# Prop-8 Arguments Today - What will happen? **URL:** \ **Category:** Great Debates\ **Created:** [March 5, 2009, 2:50pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386 "2009-03-05T14:50:54Z")\ **Posts on this page:** 20\ **Page:** 8
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [August 5, 2010, 5:03am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/141 "2010-08-05T05:03:11Z")
> [@alphaboi867](#): > > > [@BrightNShiny](#): > > > > No. Only a decision of the appeals court applies to the entire circuit jurisdiction. > > So if this is upheld on appeal (& not stayed pending SCOTUS review) same-sex marriage suddenly becomes legal in Alaksa, Arizona, Hawai’i, _Idaho_, Montana, Nevada, Oregon, Washington, and Guam as well in California? 🙂 Does that mean that the Attorneys-General of those stand could be granted intervenor status at the appeal? 😕 Wouldn’t that mean that _every_ single state/territory AG in the country could intervene at the Supreme Court? :eek: It really depends on what the 9th’s ruling turns out to be and how broad it is. There are so many permutations here, that a number of scenarios are possible. The situation you outline is (for the most part) theoretically possible, but I think it’s unlikely. My guess is the 9th would likely stay a ruling upholding the District Court. However, whether or not the District Court will stay is a whole different kettle of worms. There are pretty good arguments (IMO) that it’s not necessary for the District Court to issue a stay, so it’s anybody’s guess. ---
**Author:** ![DragonAsh](https://avatars.discourse-cdn.com/v4/letter/d/db5fbb/32.png) [@DragonAsh](https://boards.straightdope.com/u/DragonAsh)\ **Post date:** [August 5, 2010, 11:45am UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/142 "2010-08-05T11:45:08Z")
While I haven’t read every single word of the judgement, I’ve read a fair chunk of it. The judge does not paint the Prop 8 proponents in a very good light…a popular phrase > [@](#): > > 'lacks the qualifications to offer opinion > testimony and, in any event, failed to provide cogent > testimony in support of proponents’ factual assertions. > > \ > > The court concludes that “there is simply too great an analytical gap > between the data and the opinion proffered. Other tidbits: > [@](#): > > Moreover, much of his testimony contradicted his opinions. > Blankenhorn testified on cross-examination that studies show > children of adoptive parents do as well or better than children of > biological parents. Tr 2794:12-2795:5. Blankenhorn agreed that > children raised by same-sex couples would benefit if their parents > were permitted to marry. Tr 2803:6-15. Blankenhorn also testified > he wrote and agrees with the statement “I believe that today the > principle of equal human dignity must apply to gay and lesbian > persons. In that sense, insofar as we are a nation founded on this > principle, we would be more American on the day we permitted same- > sex marriage than we were the day before.” DIX0956 at 2; Tr > 2805:6-2806:1 > [@](#): > > Miller’s credibility was further undermined because the > opinions he offered at trial were inconsistent with the opinions he > expressed before he was retained as an expert. The ruling all but calls Prop 8 proponents ignorant, homophobic bigots.They got this one right. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 5, 2010, 12:35pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/143 "2010-08-05T12:35:09Z")
> [@joebuck20](#): > > These people are fucking retarded. If you want to start a Civil War, go ahead. What’s stopping you? If you’re such badasses, quit talking and just do it. Oh that’s right you don’t have the balls to do anything besides act like giant poseurs. Agreed. The judge’s opinion is well-thought-out and does not contain a hint of bias. A reasonable judge could, and did, decide this way. Why must every decision people don’t agree with be the product of malice, of evil, or of bias? Why can’t these people simply say, “I don’t agree with his analysis,” and leave it at that? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 12:52pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/144 "2010-08-05T12:52:48Z")
> [@Bricker](#): > > Why can’t these people simply say, “I don’t agree with his analysis,” and leave it at that? because in order to say that, they would actually have to understand the analysis. they don’t, so it turns into vitriol as a replacement. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 12:53pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/145 "2010-08-05T12:53:59Z")
> [@Bricker](#): > > Why can’t these people simply say, “I don’t agree with his analysis,” and leave it at that? I’d be interested in seeing a rational, opposing analysis using the 55 pages of fact written up in this ruling. Not because I disagree with the current ruling (I think it is great) but because I am hard pressed to imagine how it could be otherwise so would be curious to see if it could be done and still be rational. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 12:58pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/146 "2010-08-05T12:58:29Z")
> [@Whack-a-Mole](#): > > > [@Bricker](#): > > > > Why can’t these people simply say, “I don’t agree with his analysis,” and leave it at that? > > I’d be interested in seeing a rational, opposing analysis using the 55 pages of fact written up in this ruling. Not because I disagree with the current ruling (I think it is great) but because I am hard pressed to imagine how it could be otherwise so would be curious to see if it could be done and still be rational. ok, you realize you’re stacking the deck, right? “findings of fact” aren’t exactly findings of mana from heaven - they’re skewed and subject to the trier of facts’ own perspective on things. That said, I don’t think it would be very difficult to have a rational, 100+ page opinion finding the exact opposite of what this judge found (not having the benefit of knowing how adept or bumbling counsel was for each side). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 5, 2010, 1:10pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/147 "2010-08-05T13:10:18Z")
