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Judge Overturns Prop 8

More information as it becomes available.  While I’m happy for the couples who can now have the state recognize their unions as marriages, I fear that this decision will further divide the nation on gay marriage and embolden social conservatives.

More anon.

UPDATE (decided to put this, likely my final update to this post) ahead of the others.  I have now read or skimmed the entire opinion.  I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution.  His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender” as if the assumptions about a supposed social construction of gender had been proven true when, in fact, all serious psychological, sociological studies have shown the opposite.  Not to mention studies of the human brain.

He fails to cite a provision of the federal constitution which prevents states from making distinctions based on sex difference, primarily because there isn’t one.

I will now put the rest of my thoughts, “penned” while reading/skimming the decision below the jump.

INITIAL THOUGHTS (HAVING READ/SKIMMED HALF THE DECISION:  I have now read/skimmed the first 73 pages of the decision.  I find some things I like and some I dislike.  First, the dislike, the judge has a very hostile attitude toward the Proponents of Prop 8, adopting a condescending tone when addressing their points.

What I like is that he does make a strong case for the social benefits of marriage as an institution, the kind of arguments I believe gay marriage advocates should be making in legislatures and in courts of public opinion.  We’ll see how well he relates them to the actual text and original meaning of the Constitution.

FINALLY! 109 pages into the opinion and we get conclusions of law.  The judge cites the constitution, holding that “Due process protects individuals against arbitrary government intrusion into life, liberty or property.”  Agreed, but he cites a court case not the legislative arguments in favor of amending the constitution to include what would be the 14th Amendment (wherein we get the due process clause.

Then, the judge, goes on to say that the “right to marry” is fundamental.  Yeah, but has he read the actual text of Prop 8?  It doesn’t addressed the “right to marry,” but what marriages the state recognizes.

He goes on to write that “Marriage has retained certain characteristics throughout the history of the United States.”  Wonder if he’ll address sexual difference and sexual exclusivity, characteristics which marriage retained throughout that history.

Yup, he does, then he becomes sloppy, real sloppy, “The evidence shows that the movement from marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an understanding of gender rather than a change of marriage.”  Say what?  State-mandated gender roles?  You  mean the discredited notions of the social construction of marriage.

Too bad he fails to cite any (of the many) serious studies on sex-difference.

All that said, had the Equal Rights Amendment been ratified, he would have a point, but so far he hasn’t based his ruling on anything in the actual text of the constitution — but I’m still reading.

His equal protection argument is similarly sloppy, citing several cases, but offering little coherent argument to relate them to the facts of the matter.

Whoah, this guy is given more to popular jargon that to constitutional interpretation:  “the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based on antiquated and discredited notions of gender.”  Antiquated and discredited notions of gender?  Discredited by whom?  Sociologists writing in the 1970s, inventing a social construct out of thin air?

HotAir has a good roundup of opinion on the web.

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253 Comments

  1. I’m afraid that social conservatives or political extremists will try to Federalize marriage/family laws into the U.S. Constitution. This is actually a VERY sad day for the U.S. Constitution.

    Comment by Totakikay — August 4, 2010 @ 5:04 pm - August 4, 2010

  2. This might be the gay version of Roe v. Wade!

    Except… Roe is still law 40 years later, and there is no serious chance of a Constitutional amendment to overturn it.

    If SCOTUS upholds, I am unconcerned afterwards.

    Comment by Jeremy — August 4, 2010 @ 5:05 pm - August 4, 2010

  3. Tota, we agree, reviewing the decision. May take a while as it’s over 100 pages.

    Jeremy, but abortion remains a potent issue which divide the body politic. Judicial resolution of the issue keeps the issue alive in ways that a legislative response would not. (See Ruth Bader Ginsburg’s commentary on this matter.)

    Comment by B. Daniel Blatt — August 4, 2010 @ 5:08 pm - August 4, 2010

  4. Great! Now the government is only discriminating against single people by denying them tax, financial and other benefits of married couples.

    The government really just needs to get out of marriage, stop granting special benefits to select groups of people and let people enter in to their own contracts regarding their own affairs.

    Comment by Chris H — August 4, 2010 @ 5:14 pm - August 4, 2010

  5. I don’t share your concern in the same way. I believe the judge’s decision was the only one which could have been reached if based upon the constitution.

    Having lived through the 60s in Texas, with the redneck reaction to black equality, I can understand some concern about possible backlash. It may happen, but I think cooler heads will prevail. But 50 years later is there anyone who will argue against racial equality? Fifty years from now, gays and lesbians will reflect with gratitude upon what is happening now.

    Polls already show that a majority of conservatives are in favor of gay rights. The recent poll in CA show a greater number of residents favor gay rights than 2 years ago when Prop 2 passed.

    The arguments in this case were argued upon US constitutional grounds, and as such, the judge had no recourse except to rule as he did. We as Americans should be grateful for our Constitution and independent courts. Our system works!

    Comment by man — August 4, 2010 @ 5:18 pm - August 4, 2010

  6. Homosexuality is not a race. It is a behavior.

    My working headline: “Judge Declares BIOLOGY Unconstitutional”

    Comment by American Elephant — August 4, 2010 @ 5:22 pm - August 4, 2010

  7. man, am reviewing the decision now to see how he relates it to the constitution. Will address these matters as soon as I am able.

    Comment by B. Daniel Blatt — August 4, 2010 @ 5:22 pm - August 4, 2010

  8. AE,homosexuality is a behavior? Are you kidding? Do you actually believe one chooses his sexual preference? When did you make that choice? Any chance of changing your mind?

    Comment by man — August 4, 2010 @ 5:25 pm - August 4, 2010

  9. I’m in full agreement with Dan & with Chris H.

    Again, good for those few who benefit.

    Bad for voters’ rights and the principles of a Republic.

    Comment by Bruce (GayPatriot) — August 4, 2010 @ 5:30 pm - August 4, 2010

  10. AE: And if race were the only basis for equal protection decisions, you might have a point. But it isn’t, and you don’t.

    Ask yourself: isn’t religion a behavior? And aren’t laws that are biased against minority religions unconstitutional? Even if your not-based-in-science opinion that orientation was a behavior was true, how would that matter?

    Comment by torrentprime — August 4, 2010 @ 5:31 pm - August 4, 2010

  11. The government really just needs to get out of marriage, stop granting special benefits to select groups of people and let people enter in to their own contracts regarding their own affairs.

    So, what special benefit is the judge granting gay couples that he’s not granting to heterosexuals, or that heterosexuals don’t already have????

    Comment by Sonicfrog — August 4, 2010 @ 5:32 pm - August 4, 2010

  12. Bruce – do you believe that voters have a “right” to legislate or vote against the rights of the minority? What “right” are you referring to?
    There is a lot of speech on the right about the Constitution these days. We have a judicial system to make sure the rights of the minority are defended, correct? Or do you disagree?

    Comment by torrentprime — August 4, 2010 @ 5:33 pm - August 4, 2010

  13. Oy! any of these commentors actually thinking about getting married? Anyone got a dog in this fight?

    Comment by Jim in St Louis — August 4, 2010 @ 5:34 pm - August 4, 2010

  14. I have such mixed feelings about this. The people did vote and I hate to see the peoples’ vote overturned.

    Comment by Maureen — August 4, 2010 @ 5:34 pm - August 4, 2010

  15. Marriage was a religious institution before it was co-opted by the state and regulated by the federal government for tax purposes only.

    To man: I am not grateful because I do not share your sentiment. Once again, I ask where marriage is in the Contitution for it to be a Right? The government cannot create Rights and that is what you are asking them to do. Our system does not work to me, because this case made valid why so many people find it useless to vote; their opinions in our system are irrelevant.

    All Californians have the same rights, even while Prop 8 was in place; the only restriction was the use of the term marriage. It is a word, it is a powerful word, and I wish I could believe that the gay leadership was actually fighting for the covenant of the Union, but forgive me for my pessimism in my belief that the gay leadership is disinterested in the Union and wants ownership of the word.

    Comment by Holly — August 4, 2010 @ 5:36 pm - August 4, 2010

  16. Well said, Holly.

    Comment by B. Daniel Blatt — August 4, 2010 @ 5:39 pm - August 4, 2010

  17. Sonic Frog:

    The purpose of the previous poster commenting about special rights is that the government rewards individuals who are married, have children, etc. The system uniquely punishes individuals who are single and who do not have children, for what purpose? Not everything is about being gay or straight.

    Comment by Holly — August 4, 2010 @ 5:40 pm - August 4, 2010

  18. And aren’t laws that are biased against minority religions unconstitutional?

    You mean the religion of man/boy love?

    Comment by heliotrope — August 4, 2010 @ 5:41 pm - August 4, 2010

  19. @Holly: I understand your perspective, but you are missing a few critical legal issues here.
    The court is not creating a right. That’s what the right wing says to delegitimize court advances in equality. Rather, no one forced California to go into the marriage license business. They chose to do that all on their own. And they are free to do that. But if they choose to do so, they must do so equally, under the law and under the Constitution. Otherwise, legislatures and voters would be free to pass laws and constitutional amendments that discriminated against this minority group or that, or favored this majority group or that, on the whims of whomever was in the majority.
    If it were not for this protection, interracial marriage could still be illegal, segregation in schools could still be legal, etc.

    Comment by torrentprime — August 4, 2010 @ 5:41 pm - August 4, 2010

  20. Ask yourself: isn’t religion a behavior? And aren’t laws that are biased against minority religions unconstitutional?

    Oh dear, the worst aspect of this decision is that it has set off another round of hysterical emotional Americans vs. rational, thinking Americans. And I truly am sick to death of dealing with hysterical homos.

    YES! RELIGION IS A BEHAVIOR! A behavior that is specifically explicitly singled out and protected by the first Amendment to the Constitution — because we decided as a people that government could make no laws restricting the free exercise thereof.

    Um, DUH!

    neither homosexuality, nor heterosexuality nor any other sexualities are protected behavior which is why there are no amendments mentioning them!

    Comment by American Elephant — August 4, 2010 @ 5:42 pm - August 4, 2010

  21. heliotrope: excellent impersonation of a commenter at Free Republic. You’re doing it so well I almost believe you just called pedophilia a religion.

    Comment by torrentprime — August 4, 2010 @ 5:42 pm - August 4, 2010

  22. What actual percentage of California gays want a legal, lifelong union with the risk of financial consequences if the union goes sour? I suspect it is roughly the same percentage of gays who will flock to serve their country when DADT is overturned.

    Comment by Ashpenaz — August 4, 2010 @ 5:43 pm - August 4, 2010

  23. By the way, I forgot that the Judge in this case is openly gay.

    My working headline thus becomes “GAY Judge Declares Biology Unconstitutional”

    Comment by American Elephant — August 4, 2010 @ 5:44 pm - August 4, 2010

  24. @20: You’re still missing the point. The first amendment would not protect against a law that said, eg, that jews cannot marry christians. Or that Jews must pay a larger tax than gentiles. Or that Muslims weren’t elegible for the federal bench. The 1st amendment only goes as far as stopping the government from directly stopping the practice of religion. It’s equal protection and due process laws that keep the government’s hand even when legislating.

    And you’re the only person here screaming and exclamation pointing your way around: are you the hysterical homo of which you speak?

    Comment by torrentprime — August 4, 2010 @ 5:46 pm - August 4, 2010

  25. @23: What does Walker’s orientation matter? If he was straight, would his opinion thus be suspect if he ruled against us?

    Comment by torrentprime — August 4, 2010 @ 5:49 pm - August 4, 2010

  26. @22: Well, having equal access to the government should definitely be based on how many people you think will use that right. I mean, look at how few black were registered to vote in the 60s in the south!
    LOL

    Comment by torrentprime — August 4, 2010 @ 5:53 pm - August 4, 2010

  27. Torrent,

    I will respectfully disagree. Marriage is a privilege, not a right. If marriage is a right, so is healthcare, housing, employment, sustenance, and wealth. None of these are Constitutional rights. Prop 8 did not deny rights to any individual, it denied the use of the term marriage. It is easy to forget this when no one actually mentions that after Prop 8 was overturned, and sent back to the voters for a second time, it did not deny gays to equal adoption rights, benefit rights, hospital rights, etc. The fight was for the word Marriage. Again, I say, marriage was a religious institution before it was co-opted by the government. What leadership in today’s society has more animosity and hatred for the Christian Church and Christian’s themselves? In my opinion, the gay leadership. It is not about a union, but about the ownership of the word.

    I find it somewhat ironic that you fight so hard for the “minority” at the constitutional expense of the majority.

    Comment by Holly — August 4, 2010 @ 5:54 pm - August 4, 2010

  28. Ask yourself: isn’t religion a behavior? And aren’t laws that are biased against minority religions unconstitutional?

    Indeed they are — by order of the specific, written, First Amendment which refers directly to religion and the free exercise thereof.

    Where is the similar amendment guaranteeing marriage to all?

    Meanwhile, as far as the “behavior” argument, two examples: “Bishop” Gene Robinson, gay and lesbian hero Jim McGreevey. If you don’t like those, any one of the countless thousands of gay and lesbian people who only discovered their inability to have any intimacy with a member of the opposite sex AFTER meeting, marrying, having sex with, and producing children.

    Comment by North Dallas Thirty — August 4, 2010 @ 5:56 pm - August 4, 2010

  29. Bruce – do you believe that voters have a “right” to legislate or vote against the rights of the minority?

    Pedophiles are a minority whose sexual needs and desires seem to have a strong genetic basis and are extremely difficult (if not impossible) to change.

    Do you oppose government legislating against them, too?

    Comment by North Dallas Thirty — August 4, 2010 @ 5:58 pm - August 4, 2010

  30. @22: Well, having equal access to the government should definitely be based on how many people you think will use that right. I mean, look at how few black were registered to vote in the 60s in the south!\

    And therein you inadvertently reveal the problem.

    No one is preventing gays and lesbians from registering to vote. No one is preventing gays and lesbians from participating in the political process. No one is preventing gays and lesbians from being elected to higher office or taking judgeships. No one is preventing gays and lesbians from drinking from the same water fountain, riding in any portion of the bus, or attending the same schools as heterosexuals.

    The reality for black Americans during the era of segregation was much, much different.

    Which is why I found a gay judge using as his rationale for striking down a voter-passed constitutional amendment the argument that gays were a helpless, persecuted minority with no power whatsoever to be beyond hilarious.

    Comment by North Dallas Thirty — August 4, 2010 @ 6:02 pm - August 4, 2010

  31. Torrent,

    Another thing:

    You are limiting the American people in a way that they are undeserving of. You are saying that without the courts, the American public would never change and I whole-heartedly disagree. Some things the courts have decided have been for the betterment of society, but to engineer a public will have its consequences. Look at the greater acceptance of homosexuality in general: this would continue to improve naturally. Now, if you try to engineer society like the courts and the gay leadership are doing, you will create a divided people and turn what could have been an ally into an adversary. Gays are playing with fire. May I remind you that we are 5-percent of the population and what will you do if you create so much animosity by demanding that people accept you rather than allow an amenable population to naturally accept you?

    Comment by Holly — August 4, 2010 @ 6:04 pm - August 4, 2010

  32. @ND30: The government was/is showing bias in issuing marriage licenses, with effects on property, inheritance, taxes, spousal privilege, etc. How are these things not important? Just because it doesn’t resemble issue-for-issue what blacks went through?

    And the things you mention have been tossed around, and it was often as a result of legal cases that these discriminatory laws were dropped. You do remember that gay sex itself was illegal until SCOTUS overturned it? And our fitness to serve as teachers or parents was questioned, and gay adoption is banned in some states? Do those issues rise to the ND30level of importance? How much discrimination is required for you to think there is a valid legal claim?

    Comment by torrentprime — August 4, 2010 @ 6:07 pm - August 4, 2010

  33. You’re still missing the point. The first amendment would not protect against a law that said, eg, that jews cannot marry christians.

    It wouldn’t. You’re correct. Try to pass such a law if you want. No one will support or agree with you.

    Or that Jews must pay a larger tax than gentiles.

    Well, naturally a progressive doesn’t see taxes as prohibitive, but fortunately everyone else, including the courts, do. See “poll tax”.

    Or that Muslims weren’t elegible for the federal bench.

    No, that’s covered by the “no religious tests” clause in Article VI. Its not even an Amendment, but right in the body of the Constitution itself! Have you ever read the thing???

    It’s equal protection and due process laws that keep the government’s hand even when legislating.

    You HAVE exactly equal protection already. You can marry EXACTLY the same people that any other person can marry — a person of the opposite sex, of legal age, to whom you are not immediately related. The problem is not that gays want equal protection, they want an EXCEPTION to equal protection.

    And you’re the only person here screaming and exclamation pointing your way around: are you the hysterical homo of which you speak?

    No, as I said, I am sick to death of dealing with irrational hysterical homos incapable of acknowledging simple biological facts. Exasperation is not not hysteria, its exasperation.

    Why do liberals hate logic, reason, science and the English language so???

    Comment by American Elephant — August 4, 2010 @ 6:08 pm - August 4, 2010

  34. [...] More at Gay Patriot. Also from Jacob [...]

    Pingback by Instapundit » Blog Archive » FEDERAL JUDGE FINDS CALIFORNIA PROPOSITION 8 unconstitutional. Copy of the decision at the link. … — August 4, 2010 @ 6:10 pm - August 4, 2010

  35. Once again, I ask where marriage is in the Contitution for it to be a Right?

    Once again, that’s not how the Constitution of a free Republic works.

    The proper question, in that context, is: where does the Constitution give the government the authority to involve itself in matters of marriage?

    Comment by Seerak — August 4, 2010 @ 6:12 pm - August 4, 2010

  36. #21 Turpentine: IF you are right about this:

    And aren’t laws that are biased against minority religions unconstitutional?

    AND you were a man/boy lover, wouldn’t you make a minority religion of it?

    Putz. You libs sure come up with some nifty concepts. How about majority religions that adhere to Sharia? How about religions that have child marriage? How about religions the require to brother to add the widow to his list of wives?

    Have you no concept of cultural differences?

    Comment by heliotrope — August 4, 2010 @ 6:12 pm - August 4, 2010

  37. Once again, the same people who for decades have been telling us there should be separation between church and state are now using the power of the state to change what has been a fundamentally religious institution for thousands of years.

