I understand what you are saying, and I agree. It is a slippery slope. My FB photo at the moment says “FREEDOM TO MARRY” and I rather did not appreciate Prop 8. But can a pedophile rule on matters of pedophilia? Can a member of a tiny tiny minority rule on something that regulates said minority? At some point, it’s eyebrow raising, no? Can I, as a teacher, be member of my school board?
This is why it comes up so often: school boards, government contracts, oil and war.
If SCOTUS does hear this case, I’ll be interested in the legal arguments put forth (assuming that the Prop 8 folks get their act together).
I’m also curious how states who forbid the recognition of same sex marriage in their constitutions will get around certain laws in the future or if they will be ‘dead laws’. Wonder if there is wiggle room.
I think the tougher question is how an out-of-the-closed pedophile is going to get on the federal bench. The responses here have been very consistent: a judge can rule on a case that affects a group of people even if he’s a member of that group. That doesn’t meet the standard of a conflict of interest, which requires that the judge personally have something to gain from the decision. Saying a judge should recuse himself based on who he is is not the same as saying he should recuse himself based on something he’s done (like buying a stake in a business or making comments in public about a case, for example).
I think if the ruling is wrong on the law, it’s going to get struck down whether the judge is a member of that minority or not. If it’s right, it’ll stay. There’s a reason for this multi-tiered system of appeals- if your case on gay rights goes to a gay judge (and for some reason you think this means you can’t possibly win because the deck is stacked against you), it’s not game over. You can appeal. The problem for the Prop 8 defenders is that their appeals aren’t working because a lot of straight judges seem to agree with Walker’s reading of the state constitution.
Conflicts of interest are tricky, but those are also different from the situation with Walker. That allows for a broader reading of what a conflict of interest is in those situations.
I see the point, but it doesn’t necessarily change what I said. As I mentioned, we have a federal system. Each state has a high degree of independence from the others as individual states (though obviously not independence from the others as a whole, see Lee v. Grant). They can write different laws to enact bans on the same conduct. Depending on how the legislators/citizens in Texas formed their ban, how the citizens in California formed theirs, and what the USSC uses to invalidate California’s, then there could be a situation where one state’s ban is constitutional and another’s isn’t.
No, for two reasons. First, by the Court’s long-standing practice, if they rule against Prop 8 on standing questions, then as far as they are concerned there never was a real case in the first place and there’s nothing else to rule on. Second, although I suppose there’s nothing preventing the Court from making up its own question, it’s really unheard-of. Well, I say unheard-of, but over the years some legal scholars have on occasion accused the Court of doing that in certain majority opinions, but it isn’t the endorsed practice of the Court to do that. They decide a case based on the issues that are appealed to them. They won’t openly chuck aside the questions they certified.
CP, I think you need to go back and read the decision and familiarize yourself with how laws fundamentally work. You are a person who has a partial grasp of the subject and tries to stretch that out into an argument. It’s not working, everyone can see it but you, and further arguing is not going to help anyone because you either can’t or refuse to become more knowledgeable in the subject.
Basically, your understanding of the difference between an inherent quality and a chosen one is flawed. You may understand it if you contrasted the difference on something mundane, like eye color or height vs. occupation, but bring in the subject of gays, religion, and marriage and your understanding falls apart. However, you’ve shown that you’ve got a hell of an axe to grind against gays by referring to them as some medical anomaly that needs to be cured, so I don’t think you’ll ever want to be proven incorrect with facts.
As it stands yes, someone who is a pedophile can rule on a case involving pedophilia. A rapist could rule on a case involving rape. A bestiphiliac could rule on a case involving bestiality or whatever other stupid absurd analogy you want to throw in.
Sorry no ones pointing to a past precedent where a judge was barred from ruling based on his sexual orientation and had it overturned. This case is certainly blazing a new trail but it’s a similar path to the paths of similar issues and those are our best comparison.
If you want to set a precedent that a member of a minority can’t rule on a case based on the percentage of the population they belong to want to give us a hint as to what that number should be?
Also it’s not like the case was intentional steered to a gay judge. If judges have a similar representation of homosexuals to the rest of the population then the chances of getting a gay judge are pretty slim. Sometimes chance is just a bitch.
The only argument that works is saying that we can review the guy’s decision and see if it’s biased. All the rest is stupid.
Yes, a gay person is more likely to support something that is a right for gay people. Stop acting it isn’t true. Yes, a black person would be more likely to vote for rights for a black person. Yes, a black judge would be potentially biased. And, yes, it works with women, too.