> [@Whack-a-Mole](#): > > > [@Bricker](#): > > > > Why can’t these people simply say, “I don’t agree with his analysis,” and leave it at that? > > I’d be interested in seeing a rational, opposing analysis using the 55 pages of fact written up in this ruling. Not because I disagree with the current ruling (I think it is great) but because I am hard pressed to imagine how it could be otherwise so would be curious to see if it could be done and still be rational. That’s a bit unfair. A rational argument against legalizing gay marriage is hard to imagine. A rational argument for upholding Proposition 8 isn’t, really. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [August 5, 2010, 1:15pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/148 "2010-08-05T13:15:43Z")
> [@Rumor\_Watkins](#): > > That said, I don’t think it would be very difficult to have a rational, 100+ page opinion finding the exact opposite of what this judge found (not having the benefit of knowing how adept or bumbling counsel was for each side). I think it would be difficult. The other side just doesn’t have any good, rational arguments for itself. They were after all just given the chance to present some of those rational arguments, and failed utterly. And when one side has all the good arguments it’s reasonable to expect that any rational judgment is going to go their way. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 5, 2010, 1:24pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/149 "2010-08-05T13:24:21Z")
The other side doesn’t have any good, rational arguments for banning same-sex marriage. It does have good, rational arguments for not overturning a ban on same-sex marriage. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 1:24pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/150 "2010-08-05T13:24:23Z")
> [@Der\_Trihs](#): > > I think it would be difficult. The other side just doesn’t have any good, rational arguments for itself. They were after all just given the chance to present some of those rational arguments, and failed utterly. And when one side has all the good arguments it’s reasonable to expect that any rational judgment is going to go their way. Baker v. Nelson Conaway v. Deane & Polyak Andersen v. King County Lewis v. Harris ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 1:25pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/151 "2010-08-05T13:25:39Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The other side doesn’t have any good, rational arguments for banning same-sex marriage. It does have good, rational arguments for not overturning a ban on same-sex marriage. This is the second time you’ve posted this. This is the second time it’s non-sensical in light of the EP clause of the constitution. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 5, 2010, 1:35pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/152 "2010-08-05T13:35:22Z")
I’ve been down this road before here. People see the word ‘rational’ and ascribe to it an ordinary, conversational meaning. It’s a term of art in law. The issue is not primarily an issue of fact. It’s an issue of law. Can the state make a judgment that marriage is for the purpose of procreation? This judge says no, that in this day and age that’s simply not what marriage should be about. But a rational legislature could disagree. “Rational,” in the sense of having a reason, not “rational” in the ordinary meaning of “weighing and balancing competing interests and settling on one.” I agree that even under intermediate scrutiny, banning same-sex marriage fails. I disagree that under the rational basis test, it does. What is needed here is simply a decision that gayness is a matter for intermediate scrutiny. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 1:37pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/153 "2010-08-05T13:37:19Z")
> [@Rumor\_Watkins](#): > > ok, you realize you’re stacking the deck, right? “findings of fact” aren’t exactly findings of mana from heaven - they’re skewed and subject to the trier of facts’ own perspective on things. How is it “stacking the deck”? The trial entered in various facts to be considered. If you want to write an opposing analysis you get to bring in any “facts” you choose? Facts which have not been vetted in the court? Seems unfair to say the other side can just gin up whatever they like. Both sides, in this case, would need to operate off the same set of facts put in evidence. Why do you think it should be otherwise? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 5, 2010, 1:42pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/154 "2010-08-05T13:42:49Z")
> [@Der\_Trihs](#): > > > [@Rumor\_Watkins](#): > > > > That said, I don’t think it would be very difficult to have a rational, 100+ page opinion finding the exact opposite of what this judge found (not having the benefit of knowing how adept or bumbling counsel was for each side). > > I think it would be difficult. The other side just doesn’t have any good, rational arguments for itself. They were after all just given the chance to present some of those rational arguments, and failed utterly. And when one side has all the good arguments it’s reasonable to expect that any rational judgment is going to go their way. In a vacuum, with the question phrased as "Should we permit/deny gay marriages, yeah. But in this specific case, I can advance a _one-paragraph_ rational argument for the Yes on Prop 8 side. Not a particularly good one, but definitely rational. “Every law is entitled to the presumption of constitutionality. In ths particular case, an amendment to the state constitution, duly adopted by the voters themselves after extensive public debate, is especially entitled to such a presumption. To rebut that presumption, plaintiffs would have to show that it flies in the face of settled constitutional principles. They have failed to do so.” Not a _good_ argument, given the overwhelming factual and legal case advanced by gay-marriage proponents challenging Prop. 8. But unquestionably a _rational_ one. ===================== As I understand it, the trial judge stayed his ruling for 48 hours to give respondents, who lost, opportunity to perfect an appeal. Is that correct? If so, what happens when the 48 hours are up? ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 1:42pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/155 "2010-08-05T13:42:53Z")