    I no longer recognize any federal authority over me.

    Comment by KLH — August 4, 2010 @ 6:14 pm - August 4, 2010

  38. Bruce – do you believe that voters have a “right” to legislate or vote against the rights of the minority?

    Can someone point to me in the US Constitution where there is a “right” to marriage — man & woman or otherwise?

    Is marriage an “unalienable right” which has been endowed to us by our Creator? (Declaration of Independence)

    Comment by Bruce (GayPatriot) — August 4, 2010 @ 6:14 pm - August 4, 2010

  39. ” Now, if you try to engineer society like the courts…”

    Idiotic. Courts decided cases, period. No court ever wrote a piece of legislation. The system the founders created has worked wonderfully since its inception and only until you lose do you wish to change the game. Typical unprincipled BS from the usual corners.

    Comment by Jimmy — August 4, 2010 @ 6:15 pm - August 4, 2010

  40. “You HAVE exactly equal protection already. You can marry EXACTLY the same people that any other person can marry — a person of the opposite sex, of legal age, to whom you are not immediately related. The problem is not that gays want equal protection, they want an EXCEPTION to equal protection.”

    Couldn’t agree with you more.

    Comment by Holly — August 4, 2010 @ 6:16 pm - August 4, 2010

  41. Do liberal trolls not have spell/grammar check?

    Comment by Bruce (GayPatriot) — August 4, 2010 @ 6:16 pm - August 4, 2010

  42. Comment by Totakikay

    I’m afraid that social conservatives or political extremists will try to Federalize marriage/family laws into the U.S. Constitution. This is actually a VERY sad day for the U.S. Constitution.

    Too late — the judge just did federalize it.

    Comment by Rhymes With Right — August 4, 2010 @ 6:17 pm - August 4, 2010

  43. Holly (#27) – You are a wise woman. You should hang out here more! :)

    Comment by Bruce (GayPatriot) — August 4, 2010 @ 6:18 pm - August 4, 2010

  44. If this doesn’t light a fire under the Federal Marriage Amendment, nothing will.

    I support the ends but disagree with the means. I’ve not read the ruling (and I’m not likely to) but I have seen highlights and it’s not all that difficult to make the jump to the conclusion that there is no state interest in marriage and that “marriage” can be just about anything one or more lifeforms deem it to be.

    It is unsettling to me that a bedrock tradition – a pillar of western civilization with roots going back for generations – can be unwound, just like that, by one man.

    The will of the people in this country is becoming more irrelevant by the day.

    Comment by SoCalRobert — August 4, 2010 @ 6:18 pm - August 4, 2010

  45. Is marriage an “unalienable right” which has been endowed to us by our Creator? (Declaration of Independence)

    Do you have the right to recreate the Creater? Isnt redefining marriange nothing more than forming your own image of God?

    God created marriage, and if you dont like God’s definition of marriage, you recreate God.

    Comment by KLH — August 4, 2010 @ 6:19 pm - August 4, 2010

  46. Holly: I am saying nothing of the kind. Putting words in my mouth won’t make your case stronger. We win through the ballot box, through legislatures, and sometimes through court cases. Was Brown v Board of Education a mistake because it said the law was needed to fix segregation, that the American people were incapable of doing it themselves? You’re trying to put in my mouth and the judge’s the concept of “we’ll do it because the people can’t.” I don’t go to court because I think I cant get a law passed to fix things; I go to court because I have a right to.

    And as far as marriage being a right, even if you skip (as you did) the idea that the government needs to be equal in giving out licenses, Loving V Virginia already answered this:

    “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.”

    Do you disagree with this?
    You did fail to answer my point about when the state hands out licenses that it must do so in a equal manner.

    Last:

    I find it somewhat ironic that you fight so hard for the “minority” at the constitutional expense of the majority.

    The majority never had the right to take away the rights of the minority; that’s the point. Certainly not a constitutional right! We cannot vote on civil rights. I’m sorry you think that the government gets to discriminate on the basis of Christian whims, but nonetheless, there is nothing holy about voting to the extent that allows it to trump individual rights. If we voted on expelling Muslims from the country, or banning them from serving in office, the fact that we’re voting on it wouldn’t make it any less unconstitutional.

    Holly, the problem with your view, that we should ask nicely for equality and wait for someone to give it to us, is that it never works. You have to fight for what is yours and make the change you want. Your way makes us powerless, begging them to give us what is already ours as citizens of this country – equal.

    Comment by torrentprime — August 4, 2010 @ 6:19 pm - August 4, 2010

  47. Seerak,

    I agree that the Constitution does not enumerate any powers for the Federal Government to enter into the debate on the institution of marriage. The state can enter into the debate if one is looking at contract law, which is why I fully support Civil Unions. I do not support the state or the federal government being involved in marriage because marriage is not a right granted by any form of government.

    Comment by Holly — August 4, 2010 @ 6:24 pm - August 4, 2010

  48. Can someone point to me in the US Constitution where there is a “right” to marriage — man & woman or otherwise?

    Is marriage an “unalienable right” which has been endowed to us by our Creator? (Declaration of Independence)

    You are operating on the premise that whatever action or behavior is not specified by the Constitution as protected, defaults to being subject to government control.

    By this premise, individuals do not have the right to any particular action unless it is specifically granted by the Constitution, while the government is free to control or interfere with anything except what is specifically <forbidden by the Constitution.

    In other words, individual act by permission, governments act by right.

    In light of that, I find it funny that you commented about “the principles of a Republic” earlier, seeing as one of those principles, at least for free Republics, is that individuals act by right, and the government acts by permission.

    This idea of looking for “rights” in the Constitution repudiates that document and the Declaration, at root.

    Comment by Seerak — August 4, 2010 @ 6:25 pm - August 4, 2010

  49. @41: “It is unsettling to me that a bedrock tradition – a pillar of western civilization with roots going back for generations – can be unwound, just like that, by one man.”
    This right there is a lie and a misread – what exactly was “unwound”? What changed for hetero marriage? How were hetero marriages changed in any way?
    I’d love to hear you answer this: how is hetero marriage in any way changed?
    To use this phrasing is to give credence to the nonsense that gays seek to “destroy” marriage, or that we’re “undermining” it. What we’re doing is saying it’s so important, so useful, so vital, and such a pillar of society that the government doesn’t have the right to bar us from it.

    And as for this being what brings FMA into play. They said that when MA recognized our right to marry. And Iowa. And CA. And so on and so on. In actual fact, those victories have shifted opinion in our favor and shown that gays getting married causes no damage to hetero marriages. The divorce rate in MA has gone down since they got it, actually.

    Do all of you that fear the backlash realize you’re advocating against advances in equality simply because it might make someone angry? Do you really go to bed at night worrying about evangelicals? They’re going to hate us no matter what. It’s education and exposure that wins this, and a lot of that is done by living as free, normal, equal citizens, not cowering in the shadows waiting for AFA/CWA/FOtF to go out of business.

    Comment by torrentprime — August 4, 2010 @ 6:28 pm - August 4, 2010

  50. KLH and Holly: you are both conflating marriage the religious act with marriage the civil license. Churches can do whatever the hell (lol) they want. We’re only talking about civil marriage licenses.

    Comment by torrentprime — August 4, 2010 @ 6:29 pm - August 4, 2010

  51. Whether marriage is a right or not, where the government institutes a process, all law-abiding citizens must stand equally before it. To the extend that government is “involved” in marriage, it is involved at the behest and approval of the people being governed. The constitution empowers the congress to legislate. The courts have not seen fit to deem government “involvement” in marriage unconstitutional, like it or not.

    Comment by Jimmy — August 4, 2010 @ 6:31 pm - August 4, 2010

  52. “But if they choose to do so, they must do so equally, under the law and under the Constitution”

    But they are. The law treats everyone equally in that no two people of the same gender may marry. That is a clear bright line.

    But, you might say, it’s not equal because it prevents people who want to get married from getting married. That’s balderdash. Since when is “want” a basis for a law? I want a lot of things the law prevents me from having. I’m sure you can think of a couple dozen examples without much effort. If you open up the law to the “but I really really want to” then you’ve changed the bright line to one far more fuzzy and subjective that I guarantee you will not be able to defend. After all, if someone wants to move it again, all they have to do is say “but I really really want to” and you have nothing to say against that.

    Comment by Jimmie — August 4, 2010 @ 6:32 pm - August 4, 2010

  53. Arrogant judges shouldn’t be activists in their courts; this is why we have the gay marriage mess as it is. I see plenty of backlash coming as a result of the judge’s rule.

    Comment by Sebastian Shaw — August 4, 2010 @ 6:33 pm - August 4, 2010

  54. @ND30: The government was/is showing bias in issuing marriage licenses, with effects on property, inheritance, taxes, spousal privilege, etc.

    And the government is showing bias against incestuous couples, underage individuals, single people, etc etc etc. Your point?

    Comment by North Dallas Thirty — August 4, 2010 @ 6:35 pm - August 4, 2010

  55. Torrent,

    You are not being denied a Constitutional right. My viewpoint is not the problem, it is your fundamental misunderstanding of what are our unalienable rights verses a created right.

    No, marriage is not a basic civil right. To be loved is a basic human right, but the word marriage, no. If it is, then why continue to discriminate against other minorities? Allow minors to be married, allow polygamy. Why are you selfishly just fighting for yourself rather than for all minorities who wish to marry? If homosexuality is not a choice, than bi-sexuality is not a choice and one should not have to choose who she should marry and should be entitled to marry both.

    No, sir, I am not the problem. The problem is that I do not agree with your fight, so why would I fight for it? I do not wait for anyone to tell me who I am or what I am worth, that’s why I do not obsess over marriage; whereas others in the gay community seem to need it for a form of validation for their union. Gay, straight, just stop talking about it already. Let me tell you, all of the Conservatives I know do not care that I am gay, they do not care what you do in your bedroom, but they sure as hell want the gay community to stop pushing their bedroom into their lives. I agree with them.

    Comment by Holly — August 4, 2010 @ 6:36 pm - August 4, 2010

  56. KLH and Holly: you are both conflating marriage the religious act with marriage the civil license. Churches can do whatever the hell (lol) they want. We’re only talking about civil marriage licenses

    I’ll try to remember that when my church is being sued for discrimination.

    Comment by KLH — August 4, 2010 @ 6:39 pm - August 4, 2010

  57. Question: If marriage is a right, why to I need to get a license?

    Comment by KLH — August 4, 2010 @ 6:40 pm - August 4, 2010

  58. Do you disagree with this?

    You do realize, torrentprime, that Loving specifically referred to procreation as one of the essential reasons FOR marriage?

    In short, Loving destroys your argument. It pointed out that distinctions based on race didn’t make any sense, given the presence of the Reconstruction amendments (13, 14, and 15), PLUS the fact that “race” is a social construct, not a biological one.

    Gender? Right. You can argue that gender is a “social construct” all you want, but it doesn’t change biology or reality.

    Walker betrayed one of the real problems here — the fact that he believed that opposite-sex and same-sex couples are identical. Nothing could be further than the truth. He truly must be one of those delusional gays that thinks he needs to wear a condom lest he get another man pregnant.

    Comment by North Dallas Thirty — August 4, 2010 @ 6:40 pm - August 4, 2010

  59. Torrent,

    Are you conflating marriage and civil unions for your argument?

    The religious institution of marriage was practiced before the United States Government began regulating it. The precedence of marriage in this country lies with its religious counterpart. Civil Unions you can argue are a product of the government.

    Comment by Holly — August 4, 2010 @ 6:43 pm - August 4, 2010

  60. flippantly referring to what he calls “discredited notions of gender”

    Thank you for getting to the heart of the matter. I dont have time to read the decision right now, but I trust that you are spot on about this being the crux.

    Question, though…. I heard Medved saying that the Judge at the same time says, in essence, that all laws that recognizing differences between the sexes are NOT necessarily unconstitutional, which would mean that his ruling is self-contradictory. Is this the case?

    Comment by American Elephant — August 4, 2010 @ 6:46 pm - August 4, 2010

  61. torrent – technically, nothing changes for heterosexual couples. But that’s not the point. The point is that the will of the people to decide this issue was, like Roe v Wade, short-circuited.

    Whether or not the FMA is a good idea (I think it’s an awful idea) is beside the point. The point is that by short-circuiting the people, the FMA becomes more likely. If it comes to pass, it will make our arguments moot for many years.

    Even if it doesn’t pass, it pushes same-sex marriage into the limelight in an already contentious year with an electorate that’s already pissed off due to any number of hot-button issues.

    Citizens see their views on everything from abortion to the Ground Zero mosque spat upon by a ruling elite evermore insistent on demonstrating it’s contempt for the proles.

    Pyrrhic victory is the term that comes to mind.

    Comment by SoCalRobert — August 4, 2010 @ 6:46 pm - August 4, 2010

  62. Turpentine

    Oh, that’s even better than TormentedMind. I love it!

    Comment by American Elephant — August 4, 2010 @ 6:48 pm - August 4, 2010

  63. It’s a sad day for the federal and CA Constitutions. http://beakerba.livejournal.com/359253.html

    Comment by Brian — August 4, 2010 @ 6:48 pm - August 4, 2010

  64. I am a heterosexual woman married to a heterosexual man for 42 years, and I can say I have never been concerned one way or the other that gay marriage would somehow affect the “institution” of marriage. What I do object to is government involving itself in what is essentially a physical and spiritual union between two people. Want to get married? Get married. Someone will do it for you. If the government insists on meddling over assets and inheritance, write out ironclad agreements (not necessarily wills, which can be broken) with a smart lawyer.

    Comment by RebeccaH — August 4, 2010 @ 6:51 pm - August 4, 2010

  65. Polygamy, based on this judge’s legal logic, is now constitutional. Marriage between adult brothers and sisters is now legal.

    How can we discriminate against polygamy?

    Comment by WJ — August 4, 2010 @ 6:52 pm - August 4, 2010

  66. Roe v. Wade decided that the American people do NOT have a right to decide when life begins, and thus when it is due protection, but that when life begins is somehow an individual right with hundreds of millions of potentially different answers.

    This gay Judge has declared that the American people do not have a right to recognize that every life on Earth comes from heterosexuality and no life in the history of the universe has ever been created by homosexuality.

    Both are direct emotional attacks on the people’s right to recognize scientific facts.

    Comment by American Elephant — August 4, 2010 @ 6:53 pm - August 4, 2010

  67. At the battle of Asculum in 279 BC, the Greek king Pyrrhus defeated a Roman legion, but at a horrible cost to his own troops. When congratulated on his victory, Pyrrhus responded: “one more such victory, and we shall be undone.” Gay marriage proponents with the help of a homosexual judge have shot their bolt in this decision. Now they will face legion after legion. Overreaching is going to bring down a deluge of resistance and even a roll back of previous gains. Sometimes it’s best to quit while you’re ahead.

    Comment by Watson — August 4, 2010 @ 6:54 pm - August 4, 2010

  68. Two things,

    First, Torrent loves to gtrot out Loving, but like alwats ignores Baker v. Nelson.

    Second, the judge is wrong and should have recused himself. Baker itself says that there’s no federal question on marriage.

    Third, now we have a judge on the east coast who says that states can define marriage, and one on the west coast who says they can’t. Consistency anyone?

    Comment by The_Livewire — August 4, 2010 @ 6:54 pm - August 4, 2010

  69. I do not understand the focus on biological differences in this argument. While there are clear biological differences between the sexes – which influence the roles in a marriage – these roles are not mandated by law. I would have to agree with Judge Walker – “marriage under law is a union of equals”

    All that said – if we are looking to biological differences, why are we ignoring the evidence of clear anatomical differences in the brains of gay men, not to mention psychological differences or (albeit much less evidence for) genetic differences.

    Comment by Eric — August 4, 2010 @ 6:55 pm - August 4, 2010

  70. Otherwise, legislatures and voters would be free to pass laws and constitutional amendments that discriminated against this minority group or that, or favored this majority group or that, on the whims of whomever was in the majority.

    You mean like punishing success by levying higher taxes on “the rich”, except the ones in your district? Or do you mean “Hate Crimes” protections for your favored victim groups and a kick in the nads for those who aren’t?

    Were you born a colossal asshole or did you make a conscious decision to be one?

    Comment by ThatGayConservative — August 4, 2010 @ 6:57 pm - August 4, 2010

  71. The religious institution of marriage was practiced before the United States Government began regulating it. The precedence of marriage in this country lies with its religious counterpart. Civil Unions you can argue are a product of the government.

    Ooh, that’s just incredibly wrong. There is no such thing as religious precedence in this country. What you believe and how long people have believed something similar has no bearing on the affairs of the United States government, and we’re all a lot better off for it.

    You mentioned earlier that this is basically just about the word ‘marriage.’ I’ve always been curious how this system would work. The government hands out marriage licenses to straight couples, and civil union licenses to gay couples, I can wrap my head around that. But what about in every day life? Will gay people be allowed to propose to each other in the traditional “Will you marry me?” form, or well they have to say “Will you enter into a civil union with me?” What other words are at stake here? Will gays be able to have weddings, or will we have to refer to them as unifications? Will a gay person be allowed to use the term ‘husband’ or ‘wife’ with regards to their same sex partner? And what will we call gay divorce? De-coupling? Un-civil un-union?

    I just don’t understand how this separate but equal system is supposed to work, especially the crux of the issue is groups of religious die-hards wanting to play word police.

    Comment by Levi — August 4, 2010 @ 6:58 pm - August 4, 2010

  72. Jimmy #39:

    No court ever wrote a piece of legislation.

    Then forced bussing for racial balance in the schools never occurred. Cool!

    Jimmy #51

    To the extend (sic) that government is “involved” in marriage, it is involved at the behest and approval of the people being governed.

    Huh? Are you not supporting Prop 8 here?

    Comment by heliotrope — August 4, 2010 @ 7:06 pm - August 4, 2010

  73. @24″
    “The first amendment would not protect against a law that said, eg, that jews cannot marry christians. Or that Jews must pay a larger tax than gentiles. Or that Muslims weren’t elegible for the federal bench.”

    Actually Torrent, the 1st amendment does protect against any of these laws, because these laws would “restricting the free exercise” of religion.

