Said Ted Olson.
Here's something Rush Limbaugh said in the middle of his monologue about the Prop 8 opinion:
The left uses issues such as gay marriage as battering rams to wreck the US Constitution and that's what's going on here. ... Well, the Democrats who are cheering this ruling, overturning California's Prop 8, are not really cheering gay marriage. They want gays to believe that they are. They are cheering and they are giving standing ovations to this judge for weakening the US Constitution, for ripping it to shreds, because that is the objective of the American left....
The Constitution was written to deemphasize the power of federal governments. Our Founders had fled tyranny. They certainly didn't set up tyranny when they founded this country with the Constitution. But the left -- the Marxists, socialists, progressives, whatever you want to call them -- want tyranny and they want to be in charge of it. The Constitution stands in their way. So this judge is being cheered ostensibly for recognizing homophobia in the heterosexual community for thousands of years.I like Rush enough to believe that when he got to this part of his monologue, he knew he'd become incoherent. If you don't want the majority's idea of morality imposed on everyone, you need individual rights that courts enforce against the will of the majority. The Constitution limits what can be imposed on individuals. It limits the federal government, and — with the 14th amendment — it limits the state.
Thousands of years of discriminatory homophobia has led to gay people not being allowed to marry, and this judge (finally someone enlightened) has come along and seen it. Wrong. They are cheering the fact that this judge has rammed the Constitution with a battering ram. These are the same Democrats who have either remained silent or openly advocated the building of a mosque where Sharia law is the word of Allah at Ground Zero. Now, Sharia law not only bans gay marriage, it bans gays. Permanently. So why in the world would leftists who are cheering a judge who has just said that Prop 8, voted on by seven million Californians is unconstitutional because of decades -- generations, thousands of years -- of homophobia and discrimination practiced by heterosexuals...?
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> I addressed this as well in my response to A.W. If a mentally retarded person or child makes a pass at you, you are required to turn it down, because they are not mentally able to consent to sex, regardless of how they may show that they want it.
So wait, it is your position that sex with any retarded person is statutory rape? I mean there is obviously a lot of abuse, but then again, do we really want to say to a retarded person, you can never have a full love life?
> Animals are even less able to consent.
Consent is not the point. I am not here arguing the fine points of whether neigh means neigh. Let try again explaining the problem. This is what the Supreme Court said in Roe v. Wade:
> The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment.... If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.
So in other words, the Supreme Court reasoned that if a fetus was a person then the case is over. They then reasoned that it was not a person and thus abortion was established. In later cases, the states passed laws saying, “from now on we consider a fetus a person” and they were struck down as conflicting with Roe. So the modern court believes that a fetus is not a person and cannot be declared a person and based on that, thus the state cannot assert any limitation on a woman’s freedom in order to protect the life of the fetus.
Taken to its logical extreme, laws against animal cruelty (and notice I am not just talking about beastality but cruelty more broadly) are dubious constitutionality. Certainly any attempt to assert that an animal has in and of itself any rights at all is incorrect. The best explanation, post-Roe, is that it was still immoral, although its hard to understand how killing a mouse is wrong, but killing a fetus is okay. But now Lawrence tells us that we can’t even base it on morality, so… um, what’s left.
So without invoking an animal’s rights, and without invoking morality, can the state stop me from throwing a cat into a wood chipper?
> The states can protect the "potential life" at certain stages with certain restrictions,
Potential HUMAN life, that is. To quote the court: “In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.” So potential animal life, or indeed animal life at all has no value, under Roe v. Wade.
> I've got no disagreement with you there. I'm arguing what I would (probably) find if I had been deciding Lawrence, which is that there is a right not to have gay sex criminalized based on equal protection.
But is same equal protection extended to gay incest?
Matt
> Therefore this ruling really means [to you] that people can marry dogs because there is no constitutional argument against it.
> How can anyone debate someone who thinks that?
Well, you might try PROVING HIM WRONG.
Of course it won’t mean those things, because the Supreme Court is INSINCERE. If they really meant what they were saying than all kinds of elements in the parade of horrible would be legalized. But they don’t. they claim they are removing the influence of morality on law, but the truth is they are just substituting their own. And that is wrong.
Seven Machos: if Vermont wants gay marriage and Alabama doesn't, who cares?
I assume that you would be okay with federal recognition of same-sex marriages conducted under the authority of Vermont?
Right now, of course, that isn't the way it works.
