Political & Elections

Razorsharp · Guru

RE: Rep Walsh's speech on marriage equality

catahoula · Guru

The Ninth may have hedged it's bets this time:

The only difference Reinhardt acknowledges between the two ballot measures is that whereas Amendment 2 imposed "a broad and undifferentiated disability" on homosexuals, Proposition 8 "excises with surgical precision one specific right."

Those who hope for a reversal of today's decision can perhaps take comfort that Justice Kennedy emphasized Amendment 2's breadth in his decision striking it down. But if Romer was correctly decided, as Kennedy obviously thinks it was, then Reinhardt's logic is compelling. It would take a lot more work to overturn today's ruling than to uphold it.

For Justice Kennedy, then, the path of least resistance is to follow what probably is his inclination to begin with--and he can do it without (yet) taking the momentous step of finding a new constitutional right to same-sex marriage. It seems perverse to suggest that the U.S. Constitution prohibits a state from amending its constitution to reverse a dubious ruling by the state's judiciary. But that would seem to be the inexorable consequence of Romer.

Besides being conservative, Taranto's not even a lawyer, so I suspect he paid one to explain all of this to him.

SamuraiLandshark · Guru

For those that aren't familiar with the 9th Circuit Court of Appeals:

from Wiki:

Most overturned court in the United States

Of the 80 cases the Supreme Court decided this past term through opinions, 56 cases arose from the federal appellate courts, three from the federal district courts, and 21 from the state courts. The court reversed or vacated the judgment of the lower court in 59 of these cases. Specifically, the justices overturned 40 of the 56 judgments arising from the federal appellate courts (or 71%), two of the three judgments coming from the federal district courts (or 67%), and 17 of the 21 judgments issued by state courts (or 81%).

Notably, the 9th Circuit accounted for both 30 percent of the cases (24 of 80) and 30 percent of the reversals (18 of 59) the Supreme Court decided by full written opinions this term. In addition, the 9th Circuit was responsible for more than a third (35%, or 8 of 23) of the High Court’s unanimous reversals that were issued by published opinions. Thus, on the whole, the 9th Circuit’s rulings accounted for more reversals this past term than all the state courts across the country combined and represented nearly half of the overturned judgments (45%) of the federal appellate courts.^[10]

The 9th Circuit also hears the most cases of any of the circuit courts and thus has the most decisions move on to the Supreme Court.

catahoula · Guru

Why would you assume I think the justices are impartial?

Poor choice of words in that last but the coals were past ready, duties are duties, and a late edit didn't seem worth it.

We just view things differently. What you describe as a resoned and logical process towards a more perfect interpretation of rights looks like an organized effort to find loopholes in tax law to me. Not a perfect analogy, I admit, since I can't imagine there are many IRS commisioners with a bias towards the belief the tax code should evolve on a day-by-day basis according to the wishes of the taxpayer but it'll serve.

(I suppose the Ninth amendment means exactly whatever the last lawyer convinced a willing judge it did - though if it was the Ninth circuit that last weighed in, I'll go for another door.)

winchester · Guru

Hayden on one hand there’s some truth to your note. If things were easy and clear they’d never get to the Supreme Court.

But on the other hand, a little too much moral relativism is sneaking into your thinking.

For example, you say “Just because the justices disagree, doesn't mean one is right and one is wrong.” True enough. But the opposite is also true. The fact that two people believe equally strongly in opposite sides of an argument does not mean that both beliefs are equally valid. The judges may disagree precisely because one of them IS wrong.

Also, it does not necessarily follow from judges’ disagreement that “each side is giving greater weight to one part of the Constitution over another.” Sometimes, issues reach the Supreme Court precisely because the lower courts got it wrong. This seems to happen disproportionately frequently with the 9th Circuit Court.

The fact is, there is a right way and a wrong way to interpret the constitution much more often than liberals, and liberal judges like Reinhardt, like to admit, or even arguably, can fathom.

For example, the principle of fairness upon which this country was founded, and upon which the constitution is based, is the conservative one in the poker game analogy I used in the “Fair Share” thread, repeated here for convenience:

"Let's say we have a weekly poker game. I always lose and you always win.

To conservatives, if everyone follows the rules of poker and nobody cheats then the game is fair.

To lliberals, if you are so much better than I am that I have practically no chance of ever winning then the game is NOT fair."

Similarly, liberals and conservatives have different understandings of words like “justice” and “equality” which follow roughly the same thought process as the poker game analogy.