    Comment by HCN — August 4, 2010 @ 7:07 pm - August 4, 2010

  74. Gay marriage proponents with the help of a homosexual judge have shot their bolt in this decision. Now they will face legion after legion. Overreaching is going to bring down a deluge of resistance and even a roll back of previous gains. Sometimes it’s best to quit while you’re ahead.

    Who cares about these desperate little threats? I welcome them. I’m not going to let a bunch of hysterics intimidate me into abandoning a fight that I believe in that is actually starting to make substantial headway. Oh, they’re only going to get more hysterical? Oh, they’re only going to propose more legislation, and introduce more initiatives, and raise more money? Yeah? Well that sounds good to me. Progress on this front is inevitable and irreversible, and a bunch of foolhardy conservatives desperately standing against the tide will be an encouraging sight.

    Comment by Levi — August 4, 2010 @ 7:08 pm - August 4, 2010

  75. I do not understand the focus on biological differences in this argument. While there are clear biological differences between the sexes – which influence the roles in a marriage – these roles are not mandated by law.

    You are confusing “biology” and “roles”.

    A male may opt to stay at home and take care of the children while a female goes to work, but that doesn’t mean he carries the baby and she provides the sperm.

    The simple fact of the matter is that biology states that same-sex and opposite-sex marriages are not the same. Not biologically, not psychologically, not physiologically, and not anywhere near identical in terms of potential impact to society.

    Same-sex couples cannot reproduce themselves. They are dependent on opposite-sex couples and individuals to do it for them. That, alone, should tell you that there is a difference between the two.

    Comment by North Dallas Thirty — August 4, 2010 @ 7:09 pm - August 4, 2010

  76. Levi,

    Actually it is not wrong. I said the institution of marriage, in this country, was a religious institution before it was a product of the government for tax purposes.

    I never said anyone was separate but equal. Everyone I believe should be equal under the law, which is why I support Civil Unions for every state. I know plenty of straight couples who do not get married or enter into civil unions. Are they somehow less equal? No. It is your opinion to place a system of hierarchy on the labels.

    If you have a problem with the limiting nature of English language to define what you consider your union to be, that is yours to overcome.

    It is not just a word to those who are religious, to my family. You want them to respect your view, I would begin with you showing them some respect.

    Comment by Holly — August 4, 2010 @ 7:09 pm - August 4, 2010

  77. I completely disagree with Seerak, but his comment #48 is right on the money in describing our rights – they existed before the constitution. However, homosexuals don’t have the right to lay claim to, and completely redefine, a religious institution. Homosexuals deserve, and have a right to, an institution of a similar and equal nature to marriage. Just don’t claim our millenniums old institution and twist it into something it isn’t.

    Any two people should have Civil Unions available which are the functional equivalent of marriage. And the federal government should get out of the marriage business (granting special privileges/burdens according to marital status) and leave it up to the states to decide.

    Calling it marriage doesn’t make it marriage, and no judge can force that upon society. Maybe you could call it Gayrriage? Two people could have a ceremony and be garried? I’m kidding a little, but really, you can’t just redefine a word and an institution because you’re jealous of its societal acceptance and history. Create your own institution, celebrate it, and honor it by taking it seriously.

    Comment by Neshobanakni — August 4, 2010 @ 7:11 pm - August 4, 2010

  78. Progress on this front is inevitable and irreversible, and a bunch of foolhardy conservatives desperately standing against the tide will be an encouraging sight.

    Let’s see, the Massachusetts decision led to over forty of the individual states passing laws and constitutional amendments clearly limiting recognition of marriage to opposite-sex couples.

    I think with a Federal judge on one side of the country insisting that states do not have the power to regulate marriage and another saying that the states have ultimate power in the matter, it has been demonstrated that “progressives” like Levi can’t even come up with a coherent line of reasoning.

    Where this goes is very straightforward; the Supreme Court declares that marriage on the basis of whatever you’re sexually attracted to is not a Constitutional right, the decision is settled until the voters choose otherwise, and the demonstration of contempt for the public’s wishes by little Obama talking points repeaters like Levi ensures that their party tailspins in for at least the next decade.

    Comment by North Dallas Thirty — August 4, 2010 @ 7:14 pm - August 4, 2010

  79. Wow …… Levi has come over from the dark side:

    There is no such thing as religious precedence in this country. What you believe and how long people have believed something similar has no bearing on the affairs of the United States government, and we’re all a lot better off for it.

    So! Levi is against looking outside the Constitution for law. Sure he shoots down Natural Law and the Judeo Christian ethic and English Common Law …… BUT he also pees all over human rights, the Hague, the UN and any other crap like the Kyoto Protocols and looking for Constitutional guidance from abroad.

    LEVI IS THE MAN …… HE IS LEARNING ….. HE IS SEEING THE LIGHT …… THE SUN WILL COME UP TOMORROW.

    Comment by heliotrope — August 4, 2010 @ 7:17 pm - August 4, 2010

  80. This gay Judge has declared that the American people do not have a right to recognize that every life on Earth comes from heterosexuality

    Have one work that destroys that premise – Amoebas!!! :-)

    Comment by Sonicfrog — August 4, 2010 @ 7:18 pm - August 4, 2010

  81. North Dallas Thirty:

    By focusing on procreation – you are relying on a single part of marriage never codified. “Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.”

    Second – “The simple fact of the matter is that biology states that same-sex and opposite-sex marriages are not the same.” On the contrary – Biology states absolutely nothing about marriages – as marriage is defined by society – not the genetics, development, structure, etc of living organisms.

    Comment by Eric — August 4, 2010 @ 7:19 pm - August 4, 2010

  82. [...] first reactions: Check back as I’ll be linking to them as I find them! Gay Patriot Kathryn Jean Lopez: “Recreating fundamental institutions. Instapundit: Beginnings of a [...]

    Pingback by The Anchoress | A First Things Blog — August 4, 2010 @ 7:20 pm - August 4, 2010

  83. (Full disclosure: straight guy, voted against P8 here in California in fall 2008.)

    I’m sort of in the same headspace as Bruce in all this. I’m happy for the people who will now get to wed. I continue to believe that pursuing this through the courts is wrong-headed and short-sighted: particularly in a state like California, where there are expansive civil union laws that already avail GLBT citizens of marriage in everything but name, literally making a federal case out of a semantic distinction demonstrates that this isn’t about substantive equality but rather about social acceptance… which happens to be something that you simply can’t achieve via a court decision. That’s something that has to be won through the long, arduous process of persuasion. I hope that this decision does not backfire, badly, but I fear that it will.

    One further thought: a lot of what torrentprime is saying, how it’s wrong to put the force of law behind majoritarian disapproval of minorities, is really bitchin’ rhetoric. However, for an unfortunately-mammoth segment of the GLBT community (our hosts here being notable and worthy exceptions), that’s all it is. I’m a gun owner, and I get to watch as hypocritical fucknozzles like Tom Ammiano cavalierly eviscerate my rights legislative session after legislative session, with the raucous approval of his GLBT constituents who think guns are icky and gun owners are benighted rednecks. Anti-majoritarian libertarianism isn’t a hat that you can wear when it suits you: if you’re going to demand that people shed their cultural bigotries, you’d better be prepared to shed your own, too.

    Comment by Ballchinian — August 4, 2010 @ 7:27 pm - August 4, 2010

  84. By focusing on procreation – you are relying on a single part of marriage never codified. “Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.”

    First, Walker obviously hasn’t read anything of decisions on laws upholding bans on incestuous marriage — which clearly establish that the state DOES have the power to intervene in regards to the procreative capacity of a marriage.

    Second, Walker contradicts himself because he babbles on about how marriage is important for “families” while making the statement you cited above about how procreation is irrelevant to marriage.

    Third, Walker is engaging in sophistry. The state DOES inquire for reasons of procreation, as we see from the incest example. And it has never needed to before because, simply put, the vast majority of opposite-sex couples CAN and DO procreate.

    Comment by North Dallas Thirty — August 4, 2010 @ 7:29 pm - August 4, 2010

  85. Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse.”

    WRONG! The state absolutely DOES inquire into the procreative possibility by requiring and determining that the union contains one of each of the genders biologically necessary for procreation.

    It is the broadest, least intrusive test possible, but that is all that is necessary. What gays, and this gay judge are essentially arguing is that because SOME heterosexuals junk doesn’t work, that marriage must include people who have the wrong junk to begin with.

    One in a very long line of fallacies.

    Comment by American Elephant — August 4, 2010 @ 7:30 pm - August 4, 2010

  86. over 1% of current births are the result of ART artificial reproductive therapy (the CDC). . . and then we have all those wonderful folk in their golden years who are entering marital bliss without any twinkle in their eyes to produce offspring and a growning number of parents(either through the loss of a partner or divorce) who are entering marital bliss, creating unions without even considering additional children.

    yes reproduction is the uniting of an egg and sperm and the resulting zygote developing in uterus of a female. but reproduction is rarely listed in almost all marital vows. and reproduction is certainly are not a pre-requisite or a required by-product of marriage.

    blended families are no different than any other family. childless unions are not open to the distain of society.

    Comment by rusty — August 4, 2010 @ 7:30 pm - August 4, 2010

  87. First – your example doesn’t contradict Walker’s statement at all. Incest is a case of inquiry into lineage – NOT 1) the capacity for procreation (clearly even incestual relationships have the capacity for procreation) NOR 2) the intent to procreate.

    Second – You state “it has never needed to before because, simply put, the vast majority of opposite-sex couples CAN and DO procreate”

    Well, by your logic Prop 8 is still not “needed” because even with gay marriage, your statement will remain true: “the vast majority of [married couples] CAN and DO procreate” Or are you relying on assigning an arbitrary value to “the vast majority”?

    Comment by Eric — August 4, 2010 @ 7:39 pm - August 4, 2010

  88. Levi,

    Actually it is not wrong. I said the institution of marriage, in this country, was a religious institution before it was a product of the government for tax purposes.

    And you said that the religious institution takes precedent, which it most certainly does not. Sorry, but that is simply wrong.

    I never said anyone was separate but equal. Everyone I believe should be equal under the law, which is why I support Civil Unions for every state. I know plenty of straight couples who do not get married or enter into civil unions. Are they somehow less equal? No. It is your opinion to place a system of hierarchy on the labels.

    Well, that’s fine. I just wanted to know, if ‘marriage’ is for straights, and ‘unions’ are for gays, and they’re both the exact same thing, doesn’t that seem…. I don’t know….. unbelievably silly? I just fail to see any compelling reason for us to call it two different things. Because of religious belief? That’s not good enough. I’m going to marry my girlfriend, and I’m not going to do it to advance the value of the covenant or whatever.

    If you have a problem with the limiting nature of English language to define what you consider your union to be, that is yours to overcome.

    Isn’t the language problem your own? I am honestly curious – do you think that in your civil union scheme, gay people are going to avoid the use of the word marriage when describing their family? Do you think they’re going to avoid saying “We got married on the beach?” or something similar? Is that going to sit well with you?

    It is not just a word to those who are religious, to my family. You want them to respect your view, I would begin with you showing them some respect.

    Well, I’m sorry to tell you, but I couldn’t care less. Your religion is your own business and that’s fine, but don’t expect me to treat you with kid gloves just because you’re part of a belief system. I could tell you that it was my sincerely held religious belief that the entire universe exists in the teardrop of a celestial pink unicorn, and that every night it whispers into my ear that the gays should be allowed to marry, and my religious beliefs would be just as pertinenet to this discussion as yours. That’s the biggest problem with religionl; it’s entirely arbitrary and there couldn’t be a worse way of deciding matters of public policy than dragging people’s private beliefs into it.

    Comment by Levi — August 4, 2010 @ 7:45 pm - August 4, 2010

  89. And American Elephant – I hardly think a “wrong junk” argument would pass legal scrutiny.

    So let me get this clear:

    Prohibition of marriage based on presence or absence of genes that control skin color (SLC24A5, MC1R) is illegal.

    Prohibition of marriage based on presence or absence of genes that control sex differences (SRY, SOX3) is legal.

    Makes perfect sense.

    Comment by Eric — August 4, 2010 @ 7:50 pm - August 4, 2010

  90. ah I’ve not read all the comments, but thought I’d give my thoughts.

    I had a rather romantic image of Prop 8 being repealed in 2012 by popular vote, and I admit I’m a little disappointed that might not happen.

    Selfish romanticism aside, I am worried this may be a really bad time for perceived judicial activism; we seem to be having a Carter-era crisis of confidence in our government right now, and I think waiting six months or so would have made a lot of sense.

    Comment by joeedh — August 4, 2010 @ 7:51 pm - August 4, 2010

  91. Holly,

    The fact that our country is based on Judeo-Christian history and values is lost on Levi, since he’s demonstrated a lack of understanding of linear time, arguing that Fox News deserves some blame for Sherrod’s firing for example.

    In any event, I’ve not seen yourname on the comments before. Welcome, pull up a chair and be welcome.

    Comment by The_Livewire — August 4, 2010 @ 7:52 pm - August 4, 2010

  92. Makes perfect sense.

    Yes, it does!

    Ovaries, a womb, and testes are the REQUISITE equipment for having a baby. That is why there are 6.5 BILLION people on Earth, each and every single one of whom came from a heterosexual relationship, each and every single one of whom have a biological father and a biological mother.

    And precisely NONE of whom come from homosexuality.

    The entire worlds population throughout all of earths history is NOT an inconsequential difference as skin pigmentation is.

    Holy hell, pull yourself together and deal with your demons. penis + penis does not, cannot and can NEVER = baby

    I’m sorry biology conflicts with your self image, but it doesnt make biology wrong, it makes your self image wrong!

    Comment by American Elephant — August 4, 2010 @ 7:58 pm - August 4, 2010

  93. So! Levi is against looking outside the Constitution for law. Sure he shoots down Natural Law and the Judeo Christian ethic and English Common Law …… BUT he also pees all over human rights, the Hague, the UN and any other crap like the Kyoto Protocols and looking for Constitutional guidance from abroad.

    LEVI IS THE MAN …… HE IS LEARNING ….. HE IS SEEING THE LIGHT …… THE SUN WILL COME UP TOMORROW.

    I just don’t care, why should I? You seem to be waiting just around the corner with a shovel so you can shovel a bunch of words into my mouth whenever I make a comment. The funny thing is, I’d originally included a reference to the Magna Carta in anticipation of one of these little outbursts of yours, which I guess I should have left in. But meh, what should I expect?

    Comment by Levi — August 4, 2010 @ 8:11 pm - August 4, 2010

  94. This is a tough issue for me.
    Thrashing the 14th amendment until it yields the opinion you want it to bugs me.
    Plus, personally I find gay marriage distinct from heterosexual marriage due to procreation…
    But then I see my gay friends who want to be married… the more secure ones don’t care all that deeply, but if I was in charge and they asked me if it was OK, I’d give the green light.
    I have two friends who are gay that I would kill for… their happiness means a lot to me. Their relationship has been relatively stable and in my view a benefit to all of society.
    How am I supposed to say no to them?

    Comment by SteveG — August 4, 2010 @ 8:11 pm - August 4, 2010

  95. I really don’t know how you are able to ascertain my “self image” as all of my posts have been arguments grounded in logic not personal revelations. You are the one resorting to ad hominem attacks against me, and I am not quite sure what demons – or wrong self image you are referring.

    While I never claimed that 2 men could conceive a child (I’m a MD/PhD student – I’ve got at least some idea of biology) I do think that your definition of marriage as based on procreation is wrong. And I will gladly debate you on that.

    Comment by Eric — August 4, 2010 @ 8:12 pm - August 4, 2010

  96. To be perfectly honest, I’m really conflicted about this decision…

    This “will of the people” argument has a slippery slope. If it hadn’t been for the Supreme Court decision in 1967, the Will of the People of California could once again decide to prohibit interracial marriage.

    It’s interesting that California permits first-cousin marriage, which is arguably much more dangerous to the health of any potential offspring.

    However, I am indeed conflicted about this. It’s very similar to the wildly divergent feelings I’ d have if my partner came home from work one evening and told me, “Eric, of all your friends, you definitely have the biggest c*ck.”

    See what I mean? :-)

    PS – Sorry about the lapse into smut. Just seemed appropriate.

    Comment by Eric Olsen — August 4, 2010 @ 8:17 pm - August 4, 2010

  97. Bottom line this so called “gay” blog supports prop 8.

    What a bunch of self-loathers, if you people are even gay.

    Comment by David — August 4, 2010 @ 8:18 pm - August 4, 2010

  98. Bottom line this so called “gay” blog supports prop 8. What a bunch of self-loathers, if you people are even gay.

    Well, thanks ever so much for stopping by, David! Pleasure to meet you.

    Now don’t let the door hit you on the ass on your way back to whatever miserable, perpetually-victimized sh*thole you usually go to piss and moan about how sh*tty your life is, mm’kay?

    Toodles! :-)

    Comment by Eric Olsen — August 4, 2010 @ 8:21 pm - August 4, 2010

  99. David, please provide your evidence to show that we are self-loathers. If you check the archives of this blog, you’ll find that we actually opposed Prop 8, even had the icon of Republicans Against 8 on our masthead.

    I trust you’ll apologize for misrepresenting our views.

    Comment by B. Daniel Blatt — August 4, 2010 @ 8:39 pm - August 4, 2010

  100. David -

    Whether or not one supports Prop 8 is not the issue. That was in the past. The discussion now turns to whether Prop 8 is constitutional and all of the issues that the judges decision brings down. It’s more than just “gay marriage – yay or nay.” It brings up all sorts of legal and constitutional issues that could have an effect on other facets of life.

    Sure I might have access to certain government benefits now if I marry my partner. That’s really the only thing the law changes. However, is it worth the federal government trampling on states rights for some measly tax advantages?

    I read the ruling. I’m not a lawyer, but what really bothered me was the vast majority of it was debating the societal advantages and disadvantages of same-sex couples and families instead of referencing the constitution. It’s not really any business of the government to dictate how families and relationships should be set up. That’s why maintain that legal marriage is discriminatory in any form because it allows the government to grant advantages to certain relationships it deems “superior.”

    Comment by Chris H — August 4, 2010 @ 8:41 pm - August 4, 2010

  101. Eric Olsen, but I’m right aren’t I?

    On such an important issue for you gay people, you “conservative gays” work against your own kind and are actively against overturning prop 8 aren’t you?

    Self-loather… tell me where I’m wrong, k?