Some states will give a marriage license to first cousins. Other states won't. But states that won't grant that license will recognize that marriage as valid.
And some states will allow a 14 year old to marry, while other states won't. Seriously, 14? WTF?
Again -- I'll repeat -- I would prefer this to work its way through the legislatures. But I can't keep plaintiffs from filing, and I can't keep the likes of Ted Olson from advocating for them.
And again, I'll point out that this would be a really good time for those conservatives who don't like this process but would be okay with civil unions to stand up and offer a civil union compromise.
And again, I'll point out that this would be a really good time for those conservatives who don't like this process but would be okay with civil unions to stand up and offer a civil union compromise.
You mean like the one that already exists in California?
Rush was making the point that for modern lefties, the constitution is a bit of an inconvenience. I am often struck by the fact that contemporary conservatives have views that are entirely consistent with those who used to be called classic liberals.
Modern leftists of the New Left have increasingly embraced views that are unavoidably tyrannical in nature. Bigger more powerful, more intrusive government. A collapsing of our individual liberties in preference to collectivism.
And then there is the great leftie himself, Herbert Marcuse who argued in his 1965 essay, Repressive Tolerance:
"Surely, no government can be expected to foster its own subversion, but in a democracy such a right is vested in the people (i.e. in the majority of the people). This means that the ways should not be blocked on which a subversive majority could develop, and if they are blocked by organized repression and indoctrination, their reopening may require apparently undemocratic means. They would include the withdrawal of toleration of speech and assembly from groups and movements which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services, social security, medical care, etc"
"Liberating tolerance, then, would mean intolerance against movements from the Right and toleration of movements from the Left."
Seems to me that Rush is right. As far as the libruls are concerned, the Constitution is an impediment to their goals.
...................
DBQ: I will acknowledge that California has a civil unions. And like I said, I would prefer that this case had not gone forward as I want to see this worked out in the legislatures.
However, federal recognition of those civil unions is an entirely different thing.
DBQ: I will acknowledge that California has a civil unions. And like I said, I would prefer that this case had not gone forward as I want to see this worked out in the legislatures.
Peter: To the extent that California is still a model for things that happen throughout the rest of the country, the recent event are depressing because they show that judicial resolutions must prevail over legislative ones even if civil unions pre-exist.
Palladian;
are we gonna flog this topic again?
Just did
If I might remind people we got a lot of "court time" to go.
Don't over-train for the marathon
El Pollo Real wrote: Peter: To the extent that California is still a model for things that happen throughout the rest of the country, the recent event are depressing because they show that judicial resolutions must prevail over legislative ones even if civil unions pre-exist.
If civil unions were recognized by all 50 states and the federal government, then you would have a valid point.
As it stands, state civil unions and marriage are very different things. A state civil union is better than nothing, but it doesn't provide the same protections that marriage provides. A state civil union doesn't travel with you when you cross into the next state.
---------------------
By the way, do you really want to stand on the principle that judges should never overturn the legislature or the will of the people? Or is this one of those principles that is only applied to decisions you don't like. If it's the latter, it's not a principle.
I don't know how to craft things so that the court will tread more lightly in a case like this. The best thing we've got going is a system by which cases get appealed and reviewed by higher courts.
However, federal recognition of those civil unions is an entirely different thing
Well then Peter, you are beating my drum and singing to the choir.
The Federal Gov/IRS is where the discrimination lies.
So then, if California has the model civil union/state marriage mix. And that Gays have All....let me repeat that..... ALL the same rights....what the fuck is the problem?????
"If Olson hadn't reminded every Fox viewer that the SCOTUS had upheld marriage as a fundamental right 14 times previously, maybe I'd be more inclined to see your point."
And I'm still waiting for the "this has nothing to do with any sort of marriage other than two people of the same sex and never will" people to explain how there can be 14 SCOTUS rulings that apply to SSM, but that THIS ruling, should it be affirmed by the SCOTUS will not apply to anything else EVER.
A state civil union doesn't travel with you when you cross into the next state.
And neither do many other contract laws follow you from State to State. So?
Either marriage is a Contract granted by the State...in which case each State can limit the terms of the Contract..
OR. it is a God given right...in which case...Only churches can confer marriage
OR. it is a basic Civil Right granted by the Constitution...in which case...I get my multiple husband and wives.
Which is it?
