging. But, many straight judges would also allow in such “witnesses.”
As a gay man who believes the Judge should have dismissed the case before it even came to trial, I know it’s not his sexuality that’s the issue, but his jurisprudence.* All that said, should this one man rule to overturn the will of seven million, you can bet the proponent of the Proposition will make an issue of his sexuality. Indeed, some already are. Ed Whelan, offering some sound criticism of the judge’s questionable judgments, point outs:
From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. . . .
Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.
Another conservative blogger is mocking him. And frankly, I don’t blame him. Touchy-feely is not the way to run a courtroom.
It’s too bad Judge Walker has shown such poor judgment in letting a parade of witnesses to make a case more appropriate to the public square and in his federal courtroom. Had he exercised better judgment, no one would be making an issue of his sexuality.
Perhaps, he might consider the backlash that will ensue should he rule to overturn Prop 8. Not only will that motivate opponents of gay marriage, but it will also raise the hopes of its advocates. And they will likely experience the same disappointment they felt when voters overturned the California Supreme Court decision mandating state recognition of same-sex marriage when appellate courts overturn his decision on appeal. (And the same disappointment when the state Supreme Court upheld Prop. 8.)
Instead of returning to the courthouse time after time after time, gay marriage advocates need focus on convincing the people of California (an other jurisdictions) of the merits of same-sex marriage so they can enact laws sure to survive constitutional and popular scrutiny. But, as we’ve seen before that they’ve long been loath to do that.
——–
*Many judges holding a similarly liberal interpretation of the Equal Protection Clause would have done exactly the same thing he has done–even if they weren’t gay.
Unfortunately, it is precisely because of his sexuality that he should not have ruled this way — and if he were goingto do so, he should have recused himself.
Why? Because like it or not, Sanders has a personal stake in the outcome of this case that a straight judge would not have had. And like it or not, the rulings he has made combined with his sexuality lead to THE APPEARANCE OF IMPROPRIETY, even if there was nothing improper about the rulings themselves (and you make a great case above that the rulings are, in and of themselves, improper).
Is my position here fair to Judge Sanders? I’d like to think it is, but even if you disagree, ask this — does having the rulings in question made by a gay man offer the likelihood that an objective observer would question his impartiality? If it does, then an abundance of caution ought to have been the basis for the judge himself from the case in order to remove this grounds for appeal.
daniel,
while i agree with you that some of the judge’s decisions legitimately set off alarm bells for some, i must ask the following questions.
you write: the “judge should have dismissed the case before it even came to trial”. i wonder why, since, in my view, there are legitimate federal constitutional questions raised by the lawsuit. could you please explain?
i certainly think that his experience as a gay man informs his thinking. i would also argue that the same applies to all sorts of “identities”. we had this debate when sotomayor was being confirmed. should ginsburg, for instance, have recused herself in ledbetter? or should she perhaps recuse herself from cases that deal with a major jewish institution? i am black and queer myself; i couldn’t argue, with a straight face so to speak, that my case shouldn’t be adjudicated by people that are neither black nor queer! can you imagine? the ability to apply the law soundly, rationally, is the only thing that matters, and i’m glad you share this sentiment. whether the ruling here will be sound, rational remains to be seen, but attacking this guy before he rules is nonsense.
finally, i also must disagree with your proposition that:
“instead of returning to the courthouse time after time after time, gay marriage advocates need focus on convincing the people of california (an other jurisdictions) of the merits of same-sex marriage so they can enact laws sure to survive constitutional and popular scrutiny.”
why should these be mutually exclusive options? i simply don’t understand. if i believe i’ve been wronged, don’t you think i should at least inquire and seek redress? there’s no denying that people’s minds have to changed too. we’ve come a long way from prop 22’s results to prop 8’s results. and though these results are not enough, it’s in part to avoid these laborious tasks the left is loath to do (understandably), that the constitution was written and amendments to it passed.
many people have made a more succinct and compelling case than me. but i must say that cheney said it best: freedom means freedom for all. the plaintiffs in perry should be able to argue their case.
Rhymes – FYI: Sanders is the mayor of San Diego. His daughter is gay. Vaughn Walker is the judge (appointed by the first Bush, I think).
It shouldn’t matter – but in this case, it seems that it does.
Walker has made some wacky rulings in this case. As Ed Whelan has pointed out, one was reversed by the Supreme Court and the other by the Ninth Circuit (hardly a den of right wing jurisprudence).
Should the judge overturn Prop. 8 (and should SCOTUS sustain him), I suspect the FMA will be revived.
What are the commonly accepted standards for when a judge should recuse himself? I’d like to know.
As a thought experiment, let’s consider if Sanders were involved in (say) an incestuous relationship, and the case were about recognition of incestuous relationships as marriages. (Note, I do NOT mean to compare homosexuality to incest; only to gain emotional distance on the question by turning it into something that nobody here is-or-should-be involved with.) Would we expect Sanders to recuse himself? Why or why not?