And further, it is the conservative connotation of those terms upon which the Constitution is based. Despite the liberal preference to see things otherwise, and to teach their alternate view in the public schools and in many colleges, this is a matter of historical fact.

Nobody here is “so easily dismissing the court’s integrity,” or failing to show respect for the court or for our system of government. The court is made up of humans, and as humans the judges are every bit as susceptible to the confirmation bias, and all the other faults of human reason, as anyone else, and can therefore just as easily be wrong as anyone else. And it is no disrespect to point out when they are, as is the case whenever they employ the liberal conceptions of “fair,” and “justice,” and “equality,” as Judge Reinhardt did in his Prop 8 decision.

-- Edited by winchester on Saturday 11th of February 2012 09:57:17 AM

hayden · Senior Member

Why would you assume I think the justices are impartial? No one is impartial, we're all human.

So many critics of court rulings sound as if they think the answer to whether something is consitutional or not consitutional is so easy, so simple; and when the court rules against your own views, they're obviously over reaching or "acitivist". The fact is, if these questions were simple, they wouldn't get to the supreme court in the first place, either SCOTUS, or the state supreme courts.

Contrary to popular belief, rulings are usually not between one side that's constitutional and the other side that's not. Court rulings at the level of the supreme courts are more typically between two sides that each have valid arguments for why they are constitutional, and the judges are really trying to weigh which argument is STRONGER, not which argument is "right".

That Washington Times editorial was just plain ignorant of what the ruling on Prop 8 said. If it gets to SCOTUS, we'll see valid arguments on both sides, but that editorial writer's opinions won't be one of them. I personally may agree or disagree with a particular ruling, but only once have I ever felt the justices ruled in a way that did not reflect their honest reading of the words and the intent of the Constitution. Just because the justices disagree, doesn't mean one is right and one is wrong, but rather that each side is giving greater weight to one part of the Constitution over another. People who so easily dismiss the court's integrity aren't showing respect for the court, or for our American system of government.

Your Washington Times friends along with so many others criticize a ruling for being right or wrong for simple reasons or shallow sentiments. That demeans our whole system of government.

I will apologize to the first person who can tell me exactly what the 9th Amendment means. It's just a single sentence, written in very easy to understand words, and in plain English, so according to you folks, it should be pretty easy to understand, right?

catahoula · Guru

More often than the 9th is overturned by the Supremes?

SamuraiLandshark · Guru

Perhaps Razorsharp is alluding to the California proposition process, which quite often is overturned by the Courts system.

hayden · Senior Member

I support gay marriage when it is enacted by legislators. I oppose gay marriage when it is imposed by judges pushing their agendas by misinterpreting the US or states constitutions.

Let me summarize what I'm hearing you say: civil rights exist only to the extent that the majority, and their elected legislators, support those rights. If the court sees it differently from the majority of people, they must be misinterpreting the Constitiution.

Kind of makes the courts immaterial, doesn't it? And if we only go by majority opinion as expressed by the legislature, why bother to even have a Constitution, or a court to interpret it, since it is all so unnecessary.

I'm always mystified when people claim to support the Constitution, but aren't prepared to live by it.

Razorsharp · Guru

I support gay marriage when it is enacted by legislators. I oppose gay marriage when it is imposed by judges pushing their agendas by misinterpreting the US or states constitutions. Tyranny by judge is among the worst forms of tyranny.

hope · Guru

a majority’s private disapproval of them and their relationships

Personally, I do not privately disapprove of gay people or their relationships; nor do I find their private expression of their sexuality "disgusting."

This kind of language is in itself rather inflammatory, and I don't think it has much of anything to do with the primary reasons people oppose gay marriage.

catahoula · Guru

Gracias, winchester.

I now consider myself a little better informed than I was when I got up today, which is usually a positive.

winchester · Guru

It appears that the problem is one of language.

French, for example, uses tu to address those who are close, and vous for more formal relationships.

In other languages, particularly those from northern climes where it matters, there are different words for snow.

Analogously, in America today, or at least in California, there are different legally-recognized types of committed relationships, but only one word to describe them: Marriage.

It appears that Prop 8 is essentially a battle over the definition of the word.

winchester · Guru

What, exactly, is the officially stated problem with the civil union solution?