    Comment by David — August 4, 2010 @ 8:41 pm - August 4, 2010

  102. Here is a summary of Walkers basis for his decision.:

    1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.

    2. California, like every other state, doesn’t require that couples wanting to marry be able to procreate.

    3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

    4. California has eliminated marital obligations based on gender.

    5. Same-sex love and intimacy “are well-documented in human history.”

    6. Sexual orientation is a fundamental characteristic of a human being.

    7. Prop 8 proponents’ “assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”

    8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

    9. California has no interest in reducing the number of gays and lesbians in its population.

    10. “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union.”

    11. “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”

    12. “Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”

    13. “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the
    stability of opposite-sex marriages.”

    Granted, Marc Ambinder, the guy who I stole this summary from, is not a legal scholar. But the list seem in line with other things that I’ve read so far, including this from Orin Kerr, whose opinion on legal and constitutional matters carries a bit more weight than my fellow schlubs here at GB…. Sorry NDT, Sorry Dan :-)

    NDT relies heavily on the inability to biologically procreate to make his case. This ruling exposes the flaws in that argument. Also, keep in mind that the proponents also failed to present compelling evidence to the judge to sway him in that direction.

    2. California, like every other state, doesn’t require that couples wanting to marry be able to procreate.

    In order for the procreation argument to carry legal weight, the defendants would have to show where there is some legal presidents for the idea. They didn’t.

    8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

    Yep. You could site groups like Exodus, but their success rate is very limited at less than 25%, and they have never been able to show that they have “cured” homosexuality, but only curb the behavior resulting from the orientation, not the orientation itself.

    10. “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union.”

    You would then argue that they can’t procreate…. See bullet point # 2.

    12. “Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”

    On page 19 of the opinion, the plaintiffs not only didn’t challenge this assertion, they agreed. It is one of the ways that marriage stays superior to domestic partnerships.

    13. “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”

    The defendant didn’t show how permitting gay marriage would affect married couples in a any way…. because they can’t.

    One last thing about the procreation argument. How many of our straight brothers, sisters and friends who decided to marry said right off the bat “I want to have children, therefore, that is the reason we should marry”. In modern western society, it’s because they love each other, and want a stable family. Very rarely, if ever, do couples get married to have children without love being the first order of business.. Marriage is neither required for procreation, and procreation is not required for marriage.

    Comment by Sonicfrog — August 4, 2010 @ 8:48 pm - August 4, 2010

  103. David

    “You gay people?”
    “Your own kind?”

    First, not all gays share the same opinions or support the same causes, despite what the left likes to portray.

    Proposition 8 should only be overturned by a judge if it’s not constitutional.

    If it is constituional, then Proposition 8 should be overturned at the ballot box. I think a lot of us on this board would fully support overturning it at the ballot box.

    A judge overturning it on what some feel is shaky constutional ground is dangerous and could have far reaching implications that are more damaging than being denied some measly government benefits.

    Comment by Chris H — August 4, 2010 @ 8:49 pm - August 4, 2010

  104. Did the decision touch even briefly on the question of whether CA’s robust domestic-partnership laws provide an adequate remedy for same-sex couples in the absence of SSM law? (It’s long seemed to me that the existence of “everything but the M-word” domestic-partnership registries logically undermine the “hardship” claims made by the anti-Prop8 side.)

    I suppose if Walker failed to address this point, a lot of the blame must lie with the legal team for the Prop8 defenders, who were apparently unwilling to piss off their conservative religious constituents by “endorsing” DP laws — however much that might’ve helped their case.

    Comment by Throbert McGee — August 4, 2010 @ 8:49 pm - August 4, 2010

  105. Ooops, obviously I hadn’t seen SonicFrog’s #102 when I posted my question about whether and how the availability of domestic partnerships for gay Californians factored into the decision!

    Comment by Throbert McGee — August 4, 2010 @ 8:52 pm - August 4, 2010

  106. Throbert, having read the decision, your 2nd ¶ is spot on. Unless Judge Walker dismissed their arguments out of hand. Doesn’t seem they brought in any evidence about sex difference

    Comment by B. Daniel Blatt — August 4, 2010 @ 8:53 pm - August 4, 2010

  107. Chris H, thanks for you thoughtful and measured reply.

    But again, it’s obvious that the only way a minority person is accepted in the conservative Republican fold is to support the interests of white Christian men.

    It seems that you people use a lot of words and digressive talk to try to explain your support of prop 8.

    It’s simple really, your for prop 8 because it’s part of the Republican platform and if you’re against it, you’d be booted from the GOP.

    Comment by David — August 4, 2010 @ 8:53 pm - August 4, 2010

  108. This is about the definition of words. “Marriage” has, since the dawn of the human race, meant a union between a man and a woman.

    There in fact three elements to marriage. Number, gender and broader nature.

    Number is usually two, but you KNOW there are people who will come out of the WOODWORK if this is upheld and agitate for marriage of 3 or more people. If the gender is up for debate, the number will follow shortly. I’ve already heard news stories about this.

    So, it doesn’t have to be a man and a woman. Soon, it won’t have to be ONLY two people.

    And someday, sooner than you think, a man will argue that nobody can prove his dog does NOT want to marry him, and that they love each other, and that marriage isn’t just about sex, etc. And some judge will allow it.

    And the word “marriage” will have completely lost any meaning it ever had.

    This is the first step to that word losing its meaning– as the word “gay” already has lost its meaning.

    Think about it.

    Comment by dave in dallas — August 4, 2010 @ 8:54 pm - August 4, 2010

  109. On such an important issue for you gay people, you “conservative gays” work against your own kind and are actively against overturning prop 8 aren’t you?

    A) I have no notion of “my kind,” save for my family.
    B) I neither need, nor will I ever request, the federal government to sanction any part of my life.
    C) If I begin to look to the courts to disregard the will of the people as demonstrated by laws passed by our representative government, then why do we even bother passing laws?

    I’m frankly sick and tired of liberals coming here and tossing this “self-loather” bullshit around as carelessly as flatulence. Like “RAAA-CIST!!!!,” many of you have neglected to remember the very real horror and tragedy behind those terms in favor of trying to score points in some largely meaningless online pissing contest. You may as well accuse me of secretly lusting after Miss August, for all your unfounded accusations are now worth.

    Comment by Eric Olsen — August 4, 2010 @ 8:54 pm - August 4, 2010

  110. But again, it’s obvious that the only way a minority person is accepted in the conservative Republican fold is to support the interests of white Christian men.

    Do yourself a favor, David: either back that ridiculously infantile assertion up with fact, or go find some other room to throw you feces around in.

    It seems that you people use a lot of words and digressive talk to try to explain your support of prop 8.

    Yeah, that whole “reading dissenting arguments” is a real pain the ass, huh?

    It’s simple really, your for prop 8 because it’s part of the Republican platform and if you’re against it, you’d be booted from the GOP.

    Thanks for the look inside my head, you presumptuous troll.

    Comment by Eric Olsen — August 4, 2010 @ 8:58 pm - August 4, 2010

  111. Chris H,

    “You gay people?”
    “Your own kind?”

    Yes that’s right, I’m a straight person I’m not part of your demographic pal.

    But that’s funny, you are so political correct yet you support the civil rights dicrinmation that is prop 8.

    The rest of your post, “blah, blah, blah as a right-winger I support the fears and concerns of white Christian men.”

    Comment by David — August 4, 2010 @ 9:01 pm - August 4, 2010

  112. The “monkey throwing the feces” line.

    I’ve seen that before when right-wingers can’t address the salient point’

    If it means towing the party line, gay, straight, Black, Latino it doesn’t matter you’re just shills for white conservative Christian men… the GOP.

    Comment by David — August 4, 2010 @ 9:05 pm - August 4, 2010

  113. You should be able to marry whomever you want. You shouldn’t be able to rewrite the Constitution at your whim. This judge needs to be tried for treason. .

    Comment by RM — August 4, 2010 @ 9:14 pm - August 4, 2010

  114. Really what even the point in highlight that this is a “gay blog” when you’re just a bunch of blind partisan advocates for white Christian men, the Republican party.

    “American gay conservatives” gay, straight whatever I can’t imagine a bunch of ideologues more gay unfriendly who act the disinterest of gay people and civil rights.

    And by the why according to your right-wing brethren you people CHOOSE to be gay, is that correct?

    So please tell me, I’m confused were you born gay or is it a “lifestyle” choice?

    Comment by David — August 4, 2010 @ 9:18 pm - August 4, 2010

  115. It’s interesting that California permits first-cousin marriage, which is arguably much more dangerous to the health of any potential offspring.

    Eric, I apologize for picking on you, but this statement shows the utter delusion that is at the core of the argument that there could possibly be any constitutional right to gay marriage.

    You see, there is NO SUCH THING as “potential offspring” with a gay couple. gays cannot create offspring with eachother. they can only create offspring like everyone else in the world, with a member of the opposite sex. Which is precisely WHY marriage exists — because procreation happens EXCLUSIVELY between members of the opposite sex.

    Comment by American Elephant — August 4, 2010 @ 9:19 pm - August 4, 2010

  116. “Which is precisely WHY marriage exists — because procreation happens EXCLUSIVELY between members of the opposite sex.”

    Hilarious, so straight couples who have zero interest in having children should not be allowed to marry?

    Are you seriously making that argument?

    Comment by David — August 4, 2010 @ 9:24 pm - August 4, 2010

  117. Yup, he does, then he becomes sloppy, real sloppy, “The evidence shows that the movement from marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an understanding of gender rather than a change of marriage.” Say what? State-mandated gender roles? You mean the discredited notions of the social construction of marriage.

    Dan, you got real sloppy on this one. Go to page 112, line 11. He explain exactly what it means, the evolution of the role of women in marriage, from being totally subservient, to the modern role, where both sexes are in effect, equal. Quote:

    “As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. Marriage was thus transformed male-dominated institution into an institution recognizing men and women as equals”.

    [Did they eliminate those laws by judicial fiat or through legislative deliberation? That said, I think it’s still sloppy because he tries to explain away what has been at the heart of the institution for as long as we have historical records of it–sexual difference. –Dan]

    Comment by Sonicfrog — August 4, 2010 @ 9:26 pm - August 4, 2010

  118. David, please provide evidence to back up your points of how we’d be booted from the GOP if we opposed Prop 8. And also, please stop misrepresenting our views.

    Just because I believe Prop 8 to be constitutional doesn’t mean I support it. I think Keith Olbermann has a constitutional right to blather on and on in a mean-spirited and dishonest fashion, but don’t agree with the angry man.

    Comment by B. Daniel Blatt — August 4, 2010 @ 9:27 pm - August 4, 2010

  119. Did they eliminate those laws by judicial fiat or through legislative deliberation?

    That doesn’t matter. The laws are gone, changed, and no one disputes this or challenges it and wants them reinforced. It was the job of the defendants to make that case. They failed to do so.

    Comment by Sonicfrog — August 4, 2010 @ 9:41 pm - August 4, 2010

  120. Oops. The defendants didn’t make the case as to why sexual difference make a difference in this case. It was their job, and they didn’t do it.

    Comment by Sonicfrog — August 4, 2010 @ 9:43 pm - August 4, 2010

  121. Fair point about the defendants’ failure; but that doesn’t excuse the judge from making sweeping assumptions about sex difference, most of which he gets wrong.

    Dale Carpenter, more supportive of gay marriage than I, thinks the opinion all but invites repeal because of what he terms its maximalism.

    Comment by B. Daniel Blatt — August 4, 2010 @ 9:44 pm - August 4, 2010

  122. I’d like to ask you “gay conservatives” a question.

    Why do you choose to be gay?

    According to your fellow conservatives, being gay is a “lifestyle” choice and has nothing to do with biology.

    Wouldn’t you feel better as conservatives to be straight?

    Certainly you would be accepted by fellow conservatives who think that gay people are freaks choosing a sinful “lifestyle.”

    Do you “gay conservatives” really think that you have any legitimacy as conservatives, “choosing” to be gay?

    I’m looking forward to your thoughtful answer.

    Comment by David — August 4, 2010 @ 9:45 pm - August 4, 2010

  123. StevenN responding to Maggie Gallagher at sfgate

    The founding fathers also didn’t see women as having the right to vote, didn’t see a problem with human beings being held as slaves, didn’t make any laws about child labor, etc. The nature of human civilization is change. To quote a great thinker, all change goes through 3 phases; First it is ridiculed, then it is violently opposed. Finally, it is accepted as self evident. One day we will cringe at the idea that “big government” was ever allowed to dictate that some Americans can marry the consenting adult they love, and others can’t. No matter how much they try to dress up their intolerance and inability to accept differences in other Americans, some people are just on the wrong side of history. Time will tell. Maybe not now, but time will surely tell.

    Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/04/EDEO1EOV7G.DTL#ixzz0vgwquNc1

    Comment by rusty — August 4, 2010 @ 9:45 pm - August 4, 2010

  124. Hilarious, so straight couples who have zero interest in having children should not be allowed to marry?

    Are you seriously making that argument?

    No, because, Brainiac, children are the RESULT of heterosexuality whether they were intended or not.

    God gave you a brain, please at least attempt to use it.

    Comment by American Elephant — August 4, 2010 @ 9:54 pm - August 4, 2010

  125. Rusty, great points but your waste your time talking to a people that stubbornly “choose to be gay” lol.

    Right-wing Republicans say being gay is a “lifestyle choice” not deserving of civil rights don’t you know.

    Comment by David — August 4, 2010 @ 9:56 pm - August 4, 2010

  126. David, your ignorance knows no limits does it! You have just proven you are FAR more guilty of the hate, intolerance, and stereotyping that you accuse conservatives of. I dont know ANY conservatives who fit the ignorant caricature you have drawn.

    Let go of your hate and accept that you are different. Accept that you do not have a womb and your partner does not have ovaries. Only when you accept yourself for what you are can you even BEGIN to claim to like, let alone love yourself. Right now you are DEEP in delusional denial and self loathing.

    Comment by American Elephant — August 4, 2010 @ 9:59 pm - August 4, 2010

  127. David, seems we waste our time in trying to engage folks like you. You persistently misrepresent our views, refuse to address our comments and repeatedly pose questions to us based upon strange — and inaccurate — theories of our views.

    Comment by B. Daniel Blatt — August 4, 2010 @ 10:00 pm - August 4, 2010

  128. “Which is precisely WHY marriage exists — because procreation happens EXCLUSIVELY between members of the opposite sex.”

    Let me ask you again, should staight couples who do not want to procrate be allowed to marry?

    Btw, American Elephant, why do you choose to be gay?

    Don’t you know according to your fellow conservatives you’ve chosen a sinful “lifestyle”?

    “Gay conservative” is little more than an oxymoron for Republican.

    I ask you know in the name of the Flying Spaghetti Monster to renounce you sinful gayness lifestyle.

    Comment by David — August 4, 2010 @ 10:02 pm - August 4, 2010

  129. First – your example doesn’t contradict Walker’s statement at all. Incest is a case of inquiry into lineage – NOT 1) the capacity for procreation (clearly even incestual relationships have the capacity for procreation) NOR 2) the intent to procreate.

    And why does the state inquire into lineage?

    Because there is biological proof that procreation between close relatives carries potential for damage to the offspring.

    Notice the key points there. The state bans marriage between blood relatives because of the potential for damage to offspring — which is a direct assumption that a union will be procreative.

    This is how you undo Walker’s idiocy. Force him to explain how bans that are rooted in procreative effect are enforceable in his new world where he insists procreation has nothing to do with marriage.

    Comment by North Dallas Thirty — August 4, 2010 @ 10:02 pm - August 4, 2010

  130. Let me ask you again, should staight couples who do not want to procrate be allowed to marry?

    Yup.

    Because there are way, way, WAY too many accidental babies out there to make it beyond the realm of possibility that they will produce one.

    Gay-sex couples? Never happens. No gay-sex couple has ever managed to produce a baby. Can’t happen. Biologically impossible.

    That’s the big difference that David can’t understand. Moreover, it makes him a hypocrite, since Federal law says clearly that you can discriminate on the basis of sex in things like awarding Federal contracts, affirmative action, and so forth.

    Comment by North Dallas Thirty — August 4, 2010 @ 10:05 pm - August 4, 2010

  131. North Dallas Thirty, why do you continue to choose to be gay?

    Seriously, a guy like you needs to stop any pretext of being gay.

    What’s the point of choosing to be a gay conservative when you’re no different that a straight conservative (except for you sinful lifestyle choice).

    Comment by David — August 4, 2010 @ 10:10 pm - August 4, 2010

  132. North Dallas Thirty, why do you continue to choose to be gay?

    Because, David, that is what I prefer to do, and I accept it as a choice I have made, with all the resulting consequences.

    “Bishop” Gene Robinson, Jim McGreevey, and other heroes of the gay and lesbian community demonstrate perfectly well that so-called “gays and lesbians” are able to form loving relationships with, marry, have sex with, and produce offspring with members of the opposite sex. They simply choose to have sex with men instead.

    You don’t understand that because gay-sex liberals like yourself do not take responsibility. You believe that the place of government is to protect you from any and all consequences of your decisions.

    That is what this is about. Society does not have to ratify every decision that people make. Society does not have to grant marriage to every single sexual coupling out there. You don’t understand this concept, primarily because you and your fellow gay-sex liberals are actively agitating to have your promiscuous relationships legalized.

    Comment by North Dallas Thirty — August 4, 2010 @ 10:24 pm - August 4, 2010

  133. Moreover, David, why do you support having sex with and marrying children?

    Because you and yours say that everyone should be able to have sex with and marry whatever they want.

    You and yours have stated that it is wrong to in any way ban or otherwise regulate marriage and that society must accept and grant full privileges to every sexual coupling.

    Isn’t that correct?

    Comment by North Dallas Thirty — August 4, 2010 @ 10:26 pm - August 4, 2010

  134. Why do you choose to be gay?

    Because the sincere love of a man for another man can be emotionally rewarding and spiritually enriching, and adding mutual sexual interest to the equation does not automagically negate the value of the love, but in fact can enhance it.

    (At least, that’s what I’d say if the Reincarnation Angel offered me a choice, in the hereafter, to be gay again.)