Agreed. (Which incidentally reflects the fact that gay marriage is no great threat to straight marriage. I.e., a straight judge would be more likely to be impartial because gay marriage isn’t his concern, except insofar as all citizens are rightly concerned with general matters of public policy.)
Whoops, SCR you are right. Please substitute Walker for Sanders, in my comments above.
Dan, you’re doing it again.
First, your shot about Judge Walker bringing in “irrelevant” testimony has no resemblance to the truth of this case. You complain that the plaintiffs discussed their “personal stories” and claim that this is “poor judging.” You seem unaware that if the plaintiffs decided not to “make it personal” the lawsuit would be dismissed for lack of standing.
Standing is always an issue–even on appeal–which means if they don’t build enough of a record at the trial level, the Ninth Circuit or the Supreme Court could ignore the merits of the case and summarily dismiss.
Similarly, your criticism of the plaintiffs and Judge Walker for seeking and allowing, respectively, the testimony of Mayor Sanders is very much off base. Sanders’ experiences and expertise as a California mayor and career police officer are relevant to several issues of fact that are disputed among the parties, including the relative political power of gays, the effect on the public and the city of San Diego of ordinances and laws that target gays, and the amount (or lack) of discrimination against gays and lesbians.
Mayor Sanders’ testimony about the effect that governmental-approved discrimination against gays has on private discrimination was particularly illuminating for me. I’m sure it will be useful for Judge Walker’s ultimate decision.
As for Ed Whelan’s strident and repetitive shrieking about “show trials” and “circuses”, Ed said the same thing about the California Supreme Court. Which, you will recall, ultimately held in favor of Prop 8. And Ed was so sure that was a “show trial” too. I’m not saying that Ed’s a bad guy. He’s just got a blind spot when it comes to gay issues. He’d rather impugn the lawful authority of a court than argue the merits.
Dan, you also have made that tack repeatedly when it comes to this trial. You say that Judge Walker should have dismissed it immediately. As a matter of law you are wrong. A judge must deny a motion for summary judgment so long as there are unresolved issues of material fact.
In other words, if the facts are in dispute, the judge is required to hold a trial. The particular facts the parties could not agree on here include things so basic as whether gays face discrimination, the economic and financial effects of Prop 8 on plaintiffs and California localities, the degree to which Prop 8 meets its stated purposes (or any other rational purpose), and whether gays and lesbians have political clout.
Judge Walker didn’t make up those issues for discussion. Those are the kinds of things that the Supreme Court and the Ninth Circuit have identified as relevant to the ultimate issue of law in the case: whether limiting the civil institution of marriage to straight couples violates the equal protection rights of the plaintiffs. If he refused to consider those facts over the urging of plaintiffs, the case would be remanded because it is always abuse of discretion for a judge to apply the wrong standard in determining whether an equal protection violation has occurred. Thus, Judge Walker has done exactly the right thing by denying the defendants’ motion to dismiss.
One other note, you and Ed have been pretty harsh towards Judge Walker over the televised hearing issue. I agree that he was moving too fast. If he wanted to televise it, he should have given the parties more time to brief the issue and prepare for a televised trial. Instead, he wanted to keep his original trial schedule with the televised part tacked on. That was error. However, in his defense, the Ninth Circuit–with libertarian Chief Judge Kozinski in the lead–as well as at least one Supreme Court justice approved of Judge Walker’s plan. As he did for the Prop 8 trial in general, Ed responded to that by badmouthing the Ninth and the Supreme Court justice in question, rather than admitting that there was a genuine dispute about what to do.
Dan, people of good faith can have an argument and be confident that the outcome will be just. Ed Whelan has pre-judged the Prop 8 trial. As far as he is concerned, he cannot get justice from Judge Walker and so he spends a great deal of time complaining about the man, who is just trying to do his job while under a microscope.
Don’t choose that road, Dan. I get that you think the lawsuit was a bad idea. Now that is a policy concern that isn’t relevant to the legal issues. But your disagreement with the trial as a matter of strategy, does not give you license to play fast and loose with the facts as you did when you accused the plaintiffs of making the trial about “feelings, nothing more than feelings.” The economists and statisticians the plaintiffs brought in testified about quite a bit more than feelings.
You do the plaintiffs, their hardworking lawyers, and gays an injustice by using your megaphone to suggest otherwise. You also do Judge Walker an injustice by suggesting that he has “poor judgment” for doing his job as required by the Supreme Court and the Ninth Circuit.
What if Walker were a straight conservative Christian (i.e., from a church that believes SSM is sinful) or even an “ex-gay”? Should he have recused himself then? That doesn’t leave many judges to take the case. I don’t blame the defense for making his sexuality an issue in some ways. It’s a logical move in pressing their case and were I in their place would do the same – just like I would on the other side if Walker were either of the examples I gave above. Eh, I haven’t really been following this case much anyways mostly because I don’t believe it has a chance when it reaches SCOTUS.