By the way, do you really want to stand on the principle that judges should never overturn the legislature or the will of the people? Or is this one of those principles that is only applied to decisions you don't like. If it's the latter, it's not a principle.
Certainly not, any more than you would care to stand on the principle that judges always know best and invariably decide their cases correctly. The question is whether Judge Walker interpreted the Constitution properly when he found that there is, in fact, a constitutional right for same-sex marriage.
Though I'm not a supporter, whether same-sex marriage is a good thing or a bad thing is a minor point for me. The real issue is the Constitution - do its words have meaning or is it just a blanket justification for whatever the liberal elite considers wise and proper at a given moment? If its the latter, and every day this appears more likely, democracy itself is at risk.
Again, I am not here to defend the lawsuit. I don't think it was a wise move.
But given that it proceeded and a judge has issued a first-round ruling, where do we go from here?
I've laid down the challenge to social conservatives to consider a civil union compromise. Eighteen months ago, Rauch and Blankenhorn proposed a civil union compromise, but it was greeted with silence.
Many self-described libertarians on this blog seem okay with it, but some still want to grind their axe regarding the process. The social conservatives keep arguing about polygamy and marrying horses and toasters.
Here's a Chicago Tribune editorial raising the possibility that SCOTUS may forge a civil union compromise.
From the editorial:
But the justices might seize on the same middle option used by several states — civil unions. The court could rule that equal protection requires giving gay couples the same prerogatives granted heterosexual couples, but not by the same name.
That course offers a compromise that, while satisfying neither side entirely, accommodates each in its central concern. It would show a respect for democracy and a humility about the role of the judiciary.
It would accord with prevailing opinion: In a recent Washington Post-ABC News poll, two out of every three Americans favored providing civil unions for same-sex couples. It also would preserve the right of states to enact same-sex marriage if they choose.
To insist that only same-sex marriage can be tolerated, by contrast, would inflame opposition and raise the possibility of a constitutional amendment to override the courts. It betrays an impatience that could be counterproductive.
When a cause is gaining ground not just in law but in popular sentiment, democratic institutions may take longer than courts to deliver the preferred result. But they also offer a stronger foundation for lasting progress.
Maguro, I don't think that the Constitution guarantees anything about this issue other than equal protection. What that means is open to interpretation.
For all the reasons laid out at the end of the Chicago Tribune editorial, I prefer that the messy process of legislation be where we hammer this out.
DBQ: marriage rights do travel from state to state -- cousins can marry in some states, and unless someone wants to show me otherwise, I'm certain that those marriages are recognized as valid in states that prohibit such marriages.
There may be an issue with recognizing the validity of marriages involving one minor, but I can't find any clear cases about that under state law.
I'm not insisting that a California domestic partnership be recognized in Utah, for instance. But I would appreciate that you stop insisting that California's domestic partnership registry provided all the same rights as marriage.
Again, I am not here to defend the lawsuit. I don't think it was a wise move.
But given that it proceeded and a judge has issued a first-round ruling, where do we go from here?
I've laid down the challenge to social conservatives to consider a civil union compromise. Eighteen months ago, Rauch and Blankenhorn proposed a civil union compromise, but it was greeted with silence.
Many self-described libertarians on this blog seem okay with it, but some still want to grind their axe regarding the process. The social conservatives keep arguing about polygamy and marrying horses and toasters.
Here's a Chicago Tribune editorial raising the possibility that SCOTUS may forge a civil union compromise.
From the editorial:
But the justices might seize on the same middle option used by several states — civil unions. The court could rule that equal protection requires giving gay couples the same prerogatives granted heterosexual couples, but not by the same name.
That course offers a compromise that, while satisfying neither side entirely, accommodates each in its central concern. It would show a respect for democracy and a humility about the role of the judiciary.
It would accord with prevailing opinion: In a recent Washington Post-ABC News poll, two out of every three Americans favored providing civil unions for same-sex couples. It also would preserve the right of states to enact same-sex marriage if they choose.
To insist that only same-sex marriage can be tolerated, by contrast, would inflame opposition and raise the possibility of a constitutional amendment to override the courts. It betrays an impatience that could be counterproductive.
When a cause is gaining ground not just in law but in popular sentiment, democratic institutions may take longer than courts to deliver the preferred result. But they also offer a stronger foundation for lasting progress.
And with her 9:36 comment, Synova wins the thread. Too bad it's not on the first page of comments.