    Comment by Throbert McGee — August 4, 2010 @ 10:34 pm - August 4, 2010

  135. Let me ask you again, should staight couples who do not want to procrate be allowed to marry?

    Of course. Heterosexual couples who don’t think they want children, like my sister and her husband, get pregnant ANYWAY, and decide they were wrong.

    You are trying to argue that because some people dont drive their cars very often, or that some cars break down occasionally, that pedestrians therefore have a constitutional right to use the freeway.

    It’s unabashed idiocy.

    Btw, American Elephant, why do you choose to be gay?

    I don’t. Never claimed I did. What’s your next irrelevant, idiotic argument?

    Don’t you know according to your fellow conservatives you’ve chosen a sinful “lifestyle”?

    A great many of them believe homosexuality is sinful. Which is again utterly irrelevant because it doesnt change the SCIENTIFIC, not religious, but SCIENTIFIC fact that homosexuality is categorically incapable of reproduction.

    “Gay conservative” is little more than an oxymoron for Republican.

    You apparently also dont understand the meaning of the word “oxymoron”. You should consider looking up big words before you use them.

    I ask you know in the name of the Flying Spaghetti Monster to renounce you sinful gayness lifestyle.

    Once again you are trying to blame religion for the fact that YOU are in deep denial of basic biological facts. EVERY human life on Earth has been the result of heterosexuality and in all of human history NO homosexual couple has ever, can ever, or will ever reproduce without engaging in some form of heterosexuality with an outsider of the opposite sex. That means gay and straight relationships are NOT equal, but have VASTLY, fundamentally, consequentially different value to society. You’re here, you’re queer, get used to it!

    Comment by American Elephant — August 4, 2010 @ 10:40 pm - August 4, 2010

  136. In 200 the people of California voted in favor of Proposition 22 61% to 39%. In March 2008 (I believe) the California Supreme Court ruled that a ban on same-sex marriage was unconstitutional which in effected lifted the ban. On November 4, 2008 the people of California again vote in favor of ban on same-sex marriage 52% to 48%. The California Supreme Court upheld the will of the people, even though some may have still believed the ban was unconstitutional. They decided to here the cases of two homosexual couples you believed that their civil rights have been violated. Today they rules that the ban was indeed unconstitutional (again). You know what I don’t understand , is if why did they even bother to have the people vote on it if ever time they are going to rule that a ban on same sex marriage is unconstitutional.

    Comment by MV — August 4, 2010 @ 10:41 pm - August 4, 2010

  137. Can someone point to me in the US Constitution where there is a “right” to marriage — man & woman or otherwise?

    Can somebody point to me in the US Constitution where there is a right to breathe oxygen or drink water? Anywhere?

    Anywhere?

    The Constitution does not limit rights or enumerate ALL rights. Marriage was expressly affirmed as a fundamental HUMAN RIGHT in Loving V Virginia. Some things really should be a little too damned obvious to have to put in our founding legal documents (like breathing air and getting married or getting an education sufficient to function at a minimal level in society), but I guess not.

    Comment by celticdragonchick — August 4, 2010 @ 10:44 pm - August 4, 2010

  138. “North Dallas Thirty, why do you continue to choose to be gay?”

    ND responds: Because, David, that is what I prefer to do, and I accept it as a choice I have made, with all the resulting consequences.

    what are the resulting consequences ND30? Did your husbear leave you? Your fascinating site is no longer active.

    Comment by Brendan — August 4, 2010 @ 10:48 pm - August 4, 2010

  139. This comment is for David -
    Unless you’re willing to have a serious dialogue, please quit all your self-righteous comments about how much more awesome you are than the gay conservatives here.

    Just so you know, I’m a raging liberal who was always opposed to Prop 8 and glad for this ruling. I’m probably much more on your side than you realize. But my partner is a gay conservative and he had a very different take on the whole Prop 8 thing (we haven’t had a chance to talk specifically about this ruling yet)

    The fact of the matter is that I used to think like you, that all gay conservatives were self-loathing self-hating people. But after many, many long discussions with my partner, I understand their side much better. Granted I don’t agree with a lot of it, but I do understand it. Whether you think so or not, there is a coherent philosophy and viewpoint behind it, and it has very little to do with self-loathing and gay being a “lifestyle”. It has much more to do with the role of the government and legislative action vs. judicial rulings.

    There are many, many comments here I don’t agree with, but I’m really enjoying reading people’s thoughts, disagreements, and discussions about this. But you’re bringing in a very childish immature attitude. Please knock it off and start acting and discussing like an adult. Thanks!

    Comment by Alan — August 4, 2010 @ 10:49 pm - August 4, 2010

  140. thanks for chiming in, Alan.

    Comment by B. Daniel Blatt — August 4, 2010 @ 10:52 pm - August 4, 2010

  141. @ Eric

    C) If I begin to look to the courts to disregard the will of the people as demonstrated by laws passed by our representative government, then why do we even bother passing laws?

    Maybe because sometimes the people screw up really, really badly? Do you think for one minute that gun owners are interested in the will of the people if that will means turning in all their firearms to the state…like majority votes in several cities have made the case? Not this little grey duck. I don’t give a shit if all my neighbors want me to turn my guns in…or vote to divorce me from my spouse. Not happening. (I am a transgendered woman still married to my wife)

    Sorry, but I’m not buying that whole “sacred will of the people” thing. Sometimes the people get it right, and sometimes they don’t. That is why we have courts and a Bill of Rights to protect us…kinda like Germany could have used in 1932.

    Comment by celticdragonchick — August 4, 2010 @ 10:54 pm - August 4, 2010

  142. This is how you undo Walker’s idiocy. Force him to explain how bans that are rooted in procreative effect are enforceable in his new world where he insists procreation has nothing to do with marriage.

    Of course, the problem with this line of argument is that not only does it take a lot of inbreeding over generations to do harm (science) but, since, as you point out, gays CAN”T EVEN HAVE KIDS, then this argument to prevent gays from marrying is moot, isn’t it? It actually can be used to support SSM, which is almost certainly why the defendants did not bring it up at all in this trial.

    Comment by Sonicfrog — August 4, 2010 @ 11:07 pm - August 4, 2010

  143. American Elephant – maybe you should stop yelling about the idiocy of others arguments and start strengthening your own.

    For example – your statement: ‘You are trying to argue that because some people dont drive their cars very often, or that some cars break down occasionally, that pedestrians therefore have a constitutional right to use the freeway.

    This is not an appropriate analogy for many reasons, most notably because pedestrians on a freeway infringe on the proper use of the freeway by drivers.

    Gay marriage on the other hand does not inhibit any way straight couples who would like to be married, or those that already are married.

    At the heart of your argument is the premise that procreation is a defining factor of marriage. I can maybe grant you that, from a religious or historical context that is an appropriate foundation for your argument. But from a legal perspective, this procreational foundation is never codified. In fact, state recognized marriage is nothing more than an elaborate social contract between two adults.

    It seems not “idiocy” that others don’t reach the same conclusion. They are simply operating from a different framework. You can yell your assumption that procreation is the basis for a state recognized marriage all you want. But logically, without your assumption of procreation as a predicate for marriage, your entire argument falls apart.

    Comment by Eric — August 4, 2010 @ 11:14 pm - August 4, 2010

  144. Oh – and just to clarify for others – Eric (myself) and Eric Olsen are different people. Maybe I need to come up with a more clever name.

    Comment by Eric — August 4, 2010 @ 11:16 pm - August 4, 2010

  145. Wow! The comments on this post are GREAT! And I’m glad to see so many that reflect my own views. I especially like the comment from Holly (?) to the effect that bisexuals should be allowed to marry both sexes, if SSM is all about equallity and sexuality not being a “behavior”. That was a great point which had never occurred to me. I will definitely remember it, though I know it will have little to no impact on pro-SSM fanatics.

    Comment by Seane-Anna — August 4, 2010 @ 11:23 pm - August 4, 2010

  146. Oh, and a GAY judge ruling in favor of SSM. Nobody saw that coming!

    Comment by Seane-Anna — August 4, 2010 @ 11:24 pm - August 4, 2010

  147. Tough call. I’m only 63 pages into the decision. If what is written holds true, the proponents of Prop 8 did an excellent job…of portraying the bigotry behind their campaign.

    While the defendants couldn’t accurately demonstrate a good reason to define marriage as between a man and woman and not to include same-sex couples, the plaintiffs were able to demonstrate who such a defnition creates a state a of separate but not-so-equal.

    It all comes down to who makes a better argument in court. Clearly one side did, the other didn’t.

    Comment by James — August 4, 2010 @ 11:29 pm - August 4, 2010

  148. One more thing. Will you supporters of SSM PLEASE stop comparing your “plight” to that of the fight for interracial marriage? In the Loving case, the Supreme Court did rule that marriage was a fundamental right but it did so with the understanding that marriage meant one man with one woman. THAT was the “institution” that the Supreme Court said people had a fundamental right to. The Supreme Court did NOT change the definition of marriage in Loving; rather, it ruled that the one man and woman who could enter into the relationship couldn’t be restricted on the basis of race. Stop trying to claim redefinitions of marriage where none exist just to bolster your cause.

    Comment by Seane-Anna — August 4, 2010 @ 11:31 pm - August 4, 2010

  149. [...] the GayPatriot blog reports, and I have no reason to question his analysis, since he’s “the most reliably [...]

    Pingback by Southern Appeal » Federal Judge Overturns Proposition 8 — August 4, 2010 @ 11:56 pm - August 4, 2010

  150. James, at page 63, I too liked the decision. It’s his constitutional reasoning I found shoddy!

    Comment by B. Daniel Blatt — August 5, 2010 @ 12:00 am - August 5, 2010

  151. American Elephant – maybe you should stop yelling about the idiocy of others arguments and start strengthening your own.

    Mine don’t need any strengthening, they are rock solid, and upheld by the Supreme Court. The arguments that SSM is a right, are, on the other hand, ignorant, illogical and/or tyrannical.

    Gay marriage on the other hand does not inhibit any way straight couples who would like to be married, or those that already are married.

    It doesn’t need to. It inhibits the God-given, Constitutionally protected right of the people to define their own institutions. And more over, it harms and undermines society in general by necessarily changing the institution from one that exists to deal with the the enormously consequential phenomenon of reproduction, and by definition removes that good and right focus and puts it instead on the feelings and welfare of adults without regard to what is best for children. Moreover, it usurps the people’s right to define what their institutions exist for in the first place. The very idea that a court could even think itself empowered to change the purpose of the institution is itself unconstitutional and tyrannical.

    But from a legal perspective, this procreational foundation is never codified

    You haven’t the FAINTEST clue what you are talking about.

    See Baker v. Nelson, Andersen v Sims, Hernandez v Robles, etc, etc, etc

    You see, I am actually aware of the fact that my definition of marriage IS the one codified into law because unlike you I actually bothered to figure out what the hell I was talking about BEFORE I formed my opinion, instead of forming an opinion, then desperately scrambling for facts to support it.

    It seems not “idiocy” that others don’t reach the same conclusion. They are simply operating from a different framework

    Yes, an extra-Constitutional and tyrannical one.

    But logically, without your assumption of procreation as a predicate for marriage, your entire argument falls apart.

    No, actually it doesnt. Because even if I were wrong about the documented, demonstrable, codified definition of marriage — which I am not — the Constitution of the United States STILL reserves the right to define such institutions to the elected legislative branch where they rightfully belong and STILL prohibits the courts from usurping that power.

    Please go back to the drawing board. You are in over your head.

    Comment by American Elephant — August 5, 2010 @ 12:00 am - August 5, 2010

  152. @148 –
    Seane – The comparison has to do with the inability to marry the person you love. When looked at from that angle, it certainly appears to be a similar battle.

    The fact is that blacks were trying to redefine marriage. The understanding at the time was that marriage meant one white man to one white woman (or black man to black woman). They wanted to change the definition to any man to any woman. Similarly, gays are trying to redefine marriage to be any consenting adult to any other consenting adult (standard exceptions such as close relatives notwithstanding).

    In my opinion, in both cases the redefinition is a good thing….

    Comment by Alan — August 5, 2010 @ 12:05 am - August 5, 2010

  153. “Will you supporters of SSM PLEASE stop comparing your “plight” to that of the fight for interracial marriage?”

    Yes it is a damn plight when two people are told by right-wing theocrats that they can’t marry.

    This is a civil-rights issue, PERIOD.

    Even a straight man like me can understand that.

    But whatever you’re a bigot so you’ll never understand.

    Look up “bigotry” it doesn’t have to apply to race alone.

    You “gay conservatives” are no different than straight right-wing Christian theocrats (except that they reject you and your “sinful” lifestyle “choice”).

    And Eric @ 11:14 pm – August 4, 2010,

    “You can yell your assumption that procreation is the basis for a state recognized marriage all you want. But logically, without your assumption of procreation as a predicate for marriage, your entire argument falls apart.”

    Bingo!

    Comment by David — August 5, 2010 @ 12:10 am - August 5, 2010

  154. For example – your statement: ‘You are trying to argue that because some people dont drive their cars very often, or that some cars break down occasionally, that pedestrians therefore have a constitutional right to use the freeway.

    This is not an appropriate analogy for many reasons, most notably because pedestrians on a freeway infringe on the proper use of the freeway by drivers.

    Actually, it is a perfectly apt analogy.

    You see, pedestrians pay taxes just like everyone else, and should thus have equal right to use the road.

    The idea that the roads should be limited to cars is just an old-fashioned tradition with no basis in today’s society. The definition of transportation has changed to cover many different things other than cars. Allowing pedestrians to use the interstate will improve society by giving people more reason to exercise. Your unwillingness to accept these different modes of transportation and demand that only drivers have the right to use the road is discriminatory and based on your personal animus. Your inability to accept other peoples’ choice of transportation as meaningful to them makes you a bigot.

    Do you now start to understand how this works? When there is no right and wrong, up and down, backwards and forwards, you can literally come up with relativistic meanings for anything.

    Gay marriage on the other hand does not inhibit any way straight couples who would like to be married, or those that already are married.

    Nor does bestial marriage, nor does child marriage, nor does plural marriage, nor does incestuous marriage. Indeed, allowing all of these to take place would increase “freedom” and “equality” and be more in line with respecting the “fundamental right” to marry with whatever you can form a “meaningful” relationship.

    Seriously. How does allowing incestuous individuals to marry harm your relationship?

    Comment by North Dallas Thirty — August 5, 2010 @ 12:10 am - August 5, 2010

  155. Oh, and a GAY judge ruling in favor of SSM. Nobody saw that coming!

    …. And a straight judge, if he or she ruled in favor of the defendant, would have the same criticism from you, no???? If we are going to use sexual orientation as the bias, then you would have to find an asexual judge to try the case.

    Comment by Sonicfrog — August 5, 2010 @ 12:11 am - August 5, 2010

  156. Yes it is a damn plight when two people are told by right-wing theocrats that they can’t marry.

    So you’re going to support the repeal of laws banning child marriage, incestuous marriage, plural marriage, and so forth?

    Also, since you insist that gender doesn’t exist, you will support the removal of affirmative action laws and other things that give preferential treatment based on gender?

    Comment by North Dallas Thirty — August 5, 2010 @ 12:13 am - August 5, 2010

  157. Ahem… David (#153)… I’ll ask again:

    Can someone point to me in the US Constitution where there is a “right” to marriage — man & woman or otherwise?

    Is marriage an “unalienable right” which has been endowed to us by our Creator? (Declaration of Independence)

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 12:17 am - August 5, 2010

  158. Actually, Alan, blacks weren’t trying to redefine marriage, but overturn a law which attempted to do that. “Miscegenation” laws were a statutory creation. The historical (and literary, see, e.g., Othello) record is full of marriages between individuals of different races.

    It is, however, not full of marriages between individuals of the same-sex, but replete with same-sex relationships, albeit defined in different terms.

    Comment by B. Daniel Blatt — August 5, 2010 @ 12:18 am - August 5, 2010

  159. Of course, the problem with this line of argument is that not only does it take a lot of inbreeding over generations to do harm (science) but, since, as you point out, gays CAN”T EVEN HAVE KIDS, then this argument to prevent gays from marrying is moot, isn’t it?

    Not really.

    The prohibition on incestuous marriage exists because of the presumption of procreation — that two people who marry, sometimes with full intention, sometimes with no intention, and quite often with no intention, end up producing children, and that the outcome of two blood relatives doing so is not likely to be a happy outcome.

    That establishes quite nicely that procreation is an assumption within marriage. And furthermore, the fact that marriage is beneficial for and supports procreation is inadvertently supported by those confused gays and lesbians who whine that marriage has nothing to do with procreation or childraising, but that a lack of it is harming their children.

    Comment by North Dallas Thirty — August 5, 2010 @ 12:20 am - August 5, 2010

  160. Levi said: I just don’t understand how this separate but equal system is supposed to work, especially the crux of the issue is groups of religious die-hards wanting to play word police.

    This kind of moral relativism of equating a gay luxury item to what African-Americans went through from the 1600s to the 1970s is completely disgusting to me.

    I completely reject the comparison and believe that it cheapens the REAL Civil Rights Movement and the struggle for REAL equality.

    Go to a food counter tomorrow and see if you are turned away.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 12:23 am - August 5, 2010

  161. While this dialogue is on the one hand great… it is on the other hand very sad.

    Sad that our liberal friends are so ignorant about American History and its Founding Principles.

    Publik skools strike agin.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 12:24 am - August 5, 2010

  162. The fact is that blacks were trying to redefine marriage. The understanding at the time was that marriage meant one white man to one white woman (or black man to black woman). They wanted to change the definition to any man to any woman. Similarly, gays are trying to redefine marriage to be any consenting adult to any other consenting adult (standard exceptions such as close relatives notwithstanding).

    Which emphasizes the hilarity of both decisions.

    “Equal protection” is apparently not equal, since there are “exceptions” — clearly ones based solely on societal animus against people with different sexual desires.

    Loving hinged on the fact that “race” as a concept, aside from being severely limited by the three Reconstruction amendments (13, 14, 15), was not something that could be definitively determined as related to biology. Indeed, the decision goes into detail as to how innumerable different standards existed for who was a member of what “race”, and how a person could be of a different “race” depending on each state’s definition.