Rhymes With Right,
Should a married judge be forced to recuse himself from this trial? After all, he has interests at stake–the definition of marriage. Actually, so would a single judge. Hmm, I guess that’s a wash.
Should black judges be forced to recuse themselves from trials involving affirmative action? Wait, shouldn’t white judges be forced to recuse themselves from trials involving affirmative action? Oh damn, another wash.
Do you see the point? Whether Judge Walker is gay or not is not a basis on which he must be recused.
Actually, the defense has not been making Walker’s sexuality an issue (and sorry, btw, for my earlier error).
And as for my point, I’m not arguing that there is an actual impropriety in Wa;ler’s participation in the case. What I am arguing is the APPEARANCE of impropriety given his trend of ruling almost entirely in favor of the anti-8 side of the case.
And for the record — if this were a Mormon judge ruling almost exclusively in favor of the pro-8 side (and doing so in particularly novel ways), I’d be arguing he/she did not belong on the case.
it’s not only the ruling that matters. the impartiality, the rationale, the logic behind the ruling also matter.
all that should matter, whether the judge is mormon/fundamentalist christian, practices incest/polygamy, a homosexual, or an ethnic minority.
To answer a couple of questions:
1) No, a straight judge would not have the sort of conflict. Nothing is changed for him/her by the ruling in this case, whereas something is definitely changed for a gay judge. It is not a wash.
2) Rather than make the affirmative action comparison, I’d argue that this is much more akin to a judge in an interracial relationship sitting on the Loving case back in the 1960s. The ruling in that case would directly impact that judge in a way that it would not impact a judge not so involved.
3) My argument is that we have an APPEARANCE of impropriety that we would not have with a straight judge. There may be nothing ACTUALLY improper (and i don’t argue that there is an actual impropriety here), but that appearance could serve to undermine the legitimacy of the decision in the eyes of a lot of citizens based upon the sometimes irrational way Walker has ruled. Then again, I’d argue that Walker had a duty to recuse himself after the shenanigans over televising the case — his actions there constituted ACTUAL impropriety, not merely the appearance thereof..
Gabriel-
Thanks for bringing in the issue of standing. So, maybe you have a point about the plaintiffs testifying, but not Sanders. Noting you mention about the San Diego mayor relates to the constitutional provision at issue here. That said, I’m aware of no laws or ordinances which target gays for discrimination.
Based on your point, it seems I’m at odds then with a lot of 9th circuit jurisprudence. And I can’t argue with that.
Please note, I’m not questioning all the “witnesses” to this trial, only those who make touchy-feeling arguments. (I do this acknowledging our prior communication.) And that’s why I bring up. Not sure what his tearful testimony about his changing views on gay marriage have to do with economic and financial hardship. So, please, please tell me how the touchy-feely testimony relates to that. It is that I am addressing here.
Did the law intend to call these pain? Hardly.
And yes, I have harsh words for Walker on the televised hearing issue because that departed from the practice of most such federal trials. If it were common practice, then I would be less critical.
And do you agree or disagree with Whelan (and the Supreme Court) that it was wrong for Walker to subpoena the private communications of Prop 8 supporters?
As to the issue of economic hardship, well, I hate to tell you, I just don’t see it. I’m single and on most days, I would rather be in a relationship. And it definitely seems to me like my gay couple friends, even without the benefits of matrimony, find it a little easier to make ends meet than do I (you know, shared expenses and all).
And I guess I’m just befuddled how it could be found to violate the Equal Protection Clause to restore the legal meaning of an institution that existed at the time the 14th Amendment was ratified–and which its framers had no intention of overturning.
I’m a strict constructionist here and certainly that impacts my thinking on this. We know the 9th Circuit has moved far, far away from the plain meaning of the Constitution and so, in many cases, have the Supremes.
And I believe discussion in this case should focus on the meaning of that clause. Unfortunately, you do have a point. And the reason I chose that adjective due to all too many judges have found meaning in penumbrae. if I were a judge, I would have thrown the suit out, but then I abandoned a career in the law before it was even nascent.
All I see here in the amendment is the attempt of the people to restore the law on marriage as it existed before the state Court’s activism. I’m just don’t see that as violating the plain meaning of the 14th Amendment.
daniel,
you write:
“all I see here in the amendment is the attempt of the people to restore the law on marriage as it existed before the state court’s activism. i’m just don’t see that as violating the plain meaning of the 14th amendment.”
but that’s clearly what is ultimately at stake here, i.e. whether or not the fact that marriage is a fundamental right means that same-sex marriage is a fundamental right. (and, of course, it being or not a fundamental right is relevant here given that the plaintiffs are bringing up the equal protection and the due process clauses.)
you are willing to throw the suit out from the beginning because you believe you have the answer, whereas this trial is attempting, however circumstantially, to find an answer. even if you are right, i believe you should wait and see what this judge and the 9th us circuit court have to say, since their opinions arguably have more weight for gay californians.