The only reason we know the guy wasn’t biased is that we can see his reasoning. We can then poke holes in it if something is supported by bias and not legality. If we couldn’t, then pointing out someone’s bias would be a good idea, and one you likely use in your regular day to day arguments. Heck, it’s being used in this very thread. All it means is that the person must point out the logical steps to their reasoning, and can’t be trusted to have a logical reason.
Oh, and CP: even if homosexuality were a disease, why would it matter? Are you one of those who thinks people with diseases shouldn’t have rights? Because that’s my bugaboo. I figured out long ago that it didn’t matter if homosexuality was a choice, perfectly normal, or a disease. It exists, and homosexuals are people. Just like people with mental disorders are people.
And, Dio, cut it with the bigoted arguments against polygamists. You are using the same argument that people used against gay people. It’s all or nothing: The entire pro-same sex argument is that the government shouldn’t get involved with what happens between consenting adults, and should allow everyone to have their relationships legally recognized. You can’t take that away from a lifestyle you don’t like, no matter how unnatural you think it is.
I am almost certain that, if states are not allowed to prohibit same sex marriages, polygamy will not be far behind. There’s just no argument that one should be allowed and the other not. You can’t prove either is unnatural.
Sorry but no, polygamy is not an innate trait. Sexual orientation is an established part of a person’s identity. It is something you’re born with and something you can’t change. Thus to discrimminate against that when people have no choice in the matter is wrong
Polygamy is not innate. To prove that, you’d have to prove its innate for people to be married first, that people have the marriage gene or marriage is affected by something genetic. You can’t, because it isn’t. Therefore polygamy will NEVER be on the same status as gay marriage. Nobody’s born a polygamist, you become it through marriage. But plenty of people are born gay
YogSosoth, your demeaning post does nothing to bolster your claim. As it stands, Walker’s ruling is not the law of the land, nor is it immune from critique. Nor is Walker himself immune. Dio and others wanted to conflate the constitutionality of same sex marriage with recusing one’s self, but whatever.
Walker’s ruling (and Wane’s) both derive from legal precedent. What posters in this thread have done is try to address that precedent. If you can’t, then scoot.
No, I don’t think you understand that some people feel that religion is a mental affliction (like Dio) and some find religion to be as natural as a pull as, say, breathing.
Except that one’s sexual orientation is not mundane, and it it were such, then I’m going to form a PAC for the Protection of the Rights of Short Blonds Everywhere.
So should we only allow people who are really truly gay to partake in same sex marriages? Is there some kind of litmus test?
Can I get married to my best friend if I want her health care benefits? :dubious: (Comedy in cinema aside.)
Because seriously, extending marriage ‘benefits’ to everyone starts to get problematic. Let’s drop this marriage shit all together and live in a land of contracts and business agreements instead. There is nothing to be said for the ‘sanctity’ of marriage, but there is something to be said for its benefit.
Really? I see denying same-sex marriage as sexual discrimination. The state is preventing a federally protected class from entering into a marriage agreement with any member of that same class. It’s clearly discriminatory.
However, there’s no disconnect in saying you can only be in one marriage contract at any given time.
The ‘federal protection’ status is not a catch-all. Also, polygamous members - or poly-amorous secularists - enjoy a class as well: freedom of religion.
I can enter a contract with more than one person to start a business. Why not a marriage?
If Walker’s initial ruling is not appealed, his decision only applies to the actual parties in the case, and precedent is only created in his jurisdiction. If it’s ruled that Prop 8’s backers lack standing to appeal, and assuming that no one else that does have standing comes forward to appeal, then there simply is no appeal. The issue stops there. So, in that scenario, SSM becomes legal in California again, and the rest of the country is unaffected one way or the other, with no binding precedent.
If the 9th Circuit grants standing, and then hears the case on appeal, and then decides that it’s unconstitutional to prohibit SSM, and then an appeal to the Supreme Court is either denied or not filed, that’s what happens. But that’s a very unlikely scenario.
This is correct.
It may not seem likely, but the Supreme Court absolutely could make a ruling that invalidates Prop 8, but doesn’t declare same-sex marriage a right (and thus require same-sex marriage to be recognized throughout the country). For example, California’s situation is unique in that the state Supreme Court declared same-sex marriage to be a right under the state’s constitution, it was legal for a while, and then that right was rescinded by Prop 8. The US Supreme Court could rule that while the US Constitution doesn’t require same-sex marriage, states are not permitted to rescind a minority group’s once-recognized right (whatever that may be).