Did you know there are five seasons of A-Team on Hulu.com?
Just saying...
Whoops -- here's the link to the Chicago Tribune editorial which raises the possibility of a SCOTUS civil union compromise.
Also, I was serious when I said that the reason that bestiality can be arbitrarily limited and legislated against so that it remains a criminal offense is because animals do not have Constitutional protections and thus the State has no prohibitions on what it can criminalize concerning animals.
It's twisty logic, but think about it.
We musnt amend the Sacred Parchment!
BUt we need to start thinking about colonizing other planets. JUst watch who they're bunking with. That's key
But I would appreciate that you stop insisting that California's domestic partnership registry provided all the same rights as marriage.
Fair enough...then tell me which rights that the STATE didn't confer on it's Gay population that it didn't give to it's hetrosexual population.
What MORE could California do to make unions legally the same....except for the name?
If you have a problem with other rights.....It seems to be a Federal issue.
I would appreciate it if you would be honest about the issue.
DBQ, how many times do I need to say that I don't favor the lawsuit or the decision?
I think California did all that it could with its domestic partnership registry. I think the citizens were within their rights to pass prop 8, especially in that it did not seek to undo the domestic partnerships.
Yes, the big prize rights are in the federal recognition of marriage, which the constitution leaves up to the states to regulate.
So long as DOMA is in force, the state recognition of marriage for a same sex couple is no different than a state recognition of a civil union.
Put it on a ballot... We want civil unions with equivalent legal responsibilities to marriage AND we want to recognize those civil unions granted by other states.
Since civil unions are popular pretty much across the board, how difficult could it be to include the recognition of those officiated in other states with the legislation for civil unions?
I've heard examples given here of recognizing marriages from another state that are not legal in the state recognizing them, but so far no one has claimed that a state is required to recognize a SSM from a state that does grant SSM. What happens now? Are those marriages recognized across state lines? (What do immigrants with more than one wife do, I wonder. I'm almost certain that they are just SOL.)
If it's Federal tax law at issue then how about having your Senator introduce a bill so that persons in a civil union can file jointly? "The IRS is directed to treat persons in a legal state granted civil union the same as those who are married for the purposes of Federal tax law."
People *like* civil unions. Would this really not be workable?
Synona wrote "And I'm still waiting for the "this has nothing to do with any sort of marriage other than two people of the same sex and never will" people to explain how there can be 14 SCOTUS rulings that apply to SSM, but that THIS ruling, should it be affirmed by the SCOTUS will not apply to anything else EVER."
Synova, I take it you are one of those grad students or law students who was given some "kernel of wisdom" over a beer at some grad school hangout and then turns around and repeats it ad nauseum for the next five years as if it was your own.
It might be the case that some legal defender of polygamy will cite this case in some court. But that does not mean that that court will magically accept it as being one and the same. Polygamy and Gays/Lesbians have different histories, cultural/social/biological foundations, etc.
For you to make this your argument is insulting to Gays and Lesbians in general and Ann Althouse's son in particular.
I just think you are an airhead.
Synova, opponents of civil unions did a good job of making it difficult for some states to simply put civil unions on the ballot. In a dozen or more states, proponents of civil unions will have to amend their state constitutions to counter the previous amendment that prohibited the state from recognizing civil unions.
you asked: I've heard examples given here of recognizing marriages from another state that are not legal in the state recognizing them, but so far no one has claimed that a state is required to recognize a SSM from a state that does grant SSM. What happens now? Are those marriages recognized across state lines?
Those marriages are not currently recognized across state lines. The Ninth circuit upholding Walker's decision might not change anything. How much a Supreme Court ruling on this case would change anything depends on the scope of the decision.
Until congress repeals DOMA or the Supreme Court rules it unconstitutional, DOMA means that no state is required to recognize a SSM from a state that grants them.
But IANAL.
For you to make this your argument is insulting to Gays and Lesbians in general and Ann Althouse's son in particular.
I just think you are an airhead.
Huh? synova is as level headed as they come.
If 14 USSC decisions regarding traditional marriages are precedential for SSM, then this one SSM decision will be precedential for other nontraditional marriages. If it wasn't so insightful it would be a truism.
SSM is only peripherally related to one's sexual orientation, btw. There was no litmus test applied in California during the summer of 2008. Just as gays and lesbians married members of the opposite sex for reasons other than sexual attraction, I'm sure straights will marry members of the same sex for other reasons (economic, child-rearing, etc.).