It was unseemly, inappropriate and not pertinent to the issue to have these witnesses talk about how they felt. Their sob stories should have no bearing on the case. This article on this site is a wonderful example of how to think, make factual, constitutional and lawful arguments regardless of personal feelings. I had no idea the judge was gay. Had he authored opinions like the one here we could presume his fairness, but the fact that he let those witnesses testify shows he’s biased and there should be a mistrial declared.
This has been the most intelligent and interesting series of post I’ve seen here for a long time. Truly well thought out and and well defended points on all sides of this issue. I thank Gabe and Dan and Rhymes for making me thing hard about this topic.
yikes, think, not thing
daft, marriage may well be a fundamental right. If it is a right, we already have it because we’re free to wed; we just don’t get the privilege of state recognition.
It’s not for the court to decide whether it’s a “fundamental right,” anyway. And that’s not what’s at stake here, no matter how people try to dress it up. It’s whether it’s unconstitutional for the people to decide that they want their state constitution to define marriage (for purpose of state recognition) as it has long been defined.
And so you’re telling me I should wait for a judges to tell me what fundamental rights are. Interesting line of argument.
John in Dublin, I agree; this has been a great thread. Gabe may well be right on points of process.
The court is NOT deciding whether marriage is a fundamental right because that question is not before the court in the California case. It is undisputed, in California, that any two people who are a) over the age of 18, b) members of opposite sexes, c) not already married, d) not biologically related closer than the third degree — i. E. No fathers marrying daughters, no first cousin marriage, are allowed to marry. No County clerk who issues marriage licenses is going to ask a man and woman who meet the other qualifications if either of them is homosexual.
The question before the court is whether one has a fundamental right to marry the person of one’s choice. Big difference. The most immediate danger of a decision throwing out proposition 8 is that all of the other requirements listed above, can also then be set aside. And trust me, polygamists are in the wings just waiting For the precedent. In their case, they can point to a long history of polygamous marriages that are even reflected in the Bible. This issue has already been raised and ruled on in 1878 when a mormon man faced criminal indictment for marrying a second time, Reynolds v. United States, 98 U.S. 145 (1878).
It is also interesting to not historically, that the Utah territory was required to outlaw polygamy as a condition for becoming a state.
Once a court decides that there is a constitutional right to marry whoever you want, it is very difficult, as a matter of jurisprudence, to draw the line at same sex marriage. If two same sex people say their constitutional rights are being violated because, while they can legally marry any person of the opposite sex who is willing to marry them, they want to marry a person of the same sex, what is the real difference between that argument and the argument that two hetero sexuals, one of whom is already married, should be allowed to marry each other because, although the one who is unmarried has the right to marry any other person of the opposite sex who is also not married and all of the above, only wants to marry a person who is already married? What if they argue religious discrimination? (Mormonism no longer permits polygamy, but Islam does). What if the person who is already married says he knows he could get married if he would only divorce his current wife but his true happiness is to be married to Two women at the same time?
The real issue before the court is whether the people of California have the right to set rules for marriage, and if so, what is the limit of that right?
Then by this logic anti-miscegenation laws are fully constitutional and Loving v. Virginia was judicial activism. After all, in 1868 interracial marriage was illegal in 31 of 36 states. If marriage is a fundamental right, as the Loving decision claims, then the government’s purview in limiting it is extremely narrow.
It doesn’t work that way, Dan. If marriage is indeed a fundamental right than the government cannot favor one group in exercising this right over another without a very good reason that can pass constitutional muster.
They do, except when it violates fundamental rights protected under the US Constitution. Is that what happened in this case? I’d say yes but it’s not up to me and I seriously doubt that SCOTUS would agree at this point in our history. Yet such is what is being decided in Federal court.
daniel,
john at 7.15 am basically said what i wanted to say.
i only read your blog scantily before; i’m glad to say i’ll do it more. i think if the right’s gays really fleshed out their arguments, they’d attract more people.
John,
I’m going to have to respectfully disagree with you. The states have long been allowed to put restrictions on marriage. Loving just clarified that you can’t limit by race, due to the 14th ammendment calling that out. Baker v. Nelson, OTOH, did say that the states may continue to limit state recognition of marriage to two people of the opposite sex.
The smallest group is ‘one’. And as one person, you have the exact same rights and benefits as one other person, including being married in your home state, subject to the restrictions and provisions of said state.
To say marriage is a ‘right’ that can’t be limited is a misnomer. The ability to enter into a contract with another person (or people!) is a right, having government recognition of it is a privilege.
I have to wonder sometimes if Olson is playing a long game, or a Xanatos gambit, where he is hoping to bring a flawed case to the Supremes, to get a ruling upholding the legality of Prop 8 (a no brainer IMNSHO) before we see too much shuffling on the supreme court.