    Walker tried this line of reasoning, and only made himself look like a fool. He tried to argue that “gender roles” had changed, and therefore gender was irrelevant to marriage. He seems to be ignoring the fact that, no matter how many times he dresses like Betty Crocker, cooks and cleans, and waits at home for his “man” to come back, he ain’t going to get pregnant.

    Marriage exists as a response to a basic fact of nature, namely man + woman = baby. Walker’s own desperation to ignore that fact comes out in the portion of the decision where he whines about opposite-sex unions being “superior”. Well, in terms of sustaining society, the main thing with which a government should be concerned, they are.

    Comment by North Dallas Thirty — August 5, 2010 @ 12:28 am - August 5, 2010

  163. David (#97) — By your rationale, your own ignorance and contempt of the Founding Principles and Documents of the USA make you a Self-Loathing American, no?

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 12:28 am - August 5, 2010

  164. American Elephant, why do you need to insult people like Eric who are perfectly civil towards you?

    You know you can present your arguments without being an arrogant ass. Or it the veil of anonymity that gives you so much bravado? Because I guarantee you don’t talk like that in real life.

    Btw, do you seriously think that the judicial branch is there to protect the rights of the majority?

    “The arguments that SSM is a right, are, on the other hand, ignorant, illogical and/or tyrannical.”

    It’s ignorant, illogical and/or tyrannical in America to deny the civil rights to any class of people.

    Real conservatives have no problem with SSM, however it’s the right-wing theocrats that have hijacked the conservative voice.

    “Civil and political rights are a class of rights and freedoms that protect individuals from unwarranted action by government and private organizations and individuals and ensure one’s ability to participate in the civil and political life of the state without discrimination or repression.”

    http://en.wikipedia.org/wiki/Civil_and_political_rights

    Comment by David — August 5, 2010 @ 12:33 am - August 5, 2010

  165. The Constitution does not limit rights or enumerate ALL rights. Marriage was expressly affirmed as a fundamental HUMAN RIGHT in Loving V Virginia.

    If it’s a fundamental human right, it can’t be denied to anyone.

    So when are you pushing the courts to strike down bans on incestuous, bestial, child, and plural marriage? After all, the Fourteenth Amendment only says “people”, without any mention of age, number, blood relationship, or species.

    Do you think for one minute that gun owners are interested in the will of the people if that will means turning in all their firearms to the state…like majority votes in several cities have made the case?

    Probably not, but given that there is a specific constitutional amendment preventing those sort of laws from being enforced, it’s not a huge worry.

    Which makes this next statement hilarious.

    That is why we have courts and a Bill of Rights to protect us…kinda like Germany could have used in 1932.

    So when the courts overturn that constitutional amendment as you are supporting, will you shut up and give up your guns then?

    That’s what you’re not getting here. A court struck down a voter-approved change to fundamental law. That is overreach of epic proportions, especially since it applied to a law dealing with a topic that a) is NOWHERE mentioned in the Constitution, and b) in direct contradiction to a decision the previous week that gave the states absolute power over that topic.

    Comment by North Dallas Thirty — August 5, 2010 @ 12:33 am - August 5, 2010

  166. It’s ignorant, illogical and/or tyrannical in America to deny the civil rights to any class of people.

    So pedophiles must be given marriage rights, according to David.

    And also, since government funding is a “civil right”, according to David, religious institutions and religious groups must now be guaranteed government funding.

    Funny how David always runs away and refuses to answer when you point out the inanity of his arguments.

    Comment by North Dallas Thirty — August 5, 2010 @ 12:35 am - August 5, 2010

  167. Where’s the signup sheet for the official Holly fanclub? I wanna be a member!

    Based on comment #102, #4 of Ambinder’s synopsis: “4. California has eliminated marital obligations based on gender.” Judge Walker, as a Federal judge, has never been inside divorce court or a child custody hearing, or dealt with financial support. Gender is BOSS in those courts. Judge Walker’s use of the argument that there are no court-recognised difference between genders is incorrect.

    I would like to see Judge Walker’s unsurprising decision become the catalyst for judicial reform. What he decided will become immaterial as the notion that a judge, on his own volition, can negate the will of the majority without accountability in any form. Why hold elections, referendums, plebiscites (sp?) or even bother with opinion polling if a single judge somewhere holds a contrary view? It reminds me of the aftermath of the Kelo decision. Judical fiat is anarchy.

    I’m not seeing this event through the prism of hetero- versus homosexual marriage, but through the prism of social acceptance which is what SSM is pretty much about. My rhetorical question in closing is ‘How can any society accept a minority group when the minority uses authority that can not be held to account, e.g. courts, to get its own way?’

    Comment by DaveOnotinSF — August 5, 2010 @ 12:35 am - August 5, 2010

  168. @ Gay Patriot

    Ahem… David (#153)… I’ll ask again:
    Can someone point to me in the US Constitution where there is a “right” to marriage — man & woman or otherwise?

    And I ask again as well:

    Can somebody point to me in the US Constitution where there is a right to breathe oxygen or drink water? Anywhere?

    Clue for you: The SCOTUS has recognized marriage as a fundamental human right on 14 occasions, including Loving V Virginia. The Constitution does not pretend to enumerate every fundamental right(hence the 10th amandment), and you should be aware that our Founding fathers believed that rights are derived from Nature or Divine Providence, and not the whims of the State or the Crown(otherwise, we would never have had a right to rebel in the first place). Your attempt to limit ‘rights’ to the handful enumerated in the Constitution is utterly falacious and would be mocked by Hamilton, Jefferson and Adams were they here to read your question

    Comment by celticdragonchick — August 5, 2010 @ 12:45 am - August 5, 2010

  169. @North Dallas 30

    So pedophiles must be given marriage rights, according to David.

    There has never been an intrinsic right to harm other people, especially as it regards the sexual exploitation of minors incapable of giving consent or enter into legal contracts.

    Try again.

    Comment by celticdragonchick — August 5, 2010 @ 12:47 am - August 5, 2010

  170. excuse me, but with hands on hips. . .this is fabulous!!!

    In fact, state recognized marriage is nothing more than an elaborate social contract between two adults. HOO RAH

    F#@&ing Fabulous. . . an ever changing and fluid social contract.

    Comment by rusty — August 5, 2010 @ 12:48 am - August 5, 2010

  171. “By your rationale, your own ignorance and contempt of the Founding Principles and Documents of the USA make you a Self-Loathing American, no?”

    So you think women and Black people shouldn’t vote?

    How about slavery, are you in favor of that?

    George Washington had 316 slaves how about you?

    Maybe the second amendment should only apply to black powder muzzle loaders.

    In my America, we evolve as a society all you right-wingers (not conservatives) can do is slow it down.

    @ 123 StevenN said (a great post):

    The founding fathers also didn’t see women as having the right to vote, didn’t see a problem with human beings being held as slaves, didn’t make any laws about child labor, etc. The nature of human civilization is change.”

    Comment by David — August 5, 2010 @ 12:49 am - August 5, 2010

  172. Marriage exists as a response to a basic fact of nature, namely man + woman = baby.

    I guess all those polyandrous (several brothers and one wife) marriages in Nepal came from another planet, then, since they are not from your view of nature, lol! Better watch out for the polygynous marriages all over Africa and the open muliple partner marriages in parts of the Amazon…

    Take an anthropolgy class. Educate yourself.

    Comment by celticdragonchick — August 5, 2010 @ 12:52 am - August 5, 2010

  173. This is neither India nor Africa. Take a geography class. Educate yourself!

    Comment by American Elephant — August 5, 2010 @ 12:57 am - August 5, 2010

  174. Levi,

    I can tell you do not care for others opinions, which is why it is interesting that you engage just to discriminate against them. Your anger is ever present, but your rationale lacking.

    I did not bring my “religious” beliefs into this; I made an accurate statement about the institution of marriage that seems to evade you. If you look at marriage and your argument, you are nothing more than a hypocrite when you espouse equal rights for all yet deny those fundamental “rights” of marriage to individuals on the periphery of the debate. If you redefine marriage because it is discriminatory, you must allow everyone to practice what they determine to be marriage, otherwise you are prohibiting them from their “constitutional” right; who is the government to determine their behavior? Yes?

    You can think religion is a farce and pointless, but you have had the luxury of living in a society based on Judeo-Christian principles that are imbedded in the preservation of the individual and individual liberty.

    Unlike marriage, religion is enshrined into the Constitution. Where do you suggest I look in the Constitution to suggest that it endowed any rights to the individual marital status or the Federal Government for using it as a tax scheme? Some gays say it is not about marriage but about benefits. Well, I say bring in the flat tax and get rid of special benefits for anyone. Who is the government to decide who receives special status. I suppose this is not a tax debate form, but if gays are going to argue for the altering of a system that is as long as history itself over money, well, I dare say that is quite selfish.

    Live wire: Thank you. =)

    Comment by Holly — August 5, 2010 @ 12:57 am - August 5, 2010

  175. Celticdragonchick @ 168, 169 & 172… great posts!

    Better watch out though, they’re going to start calling you names because you make too much sense.

    rusty@ 170… as a straight male I am so happy for you and your people.

    Yes, “you people”.

    As in Jews, those people have been discriminated against for thousands of years.

    Comment by David — August 5, 2010 @ 1:02 am - August 5, 2010

  176. My take for years now is this:

    Of course peoples personal beliefs, biases and differences are going
    to become legislative issues if we give the government power over
    those things.

    We shouldn’t have to ask the govts permission to get married no matter
    who you are. I don’t support government sponsored gay marriage but I
    don’t support government sponsored heterosexual marriage either.

    I can tell you this: when my wife and I said “I do” in the church, I
    didn’t need a damn government form for me to know I was married.

    Comment by Ben — August 5, 2010 @ 1:05 am - August 5, 2010

  177. Jimmy,

    I will look past your mean-spirited and insipid comment.

    The courts engineer are what activists use to engineer society. Like our Supreme Court Justice Sotomayor said, “We legislate from the bench.” The voters say no, the courts overturn the voters to determine what is proper behavior, not necessarily constitutional. Just like the Rep. Stark said, “The Federal government can basically do whatever it wants,” the courts, depending on the judge, can determine whatever it “deems” constitutional. Are you going to argue that the 9th Circuit Court of Appeals understands the Constitution when it is the most overturned court in history? Is that understanding the Constitution or abusing the Constitution for an ideological outlook?

    Comment by Holly — August 5, 2010 @ 1:08 am - August 5, 2010

  178. celticdragonchick-

    Thanks for not answering the question… and for showing again how terrible spellers liberal/progressives are.

    AMENDMENT is how you spell it. *rolls eyes*

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:10 am - August 5, 2010

  179. Have I mentioned in the past 30 minutes how much I *heart* Holly?

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:11 am - August 5, 2010

  180. This is really a new feeling for me –

    I’m used to being called fascist, self loathing, etc. by most gays and many straight liberals. Besides marriage equality and DADT, I’m against or uninterested in Gay Inc.’s agenda items, such as Hate Crimes legislation, ENDA, or boycotting Target. My libertarian/conservative beliefs have always put me at odds with the left. Limited government, free markets, and strong foreign policy have always been my priorities.

    I often agree with the posts at this blog, albeit more so from Dan than with Bruce, but they are all in all civil and well thought out.

    To read the kind of angry, rude and arrogant responses directed at me and others – that in and of itself is not surprising – I’m used it from liberals, whether in bars or online.

    But to have this kind of bile come from the right – on a blog that rightly decries the hate spewed from the left against its adversaries – that is shocking.

    Comment by Eric — August 5, 2010 @ 1:11 am - August 5, 2010

  181. If we are going to use sexual orientation as the bias, then you would have to find an asexual judge to try the case.

    Calling Elena Kagan!

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:12 am - August 5, 2010

  182. Eric-

    I sympathize having been called a “Jew working for the Nazis” since I came out at 25. Anyone messing around in politics has to have tough skin.

    But let’s all get real and think about Americans who were chased away from lunch counters by German Shepards and firehoses.

    *THAT* was hate.

    This discussion — nowhere close, sorry.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:14 am - August 5, 2010

  183. Clue for you: The SCOTUS has recognized marriage as a fundamental human right on 14 occasions, including Loving V Virginia.

    Clue for YOU: SCOTUS has already REJECTED the argument that Loving establishes a right to change the definition of marriage to include same sex couples in Baker v Nelson.

    The courts giveth and the courts taketh away…

    which is rather why the Constitution forbids them legislative powers to begin with. Because the minute they step outside their Constitutionally limited powers, our Republic becomes a tyranny.

    Comment by American Elephant — August 5, 2010 @ 1:20 am - August 5, 2010

  184. @Gay Patriot

    Thanks for not answering the question… and for showing again how terrible spellers liberal/progressives are.

    I did answer the question, with a dose of sarcasm. Maybe that night school class in reading comp is still open in your area?

    If all you can do is point to a quickly typed error performed on a keyboard missing an “e” key, then your sauce is weak tonight.

    By the by…check out my statement at #141 and rerun your snide little “progressive/lib” bullshit.

    I don’t need anybody from the left or the right sticking their nose into my marriage, what I do with my property or what guns I own.

    Clearing up any, genius?

    Comment by celticdragonchick — August 5, 2010 @ 1:20 am - August 5, 2010

  185. There has never been an intrinsic right to harm other people, especially as it regards the sexual exploitation of minors incapable of giving consent or enter into legal contracts.

    I would simply quote the opinions of the gay and lesbian community on the matter.

    In 1986, ILGA adopted a position that says the group “supports the right of young people to sexual and social self-determination.”

    In 1988, ILGA declared “this conference recognizes that existing same-sex age-of-consent laws often operate to oppress and not to protect; that in many countries, existing laws on sexual coercion and rules of evidence also often operate to oppress and not to protect; that therefore member organizations are urged to consider how best children, adolescents, and people of all ages can be empowered and supported against both sexual coercion and sexual oppression and to work towards that end.”

    In 1990, ILGA “calls on all members to treat all sexual minorities with respect and to engage in constructive dialogue with them. In another position adopted that year, ILGA declared that it “supports the right of every individual, regardless of age, to explore and develop her or his sexuality.”

    In short, your viewpoint is based on your bigoted assertions and support for oppressive “traditional” viewpoints that do not recognize the “fundamental human rights” of other individuals. Your belief that sex with children is “exploitative” is not reflective of up-to-date thought, and is clearly due to animus, fear, and dislike of those who have sex with children. Therefore, it is invalid.

    See how this works? There’s nothing said in that paragraph that Walker didn’t say in his decision.

    Comment by North Dallas Thirty — August 5, 2010 @ 1:21 am - August 5, 2010

  186. “But let’s all get real and think about Americans who were chased away from lunch counters by German Shepards and firehoses.

    *THAT* was hate.

    This discussion — nowhere close, sorry.”

    Can someone say relativism? ;)

    I agree that that was *very* awful – but just because there was something much worse – doesn’t mean we shouldn’t strive for a higher standard.

    Comment by Eric — August 5, 2010 @ 1:21 am - August 5, 2010

  187. I guess all those polyandrous (several brothers and one wife) marriages in Nepal came from another planet, then, since they are not from your view of nature, lol! Better watch out for the polygynous marriages all over Africa and the open muliple partner marriages in parts of the Amazon…

    Take an anthropolgy class. Educate yourself.

    So is your argument that all of these should be legalized, since they exist in nature?

    And if not, what gives you the right to say no?

    Comment by North Dallas Thirty — August 5, 2010 @ 1:22 am - August 5, 2010

  188. Clue for YOU: SCOTUS has already REJECTED the argument that Loving establishes a right to change the definition of marriage to include same sex couples in Baker v Nelson.

    I note that you cannot refute the core contention that marriage is a recognized right. Once given, real hard to take away…and I think we may well win SCOTUS on this one. Even some of the conservative justices may have a problem with a law that allowed several thousand marriages of a certain classification to remain, but allowed no more to plaintiffs who wished to obtain rights that others received. IANAL, but I am certainly unaware of any relevant precedant here for keeping something like that intact.

    Comment by celticdragonchick — August 5, 2010 @ 1:25 am - August 5, 2010

  189. “So pedophiles must be given marriage rights, according to David.”

    ********************************

    celticdragonchick @ 168 gets it.

    “There has never been an intrinsic right to harm other people, especially as it regards the sexual exploitation of minors incapable of giving consent or enter into legal contracts.”

    ********************

    “And also, since government funding is a “civil right”, according to David, religious institutions and religious groups must now be guaranteed government funding.”

    ********************

    Never said anything about “government funding” what are you taking about?

    I said that gay marriage is a civil right issue what the hell does that have to do with “government funding”?

    Gay or straight, good luck finding “government funding” for your marriage or is that a J.D. Hayworth “free goverment money” scam?

    ********************

    Your “Marriage exists as a response to a basic fact of nature, namely man + woman = baby.”

    See celticdragonchick @ 172

    ********************

    Funny how David always runs away and refuses to answer when you point out the inanity of his arguments.

    ********************

    No, I’ve been doing my laundry, thanks.

    Comment by David — August 5, 2010 @ 1:25 am - August 5, 2010

  190. The Constitution does not pretend to enumerate every fundamental right(hence the 10th amandment)

    The text thereof:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Since the power to rule on and establish marriage is thus nowhere listed in the Constitution, it is limited to the people.

    And the people very clearly laid out the rules, definitions, and establishments for it.

    You invoke Federal power, celticdragonchick, to argue for the Federal government attempting to overturn a power not delegated to it and, by the very amendment you are quoting, thus limited to the peoples’ decision.

    Comment by North Dallas Thirty — August 5, 2010 @ 1:26 am - August 5, 2010

  191. I note that you cannot refute the core contention that marriage is a recognized right.

    Sure you can. Look at the extant bans on marriage based on blood relationships, age, plurality, consent, and so forth.

    If marriage were a constitutional and fundamental right, as you assert, it could not be taken away by a majority of voters.

    Comment by North Dallas Thirty — August 5, 2010 @ 1:28 am - August 5, 2010

  192. North dallas 30

    So is your argument that all of these should be legalized, since they exist in nature?

    And if not, what gives you the right to say no?

    Who died and gave you the right to say no? Maybe we would do better by minding our own damned business.

    I don’t think polygyny or polyandry would really work in this country culturally, and the legal issues for custody, etc etc would be a nightmare…but somebody elses’ marriage is not my affair. My marriage is certainly none of yours.