Former Law Student,
Women marry men and men marry women now for reasons other than love and sexual attraction. Some of these reasons include "economic, child-rearing, etc."
FLS, I think opponents of SSM are using rhetoric re. polygamy that will make it hard for them to argue against polygamy after SSM is recognized.
But hey, they are free to make whatever arguments they want to make.
I don't think supporters of SSM can answer the slippery slope charge in a way that will satisfy those opposed to SSM.
Phil, if you are going to be that bigoted, why bother trying to argue?
Still going strong after 11pm are we? As one of the most vocal of this particular facet of the argument, let me restate, for Phil and Peter who have commented recently, that I'm all for SSM. This isn't some obtuse attempt to subvert that movement.
What I find puzzling, still, is that a good great many of proponents of SSM are against polygamy. I don't see it as intellectually consistent.
That's really my only bitch.
ScottM
how can you possibly support SSM when you can't even answer you're question you've asked here ad lengthum?
Sy
I think your twisty logic is frankly twisted one too many times.
What is the logic of banning, say, animal cruelty, the "cat in the wood chipper" example i mention. Well, you could say that the state may vindicate the rights of these creates as living beings, except that Roe v. Wade said you cannot restrict the freedom of a person to guard life, unless we are talking about the life of a person. So there goes that.
So the fallback was, well, its immoral. Oh, except that the SC said in Lawrence that morality was not good enough either.
If you could declare that what was not a person was legally entitled to rights, then we could do that for fetuses and curtail if not abolish the "right" of abortion.
Scott, once we let people divorce their spouses to marry their affair partners, we redefined marriage.
How far it goes, I don't know.
"I get it now."
Do you?
"Polygamy and Gays/Lesbians have different histories, cultural/social/biological foundations, etc."
Yes. And I don't see how that comes down on the side of Gays and Lesbians on this issue. (Also, the polyamorists I know believe they have a biological foundation. I doubt it, but it's not really for me to say, is it.)
"For you to make this your argument is insulting to Gays and Lesbians in general and Ann Althouse's son in particular."
Only if you refuse to separate functions of government from morality, as many people do. I tend libertarian so I almost never confuse the functions of government with right and wrong.
Now, maybe marriage ought not be formally regulated and recognized by the state at all... but that's a different argument entirely. We're assuming, because that's how the world *is* right now, that the state is presently in the business of regulating marriage and it's going to stay that way.
My point has never been that SSM is wrong or undesirable, only that marriage itself is not a "right". It is and has always been, since any sort of formalized recognition, something that is subject to arbitrary limitations, often enough entirely irrational limitations. Saying that marriage itself is a fundamental right is *odd*.
Saying that it is a fundamental right but one that only applies to a very particular combination of persons is irrational.
If we do decide that our Constitution includes marriage as a fundamental right and a right that is protected by the Constitution, then that is what it is and it is that for *everyone* unless very specific and persuasive arguments can be made that the state has a compelling interest why not.
I believe that an argument against the marriage of children would be easy to make because of their particular vulnerability and the fact that they will grow out of it before too long. An argument against the marriage of the mentally infirm is more difficult because they are vulnerable, but aren't going to grow out of it. An argument against threesomes of consenting adults is impossible to make beyond the annoyance of legal complexities.
"I just think you are an airhead."
I'm not the one who thinks they know all about me because I went to two years of Bible School.
Peter, thank you.
I guess we put a fork in this one. The whole argument, much as some of those on the pro-SSM side wanted to label us as bigots, has nothing to do with whether we think SSM is good or bad either for the people involved or society at large. It doesn't matter. Synova summed up nicely when she mentions that making it a "right" just doesn't ring true. We're granting a right to a couple of groups of people but leaving out an entire other group, abliet a minority in number, simply because they want to make sanctioned whoopi (lol) with more than one person?
I would really like for those opposed to at least cut us the slack that we're not anti-SSM and drop that part of their argument.
Synova wrote "Only if you refuse to separate functions of government from morality, as many people do. I tend libertarian so I almost never confuse the functions of government with right and wrong."
This a good example of you just not making any sense. I realize that you think that writing such spacey, far out sentences will make you sound more authoritative. But, believe
me it doesn't.
Very few serious people would claim that there is not a moral dimension to government. In fact it is most often the central narrative of our political debates.