Da Judge, should recuse himself.
The case involves an enormous shift in the definition of marriage based on one’s sexual orientation. Da judge shares the “conditionals” that are being weighed in term of “civil right’s equity.” (I reject the concept of a civil right equity being involved, but that point has been crossed over in this case.)
Whether or not da judge feels oppressed is an important part of this, but when there is a whole “community” of Mormon bashers ready to strike if he rules the “wrong” way is reason enough to pass on the case.
He taints the case, no matter how it is decided. It matters not whether he has a conflict of interest or is under extra scrutiny by conflicted interests because either way his decision will not bring a sense of justice to the matter for the masses.
Gays who hope a gay judge will deliver a political win for gay liberation are seeing one tree and missing the forest.
The issues in this case are purely legal: that is, whether the Constitution prohibits discrimination in who can be married. There are no factual issues in dispute.
As a result, the issue should have properly been resolved in a Motion for Summary Judgment (that is, one side is entitled to a ruling as a matter of law, regardless of the facts).
The fact that this case was not resolved on summary judgment and the judge’s desire to turn this into a show trial has raised alarm bells in my mind.
Ec Whelan’s prone to agree with your assessment.
Yet according to the constitutional theory espoused by Dan and conservatives in general Loving violated that as the 14th Amendment never addressed anti-miscenegation laws. I remind you that interracial marriage was illegal in 31 of 36 states at the time the 14th Amendment was drafted and adopted. Surely you’re not going to claim that the framers of this amendment intended to legalize interracial marriage are you? Baker does indeed permit states to limit marriage to opposite sex couples, which I believe SCOTUS will reiterate once this case reaches them. However, it’s not the first time the courts have made a ruling only to undo precedent years later. I remind you of Plessy and Bowers. Both rulings set precedent and were considered to be perfectly in sync with the 14th Amendent, only to be undone years later in Brown and Lawrence respectively.
I doubt that Boies would go along with such a manuever. Personally I think they are ahead of their time and SCOTUS will rule against them, setting precedent for the next few decades. So you’ll get what you prefer: a fight in the states till ths game-changing case comes around again, no doubt after my lifetime. It’s frustrating and I don’t believe it to be right, but such is life and perhaps better for the country in the long-run though I could be wrong about that.
i don’t think this would be a proper for the judge to decide this case at the summary judgment stage. there are plenty of factual disputes to be resolved, including whether the “yes on 8” campaign was motivated primarily out of animus towards gays and lesbians.
boies and olson are also taking a long view of this case in relation to gay rights. besides the more immediate issues related to prop 8, they also introduced into evidence facts which would permit a court to determine that gays and lesbians ought to be a protected class for the purposes of equal protection analysis. this issue makes all the testimony of witnesses–which dan cynically refers to as “touchy feely”–quite relevant.
I would personally be very surprised if he did not side with the plaintiff. This is what happens when progressivism or liberalisim usurps the constitution, more commonly acknowledged as shopping for a jurist sympathetic to the plaintiff view. Obama hopes to have swung the Supreme Court to the left by the time this case arrives. Fortunately, he will only be a one term President.
This is what happens when the plaintiff is able to shop for a jurist sympathetic to their argument. I would very surprised if the jurist did not rule in their favor. Obama is counting on shifting the Supreme Court to the left before this case arrives.
Non-issue for now. The plaintiff always searches, aka “shops”, for a jurist sympathetic to their argument. No surprise if jurist rules in the plaintiff’s favor. Obama hopes he can shift court to the left before this case arrives. Fortunately, he will only be a one term President.
John,
I’m not disagreeing with you about citing court cases. Indeed, I think we both would agree that anything a court rules is anything but ‘settled law’. My point in bringing up Baker is that when people start dragging out court rulings, they’re prone to ignore the ones they disagree with. 😉
The correct way to handle the issue (IMNSHO) is legislatively, creating SameSexCivilUnions (called ‘fred’ for short) at the state level. The Full Faith and Credit argument wouldn’t come up, since (for example) if Ohio has a ‘fred’ and Hawaii doesn’t, there’s nothing for Hawaii to extend. Give people the freedom to craft their own laws.
It may well be that the Loving case was an overreach of Federal power. There were many who felt that Lawrence v. Texas was improperly decided as an overreach. Ramesh Ponnuru here makes that arguement.
“What Kennedy gets right is that the Constitution does indeed leave room for society to change its mind about what constitutes justice. The chief mechanism for this change is the ability of democratic legislatures to alter their policies. Most states have dropped their laws against sodomy, as they should have; but the Court somehow construes this process of change as something in which it needs to intervene rather than as evidence that it need not.
[Emphasis mine]
To me, the same sense applies to ‘fred’. It’s not the court’s job to create fred (or redefine marriage) out of the penumbrals of the internet, it’s the legislature’s.