In Romer v. Evans, the Court overturned an amendment to Colorado’s state constitution that prohibited the state and local governments within from having “any statute, regulation, ordinance or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination”. In their ruling, the Supreme Court did not say that sexual orientation was required to be included in antidiscrimination laws or declare any specific right. The fact that it targeted a group to deny rights was enough.
I don’t think the 9th Circuit will rule that they lack standing. They have certified the question to the California Supreme Court; presumably they will simply affirm whatever the CA Supreme Court rules. After that, the standing issue can be appealed to the US Supreme Court (whichever way it went). In my opinion the US Supreme Court will likely dismiss that appeal for lack of a substantial federal question. So the CA Supreme Court will probably have the final say on standing.
Even if the US Supreme Court does hear the issue of standing, and decide to grant standing to the Prop 8 supporters, the actual case still goes back to the 9th Circuit to rule on the merits, followed by an appeal to the US Supreme Court. I’m sure you knew that, just clarifying.
It’s hard to say how they will decide on standing. A similar situation happened with Prop 187 – a federal district court invalidated it, and after elections the new governor decided to drop the appeal, so it just died. IIRC, the proposition’s proponents had been barred from being a party to the case in the first place, but I don’t know if they attempted to file their own appeal. Also the state defended the law in district court, which didn’t happen with Prop 8.
Banning same-sex marriage is denying me a marriage license based on the gender of my partner. Banning polygamy is denying me a marriage license based on the quantity of my partners. While gender discrimination is barred in many contexts, I know of nothing barring “quantity discrimination”. Indeed, we discriminate on the basis of quantity all the time. For example, different labor laws may apply to different businesses based on how many employees they have. Mind you, I’m not arguing that polygamy should remain illegal, only that it’s not inconsistent to ban it while recognizing same-sex marriage as a right.
If freedom of religion requires the government to recognize certain marriages, it would certainly require the government to recognize same-sex marriage as well.
Indeed, why not? But you don’t have a right to enter into an unlimited number of contracts. The government may regulate that.
We are not naturally a monogamous people. There were no laws that banned gays from marriage. There were laws that banned gays from marrying each other. I could, theoretically, live in a polygamous ‘union’ without the same rights and protections and safety nets as two-person partnerships, but so can gays.
Considering the number of conservative and secular pro-polygamists (or potential ones), I’d say that the number of people wanting to enter into such an arrangement is probably comparable to that of gays entering into same sex marriages.
Polygamy is explicitly outlawed in the U.S.
I’m not going to get married because I know I couldn’t be with one person for the rest of my life. Sounds cliche, but true. However, if I could enter into an arrangement where I was with four other people, I may reconsider. Or better yet - the government could just stop regulating marriages and granting special status to married couples all together.
Because one of the guiding principles behind our system of justice is that it should be administered efficiently. If a judge had to recuse himself every time it appeared that he might have a personal interest (other than financial) in the outcome of a case, it would take months just to find a judge. We only have 678 federal trial judges, and only 30ish are seated in California districts.
Prior to DOMA, same sex marriages were presumed to be outside the law, based on language and tradition. I am not aware of any laws that prohibited same sex marriage prior to 1996. I suspect that there were not “laws that banned gays from marrying each other” in the U.S. prior to fifteen years ago.
Marriage confers specific rights and responsibilities on people who have a relationship not established by consanguinity or adoption. You are free to say that the government should abstain from being involved in those relationships, but you might want to consider the Law of Unintended Consequences before you push that too hard.
As to polygamy, you are free to work to make that law, (although you might have a bit of an uphill battle in this society).
There were, just not statutes. The Minnesota Supreme Court determined in 1972 that marriage was defined as being between a man and a woman at common law.
There were no laws that stopped black people from getting married, just stopping them from from marrying white people.
This is a retarded comparison. Polygamy is not a sexual orientation or an innate characteristic. No one is discriminated against by polygamy bans. “Polygamists” are not a class.
If you lack the maturity to sustain a committed relationship, that doesn’t mean you have some kind of innate orientation towards polygamy.
You don’t understand the 4th Amendment issue. In order to show unequal protection, you have to show that one group is being treated differently than another group. No such distinction exists with polygamy since there is no class of “polygamists.”
And don’t even try that moronic line about how gay people can still get hetero-married. That’s a sophist and juvenile argument. These are real people with real relationships and real pain. Tell me why the government has an interest in denying them the rights afforded to hetero relationships.
By the way, if you want to get REALLY sophist about it, I can point out that denying same-sex marriage benfits discriminates on the basis of sex.. How come a woman has a right to marry a man, but I don’t. SEXISM.