Do you seriously believe that you do not care about "right and wrong" and how government functions?
The desire to get it "right" and make sure we as a society are not committing "wrongs" is what drives our public discourse. It is also central to the debate over SSM.
Synova, do you know who also did not "confuse the functions of government with right and wrong"?
Stalin and Hitler. That's who. All "Thriumph of the Will" and that groovy jazz.
Is that who you want to associate yourself with?
And you know who else compared everything to Hitler?
Hitler.
Good night.
Anglelyne - the point of my last post isn't that creating these laws would be too hard. It is that is hard to argue that you are simply "extending a current right" as opposed to "creating a new right" when extending that right means creating an entire new subset of Family Law just for the polygamous marriages.
In the case of same-sex marriages, the only thing that has changed is the definition of who can be married. Everything else fits into the same framework of current Family Law. No changes in the probate system, or in divorce/custody law are necessary.
what's so hard to understand about "equal protection under the law" ? why is it that when that simple, basic concept is applied to gay citizens, suddenly the constitution is being "shredded"?
could it have something to do with the deep-seated prejudices that allow some people to leave comments here and elsewhere that compare gay citizens to children, animals, and enemies of all that is moral?
it seems to me that judge walker was spot on in his judgment of the situation.
Phil
> Polygamy and Gays/Lesbians have different histories, cultural/social/biological foundations, etc.
Yeah, for instance, there are many religions that say that polygamy is fine, even required. So legalizing it has some non-laughable support in the constitution, under the first amendment.
> For you to make this your argument is insulting to Gays and Lesbians in general
First, I love the argument. Althouse’s son might be gay (is he? Don’t know and don’t care), therefore you cannot argue against gay marriage.
The fact is that the gay marriage advocates are at a loss to explain why gay marriage should be allowed but 1) plural marriage, 2) animal cruelty including beastiality, 3) incest (including gay incest, “incest” between people related solely by adoption and “incest” between a step brother and a step sister) can even land you in prison at least not in any terms that the supreme court will recognize (for instance, Roe v. Wade precludes valuing the lives of animals as intrinsically valuable). You insist that we won’t slip down the slippery slope into legalizing, say, gay incestuous marriage, but you can’t name any reason to think we won’t, any reason to think that the logic of this ruling can’t be DIRECTLY APPLIED to these other situations.
Of course my position is this. Although meaningful distinctions cannot be made, OF COURSE the supreme court won’t legalize gay incest, etc. Because contrary to what they claimed in Lawrence, they aren’t opposed to the law having a moral foundation, so long as it is their “enlightened” morals, not ours. And either they are too blinded by their own arrogance to see it, or they are completely insincere in their reasoning.
Morality can be and is the foundation of much of our law. To pretend it is not the case is to deny reality. The way to win gay rights is not to shove it down our throats unwilling, but to convince us.
Gay advocates are fond of citing the libertarian ideal that whatever consenting adults would like to do is their business. Consent matters to them, as it does to any sane person. But consent of the governed doesn’t. The founders of the 14th Amendment didn’t consent to this. We the American people didn’t. They couldn’t even get the majority of Californians to consent. They tried to force it down Californians’ throats and they amended their constitution to make it clear that they did not consent.
How long do you think you can go without the consent of anyone but the judges?
James, there is no greater risk of forced marriages in polymory than there is in any other typpe of marriage. It is an irrational reason to oppose.
Like it or not, when you use courts to change definitions of words, you don't get to choose where it ends. How many people thought a ruling allowing the purchase of contraceptives would lead to abortion legalization?
That's why going the political way makes more sense. Using a scalpel for surgery is preferrable to a Bowie Knife, yet both can do the job.
James: Anglelyne - the point of my last post isn't that creating these laws would be too hard. It is that is hard to argue that you are simply "extending a current right" as opposed to "creating a new right" when extending that right means creating an entire new subset of Family Law just for the polygamous marriages.
"The point of my last post isn't that creating these laws would be too hard but that creating these laws would be too hard."
On what basis are you making the claim that "having to create some new subset of laws" defines what puts "extending a right" over the line into "creating a right"?
I'm pretty sure quite a few "equal protection" judgments in the last few decades required boatloads of new regulations to be entered into the legal code. I don't recall that this was a main (or even a minor) reason given for Mormons being denied the right to practice polygamy. But I assume you're tacitly referencing some set precedent regarding constitutional rights and extent of new code and legal paperwork required. Otherwise your argument here is entirely bogus.
wv: doity. You doity rat.