It doesn’t really matter because civil unions, or “fred” is you prefer, as well as full SSM in some states is how this is apparently going to play out. That is, the more liberal states will eventually have SSM and the more conservative states will adopt civil unions. I’m speaking of course over a period of time, how long I haven’t a clue. Eventually, however, there will be a successful case or movement or whatever that pushes for full SSM in all 50 states. When will this occur again I haven’t a clue. Yet what you see in all the cases we’ve cited is that SCOTUS does tend to view change more favorably when strong movement has already been made among the States and/or on the national level.
And no surprise but I believe Ponnuru is flat wrong while his NRO colleague Randy Barnett is right.
Chad,
I am not sure I understand why the motives of the authors of Proposition 8 have any relevance.
Let’s say they have the worst possible motives in the world: They are bigoted homophobes through and through. The response is, “So What?”
The motives of bigots have absolutely no bearing on whether or not something is Constitutional.
yeah dave, it matters. check out romer v. evans, 517 US 620 (1996). the supreme court essentially held that a majority couldn’t deny the protection of the law to a minority, where the majority is motivated by animus towards that minority. it’s a narrow holding, but it makes the motives of the drafters of prop 8 very relevant. assuming your hypothetical is true, and boies/olson can show animus on the part of the “yes on 8” campaign, they constitutional amendment can be struck down.
John,
No, I’m not surprised at all. I think we can agree to disagree, since I doubt one side will convince the other the merit of their arguement. I do think something will be eventually constructed, I’m hoping for fred through the legislative process.
yeah dave, it matters. check out romer v. evans, 517 US 620 (1996). the supreme court essentially held that a majority couldn’t deny the protection of the law to a minority, where the majority is motivated by animus towards that minority.
So then the Supreme Court should strike down laws against polygamy, child marriage, and sex with underage children because doing so denies the protection of the law to a minority, is a violation of equal protection, and is done out of moral disapproval and animosity towards said groups who want to practice such.
Marriage is not a constitutional right. The ability of voters to amend their own constitution IS.
nd30: the issue is more nuanced. sure, people have a right to amend their constitution, but like all rights, this right is limited. and romer stands for the principle that a majority cannot use the law as a blunt instrument to affirm their hatred of a minority. i invite others to add to this discussion (i haven’t read romer in quite a while) but as a matter of constitutional law, nd30, i think you’re wrong.
sure, people have a right to amend their constitution, but like all rights, this right is limited.
Again, chad, put your money where your mouth is. State that the Supreme Court should strike down laws against polygamy, child marriage, and sex with underage children because doing so denies the protection of the law to a minority, is a violation of equal protection, and is done out of moral disapproval and animosity towards said groups who want to practice such.
You have stated that people have no right to vote for limits on marriage. Apply it. Can’t you do that?
NDT, you’re missing the point of Chad’s post.
“Sure people are entitled to self government, when their betters allow it.”
nd30, you aren’t reading very carefully. i didn’t say that people have no right to vote for limits on marriage. i said that the majority is not allowed to codify into law their animus towards a minority. (note: animus =/= moral disapproval, so you should stop treating them as synonyms). if the “yes on 8” campaign decided to ban gay marriage because they hate gay people, then prop 8 is unconstitutional. on this, i’m not expressing a personal opinion; i’m expressing a principle of constitutional law. if you don’t like it, take your grievance to the supreme court or our founding fathers.
and your slippery slope argument is just silly. you conflate a minority (gays, lesbians et al) with behavior (sex with children, polygamy, child marriage). the equal protection clause is not used to normalize criminal behavior–it’s used to ensure that the minority is not denied legal protections. your argument, that we must necessarily legalize sex with children if we prevent a majority from codifying its hatred into a state constitution, is absurdly formalistic.
moreover, we prohibit child marriage, sex with underage children and polygamy not simply because of animus, but because the demonstrable harms they impose on children and society. i think that a good argument can be made that the “yes on 8” campaign was motivated by animus towards gays and their rationalizations (e.g., protecting children) are pretextual canards.
you don’t seem familiar with the case i’m talking about. maybe you should read it.
Perhaps we should wait to see how he rules?
and your slippery slope argument is just silly. you conflate a minority (gays, lesbians et al) with behavior (sex with children, polygamy, child marriage).
Incorrect.
As heroes of the gay and lesbian community like “Bishop” Gene Robinson and Jim McGreevey have demonstrated, they are perfectly capable of marrying and having sex with those of the opposite gender; they simply prefer the same.
In the same way, pedophiles are perfectly capable of marrying and having sex with adults; they simply prefer children. Similarly, polygamists are perfectly capable of marrying and having sex with one individual; they simply prefer multiple ones.