Below are the first couple of paragraphs, copied as is with no embellishments, of the positions for and against Prop 8 from the 2008 California General Election voter’s guide. There's much more to it, of course, so I provided the link. But it appears that the fundamental debate is over the answer to the question: What's in a name?

http://voterguide.sos.ca.gov/past/2008/general/argu-rebut/argu-rebutt8.htm

In favor of Prop 8:

Proposition 8 is simple and straightforward. It contains the same 14 words that were previously approved in 2000 by over 61% of California voters: “Only marriage between a man and a woman is valid or recognized in California.”

Because four activist judges in San Francisco wrongly overturned the people’s vote, we need to pass this measure as a constitutional amendment to RESTORE THE DEFINITION OF MARRIAGE as a man and a woman.

Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, “domestic partners shall have the same rights, protections, and benefits” as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.

Against Prop 8:

OUR CALIFORNIA CONSTITUTION—the law of our land—SHOULD GUARANTEE THE SAME FREEDOMS AND RIGHTS TO EVERYONE—NO ONE group SHOULD be singled out to BE TREATED DIFFERENTLY.

In fact, our nation was founded on the principle that all people should be treated equally. EQUAL PROTECTION UNDER THE LAW IS THE FOUNDATION OF AMERICAN SOCIETY.

That’s what this election is about—equality, freedom, and fairness, for all.
Marriage is the institution that conveys dignity and respect to the lifetime commitment of any couple. PROPOSITION 8 WOULD DENY LESBIAN AND GAY COUPLES that same DIGNITY AND RESPECT.

That’s why Proposition 8 is wrong for California.

catahoula · Guru

hayden:

individual courts, specifically the judges that sit upon them, tend to discover rights that the previous couldn't see. And while I realize a good lawyer can be instrumental in shedding light on what had previously been dark corners, isn't it odd they tend to discover rights that correspond to their own politcal and societal leanings?

If there wasn't such desperation to stack the supreme court in one direction or the other, I'd be more inclined to believe their interpretation of the Constituion is as wisely impartial as I gather you're implying with your post.

-- Edited by catahoula on Friday 10th of February 2012 05:37:47 PM

-- Edited by catahoula on Friday 10th of February 2012 05:39:36 PM

pima · Guru

DL, I don't think it is just Jersey.

I see the problem is tax benefits from a Federal position.

I see the problem is someone that was married to a military member, mother of a member to be commissioned in May (not gay), how the lack of the Federal govt to acknowledge these unions as the same as a heterosexual couple married by JP impacts their life.

Example:

NY recognizes homosexual marriage, Ohio does not, nor does the federal govt.

Military members can get on base housing if they are married. You get bennies not by showing your 1040, but your marriage certificate from your state.

Take a military member send them to Ft Bragg, or Norfolk, one of the largest installations in the military. The homosexual couple from OH could not get base housing, their mate would not have medical coverage, and could not go on base without the AD member. The NY spouse of an AD could get all of that. Granted DADT has just been repealed and this issue has not been resolved yet, but this will be an issue now.

A civil union from what I understand is just a legally binding agreement between 2 people. They have no protection like a heterosexual couple if they split by NJ law.

Look at the homosexual couple who married in VT, where it was legal. They moved to VA, split and spent yrs in court over custodial rights over the child because VA did not recognize the marriage, but VT did.

That is the problem for the homosexual community. Recognizing this federally would have had an impact.

DonnaL · Senior Member

"Separate but equal" isn't ever really equal, as the experience in New Jersey has proved.

catahoula · Guru

It's something that I try to ignore as best I can, since I care about it only in the sense that the tactics and rhetoric from the LGBT lobby tend to make me cringe but:

What, exactly, is the officially stated problem with the civil union solution?

pima · Guru

I always wonder why people are opposed to gay marriage, let's be honest if your house of worship opposes it, i.e. Catholics it still doesn't impact you personally. It is not like the church will now allow it, but they use this as a defense of their position. Remember, I am Catholic, and I have no problem with it, I respect everyone's choice.

I watch the show The Closer, and I remember one episode when the grumpy detective stated he believed in gay marriage, and the others had a shocked look. His next line was: What, they should have the same right to be just as miserable as the rest of us.

catahoula · Guru

I guess I was too vague with my question.

Let's posit civil unions in a federal sense and consider Hayden's post as a starting place:

If gay union is identical in rights and responsibilities to gay marriage, but Prop 8 forbids the unions from being called "marriage", then the court examined whether such a distinction in name is supported by the state Constitution. As the Court said,[/quote

It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.

Maybe the answer is the one the court pulled out?