> [@Whack-a-Mole](#): > > How is it “stacking the deck”? The trial entered in various facts to be considered. If you want to write an opposing analysis you get to bring in any “facts” you choose? Facts which have not been vetted in the court? no. you get to weigh and consider and discount and value the facts differently. > [@](#): > > Seems unfair to say the other side can just gin up whatever they like. Both sides, in this case, would need to operate off the same set of facts put in evidence. > > Why do you think it should be otherwise? I think you’re misunderstanding me. you asked to write the contrary conclusions of law part given walker’s conclusions of fact. you’re failing to see that the conclusions of fact are written in a way to support the conclusions of law, and that factual findings are massively influenced by the perspective of the trier of fact. these aren’t “facts” like “LA is south of SF” - they’re “legal facts” that dont have sureness ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 1:46pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/156 "2010-08-05T13:46:34Z")
> [@Rumor\_Watkins](#): > > > [@Whack-a-Mole](#): > > > > How is it “stacking the deck”? The trial entered in various facts to be considered. If you want to write an opposing analysis you get to bring in any “facts” you choose? Facts which have not been vetted in the court? > > no. you get to weigh and consider and discount and value the facts differently. > > > [@](#): > > > > Seems unfair to say the other side can just gin up whatever they like. Both sides, in this case, would need to operate off the same set of facts put in evidence. > > > > Why do you think it should be otherwise? > > I think you’re misunderstanding me. you asked to write the contrary conclusions of law part given walker’s conclusions of fact. you’re failing to see that the conclusions of fact are written in a way to support the conclusions of law, and that factual findings are massively influenced by the perspective of the trier of fact. > > these aren’t “facts” like “LA is south of SF” - they’re “legal facts” that dont have sureness If you can interpret the facts in evidence differently that is fine…have at it. Considering the defense’s own witnesses conceded a number of points supporting the plaintiffs have fun reinterpreting the facts. But you have to use the facts in evidence to write a counter-analysis of _this case_. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 1:49pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/157 "2010-08-05T13:49:59Z")
> [@Whack-a-Mole](#): > > If you can interpret the facts in evidence differently that is fine…have at it. > > But you have to use the facts in evidence to write a counter-analysis of _this case_. Yes, and I don’t think that’s particularly difficult task to interpret the facts differently and arrive at a contrary legal conclusion. As I mentioned in a previous post, 4 state supreme courts have effectively found the opposite of Walker. The trier of fact is completely free to ignore the “experts” who testify on behalf of the proponents of prop 8 for want of credibility, and attach more credibility to the experts who testify on behalf of the opponents. edit: i see you have edited. I’ll just add this: holding that there is/is not a rational basis for government action is so fundamentally a question of one’s own interpretation and processing of the factual statements and legal arguments put in front of the trier that it’s pretty obvious that the directly opposite result can be reached without being biased or predisposed. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 5, 2010, 1:51pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/158 "2010-08-05T13:51:16Z")
> [@Rumor\_Watkins](#): > > > [@Der\_Trihs](#): > > > > I think it would be difficult. The other side just doesn’t have any good, rational arguments for itself. They were after all just given the chance to present some of those rational arguments, and failed utterly. And when one side has all the good arguments it’s reasonable to expect that any rational judgment is going to go their way. > > Baker v. Nelson > Conaway v. Deane & Polyak > Andersen v. King County > Lewis v. Harris IIRC (without looking up all those cases) all cases regarding SSM so far have dealt with State constitutions. This is the first one to say it is protected under the federal constitution. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 5, 2010, 1:54pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/159 "2010-08-05T13:54:19Z")
> [@Whack-a-Mole](#): > > > [@Rumor\_Watkins](#): > > > > Baker v. Nelson > > Conaway v. Deane & Polyak > > Andersen v. King County > > Lewis v. Harris > > IIRC (without looking up all those cases) all cases regarding SSM so far have dealt with State constitutions. This is the first one to say it is protected under the federal constitution. yes, “equal protection” really means a different thing in state court :rolleyes: these cases are perfect examples of rational, reasoned analysis holding exactly opposite to what walker held. the fora for these opinions is irrelevant. edit: these opinions all include analysis based on the 14th amendment, if i’m not mistaken. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [August 5, 2010, 1:59pm UTC](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386/160 "2010-08-05T13:59:46Z")
> [@Bricker](#): > > Can the state make a judgment that marriage is for the purpose of procreation? This judge says no, that in this day and age that’s simply not what marriage should be about. > > But a rational legislature could disagree. “Rational,” in the sense of having a reason, not “rational” in the ordinary meaning of “weighing and balancing competing interests and settling on one.” Could the legislature do so, in light of Supreme Court decisions such as the one that allows prisoners, even death-row inmates, to marry, even though they have zero chance of procreation? I thought that decision made it crystal clear that the courts disagree with the “marriage is for procreation” argument. [Previous page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=7) [Next page](https://boards.straightdope.com/t/prop-8-arguments-today-what-will-happen/488386.md?page=9)