Your sexual preferences do not make you a minority. You refuse to acknowledge that because it completely undercuts your demands for special treatment and for marriage to be redefined for your convenience so that you can marry to whatever you’re sexually attracted.
moreover, we prohibit child marriage, sex with underage children and polygamy not simply because of animus, but because the demonstrable harms they impose on children and society.
Unfortunately for that argument, the supporters of gay marriage freely admit that they support and endorse plural marriage.
The ACLU believes that criminal and civil laws prohibiting or penalizing the practice of plural marriage violate constitutional protections of freedom of expression and association, freedom of religion, and privacy for personal relationships among consenting adults.
The ACLU is using the same arguments for plural marriage that they use for gay-sex marriage.
nd30, i suggest you read your own links. in the link you provide, aclu’s position on prop 8 is: Prop 8 is deeply offensive to the American ideal of equality. The laws of California are clear that same-sex couples deserve the same treatment under the law as heterosexual couples. Prop 8 calls same-sex couples “partnered” instead of “married” simply to say same-sex couples are not as good. But the Constitution doesn’t allow the law to demean anyone like that. The court should strike it down.”
the aclu’s opposition to prop 8, in other words, is grounded in the equal protection clause of the 14th amendment.
their position on polygamy is quite different. again, from the link you provided: “Advocacy of plural marriage and the expression of a religious belief in plural marriage are protected by the free speech guarantee of the First Amendment…”
re-read that, nd30. their support for polygamy is based on the establishment clause of the first amendment, not the equal protection clause.
your insistence aside, these are obviously very very different arguments, with entirely different constitutional antecedents.
the rest of your response is pure obfuscation. again, you should probably read romer v. evans before you opine on it or how it impacts the prop 8 trial.
Prop 8 calls same-sex couples “partnered” instead of “married” simply to say same-sex couples are not as good.
Proposition 8 says nothing of the sort. It simply states, “Only marriage between a man and a woman is valid or recognized in California.”
Furthermore, the ACLU’s argument is hilarious. It is stating that not allowing people to marry “demeans them” and that the law should not demean “anyone”. Therefore, since laws against child marriage, plural marriage, incestuous marriage, and the like “demean” the people who want to practice them and also violate “equal protection”, the ACLU and you apparently both believe they should be struck down as well.
re-read that, nd30. their support for polygamy is based on the establishment clause of the first amendment, not the equal protection clause.
Perhaps you ought to read instead, chad.
The ACLU believes that criminal and civil laws prohibiting or penalizing the practice of plural marriage violate constitutional protections of freedom of expression and association, freedom of religion, and privacy for personal relationships among consenting adults.
You tried to argue the ACLU’s viewpoint that people should be free to advocate plural marriage. But what you left out is the fact that the ACLU also wants struck down laws that penalize and/or prohibit its practice.
The problem is, chad, that you and your fellow gay-sex marriage supporters are simply lazy. You can’t win over the voters, so you try to override them. You can’t win votes, so you demand that people be stripped of the right to vote. It is beyond ironic to watch you and the ACLU argue that religious belief is a perfectly-valid justification for voting to legalize plural marriage, which you were previously claiming is a danger to society, but scream and insist that it is not a valid reason to vote to limit marriage to one man and one woman.
the rest of your response is pure obfuscation.
Which means you don’t have an answer.
Black people do not as a rule wake up one day and will themselves to turn white. Women do not as a rule turn around and decide to instantly become a man. But so-called “gays” and “lesbians” regularly have sex with and marry individuals of the opposite sex — which would in theory turn them from minority member to non-minority.
The only protected class status that comes anywhere close to the fluidity of sexual orientation is religion — and religion has a specific enshrined status as such within the Constitution.
Chad,
Since you cited Romer v. Evans, I looked at the decision. I see nothing in the language of Romer that suggests the motives of the initiatives sponsors have any relevance at all as to whether it is constitutional.
I would note that in Romer, the initiatives authors were not even parties in the litigation and the decision is silent about who they are or what their professed motives might be.
If I overlooked some language in the decision, perhaps you can point me to it.
here’s the critical language, dave:
“…laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. ‘if the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest.'”
and the court’s central holding: “we must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. this colorado cannot do. a state cannot so deem a class of persons a stranger to its laws.”
nd30, your posts on this thread are a rather impressive monument to illogic and incompetency. let’s survey the wreckage.
you argued that the right to amend a state constitution is unfettered. as a matter of constitutional law, you are WRONG.
you argued that a majority is permitted to use the law to affirm its hatred for a minority (in the parlance of romer v. evans, a “politically disadvantaged group). as a matter of constitutional law, you are WRONG.
you reject arguments that gays and lesbians are a “minority” or a politically disadvantaged group for the purposes of equal protection analysis. your naked assertion is directly contradicted by romer v. evans, where the court overturned a state constitutional amendment targeting gays and lesbians. another instance where you are WRONG.
you asserted that the ACLU’s arguments in favor of same-sex marriage are the same as their arguments in favor of polygamy. but the very links you provided directly countermand your assertion. once again, you were WRONG.