Okay, i have something new to add to the conversation. Something occurred to me. You know what other case Olson was involved in? McConnel v. the FEC. As solicitor general he defended the very same McCain feingold legislation that later Kagan failed to successfully defend in Citizen's United.
So he is comparing a right not in the constitution with a right he tried to subvert.
Anyway, here's the proof of his role in McConnell: http://www.oyez.org/cases/2000-2009/2003/2003_02_1674
btw, i wrote out that last bit in my own post here:
http://allergic2bull.blogspot.com/2010/08/calling-bullshit-on-ted-olson.html
former law student said...
And with her 9:36 comment, Synova wins the thread. Too bad it's not on the first page of comments.
Agreed. And Ritmo gets an Honorable Mention for being her unwitting straight man.
"...could it have something to do with the deep-seated prejudices that allow some people to leave comments here and elsewhere that compare gay citizens to children, animals, and enemies of all that is moral?
it seems to me that judge walker was spot on in his judgment of the situation.""
Except that Judge Walker's judgment was that you can't base those decisions on majority opinions of morality, or majority opinions at all.
Worries about the "enemies of all that is moral" are disallowed.
Oh, and I'm glad I checked back... Stalin and Hitler are now libertarian, who knew?
LOL!
Revanant (for everyone else, I am continuing a conversation from another thread, because that conversation was off topic—and the fact it went off topic was my fault, by the way)
We can sum up the story as this: “Gay judge rules that there is a right to gay marriage in the constitution.” And you don’t see even a question of whether the judge was ruling fairly?
Sure, ruling whether or not YOU can get married is the same as ruling whether someone else can. *rolls eyes*
A few other problems with that view.
First, you pretend that there is only one justification for banning gay marriage.
Second, your argument is circular. If gay marriage harms straight marriage then the straight judge is biased. But if that is the case, then I guess a ban on gay marriage would easily pass the rational basis test, right? I mean the bias only kicks in when the heterosexual believes that gay marriage will harm his marriage. If the straight guy never comes to believe that, then there is no bias problem at all.
Third, you are confusing the institution of marriage with individual marriages. For instance, if people stop getting married the institution suffers. But no actual marriages are harmed. And that is one theory of how gay marriage could harm straight marriage.
Fourth, you pretend that all bias is created equal. You equate a direct, tangible, and obvious benefit to a harm that is indirect, intangible, and indeed whose very existence is heavily disputed.
For instance, take the suits involving Obamacare. Now suppose there were two judges you might choose. The first owns stock in Kaiser Permanente (a good sized health care company). The second doesn’t. But of course as a citizen of the republic he is most likely eventually going to need health care. And if Obama destroys or seriously degrades the health care system he might suffer. So he is biased! OMG!
Well, maybe so, but the bias is nothing compared to the bias of directly owning stock in a health care company that stands to financially gain from the outcome of the litigation. Ditto with your argument about heterosexual bias.
And certainly you will recognize that if the judge had a pending marriage proposal that would be a problem, right? Certainly you will concede that, at the very least? Well, for that precise reason the judge should have disclosed the fact he was gay and the exact status of the relationship. Which, yes, I know, he might not want to talk about, but well, that is the life of a judge. And I would note that if he just disqualified himself from the outset it wouldn’t have been a problem.
I mean the case is already dubious. Wow, so there is a right in the constitution to gay marriage. As in the state must recognize marriages (it can’t get out of the marriage business as some libertarians have suggested) and they MUST recognize gay marriage. Isn’t that amazing? We have been in violation of the constitution for 142 years but he has just figured it out now. you know those people who freed the slaves while singing Glory, Glory Hallelujah? You know, those evangelical Christians? They wanted gay marriage.
That doesn’t pass the laugh test, and everyone knows it.
Add to that the myriad things that the judge did that deviated from procedure. Violating the APA when trying to bring cameras into the courtroom. And he had discovery orders that didn’t take sufficient account of first amendment protections. Two times this judge had to be corrected by a higher court in the conduct of is trial where he was improperly siding with the pro-gay-marriage side. Even if he was straight, it would be hard not to believe he had an agenda.
I think his status raises a reasonable question. I think his conduct of the trial and ridiculous ruling leads one to think there was a good chance of actual bias. This is a glaring problem and you should dismiss it so quickly write it off.
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