-- Edited by catahoula on Friday 10th of February 2012 09:46:46 AM

winchester · Guru

I always wonder why people are opposed to gay marriage

Political and moral views come from deep inside us. They come from our instincts and our intuitions; our “gut feel.” And those, in turn, are products of two things, enculturation, and evolution; nurture, and nature.

Enculturation is the process of learning our sense of right and wrong from our environment. It comes directly through teaching of children by adults, and it comes subtly and indirectly, from the constant, insistent, persistent messages of our social and cultural surroundings.

Together, nature and nurture create within us an instant, visceral, reaction to like or dislike something, the desire to approach it or avoid it, fight or flee. This reaction is behind practically every aspect of human behavior and interaction, and even thought.

The notion that we are creatures of reason - driven by rational thought and objective analysis – is an illusion. Our thoughts, our ideas, our actions, are driven by our visceral reactions to things we see in the world around us; it’s not the other way around. Feelings come first, the role of "reason" is to defend and promote them after the fact.

A better understanding of the feelings against gay marriage requires a better understanding of where the visceral reactions are coming from. I believe that some, though not all, of the objection to gay marriage comes from the visceral reaction that "the temples have all gone to the dogs."

When I began to study morality, I read about the moral codes of many cultures, and the first thing I learned is that most cultures are very concerned about food, sex, menstruation, and the handling of corpses. I had always thought morality was about how people treat each other, so I dismissed all this stuff about “purity” and “pollution” (as the anthropologists call it) as extraneous to real morality.
…
But as I read further, I began to discern an underlying logic – the logic of disgust.
…
Disgust clearly has its evolutionary origins in helping people decide what to eat. More than three million years ago, our ancestors became omnivores, adding a great deal more meat into their previously fruit-heavy diet. But when they went for meat, including scavenging the carcasses left by other predators, they exposed themselves to a galaxy of new microbes and parasites, most of which are contagious – they spread by touch. Disgust was originally shaped (by natural selection) as a guardian of the mouth: it gave an advantage to those individuals who went beyond the sensory properties of a potentially edible object (does it smell good?) and thought about where it came from and what it had touched.

But disgust doesn’t guard just the mouth; its responsibilities expanded over time so that now it guards the body more generally. Disgust plays a role in sexuality analogous to its role in food selection, helping to guide people to the narrow class of culturally acceptable sexual partners and sexual acts.
…
This expansion, from guardian of the mouth to guardian of the body, makes sense from a purely biological perspective: we humans have always lived in larger, denser groups than most other primates, and we lived on the ground, too, not in trees, so we were more exposed to the ravages of microbes and parasites that spread by physical contact. Disgust makes us careful about contact. But the most fascinating thing about disgust is that it gets recruited to support a great variety of norms, rituals, and beliefs that cultures use to define themselves. For example, many cultures draw a sharp line between humans and animals, insisting that people are somehow above, better than, or more god-like than other animals. The human body is often thought of as a temple, housing divinity within: Do you not know that your body is a temple of the Holy Spirit within you, which you have from God? You are not your own… so glorify God in your body. (1 Corinthians 6:19-20, RSV).

Yet any culture that says that humans are not animals, or that the body is a temple, faces a big problem: our bodies do all the same things animal bodies do, including eating, defecating, copulating, bleeding, and dying. The overwhelming evidence is that we are animals, and so a culture that rejects our animality must go to great lengths to hide the evidence. Biological processes must be carried out in the right way, and disgust is a guardian of that rightness. Just imagine visiting a town where people wear no clothes, never bathe, have sex in public using the “doggie-style” position, and eat raw meat by biting off pieces directly from the carcass. OK, perhaps you’d pay to see such a freak show, but as with all freak shows, you would emerge degraded (literally: “brought down”). You would feel disgust at this “savage” behavior and know, viscerally, that there was something wrong with these people. Disgust is the guardian of the temple of the body. In this imaginary town, the guardians have been murdered, and the temples have gone to the dogs. – From chapter 9 of The Happiness Hypothesis, by Jonathan Haidt

-- Edited by winchester on Friday 10th of February 2012 10:51:57 AM

romanigypsyeyes · Guru

http://www.opposingviews.com/i/society/gay-issues/wash-state-rep-maureen-walshs-emotional-gay-marriage-speech

IMO, this was a wonderful speech and I applaud the two Republicans who voted for marriage equality in Washington (and all those everywhere who support marriage equality regardless of political party). Bravo, Representative, bravo.