    Comment by celticdragonchick — August 5, 2010 @ 1:29 am - August 5, 2010

  193. [hands Eric the worlds tiniest violin and a box of tissues]

    If anything that I’ve said to you is what you call hate and bile, you are a deeply sheltered man.

    Or to quote Chris Christie, if you think this is confrontational, you should see me when I’m angry.

    Facts are not insulting. They are simply the facts. That you take insult from them is something else altogether.

    Comment by American Elephant — August 5, 2010 @ 1:30 am - August 5, 2010

  194. Who died and gave you the right to say no? Maybe we would do better by minding our own damned business.

    Funny, you were getting all upset about other peoples’ choices to have sex with and marry children. Who died and gave you the right to say no to that? How does it affect your relationship? Why don’t you mind your own business?

    Comment by North Dallas Thirty — August 5, 2010 @ 1:32 am - August 5, 2010

  195. NDT –

    Playing off your perfectly timed quote of the 10th Amendment…..

    Progressives like celticdragon are not interested in America as a foundation of Liberty & Freedom.

    They are interested in “social justice”, “redistribution of wealth”, destroying capitalism and traditions from within.

    It’s all there to read: “Rules for Radicals” by Saul Alinsky.

    Prop 8 decision is just another example of the undermining of the 10th Amendment and all of the words before it.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:33 am - August 5, 2010

  196. but somebody elses’ marriage is not my affair. My marriage is certainly none of yours.

    AAAAAnd there we have it…

    “Society does not support and subsidize marriage for a reason, marriage is simply another entitlement! GIMMIE MY MONEY AND stfu!”

    Comment by American Elephant — August 5, 2010 @ 1:33 am - August 5, 2010

  197. I don’t think polygyny or polyandry would really work in this country culturally, and the legal issues for custody, etc etc would be a nightmare…but somebody elses’ marriage is not my affair. My marriage is certainly none of yours.

    I would bet the polygamist (spelled correctly) would say the same thing, no?

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:35 am - August 5, 2010

  198. AE – back to destroying capitalism and freedom, redistribution of wealth, punishing “the man”.

    Saul Alinsky.

    Funny that.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:36 am - August 5, 2010

  199. Sure you can. Look at the extant bans on marriage based on blood relationships, age, plurality, consent, and so forth.

    Epic fail. LMAO…seriously. By your logic, I also have no intrinsic right to vote if I somehow fail to cast a vote for an election that is not even taking place.

    Age factors mean you can’t enter into contracts with people who have not reached the age of majority. Consanguinity laws are touchy for some people, but are legally viewed as a minor intrusion and not perticularly demanding on citizens while keeping fatal birth defects at a somewhat lower level. It is also a red herring, since sibling marriage is a universal human taboo in all cultures.

    If marriage were a constitutional and fundamental right, as you assert, it could not be taken away by a majority of voters.

    Funny. That is what we have been saying all along.
    I’m guessing you never heard of the Dred Scott case or Plessy V Ferguson. Sleep much during history?

    Comment by celticdragonchick — August 5, 2010 @ 1:37 am - August 5, 2010

  200. perticularly

    Really? REALLY?!?

    Sorry, I just can’t take you seriously anymore.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:46 am - August 5, 2010

  201. @ Gaypatriot.

    I would bet the polygamist (spelled correctly) would say the same thing, no?

    Likely so. Your point? Polygyny cults in the US would have a far more difficult time surviving a rational basis trial in the US, given the documentation of “lost boys” cast out of homes to get rid of competition for young brides, sexual predation by church elders, rampant welfare fraud, abuse, denial of education to women and on and on and on.

    Gay marriage didn’t have anything remotely approaching that kind of albatross to deal with. Any attempt to do a “slippery slope” trope is dead on arrival.

    BTW, polygyny and polyandry are the correct anthropology terms denoting the sex specific variants of polygamy.

    As I have said before, I don’t care about neighbors marriages in the first place. I note that any legal basis for establishing “plural marriage” in this country will not be able to ride on gay marriage, since the sociology/anthopology research that would be entered into evidence is voluminous and damning.

    Comment by celticdragonchick — August 5, 2010 @ 1:46 am - August 5, 2010

  202. Age factors mean you can’t enter into contracts with people who have not reached the age of majority.

    The “age of majority” is defined by voters, and is thus subject to overturning by a judge if it infringes on the fundamental right of someone to marry — which, according to Judge Walker, trumps all other considerations.

    Consanguinity laws are touchy for some people, but are legally viewed as a minor intrusion and not perticularly demanding on citizens while keeping fatal birth defects at a somewhat lower level.

    So it’s legalized discrimination against a small minority based on their sexual and relationship preferences. According to Judge Walker, that makes it unconstitutional.

    Also, “birth defects” would only be relevant if marriage were in some way linked to procreation. But Judge Walker said that marriage has nothing to do with procreation, so that means these bans are unconstitutional for that reason as well.

    It is also a red herring, since sibling marriage is a universal human taboo in all cultures.

    But what did you just cite above, celticdragonchick?

    I guess all those polyandrous (several brothers and one wife) marriages in Nepal came from another planet, then, since they are not from your view of nature, lol! Better watch out for the polygynous marriages all over Africa and the open muliple partner marriages in parts of the Amazon…

    Take an anthropolgy class. Educate yourself.

    Comment by celticdragonchick — August 5, 2010 @ 12:52 am – August 5, 2010

    So you yourself are citing examples of sibling marriage and relationships — and telling people there’s nothing wrong with them and to mind their own business.

    Meanwhile, sibling marriage was not only legal, but has been worshiped in multiple cultures. Look at Isis and Osiris. Look at Zeus and Hera. How can you say that this is taboo, when in fact you have millenia of cultures doing exactly that?

    Once again, you are completely missing the point — which was that this was a lazy, foolish ruling by someone who was clearly desperate to come up with whatever rationale, no matter how flimsy, for gay-sex marriage.

    Comment by North Dallas Thirty — August 5, 2010 @ 1:47 am - August 5, 2010

  203. The prohibition on incestuous marriage exists because of the presumption of procreation — that two people who marry, sometimes with full intention, sometimes with no intention, and quite often with no intention, end up producing children, and that the outcome of two blood relatives doing so is not likely to be a happy outcome.

    Note that different state have different standards on this issue. The occurrence of genetic problems for relatives procreating is now known to be much less that was previously thought. The effects of inbreeding is now known to have to take place over generation, not just one or two. ( I’ll find the studies tomorrow if I have time.) The rational for prohibiting cousins to marry, if someone really wanted to challenge it on a scientific basis, would not hold up to scrutiny. Again, since gay couples can’t breed, there is no sense in using your example to bolster your case, as that fact would easily be turned against you by any skilled lawyer. That is why it wasn’t used in this case.

    That establishes quite nicely that procreation is an assumption within marriage. And furthermore, the fact that marriage is beneficial for and supports procreation is inadvertently supported by those confused gays and lesbians who whine that marriage has nothing to do with procreation or childraising, but that a lack of it is harming their children.

    But that still doesn’t help your case. Not only does procreation not depend on marriage – any two breeders can make a baby – but now you would have to prove, that by expanding marriage to gay couples, you are demonstrably harming the marriages of straight couples and putting their children at risk. The defendants in this case had the opportunity to do so, and could not…. because, so far as all the attempts to do so have shown, it seems it can’t be done. The best you’re left with is the good ol’ fashioned slippery slope argument, which, with exception, doesn’t work very well in a court of law.

    Comment by Sonicfrog — August 5, 2010 @ 1:47 am - August 5, 2010

  204. Funny. That is what we have been saying all along.

    But then you openly advocate and support restrictions on marriage, such as age, blood relationship, species, and number, which were passed and put in place by the majority of voters.

    You cannot support these and simultaneously say they are unconstitutional.

    Comment by North Dallas Thirty — August 5, 2010 @ 1:48 am - August 5, 2010

  205. “Society does not support and subsidize marriage for a reason, marriage is simply another entitlement! GIMMIE MY MONEY AND stfu!”

    Whatever you are smoking…I want some.

    Comment by celticdragonchick — August 5, 2010 @ 1:48 am - August 5, 2010

  206. “Who died and gave you the right to say no? Maybe we would do better by minding our own damned business.”

    “Funny, you were getting all upset about other peoples’ choices to have sex with and marry children. Who died and gave you the right to say no to that? How does it affect your relationship? Why don’t you mind your own business?”

    Since when are children considered consenting adults?

    You must running out of arguments comparing the marrying of children to same sex marriage… that’s really weak sauce.

    And as far as polygamous marriage that was settled in 1878 by Reynolds v. United States.

    However polygamous marriage IS legal in America it’s just called adultery.

    Comment by David — August 5, 2010 @ 1:49 am - August 5, 2010

  207. Related story: http://www.redstate.com/donnylatenight/2010/08/04/as-prop-c-goes-down-its-time-for-liberals-to-party-like-its-1868/

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:51 am - August 5, 2010

  208. GayPatriot – I respect you and think you’ve done a great job with your blog – but really? Spelling errors do not address the underlying argument. I think you can come up with something better than “ha ha – they are so dumb they can’t spell!”

    Aren’t we any better than the people who make fun of “Bush-isms” or questions whether Bush knows what a library is?

    Comment by Eric — August 5, 2010 @ 1:52 am - August 5, 2010

  209. celticdragonchick @ 204

    “Whatever you are smoking…I want some.”

    Trust me, you’ll pass if it makes you think like an authoritarian.

    Authoritarians, people whom people avoid like the plague (if they can).

    Comment by David — August 5, 2010 @ 1:52 am - August 5, 2010

  210. Again, since gay couples can’t breed, there is no sense in using your example to bolster your case, as that fact would easily be turned against you by any skilled lawyer.

    Again, you’re missing the point. The argument in this case was that a) procreation was irrelevant to marriage and b) lack of marriage harmed children.

    How you reconcile the two is somewhere in Walker’s fevered attempt to deny reality.

    but now you would have to prove, that by expanding marriage to gay couples, you are demonstrably harming the marriages of straight couples and putting their children at risk.

    Really, Sonic?

    Prove to me that allowing groups of people to marry regardless of age, number, species, or blood relationship would “demonstrably harm the marriages of straight couples”.

    If that’s the standard and burden of proof that you’re going to use, none of those bans would hold up in court.

    Comment by North Dallas Thirty — August 5, 2010 @ 1:53 am - August 5, 2010

  211. Placentas!

    I felt a non-sequitur was needed at this point.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:53 am - August 5, 2010

  212. Aren’t we any better than the people who make fun of “Bush-isms” or questions whether Bush knows what a library is?

    Most of the time.

    Comment by Bruce (GayPatriot) — August 5, 2010 @ 1:54 am - August 5, 2010

  213. You cannot support these and simultaneously say they are unconstitutional.

    See the false dilemma logical falacy on wikipedia.

    Yes, you can (on most of them) since there is no unreasonable burden put on people to not marry children, siblings, or animals who are not human and cannot enter into legal contracts in the first place. I have already answered about “plural marriage”. Telling gays they are restricted from marrying the consenting adults they love and share normal human intimacy with is…ahem…unreasonable.

    So saith the judge.

    Comment by celticdragonchick — August 5, 2010 @ 1:55 am - August 5, 2010

  214. Since when are children considered consenting adults?

    Since the gay and lesbian community said so, as I pointed out above.

    Meanwhile, you do of course realize that age-of-consent laws are arbitrary restrictions passed by a majority against a disfavored and discriminated-against minority that prevents said minority from taking full part in society — which, according to Judge Walker, makes them unconstitutional.

    Marriage has evolved over time, David. Why should it be limited by age? Isn’t that an arbitrary restriction, you know, like gender?

    Comment by North Dallas Thirty — August 5, 2010 @ 1:56 am - August 5, 2010

  215. Yes, you can (on most of them) since there is no unreasonable burden put on people to not marry children, siblings, or animals who are not human and cannot enter into legal contracts in the first place.

    Excuse me? Weren’t you the one screaming that it was an “unreasonable burden” to be denied marriage to the one you “loved”? Weren’t you the one whining that no one else has the right to define “normal” human intimacy?

    Comment by North Dallas Thirty — August 5, 2010 @ 1:58 am - August 5, 2010

  216. Meanwhile, sibling marriage was not only legal, but has been worshiped in multiple cultures. Look at Isis and Osiris. Look at Zeus and Hera. How can you say that this is taboo, when in fact you have millenia of cultures doing exactly that?

    Uh…those were mythical stories. They didn’t really happen. There are no cultures on earth that celebrate or even tolerate sibling marriage, stories of Gods who get jiggy notwithstanding.

    Comment by celticdragonchick — August 5, 2010 @ 2:00 am - August 5, 2010

  217. “Telling gays they are restricted from marrying the consenting adults they love and share normal human intimacy with is…ahem…unreasonable.

    So saith the judge.”

    Yeah it is, it’s a clear violation of civil rights.

    “Gay conservatives” give me a break you an not conservatives you are authoritarians.

    I’d like to see how far the well goes so let me guess you “gay conservatives” are also against gay hate crimes being called hate crimes, yes?

    Comment by David — August 5, 2010 @ 2:05 am - August 5, 2010

  218. Weren’t you the one whining that no one else has the right to define “normal” human intimacy?

    No, I did not say that at all. Your strawman are weak, young Jedi.

    I said (or intended, as it is well after midnight) something about minding your own business. You didn’t get to define marriage to exclude examples of marriages practiced in other cultures as being un-natural. That is called ethnocentrism.

    Comment by celticdragonchick — August 5, 2010 @ 2:06 am - August 5, 2010

  219. Authoritarians, people whom people avoid like the plague

    People….People whom need people…
    People whom live in glass houses

    Sorry David, add Authoritarian to the lengthy list of words you need to look up — and toss in Strunk and White on grammar while you’re at it.

    Bruce,

    But they ARE “the man” now.

    perticularly

    Really? REALLY?!?

    Sorry, I just can’t take you seriously anymore

    Welcome to the club. I think I reached that point about 100 posts on gay marriage ago. which is, not coincidentally, about the last time i heard an original argument. I am beginning to suspect you have a bowl of popcorn and a drink at this point. No?

    Comment by American Elephant — August 5, 2010 @ 2:13 am - August 5, 2010

  220. Off to bed. Good night. Had fun.

    Comment by celticdragonchick — August 5, 2010 @ 2:16 am - August 5, 2010

  221. There are no cultures on earth that celebrate or even tolerate sibling marriage, stories of Gods who get jiggy notwithstanding.

    Again, celticdragonchick, please take the time to educate yourself.

    And, since you’re so ethnocentric as to oppose child marriage, which is not only practiced, but encouraged in several cultures, you really don’t have a leg on which to stand.

    Again, isn’t it hilarious how you shriek about anyone else defining “intimacy”, but seem incapable of following your own standards? And that’s the problem with Walker’s decision.

    Comment by North Dallas Thirty — August 5, 2010 @ 2:17 am - August 5, 2010

  222. sigh

    Comment by Eric — August 5, 2010 @ 2:29 am - August 5, 2010

  223. Eric,

    I do admit that this is a very contentious issue. I do not believe that I addressed you, and am not sure of your position, but I will say that my problem with many of those in the gay community who support this ruling or gay marriage in general is that it rarely comes from a place that is rational, but instead, purely emotional.

    Look at what some have said: we are self-loathing individuals, they mock religion and some serious concerns this can have on the intrusion of the state into the church, they practice moral relativism when it is convenient for them and deny a constitutional voice to American citizens who happen to be in the majority. Is it the American voters fault that they are in the majority? Should we all surrender our Constitutional right to vote so as not to offend a minority? Are there not serious Constitutional issues at stake with Judge Walker’s pubescent findings: gender is irrelevant in society, since you cannot prove one is gay, you should not punish him and alter marriage to appease his condition, etc. Yes, you will notice my sarcasm and he is deserving of it. He, like the gay community relegates us to a perpetual class of victims that I find degrading and disgusting. My goodness, I thought the gay community used to embrace their “otherness” and own it, now all they do is bitch about the fact that “society will not accept me and my demands for marriage.”

    I am sure that you are a nice guy, but this debate by the gay community about marriage seems more like a caricature of a debate. If the gay community wants to be taken seriously, they better start acting like it, because right now they are nothing more than an embarrassment that I have to overcome every single day.

    Comment by Holly — August 5, 2010 @ 2:44 am - August 5, 2010

  224. Bruce,

    Thank you.

    Comment by Holly — August 5, 2010 @ 2:46 am - August 5, 2010

  225. DaveOnotinSF,

    Thanks! That is sweet.

    The majority can never compete with the judicial branch, which is the problem and the minority knows this. A Republic is set up, unlike a true Democracy, where the minority is represented. This is good, but the system is being abused. What happens when the judicial branch has a majority population that is not only sympathetic, but of the ideology of the purported minority? If our system was still one of unbiased, Constitutional enforcement, there would be no problem. The problem is that there is no such thing and activist judges legislate behavior from the bench.

    Your question is good because it is impossible to answer without a Revolution: How can we overcome a government, who in all three branches, openly legislates and dictates behavior?

    Comment by Holly — August 5, 2010 @ 3:00 am - August 5, 2010

  226. this is a poor decision.
    very very poor
    Polygamy, pedophilia, and plenty of unmoral or abnormal/abhorrent behaviors can now be justified by the methods used by this very biased judge.

    It also leaves open rulings that libs will abhor. Using this judges methods, we can ignore 0bamacare, change the tax code, etc. All based on the faulted justification of this judge.
    It will make it to the SCOTUS, and Kennedy will likely vote inline with his faulty ruling that likely lead to this. But like some of Sottomayor’s, rulings, and some arguments made by Kagan, even people who agree with the Stance, should think this is a wrong ruling.

    to all those defending this ruling, think of anything you really hate. Think hard.
    This ruling can be used to justify that. If you think it is ok to rule opposite on those things, then this is meaningless. You can’t have it both ways.

    This judge thought he was going to be clever, and get himself some attention, and proved he is definitely not clever, and possibly ethically challenged to boot.

    And, i see the leftoids here are again really arguing the point by using personal attacks, physical threats, and strawmen so big they make a wickerman look like a child’s rag doll.

