California Voters Approve Gay-Marriage Ban

LOL, well put.

A
R
T

Outstanding example, Thomas. Very well said!

Thanks for the responses they have been very civilized and well informed. Even when this topic is out of the news it is still a very pertinent issue, that all people of life's humane diversity are treated with the same dignity. Human rights and liberty leads to social peace and acquiescence.

That'll never happen, but we must continue to strive for it.

Over my dead body

Brandon,

You're free to hold these opinions, but the fact is that the courts don't agree with you. Just like the courts don't agree with the Birthers. Just like the courts don't agree with the folks who believe that government can't really force people to pay income taxes.

You can wish away reality all you want, but you won't change the way the world really works.

Don't know what you mean, but I like your idea.

Sad but true, the cost of liberty is often preceded by self sacrifice...

http://www.msnbc.msn.com/id/38668321/ns/us_news-the_new_york_times/

http://www.foxnews.com/politics/2010/08/12/federal-judge-allow-gay-marriages-resume-week-california/

It's like the right to privacy - an implied right, but not a specifically enumerated one. Doesn't stop the courts from recognizing its' existence though.

Cycloptichorn

What a lovely prospect. I hope it works out.

There's a new procedural wrinkle in this case that might mean it won't end up in the US supreme court after all. The proponents of Prop 8 may not have standing to bring an appeal of Judge Walker's ruling.

To understand this issue, a bit of background is necessary. When the plaintiffs brought their case against Prop 8, they named the state and various state and local governmental entities as defendants. The state, however, conceded that Prop 8 was unconstitutional and refused to defend it. The other defendants did not take a position on the proposition, and so they, in effect, refused to defend it too. The intervenors, who were the "official proponents" of the proposition, stepped into the lawsuit as defendants, in large part because nobody else was willing to defend Prop 8 in court. They lost, and now they're planning to appeal.

But they might not have "standing" to pursue an appeal. Remember, they're intervenors, not defendants. That means that the court allowed them to intervene in the lawsuit. There's no requirement for intervenors to have standing so long as there's at least one party on the intervenors' side that does have standing. In this case, although none of the named defendants was active in defending the case, they were still defendants and they all had standing, so there was no problem in bringing the intervenors in on their side.

The problem arises, however, when the case goes up on appeal. None of the named defendants has indicated any interest in appealing Judge Walker's decision. The intervenors want to appeal, but they would be on their own if they did -- they couldn't, in other words, piggyback on the standing of the defendants, since none of them will be part of the appeal. The intervenors, therefore, will need to establish standing on their own in order to bring the appeal, and it looks like they might not have it. I won't repeat the arguments here and here, but suffice it to say that they present a very interesting twist to this story. If the intervenors don't have standing to appeal, then the district court judgment will stand, but it will only apply to California.

The standing issue, it seems, bears on the status of the "official proponents" of a citizen initiative in California. From a brief and cursory review of the California elections code, the only significance to the designation of "official proponent" of a ballot initiative involves the collection of signatures to get the measure on the ballot. I haven't found anything to suggest that the "official proponents" have any heightened interest in the initiative that might give them standing to defend the initiative in court.

Now, my usual caveat: I still haven't the entire opinion in this case. Maybe I'll do that this weekend. It still leaves me somewhat troubled that an "orphan initiative" like this can be abandoned by the state and the courts will then declare that no one else has standing to defend it. But then that's also the case with "orphan laws" that the executive branch chooses not to defend, so this doesn't look like a problem unique to citizen initiatives. Nevertheless, I'm still left with a nagging doubt that there's just something wrong with this opinion, yet I can't put my finger on it.

Do you believe that this was Walker's intention all along, Joe?

Cycloptichorn

It's difficult to say. None of the named defendants was willing to defend Prop 8. The judge could have just heard evidence from the plaintiffs and ruled on that basis alone, but then that would have left him open to charges that he was stacking the deck against Prop 8. He needed to have someone defend the proposition, and the only ones willing to do it were the "Yes On 8" crowd, so he took what he could get. As it turned out, the intervenors did a lousy job at trial, although, to be fair, they had a pretty lousy case to begin with.

Judge Walker didn't have to deal with the standing issue, since the named defendants all had standing, so I'm not sure if that played any role in his decision or the way he drafted his opinion. All of the commentators have agreed that Walker wrote the opinion with an eye to the inevitable appeal (which isn't very unusual, especially in high profile cases that are likely to be appealed), but he wouldn't have dealt with the standing issue in his opinion because that wasn't an issue in the trial. It only becomes an issue if the intervenors plan to appeal, which is something that is out of Walker's hands.

joe, There are legal experts on both side of this fence that will argue their positions; some are law professors who believes Walker did a poor job in the way he brought about overturning Prop 8.

But I have already shown that they do suffer, or can reasonably claim to, both concrete and particularised harm and in more than one way.

Proceeding with the argument as if I had not made those cases, having them on Ignore in effect and not answering them, is the vilest form of totalitarian, anti-English language and anti-family sophistry. The very spirit of the Constitution, in the name of which some of these arguments are being made, is undermined by such a thing.

It is an empty assertion that there is no harm which cannot be stood up straight and proud unless my previous arguments are undermined. Which they have not been and nor has an attempt been made to do so.

This Ignore thing seems to be deep-seated.

No, you haven't. You have only asserted that they do, but you haven't provided sufficient evidence to show that your position is valid. Neither did the defendants in the Prop 8 case.

Cycloptichorn

Interesting!

Appreciating your informed commentary on this subject.

Not sure what I hope for, here... on the one hand I'd like for this to be done for Californians (that's that, they gay marriage is legal there, go propose already), on the other hand I kind of wanted it to go all the way to the Supreme Court. And win. I'm impressed with Boies and Olson as a team, but I guess they could take some other case all the way.

Well Cyclo--I raised at least three questions.

1--That one single judge, who it has been said is a homosexual, not by me, can overturn a democratic vote which was well publicised. And a judge seeming to me to garner power over the ultimate jury is hardly a surprise either. And one who likes publicity and being headline news fulfills such ridiculous ambitions by his own decision. That's three reasons for him being partial. And each single one a powerful motive.

2- That the language is being denuded of meaning in the sense that the whole constellation of words, phrases and jests surrounding the married state are involved in this radical alteration in the meaning of the word "marriage" just as has happened with the word "gay". I gave examples and I quoted Orwell.
One can no longer sing along with heterosexual integrity to Kalman's Gay Hussars and even those beautiful Sari Viennese waltzes would be a laughing matter if performed by two eyebrow tweezed chaps in tight trousers. The last stage of the Gay Gordon's is where the partners polka romp round the room with whoever they are with when the music stops.

The mind boggles just dipping a toe into the water of that constellation being rendered ambiguous. It's stupifying. Where are America's English Literature teachers?

3- That heterosexual married couples have a right to the particular distinguishing title "married" and do not want it associated with homosexual activities. And, presumably, voted to say so. That they feel it demeans them which lowers their self-esteem and thus harms them.

We are in that zone which Shakespeare draws attention to wherin lies have an infinite range of expression and truth is inexpressible. Cordelia in Act I Scene I of King Lear.

I submit, your reverences and worships, that the assertion that there is no harm done is false and therefore the argument that proponents of Prop 8 have no standing in an appeal is also false.