you insist that the equal protection clause must compel us to strike down laws prohibiting, amongst other things, sex with children. again, this is an absurdly formalistic conclusion. the absurdity is demonstrated by the obvious fact that since romer was handed down in 1996, not once has it been used to strike down a single law regarding sex with children. on this point, you are WRONG.
you have erroneously attributed views to me that i never endorsed. to be clear, you brought the aclu into this discussion. i never advocated their views on same sex marriage or polygamy. nor did i ever scream that religion was an improper basis for imposing restrictions on marriage. going forward, i will not feel compelled to respond to arguments that you pull out of your ass. on this simple matter of reading comprehension, you are WRONG.
you argue very forcefully for your views, but you don’t seem familiar with the subject matter. ignorance and indignation is seldom a good mixture. i used to think you were a strident and caustic conservative. now, after reading your incoherent and foaming-at-the-mouth comments, i realize you’re just bat-shit crazy.
Wow. Chad says that ND20 is WRONG, then devolves into an insulting tirade.
I guess he figures that if he uses the [SHIFT] key it makes his arguments true.
I don’t see the flaws in his post or his links. Can’t say the same for yours though.
you argued that the right to amend a state constitution is unfettered. as a matter of constitutional law, you are WRONG.
Actually, this is what I stated.
Marriage is not a constitutional right. The ability of voters to amend their own constitution IS.
Now, gay-sex marriage supporter chad, please show us where in the constitution of the state of California or in the Federal constitution it explicitly states that marrying whatever sexual partners you choose is a right.
Meanwhile, I will be happy to show you the sections that state clearly that the voters may amend their own constitution.
Why do you oppose the right of voters to amend their constitution, chad? Better yet, why do you deny this right, when it is clearly established, in writing, in the constitution?
you argued that a majority is permitted to use the law to affirm its hatred for a minority (in the parlance of romer v. evans, a “politically disadvantaged group). as a matter of constitutional law, you are WRONG.
Indeed it is permitted. For example, voters have enshrined laws prohibiting pedophilia, plural marriage, rape, and all sorts of other things that truly affirm their hatreds of such behavior. This is clearly, according to the parlance you have stated, discrimination against a “politically disadvantaged group”.
And then we see the typical spin of a gay-sex marriage supporter when confronted with what his movement supports and endorses.
you have erroneously attributed views to me that i never endorsed. to be clear, you brought the aclu into this discussion. i never advocated their views on same sex marriage or polygamy. nor did i ever scream that religion was an improper basis for imposing restrictions on marriage.
Of course you endorsed them, chad. You tried previously to claim that you thought sex with children, child marriage, and plural marriage were harmful. Then, when confronted with the fact that the ACLU and the vast majority of the other groups involved in pushing gay-sex marriage support such things, you supported and endorsed their reasoning. Indeed, you even beclowned yourself in the process, demonstrating that you would spin to protect the fact that the ACLU endorses the practice of plural marriage and hilariously arguing that Proposition 8 said something it clearly did not.
Now that you’ve been confronted with the fact that Proposition 8 says nothing of the sort and that your fellow gay-sex marriage supporters openly endorse the practice of plural marriage and demand that laws preventing it be overturned, you start to backpedal. Nope. Own up to it and cope with it. Certainly you can condemn the gay-sex marriage movement and the ACLU for endorsing and supporting plural marriage, can’t you?
Meanwhile, to the point of this post, I do not think that it is inherently a problem that a gay or lesbian judge is hearing this case, inasmuch as we have an excellent example of a lesbian judge who was more than able to make a constitutionally-sound argument that did not benefit her personally.
However, given Walker’s history and bizarre behavior since getting this trial — since when does a judge break Federal law trying to get things televised? — it leads one to conclude that he is not one of those people and is instead trying to use his position to push gay-sex marriage to the detriment of the constitutional rights of others.
And actually, chad posted an excellent example of why Romer is such a good example of bad jurisprudence.
laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected
“Inference” — as in, we don’t have evidence, but we THINK it might be this.
“Inevitable” — or, to use another logical fallacy, “everybody knows”. Of course, they didn’t bother themselves with evidence — just “inference” that they “knew” this was the case.
What this makes obvious is that the justices wanted to strike the law down — so they invented a reason. Roe v. Wade all over again.
And then, my favorite, which chad not surprisingly left out:
Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability.
In other words, they have to get people to vote in their favor. The horror!
What Romer does that is particularly pernicious is this: it establishes that voters have no right to change their constitution, and that tiny little groups can arbitrarily have thrown out any provision they don’t like on the basis of their not having enough votes to overturn it naturally.
I don’t get you. do you hate yourself or something? you don’t want equal rights? or do you just enjoy kissing ass to right wing nuts?
weird.
hey, grab, please tell how you got the notion that I hate myself. Thanks.