    Comment by JP — August 5, 2010 @ 3:54 am - August 5, 2010

  227. celticdragonchick,

    Baker v. Nelson reserved the right to define mariage to the states. Gil v OPM affirmed it. (While I disagree that a state can tell a federal program how to spend its money, I disagree that Medicaid should be federal at all)

    Walker completely ignored Baker v Nelson, which is the ruling precident. That is what makes it wrong from a federal POV. He should have upheld the case, as should the 9th circus, then the supreme court should revisit.

    I’d also point out that you ignore Baker v Nelson every time it is brought up, going back to Loving, which has already been shown to be not germain, by Baker.

    Indeed, by conceeding the incestous argument (and we don’t have to go to mythology, we can look at European nobility) you admit the state can regulate which legal contracts they recognize and which they don’t.

    Poor David, having to come here and displace his feelings of inferiority by attacking others

    Holly *sigh* Ah, it’s nice to see my ‘all the good ones are married or play for the other team’ theory is alive and well.

    Comment by The_Livewire — August 5, 2010 @ 7:09 am - August 5, 2010

  228. The Livewire,

    Haha. You sound like my friend, Brad. I’m glad to keep your theory going.

    I have not read the entire opinion, but if Walker has left out the cases that substantiate the state’s right to determine marriage and the validation that those cases were not socially reconstructing the entire format of marriage and instead held to the current structure of one man and one woman, what were Walker’s cases of precedent to establish this new social construct?

    Comment by Holly — August 5, 2010 @ 7:33 am - August 5, 2010

  229. IIRC, Gil v OPM came from an equal judge in another circut. I should point out that I read Wikipedia (yeah yeah, I know… Bad Livewire!) for the comment that he didn’t address Baker.

    I think the way the circut system works is that Judges should accept rulings higher up on their chain, but not in another circut. So for example, Walker should have addressed Baker, but not need to address Gil, because it’s in a different Circut. Though I’d assume the defenders of 8 would refernce Gil come Supreme Court arguments.

    Comment by The_Livewire — August 5, 2010 @ 8:33 am - August 5, 2010

  230. Levi,

    I can tell you do not care for others opinions, which is why it is interesting that you engage just to discriminate against them. Your anger is ever present, but your rationale lacking.

    Oh I care about other peoples’ opinions, right up to the point where they start bringing in their imaginary friend for back-up in an argument. But I have an offer for you; I’ll let you invoke your Christian God if you let my invoke my cosmic unicorn. Maybe you’ll learn something about how frustrating it can be to talk to a believer?

    I did not bring my “religious” beliefs into this; I made an accurate statement about the institution of marriage that seems to evade you. If you look at marriage and your argument, you are nothing more than a hypocrite when you espouse equal rights for all yet deny those fundamental “rights” of marriage to individuals on the periphery of the debate. If you redefine marriage because it is discriminatory, you must allow everyone to practice what they determine to be marriage, otherwise you are prohibiting them from their “constitutional” right; who is the government to determine their behavior? Yes?

    You did bring your religious beliefs, when you said that marriage was a religious institution that took precedent over any form of marriage as recognized by the federal government.

    Marriage laws are discriminatory when they deny access to gay couples, they’re hardly so when you’re talking about children. Children aren’t allowed to buy cigarettes, drink alcohol, vote, sign contracts, enlist in the military, etc., but you wouldn’t say that they were being discriminated against. There are good reasons to keep these laws in place and they aren’t affected whatsoever by legislation or legal decisions that extend marriage two, of-age, consenting gay people.

    You can think religion is a farce and pointless, but you have had the luxury of living in a society based on Judeo-Christian principles that are imbedded in the preservation of the individual and individual liberty.

    Unlike marriage, religion is enshrined into the Constitution. Where do you suggest I look in the Constitution to suggest that it endowed any rights to the individual marital status or the Federal Government for using it as a tax scheme? Some gays say it is not about marriage but about benefits. Well, I say bring in the flat tax and get rid of special benefits for anyone. Who is the government to decide who receives special status. I suppose this is not a tax debate form, but if gays are going to argue for the altering of a system that is as long as history itself over money, well, I dare say that is quite selfish.

    Freedom of religion (really, freedom to think however you’d like to think) is an important part of the Constitution, but so is freedom from religion, and the principle that the state will never give preference to one religion over another. Your God says there shouldn’t be any gay marriage, my God says there should be gay marriage…. it doesn’t matter in the slightest. The government doesn’t care about religious scripture – and that’s the best way possible to run things.

    As for me owing my well-being to the Judeo-Christian principles, I simply can’t be convinced that human morality comes from religion, especially a religion with a God like that described in the bible. Human beings got by for thousands of years before Jesus Christ and we’ll be doing fine long after he’s forgotten.

    Comment by Levi — August 5, 2010 @ 8:39 am - August 5, 2010

  231. Levi,

    One does not have to believe in God to understand the history of this society and of the institution of marriage itself. I do happen to believe in God, but never did I impose my belief system upon you.

    There is no further point in debating or conversating with you; you lack respect and my time is valuable.

    Comment by Holly — August 5, 2010 @ 8:46 am - August 5, 2010

  232. Ok, now I’ll ask Levi: Were you born an asshole or did you decide to be one?

    Comment by ThatGayConservative — August 5, 2010 @ 9:15 am - August 5, 2010

  233. Holly,

    One does not have to believe in God to understand the history of this society and of the institution of marriage itself. I do happen to believe in God, but never did I impose my belief system upon you.

    It’s all well and good to know the roots of marriage and its history, but that says nothing about what should be done in today’s society. Marriage is by no means some perfect institution, and we’ve thankfully abandoned many of its worst features like arranged marriages, marriages to children, political marriages, marriage as a property transaction, etc. Our society has honed the concept of marriage into something that is useful and very desirable for couples, and there’s simply no good reason to exclude gay people from taking part. I don’t see how it compromises the integrity or beauty of the institution.

    The way you are arguing, by invoking your religious beliefs and insisting that they be respected, indicates that you certainly would like to impose your religious beliefs on me. Sorry – but that’s what you’re doing.

    Comment by Levi — August 5, 2010 @ 9:18 am - August 5, 2010

  234. 231 comments so far, eh? To be expected I suppose, though quickly skimming through there doesn’t appear to be anything new being said on either side. Guess I’ll put my two cents in for what they’re worth: I agree with the overall constitutional argument Judge Walker made in his ruling but find some of his reasoning to be weak. I predict that the 9th Circuit will uphold this decision and SCOTUS will strike it down by a 5-4 margin, possibly 6-3 because I do not believe Kagan is a “lock” for marriage equality. Besides, SCOTUS seems to enjoy taking the opposite position of the 9th Circuit a lot anyways, it’s kind of a sport for them…

    Comment by John — August 5, 2010 @ 9:18 am - August 5, 2010

  235. Ok, now I’ll ask Levi: Were you born an asshole or did you decide to be one?

    What exactly are you referring to?

    Comment by Levi — August 5, 2010 @ 9:19 am - August 5, 2010

  236. Our society has honed the concept of marriage into something that is useful and very desirable for couples, and there’s simply no good reason to exclude gay people from taking part.

    And therein lies the problem.

    Levi simply does not understand basic biology or science, nor does he understand why marriage exists in the first place.

    Then again, that’s understandable when you realize that Levi supports and endorses infanticide and abortion as “good for society”, since he and his fellow liberals see children as an unwanted “burden” that interfere with his life plans.

    Comment by North Dallas Thirty — August 5, 2010 @ 10:56 am - August 5, 2010

  237. The majority can never compete with the judicial branch, which is the problem and the minority knows this.

    Uhm…. That’s not a problem, that’s a FEATURE. The founders designed it that way specifically to be isolated it from the whims of public opinion. It’s a check on the power of the legislature, which, by proxy, means it is a check on the people. There are more than a few who would like to restore the Senate to a body chosen by the State legislatures instead of popular vote (17th amendment).

    Comment by Sonicfrog — August 5, 2010 @ 10:57 am - August 5, 2010

  238. And, since you’re so ethnocentric as to oppose child marriage, which is not only practiced, but encouraged in several cultures, you really don’t have a leg on which to stand.

    I also am against female genital mutilation, which also derives from an ethnocentric viewpoint I suppose. What I told you, if you were paying attention, was that you cannot say that your version of marriage is the only natural version while ignoring every other cultural construct for marriage. Since child marriage is harmful to the interests of the child, as well as virtually impossible in this country under most circumstances since children cannot enter into legal contracts…your point is…pointless

    Also, you really do need to read the bit about false dilemmas, since you really seem to have a problem with that logical fallacy.

    I looked at the JSTOR link you posted. Having the entire paper would have been better, so I will have to look it up when I return to Guilford Collage in a couple of weeks. It doesn’t really help your case that the very first sentence in the introduction mentions the anthropological principle of the universal taboo against incest, although I note that the paper mentions some special circumstance specific to the social station of some families in the Graeco Roman period of 300 BCE to 300 CE. Since I cannot access the whole paper, I cannot see to what degree actual consanguinity was actually practiced or if the marriages were contractual for purposes of property preservation in the family.

    The universal taboo against consanguinity still stands (most certainly for all existing cultures today). Debate it with your anthropology proff, if you like.

    Comment by celticdragonchick — August 5, 2010 @ 11:01 am - August 5, 2010

  239. meh. PIMF.

    Comment by celticdragonchick — August 5, 2010 @ 11:02 am - August 5, 2010

  240. @livewire

    I’d also point out that you ignore Baker v Nelson every time it is brought up, going back to Loving, which has already been shown to be not germain, by Baker.

    The Baker decision has been mentioned in some comments at The Volokh Conspiracy, but it appears that it does not seem to be an over-riding concern by the majority of the bloggers (or law proffs) there. I seriously doubt that Baker will be used as a justification for keeping this from the SCOTUS, but YMMV.

    What happens when it gets to the SCOTUS is anybody’s guess.

    Comment by celticdragonchick — August 5, 2010 @ 11:08 am - August 5, 2010

  241. Since child marriage is harmful to the interests of the child

    Ethnocentric viewpoint. Since child marriage is accepted in other cultures, you have no right to ban it here. Obviously your attitude is based on animus and bigotry rather than science.

    as well as virtually impossible in this country under most circumstances since children cannot enter into legal contracts

    Again, ethnocentric viewpoint, based on tradition, interferes with the fundamental right to marry. Unconstitutional by your own logic.

    Comment by North Dallas Thirty — August 5, 2010 @ 11:14 am - August 5, 2010

  242. Ethnocentric viewpoint. Since child marriage is accepted in other cultures, you have no right to ban it here.

    Jesus wept.

    Your determined ignorance is actually laughable.

    I won’t go into the voluminous studies on underage marriage and how children are exploited and intrinsically, verifiably harmed by it, but your continued attempts at false dilemmas, erroneous conflations of fact with opinions, and red herring arguments are becoming boring. You keep building the strawman that I must approve of all other forms of marriage(false dilemma) or be an hypocrite, whereas I originally posited that you erroneously claimed that YOUR view of marriage was the only “natural” one.

    I knock your strawman down and you go right back and put it up again.

    Boring.

    Again, ethnocentric viewpoint, based on tradition, interferes with the fundamental right to marry. Unconstitutional by your own logic.

    You seem to have fundamental problems in separating concepts like Constitutional Law and English Common Law from your own notions of what you think they should be.

    I believe Stephan Colbert calls this “truthiness”.

    The canon of Common Law we inherited along with our own Constitution has been fairly clear on differentiating rights between minors and adults. Minors may not vote, nor enter into contracts because they are presumed to be incapable of exercising judgment necessary to do so. Adults who are found to be mentally incompetent may also lose those rights and have a guardian assigned.

    How this interferes with the right to marry enjoyed by adults of sound mind is a mystery to me, and a florid product of your active imagination.

    Anyways, I’m done with you until you come up with better trolling.

    Comment by celticdragonchick — August 5, 2010 @ 1:47 pm - August 5, 2010

  243. FINALLY! 109 pages into the opinion and we get conclusions of law.

    This is worth pointing out – While it may have been frustrating to read, those first 109 pages are essential. I am sure this decision will be appealed, and when it is, the appellate court must rely solely on the factual findings of this trial, which Judge Walker meticulously laid out in those 109 pages.

    Comment by Loren — August 5, 2010 @ 1:54 pm - August 5, 2010

  244. The canon of Common Law we inherited along with our own Constitution has been fairly clear on differentiating rights between minors and adults.

    As it has with years of jurisprudence and common law demonstrating that same-sex couples do not have a constitutional guarantee of marriage.

    You seem to have a real problem with consistency in application. Why is it that you state that common law is irrelevant when it’s inconvenient to you, and only applicable when it’s not?

    Answer: Because you do not believe in equal application of the law. Nor does your Judge Walker.

    I won’t go into the voluminous studies on underage marriage and how children are exploited and intrinsically, verifiably harmed by it

    Actually, all we need is a statement from you explaining how your relationship is harmed by allowing other people to marry children.

    Which, given your insistence that the conditions of who is allowed to marry have no effect on anyone else’s relationship, ought to be quite hypocritically entertaining.

    Comment by North Dallas Thirty — August 5, 2010 @ 2:26 pm - August 5, 2010

  245. Look, the fact is marriage is a social institution, even if legally it is a right. Messing with it is dangerous (as seen in the 70s) and many people are scared shit of messing it up even worse then happened back then. If you have relatives who got sucked into the welfare poverty trap you know what I mean, it’s terrifying.

    You can’t expect everyone to be rational about, and I don’t. It’s good enough for me that more and more people are coming to accept it. I’m not sure that gay marriage without social acceptance has any meaning anyway. It’s mostly a social institution engineered to protect children. Can you change a social institution simply by changing the law? I don’t know. At least 45-50% support gay marriage in this state, so that should help.

    But this attitude of “oh yes, everyone should be perfectly rational about all things because I’m RIGHT” bugs the hell out of me. Frankly, everyone I’ve ever met has “discriminated” against me in some way (mostly from being “invisibly disabled”) and if I blamed everyone for it I’d have to hate 99.99% of human society.

    Comment by joeedh — August 5, 2010 @ 2:38 pm - August 5, 2010

  246. not that there aren’t truly intolerant, bigoted people. but it always surprises me how few there truly are of those people.

    Comment by joeedh — August 5, 2010 @ 2:38 pm - August 5, 2010

  247. mostly, I blame leftists (single payer health system, and opposition to charter schools and educational vouchers–those all scream “invisibly disabled: YOU ARE EXCLUDED” to people like me). If leftists thing they never screw minorities they are dead wrong.

    Comment by joeedh — August 5, 2010 @ 2:42 pm - August 5, 2010

  248. All that said, had the Equal Rights Amendment been ratified, he would have a point, but so far he hasn’t based his ruling on anything in the actual text of the constitution — but I’m still reading.

    That is a great point.

    This issue would be much simpler to decide if the ERA is ratified. “Discrimination on the basis of sex is held to strict scrutiny under the ERA, and since the Supreme Court voided analogous racial discrimination ( Loving v. Virginia ), the law is struck down and the state is ordered to offer marriage licenses to same-sex couples” And it would have been the correct ruling.

    We know the 14th does not prevent gender discrimination top the same extent as racial discrimination (Minor v. Happersett, Michael M. v. Superior Court)

    Comment by Michael Ejercito — August 5, 2010 @ 5:35 pm - August 5, 2010

  249. the appellate court must rely solely on the factual findings of this trial

    Sorry, wrong. This leftist talking point is only wishful thinking. The fact of the matter is that it is LONG-held precedent for courts to defer to the legislative branch as the finders of fact and it is obligatory for Judge Walker to show, in law, why it was necessary for him to usurp that power. He failed. And his “facts” could and SHOULD be dismissed on that basis alone. Whether they are or not will show how corrupt our judicial system has become.

    It is also a deeply dishonest tactic. His facts are not indeed factual, but deeply biased propaganda. This activist judge and his supporters are attempting to corrupt the process by politicizing procedural precedent.

    Lies should not stand in the place of facts because of precedent, but that is exactly what liberals and this activist gay Judge are hoping.

    Another shining example of how this decision is activist and tyrannical.

    It is also the hope of this activist Judge that if he throws enough supposed “facts” against the wall, some of them will stick. A CYA/kitchen sink strategy if you will. In other words, he hopes he is providing enough cover for liberal activists in higher courts to ignore the law.

    And the fact of the matter is that his “factual findings” will most likely be completely dismissed and ignored because he is wrong on the Constitution and the law.

    Comment by American Elephant — August 5, 2010 @ 5:52 pm - August 5, 2010

  250. Sorry, wrong. This leftist talking point is only wishful thinking. The fact of the matter is that it is LONG-held precedent for courts to defer to the legislative branch as the finders of fact and it is obligatory for Judge Walker to show, in law, why it was necessary for him to usurp that power. He failed. And his “facts” could and SHOULD be dismissed on that basis alone. Whether they are or not will show how corrupt our judicial system has become.

    Indeed.

    Trial and appellate courts have, in the past, dismissed findings of fact, such as if the fact was not germane to the case or if it was introduced in violation of the exclusionary rule.

    An overturning of a criminal conviction, in fact, is a wholesale dismissal of facts. That is why prosecutors would have to retry the case to get another conviction.

    I would suspect the appellants would try to get the entire factual record dismissed on the basis that they were entitled to a summary appeal.

    the appellate court must rely solely on the factual findings of this trial

    Not true.

    Appellate courts can consider any legal issues germane to the case. And I suspect that Davis v. Beason is quite relevant.

    Comment by Michael Ejercito — August 5, 2010 @ 9:23 pm - August 5, 2010

  251. [...] Gay Patriot His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender” as if the assumptions about a supposed social construction of gender had been proven true when, in fact, all serious psychological, sociological studies have shown the opposite. Not to mention studies of the human brain. [...] [...]

    Pingback by Gobsmacked [Darleen Click] — August 6, 2010 @ 11:31 am - August 6, 2010

  252. [...] legislation (even as judges impose their own moral views).Daniel Blatt, columnist for Gay Patriot, wrote:I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating [...]

    Pingback by Prop 8 Ruling Round Up | The Foundry: Conservative Policy News. — August 12, 2010 @ 12:02 pm - August 12, 2010

  253. [...] Blatt, columnist for Gay Patriot, wrote: I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in [...]

    Pingback by Prop 8 Ruling Round Up | Cycaster News — August 12, 2010 @ 5:30 pm - August 12, 2010

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